Law and Urban Growth: Civil Litigation in the Boston Trial Courts, 1880-1900

by Robert A. Silverman

Overview

This in-depth study of civil trial courts in any American city during the nineteenth century. Examining cases brought before the Boston civil courts between 1880 and 1900, Robert Silverman shows how the business of these tribunals mirrors social and economic changes within the urban community and how these changes made the 1890s a turning point in the function of law.

Originally published in 1981.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691642901
Publisher:	Princeton University Press
Publication date:	04/19/2016
Series:	Princeton Legacy Library , #598
Pages:	234
Product dimensions:	6.40(w) x 9.40(h) x 0.80(d)

Read an Excerpt

Law and Urban Growth

Civil Litigation in the Boston Trial Courts, 1880-1900

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By Robert A. Silverman

PRINCETON UNIVERSITY PRESS

Copyright © 1981 Princeton University Press
All rights reserved.
ISBN: 978-0-691-04677-8

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CHAPTER 1

BOSTON AND ITS TRIAL COURTS

"Of all the mysteries of legal history, perhaps the most impenetrable is the history of law in action, law as it was lived, not as it was supposed to be." Of all the mysteries of urban history, perhaps the least understood is the action of law in urban life.

Trial courts were potentially important social institutions in the cities of late-nineteenth-century America. During the period 1880-1900, a watershed for the functioning of law, "new demands of desperate urgency were made on the administration of justice," placing novel stresses on trial courts. An increasing flow of immigrants from overseas and from the surrounding countryside combined with uncertain employment opportunities to burden urban communities with newcomers of little or no means. Such people found themselves entangled in wage disputes, landlord-tenant problems, and situations involving instruments of indebtedness. New technologies, especially in transportation and manufacturing, raised the standard of living but also injured and killed an increasing number. Within a generation, "the social importance of the law of torts (of injury)" had been transformed. Novel urban habits and practices demanded legal controls over the hazards created by crowded living.

Trial courts were customarily divided into two major branches — criminal and civil — each having its own clerk and supporting staff but usually sharing the same judges. The criminal branch handled prosecutions involving wrongdoing that affected the public. The civil branch heard only those actions relating to the private rights of individuals, for example, those concerning debt or accidental injury.

The civil business of trial courts has been largely overlooked; millions of actions in contract, tort, and other civil subjects have not been seriously considered for their usefulness in understanding the history of the city or of society in general. The sheer volume of surviving civil cases has been a formidable obstacle to scholarly examination. Furthermore, by themselves these civil actions have seemed removed from human activity. Dry, technical, and often petty, individual lower-court civil actions of the nineteenth or twentieth century display neither the intellectual gymnastics that enliven the records of higher courts nor the chattiness of seventeenth- and eighteenth-century lower-court cases. Nevertheless, the civil records of the nineteenth-and twentieth-century lower courts can be animated with material from various sources about participants in the litigation and linked in this way to the society that produced them.

Thus revived, the value of such lawsuits rests in their collective meaning. At the turn of the century there was one civil suit filed annually in Boston for every twenty adults. In dollar-and-cents terms, criminal trials in turn-of-the-century Boston annually deprived defendants of less than $100,000 through fines, while civil proceedings impoverished defendants by more than $3,000,000. Unrecorded out-of-court settlements pushed the civil figure considerably higher. Only the property taxes levied on Bostonians (about $14,000,000 annually in the 1890s) represented a larger transfer of wealth under the auspices of local government.

Despite the number and impact of civil actions, little coordination existed among legislatures, high courts, and low courts for processing them. "No one could shift judges about as needed from a crowded to an empty docket; or monitor the flow of litigation; or set up rules to tell the courts how to behave." Higher courts controlled lower ones only through the power to reverse decisions on appeal, and legislatures directed higher courts mainly through the difficult process of constitutional amendment.

Thus, the law in theory and the law in action were not necessarily the same. Roscoe Pound emphasized the dichotomy when he addressed himself to "The Administration of Justice in the Modern City" early in the twentieth century. In the metropolis, he claimed, the main problems lay not in the substantive law but rather in the "enforcing machinery, which too often makes the best of rules nugatory in action." He chided contemporary analysts of the legal system for judging it "by the output of opinions, and not by the actual results inter partes in actual cases." Analysis of lower-court cases began only in the 1920s; of the trial-court business that came earlier, little is known.

Urbanization and the trial courts undoubtedly influenced each other. A rash of new law books appeared around the turn of the century, devoted entirely to such urban topics as electricity, elevators, apartments and tenements, street railways, and municipal corporations. They included a substantial body of fresh statutes and judicial opinions, but it is far from certain that this body of law found application in trial courts. Individuals and businesses may have taken to court some disputes generated by the urban environment, but they chose alternative means to resolve others. The courts benefited some economic and social interests, not others. Of what importance were such factors as the sex, age, race, ethnic origin, occupation, and wealth of litigants, the legal training and professional connections of counsel, the type and size of suit brought?

