In the 1850s in Illinois, the emphasis on technological progress and its associated virtues became the basis for a reconceptualization of the underlying norms of legal discourse. Between 1850 and 1860, Illinois' Supreme Court articulated a move from the traditional writ-based system of English common law to the modern categories of American legal reasoning. In the process, the judges who created the new doctrines shifted the starting point for legal analysis from private, property-based rights to public tort and tortlike duties. This shift was worked out and articulated almost entirely in railroad cases. To see how this occurred, I will first examine developments in the law governing property interests, the traditional focus of the earlier legal regime and the starting point for the American effort to create a new system of common law. In the next chapter, the same questions will be explored in the context of cases involving injuries to persons.

Clashing Property Rights: Stock Crossing Cases

It is difficult for modern readers to imagine the importance that was attached to the question of whether railroads would be required to pay damages for stock killed by locomotives in the 1850s. In southern Michigan, a “railroad war” developed over the failure of the lines to pay compensation for damage to stray cattle. Farmers tore up lines, and eventually burned the Detroit depot to the ground (Hirschfield, 1952).