1 Barry M. Mitnick, The Political Economy of Regulation (New York, 1980); James W. McKie, “Regulation and the Free Market: The Problem of Boundaries,” 1 Bell J. Econ. & Mgmt. Sci 6–26 (1970). This notion flows as much from the public/private distinction in modern political thought as from classical economics. See Joyce Oldham Appleby, Economic Thought and Ideology in Seventeenth-Century England (Princeton, N.J., 1978); id, Capitalism and a New Social Order: The Republican Vision of the 1790′s (New York, 1984); P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford, 1979); Morton J. Horwitz, “The History of the Public/Private Distinction,” 130 U. Pa. L Rev. 1423–28 (1982). For an early challenge to this perspective see Morris R. Cohen, “Property and Sovereignty,” 13 Caell LQ. 8 (1827); Robert L. Hale, “Force and the State: A Comparison of ‘Political’ and ‘Economic’ Compulsion,” 35 Columbia L Rev. 149 (1935).Google Scholar

2 McCraw, Thomas K., “Regulation in America: A Review Article,” 49 Bus. Hist. Rev. 159–83, 175 (1975).CrossRefGoogle Scholar

3 See William J. Novak, “Intellectual Origins of the State Police Power: The Common Law Vision of a Well-regulated Society,” University of Wisconsin Institute for Legal Studies Working Paper (Madison, Wis., 1989). Regulations of public safety, public property, and public health are discussed in my dissertation “Salus Populi: The Roots of Regulation in America, 1787–1873” (Brandeis University, 1992).Google Scholar

4 For some hints as to the European genealogy of this notion see Marc Raeff, The Well-ordered Police State: Social and institutional Change through Law in the Germanies and Russia, 1600–1800 (New Haven, Conn., 1983); Christopher L. Tomlins, “Law, Police, and the Pursuit of Happiness in the New American Republic,” 4 Stud. Am. Pol. Dev. 3–34 (1990).Google Scholar

5 Nash, Gerald D., “State and Local Governments” in Porter, Glenn, ed., 2 Encyclopedia of American Economic History 509–23, 509 (3 vols. New York, 1980). See also Sidney Fine, Laissez Faire and the General-Welfare State (Ann Arbor, Mich., 1956); Farnham, Wallace D., “‘The Weakened Spring of Government’: A Study in Nineteenth Century American History,” 68 Am Hist. Rev. 662–80 (1963). The traditional interpretation of Adam Smith has been revised. See Donald Winch, Adam Smith's Politics: An Essay in Historiographical Revision (Cambridge, Eng., 1978); Istvan Hont & Michael Ignatieff, eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge, Eng., 1983).Google Scholar

6 Karl Polanyi, The Great Transformation (New York, 1944) (“Polanyi, Transformation”).Google Scholar

7 Woodman, Harold D., “Economy from 1815 to 1865,” in Porter, Glenn, ed., 1 Encyclopedia of American Economic History 66–90, 66 (3 vols. New York, 1980) (emphasis added). Polanyi's critique is stated concisely at the outset of his treatise: “Our thesis is that the idea of a self adjusting market implied a stark utopia. Such an institution could not exist for any length of time without annihilating the human and natural substance of society.” Polanyi, Transformation 3.Google Scholar

8 The phrase “age of boundlessness” is John Higham's quoted in Stuart Bruchey, The Wealth of a Nation: An Economic History of the United States x (New York, 1988). The identification of this age with “economic growth” is primarily the result of Stuart Bruchey's and Douglass North's application of Simon Kuznets's categories and models to the early 19th century. See Simon Kuznets, Modern Economic Growth: Rate, Structure, and Spread (New Haven, Conn., 1966); Stuart Bruchey, The Roots of American Economic Growth, 1607–1861 (New York, 1965); Douglass C. North, The Economic Growth of the United States, 1790–1860 (Englewood Cliffs, N.J., 1961); id, Growth and Welfare in the American Past: A New Economic History (Englewood Cliffs, N.J., 1966). This focus on “growth” is a staple of the “new” economic history generally. Here, the capitalist transformation is assumed—its institutional underpinnings (including the state and legal relations) ignored so that historical economic development can be analyzed according to “pure” economic (and predominantly post-World War II) models, ideas, and assumptions. See, for example, the range of articles in Robert W. Fogel & Stanley L. Engerman, eds., The Reinterpretation of American Economic History (New York, 1971). For similar characterizations of the antebellum economy see Thomas C. Cochran, Frontiers of Change: Early Industrialism in America (New York, 1981) (“Cochran, Frontiers of Change”); Robert Higgs, The Transformation of the American Economy, 1865–1914: An Essay in Interpretation (New York, 1971) (“Higgs, Transformation of Economy”); Edward Pessen, Jacksonian America: Society, Personality, and Politics 96 (Homewood, Ill., 1969).Google Scholar

9 Sean Wilentz, “Society, Politics, and the Market Revolution, 1815–1848,” in Eric Foner, ed., The New American History 51–71 (Philadelphia, 1990); Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York, 1990); Charles G. Sellers, The Market Revolution: Jacksonian America, 1815–1846 (New York, 1991). The social history literatures synthesized in these works are immense. For capitalism and the countryside see the bibliography and discussions contained in Alan Kulikoff, “The Transition to Capitalism in Rural America,” 46 Wm & Mary Q. 120–44 (1989); Christopher Clark, The Roots of Rural Capitalism: Western Massachusetts 1780–1860 at 3–17 (Ithaca, N.Y., 1990); Steven Hahn & Jonathan Prude, eds., The Countryside in the Age of Capitalist Transformation: Essays in the Social History of Rural America (Chapel Hill, N.C., 1985). On industrial capitalism, see Anthony F. C. Wallace, Rockdale: The Growth of an American Village in the Early Industrial Revolution (New York, 1978); Alan Dawley, Class and Community: The Industrial Revolution in Lynn (Cambridge, Mass., 1976); Paul G. Faler, Mechanics and Manufacturers in the Early Industrial Revolution: Lynn, Massachusetts, 1780–1860 (Albany, N.Y., 1981).Google Scholar

