1. In the period before 1877, how did the law balance relationships and conflicts between employers and free (non-slave) employees? (2)
Relationships and conflicts between employers and employees have held a fairly consistent direction in the period before 1877. That is to say, the law generally ruled in favor of employers. Whether it be indentured servants or industrial workers, before 1877 the law was not very worker or union friendly. Rather, the law supported masters, employers and other managers.
Any study of the law’s influence on employer and employee relations in the United States should begin with white indentured servants. In colonial America, indentured servants were individuals who formed a contract with employers, promising to work a certain amount of years to pay off the cost of their transportation to the colonies. They also had to work to pay off the debts acquired for necessary clothing, shelter or housing. This relationship can be considered one between an employer and an employee because there was (1) a contract that both sides willingly abided by and (2) the employer, or master, employed the indentured servant as a way for the servant to repay a debt. This unconventional employee/employer relationship was flooded with conflicts examining the rights of the servants and the limitations of the masters. One such case was re Wm. Wootton and John Bradye (1640). In this case Wm. Wootton and John Bradye, two Virginia indentured servants, ran away from their master and were recaptured by the authorities. They were dealt with harshly, and had to serve extended sentences. Even though they were being mistreated by their masters, like many indentured servants at the time were, the law gave them no sympathy. This is reflective of early colonial law’s tendency to favor employers or masters. The South Carolina Servant Regulation (1761) reinforced this pro-employer legal positioning. The Regulation placed many restrictions on the indentured servant, especially regarding movement. Indentured servants were not allowed to “travel by land or water above two miles from the place of his, her or their residence, without a not under the hand of his, her or their master or mistress, or overseer expressing a permission for such servants so traveling.” They were legally punished with violence and extended time if they were physically aggressive with their masters. They also received “corporal punishment” for crimes that free men would be charged with fines. These two early examples of colonial law reflect the law’s tendency to prefer employers over employees and workers in conflicts.
In the decades between 1812 and 1860, a rise in technology led to changing legal relationships between employees and employers, primarily concerning the injury and wages of workers. The advent of steamboats, railroads, and other intense, sophisticated technology also introduced new disputes about property rights, the identity of corporations, and safety of workers. Nevertheless, during this period, any form of concerted group action on behalf of laborers was considered a conspiracy. Most litigation regarding employees revolved firstly around their power to unionize. For example, the Philadelphia Cordwainers Case (1806) involved cordwainers, or shoemakers, who unionized to protest mass-produced footwear in Philadelphia. Their union was promptly disbanded and the members of the union were convicted and had to pay fines. In People v. Fisher (1835), the Supreme Court of New York State held that the unionizing of bootmakers, for whatever reason, was unlawful, again citing the formation of unions as a conspiracy. In Commonwealth v Hunt, members of the Boston Journeymen Bootmakers’ Society were tried for conspiracy, as they collectively withheld their services whenever a nonunion journeymen was hired. The journeymen were convicted in only twenty minutes. Secondly, legal cases concerning employees involved their protection and the possible liability employers may have if they were to be injured. Lawmakers were faced with a serious legal dilemmas, as industrialization created new workplace environments – should employees be held liable for any injuries, even though they were working in extremely dangerous conditions and unfamiliar with their numerous coworkers? Or should employers be held liable, notwithstanding that they had too many employees to oversee? Generally, the law sided with employers. Employers were sometimes not even held liable if an employee was injured. In the fellow servant rule, an employee was not allowed to sue their employer if they were injured. Rather, they were encouraged to sue a fellow employee for negligence. This appears in Murray v. South Carolina Rail Road (1841). Similarly, in Farwell v. The Boston and Worcester Railroad Co. (1842), Farwell, an engineer for the railroad was injured because another employee was negligent in their duties. Farwell tried to sue his employer, but the court found that employers are not liable for the inattentiveness of other employees and that fellow employees should look after each other.
Generally, in the period before 1877, the law “balanced” relationships between employers and employees in favor of employers. Workers, whether they be indentured servants or industrial employees, were responsible for themselves and any injury brought to them. They had limited freedom and were largely not allowed to unionize. Employers were not liable to any harm that came to them, but rather, employees were responsible for each other and paid for each other’s actions.
