The Creation of American Common Law, 1850–1880 Book contents
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- 1 North and South
- 2 Illinois: “We Were Determined to Have a Rail-Road”
- 3 “The Memory of Man Runneth Not to the Contrary”: Cases Involving Damage to Property
- 4 “Intelligent Beings”: Cases Involving Injuries to Persons
- 5 The North: Ohio, Vermont, and New York
- 6 Virginia through the 1850s: The Last Days of Planter Rule
- 7 The Common Law of Antebellum Virginia: The Preservation of Status
- 8 Virginia's Version of American Common Law: Old Wine in New Bottles
- 9 The South: Georgia, North Carolina, and Kentucky
- 10 Legal Change and Social Order
- Index of Cases
- Bibliography
- Index
1 - North and South
Published online by Cambridge University Press: 22 July 2009
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- 1 North and South
- 2 Illinois: “We Were Determined to Have a Rail-Road”
- 3 “The Memory of Man Runneth Not to the Contrary”: Cases Involving Damage to Property
- 4 “Intelligent Beings”: Cases Involving Injuries to Persons
- 5 The North: Ohio, Vermont, and New York
- 6 Virginia through the 1850s: The Last Days of Planter Rule
- 7 The Common Law of Antebellum Virginia: The Preservation of Status
- 8 Virginia's Version of American Common Law: Old Wine in New Bottles
- 9 The South: Georgia, North Carolina, and Kentucky
- 10 Legal Change and Social Order
- Index of Cases
- Bibliography
- Index
Summary
The term common law means the body of rules created over time by judges, as opposed to positive law – that is, statutes created by legislative enactment. Common law is developed through the accretion of precedents. There is still no better description of this process than that provided by Justice Lemuel Shaw of Massachusetts in Norway Plains Company v. Boston & Maine Railroad, 10 Mass. (Gray) 263, 267 (1854):
[T]he common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more by judicial exposition… . such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances.
In the 1850s, therefore, it was judges who engineered the development of a new body of common law. More specifically, a handful of judges in each state, sitting on those states' highest courts, were the crucial actors in the creation and development of an American system of common law that replaced the inherited English system.
To modern eyes, the distinction between common law and statutory law appears close to the distinction that political scientists draw between “private law” and “public law.”
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- Information
- The Creation of American Common Law, 1850–1880Technology, Politics, and the Construction of Citizenship, pp. 13 - 43Publisher: Cambridge University PressPrint publication year: 2004