A charming, beautiful, polite, brilliant African-American student at UMB who should become a lawyer or a professor. She has an inspired mind and a fine writing style and as far as I can see an excellent character.
December 19, 2007
History of Common Law
Professor William A. Percy
Middle Period in American Law 1830 - 1877
TABLE OF CONTENTS
Battle for Equality
Civil War Reconstruction
Prologue to the next era
Supreme Court Judges Marshall Court Taney Court Chase Court Waite Court
During Middle Period in America Law, the primary challenge was centered predominantly around the conflict about slavery between the North and South. These challenges about equality in the law began as far back as the American Revolutionary era, continued through the Civil War Reconstruction, and extended into the twenty-first century. The authors signed the Declaration of Independence in 1776, had no idea what the calamitous impact their words would have on future generations, especially between the races. Although they did not deny that some free blacks existed, they had every intention to draw the line in the sand to limit equality to white men only; this excluded Indians, women and other minorities. As a result, the famous phrase, “all men are created equal,” caused the disparity of equality, and slavery ultimately ripped the country about. More than 500,000 American soldiers fought and died over slavery conflict and later conflicts continued about equal rights, for Blacks, women, and others. Some Blacks would argue that slavery should have been eliminated through the Declaration of Independence in 1776. Their claim was that they too had equal rights to “Life, Liberty and the pursuit of Happiness.” But, for more than two centuries post-Declaration, the oppression against Blacks, Native Americans, Asian, women and homosexuals consistently denied them of civil liberties. In the pages to follow, this essay will journey through Middle American Period discussing the various laws and unveiling the challenges of equality in the law.
Before discussing the various legal documents from the Middle American Period, we must first take a step back to discuss a few pertinent documents that influenced egalitarianism during this period. In 1820, Senator Henry Clay from Kentucky, (supporter of the Whig Party, who ran for and lost the presidency three times.) spearheaded the Missouri Compromise. Missouri had applied for statehood as a slave state; however, allowing Missouri statehood would have shifted the balance between the number of slave state and free states, ultimately tipping the political power in the Senate. Thus an explicit compromise, Congress allowed Missouri to enter as a slave state and made Maine a free state. Its provision mapped out the slave boundaries from the middle of the Mississippi river, to 36° north to 36° west to the St Francios River, prohibited slavery anywhere north of Missouri’s southern boundary. By the end of 1820, the Union consisted of an equal balance of 12 free states and 12 slave states. In the years to follow, this compromise, which was upheld for 35 years, was constantly challenged until it was completely modified with the Compromise of 1850.
Also, before proceeding, we must recognize that our nation was founded and ruled by law. The United States Constitution ultimately became the guiding principle, or rather the blueprint for our legal system. Specifically, Article III states that “The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Court as the Congress may from time to time ordain and establish.” It extends the power to “all Cases, in Law and Equity, arising under this Constitution.” This proclamation, it gives men the task to interpret the law. Thus, the Supreme Court inherited the task of defining the meaning of the federal Constitution in our judicial system. As we look at struggles for equality, the most impactful and memorable Chief Justices was John Marshall, Roger Taney and Salmon Chase, summaries about each them is noted in the Appendix. I will know discuss the most significant cases of theirs.
Starting in 1830, I take a more in-depth look at the racial disparity of the legal system for race rights. For years, the Native Americans endured continuous opposition from the southerners, specifically from Georgia, Alabama, and Mississippi over land. In 1823, proceeding several cases about land between the Indians and residents of southern states, Chief Justice, John Marshall ruled that Indian were tenants, and did not hold absolute title to land. However, he further ruled that Native Americans could not be removed. Of course the southerners did not agree with this decision, and took malicious and unethical methods of removing the Indians through coercion and threats. Conversely, the Native Americans felt that their land was rightfully theirs and treaties were signed with the Federal government by unauthorized parties (other Native Americans) without their consent. So, to combat the battle over land, certain Indians formulated their own Constitution including an assembly to make laws for their people. The southerners did not acknowledge these laws and showed their disagreement with continuous mistreatment of the Indians.
