THE REASONABLENESS OF IRRATIONALITY
The Common Law, said Mr. Justice Story in 1829, is “that collection of principles, which constitutes the basis of the administration of justice in England." This definition naturally lent support to the arguments of such Jeffersonians as Sampson or Jacksonians like Rantoul that an independent, democratic America should have nothing to do with it. The esprit of the legal corps and the lawyers’ claim to a monopoly of the faculty of reason armored the profession against such complaints. Yet the more they fortified their redoubt, the more they had to confront the danger that, in building it upon the Common Law, they might discover the foundation dissolving beneath them. For the Common Law was not a construction of systematic reason: it was a haphazard accumulation of precedents, quirks, obscurities, which some of its English champions, most conspicuously Burke, publicly and positively boasted was wholly a matter of prescription, fundamentally irrational by its inherent nature.
Within the very sanctum of the Common Law, in 1842, before the bench on which Joseph Story still sat, in the crucial case of Swift v. Tyson Richard H. Dana (who was no Jacksonian insurgent) stated the issue upon which the lawyers were in danger of tearing the guild apart. Indeed, as Story insisted, when we come to trial by jury, to habeas corpus, we must resort to the Common Law for interpretation
of terms. But, asked Dana, because we use some of the terms, are we therefore become subject to this entire body of foreign legality? We borrow terms in science and the arts “without being pledged to the principles to which they may have been applied." The physician uses the nomenclature of the Greeks without being controlled by Greek notions of therapy. Dana had the spirit to focus the issue where it really lay, though few of his contemporaries could fully comprehend what he said. “Our law idiom is essentially of common law origin," he pleaded, “yet not foreign." Of course, he could point out, to the discomfort of Story, our federal and state constitutions have erected by statute a system of American law, and within these enactments everybody agrees that we pay no attention to the Common Law. But the overriding concern is: can the courts, without the aid of a statute, call in the Common Law to support their verdicts?
Story, Kent, and the luminaries of the profession answered, in effect, yes. This, if I may so term it, intramural contest among the lawyers would prove of more enduring import to the Republic than the more publicized hostility to law itself among the strident democracy. The lawyers were gaining control of the society through their skill in guiding it into their theoretical version of the Common Law. Yet all the time they were at odds among themselves as to what the Common Law meant. John Pickering in 1829 might say he was merely amused by the vehemence on the one side of those who exhausted their “lilli- putian artillery in trying to batter down the venerable fabric," but on the other side he was apprehensive about the adversaries “who with about the same justice have poured out their idolatry to their supposed native English law."
Even so staunch a Jeffersonian as Brackenridge, though prefacing a few qualifications, would assert, “the Common Law of England, may be justly styled the fountain of American rights." Peter Du Ponceau in his Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States of 1824 made a gallant effort to explain why a body of English law could also be American. Viewed from without, the Common Law does present “a rude and misshapen mass, rudis indigestaque molesj' and so demands that its separate parts be dwelt upon for some time before its beauties can be appreciated. But he who perceives the beauty also sees why up to the moment of independence the Common Law was claimed as the birthright of American citizens: it was then synonymous with the British constitution, from which they claimed their liberties. Of course, with the Revolution we have an altered situation; our institutions no longer depend on traditions but on the solid foundation of express and writ-
ten compact. Yet, granted that the Common Law is no longer the ''source’' of political power, still it has been steadily improved, especially in America, so that any serious student, Du Ponceau concluded, must revere it. The argument that colonial ancestors brought the Common Law with them was indeed advanced by a hundred apologists, though there was always a slight implication that no one could precisely affirm just how much of it had been effectually transported.
The French Du Ponceau, bred in the civil law, was still able to perceive why in America the Common Law had its “warm enthusiasts" as well as its violent enemies without wholly condemning the latter, but there was a vigorous band who in the 1820’s decided no longer to tolerate dissent. As Binney said of the decisions of Tilghman, they displayed an absolute devotion to the Common Law; since Tilghman dreaded, “as an implication of his conscience,” the slightest hint of judicial legislation, he inquired of the oracles of the law, and having learned from them, though he might not personally agree, he applied the precedents. “He acted upon the sentiment of Lord Bacon, that it is the foulest injustice to remove landmarks, and that to corrupt the law, is to poison the very fountain of justice.” Actually, when the lawyers spoke thus, they were echoing not so much Bacon as Coke in his famous rebuke to King James, that cases “are not to be decided by natural reason but by artificial reason and judgment of the law.” Perhaps they were hesitant to speak thus bluntly in a society where an assumption of every man’s immediate access to the principle of natural reason had become sacrosanct.
