| The subject of this dissertation is the development of legal doctrine pertaining to the ownership of land during the first century of the history of the United States. An introductory chapter traces changes in the ways Americans distributed, used, and thought about real property between the first settlement of the colonies and the Civil War. The second chapter describes the major features of American legal culture between the Revolution and the Civil War, including the articulation and deterioration of a republican model of advocacy, changes in lawyers' attitudes toward statutes, the common law, and written constitutions, and the emergence of a dominant style of legal reasoning. Drawing on the arguments of the first two chapters, the body of the dissertation seeks to make sense of the histories of legal doctrines pertaining to relationships between landowners and persons who intrude on their property (the law of trespass, premises liability, and adverse possession), relationships among adjoining landowners (the law of nuisance, water rights, lateral support, and light), and the authority of government to confiscate private property or regulate its use. Each of these fields was complex, but all were shaped in part, the dissertation contends, by four forces: the emergence, catalyzed by the struggle over slavery, of modern legal positivism and an associated utilitarian theory of property; the sharpening of the distinction between public law and private law; the constraints imposed on judges' deliberations by the prevailing style of legal reasoning; and the semiconscious effort by most participants in legal culture to fashion an ideology that would justify to themselves and to their countrymen the existing distribution of wealth and power. |