Georgia passed a law making it illegal for whites to stay on Indian territory and to assist Indians through missionary works. From a legal standpoint, most southern States had jurisdiction over Indian territories and they exercised those rights through extreme measures. In 1831, Samuel Worcester a postmaster, missionary and advocate for Cherokee’s right advocated that Indians to stay in their territories regardless of Georgia’s demands for removal. As a result of this action, Georgia sent militia and arrested him and other missionaries. Since Worcester was a federal employee at the time, he was under federal protection, therefore Georgia released him from prison. Word got to President Jackson about the incident, and instead of supporting him, he decided to immediately terminate his employment. Worcester was then arresting a second time along with ten other missionaries. Nine of the defendants sworn allegiance to Georgia‘s law and they were released. However, Worcester declined to follow suit, and was sentenced to four years imprisonment. The case was later appealed in the Supreme Court, and John Marshall ordered Worcester’s immediate release. Marshall ruled that –
1)Georgia’s law was a direct violation of treaty with the Cherokees, which was binding by the Constitution.
2)Marshall further claimed that the Indians’ occupancy was a privilege granted by Congress, as confirmed by the treaties and they could not be removed except by their free will.
Georgia ignored his ruling and President Jackson did not enforced Judge Marshall’s order. Unfortunately, to resolve the stand off between the Federal and State courts, the President had to intervene to adjudicate the decision. This prompted the removal of the Indians.
Thus, President Andrew Jackson, originally from Tennessee, proposed the Indian Removal Act to remove them out of Georgia, Mississippi and Alabama. Jackson’s rationale was that American growth required expansion into Indian territories. And also, he was adamant that the removal would enable those states’ advancement in wealth and power and would alleviate the animosity towards the Native Americans. This was very contradictory as those states were the main ones violating the treaties. It is speculated that the true reason for the Indian removal, were rumors of gold discovery in Cherokee territory in Georgia, and thus the only way to gain access to this treasure was to remove them.
In 1830, the battle over land ownership came to a screeching halt as the Native American Removal act was signed into law to remove all Indians west beyond the Mississippi River to Oklahoma. This journey called “Trails of Tears” over 4,000 Indians died from sickness, exhaustion and starvation. Clearly the Native Americans did not have a fighting chance for justice law. Most Americans viewed Indians as savages. More importantly, they were not citizens; therefore they were not eligible for civil liberties or legal rights under the Constitution. To date, this incident is considered one of the most immoral acts by Congress.
After the Mexican War of 1846-1848, and the Gold Rush of 1849, the American population quadrupled in California. Thus, Californians wanted to vote applied for statehood as a free state undermining the Missouri Compromise. Congress argued that by adding more free states, it would yet again destroy the balance of slavery amongst the states as mandated by the earlier compromise of 1820. Here again, Senator Henry Clay proposed a resolution through the Compromise of 1850. One major provision of this, compromise was the implementation of the Fugitive Slavery Act, required the authorities in free states to return runaway or fugitive slaves to their masters. This was a huge win for slaveholders as it empowered them to recover runaway slaves with Federal assistance. In essence, no black person was safe – freedman or free blacks were not effectively excluded from this provision. This controversial feature of the 1850 compromise heightened Northern fears of a 'slave power conspiracy'.
To combat this law, some Northern states passed "personal liberty laws", which mandated a jury trial before alleged fugitive slaves could be moved. Otherwise, they feared free blacks could be kidnapped into slavery. “Other states forbade the use of local jails or the assistance of state officials in the arrest or return of such fugitives. In some cases, juries simply refused to convict individuals who had been indicted under the federal law. Moreover, locals in some areas actively fought attempts to seize fugitives and return them to the South.”