In New York, for a variety of local considerations, the battle for the Common Law, both within the profession and outside it, was especially violent. At the Constitutional Convention of 1821, Ogden Edwards momentarily saved the cause by orating, “When our ancestors came to this country, although they fled from the persecutions they experienced in their native land, yet such was their attachment to the common law, that they brought it along with them, and subjected their conduct to its regulation.” As a result, while other states have sunk into the confusion of experiments. New York’s judicial establishments have remained firm and stable, “revered by the people.” Illumined by this “blaze of experience”—American experience—the convention was persuaded to endorse the Common Law.
In New York, however, the blaze of experience was shed primarily from the refulgent mind of James Kent, As Chief Justice from 1804 to 1814, and as Chancellor from 1814 to 1823, deferential to
“the generous oracles of the common law,” to which he would “listen with delight and instruction,” that he frankly acknowledged he
would apply them even where he thought them unjust. His reasoning was a bit more complicated than Tilghman’s. The English law, Kent would say, “has fostered the soundest and most rational principles of civil liberty"; English courts have “protected right to a degree never before witnessed in the history of civil society." Such a defense would make it doubly difficult for assailants outside the walls to penetrate, and also would keep discipline within the garrison.
Kent took full command of the operation as he published the four volumes of his Commentaries between 1826 and 1830. They seemed the most towering achievement the mind had yet wrought in America; their demonstrations of how the Common Law had become the law of America made the jibes of Sampson seem childish. The Judiciary Acts of 1789 and 1793, «nd indeed the Constitution itself, Kent never tired of insisting, prescribe remedies, not according to the miscellaneous practices of state courts, “but according to the principles of common law and equity as distinguished and defined in that country from which we derived our knowledge of those principles." He took satisfaction in emphasizing those areas of American jurisprudence—maritime captures, for instance—where courts in the United States are obliged to follow the English; here there are no alternatives in domestic sources, “and there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our national courts."
Kent did not for a moment suppose he was discouraging the progress of his country by thus construing the native situation. On the contrary, he believed that he was supplying America with the instrument it most needed, a coherent legal rationality. In this work he was assisted by Joseph Story, from 1811 to his death in 1845 an associate justice of the Supreme Court, combining that arduous work after 1829 with serving as Dane Professor of Law at Harvard, and, on top of these occupations, composing during the 1830’s and early 1840’s his array of commentaries. Though they do not make such good reading as Kent’s, they were of incalculable importance in providing a frame of rationality for American jurisprudence. In 1818 he reported far and wide that John Adams himself had said, “if he had ever imagined that the common law had not by the Revolution become the law of the United States under its new government, he never would have drawn his sword in the contest” Back in 1774 or 1775, John Adams may not have been so emphatic, but Story was pleased to believe the account so that he. Story, could enact into American precedent as much of the Common Law as possible, and otherwise disseminate it by teaching
and publishing. He delighted to write, as an American, to an English judge in 1840:
What nobler triumph has England achieved, or can she achieve, than the proud fact that her Common Law exerts a universal sway over this country, by the free suffrage of all its citizens? That every lawyer feels that Westminster Hall is in some sort his own?
Again, Story would say this as the most patriotic of Americans, and sincerely believe that he was exhibiting an admirable and natural progress. When this point of view was backed by the mountainous learning of his commentaries, it surely seemed that the naive naturalism of a Davy Crockett would quickly be banished from the legal forum.
However, on every side, and even among those most devoted to the Common Law, there had to be an admission, even though reluctant, that it could not be brought entire to this country, that there were segments of it which had no relation to American circumstances. Daniel Webster began his career as legal philosopher in 1807 by confessing that precedents are not statutes, that they operate only in cases which statutes do not reach. The great point about precedents is that, once they have been mobilized, they give the lawyer a full view of his subject, and so enable him to arrive at the very same conclusion “to which, probably, his own mind would in time have conducted him by a slow and painful process of ratiocination." A murmur arose that maybe the American lawyer, like the American poet or landscape painter, ought to trust his own “genius," even though more slow and painful, rather than to appropriate European methods. Du Ponceau endeavored to silence uneasiness by pointing out that since we now have explicit constitutions, the Common Law, for all its majesty, is “a SYSTEM OF JURISPRUDENCE and nothing more." That is, it is not a source of power, “but the means or instrument through which it is exercised." Kent was happy to agree. Indeed, he found the solution for an annoying metaphysical puzzle in Du Ponceau’s doctrine, and so could serenely grant that courts get no right to act from the Common Law; however, when constitutions and legislatures do give them jurisdiction, "the rides of action under that jurisdiction, if not prescribed by statute, may, and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction." This may not have gained all that partisans of the Common Law wished, but it made the least possible concession to legislation, and kept free a wide area in which, if only legislatures could be restrained and juries made docile to instructions from the bench.
the Common Law would determine the character of the nation. And then, as Kent charmingly suggested, even in those fields where it was no longer relevant, as in real estate, still it continued, “like other venerable remains of the Gothic system, to be objects of examination and study, not only to the professed antiquarian, but to every inquisitive lawyer, who, according to the advice of Lord Bacon, is desirous ‘to visit and strengthen the roots and foundation of the science.' “ These magisterial observations ought surely to be sufficient to force upon blatant American denouncers of the Common Law an awareness of their pitiful ignorance.