Investigation of the role of law in Boston's growth has followed the legal historian's traditional approach: doctrine has been scrutinized, but little attention has been paid to the law applied in trial courts. Recently, however, scholars have displayed a growing concern for the routine aspects of lawmaking and of urbanization, abandoning their traditional, narrower focus on great moments in the life of the law or on notable events in the lives of cities. Urban historians, employing new sources and techniques, have gone beyond the observations of prominent politicians, reformers, and the literati to view experiences of common men and women in an effort to understand fully the nature of city development. Legal historians, too, have begun to consider what they could learn about the evolution of law by going beyond the commentaries of prominent legislators, judges, and lawyers and the landmark statutes and cases on which they built their reputations.

Students of urbanization and of lawmaking, indeed, of our society generally, have before them a vast, virtually unexploited vein of information: millions of lower-court cases deposited in vaults and storerooms throughout the country. This work attempts to demonstrate the historical value of those cases by analyzing the role of civil trial-court litigation in the emergence of modern Boston.

Boston was chosen because it is already one of the most thoroughly studied cities in America. An investigation of the many causes likely to affect a lower court's role is possible only where competent histories of the local economy and social patterns are plentiful. Boston is unique in important ways and cannot be presented as typical of late-nineteenth-century American cities. Nevertheless, Bostonians witnessed social and economic changes similar to those experienced elsewhere in America, and in Europe, at about the same time.

This, then, is an exploratory case study, seeking to identify those general areas of urban development with which civil trial courts were most directly concerned. An underlying assumption here is that the business of such tribunals mirrors the social and economic life of the communities of which they are instruments.

In addition to persons residing within city limits, Boston's trial courts served plaintiffs and defendants from neighboring towns that comprised Greater Boston. Probably 10 to 25 percent of the litigants in the late nineteenth century were suburbanites. Conversely, residents of Boston appeared in the trial courts of surrounding towns and counties.

The civil business of the city's trial courts represented only a large portion of all lawsuits brought in the metropolitan area. In the late nineteenth century jurisdiction was fragmented in Greater Boston. Nine trial courts operated in the city proper under authority from the Massachusetts legislature. Seven district courts functioned — in Brighton, Charlestown, Dorchester, East Boston, Roxbury, South Boston, and West Roxbury (map 1). The Boston Municipal Court served both as a citywide tribunal, drawing its litigants from every section, and as a district court for the business area and the residential neighborhoods of the central city. It shared a downtown building with the Superior Court of Suffolk County, which also served the city of Chelsea and the towns of Revere and Winthrop (map 2).

These trial courts convened to hear matters of debt and injury. The superior court possessed jurisdiction in divorce and, after 1883, 'n equity, and it served as an appellate tribunal for decisions rendered in the district and in the municipal courts. Suits could be brought for any amount up to $1,000 in district courts, for sums up to $2,000 in municipal court, and for any amount over $100 in superior court. Several dozen district courts and the superior courts of Essex, Middlesex, Norfolk, and Plymouth counties operated in the suburbs beyond the city limits (map 2). Each district court had its own judges, but the superior court was peripatetic, sitting in every county of the state. In other words, while Suffolk County and each of the surrounding counties had its own superior court clerk and staff, they drew their judges from the same pool on a rotational basis.

In addition, each county had a permanent probate court that handled matters of family law — wills, adoptions, nonsupport actions — as well as bankruptcy petitions. At the top of this state legal structure stood the Supreme Judicial Court of Massachusetts, which entertained appeals from decisions of lower courts, retaining original and concurrent jurisdiction with the superior court over divorce and matters of law or equity involving $4,000 or more.

Coexisting with the state judicial structure in and around Boston were the federal courts. The United States district and circuit courts that sat in Boston had jurisdiction over the federal judicial district of Massachusetts in matters of admiralty law, in cases between citizens of Massachusetts and other states, and in any action brought under the Constitution, laws, or treaties of the United States, provided the sum in question exceeded $500 (after 1887, $2,000). Between 1867 and 1878, and again after 1898, federal courts also had jurisdiction in bankruptcy.

In this maze of overlapping and special jurisdictions the Boston Municipal Court and the Suffolk County Superior Court stood out as the chief tribunals of the city. They heard a wide range of cases generated by conduct that occurred throughout, but normally not beyond, the confines of Greater Boston (table 1). The jurisdiction of the district courts in and around the city was far more limited in area and in the value of cases adjudicated. The superior courts of the surrounding counties heard a great deal of business from rural areas beyond the boundaries of metropolitan Boston. The Suffolk County Probate Court and the probate courts of the adjacent counties considered a narrower range of legal issues. The supreme judicial court and the federal tribunals entertained actions from all over Massachusetts and, except on appeal, never considered cases in which small sums were involved.

A survey of the dockets of the municipal and superior courts for the years between the Civil War and World War I reveals that the annual volume of civil actions remained remarkably stable until the early 1890s, ranging from 7,000 to 8,000 in both courts combined. Then the number of cases filed in each court increased rapidly. Litigation more than doubled by the century's end, reaching nearly 19,000 cases in the year 1900 and never again declining to pre-1890 levels.

