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Federalism and the American Economic Order, 1789-1910

Published online by Cambridge University Press:  05 August 2024

Harry N. Scheiber
Harry N. Scheiber*
Affiliation:
University of California, San Diego
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From the beginning of nationhood under the Constitution to the present day, the federal system of American government— what Madison termed “a novelty and a compound,” and what Hamilton declared was “necessarily a compromise of dissimilar interests and inclinations”—has been of profound importance in shaping the nation's economic order. Power has shifted over time between the national government and the constituent state governments; and these structural shifts have had an impact upon policy process and outcomes, as well as upon the economy's institutional framework. The study of federalism has long been, of course, a concern of scholarship in constitutional law, political science, and history. Moreover, historians of American politics have lavished much attention upon the great conflicts of interest groups, parties, and ideologies, from 1787 to the New Deal and after, over the basic question of the extent to which power ought to be centralized in our federal system. And yet no scholarly studies have been specifically devoted to the analysis of federalism as an institutional variable both influencing the development of enterprise in the private sector and influencing economicpolicy processes and the substance of public economic policy. This paper attempts such an analysis. Part I reviews the recent literature on law and economic history, and Part II considers some theoretical issues. Parts III and IV examine historic American federalism in relation to governmental institutions and power, public economic policies, and the dynamics of the economy's private sector.

Type
Research Article
Information
Law & Society Review , Volume 10 , Issue 1: Essays in Honor of J. Willard Hurst: Part I , Fall 1975 , pp. 57 - 118
Copyright
Copyright © 1975 The Law and Society Association.

Footnotes

*

The author thanks the John Simon Guggenheim Memorial Foundation, the Center for Advanced Study in the Behavioral Sciences, and the University of California for support of research from which this study derives. A briefer, preliminary version of this article was prepared as a paper for the Sixth International Congress, Association Internationale d'Histoire Économique, in Copenhagen.

The author is much indebted to Professor Lawrence Friedman of Stanford University for close reading and criticism of the manuscript. Professors Friedman, Paul W. Gates (Cornell University), and Willard Hurst (University of Wisconsin) have offered many valuable suggestions during the course of research for this monograph, over several years. The author is solely responsible, however, for the work's content and interpretations.

References

1. James Madison to N.P. Trist (Dec. 1831) Records of the Federal Convention of 2787, III, 517 (Farrand ed., 1937 revision); Alexander Hamilton, The Federalist, No. 85, 591 (Cooke ed. 1961). For the abiding ambiguities of the 1787 compromises, cf. Alpheus T. Mason, “The Supreme Court and Federalism,” 44 Tex. L. Rev. 1187, passim (1966); and Alpheus T. Mason, “The Federalist: A Split Personality,” 57 Am. Hist. Rev. 125 (1952).

2. See William H. Riker, Federalism: Origin, Operation, Significance (1964); and two important collections of essays, American Federalism in Perspective (Wildavsky ed. 1967); and Federalism, Mature and Emergent MacMahon ed. 1955). Federalism as a working system is considered from sharply divergent perspectives in Harry N. Scheiber, The Condition of American Federalism: An Historian's View (89th Cong., 2d Sess., Senate Committee on Government Operations, committee print, 1966); and Daniel Elazar, The American Partnership (1962). See also Morton Grodzins, The American System (Elazar ed. 1966). Cf. Roy F. Nichols, American Leviathan: The Evolution and Progress of Self-Government in the United States (Harper Colophon edition, 1966).

The problem of federalism is also probed imaginatively by Lawrence Friedman in his major synthesis, A History of American Law (1973). See note 28, infra.

3. Cf. Harry N. Scheiber, “At the Borderlands of Law and Economic History: The Contributions of Willard Hurst,” 75 Am. Hist. Rev. 744 (1970); Earl F. Murphy, “The Jurisprudence of Legal History: Willard Hurst as a Legal Historian,” 39 N.Y.U.L. Rev. 900 (1964). What is said here is not intended to minimize the scholarly importance of contributions to legal history bearing on economic questions in the field of colonial studies. Particularly fruitful was the type of inquiry opened up by Richard B. Morris, in his Studies in the History of American Law (1930; 2d ed. 1959) and examplified by his magnum opus Government and Labor in Early America (1946).

The spurious criticism that Hurst and numerous other recent writers in legal-economic history tend to accept “as uniformly benign” the type of material growth (with its social costs) that occurred in the 19th century, and tend to adopt and “mirror” what are termed “19th-century majoritarian ideological attitudes,” is made in an otherwise valuable bibliographic survey by Wythe Holt, “Then and Now: The Uncertain State of Nineteenth-Century American Legal History,” 7 Ind. L. Rev. 615, 623-24 (1974). Another important bibliographic essay is Lawrence M. Friedman, “Some Problems and Possibilities of American Legal History,” in The State of American History 2 (Bass ed. 1970). An excellent critical survey of colonial legal studies is provided by Herbert A. Johnson, “American Colonial Legal History” in Perspectives on Early American History 250 (Vaughan & Billias eds. 1973).

4. Studies of state government and economic policy, and their implications for a revisionist view of state activism, were considered in Robert A. Lively, “The American System: A Review Article,” 29 Bus. Hist. Rev. 81 (1955), then reappraised in the light of more recent scholarship in Harry N. Scheiber, “Government and the Economy: Studies of the ‘Commonwealth’ Policy in 19th-century America,” 3 J. Interdisc. Hist. 135 (1972). Among the leading studies in the field are Carter Goodrich, Government Promotion of American Canals and Railroads, 1800-1890 (1960); Oscar Handlin & Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (rev. ed. 1969); Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (1948); Milton Heath, Constructive Liberalism: The Role of the State in the Economic Development of Georgia to 1860 (1954); Gerald D. Nash, State Government and Economic Development … in California (1964); Stephen Salsbury, The State, The Investor, and The Railroad: The Boston & Albany, 1825-1867 (1967); and Harry N. Scheiber, Ohio Canal Era: A Case Study of Government and the Economy, 1820-1861 (1969), hereinafter Scheiber, Ohio Canal Era.

By the 1960s such studies were much influenced by the work of J. Willard Hurst, especially Law and the Conditions of Freedom in the Nineteenth Century United States (1956), hereinafter Hurst, Law and the Conditions of Freedom; Law and Social Process in United States History (1960), hereinafter Hurst, Law and Social Process; and Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915 (1964), hereinafter Hurst, Law and Economic Growth. Whereas Hurst's work centered on resource-allocative policies, private contract, and franchises, the focus of studies in states which (unlike Wisconsin) undertook major public enterprises in the transport field tended to stress the importance of internal-improvements policy. (See especially the works by Hartz on Pennsylvania, Salsbury on Massachusetts, and Scheiber on Ohio, supra, this note.)

A reappraisal of transport policies is provided in two articles by Carter Goodrich, “Internal Improvements Reconsidered,” 30 J. Econ. Hist. 295-98 et passim, and “State In, State Out: A Pattern of Development Policy,” 2 J. Econ. Issues 365 (1968).

5. Cf. Paul W. Gates, History of Public Land Law Development (1968); and Thomas H. Le Duc, “History and Appraisal of U.S. Land Policy to 1862,” in Land Use Policy and Problems in the United States 3 (Ottoson ed. 1963).

6. See esp. Scheiber, Ohio Canal Era; Nathan Miller, The Enterprise of a Free People: Aspects of Economic Development of New York State During the Canal Period 1792-1838 (1962); Nash, supra, note 4; and Ralph D. Gray, The National Waterway: A History of the Chesapeake and Delaware Canal 1769-1956 (1967).

Leonard D. White provided a magisterial survey of the federal bureaucracy in The Federalists: A Study in Administrative History 1789-1801 (1948) and succeeding volumes on the Jeffersonians, the Jacksonians, and the Republicans. But for a probing into the impact of federal officialdom on significant economic interests and on the development of private-sector institutions, the most important work (apart from that of Gates on land disposal) is Forest G. Hill, Roads, Rails, and Waterways: The Army Engineers and Early Transportation (1957). Other useful studies of federal agencies include W. Turrentine Jackson, Wagon Roads West: A Study of Federal Road Surveys and Construction in the Transmississippi West 1846-1869 (1952); Malcolm Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands 1789-1837 (1968); and, for the late 19th century, Leslie E. Decker, Railroads, Land, and Politics: The Taxation of the Railroad Land Grants 1864-1897 (1964); and Samuel P. Hays, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement 1890-1920 (1959).

The major canal states raised millions of dollars through bond issues for their construction programs. Nathan Miller, supra, this note, was first to recognize the importance of these funds as they were managed by state officials for larger developmental purposes: the New York commissioners consciously placed the funds in state banks as a means of expanding bank credit, also using accruing canal revenues for related purposes. A variant of the same type of activist policy by administrative officials in another state is explored in Harry N. Scheiber, “Public Canal Finance and State Banking in Ohio 1825-37,” 55 Ind. Mag. Hist. 119-32 (1969).

7. Cf. Scheiber, Ohio Canal Era at 61-87, 354-68; George H. Miller, Railroads and the Granger Laws (1971); Harry N. Scheiber, “Public Policy, Constitutional Principle, and the Granger Laws,” 23 Stan. L. Rev. 1029 (1971).

Cf. Gerald D. Nash, “Government and Business: A Case Study of State Regulation of Corporate Securities, 1850-1933,” 38 Bus. Hist. Rev. 144 (1964); Edwin Patterson, The Insurance Commissioner in the United States (1929); Walter K. Ferguson, Geology and Politics in Frontier Texas 1845-1909 (1969).