10 Kulikoff, Alan, 46 Wm & Mary Q., has recently called for social historians looking at antebellum agricultural transformation to pay more attention to the political, institutional, and legal contexts of change. I know of no such move in the industrial capitalism literature. For a cautionary note on the extent of the market's encroachment on antebellum agriculture see Allen W. Dodge, A Prize Essay on Fairs (Boston, 1858). Written shortly before the Civil War, Dodge's essay decries the fact that in all of Massachusetts there were still only two established markets (in Cambridge and Brookline) for the buying and selling of livestock. Dodge's testimony suggests that one response to market agricultural historians might come from Longfellow's “Tales of a Wayside Inn”: What's the use Of this bragging up and down, When three women and one goose Make a market in your town!.Google Scholar

11 Oscar & Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774–1861 (New York, 1947); Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge, Mass., 1948). The Handlins and Hartz were writing to directly challenge the myth of laissez-faire and establish the central role of the state in the antebellum economy. They were not out to alter historians' basic understanding of 19th-century America as predominantly “liberal” and “capitalist.” For an illustration of this see the works Hartz produced directly before and after his commonwealth monograph. Louis Hartz, “The Individualist Philosophy of John Harlan, 1833–1911” (Honors thesis, Harvard University, 1940); id., The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (New York, 1955). I am using the Handlins and Hartz here to stand for the entire corpus of commonwealth work. See the works cited in Robert A. Lively, “The American System: A Review Article,” 29 Bus. Hist. Rev. 91–96 (1955); and Harry N. Scheiber, “Government and the Economy: Studies of the ‘Commonwealth’ Policy in Nineteenth-Century America,” 3 J. Interdisciplinary Hist. 135–51 (1972).Google Scholar

12 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, Wis., 1956); Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977) (“Horwitz, Transformation”). The other classic statements are Lawrence M. Friedman, A History of American Law (2d ed. New York, 1985); and Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (New York, 1971). Hurst's Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass., 1964) is perhaps the most extended presentation of this theme. The Wisconsin timber industry was almost completely dependent on state-created “conditions”: land grants of the 35,000,000 acres owned by the government, internal improvements like improved streams and the building of railroads, and the granting of such public privileges as corporate status, special licenses and franchises, and the power of eminent domain. In this work particularly, Hurst comes close to a theme later elaborated by critical legal historians that all markets are legally and socially constructed. See, for example, Robert W. Gordon, “Critical Legal Histories,” 36 Stan. L Rev. 57–125 (1984); Duncan Kennedy, “The Role of Law in Economic Thought: Essays on the Fetishism of Commodities,” 34 Am U.L. Rev. 939–1001 (1985); Robert J. Steinfeld, “The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor,”in Christopher L. Tomlins & Andrew J. King, eds., Labor Law in America: Historical and Critical Essays 20–43 (Baltimore, 1992).Google Scholar

13 Lively, 29 Bus. Hist. Rev. at 81.CrossRefGoogle Scholar

14 Ironically, Horwitz's analysis is echoed by economic historians celebrating 19th-century economic development and entrepreneurship. See Cochran, Frontiers of Change 9–23.Google Scholar

15 Another staple argument of the “new” legal history is that most colonial economic controls like those ensuring price fairness and product quality were destroyed by the American Revolution and the subsequent revolution in law that resulted in a more modern, individualistic, free-market-oriented society. This theme is best illustrated in William Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 at 46–63, 145–64 (Cambridge, Mass., 1975) (“Nelson, Americanization”). Also see Horwitz, Transformation 63–139; Hendrik Hartog, “Distancing Oneself from the Eighteenth Century: A Commentary on Changing Pictures of American Legal History,”in Hendrik Hartog, ed., Law in the American Revolution and the Revolution in the Law (New York, 1981). This has now become the dominant theme of colonial legal history where it is being argued that American law was “transformed” or “Americanized” in the 17th and 18th centuries. See David Thomas Konig, Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill, N.C., 1979); Bruce H. Mann, Neighs and Strangers: Law and Community in Early Connecticut (Chapel Hill, N.C., 1987). For the best compendiums of colonial economic regulations see Richard B. Morris, Government and Labor in Early America (New York, 1946); Henry W. Farnam, Chapters in the History of Social Legislation in the United States to 1860 at 18–115 (Washington, D.C., 1938). The legal historian who has worked hardest to challenge the dominant narrative in American legal history is Harry Scheiber. Scheiber's work on eminent domain and public rights has greatly influenced my own perspective. See especially his “Public Rights and the Rule of Law in American History,” 72 Calif. L Rev. 217–51 (1984); and “Law and the Imperatives of Progress: Private Rights and Public Values in American Legal History,”in J. Roland Pennock & John W. Chapman, eds., Ethics, Economics and the Law 303–20 (London, 1982). I am aware, of course, that the quick generalizations in this rapid historiographical overview do not do justice to the subtleties of the work of the “4 Hs” (the Handlins, Hartz, Hurst, and Horwitz).Google Scholar

16 Miller, Arthur Selwyn, The Supreme Court and American Capitalism 26 (New York, 1968). Here are some similar conclusions after reflecting on either commonwealth or legal/ constitutional history: “The most pervasive favorable factor in law, as in other institutions, was the culture itself, with its traditional bias toward the entrepreneur, or the person engaged in buying and selling” (Cochran, Frontiers of Change 21); “The Taney Court provided the legal foundation for a democratized capitalism” (Stuart Bruchey, The Wealth of the Nation: An Economic History of the United States 65 (New York, 1988)); “[T]he Constitution laid the foundation of private property rights so as to curb the arbitrary powers of government and to promote the security required for the pursuit of productivity-raising activities of all kinds” (Higgs, Transformation of Economy 53); “Like judge-made private law, judge-made constitutional law responded mainly to dynamic capitalists” (R. Kent Newmyer, “Harvard Law School, New England Legal Culture, and the Antebellum Origins of American Jurisprudence,” 74 J. Am Hist. 814–35, 820 (1987)).Google Scholar

