Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy

Abstract

This paper uncovers a lost world indigenous to the legal history of the United States, a place where law was "used" as an instrument not in a way familiar to readers of Willard Hurst, as a means to identify natural resources as private property to be allocated for exploitation by the highest bidder, but instead as a means to preserve landscapes as common property sustainably enjoyed by a multiplicity of actors for commercial ends. Focusing upon a single suit brought in 1854 to assign liability for a steamboat collision, where the issue became whether pilots followed the "customs of the river" at a particular bend in the Ohio River, the paper relates how through the "customs of the river" inquiry, Jacksonian judges in the 1830s and 1840s permitted a wild, unimproved river to speak at trial in order to keep American environments open to the "disorganized public" as a whole. By the 1850s, pressed by insurers seeking standardized commercial rules of the road, federal administrators promoted a more uniform, state-managed vision. To maintain the river’s status as a "common highway" with the "customs" inquiry now out of fashion, Humphrey Leavitt, the Jacksonian judge in this case, eventually developed new rules that shared the costs of navigation between private actors in a way that maintained the Ohio River as a privately-ordered common space.

Keywords: legal history, law and environment, environment, property law, commercial law, Willard Hurst, Nineteenth Century America, Ohio