8. Pound, “The Law in Books and Law in Action,” 44 Am. L. Rev. 12 (1910). Cf. Pound, Interpretations of Legal History (1923); and Johnson, supra, note 3, at 255-57. The relationship between Pound's theories and those of the Realists is delineated imaginatively in Wilfrid Rumble, Jr., “Law as the Effective Decisions of Officials: A ‘New Look’ at Legal Realism,” 20 Jul. Pub. L. 215, 237ff (1971).

9. See Friedman, supra, note 3.

10. For summaries of research in, respectively, the mode of the New Economic History and that of institutional economic history, cf. two useful bibliographic-analytic surveys: Albert Fishlow and Robert W. Fogel, “Quantitative Economic History: An Interim Evaluation,” 31 J. Econ. Hist. 15 (1971); and James H. Soltow, “American Institutional Studies: Present Knowledge and Past Trends,” 31 J. Econ. Hist. 87 (1971).

11. A penetrating critique is provided by Harold D. Woodman, Jr., in “Economic History and Economic Theory: The New Economic History in America,” 3 J. Interdiscip. Hist. 323 (1973). A useful journalistic analysis, centering on a recent study of slavery is Constance Holden, “Cliometrics,” 186 Science 1004 (1974); cf. Harry N. Scheiber, “Black Is Computable,” 44 The American Scholar 656 (1975).

Recently one of the most prominent of the scholars who innovated the New Economic History has written that neo-classical theory, which is the most important tool of analysis in this mode, (1) “was not designed to explain long-run economic change;” and (2) “is immediately relevant to a world of perfect markets—that is, perfect in the sense of zero transaction costs: the costs of specifying and enforcing property rights. Yet we have come to realize that devising and enforcing a set of rules of the game is hardly ever costless and the nature of these costs is at the very roots of all economic system's [sic] problems. Accordingly, a theoretical analysis of the changing rules of the game is at the very core of the subject matter of economic history.” Douglass C. North, “Beyond the New Economic History,” 34 J. Econ. Hist. 1, 3 (1974). Unfortunately North did not pursue this theme with reference to studies such as those of Willard Hurst which make their main theme precisely these “changing rules.” Cf. Peter D. McClelland, Causal Explanation and Model Building in History, Economics, and the New Economic History (1975). The new economic history at its best is exemplified in the brilliant study by Jeffrey G. Williamson, Late Nineteenth Century Economic Development: A General Equilibrium History (1974). Cf. Approaches to American Economic History (Taylor & Ellsworth eds. 1973).

12. See the analyses of Hurst's main themes, in articles by Scheiber and by Murphy, supra, note 3.

13. T.E. Lauer, “The Common Law Background of the Riparian Doctrine,” 28 Mo. L. Rev. 60 (1963); Morton J. Horwitz, “The Transformation in the Concept of Property in American Law 1780-1860,” 40 U. Chi. L. Rev. 248 (1973); Harry N. Scheiber, “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,” Law in American History 327 (Fleming & Bailyn eds. 1972); William E. Nelson, “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in 19th Century America,” 87 Harv. L. Rev. 513 (1974); Harry N. Scheiber, “Instrumentalism and Property Rights,” 1975 Wisc. L. Rev. 1. A study richly suggestive of how judges fashioned law to transfer some major costs of industrialization to individuals or the community (to the advantage of entrepreneurs) is Lawrence Friedman and Jack Ladinsky, “Social Change and the Law of Industrial Accidents,” 67 Colum. L. Rev. 50 (1967).

14. Cf. Harry N. Scheiber, “Property Law, Expropriation and Resource Allocation by Government 1789-1910,” 33 J. Econ. Hist. 232 (1973).

15. The full range and impact of these interacting policies is examined in rich detail in Hurst, Law and Economic Growth. See also Harry N. Scheiber and Charles McCurdy, “Eminent Domain Law and Western Agriculture,” 49 Agric. Hist. 112-30 (1975); and Charles McCurdy, “Stephen J. Field and Public Land Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth Century 10 Law & Society Review, forthcoming.

16. On usury laws and their impact, a much-neglected subject, cf. Lawrence M. Friedman, “The Usury Laws of Wisconsin: A Study in Legal and Social History,” 1963 Wisc. L. Rev. 515, which is the only adequate state-level scholarly study available; and a brief but valuable, suggestive discussion of the New York usury law's effects on investment, in Alan L. Olmstead, “New York City Mutual Savings Banks Portfolio Management and Trustee Objectives,” 34 J. Econ. Hist. 815, 824-29 (1974). There was, of course, much blatant evasion of usury restrictions. Cf. Robert Swierenga, Pioneers and Profits: Land Speculation on the Iowa Frontier, 151-52, 152n. (1968). See also Hurst, Law and Economic Growth, at 469-70; and Allan G. Bogue, Money at Interest: The Farm Mortgage on the Middle Border (1955).

17. Cf. Gates, supra, note 5; Harry N. Scheiber, “State Policy and the Public Domain: The Ohio Canal Lands,” 25 J. Econ. Hist. 86 (1965); William S. Greever, “A Comparison of Railroad Land-Grant Policies,” 25 Agric. Hist. 83 (1951).

18. Hurst, Law and Social Process 236; cf. Friedman, supra, note 2.

19. Scheiber, supra, note 14, at 243-51.

20. Hurst, Law and Economic Growth, 123, 262-70.

21. Sorting out the ingenuous adaptations of traditional doctrine from the disingenuous (or obscurantist) is no easy task in the analysis of 19th-century judicial law-making. See, e.g., Scheiber, “The Road to Munn,” supra, note 13; Nelson, supra, note 13; and the critique of Nelson's view in Scheiber, “Instrumentalism and Property Rights,” supra, note 14. The most productive approach to this problem, I think, probably lies in a biographical mode of analysis. A major work that pursues this mode is the classic study by Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (1957).

22. Thus Gilman Ostrander, Nevada: The Corrupt Borough 30-34 (1966) chronicles a mining-law case of first importance whose outcome was apparently decided on the basis of minutely calibrated bribes, ranging up to $60,000 for the territory's Chief Justice. Bribery of legislatures was, of course, notorious; the most famous episode is recounted in Charles Francis Adams, Jr., and Henry Adams, Chapters of Erie and Other Essays (1886). An absorbing account of “influence” in all its variants, with subthemes that illuminate the importance of subnational, decentralized power, is Chester M. Destler, Roger Sherman and the Independent Oil Men (1967). For the impact of outright corruption, against a background of public policy considered in the Hurst mode, cf. William Lilley II and Lewis Gould, “The Western Irrigation Movement, 1878-1902,” in The American West: A Reorientation 61-64 (Gressley ed., Univ. of Wyoming Publications, #32, 1966).

23. Cf. Herbert Heaton's comments on the “popular notion that until the fourth of March, 1933, the United States was the land of laissez faire, and the alternative notion that governments, when they have acted, have done so [in the United States] only in a regulatory capacity.” Herbert Heaton, “General Memorandum of State Studies … 1941,” reprinted in Handlin & Handlin, supra, note 4, at 270.

24. An elaboration of Hurst's hypotheses, applied imaginatively to Congressional economic policy processes in the late 19th century, is provided by Wallace D. Farnham in “The Weakened Spring of Government: A Study in 19th-century American History,” 68 Am. Hist. Rev. 662 (1963). For a regional study, providing a brilliant overview of public policy, cf. Gene M. Gressley, West by East: The American West in the Gilded Age (Charles Redd Monographs in Western History, #1, Provo, 1972).

25. Handlin & Handlin, supra, note 4, at 130,186-91, 203.

26. Scheiber, Ohio Canal Era, chs. 4,10-11,13.

27. Text at notes 130-134, infra.

28. The major exceptions—that is, the works that do address explicitly the problem of federal structure and its incidence—include: E.A.J. Johnson, “Federalism, Pluralism, and Public Policy,” 22 J. Econ. Hist. 427 (1962), expanded in Johnson, The Foundations of American Economic Freedom: Government and Enterprise in the Age of Washington (1973); J. Willard Hurst, Legitimacy of the Business Corporation in the Law of the United States 1780-1970, 139-153 (1970); Hurst, Law and Economic Growth 53 et passim; Lawrence M. Friedman, Contract Law in America: A Social and Economic Case Study 154 et passim (1965); Lawrence M. Friedman, supra, note 2; W. Brooke Graves, American Intergovernmental Relations (1964); see also note 2, supra.

29. Cf. Rufus Davis, “The ‘Federal Principle’ Reconsidered,” 1 Austl. J. Politics & Hist. (2 pts.), 59, 223, at 62ff., 223-26 et passim (1956), for excellent analysis of juristic theories of federalism and some analytical alternatives. William S. Livingston pleads for greater realism in the analysis of federal societies; on closer reading, “realism” is found to be synonymous with socio-cultural analysis. Livingston, “A Note on the Nature of Federalism.” 67 Pol. Sci. Q. 81 (1952). Pursuing this line of discussion further, and more closely in line with recent studies such as Riker's (supra, note 2) as well is the study by C.D. Tarlton, “Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation,” 27 J. Politics 861 (1965).

Cultural differences among states and their politics, a key element in Tarlton's analysis, is made a main theme in Daniel J. Elazar, American Federalism: A View from the States (1966). This is a provocative analysis, but as will be seen many of its main historical premises differ markedly from those postulated in the present study. See id. at 2-3, 23 et passim, for Elazar's stress on “noncentralization,” sharing of functions, and the alleged “concern of publics at all levels of government” with policies per se, “without regard to niceties of structure.” The eminent student of federalism, in both its juridical and behavioral variants, Carl J. Friedrich, in Trends of Federalism in Theory and Practice 7-8, 9n. (1968), provides an interesting judgment on my own views and those of Elazar as set forth in earlier works.

