American Legal History Cases and Materials

by Hall, Kermit L.; Finkelman, Paul; Ely, James W.

• ISBN13: 9780195162257
• ISBN10: 0195162250
• Edition: 3rd
• Format: Paperback
• Copyright: 2004-10-28
• Publisher: Oxford University Press

Summary

Revised and expanded in this third edition, American Legal History now features a new coauthor, James Ely, who is a specialist in the history of property rights. This highly acclaimed text provides a comprehensive selection of the most important documents in the field, which integrates thehistory of public and private law from America's colonial origins to the present. Devoting special attention to the interaction of social and legal change, it shows how legal ideas developed in tandem with specific historical events and reveals a rich legal culture unique to America. The book alsodeals with state and federal courts and looks at the relationship between the development of American society, politics, and economy, and how it relates to the evolution of American law. Introductions and instructive headnotes accompany each document, tying legal developments to broader historicalthemes and providing a social and political context essential to an understanding of the history of law in America. American Legal History, Third Edition, offers fresh material throughout and increased coverage of cases on such topics as slave law, politics, and terrorism. The authors have incorporated more cases dealing with minority rights, including Native American and Asian American rights, women's rights,and gender and gay rights. Two new chapters have been added to this edition: one on law and economics in modern America, including a discussion of the new federalism, and the other on law, politics, and terrorism, including a full discussion of the USA PATRIOT Act. The "since 1945" portion includesup-to-date material and current cases. The section on English background and colonial America has been expanded. In addition, there is new material on the most recent developments in American constitutional and legal history. Setting the legal challenges of the twenty-first century in a broadcontext, American Legal History, Third Edition, is an essential text for students and teachers of constitutional and legal history, the judicial process, and the effects of society on law.

Table of Contents

Preface

Law In The Morning Of America: The Beginnings Of American Law, To 1760

The English Heritage and Magna Charta

Magna Charta (1215)

Note: Due Process and the Law of the Land

Note: The Reformation and Tudor England

The Virginia Colony

Dale's Laws (1611)

The Beginnings of Constitutionalism in America

The Mayflower Compact (1620)

""A Model of Christian Charity"" (1629)

Note: Roger Williams and Religious Liberty

""The Bloudy Tenent of Persecution for Cause of Conscience"" (1644)

Roger Williams to The Town of Providence (1655)

The Laws of Liberties of Massachusetts (1648)

The Rhode Island Patent (1643)

Note: England's Civil War

The Post-Restoration Colonial Governments

The Fundamental Constitutions of Carolina (1669)

First Frame of Government (1682)

The New-York Charter of Libertyes (1683)

The Glorious Revolution

Note: The Case of the Seven Bishops (1688)

The English Bill of Rights (1689)

""Second Treatise of Civil Government"" (1690)

The Sources of Law in America

Note: Reception of the Common Law

William Blackstone on Reception (1765)

Giddings v. Brown (1657)

Law and Colonial Society

Morality and Colonial Law

""A Horrible Case of Beastiality,"" Plymouth Colony (1642)

Marriage, Women, and the Family

William Blackstone on Women in the Eyes of the Law (1765)

Note: Women and the Law in the Colonial Era

An Act Concerning Feme-Sole Traders (1718)

Widows of New York and Taxes

Children, Apprenticeship, Education

Virginia Apprenticeship Statute (1646)

Children's Education in Plymouth (1685)

White Indentured Servitude

In re Wm. Wootton and John Bradye (1640)

South Carolina Servant Regulations (1761)

Slavery

In re John Punch (1640)

In re Emanuel (1640)

Re Mulatto (1656)

Re Edward Mozingo (1672)

Moore vs. Light (1673)

Against Runaway Servants, Act XVI (1657-8)

How Long Servants Without Indentures Shall Serve, Act XVIII (1657-1658)

An Act for the Dutch and All Other Strangers for Trading to This Place, Act XVI (1659-1660)