2. What were the most important legal developments during the Civil War and Reconstruction? Why did they occur? Discuss. (5)
The most important legal developments during the Civil War and Reconstruction focus solely on the presidency and broadening the power of the national government, particularly the Executive Branch. The Thirteenth, Fourteenth and Fifteenth amendments, laws that were enacted during that time specifically meant to better the condition of African Americans, held promising prospects, and were surely important for the time, but ended up having minimal, or conflicting, effects.
The expansion of the powers of the Executive branch can be seen with President Lincoln’s suspension of the writ of habeas corpus and conscription. The writ of habeas corpus, which called for a detained person to be brought to a court and have that detainment be judged as lawful or unlawful. Suspending the writ of habeas corpus allowed Lincoln power to arrest some of his confederate enemies, including John Merryman of Maryland. This was an expansion of presidential power, as only Congress constitutionally had the power to defer the writ of habeas corpus, but when Congress convened again in 1863, they approved all of Lincoln’s actions and arrests that came along with the suspension and gave the president legal authority to do this during rebellion. Executive power also increased with conscription, or the draft. Lincoln employed conscription in all of the Union, and some men were able to pay for others to go in their place. This is an important legal development, because it expanded presidential power to force citizens to partake in a war. Lincoln’s Civil War conscription was the earliest draft introduced by the national government of the United States, even though the Thirteen colonies had a shaky conscription in colonial times. The suspension of the writ of habeas corpus, conscription and the impact of the Civil War itself, forever increased the power of the national government, while lowering that of the states.
The advent of the Thirteenth, Fourteenth and Fifthteenth Amendments were important legal developments at the time, but were routinely undermined and under supported to the point of minimum significance. Of course, the Thirteenth Amendment ended chattel slavery and forced states in the Confederacy to recognize these securities given to African-Americans by the federal government. The Fourteenth Amendment was also important for its promises, including those of due process. Some of these advances were impaired by Andrew Johnson – particularly the 1866 Civil Rights Act – but others were chipped away at over time. The Slaughterhouse Cases (1873) curtailed the possibility of a wider-reaching scope of the Fourteenth Amendment, while United States v. Reese et al. (1876) allowed states to put restrictions on voting, minimizing the Fifteenth Amendment to protecting only race-based exclusion. The significance of the inadequacies of the maintenance of these Amendments is the preponderance of southern white denial of black rights and freedoms, which led to Jim Crow, and the proliferation of legal displacement and inferiority.
3. Compare the views of Thomas Jefferson, John Marshall, Andrew Jackson and Abraham Lincoln concerning the role of the Supreme Court and its ability to influence Presidential actions. (8)
The Supreme Court’s role in American history has gradually transformed from insignificant, to authoritative, and even to acting as its own political force. Likewise, the relationships between Jefferson, Marshall, Jackson and Lincoln – three presidents and one Supreme Court Justice – reflected this transformation and revealed their ideas on what they believed should be the relationship between the two branches of government – the Executive and Judicial Branches. Jefferson Jackson, and Lincoln held pretty similar negative views on the extent of power the Supreme Court should hold, while Marshall’s views were fairly positive.
Jefferson, a proud Republican and writer of the Constitution, was not a fan of the Supreme Court and did not believe the court should influence presidential actions. As evidenced by his stance vs Hamilton on the Bank of the United States in 1791, Jefferson firmly believed that all powers not dedicated to the federal government by the Constitution was given to the states. The power of “judicial review” was not explicitly given to the Supreme Court in the Constitution, so Jefferson believed it should not hold so much power. According to the Jefferson’s Kentucky Resolution, states had the power to deem actions by the federal government unconstitutional, if those actions were not supported by the Constitution. Jefferson would have likely also disliked the idea that one branch of government alone would give the final say on interpretations of the Constitution. Jeffersonian republicanism believes power should be in the hands of the people and states, not a national government. Therefore, having a body with members that were not elected by the people interpreting the laws of the nation, would be taking power away from the people. This is not something Jefferson would agree with. Likewise, the members of the Supreme Court, again not elected by the people, should not have much influence over the leader of the people, the President, in Jefferson’s view. This is reflected in the actions prior to Marbury v. Madison in which Jefferson, president at the time, did not believe justices of the Supreme Court could or would dictate his behavior.
