The dominant theme of American land law was that land should be freely bought and sold. For this reason, lawyers, judges, and legislatures—and the landowning public—had gone to great pains, in the years after Independence, to untie the Gordian knots of English land law. Law had to fit the needs of those in a big, open country, who thought they lived in a land of abundance, a land with huge tracts of vacant land. (That there were native people living on some of this land was either ignored or ruthlessly dealt with.) For the settlers, land was the basis of wealth, the mother of resources and development. As the frontier moved farther west, land law followed at a respectable distance. The land itself was transformed from wilderness to farm or industrial land; from vacant sites to towns to cities. The land law, too, passed through phases of development. A state like New York had conditions different from Wyoming, and its land law reacted accordingly. Some of these differences in land and resource law, though never eliminated, tended to weaken over time. Colonial history in a way repeated itself; relatively rude, relatively simple land law, in the new settlements, changed to more complex, more sophisticated law, chiefly because more sophisticated law became more relevant to conditions.
For example, there was never much question that American law would absorb the concept of the fixture, with its attendant rules. A fixture is an object attached to the land. It is legally treated as part of the land. This means that sale of the land is automatically sale of its fixtures. A building is par excellence something attached to the land. Yet, in Wisconsin in the 1850s, a court decided in one case that a barn in Janesville, in another, the practice hall of the “Palmyra Brass Band,” were not fixtures at all, but chattels, that could be detached from the land.1 These were flimsy, temporary buildings; the cases simply recognized what was a local and transient condition.
Older doctrines did not last if they seemed not to fit the American ethos. The law of property became vigorously pro-enterprise: for example, the doctrine of nuisance in the late nineteenth century was bent to the needs of entrepreneurs who were using the land; private homeowners suffered.2 In England, “uninterrupted enjoyment” could give a landowner an easement of light and air. In other words, a landowner whose land had a pleasant, open view had a right to keep things that way; he could block his neighbor from putting up a building that would block his view and impair this easement. Especially in towns and cities, this doctrine was out of place—or so the courts thought. America was bent on economic growth—on trying to promote, not curb, the intensive use of land. Chancellor Kent thought the rule did not “reasonably or equitably apply…to buildings on narrow lots in the rapidly growing cities in this country.” “Mere continuance of…windows,” according to a Massachusetts law (1852), did not give an easement “of light and air” so as to keep an adjoining landowner from building on his land.3 By the late nineteenth century, virtually every state had rejected this easement.4
In contrast, the states eagerly embraced the doctrine of adverse possession. Under this doctrine, if a person occupied land that belonged to somebody else, and did it openly and notoriously, and for a certain number of years, the actual title to the land shifted to the person in possession. The old owner lost his rights.5 Western states, in particular, passed laws that made it easier to get title through adverse possession. They shortened the “adverse” period of time. Traditionally, the period had been twenty years; this shrank to five under the Nevada territorial laws of 1861.6 To get the benefit of the doctrine, the settler had to show a house, a fence, a pastoral or pasturage use, or some other sign that he had actually used the land. Quite a few court cases turned on the question of what was enough possession to constitute “adverse possession.”
On the surface, the doctrine of adverse possession seemed to favor settlers against absentee owners. Western land law seems to support this explanation. On the other hand, some evidence points in a different direction. In some states, starting with Illinois in 1872, an adverse claimant could not gain good title unless he paid taxes on the land while the period of possession was running. This requirement too was most common in Western states. An adverse claimant was not supposed to be a mere squatter. He was supposed to be someone who honestly thought he had a claim to the land. Such a person would naturally pay his taxes. This rule suggests that the doctrine was yet another response to chaotic land titles. Title was sometimes so murky and conflicted that many times a person might think he had good title, when in fact he did not. If he stayed in possession long enough, the doctrine cured the mistake. The statute, said Chief Justice Gibson of Pennsylvania, in 1845, “protects the occupant, not for his merit, for he has none, but for the demerit of his antagonist in delaying the contest beyond the period assigned for it, when papers may be lost, facts forgotten, or witnesses dead.”7 Yet, the doctrine itself was a cloud on titles; you could search county records till kingdom come—adverse possession left no records behind.
Public lands were still a major topic of debate in the second half of the century. The idea that this great federal treasure should be used to raise money was all but dead. The demand for cheap land reached its climax in the famous Homestead Act of 1862, which actually gave it away for nothing, at least to settlers. The government continued to use land heavily as a kind of subsidy. The Morrill Act of 1862 handed over to the states a vast tract of land. Each state was entitled to 30,000 acres for each Senator and Representative, using the 1860 census as a base. Each state was to use the land (chiefly by selling it for cash) for the purpose of setting up “Colleges for the Benefit of Agriculture and Mechanic Arts.”8 In 1850, after much debate, the federal government also began to make land grants to help build railroads. The economic advantages, for most sections of the country, outweighed any lingering doubts about whether the national government could or should support internal improvements.
A proposed railroad from Chicago to Mobile was the subject of the first major land grant. This ultimately became the Illinois Central Railroad. The law, passed in 1850,9 gave to the states of Illinois, Alabama, and Mississippi alternate sections of land for six miles on either side of the future line of tracks; the state could sell off the land and use the proceeds to build the road. Ungranted sections of land were to be sold by the U.S. government at not less than $2.50 an acre (“double the minimum price of the public lands”).10 Later acts—for example, the law of 1862 in aid of the Union Pacific—short-cut the process by giving the alternate sections directly to the railroad instead of to the states.11
In theory, the government lost nothing and got a railroad free, that is, without spending any cash. Government land, sandwiched between sections of railroad land, would fetch a double price, because the presence of a railroad would surely drive up its value. But even this notion was abandoned in the 1860s. The railroads of the 1860s had to run through the Far West—through endless grasslands, over great mountains, past deep forests, and across huge deserts. This domain was almost empty of settlers. The government price, understandably, had to be lowered. Moreover, the railroad grants conflicted with the spirit of the Homestead Act. After 1871, for a variety of reasons, the government made no more land grants to railroads. By this time, the harm or good had mostly been done. The exact amount of land granted to the railroads is in some dispute; even a conservative estimate would put it at more than 130 million acres.12
The Homestead Act was itself the climax of a long political struggle. It was a logical extension of trends in public-land policy. A vocal, sharply focused interest group worked (on the whole successfully) to defeat the policy of using the land to raise cash for the government. As this policy faded, the land-grant principle was the only rival of the homestead policy.
