The American law of association: The legal-political construction of civil society

Studies in American Political Development

Volumn 15, Issue 2, 2001, Pages 163-188

  Novak, William J ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 0035736951     PISSN: 0898588X     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0898588x01000037     Document Type: Article

References (164)

1. Alexis de Tocqueville, Democracy in America, ed. J.P. Mayer (New York: Harper & Row, 1969), p. 513.
2. Susan Pace Humill, "From Special Privilege to General Utility: A Continuation of Willard Hurst's Study of Corporations," American University Law Review 49 (1999): 81-180, 83.
3. Assemblies of God, 11,920; Church of God in Christ, 15,300; Church of Jesus Christ of Latter-Day Saints, 10,811; Churches of Christ, 14,400; Ex-angelical Lutheran Church in America, 10,889; Jehovah's Witnesses, 10,883; National Baptist Convention, USA, 33,000; Presbyterian Church, USA, 11,295; Roman Catholic Church, 22,728; Southern Baptist Convention, 44,887; United Methodist Church, 30,170 (Statistical Abstracts of the United States [Washington, DC: GPO, 1999], "Religious Bodies - Selected Data"). The numbers here reflect self-reporting religious bodies of 60,000 or more members.
4. Office of Educational Research and Improvement, Statistics in Brief (Washington, DC: GPO, 2000), 8; Office of Educational Research and Improvement, Digest of Education Statistics, 1999 (Washington, DC: GPO, 2000), 74.
5. David Rusk, Cities Without Suburbs (Washington, DC: Woodrow Wilson Center Press, 1995), 95; Thomas J. Sugrue, "All Politics is Local: The Persistence of Localism in Twentieth-Century American Politics," (unpub. ms., 2001), 8.
6. David Rusk, Cities Without Suburbs (Washington, DC: Woodrow Wilson Center Press, 1995), 95; Thomas J. Sugrue, "All Politics is Local: The Persistence of Localism in Twentieth-Century American Politics," (unpub. ms., 2001), 8.
7. As the student of Hobbes, Michael Oakeshott, put it, Governing is an activity which is apt to appear whenever men are associated together or even whenever, in the course of their activities, they habitually cross one another's paths. Families, clubs, factories, commercial enterprises, schools, universities, professional associations, committees, and robber gangs may each be the occasion of this activity. And the same is true even of gatherings of persons (such as public meetings), so long as they are not merely ephemeral or fortuitous. Indeed, it may be said that no durable association of human beings is possible in the absence of this activity. (Michael Oakeshott, Morality and Politics in Modern Europe: The Harvard lectures [New Haven: Yale University Press, 1993], 8)
8. Albert Venn Dicey, Lectures on the Relation Between Law and Public Opinion in England, 2d ed. (London: MacMillan and Co., 1914), 154 (also see Appendix, Note 1: "The Right of Association).
9. Václav Havel, "Anti-Political Politics," in Civil Society and the State: New European Perspectives, ed. John Keane (London: Verso, 1988), 381-98.
10. Karl Marx, "Preface to A Critique of Political Economy," in Karl Marx: Selected Writings, ed. David McLellan (Oxford: Oxford University Press, 1977), 389. Engels' full statement from "Ludwig Feuerbach" reads, "The state - the political order - is the subordinate, and the civil society - the realm of economic relations - the decisive element." One of the best guides to the elaboration of Hegel's notion of civil society is Z.A. Pelczynski, ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984); Z.A. Pelczynski, "Solidarity and 'The Rebirth of Civil Society' in Poland, 1976-1981," in Civil Society and the State: New European Perspectives, ed. John Keane (London: Verso, 1988), 361-80.
11. Karl Marx, "Preface to A Critique of Political Economy," in Karl Marx: Selected Writings, ed. David McLellan (Oxford: Oxford University Press, 1977), 389. Engels' full statement from "Ludwig Feuerbach" reads, "The state - the political order - is the subordinate, and the civil society - the realm of economic relations - the decisive element." One of the best guides to the elaboration of Hegel's notion of civil society is Z.A. Pelczynski, ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984); Z.A. Pelczynski, "Solidarity and 'The Rebirth of Civil Society' in Poland, 1976-1981," in Civil Society and the State: New European Perspectives, ed. John Keane (London: Verso, 1988), 361-80.
12. Karl Marx, "Preface to A Critique of Political Economy," in Karl Marx: Selected Writings, ed. David McLellan (Oxford: Oxford University Press, 1977), 389. Engels' full statement from "Ludwig Feuerbach" reads, "The state - the political order - is the subordinate, and the civil society - the realm of economic relations - the decisive element." One of the best guides to the elaboration of Hegel's notion of civil society is Z.A. Pelczynski, ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984); Z.A. Pelczynski, "Solidarity and 'The Rebirth of Civil Society' in Poland, 1976-1981," in Civil Society and the State: New European Perspectives, ed. John Keane (London: Verso, 1988), 361-80.
13. George Schöpflin, for example, decries the lack of a liberal or "civic segment" in eastern Europe characterized by "its openness to new ideas, to the market, to initiative, to risk-taking, to technological change in economics" (George Schöpflin, "Culture and Identity in Post-Communist Europe," in Developments in East European Politics, eds. Stephen White, Judy Batt, and Paul G. Lewis [Durham: Duke University Press, 1993], 10-34, 32).
14. Mihály Vajda, "East-Central European Perspectives," in Civil Society and the State, 333-60, 350.
15. Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge: MIT Press, 1992), viii.
16. Cohen and Arato, Civil Society, ix.
17. Tocqueville found society's watchfulness functioning particularly well in small nations where it penetrates everywhere and attention is paid to the improvement of the smallest details; national ambition is greatly tempered by weakness, and their efforts and resources are almost entirely directed toward internal well-being and are not liable to be dissipated in vain dreams of glory. (Democracy in America, p. 158)
18. Ibid., 691-92.
19. Ibid., 189.
20. Ibid., 91, 697.
21. Ibid., 262, 193. As Tocqueville suggested, The most natural right of man, after that of acting on his own, is that of combining his efforts with those of his fellows and acting together. Therefore the right of association seems to me by nature almost as inalienable as individual liberty. Short of attacking society itself, no lawgiver can wish to abolish it. He recommended to European nations making the transition from the old regime: "Instead of entrusting all the administrative powers taken from corporations and from the nobility to the government alone, some of them could be handed over to secondary bodies temporarily composed of private citizens" (ibid., 696).
22. Ibid., 262, 193. As Tocqueville suggested, The most natural right of man, after that of acting on his own, is that of combining his efforts with those of his fellows and acting together. Therefore the right of association seems to me by nature almost as inalienable as individual liberty. Short of attacking society itself, no lawgiver can wish to abolish it. He recommended to European nations making the transition from the old regime: "Instead of entrusting all the administrative powers taken from corporations and from the nobility to the government alone, some of them could be handed over to secondary bodies temporarily composed of private citizens" (ibid., 696).
23. Ibid., 517.
24. Arthur M. Schlesinger, "Biography of a Nation of Joiners," in Paths to the Present: American Manners and Morals Seen in the Light of the History that has Conditioned them (1949; Boston: Hough ton Mifflin, 1964), 24-50, 24.
25. Ibid., 45, 48-49 (emphasis added). Schlesinger also explicitly agreed with Tocqueville on the antidespotic thrust of associations (and despotism had clear connotations in postwar America): It is with calculated foresight that totalitarian dictators ensure their rise to power by repressing or abolishing political, religious, labor, and other voluntary groups. The existence of these microcosms of democracy constitutes a potential threat they dare not ignore, undermining the absolute obedience which they insist citizens owe to the state. Hence joiners are among the earliest casualties of the totalitarian system.
26. Oscar and Mary Handlin, "Voluntary Associations," in The Dimensions of Liberty (Cambridge: Harvard University Press, 1961), 89-112, 89-90.
27. Handlins, "Voluntary Associations," 90, 95, 97.
28. Of which, of course, the Handlins are the famous historians. See Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Harvard University Press, 1917).
