THE CRITERION OF REASON
James Kent in person witnessed Alexander Hamilton’s spectacular performances of the 1780’s before the New York Bar. He remembered them as might some passionate devotee of the theater treasure into the dull nineteenth century his recollection of Mrs. Siddons as Lady Macbeth. For our comprehension of the legal aspect of the American mind during the next half-century, we must consider that the usual accounts tell how Hamilton crushed his opponents by the sheer vehemence of his attack, how also James Kent in his first lecture at Columbia in 1794 insisted that legal study had become the equal of classical scholarship, because in this country the law was not a mystery: here the science of civil government had been “stripped of its delusive refinements, and restored to the plain Principles of Reason.” This Yale graduate, class of 1781, lived long enough to sneer at the vogue of Carlyle: “a disciple of the Platonic School of Philosophy, beyond the reach of man’s understanding.” Because Kent was the pre-eminent expounder of American law, towering even above such giants as Tucker, Hoffman, Story,
he more than any other person carried a solid remnant of the Enlightenment into the romantic ebullience of his country. Because he and his fellow-jurists lifted themselves to a position of excellence which, in spite of Jefferson and Jackson, governed the polity of the nation—and more importantly because they expressed their conception of the universe not merely in ad hoc decisions but in systematic com- pendiums—they guaranteed that the mind of the Republic would never be swept wholly into the enthusiasms of revivalism or Transcendentalism. From their point of view, they preserved sanity throughout an insane era.
This was a delicate, a difficult operation, not only because of the external pressures of native hostility to legalism, but still more because of tensions within their own philosophy. If, on the one hand, they were dedicated to domesticating the Common Law in this raw community, on the other they had to admit that colonial precedents were of little worth, and that therefore we had no such venerable body of antique wisdom as gave the Common Law in England its sacerdotal power. The history of our bar, lamented Joseph Willard in 1829, lacks that indistinctness of origin, that combination of fact and fancy, “where the light of truth and the uncertainty of tradition are inseparable; where the inception may almost shadow out a present deity, reflecting back the rich colorings of romance.” Henry St. George Tucker, inheritor of the Jeffersonian mantle, did not doubt that Nature has implanted in the human heart an intuitive sense of right and wrong, but by 1844 had to insist that the original Jeffersonians were wrong in trusting too much to its automatic functioning. “The true mode of ascertaining what is morally right is to inquire what the reason, the cultivated reason of mankind must necessarily pronounce on the matter in question.” The Jeffersonians, however, by their veneration for “reason,” had long before this played into the hands of James Kent; Hugh Henry Brackenridge in 1812, arguing that a merely mechanical decision in terms of precedent could not be considered law if it were against reason, declared, “1 know nothing hut the mind that is to judge ” This sort of pleading would prove no hindrance to the advancing legions of the lawyers; as Horace Binney said in his 1827 eulogy on Justice Tilghman of Pennsylvania, few, if any, decisions are “mechanical.” A judge has to compare, discriminate, adopt, reject— “in fine to bring into exercise his whole understanding.”
It soon became evident that the rationalism of the lawyer was a different business from the widely advertised Law of Nature or the purely philosophical Rationalism of the eighteenth century, though it might indeed be a lineal descendent from both. As Timothy Walker
said in his textbook of 1837, to discover the criteria of law, you cannot, as in natural science, apply the principles of mathematical demonstration: “Nor can you as in ethics, appeal to the monitor within." Conscience may mislead you. The achievement of the lawyers after the Revolution, the speed with which they vindicated the thesis that a body of legal precepts, such as in 1790 hardly existed, should become declarations of legal reason—this was a truly impressive performance. Story greeted Hoffman's A Course of Legal Study with the rejoicing of one who had fought his way through Coke on Littleton to the tune of such anguish as had caused him to weep. Already, Story happily declared, instead of the sparse and scattered maxims with which we commenced, “we have regular systems, built up with symmetry of parts; and the necessary investigations in new and difficult cases are conducted with more safety, because they are founded on inductions from rules better established and more exactly limited.” In the pride with which Story records this attainment (in which, we note, there is an admission that not all compartments of Reason are yet fully defined), we perceive the aspiration which drove these men: in the only terms available to them, they were saving civilization in America by creating a rationality for the law.