Until 1861, the homestead idea was entangled in sectional disputes and the slavery crisis. There were strong champions of a homestead bill in Congress, like Galusha Grow of Pennsylvania, but there was also bitter opposition; President Buchanan vetoed a homestead bill in 1860. The outbreak of the Civil War removed many of the opponents from Congress. In 1862, the bill became law, and the government was now formally committed to the policy of granting land, free, to the pioneers, described by Grow as the “soldiers of peace,” the “grand army of the sons of toil,” people who struggled against the “merciless barbarities of savage life,” and who had “borne [the] eagles in triumph from ocean to ocean.”13
The provisions of the act were simple. Heads of families, persons over twenty-one, and veterans (but not those who had “borne arms against the United States or given aid and comfort to its enemies”) were eligible, subject to certain exceptions, to “enter one quarter section or a less quantity of unappropriated public lands.” Claimants had to certify that they wanted the land for their own “exclusive use and benefit” and “for the purpose of actual settlement.” After five years of settlement, the government would issue a patent for the land. An actual settler who qualified could, however, buy up the land at the minimum price (generally $1.25 an acre) before the end of the five-year period.14
The Homestead Act assumed that there was productive land in the West, waiting for settlers. Special laws provided for the disposal of less desirable land—swamp land (1850), and desert lands (1877). These lands were commercially useless, and the government threw in extra inducements for reclamation. The swamp lands went free to the states, which, however, could sell them off to be drained. The desert land laws allowed individual claimants more acres than they could acquire through the Homestead Act; but the claimant had to irrigate his holdings. In addition, the federal government gave each new state a dowry of land as it entered the union. The states, therefore, held a considerable stock of land—swamp land; land under land-grant college laws; dowry lands at statehood. The states sold these lands on the open market. Wisconsin, for example, when it was admitted to the union, received public land from the federal government to be sold to raise “a separate fund to be called ‘the school fund.’ ” The state disposed of its school lands at cheap prices and very favorable terms. It used the proceeds to lend money at interest to farmers who needed money, thus (it was thought) killing two birds with one stone. The panic of 1857, however, wrecked the farm-loan system. As debtors went into default, it became clear that the program had been fearfully mismanaged. The state lost heavily on its investments.15 Many states in the 1860s similarly frittered away land they got under the Morrill Act. In some states, the “school lands” generated a tangled, almost forgotten mass of law about claims, terms, and priorities, a wonderland of complexity which demonstrated the weakness of public-land law and the greed and dishonesty of some of its customers.
The public-land laws were hopelessly inconsistent. Some land was free for settlers; other land was for sale. The government proposed to sell some land to the highest bidder; proposed using other land to induce private enterprise to build railroads; gave other land to the states to fund their colleges. Administration was extremely feeble. The homestead principle, if that meant giving land free to the landless poor, was perhaps the most feeble. The government continued to sell land for cash; and the best land was “snapped up” by speculators. As Paul Wallace Gates describes it, settlers arriving in Kansas between 1868 and 1872 were greeted with advertisements announcing that the choicest lands in the state had been selected by the State Agricultural College, which was now offering 90,000 acres for sale on long-term credits. The Central Branch of the Union Pacific Railroad offered 1,200,000 acres for prices ranging from $1 to $15 per acre; the Kansas Pacific Railroad offered 5,000,000 acres for $1 to $6 per acre; the Kansas and Neosho Valley Railroad offered 1,500,000 acres for sale at $2 to $8 per acre; the Capital Land Agency of Topeka offered 1,000,000 acres of Kansas land for sale; Van Doren and Havens offered 200,000 acres for $3 to $10 per acre; T. H. Walker offered 10,000 (or 100,000) acres for $5 to $10 per acre; Hendry and Noyes offered 50,000 acres, and even the U.S. government was advertising for bids of approximately 6,000 acres of Sac and Fox Indian lands.16
All of this choice land, in government or private hands, was unavailable to the homesteader. In addition, those who drafted the act were apparently thinking of the rich and well-watered land of the Middle West. Immense tracts of land in the Far West were simply not fit for family farms; they were more suited to grazing and ranching.17 Particularly after 1880, many people made use of the commutation privilege of the Homestead Act—the right to short-cut the homestead period by paying the regular price for the land. From 1881 to 1904, 22 million acres were commuted, 23 percent of the total number of homestead entries for this period. This was the “means whereby large land holdings were built up through a perverted use of the Homestead Act.” A Senate document later recorded that “not one in a hundred” of these commuted lands was “ever occupied as a home…. They became part of some large timber holding or a parcel of a cattle or sheep ranch.” The commuters were “usually merchants, professional people, school teachers, clerks, journeymen working at trades, cow punchers, or sheep herders.” Typically, these commuters sold their land immediately after title vested.18
So complete a failure casts doubt on the idea that aid to the actual settler was ever really the guiding principle of public land law. Land law used the image of the sturdy farmer for slogans and propaganda. The law itself served more complicated interests: farmers and settlers, yes, but also businessmen, speculators, merchants, and lawyers. The Homestead Act itself, and public-land law in general, were complex and contradictory because so many interests had a voice in enactment and administration. The maze of case law, legislation, regulations, public-land-office rulings, and decrees owe their confusion to the same basic fact.
Toward the end of the century, there was a lot of talk about the death of the frontier. This conception made something of a mark on public-land law. In the beginning, a kind of roaring optimism underlay policy. The public domain was seen as an inexhaustible treasure. Whether land was to be sold or given away, used to create new centers of population or fund a school system, government’s function was to move the land onto the market as soon as possible.19 In the last years of the nineteenth century, the psychological horizon darkened. The national domain was visibly vanishing. There grew up a sense of scarcity and a kind of muted pessimism. Out of this grew the seeds of a conservation movement. Yellowstone National Park was established in 1872 “as a public park or pleasuring-ground for the benefit and enjoyment of the people.”20 A law of 1891 gave the president authority to “set apart and reserve…public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations.” President Harrison set aside, by proclamation, about 13,053,440 acres. President Cleveland added a vast new area—over the protests of Western Congressmen and Senators who valued the land for its mines and timber.21
Parallel developments took place in the states. A law of New York State, in 1892, established “the Adirondack Park,” to be “forever reserved, maintained and cared for as ground open to the free use of all the people for their health or pleasure, and as forest lands necessary to the preservation of the headwaters of the chief rivers of the state, and a future timber supply.”22 The New York Constitution of 1897 declared the preserves “forever” wild. Conservationists made halting attempts to stop the slaughter of wildlife. Fish and game laws, too, were passed in increasing numbers. New Hampshire, for example, created “a board of commissioners on fisheries” in 1869. This later became a full-fledged fish and game commission, with power, for example, to close any restocked waters against fishing “for a period not exceeding three years.” As of 1900, New Hampshire statutes forbade anyone to “hunt, kill, destroy, or capture any moose, caribou, or deer,” except between September 15 and November 30. It was illegal to use dogs to hunt these animals. There was a season, too, for sable, otter, fishers, gray squirrels and raccoons, and an absolute prohibition on killing beaver. There were protective laws for many birds, too, including a ban on killing any “American or bald eagle.”23 After 1900, Americans could not foul their nest with quite so much impunity or legitimacy. But the growth of industry, cities, and population, and the insatiable hunger for profit and consumption, meant that conservation efforts would never be easy or automatic.