29. Ibid., 100, 96.
30. Ibid., 111-12. Recently American social historians have returned to Tocqueville's emphasis on American voluntary associations in assembling an alternative to the postwar synthesis of Schlesinger and the Handlins. Drawing on the more critical revival of the idea of civil society, contemporary social historians emphasize the dissenting power of an autonomous sphere of social intimacies, associations, and social movements that function in modernizing societies as counterweights - sites of social resistance - to repressive tendencies in both market economics and state politics. Some examples of this critical historical revival are Mary P. Ryan, The Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (New York: Cambridge University Press, 1981); and Lori D. Ginzberg, Women and the Work of Benevolence: Morality, Politics, and Class in the Nineteenth-Century United States (New Haven: Yale University Press, 1990).
31. Ibid., 111-12. Recently American social historians have returned to Tocqueville's emphasis on American voluntary associations in assembling an alternative to the postwar synthesis of Schlesinger and the Handlins. Drawing on the more critical revival of the idea of civil society, contemporary social historians emphasize the dissenting power of an autonomous sphere of social intimacies, associations, and social movements that function in modernizing societies as counterweights - sites of social resistance - to repressive tendencies in both market economics and state politics. Some examples of this critical historical revival are Mary P. Ryan, The Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (New York: Cambridge University Press, 1981); and Lori D. Ginzberg, Women and the Work of Benevolence: Morality, Politics, and Class in the Nineteenth-Century United States (New Haven: Yale University Press, 1990).
32. Ibid., 111-12. Recently American social historians have returned to Tocqueville's emphasis on American voluntary associations in assembling an alternative to the postwar synthesis of Schlesinger and the Handlins. Drawing on the more critical revival of the idea of civil society, contemporary social historians emphasize the dissenting power of an autonomous sphere of social intimacies, associations, and social movements that function in modernizing societies as counterweights - sites of social resistance - to repressive tendencies in both market economics and state politics. Some examples of this critical historical revival are Mary P. Ryan, The Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (New York: Cambridge University Press, 1981); and Lori D. Ginzberg, Women and the Work of Benevolence: Morality, Politics, and Class in the Nineteenth-Century United States (New Haven: Yale University Press, 1990).
33. "Self-liberation" denotes some of the descriptive literature of eastern European revolutions. See for example, Michael H. Bernhard, The Origins of Democratization in Poland: Workers, Intellectuals, and Oppositional Politics, 1976-1980 (New York: Columbia University Press, 1993), 10. "Self-constitution" and "self-mobilization" come from Cohen and Arato, Civil Society, ix. "Self-constitution" is also Arthur Schlesinger's phrase, along with "self-created" in "Nation of Joiners," 32, 49. "Spontaneous" and "noncoercive" are the Handlins ubiquitous descriptions of voluntary associations. Oscar and Mary Handlin, "Voluntary Associations," 89, 92, 111.
34. "Self-liberation" denotes some of the descriptive literature of eastern European revolutions. See for example, Michael H. Bernhard, The Origins of Democratization in Poland: Workers, Intellectuals, and Oppositional Politics, 1976-1980 (New York: Columbia University Press, 1993), 10. "Self-constitution" and "self-mobilization" come from Cohen and Arato, Civil Society, ix. "Self-constitution" is also Arthur Schlesinger's phrase, along with "self-created" in "Nation of Joiners," 32, 49. "Spontaneous" and "noncoercive" are the Handlins ubiquitous descriptions of voluntary associations. Oscar and Mary Handlin, "Voluntary Associations," 89, 92, 111.
35. "Self-liberation" denotes some of the descriptive literature of eastern European revolutions. See for example, Michael H. Bernhard, The Origins of Democratization in Poland: Workers, Intellectuals, and Oppositional Politics, 1976-1980 (New York: Columbia University Press, 1993), 10. "Self-constitution" and "self-mobilization" come from Cohen and Arato, Civil Society, ix. "Self-constitution" is also Arthur Schlesinger's phrase, along with "self-created" in "Nation of Joiners," 32, 49. "Spontaneous" and "noncoercive" are the Handlins ubiquitous descriptions of voluntary associations. Oscar and Mary Handlin, "Voluntary Associations," 89, 92, 111.
36. "Self-liberation" denotes some of the descriptive literature of eastern European revolutions. See for example, Michael H. Bernhard, The Origins of Democratization in Poland: Workers, Intellectuals, and Oppositional Politics, 1976-1980 (New York: Columbia University Press, 1993), 10. "Self-constitution" and "self-mobilization" come from Cohen and Arato, Civil Society, ix. "Self-constitution" is also Arthur Schlesinger's phrase, along with "self-created" in "Nation of Joiners," 32, 49. "Spontaneous" and "noncoercive" are the Handlins ubiquitous descriptions of voluntary associations. Oscar and Mary Handlin, "Voluntary Associations," 89, 92, 111.
37. John Locke, Two Treatises of Government, ed. Peter Laslett (1698; Cambridge: Cambridge University Press, 1960), 324.
38. Adam Ferguson, An Essay on the History of Civil Society, ed. Fania Oz-Salzberger (1767; Cambridge: Cambridge University Press, 1995), 131. Of course, the other great figure of the Scottish Enlightenment investigating the relationship of civil society, political economy, and legal state was Adam Smith. For an indication of his early understanding of the interdependence of economy and police, see Smith, Lectures on Jurisprudence, ed. R. L. Meek, D. D. Raphael, and P. G. Stein (1762-1763; Oxford: Oxford University Press, 1978), 331-33.
39. Adam Ferguson, An Essay on the History of Civil Society, ed. Fania Oz-Salzberger (1767; Cambridge: Cambridge University Press, 1995), 131. Of course, the other great figure of the Scottish Enlightenment investigating the relationship of civil society, political economy, and legal state was Adam Smith. For an indication of his early understanding of the interdependence of economy and police, see Smith, Lectures on Jurisprudence, ed. R. L. Meek, D. D. Raphael, and P. G. Stein (1762-1763; Oxford: Oxford University Press, 1978), 331-33.
40. Georg Wilhelm Friedrich Hegel, Lectures on Natural Right and Political Science, trans. J. Michael Stewart and Peter C. Hodgson (1817-1818; Berkeley: University of California Press, 1995), 166; Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H.B. Nisbet (1821; Cambridge: Cambridge University Press, 1991), 220-74. For an example of the way in which Hegel's tripartite division can be coopted into a more autonomous, privatized, apolitical version of civil society, see the definition of Edward Shils: The idea of civil society is the idea of a part of society which has a life of its own, which is distinctly different from the state, and which is largely in autonomy from it. . . . This idea of civil society has three main components. The first is a part of society comprising a complex of autonomous institutions - economic, religious, intellectual, and political - distinguishable from the family, the clan, the locality, and the state. The second is a part of society possessing a particular complex of relationships between itself and the state and a distinctive set of institutions which safeguard the separation of state and civil society and maintain effective ties between them. The third is a widespread pattern of refined or civil manners. In Shils's hands, political economy, law, and police become associations, constitutionalism, and manners. Edward Shils, "The Virtue of Civil Society," Gavernment and Opposition 26 (1991): 3-20, 3-4.
41. Georg Wilhelm Friedrich Hegel, Lectures on Natural Right and Political Science, trans. J. Michael Stewart and Peter C. Hodgson (1817-1818; Berkeley: University of California Press, 1995), 166; Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H.B. Nisbet (1821; Cambridge: Cambridge University Press, 1991), 220-74. For an example of the way in which Hegel's tripartite division can be coopted into a more autonomous, privatized, apolitical version of civil society, see the definition of Edward Shils: The idea of civil society is the idea of a part of society which has a life of its own, which is distinctly different from the state, and which is largely in autonomy from it. . . . This idea of civil society has three main components. The first is a part of society comprising a complex of autonomous institutions - economic, religious, intellectual, and political - distinguishable from the family, the clan, the locality, and the state. The second is a part of society possessing a particular complex of relationships between itself and the state and a distinctive set of institutions which safeguard the separation of state and civil society and maintain effective ties between them. The third is a widespread pattern of refined or civil manners. In Shils's hands, political economy, law, and police become associations, constitutionalism, and manners. Edward Shils, "The Virtue of Civil Society," Gavernment and Opposition 26 (1991): 3-20, 3-4.