30. Arthur E. Sutherland, Constitutionalism in America: Origin and Evolution of its Fundamental Ideas 335 (1965); Charles M. Wiltse, The New Nation 1800-1845, 35-36, 50-51, 74, 115-23, (1961); J. Willard Hurst, “Review and the Distribution of National Powers,” in Supreme Court & Supreme Law 143-44 (Cahn ed., 1954).

31. Cf. Arthur S. Miller, The Supreme Court and American Capitalism 140 (1968); and Grant McConnell, Private Power & American Democracy (1966).

32. Hurst, Law and Economic Growth, at xii-xiii, 285-88, for theoretical considerations. Stewart Macaulay, Law and the Balance of Power (1970) is a penetrating study of private ordering in modern corporate marketing.

33. James Fesler, “Understanding of Decentralization,” 27 J. Politics (1965); Fesler, Area and Administration (1959); York Willbern, “The States as Components in an Areal Division of Powers,” in Area and Power 70-88 (Maass ed. 1959). On the concepts of governmental competence and potential power, I have found useful the discussions by Robert Dahl, “The Concept of Power,” 2 Behl. Sci. 201 (1957); and Peter Bachrach and Morton S. Baratz, Power & Poverty in Theory & Practice, ch. 2 (1970).

34. William Riker, Democracy in the United States 115-16 (2d ed. 1965); W.N. Chambers and W.D. Burnham, The American Party Systems: Stages of Political Development (2d ed. 1975); also Nichols, supra, note 2.

35. Riker, supra, note 34; J.R. Pennock, “Responsiveness, Responsibility, and Majority Rule,” 46 Am. Pol. Sci. Rev. 790 (1952); David B. Truman, “Federalism and the Party System,” in Federalism (MacMahon ed.), supra, note 2, at 115-36.

36. See text at notes 205-6, infra. See also Henry Kariel, The Decline of American Pluralism 185 (1961), and McConnell, supra, note 31 at 112-18 et passim (1966).

37. Hurst, Law and Economic Growth 52-54.

38. Cf. Earl Finbar Murphy, Man and His Environment: Law (1971).

39. The term “competition in laxity” is used in a report on banking regulation in Business Week (Sept. 21, 1974), 53-54. See also William L. Cary, “Federalism and Corporate Law: Reflections Upon Delaware,” 83 Yale L.J. 663 (1974).

40. See Scheiber, supra, note 2, at 4-6; also the section, “What Does Federalism Mean Now?” in Michael D. Reagan, The New Federalism 156ff (1972).

41. Marbury v. Madison, 1 Cranch 137 (1803).

42. McCulloch v. Maryland, 4 Wheat. 316 (1819).

43. Id. at 404.

44. Dartmouth College v. Woodward, 4 Wheat. 518 (1819).

45. Gibbons v. Ogden, 9 Wheat. 1 (1824). Professor Nelson has stressed the character of Gibbons v. Ogden and other major commerce decisions as “instrumentalist” in the sense that they not only established the formal constitutional foundation of a national “common market” but also assured a basic practical precondition of economic growth—a point also made by other scholars, though not in the context of instrumentalism as a main theme in judicial activism of the pre-1860 period. Cf. Nelson, supra, note 13, at 524-25; and also Stuart Bruchey. The Roots of American Economic Growth 97 (1965); Arthur S. Miller, The Supreme Court and American Capitalism 25-28 (1968).

But it is important to keep in the forefront of analysis that major doctrinal issues bearing on fundamental distribution of formal authority were also before the court in Gibbons. On the one hand, as Professor Mann has shown, the Marshall Court was confronted with the basic question of whether or not property rights, immunities, and limitations derived from the states, together with the related question of “nationalization” of private rights. And, on the other, the Court confronted the classic Federalist-Jeffersonian (or, better, Federalist-Antifederalist, 1787-style) doctrinal differences as to the character of national supremacy and state sovereignty. Cf. W. Howard Mann, “The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause,” 38 Ind. L.J. 117, 180-81, 212, 225-26 et passim (1963).

Although Mann correctly emphasizes the dogmatic strictures of the Chief Justice in his opinion for the Court (id. at 232-33), also casting new light on the nationalism of Justice Johnson (id. at 234-37), he fails to recognize the degree to which the states actually continued to exercise essential controlling powers over the conditions of interstate commerce during the ensuing decades. Cf. Harry N. Scheiber, “The Rate-Making Power of the State in the Canal Era,” 77 Pol. Sci. Q. 397 (1962); and the text, infra, at notes 134-35.

46. 1 U.S. Stats. 73 (Sept. 24, 1789). See the classic study by Charles Warren, “New Light on the History of the Federal Judiciary Act of 1789,” 37 Harv. L. Rev. 49 (1923).

47. Cf. Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity chs. 1-3 (1972).

48. Warren, supra, note 46; John P. Frank, “The Historical Bases of the Federal Judicial System,” 12 L. & Contemp. Probs. 3 (1948).

49. Kathryn Turner, “Federalist Policy and the Judiciary Act of 1801,” 22 Wm. & Mary Q. (3d. ser.) 3, 23-31 (1965). Among the leading federal cases involving land titles and “federal questions” already in progress in the lower courts by 1801 were those that culminated in Fletcher v. Peck, 6 Cranch 87 (1810), on the Yazoo land claims in Georgia; and in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816), on major land claims in Virginia. On the range of early cases, many bearing on significant propertied interests, that sharpened the debate over the proper scope of federal judicial review, cf. Charles G. Haines, The American Doctrine of Judicial Supremacy ch. 8 (2d ed. 1959). For analysis of federal cases by source of jurisdiction and type of substantive issue, to 1815, see Frank, supra, note 48, at 16-22. See also Dwight F. Henderson, Courts For A New Nation (1971).

50. Theodore Sedgwick to Rufus King, Nov. 15, 1799, quoted in Turner, supra, n.49, at 9. Cf. Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971), a rich and incisive analysis of the judiciary as an issue in the new nation's politics.

51. Cf. James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (1956).

52. Chisholm v. Georgia, 2 Dall. 419 (1793), in which the Supreme Court held that its jurisdiction embraced suits against a state by citizens of other states, and the reaction to the decision (culminating in adoption of the 11th Amendment), may be traced in Jacobs, supra, note 47, at 46-57 et seq. Cf. Doyle Mathis, “Chisholm v. Georgia: Background and Settlement,” 54 J. Am. Hist. 19 (1967).

53. See note 49, supra.

54. U.S. v. Peters, 5 Cranch 115 (1809); Martin v. Hunter's Lessee, 1 Wheat. 304 (1816); Cohens v. Virginia, 6 Wheat. 264 (1821). The challenge to § 25 of the 1789 Judiciary Act, which Virginia had sought to have declared unconstitutional in Cohens v. Virginia and which pertained to federal review of state decisions in federal questions, is analyzed in Jacobs, supra, note 47, at 81-87. These and related decisions are also considered ably, in the context of the formal juridical theory of sovereignty and federalism, in Robert K. Faulkner, The Jurisprudence of John Marshall ch. 2 (1968).

55. Paul W. Gates, “Tenants of the Log Cabin,” 49 Miss. Valley Hist. Rev. 3 (1962) treats in detail the legal-economic and political history of the famous controversy over land titles and occupiers' claims, culminating in Green v. Biddle, 8 Wheat. 1 (1823). For a different view, cf. Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court 208-13, 219-29 (1970). Failure of sister states to rush to the support of Kentucky, Virginia, and other litigants in this and related cases gave rise to serious concern that “the just pride, the sovereignty, and constitutional independence” of the states had been dangerously vitiated. Sen. Talbot of Kentucky, in Congressional debate, quoted in Erwin Surrency, “A History of Federal Courts,” 28 Mo. L. Rev. 214, 229 (1963). See also Mary Tachau, “The Federal Courts in Kentucky, 1789-1816,” (Ph. D. dissertation, U. of Ky., 1973).

56. Bank of the U.S. v. Deveaux, 5 Cranch 61 (1809). Cf. Gerald Henderson, The Position of Foreign Corporations in American Constitutional Law (1918).

57. See note 47, infra.

58. Sturges v. Crowninshield, 4 Wheat. 122 (1819), which ruled a New York bankruptcy law unconstitutional but in ambiguous terms (apparently on grounds of its retroactivity). Cf. McMillan v. McNeil, 4 Wheat. 209, a case immediately following, also ambiguous and pertaining to application of English bankruptcy law to a contract made in this country. In Ogden v. Saunders, 12 Wheat. 213 (1827), the Court finally clarified its position and (over Marshall's dissent) held prospective bankruptcy laws to be constitutional. The ambiguities of constitutional doctrine probably stayed the hand of several states then considering such legislation. See Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy 1607-1900 32-34 (1974); Ernest S. Bates, The Story of the Supreme Court 118-19 (1936); R.L. Hale, “The Supreme Court & The Contract Clause,” 57 Harv. L. Rev. 512, 519 (1944). On the depression crisis and legislative responses, cf. Samuel Rezneck, “The Depression of 1819-1822,” 39 Am. Hist. Rev. 28 (1933).

59. Bank of the U.S. v. Planters' Bank, 9 Wheat. 904 (1824); cf. Bank of Kentucky v. Wister, 2 Pet. 318 (1829).

60. Weston v. Charleston, 2 Pet. 449 (1829).

61. See Robert J. Harris, “Chief Justice Taney: Prophet of Reform and Reaction,” American Constitutional Law: Historical Essays 93, 98ff. (Levy ed. 1966); Alpheus T. Mason, The States' Rights Debate 192 (2d ed. 1972); Carl Brent Swisher, The Taney Period, 1836-1864, 358 et passim (Oliver Wendell Holmes Devise History of the U.S. Supreme Court, V, 1974).