In the cities, too, there was an upsurge of interest in beautification, parks, and boulevards. The first great public park was Philadelphia’s Fairmount Park (from about 1855), followed soon afterward by New York’s Central Park. The “green boulevard” soon became a feature of city landscapes. Illinois passed an elaborate statute on parks in 1871.24 Cities and states began to use their powers of eminent domain as a way to expand the public sector, as a means of preserving natural beauty, and for parks and boulevards, not simply as a tool of economic growth.25 Some towns and cities began to regulate, or even prohibit, billboards.26
A conservation mentality of another variety colored the growth of new tools of land-use control. Fashionable neighborhoods, with “good” addresses, developed in Eastern cities. Enclaves of wealth generated a demand for legal devices to protect property values and to maintain patterns of segregation by income and class. A leading English case, Tulk v. Moxhay (1848),27 launched the doctrine of the equitable servitude or covenant. This was a doctrine that could be used to protect new subdivisions or neighborhoods. Parker v. Nightingale (Massachusetts, 1863)28 brought the doctrine to America. The heirs of Lemuel Hayward had sold lots in Hayward Place, Boston, but with the express condition that only buildings “of brick or stone, of not less than three stories in height, and for a dwelling house only could be built.” Forty years later, in 1862, James Nightingale, who owned one of the lots, leased his land to Frederick Loeber, who opened a “restaurant or eating-house.” Crowds of “noisy and boisterous persons” disturbed the peace of Hayward Place. The neighbors brought an action to try to stop this. But what right did they have to interfere? They had an agreement, to be sure, but it ran to Hayward and his heirs, not to Nightingale or Loeber. The court, as in Tulk v. Moxhay, leaped right over this objection. The original covenant “ran with the land,” as the phrase went. It was binding, in equity, on behalf of the “parties aggrieved.” By the original scheme, “a right or privilege or amenity in each lot was permanently secured to the owners of all the other lots.” As one writer put it, in 1901, allowing “free changing of property” and “shifting of titles” could sometimes work “hardship”; the “continued use of property in a particular locality for the same purpose was a very important element in the value and desirability of an investment…in the building of new towns of great promise, and in the building of great houses in old towns.”29 Long before any zoning laws (these did not arrive until the twentieth century) the equitable covenant was a kind of functional equivalent—a legal tool to protect neighborhood values against the risks of urban change. Yes, land was a commodity; but it was also somebody’s asset and somebody’s home; and the middle class rarely let ideology stand in the way of its interests.
The New York property codes, from the late 1820s, were adopted, as we have seen, by Michigan, Wisconsin, and Minnesota. Later Western states—the Dakotas, Arizona—also swallowed chunks of property law whose ultimate source was New York. New York had abolished a lot of dead wood and revised many aspects of property law. This includes the law of future interests—interests in property that were not present and possessory. The old law of future interests had served the great landed estates. With a slight twist, the law served the needs of new dynasts, whose money was tied up not in landed estates, but in trusts.
The details of the law of future interests are not important and, in any event, are almost beyond the layman’s patience or comprehension. Essentially, what happened was this: in some rare but important cases, rich men established trusts (by will or deed), to be held for their children, and later distributed to grandchildren (or collateral relatives). Meantime, the principal was safe, and the estate remained intact. The law of future interests regulated relationships among remote beneficiaries, determined what kinds of dynastic arrangements were permissible, and how long these arrangements might last. Now the New York reforms, in the end, themselves had to be reformed. And the ghosts of old English doctrines of contingent remainders, springing uses, determinable fees, and other mysteries, began to haunt the law courts. A person could “tie up” his or her estate after he or she was dead.
A law and practice of trust administration grew up to handle and manage dynastic wealth. Most trustees were amateurs—relatives or friends named in a will, or appointed trustees in a trust agreement. A few (almost exclusively in Boston) were professional managers. After the Civil War, a new institution appeared: the corporate trust company. In 1871, for example, a charter was issued in New York to the Westchester County Trust Company. The company had power to invest trust money “in public stocks of the United States,” in securities of New York State, in “bonds or stocks of any incorporated city,” and in corporate securities up to $10,000.30 Toward the end of the century, some states began to formalize the law of trust investment by enacting “legal lists”—lists of investments trustees could put trust funds in, without running the risk of lawsuits by beneficiaries. Massachusetts, and a few other states, gave their trustees more autonomy. The leading decision in Massachusetts was the famous Harvard College case (1830), which we mentioned in an earlier chapter.31
The Harvard College rule—the rule of the prudent investor—was a rule that was suitable to long-term, dynastic trusts. This kind of trust was relatively rare, and the Massachusetts doctrine did not spread very far in the nineteenth century. The other line of authority, the more restrictive line, aimed to protect people who were legally or factually helpless—the proverbial widows and orphans. This was almost the only type of trust outside the major commercial centers; and even in the East it was the dominant form. The Pennsylvania Constitution of 1873 forbade the legislature from authorizing the investment of trust funds “in the bonds or stocks of any private corporation.”32
There were a number of quite startling developments in the law of trusts. One was the so-called spendthrift trust doctrine. A spendthrift trust was a trust that tried to lock up the beneficiary’s interests as tightly as possible. No beneficiary could give away or mortgage the beneficiary’s rights in the trust; and no creditor of a beneficiary could reach or attach that interest, before money actually passed into the beneficiary’s hands. There was no such thing, in other words, as the right to garnish an interest in a spendthrift trust, or put a lien on it. John Chipman Gray, a Bostonian and a law teacher, in the first edition of his tedious little book, Restraints on the Alienation of Property, attacked this extraordinary doctrine; it was, he said, both illogical and against the weight of precedent. Yet Massachusetts, Gray’s home state, ignored logic and precedent and baldly adopted the doctrine, in Broadway Bank v. Adams (1882).33 Gray wrote an angry preface to his second edition: the spirit of “paternalism,” he said darkly, was abroad in the land. This was the “fundamental essence alike of spendthrift trusts and of socialism.” But the spendthrift trust certainly had nothing to do with socialism; and its paternalism was the dynastic urge of rich people, whose doctrinal capital was Boston, Massachusetts.
The rule against perpetuities was a doctrine that put a limit on dynastic dreams of financial immortality. The rule developed over the course of two centuries. It reached the form that tortured generations of suffering law students by about 1800. John Chipman Gray made a specialty of this rule, too. His treatise on the subject was first published in 1888. The rule dealt with long-term trusts or chains of future interests. A future right to income or property was no good, unless it “vested” no later than within twenty-one years of some “lives in being.” You could postpone “vesting” during the lifetimes of people born before the will or trust went into effect, with another twenty-one years tacked on. The details were horrendously complicated, mind-bending, treacherous. They were so convolute, that it is easy to lose sight of the point, which is this: How long can the dead hand rule? How long can a person “tie up” his estate, after he dies? The practical effect of the rule was to limit dynasties to a period of no more than seventy-five or one hundred years, at the outer limit. New York, in the late 1820s, had adopted a more ruthless and restrictive rule, copied later in California, Michigan, and Wisconsin, among other states. The ordinary, common law rule was in effect in most other places.
