The Imperial Self in American LifeStephen J. Whitfield
From Columbia Journal of American Studies Vol. 4, No. 1 2000
Melville's father-in-law, Chief Justice Lemuel Shaw of the Supreme Judicial Court of Massachusetts, can also be drawn into the story of unbounded expansionism in the nineteenth century; for he operated at the interplay of commerce and law, the economy and the state. A leading figure in the revision of antebellum jurisprudence, Shaw was among the judges who helped to unleash new forms of unbridled corporate power, who sanctioned the industrial innovation and business reorganization which were frequently ahead of judicial and legislative efforts to impose regularity and predictability. [18] The commercial passions that Tocqueville noticed were animating so many Americans often conflicted with the conservative and restrictive tendencies of the common law which was inherited from England; and judges in the age of Jackson had to address the dynamic ambitions of entrepreneurs, businessmen and inventors.
Judicial flexibility is one way of explaining the unprecedented and largely unchecked power which capitalism exerted in the nineteenth century. Privilege had to yield to innovation; hierarchy had to give way to competition; and new forms of economic organization reflected a spirit that refused to be bound by the past. Judges thus developed the doctrine of enterprises "clothed with a public interest" which was designed to help new banks and forms of transportation such as railroads in particular; and usually such enterprises had been legally incorporated (that is, they enjoyed the privilege of limited liability rather than an individual ownership or proprietorship, or partnership). Incorporation was the necessary prelude to expansion and growth, and enjoyed three main advantages over a partnership: 1) the withdrawal or death of a shareholder did not terminate the existence of the corporation, as it did with a partnership; 2) in case a corporation were sued, the individual investor would not be liable beyond the amount of his own investment; and 3) the owners of shares could easily sell, give or otherwise transfer them. Thus was enhanced the fluidity of property which the less conservative judges of the Jacksonian era wanted to convert into an aim of American law itself. Whatever the judicial intentions were, the effect was to transform the law into another expression of the dynamism and vitality of a rambunctious democracy rather than to constitute a firm brake upon its excesses and injustices. Turner himself saw in the imperious captains of industry who had emerged by the end of the nineteenth century (like E. H. Harriman of the Union Pacific Railroad) the spiritual descendants of the frontiersmen whose day had passed. Such financiers, industrialists and promoters were amply endowed with thee brute force, the aggressive habits and vision of Turner's idealized Westerners, which is why it was clever of Fitzgerald to bestow upon Gatsby's first patron, an industrial baron, the name of Dan Cody--neatly combining Daniel Boone and the surname of "Buffalo Bill." Long before then it had been the function of the most influential jurists to free such businessmen from the shackles of static and anachronistic conceptions of law, to permit and even encourage the enhancement of private gain organized on an increasingly massive and sophisticated scale and to keep the Congress in particular from interfering with the creativity and cupidity of such businessmen.
For the first half of the nineteenth century in particular, judges developed the common law to extend the negotiability of property and wealth. Not only were laws of the primogeniture and entail eliminated to make land more easily transferable (and to ensure that the earth itself belonged to the living), judges also devised ways to endorse the use of new negotiable instruments like notes, bills of exchange and warehouse receipts. Especially in insurance and banking, judges also sanctioned extended possibilities of dealing on credit and at a distance. Bankruptcy law, for example, had initially been designed to protect creditors against the dishonesty of debtors. But by mid-century the purpose had shifted almost to its opposite. Instead, debtors would be saved from becoming ruined and would be given another try at contributing productively to the economy: No longer was bankruptcy law intended to pull the plug on such overextended entrepreneurs, but rather to provide them with a breathing spell, before giving them another chance to reap the tantalizing rewards of competition. Chief Justice Roger B. Taney, a Jackson appointee, offered a classic exposition of the need to keep the channels of commerce from getting clogged. The Charles River Bridge case (1837) involved the claim by a corporation, which had been granted a monopoly to collect tolls on the bridge between Boston and Charlestown, that its contract had been impaired when the state legislature allowed a new Warren Bridge to be constructed. The Charles River Bridge Corporation asserted an implied exclusive privilege to regulate bridge traffic. Ordinarily there was something sacrosanct about a contract. But Taney's Supreme Court ruled against the Corporation--and against exclusivity and privilege (while still upholding the principle of sanctity of contract). [19]
Stephen J. Whitfield holds the Max Richter Chair in American Civilization at Brandeis University. He is the author of eight books, including most recently A Death in the Delta: The Story of Emmett Till (1988), The Culture of the Cold War (1996), and In Search of American Jewish Culture (1999). Professor Whitfield is also the editor of A Companion to 20th-Century America (2004).