62. Propeller Genesee Chief v. Fitzhugh, 12 How. 443 (1851). Taney's opinion for the Court stressed not nationalist doctrine, however, but commercial and geographic imperatives on the one hand, and, on the other, a variant of states' rights (viz., the need of interior states on lake and river waters to enjoy “perfect equality in rights and privileges” with seaboard states). Id. at 454.

63. Ableman v. Booth, 21 How. 506 (1859). Cf. Swisher, supra, note 61, at 653-75.

64. Louisville, etc. R.R. v. Letson, 2 How. 497 (1844). The ruling in Letson was elaborated in Marshall v. Baltimore & Ohio R.R., 16 How. 314 (U.S. 1854), which established a “conclusive presumption” that all the shareholders of any corporation were citizens of the state that chartered that corporation; cf. Taney's further comments in Ohio & Miss. R.R. v. Wheeler, 1 Black. 286, 296 (1862). This ruling superseded the older one, in Strawbridge v. Curtiss, 3 Cranch 267(1806) that had required “complete diversity.” For a full discussion, see Dudley O. McGovney, “A Supreme Court Fiction: Corporations in the Diverse Citizenship Jurisdiction of the Federal Courts (Pt. 1),” 56 Harv. L. Rev. 853 (1943).

65. Harris, supra, note 61, at 102.

66. Bank of Augusta v. Earle, 13 Pet. 519 (1839).

67. Hurst, Legitimacy of the Business Corporation, supra, note 28, at 65.

68. Id. at 64-65. The immediate response of Alabama to the decision was to adopt a new statute specifically declaring it unlawful for any foreign corporation to engage in banking and discount operations within the state. The long-term influence of the decision rested in Taney's dicta on (1) privileges and immunities, (2) the “geographic theory” of the corporation as existing juridically in its state of charter, and (3) the power of a state “to repudiate the principle of comity.” G.C. Henderson, The Position of Foreign Corporations in American Constitutional Law 47-49 (1918).

69. Hurst, Legitimacy of the Business Corporation, supra, note 28, at 64.

70. Swift v. Tyson, 16 Pet. 1 (1842).

71. Note, “Swift v. Tyson Exhumed,” 79 Yale L.J. 284 (1969); Charles A. Heckman, “The Relationship of Swift v. Tyson to the Status of Commercial Law in the 19th Century and the Federal System,” 17 Am. J. Leg. Hist. 246 (1973). See also Waterman, “The Nationalism of Swift v. Tyson,” 11 N. Car. L. Rev. 125 (1936).

72. Moreover, the conflict continued after 1842, on which see text at notes 110-15, infra. For a view of the Swift doctrine as both nationalizing and extremely mischievious in its consequences, see Warren, New Light, supra n.46, at 84ff.; and Felix Frankfurter, “Distribution of Judicial Power between United States and State Courts,” 13 Cornell L.Q. 499, 526 (1928). Contra, H.E. Yntema & G. Jaffin, “Preliminary Analysis of Concurrent Jurisdiction,” 79 U. of Pa. L. R. 869, 881-88 (1931).

73. Cf. Lane v. Vick, 44 U.S. 464 (1845), regarding wills, Williamson v. Berry, 49 U.S. 495 (1850), regarding private actions; dictum in Murray v. Gibson, 56 U.S. 420, 425 (1853); and Watson v. Tarpley, 59 U.S. 517, 521 (1855), that a statute that violates general commercial law is “inadmissable.” These and other cases are considered in Note, “Swift v. Tyson Exhumed,” supra note 71, at 285n., 296n. See also Rowan v. Runnels, 5 How. 133, 139 (1847).

74. Cf. Mason, supra, note 61, at 191 defining “dual federalism” as the doctrine of “two mutually exclusive, reciprocally limited fields of power—that of the national government and that of the states. The two authorities confront each other as equals across a precise constitutional line, defining their respective jurisdictions.” Marshall, of course, did not see federal and state governments as “equals.” But once that logical step (admittedly a long one) had been made, the bridge from concurrent power to dual federalism had its logical structure ready.

75. Cohens v. Virginia, 6 Wheat. 264 (1821).

76. Gibbons v. Ogden, 9 Wheat. 1, 203 (1824). For a recently published analysis stressing that the decision in Gibbons v. Ogden came against a background of intense pressure on the Supreme Court to extend the legitimacy of the states' formal authority in other areas of law—pressure that the Court, at its peril, largely resisted forthrightly—see David B. Roe and Russell K. Osgood, “United States Supreme Court, February Term 1824,” 84 Yale L.J. 770, esp. at 806-7 (1975).

77. Willson v. Blackbird Creek Marsh Company, 2 Pet. 245, 252 (1829).

78. The following cases are discussed in Note, “Swift v. Tyson Exhumed,” supra, note 71, at 291-93: Robinson v. Campbell, 16 U.S. 212 (1818), in which the Court indicated that under certain circumstances state rules could not be validated in federal litigation; Preston's Heirs v. Bowmar, 19 U.S. 580 (1821), accepting a state rule as “not unreasonable, or founded in clear mistake,” and Daly v. James, 21 U.S. 495, 535 (1823)., in which the Court declared itself merely “disposed to acquiesce” in a Pennsylvania rule.

79. Elmendorf v. Taylor, 10 Wheat. 152, 159 (1825). Cf. Barker v. Jackson, 2 F. Cas. 811 (No. 989) (C.C.D.N.Y. 1826), expanding this doctrine to cover cases of dispute as to alleged conflict between laws of a state and the constitution of the state in question.

80. Jackson v. Chew, 12 Wheat. 153 (1827).

81. Barron v. Baltimore, 7 Pet. 243 (1833).

82. How the Supreme Court became embroiled in the sort of intense controversy that could easily derive from deference to the state courts in matters of interpreting their own constitutions became evident in the 1860's, when vast differences (and one major state-court reversal) surfaced on the matter of bond repudiation. See Scheiber, “The Road to Munn,” supra, note 13, at 393-94, on Leffingwell v. Warren, 2 Black. 599 (1862); and Gelpcke v. Dubuque, 1 Wall. 175 (1864).

Earlier, a thorny judicial confrontation on similar lines had involved the Court in determining the status of debts incurred to purchase slaves on credit in Mississippi from 1833 to 1837. During that time the state's constitution had barred commercial importation and sale of slaves; In the absence of legislation on the subject, and (as the Court found) lacking a definitive ruling to the contrary by the state judiciary, the Court ruled that debts incurred for such sales would be binding. This ruling affected those transactions affected by citizenship diversity. Groves v. Slaughter, 15 Pet. 449 (1841). The State court, in Brien v. Williamson, 8 Miss. 14 (1843), ruled to the contrary, its decision affecting transactions between the state's own residents. In Rowan v. Runnels, 5 How. 134 (1847), however, the Supreme Court reaffirmed its Groves decision. Cf. Hale, supra, note 58, at 854-62; William Goodell, The American Slave Code in Theory and Practice, 48-49n (1853).

83. Charles River Bridge v. Warren Bridge, 11 Pet. 420 (1837).

84. Hurst, Law and the Conditions of Freedom 27.

85. Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case 131 (1971). Cf. Gerald Garvey, “The Constitutional Revolution of 1837 and the Myth of Marshall's Monolith,” 18 W.Polit.Q. 27 (1965).

86. Charles River Bridge v. Warren Bridge, 11 Pet. 420 at 552 (1837).

87. West River Birdge v. Dix, 6 How. 507 (1848).

88. Id. The case combined two appeals, one from the Vermont supreme court and one from a state circuit court.

89. Id. at 520-21. Leonard Levy erroneously accepts at face value the extraordinary claim by Webster that the eminent domain power had only lately been admitted in American law and was derived in any event from the laws of despotic governments. Levy, supra, note 21 at 120n. On earlier explicit mention of “eminent domain” and the invalidity of Webster's spurious argument, cf. Scheiber, “Road to Munn,” supra, note 13, at 379n. Justice Daniel disposed readily of Webster's claim. 6 How. 507 at 533-34.

90. Thus the Boston Post, Feb. 4, 1848, welcomed the West River Bridge decision as a blow against “the power of monopolies … in favor of popular rights.” Quoted in Charles Warren, The Supreme Court in United States History, II, 164 (1947 ed.).

91. West River Bridge v. Dix, 6 How. 507 at 532 (Daniel, J.).

92. Id. at 535.

93. Mills v. St. Clair County, 8 How. 569 (1850).

94. Id. at 584.

95. West River Bridge v. Dix, 6 How. 507 at 532 (1848).

96. New York v. Miln, 11 Pet. 102 (1837).

97. Kutler, supra, note 85, at 124. Edward S. Corwin, commenting upon the Miln doctrine of inalienable police powers, states that the opinion stood the Tenth Amendment on its head by defining state power “prior to the definition of national power, and not vice versa;” it threatened to “render the supremacy clause entirely nugatory.” Edward S. Corwin, The Commerce Power Versus State Rights 126 (1936).

98. Corwin, supra, note 97, at 170. For a summary of the relevant cases, viewed from a perspective stressing the more nationalistic strain in the decisions of the 1840s and 1852, see Benjamin F. Wright, The Growth of American Constitutional Law 68-71 (1967 ed.). Compare Felix M. Frankfurter, The Commerce Clause Under Marshall, Taney, and Waite, Ch. 2 (1937).