For much of the nineteenth century, the law had not shown much favor to the charitable trust. The problem here was fear of the dead hand, particularly the dead hand of the Church. New York’s property laws severely limited the charitable trust. When Samuel Tilden, lawyer and almost-president, died, he left millions of dollars to fund a public library in New York City. But the New York courts (1891) struck down the Tilden trust, and gave the money to his heirs. This galvanized the legislature into action. In 1893, New York changed its laws, and removed the shadow of invalidity from charitable trusts.34
Charitable trusts were also invalid or restricted in Midwestern states which borrowed New York’s property laws (Michigan, Minnesota, Wisconsin), and in a cluster of Southern states centering on Virginia. Here there were, perhaps, long memories and old hatreds going all the way back to the Reformation. Some states also enacted so-called “mortmain” statutes, as we have seen (Part II, p. 207). These outlawed death-bed gifts to charity. The Pennsylvania version was passed in 1855.35 Behind these laws, as we pointed out, was the fantasy of the evil priest, who preyed on the fears of the dying.
The changing nature of American wealth was what finally weakened restrictions on charitable gifts and charitable trusts. The great foundations were still far in the future; but the barons of finance, oil, and steel were beginning to give away conscience money. When the Tilden trust failed in New York, it was not a defeat for the “dead hand,” but for the city of New York, and the people who lived in it.
New York was late in embracing the charitable trust. Some states were more hospitable. Massachusetts, in fact, had put new life in the doctrine of cy pres (law-French for “so near”)—a doctrine essential to the long-term charity. Suppose the original purpose of a charitable trust has failed or become impossible. Instead of giving the money back to the heirs, a court of equity could modify it, and apply it to a purpose as close as possible to the original. In Jackson v. Phillips (1867),36 Francis Jackson of Boston had died in 1861, leaving money to be used to “create a public sentiment that will put an end to Negro slavery,” and also for the benefit of fugitive slaves. By 1867, slavery had been legally ended. Jackson’s relatives came into court and said, quite naturally, the purpose cannot be carried out. Give the money back to us. But the court refused. Instead, it directed a “so near” use of the fund—for welfare and educational work among New England blacks, and among freed slaves. The court did not invent the doctrine—it was old in England—but the case did give it a new and vigorous lease on life. The doctrine helped the long-term, dynastic charity, just as the Massachusetts rule on trust investment helped dynastic trusts in general.
The law of wills had always been receptive to doctrines imported from England. Some American statutes, for example, remodeled themselves in the light of the English Wills Act (1837). The general trend was toward more formality in the execution of wills, for the sake of property records if nothing else. Informal, oral wills ceased to count, practically speaking.37 This does not mean that the law of wills remained implacably formal and rigid. In general, courts loosened their rules of interpretation of wills. They moved away from fixed canons of construction, and put more stress on what the testator actually meant to say. His intention was the “pole star,” the “sovereign guide” of interpretation.38 This attitude was appropriate in a country of general, though hardly sensational, literacy, where millions owned property, and standards of legal (and lay) draftsmanship were low. The cases reflected a certain tension: courts wanted to carry out the testator’s wishes, but they also recognized the need for certainty, sound routine, and rough predictability.
Between 1850 and 1900, more ordinary people developed the habit of making wills; and more estates went through probate. One study of wills compared a sample of wills in Essex County, New Jersey, in 1850, 1875, and 1900. In 1850, less than 5 percent of those who died left wills; only about 8 percent had estates of any sort. By 1900, roughly 14 percent of the dying population left estates that went through probate; 8 percent were testate. Fewer probated wills were “deathbed” or last-illness wills in 1900. In 1850, at least a quarter of the wills were executed less than a month before death; in 1900 less than a fifth. The wealthier testators were more sophisticated about the draftsmanship of their wills in 1900 compared to 1850. They were more likely to cover such simple contingencies as what to do if a beneficiary died before the testator did.
The earlier the will in Essex County, the more likely it was to leave property in trust or in the form of a legal life estate. This was especially true of gifts to or for women: 73.3 percent of the 1850 wills made this kind of gift, but only 40 percent of the 1900 wills. Does this mean that women had become more independent, socially, or that more middle-class people made out wills, or does it reflect the fact that the legal status of married women had changed? It is hard to know, because so little research has been done on the subject. A study of Bucks County, Pennsylvania, which compared wills at the beginning and near the end of the nineteenth century, had rather different results. About 12 percent of the testators around 1800 created trusts, and about 30 percent in the 1890s—half of these were trusts for the surviving spouse (usually a widow). Many 1900 testators were themselves women, in both Essex and Bucks County. In fact, in Bucks County, in the 1890s, some 38 percent of the testators were women. Some of the women testators may have been women in simple circumstances—Mrs. Mary Duffy, who signed her will by mark and left everything to her husband in Essex County; or Grace Creamer, also of Essex County, whose pathetic will, executed on her dying day, left everything to her newborn, illegitimate child. The earlier Essex County wills, by and large, directed the executors to sell off the property; in the 1850s, the safest course seemed to be to turn the estate into cash. Later the more sophisticated wills set up estates that would continue, under careful management, retaining its assets until market conditions dictated otherwise.39
A tenant can mean different things, depending on whether the tenant holds farm land, commercial property, or a city apartment, and on what terms. The American lease was, in general, no longer purely a document of land tenure. Even for agricultural lands, it was basically a commercial contract.
In New York, pitched battles in the 1840s marked the beginning of the end for one of the last remnants of one kind of feudal tenancy in America. The New York landed estates were an anachronism. The American dream was to hold land in fee simple. It seemed inconsistent with American ideals to have a permanent class of tenants with no right ever to own their land. The New York Constitution of 1846, after the downfall of the patroons, outlawed feudal tenures and long-term agricultural leases. Meanwhile, exemption and homestead laws, in almost all the states, protected the farmer’s basic holdings of land, animals, and tools from seizure for debt. Distress for rent—the landlord’s right to extract delinquent rent directly from the land—was, in many states, abolished.40
Most farm families were freeholders; but there were in fact tenant farmers, absentee landlords, and sizable leaseholds, even in the North. Large “frontier landlords” in Illinois had tenants who paid in shares of crops or, more rarely, cash. One of the most notorious was William Scully, of Ireland, an alien and absentee landlord; there was considerable unrest on his vast prairie holdings in the 1880s.41 On the other hand, the leasehold, protean and flexible, was for many young farmers the first step up the ladder of farm success; and for old farmers, it was a way to transfer land to sons to manage, without giving up complete control.