Four years later, Senator Stephan Douglas introduced a bill that divided the land north and west of Missouri into two territories – Kansas and Nebraska. In 1854, Douglas had run against and defeated Abraham Lincoln in the election to US Senator for the state Illinois, and running for the Presidency in 1860, which he lost to Lincoln. In his proposal, he recommended that the two states have complete autonomy, popular sovereignty allowing the new territories to decide whether slavery would be legal or not. This recommendation did no go over well with antislavery advocates. They were very upset about the attack on the Missouri Compromise, and the possibility of another slave state in the Union. Regardless of their opposition, Congress signed into law the Kansas-Nebraska Act. As a result, there was a huge influx of settlers rushing to Kansas hoping to determine the first election in that state. Unfortunately, the migration turned violent and opponents of the Act formed the Republican Party, which opposed the spread of slavery into the territories. Due to the strong opposition and the violence, this helped move the country closer to the civil war.
One specific incident that fueled conflict over slavery was the judgment on the Dred Scott v. Sandford case in 1846. Scott was a slave of a U.S. Army doctor, John Emerson, who typically traveled with his slaves to Army posts in free slave territories. Scott sued for his freedom in Missouri claiming that he was free because while visiting free territories, namely Illinois and Wisconsin with his slave owner. He felt that he and his family had been kept in bondage for an extended period in free territory, and then returned to the slave state of Missouri. In the past, courts had ruled in favor of the plaintiff on cases such as these. This case became the most notorious decision ever issued by the U.S. Supreme Court with enormous political implications, for over eleven years until 1857. The Supreme Court, under Taney first heard the case in 1853, but then he ordered that it be reargued after the presidential election of 1856, which was completely unethical judicially. He delayed because he knew that President-elect James Buchanan had secretly lobbied certain justices to overturn the Missouri Compromise. Shortly after Buchanan’s inauguration, Chief Justice Taney issued the decision that Buchanan wanted. The Court made the following case ruling -
1)African Americans free or slave could not be citizens of the US,
2)Blacks were inferior beings and had no rights
3)Dred Scott could not bring suit in a federal court under the Judiciary Act of 1789. This Act set judicial boundaries and limitations for the judicial system. In other words, the courts did not have authority to intervene in cases outside of their jurisdiction. Thus, since Dred was not a citizen, he could not bring suit in a federal court as the court lacked jurisdiction to hear the case.
4)Based on Due Process Clause, Congress could not deprive slaveholders of their property anywhere in the US including federal territories; therefore the Missouri Compromise was unconstitutional.
5)Congress had no authority to ban slavery from a federal territory
Later the 13th and 14th Amendments overturned that decision on the case, which also advanced the nation even closer to civil war.
Civil War Reconstruction
Shortly after the decision of the Dred Scott case, and due to the constant political and social differences between the North and South, the Civil War began on April 12, 1861 at Fort Sumter in Charleston, South Carolina. It lasted for five years and resulted in six hundred thousand lives lost, and ended with the surrender on the Confederacy in 1865. While war battles took place, the parallel struggles over slavery continued in Congress. Unlike the deadly outcome in the Civil War, Congress resolved to implement the beginning to the end of slavery through the Emancipation Proclamation. Ultimately, this was the first step to the path of equality for black Americans. President Abraham Lincoln’s Emancipation Proclamation of January, 1863 granted abolition within rebel states. Specifically, the provisions did not apply to loyal boarder states; it declared only that all persons held as slaves within the designated states should be set free.
Conversely to what most people believe, complete Emancipation did not occur until after Lincoln’s death. In fact, full Emancipation only occurred until during the Reconstruction period (1866-1877.) Slavery officially ended with the enactment of the Thirteenth Amendment of 1865 which then included all the Border States. This amendment represents a profound shift in the status of Blacks, along with Fourteenth and Fifteenth amendments, greatly expanded civil rights and ended their two hundred year battle for legal equality and civil rights. After the war, the country had to reconstruct, heal the wounds of the war and unite the country. Hence, the three objectives during the Reconstruction were to reunite the States, resolve the slavery issue once and for all, and create civil protection for freed slaves. Once the slaves were freed, many of them were displaced and had no means to provide for their families. Congress established the Freedmen’s Bureau to assist them with the transition into society. The Bureau’s function was to manage abandoned and confiscated property in the Confederacy and to provide food and medical care to freed slaves. They were to manage the land and to distribute 40 acres and a mule to freed slaves and to assist them with resettlement. However, this did not go over very well within the Southern states and a major push back from the South included President Andrew Johnson. When the Bureau gave 850,000 acres to freedmen, he returned the land to Confederate owners. Abandoning the resettlement of land, the bureau instead focused on helping freedmen gain work. It encouraged them to work on plantations, but this eventually led to oppressive sharecropping and tenancy conflicts.