Run-aways, Act CII (1661-1662)

Negro Women's Children to Serve According to the Condition of the Mother, Act XII (1662)

An Act Declaring that Baptisme of Slaves Doth Not Exempt Them from Bondage, Act II (1667)

An Act About the Casual Killing of Slaves, Act I (1669)

An Act For Preventing Negro Insurrections, Act X (1680)

The Germantown Protest Against Slavery (1688)

South Carolina Slave Code (1740)

The New York ""Negro Plot"" (1741)

Colonial Welfare Systems

An Act for the Relief of the Poor (1742)

Note: Colonial Workfare

Class Legislation and Sumptuary Laws

Note: Class and Status in Early America

Democracy and Deference

The Incident of the Roxbury Carters (1705)

Law and the Colonial Economy

The Laws and Liberties of Massachusetts (1648)

The Laws of South Carolina (1734)

Early Criminal Law

The Salem Witch Trials (1692)

Increase Mather, ""Cases of Conscience Concerning Evil Spirits Personating Men"" (1692)

The Wonders of the Invisible World (1693)

Politics and Criminal Law: Toward a New America

The Zenger Trial (1735)

Law In A Republican Revolution, 1760-1815

The American Revolution

""Unlimited Submission and Non-resistance to the Higher Powers"" (1750)

Note: Litigation and the Coming of the Revolution

""The Rights of the British Colonies"" (1764)

William Blackstone on the Imperial Constitution (1765)

The Declaratory Act (1766)

The Declaration and Resolves of the Continental Congress (1774)

Common Sense (1776)

The Declaration of Independence (1776)

Republican State Constitutionalism

The Virginia Declaration of Rights (1776)

The People the Best Governors (1776)

Note: The Pennsylvania Constitution of 1776

Slavery and the New Nation

Somerset v. Stewart (1772)

The Pennsylvania Gradual Abolition Act (1780)

Massachusetts Constitution of 1780

Commonwealth v. Jennison (1783)

Virginia Manumission Act

North Carolina Statute on Slave Murder

Thomas Jefferson on Slavery, Notes on the State of Virginia (1784)

Religion

The Virginia Statute for Religious Freedom (1786)

New Hampshire Constitution (1784)

Religion and Law Reform

Notes on the State of Virginia (1785)

Republican National Constitutionalism

The Articles of Confederation (1781)

The Philadelphia Convention (1787)

Debating the Constitution

Antifederalist Critiques of the Constitution: Elbridge Gerry's Report on the Constitution as Printed in Massachusetts Centinel (1787)

Federalist, Number 10 (1787)

Federalist, Number 78 (1788)

The Northwest Ordinance (1787)

The New Republic

The Bill of Rights

""Property"" (1792)

Hamilton Versus Madison on Presidential Power (1793)

Farewell Address (1796)

The Sedition Act (1798)

The Virginia and Kentucky Resolutions (1798-1799)

First Inaugural Address (1801)

Courts and Judges in the New Nation

The Judiciary Act (1789)

Jefferson versus Hamilton on the Bank of the United States (1791)

Calder v. Bull (1798)

Marbury v. Madison (1803)

The Active State And The Mixed Economy, 1812-1860

The Golden Age of American Law

Commerce, Legislative Promotion, and Law in the New Republic

The New York Steamboat Monopoly and the Federal Commerce Power

Livingston v. Van Ingen (1812)

Note: The Mix of Economies, Politics, and Law

Gibbons v. Ogden (1824)

Note: The Effect of Gibbons

The Second Bank of the United States

McCulloch v. Maryland (1819)

Note: A Court Opinion as Political Theory

Veto Message (1832)

Note: Jacksonian Economics

Note: A Federal Common Law

Note: Canals, Internal Improvements, and the States

State Constitutions and the Active State

Ohio Constitution (1851)

Mississippi Constitution (1817)