That characteristic Southern arrangement, the cropping contract, was quite different. There had been cropping contracts in the North and South before the Civil War. But only after the war did the cropping system become a cardinal feature of the economic system in the South. Along with the changing social meaning of the sharecropping contract went changes in its legal attributes, as developed by the courts. In 1839, the North Carolina supreme court held that a landlord had no rights in the crop before the tenant actually gave the landlord his share. There was no statutory lien, and the right to distress for rent had been done away with; creditors of the tenant were free to levy on the crop, without interference from the landlord.42
In 1874, the legal relationship looked different to the court. A cropper was now said to have “no estate in the land”; the estate “remains in the landlord.” The cropper was only a “laborer receiving pay in a share of the crop.”43 There was room for dispute about who was or was not a “cropper.” In the case that inspired the words quoted, the tenant was held not to be a cropper, even though he received his horses, his corn and bacon, his farming utensils and his feed from the landlord. Some farmers in fact were like ordinary tenants, paying “rent” with a share of the crop; there were also farm workers who were paid in crop shares.44
But much more common than either of these arrangements was true sharecropping. It obtained in over 50 percent of the small farms in the South. The cropper (usually black, usually illiterate) signed (or marked) a contract. One typical contract—it was executed in 1886, in North Carolina—gave the cropper half the crop, in exchange for a promise to work “faithfully and diligently,” and to be “respectful in manners and deportment” to the owner. The owner provided “mule and feed for the same and all plantation tools and Seed to plant the crop,” and advanced “fifty pound of bacon and two sacks of meal per month and occasionally Some flour,” to be paid for out of the cropper’s share.45
The cropper was thus a worker, not an owner; he was not a partner of the landlord, but an “employee”—one that was paid in a share of the crop, rather than in money.46 North Carolina (1876) made clear the landlord’s rights. All crops at all times were “deemed and held to be vested in possession” by the landlord, or his assigns. The sharecropper himself owned nothing, until his share was actually turned over to him.47 The landlord’s rights were paramount—against the village merchant and outside creditors, as well as against the tenant. The land tenure system reflected and reinforced the real world of power relationships in the South. And race relations, as well.
The mortgage was (and is) a primary mode of financing the buying and selling of land. The buyer would, very often, execute a promissory note, secured by a mortgage on the property. Since land was the most valuable asset of most people who owned anything, the mortgage was a major instrument of credit and finance, and a major subject of the law. West’s Century Digest, covering all cases reported to 1896, has more than 2,750 pages of cases on mortgages. Farmers used the mortgage to raise money for more land, to buy agricultural machinery, even to cover personal expenses. In some parts of the country, farmers tended to borrow to the limit of their equity; in good years, when land prices were rising, they simply borrowed more. One swarm of locusts, one drought, one “panic” was enough to wipe out the security, sweep the farm into court, and replace an economic problem with a legal one. No wonder, then, that mortgage law tended to swing with the business cycle. Legislatures expanded or contracted the redemption period, according to whether times were good or bad. In 1886, Washington state changed a six-month period to a full year; in a period of upswing (1899), Michigan, perhaps as an incentive to investment, passed a statute that gave the debtor six months after sale to redeem; the period had previously been two years and three months.48
No wonder, too, that voters in agricultural states constantly agitated for government loans, cheap mortgage money, tough rules on foreclosure, easy rules on redemption. One incident may give some idea of the politics of mortgage law. In the early 1850s, many Wisconsin farmers bought stock in railroad companies. Since they had no ready money, they pledged their lands as security. The railroad’s future dividends were supposed to pay the interest due on the mortgage—usually 8 percent. The railroads then used, or misused, the farmers’ notes and mortgages to seduce Eastern investors into investing in railroad finance. In the panic of 1857, the Wisconsin railroads collapsed. The farmers were left high and dry, holding worthless stock. Meanwhile, their mortgages were in the hands of Eastern interests.
The farmers put pressure on the legislature. The legislature responded by passing a series of laws, trying every which way to prevent a wave of foreclosures. The laws used various techniques. One law stripped the notes and mortgages of negotiability. This meant that the farmers could raise the defense of fraud in foreclosure suits before friendly local juries. In a line of cases, beginning in 1858, the Wisconsin supreme court declared this and every single one of the relief statutes unconstitutional, citing the Dartmouth College doctrine and the court’s own sense of justice and sound economics.49 Foreclosure was a bitter pill, but not half so bitter as a policy that would dry up the money market and choke off investment in the state. At least this is what the court must have thought. It was an idea that, in the long run, preserved the tensile strength and flexibility of the law. The need for a source of mortgage money, in any event, acted as a brake on runaway mortgage and foreclosure law.
Common law dower had once been the chief way to provide for a widow’s twilight years. Dower was a peculiar kind of estate. For one thing, it attached to land only. For another, dower was a mere life estate (in one-third of the late husband’s real estate). The widow had no right to sell; and she had no rights over the “remainder,” that is, no right to dispose of the land after her death, by will or otherwise. The land remained, in short, in the husband’s bloodline. Dower had one rather remarkable feature: a husband could not defeat the right by selling his land or giving it away. Over all land he owned, or had owned, hung the ghostly threat of “inchoate dower.” This potential claim followed the land through the whole chain of title, until the wife died and extinguished the claim.
As a protection device, dower had severe limitations. It perhaps made sense for the landed gentry of England; or for plantation owners. But if the husband’s wealth consisted of stocks and bonds, or a business, dower did the wife little good. Dower had another fault, too. It was superior to the claims of the husband’s creditors, which was good for wives but bad for the creditors. And dower was an annoying cloud on titles. Long years after some piece of land had been sold, the widow of some prior owner could rise up like a ghost to haunt a buyer. This was perhaps the real fly in the ointment. The Midwest, poor in everything but land, showed early impatience with dower. Indiana abolished it, at least in name, in 1852. In its place, Indiana gave the widow a cut from her husband’s personal property, and one-third of his real estate “in fee simple, free from all demands of creditors.”50 The same statute abolished “tenancies by the courtesy” (usually spelled curtesy). This was the corresponding estate for widowers—which had, however, this peculiarity: It vested only if the couple ever had a child born alive. Under the new law, the husband gained symmetrical rights in his wife’s estate. Kansas, in the Civil War period, gave the widow the right to elect her dower, or, “as she may prefer,” to choose an absolute share (one-half) of her husband’s estate, both real and personal.51 The absolute share was always to her advantage, unless her husband died insolvent, in which case dower was better.