The Thirteenth Amendment of the U.S. Constitution Abolishment in December 1865 was the result of two hundred years of failed compromises. This first of the trio of Civil War amendments greatly expanded civil rights in America expressed “neither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall have been dully convicted, shall exist with the United States, or any place subject to their jurisdiction.” Unfortunately, this victory was short lived. white supremacy groups enacted Black Codes to contest the Thirteenth Amendment. These codes served as a way to control and inhibit not just freedmen but all black Americans. The codes controlled almost all aspects of their lives, imposing severe restrictions such as prohibiting their right to vote, (blacks were not permitted to vote in the White primary elections within the predominant Democratic Party) forbidding them to sit on juries, limiting their right to testify against white men, carrying weapons in public places and working in certain occupations.
As a result of the violence and conflict of the Black Codes, Congress created the Reconstruction Act of 1867, which divided the former Confederacy five military districts (these were the seceded states excluding Tennessee). Generals and federal guards supervised elections and kept order. “Freedmen could vote and hold political Offices; each state was required to write a new constitution, which Congress had to approve. All states must ratify the 14th Amendment.” Consequently the Black Codes became null and void through the enactment of the Reconstruction Act.
Another victory for equality the Fourteenth Amendment of 1868 granted citizenship and prohibited states from denying equal protection of the law, due process of the law, and all the privileges offered to United States citizens. This enactment overturned Taney’s decision in the Dred Scott case. More importantly, both the Thirteenth and Fourteenth Amendments were used as the benchmark for future civil equality cases in later years.
The southern states continued with their threats and intimidating methods to prevent Blacks from voting, so as a counterattack, Congress passed the fifteenth amendment in 1870. This amendment protected black Americans’ right to vote and barred states from denying the right to vote based on “race, color, or previous condition of servitude.” It also authorized the government to use federal force to ensure civil rights of both the Fourteenth and Fifteenth Amendments.
In later years of White resistance continued Jim Crow was adapted in the South. Similar to the Black Codes, Jim Crow restrictive laws persecuted black Americans. Contrary to popular belief, Jim Crow did not originate in the South--“one of the strangest things about the career of Jim Crow was that the system was born in the North and reached an advanced age before moving South in force.” It was not unusual in the South for Whites to travel with Blacks, but most Northerners opposed the cohabitation of Blacks and Whites traveling together in public places, and thus Jim Crow was created. Although this ideal started in the North, the South fully embraced this ideology and made Jim Crow laws. They had restrictions on railroad carts, buses, restaurants, parks and any other “public facilities.” The law became so extreme that hospitals and clinics separated blood donated by blacks. The outcome of these laws resulted in the creation of separate drinking fountains, public facilities, and entrances for blacks. The guiding force behind this philosophy for the South was to control all types of interracial association and it worked. Jim Crow succeeded well into the 1960s, but the U.S. Supreme Court ruled that the Jim Crow laws were unconstitutional and violated the Civil Rights.
Before wrapping up the Middle American era, we must discuss the election of 1876, which to date is known as one of the most controversial ever. At the time, the country had challenges over social differences, the economy slump, labor union battles. Politics was in complete disorder. The Republican Party, specifically the Grant administration, was criticized for their corruption and accused of some “shady dealings.” Grant was accused of nepotism and cronyism – appointments of large number of army officers and relatives of Grant’s wife. Also, his relatives and friends were using government information to profit from the gold market. The situation escalated to such extreme levels that Grant had to intervene. In another scandal, CreditMobilier in the railroad business and in order to construct major new lines needed financial assistance and approval from the federal government. As a tradeoff, CreditMobilier offered shares as bribes to congressmen encouraging them to not intervene in the profitability of the venture.