Because recent histories tend to label Kent a “conservative," and thus bury with him the vast range of his thinking, it should be noted that in his first lecture at Columbia, in 1794, he asserted that legal education should be drawn from America’s own history and constitutions. For him it was important that lawyers imbibe the principles of republican government from pure fountains, that they not receive improper impressions “from the artificial distinctions, the oppressive establishments, or the wild innovations which at present distinguish the Trans-Atlantic World." Though this may sound as though Kent was more concerned with defending the country against the French rather than the English infection, one may also argue that he was striving for an American independence from either. Many Jeffersonians, such as Brackenridge, once they stopped denouncing Judge Chase, showed themselves as little sympathetic with Davy Crockett’s philosophy as was Kent. Precisely because, said Brackenridge, the Common Law is not in every particular applicable in America, then to determine what parts are and what are not “requires scientific investigation, the leisure of opulence, persevering application, and even professional skill." Hence the mass of society, those whom this “liberal" was satirizing in Modern Chivalry, should “resign these advantages to men of erudition and distinction."
To make reassurance the stronger, Kent said that the Common Law, when cultivated in subordination to the jurisprudence of America, had nothing in it of the slavish maxims of Justinian; on the contrary, in its improved condition “under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics, and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life." Here he was utilizing an argument that Hoffman, Du Ponceau, and others of his predecessors had diffidently worked out, that the historical, evolutionary character of the Common Law makes it especially appropriate to America, because
it can develop along with a rapidly changing society. Possibly the tardiness of the lawyers in perfecting this justification is a sign of their slowness in recognizing the immense economic, and subsequently legal, reorientation wrought by the War of 1812—the new importance of admiralty law, the beginnings of manufactures, and the sudden need of policies for patents, for the development of canals and turnpikes, and soon thereafter for railroads. In great part, however, it was rather their difficulty in shifting from a philosophy of law which was primarily contractual in character to one that was conscious of history— which is another way of saying that, like other active minds, they had the problem of getting out of the eighteenth century and into the nineteenth.
David Hoffman here, as in so many departments, led the way in 1817, glorifying the doctrine that the law of England was not a fabric begun and completed by a single legislator or council, that it embodied “the history of the manners and opinions of a people advancing from barbarity ... to a high degree of civil and political liberty, of physical and intellectual improvement.” Therefore he could tell his students that both political and legal wisdom “will be found to be the offspring of experience, not of theory,” and so to assert the innermost rationality of the apparently irrational chronicle of the Common Law. Joseph Story welcomed Hoffman in The North American Review, chiming in that the Common Law has pre-eminently proved its power of enlarging itself: “The narrow maxims of one age have not been permitted to present insurmountable obstacles to the improvements of another.” In his inaugural address at the Harvard Law School, Story celebrated the human mind for its power to “hold out forever an unapproached degree of excellence” toward which “it moves onward in the path toward perfection.” But even more than Story, Chief Justice Lemuel Shaw of Massachusetts (whom some historians also label a “conservative”), in the railroad cases of the 1850's, presented the Common Law as no series of detailed practical rules but as “a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it.” Thus, though steamboats and railroads were “but of yesterday,” the Common Law provides a deep foundation for determining the rights and duties of carriers.
The happy consequence for those who did the mighty work of adapting the Common Law to American conditions was that they could universally agree, in a country founded on explicit constitutions and bills of rights, and governed by statute, that there was no need for
any disquisition on the metaphysics of law. Our law, said Silas Jones in a book significantly entitled an Introduction to Legal Science, is eminently historical, and requires of us such researches as “possess all the interest that the traveller feels in lingering about the ruins of ancient cities, monuments of exquisite taste and skill in the arts.” Or, as DeBow's Review put it in 1846, “Our own system, sometimes erroneously supposed to have been dug out of our peculiar form of institutions, is but ancient ore, dug in other countries, and passed through the furnace of men’s minds for centuries.” This by implication explained why lawyers had become the intellectual masters of the Republic. So into the 1850’s, as the country struggled within itself to maintain identity, lawyers would continue to propose the only hope of preservation their wisdom permitted, that the Common Law was not an episode in our life, it was the very life of the nation: “It is stable, because its principles are founded upon truth; it is capable of amelioration, because that is of the nature of humanity.”