In a highly suggestive critical overview of the Taney Court, Professor Newmyer has argued recently that “doctrinal confusion and irresolution” marked Commerce Clause adjudication: “For fourteen years, from Miln to Cooley [53 U.S. 299 (1852)], the Justices squabbled inconclusively over questions of concurrent power, federal exclusivism, and state police power. The principle of ‘selective exclusiveness’ set forth in the Cooley decision was less a doctrinal clarification than it was an agreement to stop looking for one.” Newmyer, “History over Law: The Taney Court,” 27 Stan. L. Rev. 1373, 1378 (1975). For useful analysis of the Commerce Clause, as well as eminent domain, Contract Clause, and other important cases of the Marshall and Taney eras, see also Maurice G. Baxter, Daniel Webster & The Supreme Court (1966).

99. Veazie v. Moor, 14 How. 567 (1852).

100. Conway v. Taylor's Executor, 1 Black 603 (1862).

101. Smith v. Maryland, 18 How. 71 (1855). For a detailed discussion of concurrent powers doctrines, and their decentralizing effects on the structure of formal authority, see the classic article by J.A.C. Grant, “The Nature and Scope of Concurrent Powers,” 34 Colum. L. Rev. 995 (1934).

102. Of course, the law of fugitive slaves and the law and administration of their rendition—culminating in the Dred Scott decision—was inescapably one that confronted Congress and demanded federal policy. For a remarkable, and insightful, analysis of how the mere act of confronting slavery in the territories escalated constitutional issues and intensified the response to fugitive-slavery questions, see Arthur Bestor, “The American Civil War as a Constitutional Crisis,” 49 Am. Hist. Rev. 329 (1964) and “State Sovereignty and Slavery,” 54 J. Ill. St. Hist. Soc'y. 1 (1961).

103. Text at notes 87-94, supra.

104. Cf. Scheiber, supra, note 14, at 232ff.

105. Worcester v. Georgia, 31 U.S. 515 (1832), esp. at 561.

106. State v. Tassels, Dudley 229 (Ga. 1830); Caldwell v. State, 1 Stew. & Port. 327 (Ala. 1832); State v. Foreman, 16 Tenn. 256 (1835); State v. Doxtater, 47 Wisc. 278 (1879). Cases cited in this and following note are considered in Grant, supra, note 101, at 1000.

107. U.S. v. Bailey, 24 F. Cas. 937 (No. 14, 495) (C.C.D. Tenn. 1834); U.S. v. Cisna, 25 F. Cas. 422 (No. 14,795) (C.C.D. Ohio 1835); U.S. v. Ward, 28 F. Cas. 397 (No. 16,639) (C.C.D. Kans. 1863).

108. Supra, note 42. Also, Osborn v. Bank of the U.S., 9 Wheat. 738 (1824).

109. Bank of Toledo v. Bond, 1 Ohio St. 622 (1853); Dodge v. Woolsey, 59 U.S. 331 (1855); Sandusky City Bank v. Wilbor, 7 Ohio St. 481 (1857); Skelly v. Jefferson Branch Bank, 9 Ohio St. 607 (1859), rev'd 1 Black 436 (1862).

110. Swift v. Tyson, 16 Pet. 1 (U.S. 1842).

111. Stalker v. McDonald, 6 Hill. 93 (N.Y. 1843).

112. Id. at 95.

113. Brien v. Williamson, 7 How. 14,16 (Miss. 1843).

114. Cotton v. Brien, 6 Rob. 115 (La. 1843). See the review of relevant cases in Bramhall v. Beckett, 31 Me. 205, 209 (1850). Mr. Tony Freyer, a fellow of the Harvard Business School, has in progress a major study of Swift v. Tyson in the context of American commerce and commercial law of the early 19th century.

115. Becker v. Sandusky City Bank, 1 Minn. 311, 319 (1856).

116. In recent years an argument at the other extreme, so to speak, has been made by certain political scientists who assert that federalism was characterized during 1789-1861 (as today) by “sharing” of functions between the state and national governments. This perspective nearly obliterates the problem of centralization versus decentralization by its insistence that “whatever was at the focus of State attention in the 19th century became the recipient of national grants” (i.e. grants-in-aid in land, cash, or loans of personnel). Morton Grodzins, “The Federal System,” Goals for Americans (President's Comm'n on Natl. Goals, 1960); the same view is in Daniel Elazar, “The Shaping of Intergovernmental Relations,” 359 Annals 11 (1965).

As I think this theory has been shown to be spurious (Scheiber, supra, note 2, at 2-5), I do not treat it here.

117. This is not to say that these areas of law were entirely without ramifications affecting the economy or the allocation of scarce public resources. See Lawrence M. Friedman, Contract Law in America, supra, note 28.

118. Paul P. Van Riper, History of the U.S. Civil Service (1958) p. 58. Indicative of the Civil War's enormous impact was the sudden growth of Federal civil employment to over 160,000 while the Southern Confederate central government employed some 70,000 civilians, including slaves. Id. and Harry N. Scheiber, “The Confederate Civil Service,” 25 J. So. Hist. 448, 457-58 (1959). Cf. G.A. Lincoln et al., “Mobilization and War,” in American Economic History 207, 215ff (Harris ed. 1961).

119. Paul B. Trescott, “The U.S. Government and National Income, 1790-1860,” rends in the American Economy in the 19th Century (Natl. Bur. of Econ. Research, Studies in Income and Wealth, XXIV, 1960); Henry W. Broude, “The Role of the State in American Economic Development 1820-1890,” in The State & Economic Growth (Aitken ed. 1959).

120. As, e.g., during the expansionist business cycle of the mid-1830's. Cf. Harry N. Scheiber, “The Pet Banks in Jacksonian Politics and Finance 1833-41,” 23 J. Econ. Hist. 196 (1963), stressing Treasury Department administrative decisions affecting fiscal operations and their impact on banking credit. For an analytic overview of the longer period cf. J.R.T. Hughes and Nathan Rosenberg, “The U.S. Business Cycle before 1860,” 15 Econ. Hist. Rev. (2nd ser.) 476 (1963).

121. For analysis and bibliography of state and federal land disposal, cf. Gates, supra, note 5.

122. Hurst, Law and Economic Growth, at 13-61 (on Wisconsin); David Smith, “Maine and Its Public Domain,” in The Frontier in American Development 113-37 (Ellis ed. 1969); Swierenga, supra, note 16, at 51-79; Scheiber, supra, note 17; Harry N. Scheiber, “Land Reform, Speculation, and Governmental Failure,” 7 Prologue: J. Natl. Archives 85 (1975) (on Ohio).

123. Largesse distributed by government can be “disaggregated and dispensed unit by small unit;” hence such policy (unlike redistributive or regulatory policy) tends to consist of “highly individualized decisions.” Theodore J. Lowi, “American Business, Public Policy, Case-Studies, and Political Theory,” 16 World Politics 677, 689-90 (1964).

124. See, inter alia, Hurst, Legitimacy of the Business Corporation, supra, note 28.

125. Id. at 34-38 et passim; also, Friedman, supra, note 18, ch. 3; Scheiber, Ohio Canal Era, at 271-290; and, on the history of the movement for general incorporation laws, Walter Hugins, Jacksonian Democracy and the Working Class (1960); and Edward Pessen, Jacksonian America (1969). Cf., inter alia, Edwin M. Dodd, American Business Corporations Until 1860 with Special Reference to Massachusetts (1954).

126. The early history of turnpikes and other public and private transport investment may be followed in Curtis P. Nettels, The Emergence of a National Economy 1775-1815 ch. 12 (1962); and George Rogers Taylor, The Transportation Revolution 1815-1860, chs. 2-3 (1951).

127. Goodrich, supra, note 4. The following is an estimate, based on observed data and on allocation procedures, of canal investment to 1860: 1815-34, total investment $58.6 million, of which 70.3% was public; 1834-44, total $72.2 million, of which 79.4% was public; and 1844-60, $57.4 million total, of which 66.3% was public. Source: Harvey Segal, “Cycles of Canal Construction,” in Canals and American Economic Development 215 (Goodrich ed. 1962).

128. Scheiber, Ohio Canal Era, ch. 9 treats the Transportation Revolution's “second phase.” See also James Mak and Gary M. Walton, “Steamboats and the Great Productivity Surge in River Transportation,” 32 J. Econ. Hist. 619 (1972).

129. Hill, supra, note 6 treats the Army Engineers' role in conducting surveys; Paul W. Gates, The Illinois Central Railroad and its Colonization Work (1934) treats the 1850 grant. During 1852-57 Congress granted land to ten states, which in turn granted it to over forty railroads. Cf. Taylor, supra, note 126, at 96. On the rivers, cf. Isaac Lippincott, “A History of River Improvement,” 22 J. Pol. Econ. 630 (1914).

130. Scheiber, Ohio Canal Era, chs. 1-3; Miller, supra, note 6; Hartz, supra, note 4.

131. I have considered this more fully in my article “Government and the Economy,” supra, note 4 at 137-43.

132. Cf. Handlin & Handlin, supra, note 4 at 180-181, 224. That pressures on the state governments were particularly effective because state administration was “underdeveloped” is argued in Goodrich, “American Development Policy: The Case of Internal Improvements,” 16 J. Econ. Hist. 456-57 (1956).

133. On Virginia, which pioneered in “mixed enterprise,” see Goodrich, “The Virginia System… . State Planning of' Internal Improvements,” 64 Pol. Sci. Q. 355 (1949); on Louisiana, Merle Reed, New Orleans and the Railroads: The Struggle for Commercial Empire 1830-1860 (1966); and on other southern states, Goodrich, supra note 4.

134. The enormous diversity, from one state to another, in railroad policies may be traced in Goodrich, supra note 4; Taylor, supra note 81, ch. 5; and the monographs on individual states. A particularly rich treatment of railroad policy in its many dimensions is provided by Hurst, Law and Economic Growth, at 270-281.

135. Ohio report of 1848, quoted in Scheiber, Ohio Canal Era at 254-55. Id., chs. 10-11, treats market allocation and state rate-making generally.