Similarly, President Jackson had a dislike of the Supreme Court. Jackson firmly believed that presidential decisions should not be influenced by the Supreme Court. This is revealed in Georgia v. The Cherokee Nation and Worcester v. Georgia (1832). During the 1820s, the state of Georgia had engaged in a campaign to remove Cherokee natives from the state, and they were supported by President Jackson.The Cherokee people brought Georgia to the Supreme Court , but they were dismissed. The case resurfaced through Worcester v. Georgia, in which Indian Nations were given sovereignty and Georgia was ruled to have no power over their actions. Jackson actively ignored this decision and proceeded with the removal of Indians from their land in Georgia. This reveals Jackson’s belief that the Supreme Court, specifically in this case, Justice Marshall, did not have the power to regulate the President’s actions, and, actually, the Executive Branch was the more powerful entity, as the rulings of the Supreme Court could not be enforced without it.
Lincoln’s relationship with the Supreme Court appears to be very negative, as well. He had qualms with Justice Taney over Dred Scott v. Sanford, in which Lincoln believed the Court was working to spread slavery. Lincoln did not maintain that the decisions of the Supreme Court were the absolute interpretations of the Constitution. He believed the Executive and Legislative Branch to have some autonomy, so he felt it was in his right to pass amendments that acted in direct contradiction to the Dred Scott decision. Taney also criticized Lincoln’s suspension of the writ of habeas corpus as unconstitutional, but Lincoln ignored that as well. Lincoln, like Franklin and Jefferson and dissimilar to Marshall, believed the Supreme Court to have limited powers in relation to the presidency.
Justice John Marshall held a very high ideal of the role of the Supreme Court and its relationship with the Presidency. Through cases like Marbury v. Madison (1803), Marshall increased the power of the Supreme Court, helped define its role, and secured its prominence for the future. Marbury v. Madison allowed the Supreme Court the sole power of interpreting the Constitution and, further, asserting acts of Congress to be void if they determine it to be unconstitutional. The Supreme Court thus became the primary and terminal interpreter of constitutionality. Following this, Marshall believed the Court should also have influence of the Executive Branch, as it does the Legislative.
4. Describe the place of white women and Native American Indians in society and the law from the colonial period to 1877. (4)
Native Americans and white women during the period before 1877 experienced a constant fluctuation of control over themselves and property to a denial of rights and liberties. For white women, his is evident through the status of married and unmarried women, regarding property, starting off as different and then becoming very similar in the nineteenth century, but the political rights of property not becoming available. For Native Americans, land and sovereignty was alternatively denied, won and then denied again.
Legally, until 1877, women were generally extensions of men. In the colonial era, according to William Blackstone on “Women in the Eyes of the Law” (1765), women became one with their husband upon marriage, and he was, by legal authority, allowed to correct her, as he had to answer for any of her misbehaviors. Of course, this legal status only extended to white women, as black women, like black men, were considered property. Colonial American white women’s role may have been a bit more complex than this, with eighteenth century “humane paternalism” allowing women protection from the abuse or cruelty of their husband. The rights of white women were also complex in regards to property. According to Marylynn Salmon’s study Women and the Law of Property in Early America, single white women were allowed property rights legally comparable to those of their male counterparts. This, of course, did not translate to political power, as property owning males were able to vote, but single women held more property rights than married women, who were not allowed to own or manage property independently in any fashion, in an act called coverture. The only exception was noted in “An Act Concerning Feme-Sole Trader” (1718), in which married women whose husbands left for sea could legally act independently – including the legal processes of suing and being sued, among other things. However, over a century after this decision, prompted by the growing market economy, women’s roles began to transform. Women like Elizabeth Cady Stanton and Lucretia Mott got together to form “The Seneca Falls Declaration of Sentiments” in 1848. In it, they demanded more rights for women, and chastised men and the patriarchy for oppressing women and stifling their political and economic growth. In the past, married women had no property rights as individuals and, rather, were dependent on their husbands. However, the growing market capitalism of the mid-nineteenth century forced a change to take-place, most evident in “The New York Married Women’s Property Acts” of 1848. In these acts, married women now legally become solely in charge of their own property and profits “for her sole and separate use and benefit.” These acts gave women security from financial turmoil if their husbands died, or mishandled their money. This being said, women were still being denied constitutional protections. In Bradwell v. Illinois (1873), Myra Bradwell’s denial into the bar by Illinois Supreme Court because she was a woman was covered up and confounded with interpretations of the fourteenth amendment and state citizenship. Minor v. Happersett (1875), a case involving the restriction of a woman’s ability to vote in Missouri, similarly revealed how women were still legally viewed as second class citizens in the States, and were not granted same political benefits and protections as men.