Cases selected from representative years in this period reveal changes occurring in the litigation process. Much of what follows rests upon a random sample of 1,445 cases. Throughout the analysis, the guiding question has been not how many cases there were, but whose they were.

Part I of this work identifies those changes in Boston that demanded a response from the civil trial courts. Parts II and III suggest how that response permanently altered the process of litigation, the meaning of justice, and ultimately, the fabric of urban life.

The Genesis of Modern Boston

For a half-century after 1790 Boston prospered through triangular trading ventures, first with the northwest coast of America and China, later with the West Indies and Russia. The town itself, however, produced no staple product for trading. Its once substantial agricultural hinterland shrank rapidly as the land gave out and other, more productive sections of New England turned to New York for a marketplace. Lost agricultural business was replaced by a growing flow of industrial goods from the mill towns that flourished after the War of 1812. Boston ships carried shoes and textiles to the South and returned with corn and cotton, surpluses of which went to Europe in yet another triangular arrangement. Despite the lack of a staple for export and the stiffening competition from New York, Boston's merchants amassed the early Republic's largest pool of investment capital.

Bostonians used these financial resources to develop Massachusetts industry. More manufacturing facilities were built in mill towns, and after some early difficulties they were connected to Boston by railroads. Raw materials for the factories came in through Boston's port, and finished products left from there for the South and Europe. Initially, Boston money did not create industry within the city, which could not meet either the water power or labor demands of early manufacturing as well as did the mill towns of the hinterland. "Boston remained in 1845 a town of small traders, of petty artisans and handcraftsmen, and of great merchant princes who built fortunes out of their 'enterprise, intelligence and frugality,' and used the city as a base for their far-flung activities.

Irish immigration after 1845 changed the economic character of Boston. It provided entrepreneurs with an ample number of unskilled workers at the same time that the labor base of American manufacturing, under the pressures of mechanization, was shifting from craftsmen to factory operatives. The availability of cheap, abundant labor and, to a lesser extent, the increasing application of steam power to production made Boston the fourth most important manufacturing city of the United States by 1865. After the Civil War, improved railroad and port facilities expedited the movement of incoming leather, wool, cotton, and raw sugar and of outgoing shoes, clothing, and candy. Boston also became an important center for the manufacture of machinery, furniture, glass, and liquor. The city's railroad connections to the American interior and its shipping schedules to Europe and South America made it an important transfer point for midwestern corn, wheat, and meat.

At the end of the nineteenth century Boston middlemen were still making money by trading items produced elsewhere for consumption elsewhere. Increasingly, however, the entrepot made its own contribution to the river of goods that flowed through its terminals and warehouses, onto its wharves and sidings, and across its ledgers. Processing, storing, shipping, and record-keeping — this was the business of Boston in 1900, these were the services that the city provided the world in exchange for prosperity.

The charged atmosphere of the bustling city had a magnetic effect on surrounding communities. During the nineteenth century Boston's growing population competed with entrepreneurs for available space. Land was reclaimed from bays, but not enough to accommodate demand within the boundaries of the city proper. The well-to-do surrendered their homes to commercial activities or to recently arrived immigrants and fled to nearby towns, from which they commuted to work. The introduction of street railways in the late 1850s opened suburbs to waves of middle-income people who previously had stayed in the city because of the high cost of omnibus and railroad tickets. As suburban tracts filled with transplanted Bostonians, Boston absorbed these new neighborhoods socially and economically. By 1850 sections of half a dozen neighboring towns were informally united with Boston.

Political boundaries became anachronistic. In the 1850s Boston shared Suffolk County with Chelsea, North Chelsea (renamed Revere in 1871), and Winthrop (map 2). The conversion of Chelsea's waterfront from residential to manufacturing and shipping purposes and its absorption of several thousand immigrant workers at mid-century turned a once independent agricultural and resort town into an extension of Boston's North End. More remote North Chelsea and Winthrop remained detached agricultural communities until the 1880s, while the proliferating street railways made Boston's social and economic ties closer to Brighton, Brookline, Cambridge, Charlestown, Dorchester, and Roxbury in neighboring Middlesex and Norfolk counties.

(Continues...)

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Excerpted from Law and Urban Growth by Robert A. Silverman. Copyright © 1981 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• FrontMatter, pg. i
• Contents, pg. vii
• Illustrations, pg. ix
• Tables, pg. xi
• Acknowledgments, pg. xiii
• One. Boston and its Trial Courts, pg. 3
• Two. Personae, pg. 17
• Three. Commercial Credit, pg. 49
• Four. Emoluments, pg. 67
• Five. A Place to Live, pg. 82
• Six. Accidents, pg. 99
• Seven. Malice, pg. 122
• Conclusion. At the Threshold of the Law, pg. 133
• Appendix A. Sources and Samples, pg. 151
• Appendix B. Classification of Cases, pg. 157
• Appendix C. Occupations and Enterprises, pg. 159
• Appendix D. The Bench, pg. 165
• Notes, pg. 167
• Works Cited, pg. 199
• Index, pg. 213