136. Scheiber, “Road to Munn,” supra, note 12, at 336-343; Horwitz, supra, note 13, at 251-62; Angell, A Treatise on the Law of Watercourses 547-65 (5th ed. 1854); Anon., “The Law of Water Privilege,” 2 Am. Jurist & Law Mag. 25-38 (1829).

137. In New Jersey, e.g., meadow-owners had maintained facilities under a colonial act of 1760 for nearly a century when the state challenged their standing. Glover v. Powell, 2 Stockton 211, 229 (N.J. Chanc., 1854).

138. Scheiber, “Road to Munn,” supra, note 12, at 364-65; Commonwealth v. Coombs, 2 Mass. 489 (1807); Singleton v. Commissioners, 2 Nott & McC. 526, 528 (S.C. 1820); State v. Dawson, 3 Hill 428, 431 (S.C. 1835). Pennsylvania constituted a special case in the early national period of eminent domain law, as colonial land grants from William Penn had included gratis 6 per cent surplus acreage. This was intended, in effect, as advance compensation for any property that might be taken for roads. Cf. McClenachan v. Curwin, 3 Yeates 362 (Pa., 1802); and discussion in William B. Stoebuck, “A General Theory of Eminent Domain,” 47 Wash. L. Rev. 553, 558-59 (1972).

140. Rogers v. Bradshaw, 20 John R. 735, 740 (N.Y. 1823).

141. See citations in note 139, supra.

142. Thayer, supra, note 93; Scheiber, “Road to Munn,” supra, note 13, at 367-68.

143. Scheiber and McCurdy, supra, note 15, at 112-30.

144. Boston & Roxbury Mill Dam Corp. v. Newman, 12 Pick. 467, 480 (Mass. 1832).

145. Sinnickson v. Johnson, 2 Harr. 129, 141 (N.J. Sup. Ct. 1839).

146. Beekman v. Saratoga & Sch. Railroad, 3 Paige 45, 73 (N.Y. Chanc. 1831). Cf. Scudder v. Trenton & Del. Falls Co., 1 N.J. Eq. 694 (1832), that “the ever varying condition of society is constantly presenting new objects of public importance and utility; and what shall be considered a public use or benefit, may depend somewhat on the situation and wants of the community for the time being.” [Emphasis added.] New York State early drew the line against the legislature's developing of eminent domain powers on private parties to expedite their building of “private roads” (not open to the public); Pennsylvania law moved the other way, authorizing such takings. Taylor v. Porter, Hill 140, 142 (N.Y. 1843); Harvey v. Thomas, 10 Watts 63, 143 (Pa., 1840); cf. Edward S. Corwin, “Due Process of Law before the Civil War,” American Constitutional History: Essays 46, 50-51. (Mason & Garvey eds. 1964). The conflicting rules in New York and Pennsylvania were the subject of an influential and much-studied article, Anon., “The Security of Private Property,” 1 Am. Law Mag. 318 (1843); it is analyzed at length in Howard J. Graham, “Procedure to Substance: Extrajudicial Rise of Due Process 1830-1860,” Everyman's Constitution 242, 260-63 (1968).

147. Friedman, supra, note 18, chs. 3, 5-6; Levy, supra note 21, chs. 10-13; Hurst, Law & Economic Growth, supra note 4, Pt. III; Bray Hammond, Banks and Politics in America from the Revolution to the Civil War, passim (1957).

148. Joseph Story, “Life of Chief Justice Marshall,'* 6 Am. Law Mag. 294 (1846); essentially the same article appeared as An Address by Mr. Justice Story on Chief Justice Marshall … (repr. 1900; the quotation given is from this pamphlet edition at 45-46).

149. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy 1607-1900, 278-79, (1974), quoting Webster in 1827. Another Congressman referred to a kind of “border war” between New York, with its insolvency laws, and Massachusetts, with its attachment laws (quoted Id. at 279).

150. Cf. Julius Rubin, Canal or Railroad? Imitation and Innovation in the Response to the Erie Canal (Amer. Phil. Soc, Transactions, new ser., 51, pt. 7, 1961); Scheiber, Ohio Canal Era, supra, note 4, ch. 1; Goodrich, supra, note 4, chs. 3-4.

151. See Charles McCurdy, “Stephen J. Field and Public Land Law Development in California, 1850-1866: a Case Study of Judicial Resource Allocation in Nineteenth Century America,” 10 Law & Society Review, forthcoming.

152. Hurst, Law & Economic Growth, supra, note 4, at 53 et passim.

153. Joseph Ellison, “The Currency Question on the Pacific Coast during The Civil War,” 16 Miss. Valley Hist. Rev. 50 (1929). In Perry v. Washburn, 20 Calif. 319 (1862), the state court ruled that the national Legal Tender Act did not affect the state's own requirement that local taxes be paid in specie; cf. Lick v. Faulkner, 25 Calif. 404 (1864), ruling on state legislation of 1863 that sought to circumvent the Legal Tender Act regarding private debts. The Perry ruling was upheld in Lane County v. Oregon, 7 Wall. 71 (U.S. 1868); cf. Charles Fairman, Reconstruction and Reunion 1864-88 (Part I) at 701-704 (Oliver Wendell Holmes Devise History of the U.S. Supreme Court, VI, 1971).

154. Cf. George D. Green, Finance and Economic Development in the Old South: Louisiana Banking 1804-1861, at 78 (1972). “Forbidden to issue notes, Iowa private bankers soon responded to demands for the creation of purchasing power by securing control of banks outside the state and circulating such notes through their Iowa offices.” Erling A. Erickson, Banking in Frontier Iowa 1836-1865, at 62 (1971).

155. See Henderson, supra, note 56, ch. 6. I have in progress a study of “antiforeignism” and its effects in the pre-1860 period.

156. Cf., for example, Frederick Merk, “Eastern Antecedents of the Grangers,” 23 Agric. Hist. 1 (1949); Scheiber, Ohio Canal Era, ch. 11. For a few years, New York State—with an enormous interest to protect in the high-revenue-producing Erie Canal—constituted an exception and imposed well-enforced controls on railroad freight operations. Cf. David M. Ellis, “Rivalry between the New York Central and the Erie Canal,” 29 N.Y. Hist. 268, 271-76 (1948).

157. Scheiber, Ohio Canal Era, ch. 11; see also Miller, supra, note 7, for data on the 1860s that illustrate on identical pattern of political forces.

158. Davis and Legler, “The Government in the American Economy, 1815-1902: A Quantitative Study,” 26 J. Econ. Hist. 514, 532-33 et passim (1966).

159. Texas v. White, 7 Wall. 700 (1869).

160. Ibid. at 725. For a full discussion, see Fairman, supra, note 153, at 628ff.

161. Fairman, supra, note 153, is the fullest scholarly discussion of these issues. For a brilliant analysis of the Civil War and Reconstruction questions as they affected American federalism, see Harold M. Hyman, A More Perfect Union: The Impact of Civil War and Reconstruction on the Constitution (1973). Stanley I. Kutler, Judicial Power and Reconstruction Politics (1968) is a seminal work, but of narrower scope.

162. Paul v. Virginia, 8 Wall. 168 (1869).

163. Id. at 181.

164. Cf. Corwin, supra, note 97, at 170ff.; Hyman, supra, note 161, at 398ff.; John Roche, “Entrepreneurial Liberty and the Commerce Power,” 30 U. Chi. L. Rev. 691 (1963); F.D.G. Ribble, State and National Power over Commerce 81-85 (1937) et passim. Charles McCurdy's doctoral dissertation on Stephen J. Field (in progress, Univ. of Calif., San Diego) contains an incisive analysis of the commerce power.

165. Wabash, St. Louis & Pac. Railway Co. v. Illinois, 118 U.S. 557 (1886). This landmark decision reversed earlier doctrine; see text at n. 180, infra.

166. Pensacola Telegraph Co. v. Western Union, 96 U.S. 1 (1877). Cf. Charles Fairman, “What Makes a Great Justice?” 30 B.U.L. Rev. 49, 68 (1950); Henderson, supra, note 56, at 114-16 (that it was with this case “that the real struggle between state transportation monopolies and the Commerce Clause took place”); Hyman, supra, note 161, at 407-409.

167. Pensacola Telegraph Co. v. Western Union, 96 U.S. 1, 9 (1877).

168. Wabash Railroad v. People, 105 Ill. 236, 239 (1883) (Walker, J., concurring).

169. See Louis W. Koenig, “Federal and State Cooperation under the Constitution,” 36 Mich. L. Rev. 752, 759-60 (1938); Jos. E. Kallenbach, Federal Cooperation with the States Under the Commerce Clause (14 Univ. of Michigan Publications: History & Political Science, 1942).

170. Supra, note 110. Also, Mitchell Wendell, Relations Between the Federal and State Courts, 150ff., esp. at 153. (Columbia Univ. Studies in the Social Sciences, No. 555, 1949, repr. 1968).

171. Pine Grove Township v. Talcott, 19 Wall. 666 (1873). In Gelpcke v. Dubuque, 1 Wall. 175 (1863), a decade earlier, the Court ruled that contracts valid under prevailing state-court rulings would have to be honored (under the federal contract clause) even if state judicial rules were later changed. Like the Pine Grove decision of 1874, Gelpcke involved bond issues in aid of railroad projects. There followed an intense, six-year confrontation of Iowa's state court with the Supreme Court and lower federal courts. Cf. Wendell, supra, note 170, at 156-159; and Fairman, supra, note 153, at 935ff.; Scheiber, “Road to Munn,” supra, note 13, at 391-95.