42. Georg Wilhelm Friedrich Hegel, Lectures on Natural Right and Political Science, trans. J. Michael Stewart and Peter C. Hodgson (1817-1818; Berkeley: University of California Press, 1995), 166; Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H.B. Nisbet (1821; Cambridge: Cambridge University Press, 1991), 220-74. For an example of the way in which Hegel's tripartite division can be coopted into a more autonomous, privatized, apolitical version of civil society, see the definition of Edward Shils: The idea of civil society is the idea of a part of society which has a life of its own, which is distinctly different from the state, and which is largely in autonomy from it. . . . This idea of civil society has three main components. The first is a part of society comprising a complex of autonomous institutions - economic, religious, intellectual, and political - distinguishable from the family, the clan, the locality, and the state. The second is a part of society possessing a particular complex of relationships between itself and the state and a distinctive set of institutions which safeguard the separation of state and civil society and maintain effective ties between them. The third is a widespread pattern of refined or civil manners. In Shils's hands, political economy, law, and police become associations, constitutionalism, and manners. Edward Shils, "The Virtue of Civil Society," Gavernment and Opposition 26 (1991): 3-20, 3-4.
43. Roscoe Pound, "Liberty of Contract," Yale Law Journal 18 (1909): 454-87, 454-55; Pound, "Scope and Purpose of Sociological Jurisprudence," Harvard Law Review 24 (1911): 591-619, 25 (1912): 140-68, 489-516, 502.
44. Roscoe Pound, "Liberty of Contract," Yale Law Journal 18 (1909): 454-87, 454-55; Pound, "Scope and Purpose of Sociological Jurisprudence," Harvard Law Review 24 (1911): 591-619, 25 (1912): 140-68, 489-516, 502.
45. Roscoe Pound, "Liberty of Contract," Yale Law Journal 18 (1909): 454-87, 454-55; Pound, "Scope and Purpose of Sociological Jurisprudence," Harvard Law Review 24 (1911): 591-619, 25 (1912): 140-68, 489-516, 502.
46. Morris R. Cohen, "Property and Sovereignty," Cornell Law Quarterly 13 (1927): 8-30.
47. Cohen, "Property and Sovereignty," 12-13. Cohen elaborated on the legal and political construction of private property, and indeed, the very substructure of society: The extent of the power over the life of others which the legal order confers on those called owners is not fully appreciated by those who think of the law as merely protecting men in their possession. Property law does more. It determines what men shall acquire. Thus, protecting the property rights of a landlord means giving him the right to collect rent, protecting the property of a railroad or a public service corporation means giving it the right to make certain charges. Hence the ownership of land and machinery, with the rights of drawing rent, interest, etc., determines the future distribution of the goods that will come into being. . . . Thus not only medieval landlords but the owners of all revenue-producing property are in fact granted by the law certain powers to tax the future social product. When to this power of taxation there is added the power to command the services of large numbers who are not economically independent, we have the essence of what historically has constituted political sovereignty.
48. Ibid., 29. Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly, 38 (1923): 470-94.
49. Ibid., 29. Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly, 38 (1923): 470-94.
50. Hale, "Coercion and Distribution," 470.
51. Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities," American University Law Review 34 (1985): 939-1001; Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125; Morton J. Horwitz, The Transformation of American Law, 1870-1960; The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992); Robert J. Steinfeld, "The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor," in Labot Law in America: Historical and Critical Essays, Christopher L. Tomlins and Andrew J. King (Baltimore:Johns Hopkins University Press, 1991), 20-43.
52. Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities," American University Law Review 34 (1985): 939-1001; Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125; Morton J. Horwitz, The Transformation of American Law, 1870-1960; The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992); Robert J. Steinfeld, "The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor," in Labot Law in America: Historical and Critical Essays, Christopher L. Tomlins and Andrew J. King (Baltimore:Johns Hopkins University Press, 1991), 20-43.
53. Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities," American University Law Review 34 (1985): 939-1001; Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125; Morton J. Horwitz, The Transformation of American Law, 1870-1960; The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992); Robert J. Steinfeld, "The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor," in Labot Law in America: Historical and Critical Essays, Christopher L. Tomlins and Andrew J. King (Baltimore:Johns Hopkins University Press, 1991), 20-43.
54. Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities," American University Law Review 34 (1985): 939-1001; Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125; Morton J. Horwitz, The Transformation of American Law, 1870-1960; The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992); Robert J. Steinfeld, "The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor," in Labot Law in America: Historical and Critical Essays, Christopher L. Tomlins and Andrew J. King (Baltimore:Johns Hopkins University Press, 1991), 20-43.
55. Oscar and Mary Flug Handlin, Commonwealth; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge, MA: Harvard University Press, 1948); James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: Harvard University Press, 1964); Harry N. Scheiber, "Government and the Economy: Studies of the 'Commonwealth' Policy in Nineteenth-Century America," Journal of Interdisciplinary History 3 (1972): 135-51; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977).
56. Oscar and Mary Flug Handlin, Commonwealth; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge, MA: Harvard University Press, 1948); James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: Harvard University Press, 1964); Harry N. Scheiber, "Government and the Economy: Studies of the 'Commonwealth' Policy in Nineteenth-Century America," Journal of Interdisciplinary History 3 (1972): 135-51; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977).
57. Oscar and Mary Flug Handlin, Commonwealth; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge, MA: Harvard University Press, 1948); James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: Harvard University Press, 1964); Harry N. Scheiber, "Government and the Economy: Studies of the 'Commonwealth' Policy in Nineteenth-Century America," Journal of Interdisciplinary History 3 (1972): 135-51; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977).
58. Oscar and Mary Flug Handlin, Commonwealth; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge, MA: Harvard University Press, 1948); James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: Harvard University Press, 1964); Harry N. Scheiber, "Government and the Economy: Studies of the 'Commonwealth' Policy in Nineteenth-Century America," Journal of Interdisciplinary History 3 (1972): 135-51; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977).
59. Oscar and Mary Flug Handlin, Commonwealth; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge, MA: Harvard University Press, 1948); James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: Harvard University Press, 1964); Harry N. Scheiber, "Government and the Economy: Studies of the 'Commonwealth' Policy in Nineteenth-Century America," Journal of Interdisciplinary History 3 (1972): 135-51; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977).
60. See for example, William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991); and Colleen A. Dunlavy, Politics and Industrialization: Early Railroads in the United States and Prussia (Princeton: Princeton University Press, 1994) . For an excellent overview of this literature, see Richard R. John, "Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835," Studies in American Political Development 11 (1997): 347-80.
61. See for example, William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991); and Colleen A. Dunlavy, Politics and Industrialization: Early Railroads in the United States and Prussia (Princeton: Princeton University Press, 1994) . For an excellent overview of this literature, see Richard R. John, "Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835," Studies in American Political Development 11 (1997): 347-80.
62. See for example, William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991); and Colleen A. Dunlavy, Politics and Industrialization: Early Railroads in the United States and Prussia (Princeton: Princeton University Press, 1994) . For an excellent overview of this literature, see Richard R. John, "Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835," Studies in American Political Development 11 (1997): 347-80.
63. See for example, William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991); and Colleen A. Dunlavy, Politics and Industrialization: Early Railroads in the United States and Prussia (Princeton: Princeton University Press, 1994) . For an excellent overview of this literature, see Richard R. John, "Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835," Studies in American Political Development 11 (1997): 347-80.
64. Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1995).
65. Theda Skocpol Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Harvard University Press, 1992), 14-18 . Skocpol singles out several examples of the persistence of an exceptionalist, anti-statist historiography in the social welfare literature, e.g., Daniel Levine's characterization of the pre-New Deal United States as a "land of abundance," where citizens saw "no reason for people to be poor and therefore no reason for any but the most minimal, mostly private, charity," and Roy Lubove's contention that "voluntary association provided an alternative to politics and governmental action. It enabled groups of all kinds to exert an influence and seek their distinctive goals without resort to the coercive powers of government." For Skocpol's most recent exploration of the interconnection of associations and the state, see Skocpol, Marshall Ganz, and Ziad Munson, "A Nation of Organizers: The Institutional Origins of Civic Voluntarism in the United States," American Political Science Review 94 (2000): 527-46.