As before, so also after 1850, the traumatic weakness of land titles had a pervasive effect on land law. It played a role, for example, in the decline of dower. It hastened the decline of the common-law marriage, and stimulated formality in the law of wills. As fast as the law developed ways to make land more marketable, and to improve the quality of titles, other events seemed to pop up to make the situation worse. Railroad, school, and land grants, for example, created problems of vague and overlapping titles in some of the Western states. California and New Mexico inherited a legacy of confusion from the Mexican period. Congress established for California a three-man commission to unsnarl titles flowing from Mexican grants (1851). Every claimant whose “right or title” to land “derived from the Spanish or Mexican government” was to present the claim to the commissioners, together “with such documentary evidence and testimony of witnesses as the said claimant relies upon.”52 The board completed its work by 1856; but litigation continued for years in the federal courts. The board handled something over 800 cases; 604 claims were confirmed, 190 rejected, 19 withdrawn. But landowners in California had to wait, on average, seventeen years after filing a petition before title was finally confirmed.53 The course of events in New Mexico was even more protracted. As late as 1891, Congress passed an act “to establish a Court of Private Land Claims,” to untangle Mexican land grants in New Mexico, Arizona, Utah, Nevada, Colorado, and Wyoming.54
Floating land scrip was another source of confusion. Scrip had been issued for a number of purposes: under the Morrill Act, for example, the scrip stood as evidence that the state was entitled to land, to be used to raise money for colleges. A miscellaneous group of statutes created other scraps of scrip. One Thomas Valentine, a land claimant from California, lost his fight for a three-square-league ranch near Petaluma, but got Congress to pass a private relief act in 1872. In exchange for a release of his claims to the ranch, Valentine received scrip for 13,316 acres of public land. Some he used, and some he sold:
Speculators got some, hiking the price, to peddle along with other types of scrip. In time Valentine scrip became too high-priced to be used on admittedly public lands, and scrip owners had to look for forgotten islands—“sleepers”—areas overlooked by government surveyors and with questionably held titles.55
Land law itself contributed to the weakness of titles. Adverse possession was one problem. Poor administration of land laws was another chronic cause of doubtful titles. “Tax-titles” were notoriously weak. A “tax title” came about when local government sold off property for delinquent taxes and issued a deed to the purchaser. The laws on the subject were complicated, and so difficult to comply with that, in the words of a contemporary treatise, “the investigator of titles always looks with suspicion upon a title that depends upon a tax-deed.”56 Legislatures constantly had to intervene to make good the faulty work of local officials. Iowa, for example, passed fifty-nine separate acts in 1880 to legalize defective actions of officials. Many of these were land actions. One law, for example, recited that some swamp lands had been sold without the county seal, as the law required, and without the clerk’s signature; since “doubts” had “arisen” about these deeds, the deeds were “hereby legalized and made valid” (ch. 180).
The sheer volume of land transactions made the situation worse. There were deeds, mortgages, transfers, in the thousands, then in the hundreds of thousands. The crude system of land registration could barely cope with the volume. Title companies sprang up to check titles for a fee, and to insure landowners against mysterious “clouds” that might arise to befuddle their interests. The Real Estate Title Insurance Company of Philadelphia, chartered in 1876, seems to have been the pioneer. The predecessor of New York’s Title Guaranty & Trust Company was chartered in 1883.57 The great fire of 1871 destroyed the public records in Chicago. Four private abstract companies saved their records: indexes, abstracts, maps, and plats. These companies later formed a title-guarantee company; a merger in 1901 created the Chicago Title & Trust Company, which came to dominate the business in Chicago.58
An Australian system, called Torrens after its inventor, Sir Robert R. Torrens, held out hope for a way to cure diseases of title once and for all. The standard practice was for land documents—deeds, mortgages, land contracts—to be deposited and noted in a public-record office. The office acted as little more than a warehouse with indexes. But when land went into the Torrens system, the state of the title was examined, and a certificate of title issued. Land brought into Torrens underwent a scathing, one-time baptism of law; in the process, it was cleansed of its sins, all those “faint blemishes” and “mysterious ‘clouds’ ” which “so darkly and portentously” hung over real estate, even when “hitherto not visible to the naked eye.”59 After this initial trauma, the land emerged as fresh and free of taint as a newborn baby. From that point on, title was in effect insured by the state. A contract, not a deed, became the instrument of transfer; and title and guaranty were at all times kept up to date simply and efficiently.
Illinois was the first state to pass a title-registration statute, in 1895; Massachusetts. Ohio, and California had statutes before 1900. The state bar association and the Chicago real-estate board supported a Torrens system for Illinois; but there was bitter opposition, too; and the title guarantee companies were not happy to see a governmental competitor. The Illinois law called for a referendum in any county that wanted to embark on Torrens; Cook County (Chicago) complied, and after one false start—the Illinois supreme court declared the first Torrens act unconstitutional—a valid act was passed, in 1897, and put into effect.60 The system was optional, however, even in Cook County. The public, legal and lay, was torpid and indifferent. Besides, Torrens had a serious drawback: the first land registration for any parcel of land was expensive. In 1899, there were only 155 applications to register land under the Torrens system in all of Cook County.61 As of 1900, then, title registration was at best a hope, at worst a missed opportunity.
After the act of 1836, which established the Patent Office, Congress made few major changes in the administration of patent law. Patents themselves multiplied like weeds. The number increased each year. Between 1836 and 1890, 431,541 patents were granted.62
The volume of patent litigation increased along with the number of patents. The patent office refused many applications; but even when it granted a patent, this was no guarantee that the patent was valid. Getting a patent did not mean, in itself, that the patent would stand up in court. Patent litigation was complex, and fruitful of doctrine and controversy. In an infringement suit, it was a good defense to claim that the patent should never have been granted. A few law firms and lawyers built their fortunes on patent cases, especially after the Civil War, when a specialized patent bar began to develop. George Harding (1827–1902) became rich and prominent arguing patent cases in federal court.63
The path of a patent could be rocky. According to one authority, between 1891 and 1904, 30 percent of the patents in the circuit courts of appeal were declared invalid; another 41 percent were held not to be infringed. Only 19 percent were declared both valid and infringed.64 In effect, the federal courts sat as a kind of many-headed commissioner of patents.
An industrial society rests on pillars of fresh technology. In an expansive, free-market economy, the patent monopoly was in a way anomalous. But, like corporate franchises, land grants, and high tariffs, the patent was also a kind of subsidy, an incentive to inventors and to innovation. Public opinion was of two minds about it. The original law no doubt had in mind the small inventor, working through the night in his study or laboratory. There were such people. But they came to be a minority of American inventors. In general, they were precisely the ones who could not afford patent litigation, or the expense of fighting off patent pirates.
Toward the end of the century, the courts seemed to become keenly aware that a patent could be used to stifle competition. They grew quite stingy about granting preliminary injunctions against infringement. The only foolproof way to protect a patent, then, was to engage in long, costly litigation. This policy was hard on the small inventor; on the other hand, it made patents harder to use in restraint of trade. Some courts apparently felt that there were too many patents; no “standing room for an inventor” was left, no “pathway open for forward progress.”65 Patents were, potentially, a tool of the trusts. This attitude, this fear, was part of the feeling of economic constriction, the general terror of small horizons, which was so salient in the late nineteenth century.