172. Pine Grove Township v. Talcott, 19 Wall. 666 at 678 (1873). Pine Grove presented the more formal issue of general jurisprudence on a factual foundation not previously confronted by the Supreme Court: for in Michigan there had been no state judicial rule handed down on the validity of railroad bond aid prior to the 1870-71 rulings against the constitutionality of taxation for bond-aid purposes (see cases cited at note 174, infra). Cf. Fairman, supra, note 153, at 1011.

173. Cooley, Treatise on Constitutional Limitations (1868). Cf. Clyde Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon (1954); and Alan Jones, “Thomas M. Cooley and the Interstate Commerce Commission: Continuity and Change in the Doctrine of Equal Rights,” 81 Pol. Sci. Q. 602, 607-9 (1966), an important revisionist article bringing to light Cooley's belief that state intervention too easily becomes “an instrument whose office is to protect the rich in the advantages they have secured” (quoted, Id. at 608). Similarly, Justice Miller—who also became a proponent of implied limitations on the reach of “public purpose” doctrine in its instrumentalist mode-feared that the wealthiest propertied elements, especially railroad investors and directors, gained the benefits of bond-aid subsidies. (Charles Fairman, Mr. Justice Miller and the Supreme Court 1826-1890 67, 207-8, [1939]). To this extent, then, a blanket view of implied limitations as “conservative” in intent and effects must be modified.

174. People v. Salem, 20 Mich. 452, 473 (1870); also, People v. State Treasurer, 23 Mich. 499 (1871); Thomas v. City, 27 Mich. 320 (1873).

175. Loan Association v. Topeka, 20 Wall. 655 (1874).

176. Id. at 663-64. Scheiber, “Road to Munn,” supra, note 13, at 385-97, seeks to delineate the interrelationships of judicial rulings on “public purpose” in regulatory law, general jurisprudence, and taxation law.

Fairman, supra, note 153, at 1101, asserts: “That municipal aid was not allowed to spread from railroads to other privately owned enterprises was largely the result” of the Loan Association decision. Fairman's contention must be qualified, however, to take account of the decision in Burlington v. Beasley, 94 U.S. 310 (1877), a case decided at the same time as Munn v. Illinois, 94 U.S. 113 (1877). In Beasley, the Court ruled that a state might authorize public bond aid to subsidize a privately owned gristmill, holding that—like railroads—mills of this sort were “quasi-public” and under the Munn doctrine their tolls were subject to regulation. See Bruce Wyman, “The Law of Public Callings” (Pt. 2) 17 Harv. L. Rev. 217, 219 (1904); and Scheiber, “Road to Munn,” supra, note 13, at 397-98.

177. Charles McCurdy, “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-faire Constitutionalism, 1863-1897,” 41 J. Am. Hist. 970, 981ff (1975). Also, Edward S. Corwin, “The Supreme Court and the Fourteenth Amendment,” 7 Mich. L. Rev. 643 (1909), and works cited in following note. McCurdy's study provides an entirely fresh reinterpretation of these issues.

178. Cf. Arnold M. Paul, The Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench 1887-1895 (1960); Sidney Fine, Laissez Faire and the General Welfare State: A Study of Conflict in American Thought 1865-1901, ch. 5 (1956); Walton H. Hamilton, “The Path of Due Process of Law,” in The Constitution Reconsidered (Read ed. 1938).

179. Hyman, supra, note 161, at 375-79; Anwar Syed, The Political Theory of American Local Government chs. 3-4 (1966).

180. Munn v. Illinois, 94 U.S. 113 (1877); Chicago, etc. R.R. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago, etc. R.R., 94 U.S. 164 (1877); Chicago, etc. R.R. v. Ackley, 94 U.S. 179 (1877); Winona & St. P. R.R. v. Blake, 94 U.S. 180 (1877); Stone v. Wisconsin, 94 U.S. 181 (1877).

181. As described by Justice Bradley, in The Sinking Fund Cases, 99 U.S. 700, 747 (1878). Compare the views of Judge Ryan of the Wisconsin court, in A.J. Beitzinger, Edward G. Ryan, Lion of the Law ch. 9 (1960).

182. See text at note 165, supra.

183. Fine, supra, note 178, at 149-164, 352-362; and McCurdy, supra, note 177, at 977-81.

184. Insurance Co. v. Morse, 20 Wall. 445 (1874). The exceptional cases of interstate commerce and federal agents are discussed, with citations, in Hooper v. California, 155 U.S. 648, 652 (1894); and Horn Silv. Min. Co. v. New York, 143 U.S. 305, 314-15 (1891).

184a. Doyle v. Continental Ins. Co, 94 U.S. 535 (1877). Cf. Phila. Fire Assoc. v. New York, 119 U.S. 110 (1886), validating the state's power to change the terms upon which it admitted a foreign corporation to do business, in this instance through imposition of a new discriminatory franchise tax. Hooper v. California, 155 U.S. 648 (1894) upheld the state's power to impose any conditions it deemed proper upon the agents of a foreign corporation as well as upon the corporation directly. Post-1906 doctrinal changes are discussed in Henderson, supra, note 56, at 132ff.; and Robert Hale, “Unconstitutional Conditions and Constitutional Rights,” 35 Colum. L. Rev. 321, 329-336 et passim (1935). Southern Rwy. v. Greene, 216 U.S. 400 (1909), definitively abridged the authority of a state to impose a discriminatory tax upon a foreign corporation.

185. Scheiber, supra, note 14, at 247-48. The decision in Transp. Co. v. Chicago, 99 U.S. 635 (1878) reaffirmed tort-immunity and compensation doctrines that were supportive of state authority and effectively reduced costs in eminent domain takings. See also Searl v. School Dist., 133 U.S. 553 (1890). Clark v. Nash, 198 U.S. 361 (1905) reaffirmed in the strongest terms the power of a state to determine “public purpose” and authorize takings, even to benefit a private enterprise so common as farming, if deemed necessary by the state to irrigated agriculture in an arid region. Hairston v. Danv. & W. R.R., 208 U.S. 598 (1908) reaffirmed the states' power to declare what activities constituted a “public purpose.” Cf. Scheiber, supra, note 13, at 12-18; and Miller, “Shaping California Water Law,” 55 S. Cal. Q. 9 (1973).

186. Louis M. Hacker, The Course of American Economic Growth and Development 180-92 (1970); Hyman, supra, note 161, at 380-81; Leonard P. Curry, Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (1968); Harry N. Scheiber, “Economic Change in the Civil War Era,” 11 Civil War Hist. 396, 407-11 (1965).

187. Fine, supra, note 178, chs. 10-11.

188. This paragraph follows closely my Condition of American Federalism, supra, note 2, at 7.

189. 28 U.S. Stats. 422 (Aug. 18, 1894). On the Newlands Act, see also note 191, infra.

190. 31 U.S. Stats. 187 (May 25, 1900) (Lacey Act); Lottery Act, 18 U.S. Stats. 963, c.191 (March 2, 1895), upheld in Champion v. Ames, 188 U.S. 321 (1903); Mann (White Slave Traffic) Act, 36 U.S. Stats. 825 (June 25, 1910); upheld in Caminetti v. U.S., 242 U.S. 470 (1916).

191. Matching funds requirements and federal inspection began with the 1911 Forests Act. On this and on cash grants, cf. Scheiber, supra, note 2, at 7. Also of signal importance in the new pattern of intergovernmental relations was the 1902 Newlands Act, because it dedicated revenue from land sales in the western states to a Revolving Fund (or Reclamation Fund) that served as an independent source of financing for irrigation and related public works. Cf. Gates, History of Public Land Law Development, supra, note 5, at 654-55. In 1916 the newly enacted program of highway aid elaborated the state-planning and federal-inspection techniques. See James A. Maxwell, The Fiscal Impact of Federalism in the United States 187 (1946).

192. The effects of professionalization are a main theme in Walter K. Ferguson, Geology and Politics in Frontier Texas 1845-1909 (1969); Nash, supra, note 4, at chs. 9, 11; Oscar E. Anderson, Health of a Nation: Harvey W. Wiley and the Fight for Pure Food (1958); Hays, supra, note 6, passim. The history of USDA research and professionalization is found in Century of Service: The First 100 Years of the U.S. Dept. of Agriculture (USDA Yearbook 1963); and John M. Gaus and L. O. Wolcott, Public Administration and the U.S. Department of Agriculture (1940).

193. Miller, supra, note 7; Frederick Merk, “Eastern Antecedents of the Grangers,” 23 Agric. Hist. 1 (1949), on pro-rata laws of the 1850s; Scheiber, Ohio Canal Era, at ch. 11; Charles Fairman, “The So-Called Granger Cases, Lord Hale, and Justice Bradley,” 5 Stan. L. Rev. 587 (1958); Gabriel Kolko, Railroads and Regulation 1877-1916, chs. 1-2 (1965).

194. R. L. Nelson, Merger Movements in American Industry 1895-1956 (1959), on mergers in the 1890s; William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act 59-70 (1965), on legislation in the states prior to 1890. Cf. Alfred D. Chandler, Jr., “The Beginnings of ‘Big Business’ in American Industry,” 33 Bus. Hist. Rev. 1 (1959), for macroeconomic historical analysis of basic changes in the U.S. market that established the conditions for giant corporate enterprise in the late 19th century, and analysis of varied responses by management to these changes.

195. Carter Goodrich, “Local Government Planning of Internal Improvements,” 57 Pol. Sci. Q. 411 (1951); Harry H. Pierce, Railroads of New York: A Study of Government Aid 1826-1875 (1953); Edward C. Kirkland, Industry Comes of Age: Business, Labor, and Public Policy 1860-1897, 65-68 (1961).