66. Theda Skocpol Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Harvard University Press, 1992), 14-18 . Skocpol singles out several examples of the persistence of an exceptionalist, anti-statist historiography in the social welfare literature, e.g., Daniel Levine's characterization of the pre-New Deal United States as a "land of abundance," where citizens saw "no reason for people to be poor and therefore no reason for any but the most minimal, mostly private, charity," and Roy Lubove's contention that "voluntary association provided an alternative to politics and governmental action. It enabled groups of all kinds to exert an influence and seek their distinctive goals without resort to the coercive powers of government." For Skocpol's most recent exploration of the interconnection of associations and the state, see Skocpol, Marshall Ganz, and Ziad Munson, "A Nation of Organizers: The Institutional Origins of Civic Voluntarism in the United States," American Political Science Review 94 (2000): 527-46.
67. I owe the very useful notion of "technology of public action" to Hendrik Hartog's interpretation of the political theory of early New York City waterlot grants. Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), 66.
68. Tocqueville, Democracy in America, 189.
69. Ernst Freund dubbed nuisance law "the common law of the police power, striking at all gross violations of health, safety, order, and morals." Sidney and Beatrice Webb similarly noted that the capacious social obligations entailed by nuisance law included almost "every conceivable neglect or offence" - a good portion of the "framework of law in which the ordinary citizen found himself." Ernst Freund, Standards of American Legislation (Chicago: University of Chicago Press, 1965), 66; Sidney and Beatrice Webb, The Development of English Local Government 1689-1835 (London: Oxford University Press, 1963). For a fuller discussion of the common law of public nuisance in nineteenth-century America, see Novak, People's Welfare.
70. Ernst Freund dubbed nuisance law "the common law of the police power, striking at all gross violations of health, safety, order, and morals." Sidney and Beatrice Webb similarly noted that the capacious social obligations entailed by nuisance law included almost "every conceivable neglect or offence" - a good portion of the "framework of law in which the ordinary citizen found himself." Ernst Freund, Standards of American Legislation (Chicago: University of Chicago Press, 1965), 66; Sidney and Beatrice Webb, The Development of English Local Government 1689-1835 (London: Oxford University Press, 1963). For a fuller discussion of the common law of public nuisance in nineteenth-century America, see Novak, People's Welfare.
71. Ernst Freund dubbed nuisance law "the common law of the police power, striking at all gross violations of health, safety, order, and morals." Sidney and Beatrice Webb similarly noted that the capacious social obligations entailed by nuisance law included almost "every conceivable neglect or offence" - a good portion of the "framework of law in which the ordinary citizen found himself." Ernst Freund, Standards of American Legislation (Chicago: University of Chicago Press, 1965), 66; Sidney and Beatrice Webb, The Development of English Local Government 1689-1835 (London: Oxford University Press, 1963). For a fuller discussion of the common law of public nuisance in nineteenth-century America, see Novak, People's Welfare.
72. Nathaniel Chipman, Principles of Government: A Treatise on Free Institutions (Burlington, VT, 1833), 39.
73. James Wilson, The Works of James Wilson, ed. Robert Green McCloskey, 2 vols. (Cambridge, MA: Harvard University Press, 1967), 1:239.
74. Zephaniah Swift, A System of the Laws of the State of Connecticut, 2 vols. (Windham, CT, 1795), 16.
75. Francis Hilliard, The Elements of Law: Being a Comprehensive Summary of American Civil Jurisdiction (Boston, 1835), vi.
76. Francis Lieber, Manual of Political Ethics (Boston, 1839); Francis Lieber, On Civil Liberty and Self-Government, 3d ed., rev. (1853; Philadelphia, 1891). A good personal biography of Lieber (though inadequate on his jurisprudence) is Frank Freidel, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947).
77. Francis Lieber, Manual of Political Ethics (Boston, 1839); Francis Lieber, On Civil Liberty and Self-Government, 3d ed., rev. (1853; Philadelphia, 1891). A good personal biography of Lieber (though inadequate on his jurisprudence) is Frank Freidel, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947).
78. Francis Lieber, Manual of Political Ethics (Boston, 1839); Francis Lieber, On Civil Liberty and Self-Government, 3d ed., rev. (1853; Philadelphia, 1891). A good personal biography of Lieber (though inadequate on his jurisprudence) is Frank Freidel, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947).
79. Lieber, Civil Liberty and Self-Government, 248-49. Lieber's hostility to French government and thought was extreme. As his student Theodore D. Woolsey pointed out, Civil Liberty and Self-Government was written with 1848 and the government of Napoleon III in clear view - "a centralized power swallowing up all minor authority in the great leviathan, and calling that a government of the people, because the people gave their consent to it once and forever." To call Lieber unsympathetic would be an understatement: The French acknowledge as the first thing to be obtained, power, force; and their philosophical writers, such as Rousseau, seek, almost exclusively, a philosophical or legitimate source of that power. Hence their view of universal suffrage, and the power, be it that of an all-powerful Caesar, or of a concentrated single chamber, all-providing and all-penetrating, when once established, arising out of it. (Ibid., 9, 197) See also Francis Lieber, "Anglican and Gallican Liberty," in Contributions to Political Science, Including Lectures on the Constitution of the United States and Other Papers (Philadelphia, 1881), 371-88.
80. Lieber, Civil Liberty and Self-Government, 248-49. Lieber's hostility to French government and thought was extreme. As his student Theodore D. Woolsey pointed out, Civil Liberty and Self-Government was written with 1848 and the government of Napoleon III in clear view - "a centralized power swallowing up all minor authority in the great leviathan, and calling that a government of the people, because the people gave their consent to it once and forever." To call Lieber unsympathetic would be an understatement: The French acknowledge as the first thing to be obtained, power, force; and their philosophical writers, such as Rousseau, seek, almost exclusively, a philosophical or legitimate source of that power. Hence their view of universal suffrage, and the power, be it that of an all-powerful Caesar, or of a concentrated single chamber, all-providing and all-penetrating, when once established, arising out of it. (Ibid., 9, 197) See also Francis Lieber, "Anglican and Gallican Liberty," in Contributions to Political Science, Including Lectures on the Constitution of the United States and Other Papers (Philadelphia, 1881), 371-88.
81. Lieber, Civil Liberty and Self-Government, 248-49. Lieber's hostility to French government and thought was extreme. As his student Theodore D. Woolsey pointed out, Civil Liberty and Self-Government was written with 1848 and the government of Napoleon III in clear view - "a centralized power swallowing up all minor authority in the great leviathan, and calling that a government of the people, because the people gave their consent to it once and forever." To call Lieber unsympathetic would be an understatement: The French acknowledge as the first thing to be obtained, power, force; and their philosophical writers, such as Rousseau, seek, almost exclusively, a philosophical or legitimate source of that power. Hence their view of universal suffrage, and the power, be it that of an all-powerful Caesar, or of a concentrated single chamber, all-providing and all-penetrating, when once established, arising out of it. (Ibid., 9, 197) See also Francis Lieber, "Anglican and Gallican Liberty," in Contributions to Political Science, Including Lectures on the Constitution of the United States and Other Papers (Philadelphia, 1881), 371-88.
82. Lieber, Civil Liberty and Self-Government, 248-49. Lieber's hostility to French government and thought was extreme. As his student Theodore D. Woolsey pointed out, Civil Liberty and Self-Government was written with 1848 and the government of Napoleon III in clear view - "a centralized power swallowing up all minor authority in the great leviathan, and calling that a government of the people, because the people gave their consent to it once and forever." To call Lieber unsympathetic would be an understatement: The French acknowledge as the first thing to be obtained, power, force; and their philosophical writers, such as Rousseau, seek, almost exclusively, a philosophical or legitimate source of that power. Hence their view of universal suffrage, and the power, be it that of an all-powerful Caesar, or of a concentrated single chamber, all-providing and all-penetrating, when once established, arising out of it. (Ibid., 9, 197) See also Francis Lieber, "Anglican and Gallican Liberty," in Contributions to Political Science, Including Lectures on the Constitution of the United States and Other Papers (Philadelphia, 1881), 371-88.