Mississippi Constitution (1832)

Substantive Law and Economic Growth

The Advent of the Corporation

Dartmouth College v. Woodward (1819)

Note: The Politics of the Dartmouth College Case

Charles River Bridge Company v. Warren Bridge Company (1837)

Note: The Limited Liability of Stockholders

Labor in an Industrializing Society

Note: The Traditional Theory of Labor Conspiracy

Commonwealth v. Hunt (1842)

Note: The Fellow Servant Rule

Farwell v. The Boston and Worcester Railroad Co. (1842)

Note: Chief Justice Shaw and Labor

Note: Fellow Servants and Slaves

Property

Van Ness v. Pacard (1829)

Note: Eminent Domain

Parham v. The Justices of Decatur County (1851)

Barron v. Baltimore (1833)

A Treatise on the Law of Watercourses (1854)

Note: Water Rights in the East

Cary v. Daniels (1844)

Note: Water Rights in the West

The Great Plains (1931)

Irwin v. Phillips, et al. (1855)

Note: Law and Westward Migration

The Growth of Contract Law in the Nineteenth Century

Seixas and Seixas v. Woods (1804)

McFarland v. Newman (1839)

Icar v. Suares (1835)

Seymour v. Delancey, et al. (1824)

Note: Contracts and the Emerging Speculative Economy

Note: Contracts and the Federal Constitution

The Evolution of Modern Tort Law

Spencer v. Campbell (1845)

Brown v. Kendall (1850)

Note: The Emergence of Negligence

Note: Toward the Future

Ryan v. New York Central Railroad Co. (1866)

Fent et al. v. Toledo, Peoria & Warsaw Railway Co. (1871)

An Act to Establish the Responsibility of Railroad Corporations, Companies, and Persons Owning or Operating Railroads, for Damages by Fires Communicated by Locomotive Engines (1887)

Note: Wrongful Death and Tort Law

Slavery, The Civil War, Reconstruction, And Segregation

Slavery and State Law

Race and the Law of Negro Slavery

An Inquiry into the Law of Negro Slavery (1858)

The Power of the Master over the Slave

State v. Mann (1829)

Note: Harriet Beecher Stowe on Southern Judges

Souther v. Commonwealth (1851)

State v. Hoover (1839)

Mitchell v. Wells (1859)

Note: The Somerset Precedent in America

Slavery and the Constitution

The Problem of Fugitive Slaves

Prigg v. Pennsylvania (1842)

Note: Prigg and the Use of History

Note: Prigg and Its Aftermath

Note: Northern States'-Rights Arguments

Slavery, the Territories, and Interstate Comity

Dred Scott v. Sandford (1857)

Note: The Reaction to Dred Scott

""House Divided"" Speech (1858)

Note: The Next Dred Scott Decision

Secession and Constitutional Theory

South Carolina Ordinance of Nullification (1832)

President Jackson's Proclamation Regarding Nullification (1832)

Nullification and Succession

Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina (1860)

First Inaugural Address (1861)

The Civil War and Emancipation

The Emancipation Proclamation (1863)

Note: The Effect of the Emancipation Proclamation

Second Inaugural Address (1865)

Reconstruction and Its Aftermath: Political Change, Black Freedom, and the Nadir of Black Rights

Political Change

Articles of Impeachment of Andrew Johnson (1868)

Note: The Courts and the Politics of Reconstruction

Black Freedom

Mississippi Black Codes (1865)

An Act to Protect All Persons in the United States in Their Civil Rights, and Furnish Means of Their Vindication (1866)

Note: The Civil Rights Act and the Fourteenth Amendment

Note: Andrew Johnson's Veto of the 1866 Civil Rights Act

Note: The Freedmen's Bureau

Note: The Civil Rights Act of 1875

The End of Civil Rights

The Slaughterhouse Cases (1873)

Note: The Slaughterhouse Legacy

Note: Civil Rights Cases (1883)