17 Herbert Hovenkamp, Enterprise and American Law, 1836–1937 at 69 (Cambridge, Mass., 1991); Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of legal Orthodoxy 9 (New York, 1992). Horwitz argues, “The fundamental issue of American political thought was how this most politically democratic country in the world could avoid the threat of coerced economic equality.”.Google Scholar

18 “Salus populi” comes from the common law maxim salus populi suprema at lex (the welfare of the people is the supreme law). It was used repeatedly in this period to uphold police regulations of economy and society.Google Scholar

19 E. P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century,” in Customs in Common: Studies in Traditional Popular Culture 185–258 (New York, 1991). In the Thompson tradition, Douglas Hay dates the legal-political transformation with John Locke who “distorted the oldest arguments of natural law to justify the liberation of wealth from all political or moral controls; he concluded that the unfettered accumulation of money, goods, and land was sanctioned by Nature and, implicitly, by God.” Douglas Hay, “Property, Authority and the Criminal Law,” in Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England 17–63, 18 (London, 1975).Google Scholar

20 As a mountain of social history has demonstrated, this does not mean that the United States was any more immune from class conflict and crowd actions in this period. See especially Paul Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763–1834 (Chapel Hill, N.C., 1987).Google Scholar

21 5 Oxford English Dictionary 60.Google Scholar

22 Blackstone, William, 4 Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769 at 161 (4 vols. Chicago, 1979) (“Blackstone, Commentaries”). William Crosskey cites a similar usage in a tract by Jeremy Dummer in 1745: “A great Minister once said to me, That the Regulation of [colonial] Charters must be look'd on as Part of the publick Oeconomy, and not as the Affair of any particular Person or Province.” William W. Crosskey, 2 Politics and the Constitution in the History of the United States 1286 n.82 (2 vols. Chicago, 1953). See Crosskey generally in the text accompanying this note for a provocative discussion of the distinctions between early American usages of “public economy,”“political economy,” and “commercial economy.”.Google Scholar

23 Blackstone, 4 Commentaries 162. Under “offences against public police or oeconomy” Blackstone treated a wide variety of crimes and activities: clandestine marriage, bigamy and polygamy, idle and wandering soldiers and mariners (or those pretending to be such), “Egyptians” or “gypsies,”common nuisances (which he defines as including offenses against “the public order and oeconomical regimen of the state”), annoyances in highways, bridges, and public rivers, the keeping of hogs in a city, disorderly inns or ale-houses, bawdy-houses, gaming houses, and unlicensed stage plays, lotteries, cottages harboring thieves or idle and dissolute persons, the making and selling of fireworks, eavesdroppers, common scolds, idleness, rogues and vagabonds, luxury and extravagant expenses in dress and diet, gambling, and the selling and hunting of game. Id. at 163–75.Google Scholar

24 Dane, Nathan, 4 A General Abridgment and Digest of American Law 728 (8 vols. Boston, 1823) (“Dane, Abridgment”). Dane's organization of crimes against public policy closely mirrors Blackstone. For Blackstone's list of crimes against public trade see 4 Commentaries 154–60. On the king's prerogative and its relationship to jus publicum of commerce and the regulation of public trade see Sir Matthew Hale, The Prerogatives of the King, ed. D. E. C. Yale, 286–321 (London, 1976) (“Hale, Prerogatives of the King”). For an example of the continued use of these categories in case law see United States v. Coolidge, 25 Fed. Cases 619, 624 (1813), and Smith v. Turner, 48 U.S. 283 (1849).Google Scholar

25 Dane, 6 Abridgment 729.Google Scholar

26 Dane, 6 Abridgment 728–55; 7 Abridgment 33–111.Google Scholar

27 Dane, 6 Abridgment 744. Throughout this section, my generalizations will be based on a close reading of statute books in Massachusetts, Maryland, South Carolina, Michigan, and Ohio.Google Scholar

28 Metcalf, Theron, ed., The General Laws of Massachusetts, 1780–1835 (4 vols. Boston, 182336) (“Metcalf, Laws of Massachusetts”), v. 1:88, 170, 200, 391, 519; v. 2: 20, 15, 28, 46, 16, 85, 156, 212, 174, 198, 253, 339, 357, 437, 445, 566; v. 3: 84, 268, 348; v. 4:109, 106.Google Scholar

29 Dorsey, Clement, ed., The General Public Statutory Law and Public Local Law of the State of Maryland, 16921839 (5 vols. Baltimore, 1840) (“Dorsey, Law of Maryland”); McCord, David J., ed., The Statutes at Large of South Carolina, 1682–1838 (10 vols. Columbia, S.C., 1841) (“McCord, South Carolina Statutes”); The Revised Statutes of the State of Michigan (Detroit, 1838); Chase, Salmon P., ed., Statutes of Ohio and of the Northwestern Territory Adopted or Enacted born 1788 to 1833 (Cincinnati, 1835).Google Scholar

30 “An Act to regulate the Inspection of Salted Fish,” in Dorsey, , Law of Maryland, v. 3:1483–94 (1817).Google Scholar

31 Id. at 1483–84. Barrels, casks, hoops, and staves were a constant focus of antebellum legislation. Prior to 1841, South Carolina had enacted some 87 provisions respecting barrels. McCord, 10 South Carolina Statues 41–42.Google Scholar

32 Dorsey, 3 Law of Maryland 1484–85. Inspectors received a fee for each barrel inspected and were given broad powers to condemn or to order barrels repacked and repickled. In 1818, the inspector was given further power to discharge any coopers producing barrels for fish that did not meet statutory requirements. Id at 1489.Google Scholar

33 In Maryland the oath was: “1, A.B. do swear, or affirm, according to the best of my knowledge and belief, the certificate hereunto annexed contains the whole quantity of pickled and barrelled fish on board the -, - master, and that no fish is shipped on board said vessel for the ship's company, or on freight or cargo, but what is inspected and branded according to the law of this state; so help me God.”Dorsey, , 3 Law of Maryland 1486.Google Scholar