An important Supreme Court case, in 1850, turned on whether a patent for a new doorknob was valid. The only novelty, it seemed, was that the doorknob was made out of porcelain. A patent, said Justice Samuel Nelson, required “more ingenuity” than that of “an ordinary mechanic acquainted with the business.”66 This was a doctrine that cut down, severely, the number of valid new patents. In 1875, the Court confronted a patent for preserving fish “in a close chamber by means of a freezing mixture, having no contact with the atmosphere of the preserving chamber.” The Court held the patent void. There was nothing novel here; the scheme made no advance over prior art. It reminded Justice Noah H. Swayne of a technique used by undertakers (though not for fish) and of things about ice cream that were common knowledge.67 In 1880, Swayne used a striking phrase—“a flash of thought”—to describe what a valid patent needed.68 The “ordinary mechanic”—a kind of blue-collar version of the “reasonable man” in the law of torts—was the negative model; only a “flash of genius,” gave merit to a patent. In general, the courts steered a cautious, middle-of-the-road course in patent law. Patents were for genuine novelty, for rewarding skill and insight, and nothing else. Courts were suspicious of small improvements, mass-produced by big companies.
Entrepreneurs, for their part, were hardly fond of the chaos of patent law. As early as 1856, manufacturers of sewing machines formed a patent pool.69 Large companies learned how to manipulate patents to stretch out their monopoly. Bell Telephone bought a German patent, vital to the technology of long-distance telephoning. It waited until its telephone patent had almost expired, then pressed ahead with the German device. This gave it control of the telephone industry even after its first basic patent passed into the public domain. Under the umbrella of the patent monopoly, companies divided up markets, chopped up the country into segments, parceled these out in licenses, and chained whole counties or states to particular vendors of a patented good.
The law of intellectual property shows the tendency of the law to expand the concept of property—to protect whatever had a real market, including intangibles. This was true of patent rights; and also of copyright. In 1856, the copyright statute was amended to include dramatic productions; in 1865, to cover photographs and negatives.70 In 1870, the copyright (and patent) laws were substantially revised. Copyright law now covered any “painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts” as well as the usual material. The law also, for the first time, protected authors with regard to translations of their work. Copyright registration was moved from the federal courts to the Library of Congress. Each author had to deposit two copies of the work with the Library. One of the copies went to the library’s own collection; in this way, the Library become the largest in the country.71
The law also protected photographs—which did not exist when the Constitution was adopted. Was protection of photography within the power of Congress? A photo, after all, is not a “writing.” The issue came in a case turning on a photograph of Oscar Wilde. Napoleon Sarony, a New York photographer, had taken the picture; a lithographic company sold 85,000 copies of this photo. Sarony sued. The Supreme Court upheld his claim. A photograph was a work of art; the photographer did the work of posing, arranging, “disposing the light and shade”; and was thus entitled to protection. Later, in 1903, in an opinion by Oliver Wendell Holmes Jr., the court extended copyright protection to advertising—in the precise case, circus posters.72
Developed countries are more interested in copyright protection than the underdeveloped. When Americans wrote few books, it was in their interest to treat copyright quite narrowly, since copyright protection mostly went to foreigners. By the late nineteenth century, America was a big country, with a substantial literature of its own. The expansion of copyright, and the strengthening of copyright, thus seemed to be in the national interest. Books and pictures were also commodities. Extending copyright protection to photos and advertisements recognized this fact and underscored the role of copyright in a market economy.
The expansion of trademark law was also remarkable. This branch of law was cobbled together from a few scattered judicial opinions, all of them after 1825. The first injunction in a trademark or trade-name case was granted in 1844, as we saw, to protect the makers of “Taylor’s Persian Thread.”73 From this acorn grew a mighty oak. Trademark has a vital role to play in a consumer society, a free-enterprise society, a society with mass production of standard goods. Products compete jealously for the consumer’s dollars. Many products pour out of factories identical except for package and name. The 1870 law that codified patent and copyright law applied to trademarks, too. But the Supreme Court, in 1879, thought that the patent power did not extend to trademarks. They saw no way to justify the law under the commerce clause as well. They declared the law unconstitutional as to trademarks.74 State statutes partly filled the gap. And the courts continued to rework and define the trademark laws of the states.
Trademark litigation was acrimonious and, like patent litigation, relatively frequent. Business ethics in the nineteenth century were not simon-pure, to put it mildly. Many jackals of commerce tried to steal the values inherent in somebody else’s product. An independent concept of unfair competition arose, as a kind of supplement to the protective armor of a trademark. A man named Baker, for example, who made chocolate, could not behave in such a way as to make people think his product was the famous Baker’s Chocolate. He could not imitate the shape, label, and wording of Baker’s Chocolate, whether or not he was technically “infringing” a trademark.75
Toward the end of the century, unions encouraged use of union labels on union-made goods, and tried to get laws passed to protect these labels. A Minnesota statute (1889) made it “lawful for unions to adopt labels, trademarks and advertisements,” announcing that the goods were union-made; and it was unlawful to imitate such a label.76 Illinois had a similar law. The Cigar Makers’ International Union, for example, put a “small blue plaster” in each box of cigars, certifying that the cigars were union-made, and not the product of “inferior, rat-shop, coolie, prison or filthy tenement-house workmanship.” The state court upheld the law in a case against a cigar-dealer who had blithely copied the label.77 Businesses, unions, and trade groups were all battling for their share of the economy, and looking for ways, legally or otherwise, to protect their claims and their positions in a tough competitive world.
1 Lawrence M. Friedman, Contract Law in America: A Social and Economic Case Study (1965), p. 34.
2 Paul M. Kurtz, “Nineteenth Century Anti-Entrepreneurial Nuisance Injunctions—Avoiding the Chancellor,” 17 William & Mary L. Rev. 621 (1976).
3 Kent, Commentaries, vol. III (2nd ed., 1832) p. 446n; Laws Mass. 1852, ch. 144.
4 Christopher G. Tiedeman, An Elementary Treatise on the American Law of Real Property (1885), sec. 613, pp. 475–76.
5 Possession also had to be “hostile,” that is, inconsistent with the true owner’s claims. A tenant, for example, who leases land and pays rent, is in possession, but his possession is not “hostile,” and does not threaten the landlord’s title.
6 Laws Terr. Nev. 1861, ch. 12, sec. 5.
7Sailor v. Hertzogg, 2 Pa. St. 182, 185 (1845).
8 12 Stats. 503 (act of July 2, 1862); Paul W. Gates, History of Public Land Law Development (1968), pp. 335–36.
9 9 Stats. 466 (act of Sept. 20, 1850); see Gates, op. cit., pp. 341–86.
10 9 Stats. 466 (act of Sept. 20, 1850). The government retained the right to transport its property and troops “free from toll.” Since some land on either side of the road might be already occupied or taken, the statute made provision for substitute lands in such cases.
11 12 Stats. 489 (act of July 1, 1862).
12 Robert S. Henry, “The Railroad Land Grant Legend in American History Texts,” 32 Miss. Valley Hist. Rev. 171 (1945).
13 Galusha Grow, quoted in Benjamin Hibbard, A History of the Public Land Policies (1924), p. 384.
14 12 Stats. 392 (act of May 20, 1862).
15 On the operation of the Wisconsin School Land Act, see Joseph Schafer, “Wisconsin’s Farm Loan Law, 1849–1863,” in Proceedings, State Historical Society of Wisconsin, 68th Ann. Meeting (1920), p. 156.
