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American Legal History
South Texas College of Law Houston
Steiner, Mark E.

American Legal History Outline
Spring 2007
Professor Steiner
Cited to Hall, Finkelman, and Ely’s American Legal History: Cases and Materials (3rd Ed.)
I)      The Beginnings of American Law to 1760. 1
II)        Law in a Republican Revolution, 1760-1815. 4
III)       The Law Practice of Abraham Lincoln. 7
IV)       The Active State: Law and Capitalism, 1812-1860. 8
V)        19th Century Law and Society. 10
VI)       Texas Legal History. 12
VII)            Slavery, The Civil War, Reconstruction and Segregation. 14
VIII)                Nineteenth Century Law and Society, 1800-1908 18
IX)            Lawyers and the Rise of the Regulatory State, 1850-1920 19
X)        WW I, Civil Liberties and Civil Rights. 21
XI)       The Rise of Legal Liberalism and The New Deal, 1900-1945 22
XII)            Japanese Internment, Criminal Justice and Civil Liberties. 24
XIII)        The Liberal State and Public Law.. 26
I)       The Beginnings of American Law to 1760
A)    Introduction of Law
1)      As Applicable – English law was adopted in the US as it was appropriate and applicable. 
(a)    Geography – the varied geography in the US created varied laws. 
2)      Localities – local variations of English law were present in the US depending on where the settlers were from.
3)      No Scholars – settlers who established US law weren’t legal scholars; they implemented that which they understood, as they understood it.
B)     Early American Law
1)      Magna Carta (1215) –
(a)    Limited king’s power and served as a check on arbitrary enforcement.
(b)   Gave Englishmen (and later to some extent, serfs) certain definite rights
(c)    Traceable to many US Amendments in the Bill of Rights.
2)      Dale’s Law (Virginia Colony, 1611) – Martial Law
(a)    Death penalty for everything
(b)   Regulated every part of your life and strictly enforced religious observances
3)      Massachusetts Bay Colony (~1620s) – Winthrop
(a)    Compact Theory & implied consent to the laws by you being there
(b)   Dramatically different than Dale’s Law
(c)    Rule of Law – no deprivation of anything unless under a law
(d)   Laws based on the 10 commandments.
4)      Rhode Island (~1640s) – Roger Williams (very progressive)
(a)    Argued that you should buy land from Indians
(b)   Separation of church/state – government is civil, not religious
(c)    Full religious liberty and no state church (different from most places)
(d)   Adoption Statute – we will adopt the laws of England as applicable here.
C)    The Beginnings of Constitutionalism in America (12)
1)      Compact Theory – the idea that society should be arranged as per a compact where all citizens agree to give up some rights for the benefit of all.
(a)    Mayflower Compact, 1620 – the Calvinist Pilgrims agreed amongst themselves how they would be ruled and gave themselves the right to settle (they were actually supposed to settle in Virginia)
2)      Constitutionalism – written constitution to run the country off of, including rule of law, limited government – started appearing in the 1600s.
D)    The Glorious Revolution (32)
1)      Established that the English king had to abide by parliament’s rules
2)      Case of the 7 Bishops – Seditious libel case that established limitations on what the king could do and the right to petition the king.
3)      English Bill of Rights –
(a)    King can’t suspend laws or create laws arbitrarily without parliamentary consent.
(b)   Some jury trials
(c)    Some basic rights (no excessive bail, freedom of speech, etc)
E)     The Sources of Law in America (37)
1)      Locke – 2nd Treatise of Civil Government, 1690
(a)    The power of the government comes from the governed giving up some of their rights, and thus, the government is naturally limited t

– Virginia started slavery and it is really entrenched by 1660
(b)   Growth – there is a tremendous jump in the number of slaves between 1660 and 1750.
(c)    Mulattos – still slave (as per the mother)
(d)   Encouragement – in the south there were some statutes where a trader could avoid some duty charges by paying for their tobacco in slaves.
(e)    Murder – killing a slave wasn’t a crime because who would maliciously (criminally) kill their own property?
(f)     Protest – Germantown Protests, 1688
(i)      First known protest
(ii)    Objected purely on moral and religious grounds
(g)    Slave Laws
(i)      By 1740, the basic characteristics of slave laws had been established (see South Carolina Slave Code)
(ii)    Such laws were cruel and were justified on religious grounds
(iii)   Due Process – slaves got some due process
(iv) Cruelty – had some limitations on cruelty to slaves
(v)    Killing – fines for killing a slave (yours or another’s)
(vi) Reading – fines for teaching a slave to read
7)      Colonial Welfare System
(a)    The colonial state attempted to give relief to the poor, however, the laws were more meant to either make the family take care of their own, or kick the poor out of town.
(b)   Badge – the poor had to wear a badge indicating their poorness
(c)    Criminalization – essentially, being poor was viewed as a crime
8)      Class Stratification
Sumptuary Laws – attempts to keep poor people from behaving, dressing, etc. like the rich (IE taxing you per how you dressed).