An indication of the tone which became explicit in the tuition of law professors and sounded in memorials of distinguished jurists was, in the language of Job Tyson, the injunction to keep one’s “temper” calm and unruffled. In an age when crucial cases became gladiatorial combats, the prevailing ideal was that which Horace Binney found incarnated in Jared Ingersoll, in whose office he had studied law: his mind, says Binney, was constantly excited, but not in the manner of the poetical imagination that takes flights into the ether, but in that of actively considering the relations of life and the concerns of men. Or, as David Brown characterized William Rawle, though Rawle’s temper was naturally enthusiastic, “to him, as to Socrates, divine philosophy had imparted such self possession and control, that amid scenes the most turbulent and tempestuous, he never for a single moment lost his serenity and composure.” Brown held up this model in the same year in which Emerson published Nature]
In maintaining against the irrationality of democracy and of millen- nialism an imperative of control of temper by logic, lawyers could argue that because America does have written constitutions, that because here the basic law does not grow by chance but is explicitly formulated, then throughout our municipal law “Reason is the great authority upon constitutional questions, and the faculty of reasoning is the only instrument by which it can be exercised.” The figure of
John Marshall loomed as the paragon of reason, as vivid a symbol to the American imagination as Natty Bumppo. John H. Bryan in an oration of 1830 at Chapel Hill made the often-repeated point that in Marshall's decisions the position taken may to many be unacceptable but that everybody must respect his vindication of man’s logical prowess: politicians do not always acquiesce in his conclusions, but the most recalcitrant Jacksonian cannot doubt the strength and depth and clearness of his mind. He has solved the most embarrassing questions “by his gifted intellect, as by intuition; and the arguments by which his decisions have been sustained, while they are intelligible to the meanest capacity, are such as to reflect honour on the highest intellect.” Bryan's choice of terms by which to command respect for Marshall's mind despite the political tendencies of his pronouncements is exquisite. Even more adroit were those employed by Horace Binney in 1835, especially because his doctrinal agreement with Marshall was so much a matter of public record that he needed not even to mention it. In Marshall, said Binney, the work of reason was perfect—“in simplicity, perspicuity, connection and strength.” Marshall never, insisted Binney, made “analogy” the principal support of his arguments. In defiance of the vogue of romantic poetry, Marshall commenced his great decisions with “it is admitted.” Joseph Story rejoiced in his association with a mind of whom it could be said, “once admit his premises and you are forced to his conclusions,” and chuckled that counselors tried to encourage each other by crying, “deny every thing he says.”
These lawyers could not live in ignorance of the fashionable terminology of their age; they might be reluctant to admit that the rhetorical modes of a particular time pertained to their profession, but by 1829 even Hoffman would have to explain to his students that man is endowed with both heart and intellect. For all their professions of devotion to Socrates, the lawyer had to come to some sort of accommodation with the speech of Leatherstocking. “It is the unenvied province of the Court,” said Mr. Justice Johnson, “to be directed by the head, and not the heart.'' In the law, “no latitude is left for the exercise of feeling.” Timothy Walker went so far in defiance of the age, knowing that his colleagues supported him even though few would dare be so candid, as to tell his students that the highest conception they could form of a judge would be a pure intelligence, utterly divested of passion or sympathy:
If a statue could be imagined to have a mind, but no heart; an intellect, but no feeling; in a word, to be endowed with the single capacity of deciding
unerringly what the law is, in every case; it would be a perfect chancellor, as well as judge; for just in proportion as this icy standard is approached, both become faultless ministers of justice in their respective departments.
Here, in as naked phraseology as the times could produce, was the basic challenge of the law to an explosive, dynamic democracy. Tocqueville was unable to specify just wherein the legal profession was a “counterpoise" to the tyranny of the majority. It was only peripherally inspired by any such motive. While in great part its record, especially in the Supreme Court, may be read as an effort to restrict the surge of democracy, the lawyers' real controversy with their society was that they stood for the Head against the Heart. Pathetically enough, humanitarian lawyers, supporters of Jackson—such as Rantoul—tacitly accepted this limitation of the arena, and staged their opposition within the confines which the profession persuaded a reluctant America to accept.