16 Paul W. Gates, “The Homestead Law in an Incongruous Land System,” in Vernon Carstensen, ed., The Public Lands (1963), pp. 315, 323–24.
17 Similarly, the Southern Homestead Act of 1866, which aimed to open public land in the South to freedmen and refugees, “turned out to be a resounding failure, partly because the lands set aside under it were the poorest quality, and partly because the freedmen lacked the necessary means to support themselves while working to clear the land and cultivate a crop.” Martin Abbott, The Freedmen’s Bureau in South Carolina, 1865—1872 (1967), pp. 63–64.
18 Hibbard, op. cit., pp. 386–89; Paul W. Gates, History of Public Land Law Development (1968), pp. 387ff.
19 The chief exception—mineral lands—merely underscores this point: it was recognized much earlier that these resources were finite and irreplaceable.
20 17 Stats. 32 (act of Mar. 1, 1872).
21 Gates, op. cit., pp. 567–69.
22 Laws N.Y. 1892, vol. 1, ch. 707.
23 N.H. Stats. 1901, chs. 130–32.
24 Christopher Tunnard and Henry H. Reed, American Skyline (1956), pp. 108–10; Rev. Stats. Ill., 1877, ch. 105.
25 Generally speaking, too, the courts (and legislatures) in the years after the Civil War changed their general attitude toward eminent domain doctrines; in the early period (see above, Part II, ch. 3), doctrines tilted toward the taker of the lands; now protection leaned more toward the landowner whose lands were taken. See Pumpelly v. Green Bay Company, 80 U.S. 166 (1871).
26 At first, these ordinances did not always find a friendly reception in the courts. In Crawford v. City of Topeka, 51 Kan. 756, 33 Pac. 476 (1893), a billboard ordinance was voided as “unreasonable.” The court could not see how “the mere posting of a harmless paper upon a structure changes it from a lawful to an unlawful one.”
27 2 Phil. 774, 41 Eng. Rep. 1143 (Ch., 1848).
28 6 Allen (88 Mass.) 341 (1863).
29 Henry U. Sims, A Treatise on Covenants Which Run with Land (1901), preface v.
30 Laws N.Y. 1871, ch. 341 See James G. Smith, The Development of Trust Companies in the United States (1928); Lawrence M. Friedman, “The Dynastic Trust,” 73 Yale L.J. 547 (1964).
31Harvard College v. Amory, 26 Mass. (9 Pick.) 446 (1830); see above p. 253.
32 Pa. Const. 1873, art. III, sec. 22. A similar provision appears in Alabama (1875), Colorado (1876), Montana (1889), and Wyoming (1889).
33 133 Mass. 170 (1882).
34Tilden v. Green, 130 N.Y. 29, 28 N.E. 880 (1891); James B. Ames, “The Failure of the ‘Tilden Trust,’ ” 5 Harv. L. Rev. 389 (1892); Laws N.Y. 1893, ch. 701.
35 Laws Pa. 1855, ch. 347, sec. 11.
36 96 Mass. 539 (1867).
37 In the West and South, the holographic will—handwritten, but needing no witnesses—was allowed.
38 James Schouler, A Treatise on the Law of Wills (2nd ed., 1892), p. 500.
39 The data from Essex County comes from Lawrence M. Friedman, “Patterns of Testation in the 19th Century: A Study of Essex County (New Jersey) Wills,” 8 Am. J. Legal Hist. 34 (1964); the material on Bucks County is from Carole Shammas, Marylynn Salmon, and Michel Dahlin, Inheritance in America: From Colonial Times to the Present (1987), pp. 107, 119.
40 Laws N.Y. 1846, ch. 274; see, in general, Charles W. McCurdy, The Anti-Rent Era in New York Law and Politics, 1831–1865 (2001).
41 Paul W. Gates, Frontier Landlords and Pioneer Tenants (1945).
42Deaver v. Rice, 20 N. Car. 431 (1839).
43Harrison v. Ricks, 71 N.H. Car. 7 (1874).
44 Roger L. Ransom and Richard Sutch, One Kind of Freedom: The Economic Consequences of Emancipation (1977), pp. 90–91.
45Ibid., p. 91.
46 Harold D. Woodman, New South—New Law: The Legal Foundations of Credit and Labor Relations in the Postbellum Agricultural South (1995), ch. 3.
47 Laws N. Car. 1876–77, ch. 283, sec. 1.
48 Robert H. Skilton, “Developments in Mortgage Law and Practice,” 17 Temple L.Q. 315, 329–30 (1943).
49 The story is told in Robert S. Hunt’s fine study, Law and Locomotives: The Impact of the Railroad on Wisconsin Law in the Nineteenth Century (1958).
50 Rev. Stats. Ind. 1852, ch. 27, secs. 16, 17. If the land was worth more than $10,000, the widow could have only one quarter of it, as against the husband’s creditors; and if the land was worth more than $20,000, one fifth.
51 Kans. Stats. 1862, ch. 83. For these and other early developments, see Charles H. Scribner, Treatise on the Law of Dower, vol. 1 (2nd ed., 1883), p. 48.
52 9 Stats. 631 (act of March 3, 1851).
53 W. W. Robinson, Land in California (1948), p. 106.
54 26 Stats. 854 (act of March 3, 1891).
55 Robinson, op. cit., p. 179.
56 Christopher G. Tiedeman, An Elementary Treatise on the American Law of Real Property (1885), p. 580.
57 Laws N. Y. 1883, ch. 367.
58 Pearl J. Davies, Real Estate in American History (1958), pp. 35–36.
59 John T. Hassam, “Land Transfer Reform,” 4 Harv. L. Rev. 271, 275 (1891).
60 Theodore Sheldon, Land Registration in Illinois (1901), pp. 1–3.
61 Richard R. Powell, Registration of the Title to Land in the State of New York (1938), p. 145.
62 Chauncey Smith, “A Century of Patent Law,” 5 Quarterly J. of Economics 44, 56 (1890).
63 See Albert H. Walker, “George Harding,” in Great American Lawyers, vol. VIII (1909), pp. 45–87.
64 Floyd K, Vaughan, The United States Patent System (1956), p. 199.
65Two Centuries’ Growth of American Law, p. 396.
66Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 267 (1850).
67Brown v. Piper, 91 U.S. 37 (1875).
68Densmore v. Scofield, 102 U.S. 375, 378 (1880).
69 Vaughan, op. cit., p. 41.
70 13 Stats. 540 (act of March 3, 1865).
71 16 Stats. 198, 213 (act of July 8, 1870); Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (rev. ed., 2003), pp. 44–46.
72 Paul Goldstein, op. cit., pp. 47–49.
73Two Centuries’ Growth of American Law, p. 436.
74 Trade-Mark Cases, 100 U.S. 82 (1879).
75Walter Baker and Co. v. Sanders, 80 Fed. Rep. 889 (C.C.A. 2nd 1897).
76 Laws Minn. 1889, ch. 9.
77Cohn v. Illinois, 149 Ill. 486 (1894).