Race and Segregation in Nineteenth-Century Law and Society

Roberts v. The City of Boston (1850)

Note: Free Blacks and the Law

Plessy v. Ferguson (1896)

Note: Separate But Equal in the North

Segregation on the Eve of a New Century (1898)

Nineteenth-Century Law And Society, 1800-1900

Race

Native Americans

Cherokee Nation v. Georgia (1831)

Note: The Federal Government and Native Americans

Lone Wolf v. Hitchcock (1903)

Asians

Yick Wo v. Hopkins (1886)

Note: The Chinese and Jim Crow

Note: Chinese Exclusion

United States v. Wong Kim Ark (1898)

Note: Gentlemen's Agreement (1907)

Oregon v. Charley Lee Quong, Ah Lee, and Lee Jong (1879)

Latinos and Hispanics

California ex. rel. M. M. Kimberly v. Pablo de la Guerra (1870)

Gender and Domestic Relations

The Rights of Women

""The Seneca Falls Declaration of Sentiments"" (1848)

The New York Married Women's Property Acts (1848)

Note: Married Women and the Law

Bradwell v. Illinois (1873)

Minor v. Happersett (1875)

Note: the Case of United States v. Susan B. Anthony (1873)

Marriage and Divorce

""The Nature of Marriage and How Defined"" (1881)

Wightman v. Coates (1833)

Reynolds v. United States (1879)

Note: Divorce

Waldron v. Waldron (1890)

Birth Control and Abortion

State v. Slagle (1880)

Note: Abortion and the Quickening Doctrine

People v. Sanger (1918)

Crime and Criminal Justice

Crime and Punishment

On Crimes and Punishments (1764)

""The Causes of Crime"" (1880)

Note: The Police and the Prison

The Excuse of Crime

State v. Felter (1868)

Note: Insanity Tests

Bill Bell v. The State (1885)

Note: The South and Self-Defense

Late-Nineteenth-Century Crime and Morality

People v. Plath (1885)

The Federal Government, Crime, and Morality

Ex Parte Jackson (1877)

Note: Morality and Free Speech

Lawyers And The Rise Of The Regulatory State, 1850-1920

The Lawyer in American Society

Alexis de Tocqueville on Lawyers and Judges (1835)

Legal Education

A Selection of Cases on the Law of Contracts (1871)

Note: Critics of Langdellian Assumptions

Legal Theory in the Late Nineteenth Century

A Treatise on the Constitutional Limitations which Rest upon the Legislative

Note: Social Tension in the 1890s

A Treatise on the Limitations of Police Power in the United States (1886)

The Common Law (1881)

""The Path of the Law"" (1897)

The Growth of Economic Regulation

Property Rights and Police Power

""Protection to Private Property from Public Attack"" (1891)

State Regulation and the Public Interest

States and Labor Law

New Jersey Child Labor Act (1851)

Illinois Criminal Syndicalism Act (1887)

New York Worker's Compensation Act (1910)

Worker's Compensation and the Question of Causation

Ives v. South Buffalo Railway Co. (1911)

Eminent Domain

Colorado Constitution (1876)

Note: The Evolution of Takings Jurisprudence

Federal Regulation and the Public Interest

The Interstate Commerce Commission

Interstate Commerce Act (1887)

Note: Judicial Reaction to the Interstate Commerce Commission

Trustbusting: The Statutory Basis

Sherman Anti-Trust Act (1890)

Federal Commerce Power

United States v. E.C. Knight & Co. (1895)

Note: Anti-Trust Law in the Progressive Era

Populist Platform Adopted at St. Louis (1892)

Taxation of Income

Arguments for Appellant in the Income Tax Cases (Pollock v. Farmers' Loan and Trust Co.) (1895)

Judicial Reaction to the Regulatory State

The Origins of Substantive Due Process

Wynehamer v. The People (1856)