34 From 1789 to 1818, Boston's town officers included 9 selectmen, 12 overseers of the poor, 12 members of the school committee, 3 auditors, 24 firewards, 20 surveyors of lumber, 4 cullers of hoops and staves, 10 cullers of dry fish, 4 fence viewers, 4 hogreeves and haywards, 2 surveyors of hemp, 2 surveyors of wheat, 2 assay masters, and 2 inspectors of lime. By-Laws and Orders of the Town of Boston 3–4 (Boston, 1818). Also see Metcalf, 1 Laws of Massachusetts 250 (1786). Municipalities backed up their appointments with dollars. In early Philadelphia, salaries for clerks of the market and corders of wood exceeded the budget for watering the city. John C. Lowber, Ordinances of the Corporation of the City of Philadelphia 208–9 (Philadelphia, 1812) (“Lowber, Philadelphia ordinances”).Google Scholar

35 Metcalf, 2 Laws of Massachusetts 11 (1799). An 1815 Massachusetts law recommended seven years hard labor for all persons “who knowingly and designedly, by false pretence or pretenses, shall obtain from any person or persons, money goods, wares, merchandize or other things, with intent to cheat or defraud any person or persons of the same.”Id at 403 (1815). 1 Laws of New York 376 (1813); Dorsey, 1 Law of Maryland 864 (1825); 1 Laws of New York 75 (1813).Google Scholar

36 An example of this overall concern for fairness and assurance of quality is the procedure prescribed for the economic transfer of hides and skins from butchers or slaughterers to leather manufacturers in Baltimore. Such a transaction could not take place without the intervention of an inspector who would stamp each hide for damage (holes, cuts, slashes, or wounds) and deduct total damages from the purchase price of a prime hide. Furthermore, the inspectors were charged with keeping a regular record of the damages to every hide slaughtered by Baltimore butchers, and butchers were subsequently fined for such damage. Dorsey, , 3 Law of Maryland 1503–7 (1831, 1835). Also see the restrictions on usury: Metcalf, Laws of Massachusetts v. 1:138 (1784); v. 3:150 (1826); Dorsey, , 1 Law of Maryland 5 (1704); 1 Laws of New York 64 (1813); McCord, , 10 South Carolina Statutes 307.Google Scholar

37 Historians have prematurely proclaimed the death of “mercantilist” restraints and economic controls like those just described at various points in the late 18th and early 19th centuries (part and parcel of the “market revolution” and the “Americanization” of law). But despite some legislative lapses and occasional temporary acts of repeal, the bulk of these kinds of regulations were intact at the Civil War. See, for example, The General Statutes of the Commonwealth of Massachusetts (Boston, 1860), especially title XIII, “Of the Regulation of Trade in Certain Cases” at 256–98; and title XV, “Of the Internal Police of the Commonwealth” at 390–464. Perhaps one of the most significant lapses in the antebellum era was New York's repeal of its inspection laws in the constitutional convention of 1846. Art. V, sec. 8, of its new constitution stated: “All offices far the weighing, measuring, culling or inspecting of any merchandise, produce, manufacture or commodity whatever, are hereby abolished.” The law excepted such offices created for public health, property, revenue, tolls, and weights and measures. It was not long, however, before such regulatory offices began creeping back into New York's public economy. See Tinkham v. Tapscott, 17 N.Y. 141 (1858).Google Scholar

38 Mayor, V. Yuille, Mobile V., 3 Ala. 137, 36 Am Dec. 441 (1841), 445. Also see Metcalf, , 2 Laws of Massachusetts 46 (1800) (cited in note 28). Turner v. Maryland, 107 U.S. 38 (1882).Google Scholar

39 Antebellum licensing is an enormous and messy topic that I can only touch on here. The distinctions between and consequences of licensing for the purposes of prohibition, regulation, revenue, and administration are the subjects of great debate. It is clear, however, that licensing was used for all four purposes in the antebellum era. Although by the late 19th century they were often classified with revenue laws, licensing statutes in their strongest form, as prohibitory legislation, remained a vital part of the state's public policymaking arsenal. For the best discussions of licensing see Thomas M. Cooley, A Treatise on the Law of Taxation 403–15 (Chicago, 1876) (“Cooley, Taxation”); John F. Dillon, Commentaries on the Law of Municipal Corporations 300–305 (Chicago, 1872); Ernst Freund, Administrative Powers over Persons and Property: A Comparative Survey 59–128 (Chicago, 1928); id., “Licensing,” in 9 Encyclopedia of the Social Sciences 447–51 (New York, 1933); Note, “Power of State to Exact Licenses, and Charge Therefore,” 52 Am Dec. 331–35 (1886); and Malcolm B. Parsons, The Use of Licensing Power by the City of Chicago (Urbana, III., 1952) (“Parsons, Use of Licensing Power”).Google Scholar

40 Cooley, Taxation 406.Google Scholar

41 Even today, licensing is formally understood as conferring a right or power which would not exist otherwise. 53 Corpus Juris Secundum 323 (1987). Parsons, Use of Licensing Power 1; Inter-City Coach Lines v. Harrison, 172 Ga. 390 (1930).Google Scholar

42 Dorsey, 2 Law of Maryland 928 (cited in note 29).Google Scholar

43 Id at 1085. Also see Maryland acts of 1828. ch. 85; 1829, ch. 217; 1830, ch. 184; 1831, ch. 262; 1834, ppch. 232; 1837; ch. 124.Google Scholar

44 Baker, French V., 36 Tenn. 193 (1856). Also see Adams v. Mayor of Somerville, 39 Tenn. 363 (1859), which upheld a Tennessee act granting a municipal corporation the power to “license, tax, and regulate auctioneers, grocers, merchants, retailers, brokers, coffee-houses, confectioneries, retailers of liquors, hawkers, pedlers, livery stable keepers, negro traders, and tavern keepers.”Laws of Tennessee ch. 17 (1854); Laws of Missouri 53 (1859); Missouri v. Whittaker, 33 Mo. 457 (1863); Berks County v. Bertolet, 13 Pa. St. 521 (1850); Laws of Pennsylvania 486–91 (1846); City and County of Sacramento v. Crocker, 16 Cal. 119 (1860). Revenue was certainly one of the main motivations of these later statutes. Like the original Maryland statute, these acts consistently exempted farmers or mechanics selling their own produce. This attempt to favor the sellers of their own products versus middlemen or profiteers can also be seen in market laws and restrictions against forestalling, regrating, and engrossing.Google Scholar