196. The Supreme Court validated some types of public bond aid to private enterprises, while it ruled that other types were unconstitutional on Fourteenth Amendment grounds. See note 176, supra, on Burlington v. Beasly, 94 U.S. 310 (1877), upholding public aid to mills by Kansas, distinguishing Loan Association v. Topeka, 20 Wall. 655 (1874) (invalidating public aid to an iron-bridge company). Cf. Edward S. Corwin, “Judicial Review in Action,” 74 U. Pa. L. Rev. 669 (1926). For analysis of Supreme Court doctrine on eminent-domain-power devolution as another form of aid to private enterprise, cf. Dayton D. McKean, “Constitutional Limitations upon the Power of Eminent Domain,” 6 Rocky Mt. L. Rev. 16 (1933).

197. On the vital importance of extractive industries in the West, see Eric Lampard's study “Regional Economic Development, 1870-1950,” in Harvey Perloff et al., Regions, Resources, and Economic Development (1960), 138-39, 181, 190.

198. Scheiber and McCurdy, supra, note 15, at 112-30; Scheiber, supra, note 14, at 243-48; Gordon M. Bakken, “The Impact of the Colorado State Constitution on Rocky Mountain Constitution Making,” 47 Colo. Mag. Hist. 152-175 (1970); Samuel C. Wiel, Water Rights in the Western States, ch. 8 (1911).

199. Samuel C. Wiel, “Fifty Years of Water Law,” 50 Harv. L. Rev. 252-304 (1936). In Devine v. Los Angeles, 202 U.S. 313 (1906) and Los Angles Farming & Milling Co. v. Los Angeles, 217 U.S. 217 (1910), the Supreme Court held decisions of the state courts to be final on questions of property right in water, even in disputes deriving from definition of rights while the territory was controlled by a foreign power prior to American conquest. Cf. W.J. Burkey, “The Origin, Growth and Function of the Law of Water Use,” 10 Wyo. L. J. 95, 109 (1956). See also Ira G. Clark, “The Elephant Butte Controversy: A Chapter in the Emergence of Federal Water Law,” 61 J. Am. Hist. 1006, 1008-14 (1975); and citations in note 185, supra.

200. Nash, supra, note 4; James A. Lake, Law and Mineral Wealth: The Legal Profile of the Wisconsin Mining Industry, ch. 6 (1962); Fred A. Shannon, The Farmer's Last Frontier: Agriculture 1860-1897, 268-270, 272-282 (1963); Gilbert C. Fite, The Farmers' Frontier 1865-1900, 25-29, (1966); Kirkland, supra, note 195, at 143-48.

201. Penna. Coal Co. v. Sanderson, 113 Pa. 126, 149 (1886).

202. Woodruff v. North Bloomfield Gravel Min. Co., 18 F. 753 (D. Cal. 1884); cf. Hill v. Standard Min. Co., 12 Idaho 223, 85 P. 907 (1906). The California controversy and its legal history are considered fully in Robert Kelley, Gold vs. Grain: The Hydraulic Mining Controversy in California's Sacramento Valley (1959).

203. Hurst, Law and Economic Growth, at 455.

204. Friedman, supra, note 2, at 295-299; Robert Weibe, The Search for Order, 1877-1920 at 127-132 (1967).

205. A leading western historian has written of the region's states in the late 19th century: “Within their jurisdictions, the lords of the rails ruled as probably only the Du Ponts have ruled in Delaware or the copper magnates in Montana.” Earl Pomeroy, The Pacific Slope: A History of California, Oregon, Washington, Idaho, Utah and Nevada (1965), 99. Cf. James E. Wright, The Politics of Populism (1974).

206. Harold E. Briggs, Frontiers of the Northwest: A History of the Upper Missouri Valley, 269-74 (1940); W. Turrentine Jackson, “The Wyoming Stock Growers' Association,” 33 Miss. Valley Hist. Rev. 571 (1947); E.S. Osgood, The Day of the Cattleman, ch. 5 (1929). The Wyoming legislature devolved upon the Stock Growers' Association the power to conduct and oversee the state's annual roundup. Small cattlemen complained that the Association, dominated by the largest ranchers, used the roundup as an instrument not for honest exercise of a public trust so much as for the stealing of unbranded cattle from small operators. In a 19th-century western variant of the current-day shootout over malpractice insurance and oversight of medical standards, the Wyoming people resorted to six-gun and bullwhip. See Sydney B. Spiegel, “Who Were the Cattle Rustlers? A Look at the Johnson County War in Wyoming,” 49 Soc. Studies 222 (1958).

207. See text, supra, at notes 164,184.

208. See, inter alia, Stanley C. Hollander, “Nineteenth Century Anti-drummer Legislation in the U.S.,” 38 Bus. Hist. Rev. 479 (1964); also McCurdy's dissertation, supra note 164.

209. Ill. Laws 234, § 20 (March 26, 1869), upheld, Ins. Co. v. Swigert, 104 Ill. 653 (1882); see also Ill., Attorney-General, Annual Report 1882, at 13. Cf. Ducat v. Chicago, 10 Wall. 410 (1870).

210. Phila. Fire Assoc, v. New York, 119 U.S. 110, 129 (1886); the background is given in Henderson, supra, note 56, at 106-7.

210a. Spencer L. Kimball, Insurance and Public Policy: A Study in the Legal Implementation of Social and Economic Public Policy, Based on Wisconsin Records, 1835-1959, 260-69 (1960). But cf. Kimball's contention that reciprocity and discrimination in tax law was the exception to the general trend in public policy, so that “after 1900, localism was a submerged factor… .” Id. at 280. Recently published research by B. Michael Pritchett has shown how the western and southern states in fact received fewer benefits (indicated by the location of insurance-company investments and of their premium payments) than did other regions. In response to their contemporary understanding of this phenomenon, southern business spokesmen and insurance commissioners called for laws to require insurance companies to invest their funds in the states where they collected their premiums, in proportion to such collections. Pritchett, “Northern Institutions in Southern Financial History: A Note on Insurance Investments,” 41 Jnl. So. Hist. 391 (1975). Cf. the polemic by South Carolina's insurance commissioner, Fitz Hugh McMaster, Life Insurance Companies Should be Compelled to Invest in the Securities of those States in which the Funds Originate (1914), copy in Library of Congress.

211. Moger, “Railroad Practices and Policies in Virginia after the Civil War,” 59 Va. Mag. Hist. & Biog. 423, 432ff. (1951). For other vivid evidence of the substate and interstate rivalries that shaped railroad policy in this era, see G. L. Anderson, General William Palmer: A Decade of Railroad Building in Colorado (1936); P. W. Gates, Fifty Million Acres: Conflicts over Kansas Land Policy 1854-1890 (1954); K. L. Bryant, Arthur E. Stilwell: Promoter with a Hunch, ch. 4, (1971); John F. Stover, The Railroads of the South, 1865-1900: A Study in Finance and Control, chs. 6-11, (1955).

212. Hurst, Legitimacy of the Business Corporation, at 69-73; William C. Kessler, “Business Organization and Management,” Growth of the American Economy 610 (Williamson ed. 1951); Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition, 256-58 (1954).

213. Jack Blicksilver, Cotton Manufacturing in the Southeast: An Historical Analysis, 16-20, 28-32 (Georgia State College of Business Administration, Studies in Business and Economics, Bull. #5, 1959).

214. Text at notes 167-168, supra.

215. See, inter alia, Gabriel Kolko, The Triumph of Conservatism (1963); and Robert Wiebe, Businessmen and Reform (1962).

216. Thus the Senate Committee on Interstate Commerce, considering the Interstate Commerce Act draft bill, reported in January 1886 that it had “found among the leading representatives of the railroad interests an increasing readiness to accept the aid of Congress in working out the solution of the railroad problem.” Quoted in Kolko, supra, note 193, at 39. See also Id. at 15-16, 34-44. A similar movement occurred in the insurance industry. Confronted with increasingly severe state regulation, many leading insurance company executives came to favor Federal regulation. Although they won President Theodore Roosevelt to their point of view, and a powerful move was made in Congress to obtain a national law, their campaign was blocked by conservative as well as reform opposition. Morton Kellar, The Life Insurance Enterprise, 1885-1910: A Study in the Limits of Corporate Power 227-42 (1963).

217. Herbert G. Gutman, “The Worker's Search for Power: Labor in the Gilded Age,” The Gilded Age: A Reappraisal (Morgan ed. 1963).

218. Vernon H. Jensen, Heritage of Conflicts Labor Relations in the Nonferrous Metals Industry up to 1930, 23-24, 32, 59 et passim (1950), Rhodri Jeffrey-Jones, “Violence in American History: Plug Uglies in the Progressive Era,” 8 Perspectives in Am. Hit. 465, 533 et passim; Philip Taft and Philip Ross, “American Labor Violence: Its Causes, Character, and Outcome,” in Violence in America: Historical and Comparative Perspectives, I, 221 (Graham & Gurr, eds. 1969).

219. In re Debs, 158 U.S. 564 (1894); cf. Paul, supra, note 178, ch. 7.

220. Of course, appeal to the national government for redress of an unfavorable state-level situation was open also to “reform” groups seeking more effective regulation of business interests or seeking uniform national standards as a way around “competition in laxity.” Classic examples are the movements for child-labor reform and for national pipeline regulation: Cf. S.B. Wood, Constitutional Politics in the Progressive Era: Child Labor and the Law (1968); Arthur Johnson, The Development of American Petroleum Pipelines, … 1862-1906, chs. 9-10 (1956).

221. Cf. Thomas C. Cochran, “The Paradox of American Economic Growth,” 61 J. Am. Hist. 925, 934 (1975).

222. The present work is limited to the period up to 1910. I plan to deal with the modern period in a forthcoming book on the history of American federalism.