Bond Repudiation and Judicial Review

The Bradley Dissent in Slaughterhouse

The Slaughterhouse Cases (1873)

Reaffirmation of the Police Power

Munn v. Illinois (1877)

Note: Federal Judicial Review of State Rate Regulations

Substantive Due Process in the State Courts

In re Jacobs (1885)

Note: Substantive Due Process and Corporations

Note: The Labor Injunction

Federal Police Power and Labor

In re Debs (1895)

Note: Labor and the Law

Liberty of Contract

Allgeyer v. Louisiana (1897)

Liberty of Contract and Workplace Regulation

Holden v. Hardy (1898)

Lochner v. New York (1905)

Muller v. Oregon (1908)

Toward a Federal Police Power

Champion v. Ames (1903)

Note: The Growth of Federal Police Power

Note: Child Labor

Total War, Civil Liberties, And Civil Rights

Individual Rights in a Changing Culture

""The Right to Privacy"" (1890)

World War I and Civil Liberties

The Suppression of Dissent During World War I

World War I and the Origins of Civil Liberties in the United States (1979)

Censorship During World War I

Schenck v. United States (1919)

Note: Debs v. United States (1919)

Abrams et al. v.2United States (1919)

Note: The Abrams Dissent

Radicals and Civil Liberties

Note: Civil Liberties and Fourteenth Amendment Incorporation

Whitney v. California (1927)

World War II and Legal Developments

The Flag Salute Cases

West Virginia State Board of Education v. Barnette (1943)

The Japanese Internment

Note: Executive Order-No. 9066

Hirabayashi v. United States (1943)

Korematsu v. United States (1944)

Note: Ex Parte Endo (1944)

Note: The Internment Cases a Generation Later

Civil Liberties and Criminal Justice in Crisis Times

The Emergence of Criminal Due Process

Weeks v. United States (1914)

Olmstead v. United States (1928)

Note: Prohibition and the Law

Crime in the Cities

Criminal Justice in Cleveland (1922)

Civil Rights and Racial Justice

Race and the Franchise

Race and Education

Missouri ex rel. Gaines v. Canada (1938)

Note: Beyond Gaines

Racial Justice and Criminal Law

""Lynching and the Administration of Justice"" (1933)

Note: Lynching and Federal Law

Note: Black Rights, Southern Justice, and the Supreme Court

The Rise Of Legal Liberalism, Economic Reform, And The New Deal, 1900-1945

Sociological Jurisprudence, the American Law Institute, and Legal Realism

""Law and the Court"" (1913)

Note: Oliver Wendell Holmes, and Judging

""Brief for the Defendant in Error,"" Muller v. Oregon (1907)

The American Law Institute

""Report of the Committee,"" American Law Institute (1923)

Note: The American Law Institute and the Restatements

Legal Realism

Law and the Modern Mind (1936)

Note: Legal Realism

The New Deal and the Rise of Legal Liberalism

The State and Federal Legislative Response

The Supreme Court and the New Deal

Schechter v. United States (1935)

United States v. Butler (1936)

FDR's Court-Packing Plan

Fireside Chat on the ""Court-Packing"" Bill (1937)

Note: The Fate of FDR's Court-Packing Plan

The Retreat from Economic Substantive Due Process

West Coast Hotel v. Parrish (1937)

Note: The Decline of Substantive Due Process

Ordered Liberty, Preferred Positions, and Selective Incorporation

Palko v. Connecticut (1937)

Note: Carolene Products and Preferred Positions

Footnote 4: United States v. Carolene Products Co.(1238)

The Limits of Federal Judicial Power

Note: The Fate of Erie

Rights, Liberty, and Science In Modern America

Civil Rights

Race

Brown v. Board of Education of Topeka, Kansas (1954)

""Southern Declaration on Integration"" (1956)

Note: Race and the Constitution

""Letter from Birmingham City Jail"" (1963)