83. As Lieber put it, "Self-government is in its nature the opposite to political apathy and that moral torpidity or social indifference which is sure to give free play to absolutism, or else to dissolve the whole polity" (Ibid., 251).
84. Ibid., 2-19, 298, 144.
85. Ibid., 300, 320.
86. Lieber enumerated a range of institutions, past and present, good and bad, expedient, and unwise, human and divine: a bank, parliament, a court of justice, the bar, the church, the mail, a state, the Lord's supper, a university, the Inquisition, property, the sabbath, the feudal system, the Roman triumph, the Hindoo castes, the bill of exchange, the French Institute, our presidency, the New York tract society, the Areopagus, the Olympic games, an insurance company, the janizaries, the English common law, the episcopate, the tribunate, the captainship of a fishing-fleet, the crown, the German book-trade, the Goldsmiths' Company, our senate, our representatives, our congress, our state legislatures, courts of conciliation, the justiceship of the peace, the priesthood, a confederacy, the patent, the copyright, hospitals for lunatics, estates, the East India Company (ibid., 301-2).
87. Ibid., 300, 319, 24, 322.
88. Otto von Gierke, Das Deutsche Genossenschaftsrecht (The German Law of Fellowship), 4 vols. (Berlin, 1868-1913). Substantial parts of Gierke's treatise are available in English. See Frederick W. Maitland, political Theories of the Middle Age (Cambridge: Cambridge University Press, 1900); Ernest Barker, Natural Law of the Theory of Society 1500 to 1800 (Cambridge: Cambridge University Press, 1958); Antony Black, Community in Historical Perspective (Cambridge: Cambridge University Press, 1990).
89. Otto von Gierke, Das Deutsche Genossenschaftsrecht (The German Law of Fellowship), 4 vols. (Berlin, 1868-1913). Substantial parts of Gierke's treatise are available in English. See Frederick W. Maitland, political Theories of the Middle Age (Cambridge: Cambridge University Press, 1900); Ernest Barker, Natural Law of the Theory of Society 1500 to 1800 (Cambridge: Cambridge University Press, 1958); Antony Black, Community in Historical Perspective (Cambridge: Cambridge University Press, 1990).
90. Otto von Gierke, Das Deutsche Genossenschaftsrecht (The German Law of Fellowship), 4 vols. (Berlin, 1868-1913). Substantial parts of Gierke's treatise are available in English. See Frederick W. Maitland, political Theories of the Middle Age (Cambridge: Cambridge University Press, 1900); Ernest Barker, Natural Law of the Theory of Society 1500 to 1800 (Cambridge: Cambridge University Press, 1958); Antony Black, Community in Historical Perspective (Cambridge: Cambridge University Press, 1990).
91. Otto von Gierke, Das Deutsche Genossenschaftsrecht (The German Law of Fellowship), 4 vols. (Berlin, 1868-1913). Substantial parts of Gierke's treatise are available in English. See Frederick W. Maitland, political Theories of the Middle Age (Cambridge: Cambridge University Press, 1900); Ernest Barker, Natural Law of the Theory of Society 1500 to 1800 (Cambridge: Cambridge University Press, 1958); Antony Black, Community in Historical Perspective (Cambridge: Cambridge University Press, 1990).
92. Hannah Arendt, On Revolution (New York: Macmillan, 1963), 152.
93. Resolves and Private Laws of the State of Connecticut, 1789-1865 5 vols. (New Haven, 1837-1871). Also known as "private" acts, these statutes were often published separately to distinguish them from the more "public" acts of general legislation. Here the public-private distinction is deployed to designate the specific versus general (applying to some versus applying to all) character of the legislation rather than the presence or absence of the state. The presence of the state is only too apparent in all these statutes.
94. See for example, The Private Laws of the State of Illinois, 1851, 1853, 1855, 3 vols. (Springfield, 1851-1855).
95. See for example, Private and Special Statutes of the Commonwealth of Massachusetts for the Years 1898, 1899, 1900, and 1901 (Boston, 1902), vol. 18. The state of Maine published its "private or special" laws from 1820 to 1828 in a single volume containing some 569 pieces of legislation, most of which were acts of associational incorporation. Private of Special Laws of the State of Maine, 1820-1839 (4 vols., Portland, 1828), vol. 1. For similar compendia, see Private and Special Statutes of the Commonwealth of Massachusetts, 1797-1805, 3 vols. (Boston, 1805); Private Laws of the State of North Carolina; and Private Acts of the State of Tennessee.
96. See for example, Private and Special Statutes of the Commonwealth of Massachusetts for the Years 1898, 1899, 1900, and 1901 (Boston, 1902), vol. 18. The state of Maine published its "private or special" laws from 1820 to 1828 in a single volume containing some 569 pieces of legislation, most of which were acts of associational incorporation. Private of Special Laws of the State of Maine, 1820-1839 (4 vols., Portland, 1828), vol. 1. For similar compendia, see Private and Special Statutes of the Commonwealth of Massachusetts, 1797-1805, 3 vols. (Boston, 1805); Private Laws of the State of North Carolina; and Private Acts of the State of Tennessee.
97. See for example, Private and Special Statutes of the Commonwealth of Massachusetts for the Years 1898, 1899, 1900, and 1901 (Boston, 1902), vol. 18. The state of Maine published its "private or special" laws from 1820 to 1828 in a single volume containing some 569 pieces of legislation, most of which were acts of associational incorporation. Private of Special Laws of the State of Maine, 1820-1839 (4 vols., Portland, 1828), vol. 1. For similar compendia, see Private and Special Statutes of the Commonwealth of Massachusetts, 1797-1805, 3 vols. (Boston, 1805); Private Laws of the State of North Carolina; and Private Acts of the State of Tennessee.
98. See for example, Private and Special Statutes of the Commonwealth of Massachusetts for the Years 1898, 1899, 1900, and 1901 (Boston, 1902), vol. 18. The state of Maine published its "private or special" laws from 1820 to 1828 in a single volume containing some 569 pieces of legislation, most of which were acts of associational incorporation. Private of Special Laws of the State of Maine, 1820-1839 (4 vols., Portland, 1828), vol. 1. For similar compendia, see Private and Special Statutes of the Commonwealth of Massachusetts, 1797-1805, 3 vols. (Boston, 1805); Private Laws of the State of North Carolina; and Private Acts of the State of Tennessee.
99. United Stales Statutes at Large, 1789-1845, ed. Richard Peters (Boston, 1848), vol. 1; see especially "Table No. IV. Comprising the Acts of Congress from 1789 to 18-15, Inclusive. Relating to the Public Lands," xcviii-cxviii.
100. Timothy Walker, Introduction to American Law: Designed as a First Book for Students, 7th ed. (1837; Boston, 1878), 223.
101. James Willard Hurst, "The Use of Law in Four 'Colonial' States of the American Union," Wisconsin Law Review (1945): 585.
102. A classic example of this specialization of the American law of association is the nineteenth-century law of mining partnership. Being an unincorporated trading venture, a mining partnership would usually be subject to dissolution upon the withdrawal of a single partner. Given the special conditions and uncertainty of mining, however, American jurists created an exception allowing "one person to convey his interest in the mine and business without dissolving the partnership." As California Supreme Court Justice Crocker summed up the need for common law flexibility in the law of association: "It is impossible to lay down a perfect code of rules upon the subject: but like other legal rules, they must be settled as they arise in cases requiring their determination. Such rules must be governed by the peculiar condition and circumstances of the country" (Skillman v. Lachman, 23 Cal. 198; 83 Am. Dec. 96 [1863], 98, 102).
103. For some examples deploying these categories, see William Blackstone, Commentaries on the Laws of England, 4 vols. (1765-1769; Chicago: University of Chicago Press, 1979), 1:455-73; James Kent, Commentaries on American Law, 12th ed., 4 vols. (Boston: Little, Brown, and Co., 1873), II:207-315 ; Sydney R. Wrightington, The Law of Unincorporated Associations and Business Trusts (Boston: Little, Brown, and Co., 1923), 4-5; Herbert A. Smith, The Law of Associations: Corporate and Unincorporate (London: Oxford University Press, 1914), 20.