45 Metcalf, 1 Laws of Massachusetts 297–304 (1786).Google Scholar

46 Ivens, Rex V., 7 Car. & P. 213, 219 (1835).Google Scholar

47 Metcalf, 1 Laws of Massachusetts 302 (1786); Daniel Davis, A Practical Treatise upon the Authority and Duty of Justices of the Pence 255 (Boston, 1824). These provisions remained relatively unchanged throughout the period in Massachusetts. See Metcalf, 3 Laws of Massachusetts 375 (1830); The General Statutes of the Commonwealth of Massachusetts 455–57 (1860).Google Scholar

48 McCord, , 10 South Carolina Statutes 236–37 (1785) (cited in note 29); Dorsey, , 1 Law of Maryland 158 (1780).Google Scholar

49 Dorsey, 3 Law of Maryland 1433–43 (1827); 2 Laws of New York 181–87 (1813); Metcalf, , Laws of Massachusetts v. 1:473 (1795); v. 3:20 (1823) (cited in note 28). The number of auctioneers in Baltimore was limited to 20, in New York City to 36. See generally Joseph Bateman, A Practical Treatise on the Law of Auctions (Boston, 1883). See also Commonwealth v. Passmore, 1 Serg. & R. 217 (Pa. 1814).Google Scholar

50 Laws and Ordinances Ordained and Established by the Mayor, Aldermen, and Commonalty of the City of New-York 42–60 (New York, 1799) (“Ordinances of New York City”); 2 Laws of New York 446 (1813).Google Scholar

51 Ordinances of New York 42–43. At least temporarily, Massachusetts regulated wheels on all common highways. See Metcalf, , Laws of Massachusetts v. 3:211 (1827); v. 4:32 (1832).Google Scholar

52 New York City rates began: For loading, carting, and unloading every common load of European goods, wheat, meal, or flour in bags (twelve bags to the load) and of firewood and other articles not herein after mentioned to any place within this city, not exceeding half a mile, one shilling and six-pence. And for every load of lime, bricks, staves, heading, hoops, hoop poles, cocoa, bar-iron, pimento, slate, all kinds of dye-wood, every seven barrels of flour, every four tierces of bread, every two bales of cotton, every fifteen bushels of salt, every load of cheese or gammons, every load of sails, every load of white sand, building sand, paving sand or clay, containing twelve bushels, every load of beef, pork, pitch, tar, turpentine, beer, cyder, or other goods or things in tight barrels, allowing five barrels to each load (excepting oil and pot-ash which shall be four barrels to the load) not exceeding half a mile, one shilling and six-pence, and if housed, six-pence more for each load. Ordinances of New York City 45. See also Dorsey, 3 Laws of Maryland 1472 (1836) (cited in note 29). These statutes are but surface expressions of rich and contested social and urban histories. See Isaac S. Lyon, Recollections of an Old Cartman (Newark, N.J., 1872); and Graham Russell Hodges, New York City Cartmen, 1667–1850 (New York, 1986).Google Scholar

53 “An Act concerning Hawkers, Pedlars, and Petty Chapmen,” in Metcalf, , 2 Laws of Massachusetts 540–41 (1821); 2 Laws of New York 228 (1813); Dorsey, , 1 Law of Maryland 182 (1784); McCord, , 6 South Carolina Statutes 529 (1831). Also see Richardson Wright, Hawkers and Walkers in Early America (Philadelphia, 1927); J. R. Dolan, The Yankee Peddlers of Early America (New York, 1964).Google Scholar

54 Butchers: Laws of New York 446 (1813). Bakers: Mayor of Mobile v. Yuille, 3 Ala. 137 (1841). Grocers: McCord, 7 South Carolina Statutes 142 (1821); Thomas v. Town of Vernon, 9 Oh. 290 (1839). Lawyers: Dorsey, 1 Law of Maryland 601 (1810) (setting fees); Metcalf, 1 Laws of Massachusetts 199 (1785); McCord, 6 South Carolina Statutes 289 (1786). In 1811, South Carolina passed a statute prohibiting ordinaries of the state from practicing law. See Administrators of Byrne v. Administrators of Stewart, 3 Des. Eq. 466 (S.C., 1812). Doctors: McCord, 6 South Carolina Statutes 497 (1833); 1 Laws of New York 219 (1813); Metcalf, 2 Laws of Massachusetts 438 (1818), 490 (1819).Google Scholar

55 Dorsey, , 1 Law of Maryland 510 (1805); People v. Naglee, 1 Calif. 232 (1850).Google Scholar

56 2 Laws of New York 443 (1813). As urban historians have suggested, this technique was widespread in the 19th century. In New Orleans, the Mississippi was the cure for mangy and measly meat. Ordinances Ordained and Established by the Mayor and City Council of the City of New-Orleans 124 (New Orleans, 1817).Google Scholar

57 Metcalf, , 1 Laws of Massachusetts 182 (1785) (emphasis added). Dane, 7 Abridgment 33, 48 (cited in note 24).Google Scholar

58 Dane, , 7 Abridgment 205. Also see Dorsey, , 3 Law of Maryland 1547 (1788). Black-stone defined the distinctions between forestalling, regrating, and engrossing as follows: Forestalling was the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price when there. Regrating was … the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place …. Engrossing was … the getting into one's possession, or buying up, large quantities of corn or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. Blackstone, 4 Commentaries 158 (cited in note 22). Though Dane equivocated on the enforcement of laws against forestalling, the market cases that follow indicate that they were taken very seriously.Google Scholar

59 Jean-Cristophe Agnew, “The Threshold of Exchange: Speculations on the Market,” 21 Radical Hist. Rev. 99–118, 109 (1979); id., Worlds Apurt: The Market and Theater in Anglo-American Thought 1550–1750 (Cambridge, Eng., 1986).Google Scholar

60 Frederic William Maitland, Domesday Book and Beyond: Three Essays in the Early History of England 192–95 (1897; Cambridge, Eng., 1987) (“Maitland, Domesday”).CrossRefGoogle Scholar

