restricted access Training America: Law, Liberty and the Railroad
In lieu of an abstract, here is a brief excerpt of the content:

Reviews in American History 31.2 (2003) 275-282

[Access article in PDF]

Training America:
Law, Liberty and the Railroad

Charles A. Lofgren

James W. Ely, Jr. Railroads and American Law. Lawrence, Kan.: University Press of Kansas, 2001. ix + 365 pp. Illustrations, photographs, notes, bibliography, table of cases, and index. $39.95.
Barbara Young Welke. Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920. New York: Cambridge University Press, 2001. xx + 405 pp. Illustrations, photographs, notes, research note, case record citations, and index. $65.00 (cloth); $23.00 (paper).

In 1839, less than two decades after the steam-powered railroad made its American debut, property owners in Louisville, Kentucky, complained in court about the dangers from trains the Lexington and Ohio Railroad ran on tracks along city streets. They initially obtained an injunction against the railroad, but the Kentucky Court of Appeals dissolved it, stating:

The onward spirit of the age must, to a reasonable extent, have its way. The law is made for the times, and will be made or modified by them. The expanded and still expanding genius of the common law should adapt it here, as elsewhere, to the improved and improving condition of our country and our countrymen. And therefore, rail roads and locomotive steam cars—the offspring, as they will also be the parents, of progressive improvement—should not, in themselves, be considered as nuisances, although, in ages that are gone, they might have been so held, because they would have been comparatively useless, and therefore more mischievous (Ely, pp. 201-2).

By sighting along selected judicial decisions, legislative enactments, and administrative rulings solicitous of railroads, the legal historian can construct a broad narrative in accord with the Kentucky court's language. By this account, when lawmakers—whether judges, legislators, or administrators—confronted issues arising from the nation's growing and then mature rail system, they equated the public good with the interests of railroads.

James Ely's sweeping book demonstrates that such a picture is vastly oversimplified and in many ways wrong. Railroads interacted with nearly all [End Page 275] features of American life. In the process they put demands on the legal system, and the legal system put demands on them. Through it all, lawmakers made choices in the face of competing claims, sometimes without much guidance in existing legal doctrines, and often without sure knowledge of consequences. The results were both beneficial and harmful—for specific railroads, the railroad industry, and competing transportation modes; for passengers, shippers, adjoining landholders, trespassers, slaves, and others; for communities, states, and regions; for the nation in various economic and military crises; for other fields of law; and for the American federal system and republican government in general. Barbara Welke's tightly focused book adds the insight that it was not simply a matter of law restricting the freedom of railroads, which it did. The practices and law that developed in response to railway injuries to passengers and other non-employees restricted freedom generally. 1

Ely's account begins with the rail industry's beginnings in Jacksonian America, when states provided the forums for fashioning rail policy. Because state governments had supported road and canal building, state construction and operation of railroads was at least a plausible option, but sentiment generally ran against it. This, however, did not end the law's involvement. The railroads' legislative charters often conveyed rights-of-way along the routes of canals and turnpikes, producing legal challenges from the older modes. Here, in opposition to an earlier Maryland decision, the United States Supreme Court's decision against exclusivity in Charles River Bridge v. Warren Bridge (1837) pointed the direction that the states generally took. Although the bridge case did not involve competing transportation technologies, Chief Justice Roger Taney depicted a world in which, if non-exclusive charter grants were construed loosely to favor monopoly, old turnpike corporations would arise from their sleep, to block railroad development. But a host of issues remained for state judges to resolve, such as attempts, largely unsuccessful, by canal companies to block railroad bridges over canals and to...