104. For some examples deploying these categories, see William Blackstone, Commentaries on the Laws of England, 4 vols. (1765-1769; Chicago: University of Chicago Press, 1979), 1:455-73; James Kent, Commentaries on American Law, 12th ed., 4 vols. (Boston: Little, Brown, and Co., 1873), II:207-315 ; Sydney R. Wrightington, The Law of Unincorporated Associations and Business Trusts (Boston: Little, Brown, and Co., 1923), 4-5; Herbert A. Smith, The Law of Associations: Corporate and Unincorporate (London: Oxford University Press, 1914), 20.
105. For some examples deploying these categories, see William Blackstone, Commentaries on the Laws of England, 4 vols. (1765-1769; Chicago: University of Chicago Press, 1979), 1:455-73; James Kent, Commentaries on American Law, 12th ed., 4 vols. (Boston: Little, Brown, and Co., 1873), II:207-315 ; Sydney R. Wrightington, The Law of Unincorporated Associations and Business Trusts (Boston: Little, Brown, and Co., 1923), 4-5; Herbert A. Smith, The Law of Associations: Corporate and Unincorporate (London: Oxford University Press, 1914), 20.
106. For some examples deploying these categories, see William Blackstone, Commentaries on the Laws of England, 4 vols. (1765-1769; Chicago: University of Chicago Press, 1979), 1:455-73; James Kent, Commentaries on American Law, 12th ed., 4 vols. (Boston: Little, Brown, and Co., 1873), II:207-315 ; Sydney R. Wrightington, The Law of Unincorporated Associations and Business Trusts (Boston: Little, Brown, and Co., 1923), 4-5; Herbert A. Smith, The Law of Associations: Corporate and Unincorporate (London: Oxford University Press, 1914), 20.
107. Kent, Commentaries, II:274; Henry H. Ingersoll, Handbook of the Law of Public Corporations (St. Paul: West Publishing Co., 1904), 19-22. The uncertain category of "quasi-corporations" is another good example of just how differentiated and unsystematic the law of associations could be. English author Herbert Smith noted the inclusion as quasi-corporations of trade unions, friendly societies, industrial and provident societies, and registered workingmen's clubs (Smith, Law of Associations, 21).
108. Kent, Commentaries, II:274; Henry H. Ingersoll, Handbook of the Law of Public Corporations (St. Paul: West Publishing Co., 1904), 19-22. The uncertain category of "quasi-corporations" is another good example of just how differentiated and unsystematic the law of associations could be. English author Herbert Smith noted the inclusion as quasi-corporations of trade unions, friendly societies, industrial and provident societies, and registered workingmen's clubs (Smith, Law of Associations, 21).
109. Kent, Commentaries, II:274; Henry H. Ingersoll, Handbook of the Law of
110. James Kent, Commentaries on American Law, 4 vols. (New York, 1826), I:189-205, 189-90. Kent's rendering of foundational associationalism also made its way into such practical political and instructional manuals as Joseph Burleigh's The American Manual. Burleigh began his survey of the Origin of the American Constitution" by noting "several instances of an association of the people of America for mutual defence and protection, while owing allegiance to the British crown." The most important being the league of the United Colonies of England to "regulate their general concerns, and especially to levy war and make requisitions upon each component colony for men and money according to its population" (Joseph Bartlett Burleigh, The American Manual [Philadelphia, 1853], 83-84).
111. James Kent, Commentaries on American Law, 4 vols. (New York, 1826), I:189-205, 189-90. Kent's rendering of foundational associationalism also made its way into such practical political and instructional manuals as Joseph Burleigh's The American Manual. Burleigh began his survey of the Origin of the American Constitution" by noting "several instances of an association of the people of America for mutual defence and protection, while owing allegiance to the British crown." The most important being the league of the United Colonies of England to "regulate their general concerns, and especially to levy war and make requisitions upon each component colony for men and money according to its population" (Joseph Bartlett Burleigh, The American Manual [Philadelphia, 1853], 83-84).
112. James Kent, Commentaries on American Law, 4 vols. (New York, 1826), I:189-205, 189-90. Kent's rendering of foundational associationalism also made its way into such practical political and instructional manuals as Joseph Burleigh's The American Manual. Burleigh began his survey of the Origin of the American Constitution" by noting "several instances of an association of the people of America for mutual defence and protection, while owing allegiance to the British crown." The most important being the league of the United Colonies of England to "regulate their general concerns, and especially to levy war and make requisitions upon each component colony for men and money according to its population" (Joseph Bartlett Burleigh, The American Manual [Philadelphia, 1853], 83-84).
113. William Sullivan, The Political Class Book: Intended to Instruct the Higher Classes in Schools in the Origin, Nature, and Use of Political Power (Boston, 1831), 19.
114. Wilson, Works, I:360-61.
115. Tocqueville, Democracy in Amaica, 61-98. Tocqueville also recognized the autonomy of American local governmental associations: In all that concerns themselves alone the townships remain independent bodies, and I do not think one could find a single inhabitant of New England who would recognize the right of the government of the state to control matters of purely municipal interest. (Tocqueville, 67)
116. Frederic William Maitland and Frederick Pollock, The Hutory of English Law Before, the Time of Edward 1, 2 vols., 2d. ed. (Cambridge: Cambridge University Press, 1952), I:534.
117. "An Act to Incorporate the Towns of M'Minnville and Fosterville," chap. 33, October 11, 1832, in Private Acts Passed at the Called Session of the Nineteenth General Assembly of the State of Tennessee (Nashville, 1832), 17-21.
118. See Francis Lieber, Civil Liberty and Self-Government 323.
119. Hartog, Public Property and Private Power.
120. Nathan Dane, A General Abridgment and Digest of American Law, 8 vols. (Boston, 1823), I:457, 460.
121. Laws of the State of New York (Albany, 1826), chap. 185, 191, 193.
122. For examples of statutes imposing liability on municipal corporations, see Pennsylvania Laws (1841), 416, chap. 144; New Hampshire Laws (1854), 1416, chap. 1519; New York Session Laws (1855), 800, chap. 428; New Jersey Laws (1864), 237, chap. 150. On the Philadelphia litigation see Donaghue v. The County, 2 Pa. St. 230 (1845); Hermits of St. Augustine v. The County, Brightly's Rep. (Pa., 1847); St. Michael's Church v. The County, Brightly's Rep. (Pa., 1847); Commissioners of Kensington v. County of Philadelphia, 13 Pa. 76 (1850); County of Allegheny v. Gibson's Son & Co., 80 Pa. St. R. 397 (1879); and Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport: Greenwood Press, 1975). On the New York City draft riots, see Davidson v. Mayor of New York, 25 Superior Ct. 230 (New York, 1864); Darlington v. Mayor of New York, 31 NY 164 (1865); Scheillein v. Board of Supervisors of the County of Kings, 43 Barb. 490 (New York, 1865); Newberry v. Mayor, 1 Sweeney 369 (New York, 1869); and Iver Bernstein, The New York City Draft Riots: Their Significance for American Saciety and Politics in the Age of the Civil War (New York: Oxford University Press, 1990).
123. For examples of statutes imposing liability on municipal corporations, see Pennsylvania Laws (1841), 416, chap. 144; New Hampshire Laws (1854), 1416, chap. 1519; New York Session Laws (1855), 800, chap. 428; New Jersey Laws (1864), 237, chap. 150. On the Philadelphia litigation see Donaghue v. The County, 2 Pa. St. 230 (1845); Hermits of St. Augustine v. The County, Brightly's Rep. (Pa., 1847); St. Michael's Church v. The County, Brightly's Rep. (Pa., 1847); Commissioners of Kensington v. County of Philadelphia, 13 Pa. 76 (1850); County of Allegheny v. Gibson's Son & Co., 80 Pa. St. R. 397 (1879); and Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport: Greenwood Press, 1975). On the New York City draft riots, see Davidson v. Mayor of New York, 25 Superior Ct. 230 (New York, 1864); Darlington v. Mayor of New York, 31 NY 164 (1865); Scheillein v. Board of Supervisors of the County of Kings, 43 Barb. 490 (New York, 1865); Newberry v. Mayor, 1 Sweeney 369 (New York, 1869); and Iver Bernstein, The New York City Draft Riots: Their Significance for American Saciety and Politics in the Age of the Civil War (New York: Oxford University Press, 1990).