As a result of the corruption, the Democratic Party hoped to secure the presidency. The Democrats chose Samuel Tilden from New York, who ran against Republican elective Rutherford Hayes in a good race, Democrats led Hayes in popular votes. Tilden was 1 vote short from 185 electoral votes needed to win. However, the vote returns of three states were disputed; South Carolina, Louisiana and Florida. The Republicans conspired to throw out Democratic votes to guarantee a Republican victory. Congress and the President created a commission to adjudicate the votes in those states which resulted in an 8 to 7 votes in the Republicans’ favor. However, while the commission was tallying up the votes, it was speculated that Hayes was developing a compromise with the South to secure his Presidency; this was later known as the Compromise of 1877. The provisions of the compromise were to withdraw federal troops from the South, specifically South Carolina and Louisiana and provide federal funding for improvements in the South. This arrangement was a huge win for the South, and subsequently endorsed the Redeemer regime -- advocates for southern rights and white supremacy in the South.
Prelude to the next era -1877 and beyond
Although the Thirteenth, Fourteenth and Fifteenth Amendments endorsed civil rights for Blacks, Redeemers, Klu Klux Klans and white supremacy push back and resisted. These groups were notorious for implementing disreputable laws to suppress the progression of equality and civil liberties for black Americans. The case that rocked the nation and solidified the southerners’ stance on inequality for blacks was the controversial Plessy vs. Ferguson case in 1896. Plessy, a civil rights leader of the NAACP, attempted to ride in a White only section of a railroad train. Arrested, he filed a federal suit that his equal protection under the Fourteenth amendment was violated, state legislation that mandated segregation. The Supreme Court ruled that the state legislatures on railroads are required to have “separate but equal” accommodations for Blacks, and as a result, Plessy’s fourteenth amendment was not violated. Furthermore, the courts concluded that victims of racial discrimination should first seek relief from the state courts before appealing to the federal courts. This ruling created the “Separate but Equal” law, and triggering point for white supremacy groups to desegregate for decades.
It was not until 1954 that this ruling was challenged and overturned under Chief Justice Waite. Thurgood Marshalls, attorney for the NAACP won against desegregation in schools in the Brown vs. Board of Education case. The result of this case and a combination of other equality challenges (Rosa Parks, Montgomery Boycott, etc) fueled the Civil Rights Movement in the 1960s.
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2. Hoffer, Peter Charles, Hoffer, WilliamJames Hull, and Hull, N.E.H. The Supreme Court: An Essential History. University Press Kansas (2007)
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10. Woodward, C. Vann, Strange Career of Jim Crow. Oxford University Press – (2002)
11. Woodward, C Vann, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (1951 rev. ed. 1991)
Supreme Chief Justices
Judges Brief History
Born in Virginia
Served as Secretary of State (1800 – 1801)
Federalist and nationalist, supported the Republican ideals
Authored the book “ The Antelope case” (1825)
Died while serving in office.
February 1801 – July 1835
Roger Brooke Taney
Born in Maryland
Roman Catholic religion
Followed Democratic ideals
Attorney General of the US (1831-1833)
Secretary of Treasury (1833)
Initially disliked by members of the Senate.
First denied post on High Court when recommended by Jackson.
Died in office
March 1836 – October 1864
Born in New Hampshire
Ohio Senator and Governor
U.S. Treasury Secretary
Operated the most political court of all times.
Term was at the peak of Post Civil War
Died in office
December 1864 – May 1873
Morrison Remick Waite
Born in Connecticut
Originally a Whig and converted to Republican party
Secretary of the Navy
Legal responsibility to interpret and enforce the Reconstruction amendments (13th,14th and 15th)
Died in office
March 1874 – March 1888