Native Americans also were on the receiving end of a very paternalistic treatment. The federal government attempted to “protect” Native Americans from traders, and convert them to Christianity at the same time. The national government also enacted policies of western expansion and Indian removal, that terrorized native populations and settlements, and pushed them west. The Indian removal act and western expansion were examples of national policy of treating Native Americans as less than second-class citizens, as their land was just taken and their lives uprooted with no protection. This is revealed in Cherokee Nation v. Georgia (1831). Georgia tried to sell Cherokee land, and as a retaliation, the Cherokee people declared themselves an independent nation. The Supreme Court dismissed this case and stated that the Court was “not the tribunal” in which Cherokee rights could be declared. This changed with Worcester v. Georgia, in which The Cherokees and other Native Americans were granted tribal sovereignty. However, this did not hold up, as President Jackson still pushed for Indian removal and cases like Lone Wolf v. Hitchcock (1903) denied sovereignty over property for the Native Americans and instead ruled the federal government as primary holders of the power to dispose or sell native land.
6. Describe changes in property, torts and contract law in the period before 1877. (6)
With the rise of industrialism, capitalism and corporations, new laws regarding property, tort and contract law emerged in the period before 1877. These laws transformed the relationships between employees, employers and marketplaces. Legal changes at this time tended to involve old economic laws in relation to the new ones involving torts, property, and contract law.
The onset of the untouchable corporation, along with other smaller businesses, produced new laws regarding property. In Van Ness v. Pacard, the old and the new at odds. Common law said that structures built on leased land were integrated into that land, and could therefore not be removed. However, the courts ruled in favor of the removal of the building, stating that old common law – English property law – had lost relevance in the coming industrial and market capitalism of the United States. This was a new development for property law. Similarly, the rise of industrialization led the national government to seize land in a method called eminent domain. This was evident in Parham v. The Justices of Decatur County, as Parham’s land was, constitutionally, according to Georgia’s Supreme Court, taken to build a rode. Eminent domain was also intertwined with water law – which relates to property – in A Treatise on the Law of Watercourses (1854). The treatise states that the legislative power had the constitutional right to take private property for a “just indemnity.” Land taking for public work was to be done for the common good. This was a new change in property law, in relation to common law, in which property was very private.
Changes in contracts was also evident because of industrialization. Prior to the nineteenth century, contracts were required to be fair and equitable, however, the rise in market economies required for contracts only to involve the mutual consent of everyone participating and a “valuable consideration.” Contract law, like most laws involving employees and employers at the time, favored the sellers to the consumers. The general public recognized that contracts were for industrial and monetary gain, not equity. This is evident in McFarland v. Newman (1839) where Newman, the buyer, was sold a sick colt by McFarland, but the courts barely reimbursed him for his loss. Dartmouth College v. Woodward (1819) is an acception to this trend, as a fair charter was upheld over the less fair, but more profitable, new Dartmouth University. However, the court still established a precedent in favor of newer, less equitable corporations.
Law regarding Torts underwent a complete transformation, as torts, before the nineteenth century private disagreements or wrongdoings were handled separately. There existed a system of writs, that promptly disintegrated with the onset of new economic growth. In these new laws regarding torts, persons became liable for any violence they may inflict upon others, except in the case of “contributory negligence,” in which the injured party is also at fault, “wrongful death”, in which family members of the deceased cannot sue, the fellow servant rule, and “remote causation.” As evidenced in Brown v. Kendall (1850), defendants are held responsible if they are at fault, meaning they were not acting “lawfully and properly.”
Due to the rise in industrialization and market capitalism, changes in property, tort and contract laws emerged. They often favored employers, sellers, and newer corporations, and signaled a shift from fair and equitable business, to business that is more profitabl
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