124. For examples of statutes imposing liability on municipal corporations, see Pennsylvania Laws (1841), 416, chap. 144; New Hampshire Laws (1854), 1416, chap. 1519; New York Session Laws (1855), 800, chap. 428; New Jersey Laws (1864), 237, chap. 150. On the Philadelphia litigation see Donaghue v. The County, 2 Pa. St. 230 (1845); Hermits of St. Augustine v. The County, Brightly's Rep. (Pa., 1847); St. Michael's Church v. The County, Brightly's Rep. (Pa., 1847); Commissioners of Kensington v. County of Philadelphia, 13 Pa. 76 (1850); County of Allegheny v. Gibson's Son & Co., 80 Pa. St. R. 397 (1879); and Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport: Greenwood Press, 1975). On the New York City draft riots, see Davidson v. Mayor of New York, 25 Superior Ct. 230 (New York, 1864); Darlington v. Mayor of New York, 31 NY 164 (1865); Scheillein v. Board of Supervisors of the County of Kings, 43 Barb. 490 (New York, 1865); Newberry v. Mayor, 1 Sweeney 369 (New York, 1869); and Iver Bernstein, The New York City Draft Riots: Their Significance for American Saciety and Politics in the Age of the Civil War (New York: Oxford University Press, 1990).
125. For examples of statutes imposing liability on municipal corporations, see Pennsylvania Laws (1841), 416, chap. 144; New Hampshire Laws (1854), 1416, chap. 1519; New York Session Laws (1855), 800, chap. 428; New Jersey Laws (1864), 237, chap. 150. On the Philadelphia litigation see Donaghue v. The County, 2 Pa. St. 230 (1845); Hermits of St. Augustine v. The County, Brightly's Rep. (Pa., 1847); St. Michael's Church v. The County, Brightly's Rep. (Pa., 1847); Commissioners of Kensington v. County of Philadelphia, 13 Pa. 76 (1850); County of Allegheny v. Gibson's Son & Co., 80 Pa. St. R. 397 (1879); and Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport: Greenwood Press, 1975). On the New York City draft riots, see Davidson v. Mayor of New York, 25 Superior Ct. 230 (New York, 1864); Darlington v. Mayor of New York, 31 NY 164 (1865); Scheillein v. Board of Supervisors of the County of Kings, 43 Barb. 490 (New York, 1865); Newberry v. Mayor, 1 Sweeney 369 (New York, 1869); and Iver Bernstein, The New York City Draft Riots: Their Significance for American Saciety and Politics in the Age of the Civil War (New York: Oxford University Press, 1990).
126. For examples of statutes imposing liability on municipal corporations, see Pennsylvania Laws (1841), 416, chap. 144; New Hampshire Laws (1854), 1416, chap. 1519; New York Session Laws (1855), 800, chap. 428; New Jersey Laws (1864), 237, chap. 150. On the Philadelphia litigation see Donaghue v. The County, 2 Pa. St. 230 (1845); Hermits of St. Augustine v. The County, Brightly's Rep. (Pa., 1847); St. Michael's Church v. The County, Brightly's Rep. (Pa., 1847); Commissioners of Kensington v. County of Philadelphia, 13 Pa. 76 (1850); County of Allegheny v. Gibson's Son & Co., 80 Pa. St. R. 397 (1879); and Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport: Greenwood Press, 1975). On the New York City draft riots, see Davidson v. Mayor of New York, 25 Superior Ct. 230 (New York, 1864); Darlington v. Mayor of New York, 31 NY 164 (1865); Scheillein v. Board of Supervisors of the County of Kings, 43 Barb. 490 (New York, 1865); Newberry v. Mayor, 1 Sweeney 369 (New York, 1869); and Iver Bernstein, The New York City Draft Riots: Their Significance for American Saciety and Politics in the Age of the Civil War (New York: Oxford University Press, 1990).
127. Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I, 2d ed., 2 vols. (Washington, DC: Lawyers' Literary Club, 1959), I:556-60.
128. "An Act for Preventing Tumults and Riotous Assemblies, and for the More Speedy and Effectual Punishing of the Rioters, 1 Geo I, stat. 2, chap. 5 (1714); Ratcliffe v. Eden, Cowp. 485 (England, 1776), 488.
129. Alexander Addison, "Charges to Grand Juries," Addison's Reports (Pa., 1800), 89.
130. Davidson v. Mayor, 240.
131. Blackstone, Commentaries, I:455-73. For a fuller but comparable discussion of American incorporation see Kent, Commentaries, II:267-315.
132. Blackstone, Commentaries, I:455-73. For a fuller but comparable discussion of American incorporation see Kent, Commentaries, II:267-315.
133. "An Act to Establish a Turnpike Road from the Town of Murfreesborough to the Top of the Ridge in the Direction to M'Minnville," chap. 34, October 13, 1832, Private Acts Passed at the Called Session of the Nineteenth General Assembly of the State of Tennessee (Nashville, 1832), 21-25. The legislature closely prescribed the "public" rates of toll for this "private" corporation: For every twenty head of sheep, twenty cents; for every twenty head of hogs, twenty cents, for every twenty horned or neat cattle, fifty cents; for every horse or mule not in a drove, six and one fourth cents, if in a drove, two cents; and so in proportion for any less or smaller number of said animals; for every four wheel pleasure carriage, twenty-five cents; for every two wheel riding carriage, twenty-five cents; fore every loaded wagon, twenty-five cents; and for every empty wagon, twelve and a half cents; and for a man and horse, six and a fourth cents; for every cart, twelve and a half cents; for every hogshead of tobacco including the above sum for oxen, mules or horses drawing the said carriage or wagon, cart or tobacco, twelve and a half cents.
134. Joseph S. Davis, Essays in the Earlier History of American Corporations, 2 vols. (Cambridge: Harvard University Press, 1917), II:2; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1861) (Cambridge, MA: Harvard University Press, 1948), 38; Milton Sydney Heath, Constructive Liberalism: The Role of the State in Economic Development in Georgia to 1860 (Cambridge, MA: Harvard University Press, 1954), 308.
135. Joseph S. Davis, Essays in the Earlier History of American Corporations, 2 vols. (Cambridge: Harvard University Press, 1917), II:2; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1861) (Cambridge, MA: Harvard University Press, 1948), 38; Milton Sydney Heath, Constructive Liberalism: The Role of the State in Economic Development in Georgia to 1860 (Cambridge, MA: Harvard University Press, 1954), 308.
136. Joseph S. Davis, Essays in the Earlier History of American Corporations, 2 vols. (Cambridge: Harvard University Press, 1917), II:2; Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1861) (Cambridge, MA: Harvard University Press, 1948), 38; Milton Sydney Heath, Constructive Liberalism: The Role of the State in Economic Development in Georgia to 1860 (Cambridge, MA: Harvard University Press, 1954), 308.
137. James Willard Hurst, The Legitimacy of the Business Corporation (Charlottesville: University Press of Virginia, 1969), 20. As Hurst noted, many of these special grants did not require formal incorporation, that is, state legislatures also granted such privileges to unincorporated associations (as well as some individuals). But they were only available through the official public action of state legislatures.
138. Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan and Co., 1904), 359 . Willard Hurst enumerated even more particular legislative reservations: Distinctive to transportation company charters were statutory stipulations for provision of promised facilities (that, on pain of forfeiture, minimum capital be subscribed and paid in, operations begin within some specified time, and works be kept in good order and not abandoned), for tolls to be within set minimum and maximum levels, to be fair and reasonable, and to be conditioned on substantial service, and for certain operations reports to be regularly filed. Distinctive to bank charters were particular requirements as to minimum capital paid in, specie reserves, personal liability of bank directors for various kinds of misconduct, special liability of stockholders for debts of the bank, and the rendering of reports and the opening of books to legislative inquiry. Distinctive to insurance company charters was a slow elaboration of special financial regulations, directed at creating an adequate insurance fund and protecting its integrity against careless or fraudulent diversion. (Hurst, Business Corporation, 39)
139. Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan and Co., 1904), 359 . Willard Hurst enumerated even more particular legislative reservations: Distinctive to transportation company charters were statutory stipulations for provision of promised facilities (that, on pain of forfeiture, minimum capital be subscribed and paid in, operations begin within some specified time, and works be kept in good order and not abandoned), for tolls to be within set minimum and maximum levels, to be fair and reasonable, and to be conditioned on substantial service, and for certain operations reports to be regularly filed. Distinctive to bank charters were particular requirements as to minimum capital paid in, specie reserves, personal liability of bank directors for various kinds of misconduct, special liability of stockholders for debts of the bank, and the rendering of reports and the opening of books to legislative inquiry. Distinctive to insurance company charters was a slow elaboration of special financial regulations, directed at creating an adequate insurance fund and protecting its integrity against careless or fraudulent diversion. (Hurst, Business Corporation, 39)
140. Thorpe v. Ruthland and Burlington Railroad Company, 27 Vt. 140 (1855), 147, 149-50. Thomas M. Cooley relied heavily on Redfield's opinion for his own synthesis on corporations and police power: All contracts and all rights, it is held, are subject to this power; and all regulations which affect them may not only be established by the State, but must also be subject to change from time to time, with reference to the general well-being of the community. . . . Rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to the public protection, health, and safety. (Thomas M. Cooley, A Treatise on the Constitutional Limitations [Boston: Little, Brown and Co., 1868], 575-76)
141. See for example, Ronald E. Seavoy, The Earliest Corporations: Benevolent Public Service Organizations and Municipalities," in The Origins of the American Business Corporation, 1784-1855 (Westport: Greenwood Press, 1982), 9-38; and Milton Sydney Heath, "Antecedents of the Corporation in Georgia," in Constructive Liberalism, 293-308.
142. See for example, Ronald E. Seavoy, The Earliest Corporations: Benevolent Public Service Organizations and Municipalities," in The Origins of the American Business Corporation, 1784-1855 (Westport: Greenwood Press, 1982), 9-38; and Milton Sydney Heath, "Antecedents of the Corporation in Georgia," in Constructive Liberalism, 293-308.
143. Heath, "Antecedents," 304.
144. "An Act to Divide lhe Town of Wells, and Incorporate the Northeasterly Part Thereof as a Town by the Name of Kennebunk," chap. 3, June 14, 1820, Private or Special Laws of the State of Maine from 1820 to 1828 Inclusive (Portland, 1828), 6-7.
145. Edward E. Bonrne, John Lillie, John Skeele, Joseph Green Moody, Benley Smart, Enos Hoag, Moses Varney, Edward Greenborough, Charles Haynes, John Frost, and Israel W. Bourne. The enumeration of primary individuals is typical of these incorporations.
146. "An Act to Incorporate the Kennebunk Literary and Moral Society," chap. 60, March 8, 1821, Private or Special Laws of the Stale of Maine, 65-66.
147. "An Act to Incorporate the Kennebunk Insurance Company," chap. 109, February 2, 1822, Private or Special Laws of the State of Maine, 141-44.
148. Private or Special Laws of the State of Maine from 1820 to 1828 Inclusive (Portland, 1828).
149. Henry H. Havens, General Index to the Laws of the State of New York, 1777-1857, 2 vols. (Albany: Weed, Parsons and Co., 1866), 187-95.
150. Carl Zollmann, American Civil Church Law (New York: Columbia University Press, 1917), 81.
151. See, for example, "An Act for the Relief of the Protestant Episcopal Church in the State of New York," Laws of the Slate of New York, 1789-1796 (Albany, 1887), III:566; "An Act to Enable the Corporation of the First Presbyterian Church in the City of New York to Hold Real and Personal Estates of the Yearly Value Therein Mentioned" (ibid., 433).
152. See, for example, "An Act for the Relief of the Protestant Episcopal Church in the State of New York," Laws of the Slate of New York, 1789-1796 (Albany, 1887), III:566; "An Act to Enable the Corporation of the First Presbyterian Church in the City of New York to Hold Real and Personal Estates of the Yearly Value Therein Mentioned" (ibid., 433).
153. Brick Presbyterian Church v. Mayor of New York, 5 Cow. 538 (N.Y., 1826) and Coates v. Mayor of New York, 7 Cow. 585 (N.Y., 1827), 605-6.
154. Havens, Index to the Laws New York, 174-83.
155. Zollman, Civil Church Law; Charles Fisk Beach, Commentaries on the Law of Public Corporations including Municipal Corporations and Political or Governmental Corporations of Every Class (Indianapolis: The Bowen-Merrill Co., 1893); Beach, Commentaries on the Law of Private Corporations: Whether with or without Capital Stock, also of Joint-Stock Companies and all of the Various Voluntary Unicorporated Associations Organized for Pecuniary Profit or Mutual Benefit (Chicago: T.H. Flood, 1891); William C. Niblack, The Law of Voluntary Societies (Chicago: Callaghan & Co., 1894); Sydney R. Wrightington, The Law of Unincorporated Associations (Boston: Little, Brown, and Co., 1923).
156. Zollman, Civil Church Law; Charles Fisk Beach, Commentaries on the Law of Public Corporations including Municipal Corporations and Political or Governmental Corporations of Every Class (Indianapolis: The Bowen-Merrill Co., 1893); Beach, Commentaries on the Law of Private Corporations: Whether with or without Capital Stock, also of Joint-Stock Companies and all of the Various Voluntary Unicorporated Associations Organized for Pecuniary Profit or Mutual Benefit (Chicago: T.H. Flood, 1891); William C. Niblack, The Law of Voluntary Societies (Chicago: Callaghan & Co., 1894); Sydney R. Wrightington, The Law of Unincorporated Associations (Boston: Little, Brown, and Co., 1923).
157. Zollman, Civil Church Law; Charles Fisk Beach, Commentaries on the Law of Public Corporations including Municipal Corporations and Political or Governmental Corporations of Every Class (Indianapolis: The Bowen-Merrill Co., 1893); Beach, Commentaries on the Law of Private Corporations: Whether with or without Capital Stock, also of Joint-Stock Companies and all of the Various Voluntary Unicorporated Associations Organized for Pecuniary Profit or Mutual Benefit (Chicago: T.H. Flood, 1891); William C. Niblack, The Law of Voluntary Societies (Chicago: Callaghan & Co., 1894); Sydney R. Wrightington, The Law of Unincorporated Associations (Boston: Little, Brown, and Co., 1923).
158. Zollman, Civil Church Law; Charles Fisk Beach, Commentaries on the Law of Public Corporations including Municipal Corporations and Political or Governmental Corporations of Every Class (Indianapolis: The Bowen-Merrill Co., 1893); Beach, Commentaries on the Law of Private Corporations: Whether with or without Capital Stock, also of Joint-Stock Companies and all of the Various Voluntary Unicorporated Associations Organized for Pecuniary Profit or Mutual Benefit (Chicago: T.H. Flood, 1891); William C. Niblack, The Law of Voluntary Societies (Chicago: Callaghan & Co., 1894); Sydney R. Wrightington, The Law of Unincorporated Associations (Boston: Little, Brown, and Co., 1923).
159. Zollman, Civil Church Law; Charles Fisk Beach, Commentaries on the Law of Public Corporations including Municipal Corporations and Political or Governmental Corporations of Every Class (Indianapolis: The Bowen-Merrill Co., 1893); Beach, Commentaries on the Law of Private Corporations: Whether with or without Capital Stock, also of Joint-Stock Companies and all of the Various Voluntary Unicorporated Associations Organized for Pecuniary Profit or Mutual Benefit (Chicago: T.H. Flood, 1891); William C. Niblack, The Law of Voluntary Societies (Chicago: Callaghan & Co., 1894); Sydney R. Wrightington, The Law of Unincorporated Associations (Boston: Little, Brown, and Co., 1923).
160. James Bryce, The American Commonwealth, 2d ed. rev., 2 vols., (London: MacMillan and Co., 1891), II:484.
161. Michael Walzer, "The Idea of Civil Society: A Path to Social Reconstruction," Dissent (1991): 293-304, 303.
162. Tocqueville, Democracy in America, 692.
163. Gierke, Community in Historical Perspective, 110.
164. Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 52.