61 Agnew, , 21 Radical Hist. Rev. at 99–118; Walford, Cornelius, Fairs, , Past and Present: A Chapter in the History of Commerce 1–11 (London, 1883); Vernon A. Mund, Open Markets: An Essential of Free Enterprise 3–31 (New York, 1948) (“Mund, Open Markets”).Google Scholar

62 Maitland, Domesday 193–94; Mund, Open Markets 32–51; Hale, Prerogatives of the King 313–17 (cited in note 24); Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown 193–96 (London, 1820); Susan Henderson, “Out of the Ashes: The Great Fire and the Transformation of London's Public Markets,” 21 Radical Hist. Reu. 119–30 (1979).CrossRefGoogle Scholar

63 Marsden, Rex V., 3 Burr. 1812 (Eng., 1765), 1818.Google Scholar

64 These regulations were the product of a variety of English grants and statutes. For a quick sense of these see Bacon, Matthew, 4 A New Abridgment of the Law, ed. Bouvier, John, 154–64 (10 vols. Philadelphia, 1876); Earl of Halsbury, 20 The Laws of England 4–59 (London, 1911); Blackstone, 4 Commentaries 158–59, 272 (cited in note 22). The ancient etymology of the market also hints at the public objectives. As Vernon Mund points out in his nicely researched but curiously argued book, sometimes a market was known as a “cheaping” from the Old English “ceap” (cheap) which meant “to bargain.” One of the initial London markets was Cheapside. Early market laws, especially those aimed at forestalling, were certainly meant to ensure reasonable prices on country produce. The linkages between “market,”“fair,” and “fairness” are also fairly obvious, Mund, Open Markets 57 n.20; Agnew, 21 Radical Hist. Rev. at n.33.Google Scholar

65 For the most comprehensive discussion of colonial and Revolutionary-era markets see Carl Bridenbaugh, Cities in the Wilderness: The First Century of Urban Life in America, 1625–1742 at 27–29, 192–95, 349–53 (London, 1938) (“Bridenbaugh, Cities in the Wilderness”); and id, Cities in Revolt: Urban I-life in America 1743–1776 24, 80–82, 278 (Oxford, 1955). David Hackett Fisher, Albion's Seed: Four British Folkways in America (New York, 1989).Google Scholar

66 Jon C. Teaford, The Municipal Revolution in America: Origins of Modern Urban Government, 1650–1825 at 39–43, 97–100 (Chicago, 1975) (“Teaford, Municipal Revolution”); Nelson, Americanization 145–64 (cited in note 15); Sidney Irving Pomerantz, New York: An American City, 1783–1803 at 170–78 (New York, 1938). Pomerantz argued (at 172) that by 1801, “Paternalism was giving way to laissez-faire and more reliance was being placed on ‘free competition’ than on municipal by-laws.” Most adherents to this view have limited their primary research to Boston and New York City where market regulations did undergo several rollercoaster rides in the 18th and 19th centuries. At different points in time, market restrictions were repealed in these cities only to be reactivated at a later date. For a more subtle look at the complex forces and motivations behind New York City's market and trade regulations, see Howard B. Rock, Artisans of the New Republic: The Tradesmen of New York City in the Age of Jefferson 205–34 (New York, 1979); Sean Wilentz, Chants Democratic: New York City The Rise of the American Working Class, 1788–1850 at 137–40 (New York, 1984); Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870 at 38–40, 151–54 (Chapel Hill, N.C., 1983). Also see Thomas F. De Voe, The Market Book: A History of the Public Markets of the City of New York (1862; New York, 1970) (“De Voe, Market Book”). Richard Wade has suggested that in the exact period of time Jon Teaford proclaims the victory of free trade in New York, Boston, and Philadelphia, the cities of Pittsburgh, Cincinnati, and St. Louis were constructing elaborate new market buildings and rightening public regulations. Richard C. Wade, The Urban Frontier: Pioneer Life in Early Pittsburgh, Cincinnati, Lexington, Louisville, and St. Louis 280–82 (Chicago, 1959).Google Scholar

67 John F. Dillon, Commentaries on the Law of Municipal Corporations secs. 313–25 (Boston, 1872).Google Scholar

68 Benjamin Colman, Some Reasons and Arguments Offered to the Good People of Boston and Adjacent Places for the Setting Up Markets in Boston 6 (Boston, 1719); City of Boston, Faneuil Hall Leases, City Document #23 (Boston, 1856), State Historical Society of Wisconsin Pamphlet Collection, 4–5. For a further discussion of Colman's argument see Teaford, Municipal Revolution 39–41.Google Scholar

69 On price controls, see Voe, De, Market Book 141–44; Dane, 7 Abridgment 39–40 (cited in note 24).Google Scholar

70 Mease, James, The Picture of Philadelphia 116 (Philadelphia, 1811) (“Mease, Philadelphia”); Jackson, Joseph, 3 Encyclopedia of Philadelphia 874 (Harrisburg, Pa., 1932) (“Jackson, Encyclopedia”); Bridenbaugh, Cities in Wilderness 28.Google Scholar

71 Anonymous, “Regulations for the Markets of Philadelphia, 1693,” 23 Pa. Mag. Hist. & Biography 408–9 (1900).Google Scholar

72 This provision for donating penalties to the poor was not uncommon in antebellum economic regulations. See, for example “An Act to prevent Fraud in Firewood, Bark or Coal Exposed to Sale,” in Metcalf, 1 Laws of Massachusetts 519 (1796), 193 (1785) (cited in note 28). There is a nice symmetry in the idea that proceeds from economic crimes should go to those economically deprived.Google Scholar

73 An exception was made for the reselling of goods that had been in the market for two hours after the opening bell. The constant presence of forestalling as a legislative rationale for the establishment and regulation of urban markets should caution us against dismissing the importance of laws against forestalling (and its cousins regrating and engrossing) because of scant evidence of indictments. The informal and summary powers given the clerk or commissioner of the market may have kept the number of formal, recorded indictments low. In any event, much more quantitative research needs to be done on 19th-century mayor's courts, police courts, and justices of the peace before concluding that these crimes were not prosecuted. Dane, , 8 Abridgment 33. For other state controls see McCord, 9 South Carolina Statutes 692 (1739) (cited in note 29) (Charlestown market); id, v. 4:652 (1785) (Winnsborough), v. 5:21 (1787) (Georgetown).Google Scholar