Civil Rights Act of 1964

Affirmative Action

Regents of the University of California v. Bakke (1978)

Note: The Future of Affirmative Action in Education

City of Richmond v. J. A. Croson Company (1989)

Note: The Aftermath of Croson

Gender

Griswold v. Connecticut (1965)

Note: The Debate in Griswold

Roe v. Wade (1973)

Note: The Future of Roe

Johnson v. Transportation Agency, Santa Clara County (1987)

Note: Affirmative Action and Sexual Harassment

Sexual Orientation

Romer v. Evans (1996)

Same-Sex Marriages

Baker v. State (1999)

Vermont Civil Union Act (2000)

Defense of Marriage Act

Civil Liberties

Dennis et al. v. United States (1951)

Note: Free Speech and Internal Security

New York Times v. Sullivan (1964)

Offensive Speech

Engel v. Vitale (1962)

Employment Division, DePartment of Human Resources of Oregon v. Smith (1990)

Note: Religious Freedom Restoration Act of 1993

Criminal Justice

Miranda v. Arizona (1966)

Note: The Supreme Court and Criminal Justice

Note: Surge in Incarceration

Science and Law

Definition of Death

In re Quinlan (1976)

Note: Right to Die

Surrogate Parenting

In re Baby M (1988)

The Challenge of DNA

Science and Environmental Law

TVA v. Hill (1978)

Note: The Fate of Hill

Cyberspace

Intel v. Hamidi (2003)

Law and The Economy In Modern America

Regulatory State

Deregulation

The Staggers Act (1980)

The Contours of Environmental Regulation

""Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and 'Fine-Tuning' Regulatory Reforms"" (1985)

""Reforming Environmental Law"" (1985)

Executive Order 12866 (1993)

Anti-Trust Policy

Economic Activity

Contract

Williams v. Walker-Thomas Furniture Company (1965)

Torts

Greenman v. Yuba Power Products, Inc. (1962)

Fassoulas v. Ramey (1984)

Note: Legislative Reform of the Tort System

BMW of North America, Inc. v. Gore (1996)

Note: Beyond Gore

Note: Tobacco Litigation

Property

Lionshead Lake, Inc. v. Wayne Tp. (1952)

Note: Zoning

Eminent Domain

Hawaii Housing Authority v. Midkiff (1984)

Note: Eminent Domain beyond Midkiff

Regulatory Takings

Lucas v. South Carolina Coastal Council (1992)

Residential Leases

Javins v. First National Reality Corporation (1970)

Entitlements and ""New Property""

New Federalism

Untied States v. Lopez (1995)

Note: New Directions in Commerce Clause Jurisprudence

Printz v. United States (1997)

Law, Politics, and Terror

The Modern Presidency and Separation of Powers

New York Times Company v. United States, United States v. Washington Post Company (1971)

Note: The Modern Presidency

United States v. Nixon (1974)

Note: The Resignation of Richard Nixon

The Impeachment of Bill Clinton

House Committee on the Judiciary Resolutions of Impeachment Against William Jefferson Clinton, President of the United States, for High Crimes and Misdemeanors (1998)

The Senate Vote on President Clinton

Political Questions, the Presidential Election of 2000, and the Supreme Court

Bush v. Gore (2000)

Note: The Supreme Court Decision and the Political Process

President-Elect George W. Bush Addresses the Nation, December 13, 2000

Terror, Liberty, and the Presidency

Note: The USA PATRIOT Act of 2001

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, H.R. 3162 Section-by-Section Analysis

The USA PATRIOT ACT: For and Against

The USA PATRIOT ACT: Preserving Life and Liberty (2004)

American Civil Liberties Union, The USA PATRIOT ACT and Government Actions that Threaten Our Civil Liberties (2004)

Zelman v. Simmons-Harris (2002)

Note: Homeland Security Act

Appendix: The Constitution of the United States

Notes

Sources and Credits

Index of Cases

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