74 Agnes Addison Gilchrist, “Market Houses in High Street,” in American Philosophical Society, ed., Historic Philadelphia: From the Founding until the Early Nineteenth Century 304–12 (Philadelphia, 1953); Mease, Philadelphia 117; Jackson, 3 Encyclopedia 874; Bridenbaugh, Cities in Wilderness 193, 349–50.Google Scholar

75 Lowber, Philadelphia Ordinances 149–60 (cited in note 34). These regulations are from “An ordinance for the regulation of the Market held in High-Street” originally passed in 1798 but still in effect in 1812. Enforcement of these regulations is a tricky issue. James Mease, writing in 1811, hinted that cellars of houses near the market were often used for selling and huckstering, on the other hand he also suggested that butter, lard, and sausages were often seized by the clerks of the market for being deficient in weight. Mease, Philadelphia 120, 122. See also Margaret B. Tinkcom, “The New Market in Second Street,” 82 Pa Mag. Hist. Biography 379–97 (1958).Google Scholar

76 Quoted in Tinkcom, 82 Pa. Mag. Hist. & Biography at 392.Google Scholar

77 Tinkcom, , 82 Pa. Mag. Hist. & Biography at 395; Jackson, , 3 Encyclopedia 876. On the general evolution of markets in New Orleans see, Sauder, Robert A., “The Origin and Spread of the Public Market System in New Orleans,” 22 La. Hist. 281–97 (1981).Google Scholar

78 Charleston had to account for the peculiar institution of slavery, so its ordinances were full of special white/slave penalty clauses. Boston's laws showed an almost obsessive concern with forestallers or those not selling products of their own farm. New Orleans required butchers to saw meat rather than using an ax or cleaver, and added their usual charming remedy for diseased meat, i.e., throw it into the Mississippi. In 1814, New York City passed a comprehensive market ordinance that showed no sign of easing colonial restrictions. John Geddes, Digest of the Ordinances of the City Council of Charleston, 1783–1818 at 147 (Charleston, S.C., 1818); By-Laws and Orders of the Town of Boston 36–38, 48 (Boston, 1818); Ordinances Ordained and Established by the Mayor and City Council of the City of New-Orleans 124 (New Orleans, 1817); A Law to Regulate the Public Markets (New York, 1814).Google Scholar

79 Ash v. People, 11 Mich. 347 (1863); Shelton v. Mayor of Mobile, 30 Ala. 540 (1857); City of St. Paul v. Laidler, 2 Minn. 190 (1858); City of Cincinnati v. Buckingham, 10 Oh. 257 (1840); Iowa & Dubuque v. Leiber, 11 Ia. 407 (1861); St. Louis v. Jackson, 25 Mo. 37 (1857); Ketchum v. City of Buffalo and Austin, 14 N.Y. 356 (1856); Peck v. City of Austin, 22 Tx. 261 (1858).Google Scholar

80 Wartman v. City of Philadelphia, 33 Pa. St. 202 (1859), 209.Google Scholar

81 Id. at 209; also see Woelpper v. City of Philadelphia, 39 Pa. St. 203 (1861).Google Scholar

82 Laws of New York 228 (1801); Laws of New York 293 (1822). Poughkeepsie was also given power to regulate the assize of bread, though it was expressly prohibited from fixing any other prices of provisions.Google Scholar

83 Bush v. Seabury, 9 Johns. R. 418 (New York, 1811); Village of Buffalo v. Webster, 10 Wend. 99 (New York, 1833).Google Scholar

84 Bush v. Seabury, 9 Johns. R. at 420.Google Scholar

85 Webster, 10 Wend. at 100, 101; Pierce v. Bartram, 1 Cowp. 269 (Eng., 1775). These cases and the ones to follow show a seriousness about enforcing market regulations. At issue in each of these cases is a fine or other penalty enforced by a local court that is then reviewed usually by a state's highest tribunal. The number of cases that make it to state supreme courts are indicative of a good deal more lower court and informal, summary enforcement.Google Scholar

86 Commonwealth v. Nightingale, Thach. Crim. Cas. 251 (Mass. 1830); Nightingale's Case, 11 Pick. 168 (Mass. 1831).Google Scholar

87 Hayward also testified that Nightingale had been thrown out of the market once before for forestalling. Commonwealth v. Nightingale, Thach. Crim. Cas. at 253.Google Scholar

88 Commonwealth v. Nightingale, Thach. Crim. Cas. at 257.Google Scholar

89 Pickering, the city solicitor, cited Pierce v. Bartram, as well as Vandine's Case, 23 Mass. 187 (1828) (upholding the licensing of cartmen); Vanderbilt v. Adams, 7 COW. 349 (1827) (upholding the regulation of harbors); and Coates v. Mayor of New York, 7 Cow. 585 (1827) (upholding the regulation of cemeteries); to place market regulations squarely in a legitimated tradition of police regulation.Google Scholar

90 Nightingale's Case, 11 Pick. at 171.Google Scholar

91 Commonwealth v. Rice, 9 Metc. 253 (Mass., 1845).Google Scholar

92 Id. at 256, 258–59 (emphasis added). For Shaw's opinion on the legitimacy of taxation for the purposes of erecting market houses, see Spaulding v. City of Lowell, 23 Pick. 71 (Mass., 1939).Google Scholar

93 Cincinnati V. Buckingham, 10 Oh. 257 (1840) (fees); City of Raleigh v. Sorrell, 1 Jones Law 49 (N.C., 1853) (weights); Hatch v. Pendergast, 15 Md. 251 (1859) (eviction).Google Scholar

94 City Council of Charleston v. Goldsmith, 2 Spear's Law 428 (S.C., 1844).Google Scholar

95 Id. at 429, 435.Google Scholar

96 Bethune v. Hughes, 28 Ga. 560, 73 Am. Dec. 789 (1859); City of St. Paul v. Laidler, 2 Minn. 190, 72 Am. Dec. 89 (1858); Caldwell v. City of Alton, 33 Ill. 416; 85 Am. Dec. 282 (1864). The Georgia Supreme Court later upheld an identical prohibition in Atlanta because that municipality had explicit legislative authorization to regulate the market. In 1866, The Minnesota Supreme Court allowed the strict licensing of the sale of meats outside the public market. Badkins v. Robinson, 53 Ga. 613 (1875); City of St. Paul v. Colter, 12 Minn. 41 (1866).Google Scholar

97 Bethune v. Hughes, 28 Ga. at 791–93. Also see Lumpkin's opinion in Mayor of Atlanta v. White & Kreis, 33 Ga. 229 (1862). Like Laidler and Caldwell v. Alton, the issue in Bethune was whether the legislature actually delegated the power to prohibit trade outside the market to the municipality. Judge Lumpkin explicitly refused to rule on whether the state legislature itself had such a power. Bethune, 28 Ga. at 791.Google Scholar

98 Also see St. Paul, Laidler, V., 2 Minn. at 93, on the Minnesota court's fears of a city monopoly and special grants to political partisans and friends.Google Scholar

99 St. Louis V. Jackson, 25 Mo. 37 (1857); City of St. Louis v. Weber, 44 Mo. 547 (1869); Ash v. People, 11 Mich. 347 (1863); Shelton v. Mayor of Mobile, 30 Ala. 540 (1857); Davenport v. Kelly, 7 Iowa 102 (1858); Town Council of Winnsboro v. Smart, 11 Rich. 551 (S.C. 1858); City of Bowling Green v. Carson, 73 Ky. 64 (1873). Also see the earlier decisions of New York Chief Justice Nelson in City of Brooklyn v. Cleves, 231 (N.Y. Supp. 1843); Mayor of Rochester v. Rood 146 (N.Y. Supp. 1843); Trustees of Rochester v. Pettinger, 17 Wend. 265 (N.Y. 1837).Google Scholar

100 City of St. Louis v. Weber, 44 Mo. at 551. Bliss was upholding a fine against a private butcher shop. His opinion followed the earlier Missouri precedent St. Louis v. Jackson, 25 Mo. 37 (1857).Google Scholar

101 St. Louis v. Weber, 44 Mo. at 551.Google Scholar

102 Badkins v. Robinson, 53 Ga. 613 (1875), 615; Nagle v. City Council of Augusta, 5 Ga. 546 (1848); Green v. Mayor of Savannah, 6 Ga. 1 (1849); Whitten v. Mayor of Covington, 43 Ga. 421 (1871); Perdue v. Ellis, 18 Ga. 586 (1855).Google Scholar

103 City of New Orleans v. Stafford, 27 La. Ann. 417; 21 Am. Rep. 563, 564 (1875); Sauder, 22 La. Hist. at 286 (cited in note 77). Also see the earlier New Orleans market decisions Morano v. Mayor, 2 La. 217 (1831); First Municipality v. Cutting, 4 La. Ann. 335 (1849). Also see Cougot v. City of New Orleans, 17 La. Ann. 21 (1861); City of New Orleans v. Heirs of Guillote, 12 La. Ann. 818 (1857) (especially the dissent of Chief Justice Merrick).Google Scholar

104 The original 1866 act contained the provision that all private markets were still “subject to the general sanitary ordinances of the city council.” New Orleans passed a licensing statute in 1873 charging $300 for the privilege of keeping a private market. In 1874, the Louisiana legislature enacted the 12-mile prohibition. New Orleans v. Stafford, 21 Am. Rep. at 564.Google Scholar

105 Id.Google Scholar

106 New Orleans v. Stafford, 563, 565. As in the Slaughterhouse Cases, the defendant alleged that fraud, bribery, and corruption by state and local officials suffused the administration of New Orleans market laws. And indeed, there is no question that the public revenues of public markets were an important motivation for regulation by the 1870s. Part of the city's case against this private grocery was that it was subjecting New Orleans to a pecuniary loss of $1,000. See Sauder, , 22 La Hist at 287–89 (cited in note 77).Google Scholar

107 In this sense, Thomas McCraw is exactly right in finding a shift in regulatory strategy and procedure (though not regulation's birth) in the late 19th century. Thomas K. McCraw, Prophets of Regulation (Cambridge, Mass., 1984).Google Scholar

108 Massachusetts declared, “Whereas the observance of the Lord's Day is highly promotive of the welfare of a community… no person or persons whatsoever shall keep open his, her or their shop, warehouse or work-house, nor shall, upon land or water, do any manner of labour, business or work … on the Lord's Day.” Metcalf, Laws of Massachusetts v. 1:407 (1792); v. 2:403 (1815) (cited in note 28). Also see 2 Laws of New York 446 (1813).Google Scholar

109 McCord, , 7 South Carolina Statutes 122 (1807) (cited in note 29); 2 Laws of New York 447, 429 (1813); Metcalf, Laws of Massachusetts v. 1:85 (1783); v. 2:45 (1800); v.3:32 (1823); Dorsey, 1 Law of Maryland 249 (1787), 483 (1803) (cited in note 29).Google Scholar

110 Metcalf, Laws of Massachusetts v. 1:496 (1796), 2 (1799), 574 (1822); v. 2:575 (1822), 94 (1804), 480 (1819); v. 3:5 (1822); Dorsey, Law of Maryland v.1:333 (1795), 428 (1800), 551 (1807), 615 (1813), 722 (1820); v.2:977 (1829), 1035 (1831). But see Arthur F. McEvoy, The Fisherman's Problem: Ecology and Law in the California Fisheries, 1850–1980 (Cambridge, Eng., 1986), on the lax enforcement of such regulations in California. Massachusetts also made attempts to control foresting and fur trading. See “An act to prevent the destruction of White Pine and other Forest Trees,” Metcalf, 2 Laws of Massachusetts 446 (1817); and “An act for the preservation and encouragement of the Fur Trade,”id., v. 1:390 (1791). This latter statute prohibited the killing of otter, beaver, minks, sable or martin, fisher or black-cat, leusiff, musquash, or wolverine from June to September.Google Scholar