Here we should observe that the nationalistic obsession of American jurists prevented even the most clear-thinking of them from taking advantage of the divinely given opportunity then offered them. Unlike the judges of England, the Americans were not bound to ancient precedents, since they could arbitrarily decide which of them had relevance to America. Unlike Continental judges, they were not restricted by any codes except the loose ones of the state and national constitutions. In short, they, and they alone in the Western culture, had the chance to apply to their emerging jurisprudence the laws of historical development, of the relativity of temporal standards. They were obliged to resort to some such considerations when they reviewed the history of the Common Law so as to exempt the United States from those portions of it which did not apply to the Republic. In the process of discriminating, an inspired few sometimes reached momentarily the conception that all laws evolve out of circumstances. But even the most relativistically inclined were precluded from any radically “pragmatist” notion by both the rationalistic universals of the age they were leaving behind and by the romantic generalities of the period they were entering. And they were even more inhibited by their patriotic and dogmatic adherence to the thesis that the adaptation of English Common Law to the American order solved the legal problem of merging particular decisions with the universal rule of right and of eternal wisdom.
It is indeed fascinating to see how near they often hovered on the very edge of an evolutionary philosophy, how nearly they approached
an insight into the organic. A report in The North American Review for October, 1836, said that legal science is not abstract, that it depends on the state of society and improves in proportion to the improvements of civilization. So, “he, who, in our days, should govern himself in this science by the rules of Lycurgus or the Decemvirs, would not be more wise than a countryman of Arkwright or Laplace, who should calculate the motions of the stars like the astrologers of Chaldea, or weave our garments on such looms as were used by the fair-haired matrons of Troy.” An article in The Southern Quarterly Review declared flatly that “History is the best, and, we may say the only school in which the reason of the law can be learned," but only because laws have been a natural result of civil combinations of men. At the close of our period the sense of development was becoming more profound. At Columbia University in 1858, a year before Darwin's masterpiece, Theodore Dwight said that even statute as well as the Common Law must be studied historically:
While, then, the student is mastering the present law, he must descend through all the strata of centuries, hammer in hand, till he comes to the hard granite of the feudal system. It would in general be useless to seek to get any lower, or to chip away much of its substance.
We hold our breath for a moment of suspense before passages of this tenor, but further analysis reveals that the motive behind them was never a real concern for historical growth but a nervous resolve to demonstrate that the Common Law was not an artificial invention of man but wholly “natural.” Hence it could legitimately be transplanted to the American landscape and be permitted to grow according to its inherent disposition amid flora of the new world. Law and the administration of justice have grown up noiselessly, said The Western Law Journal in 1851, no one knowing how. “Hence"—and here is the happy conclusion concerning the Common Law—“whoever would ignore the past, sets up his own weak reason against the instincts of society; instincts as unerring as those which guide the wild fowls in their annual migrations, and teaches the little v^ren, the swallow, and robin, how and when to build their nests." (William Cullen Bryant had already assured the American public through the most popular of native lyrics that the power which guided the flight of the waterfowl would guide aright the steps of man; this was the same power that guided the flight of the Common Law from England to the American wildernessl) Nature, said a Southern Review essay on Kent’s Commentaries in 1828, is everywhere the same, so that (by a
logic which Emerson would soon shatter in his gentle wrath) our literature and science will never exhibit any strictly national peculiarities. But our juridical institutions are quite other:
In this respect, our founders could not, if they would, be mere imitators. They could bring with them from the mother country, only the general principles of government and jurisprudence—the great outlines of a free constitution, and the invaluable maxims of the common law. But its institutions were more or less inapplicable to their present circumstances, and their civil polity had to be recast and built up anew from the very foundation.
In short, the historical character of the Common Law should assure patriots that it was no foreign scheme being foisted on them by cunning lawyers. In 1859 Emory Washburn took pride in the advances that had been made in American jurisprudence during the last generation. But, he said, if we contemplate this period in contrast with the life of the Common Law, it dwindles to a moment's space: the origin of that mighty system is so distant that the long vista of ages “blends in its perspective the hues of truth and error, like the melting of the dim outline of the blue ocean with the bluer sky, when we look out upon its waters, as they sleep in the stillness of a summer's twilight.'' Americans, then, of all the peoples on earth should accept the Common Law, for, as Story said in his Inaugural, under its aegis, the struggle in the courts is a contest fit “for men of strong sinew, and deep thoughts.''
The lawyers had all the more reason to cohere as a professional elite and, down to the last moment, cling to the assurance that the inherent reasonableness of the Common Law would save both them and the nation, because they were all brought up on Sir William Blackstone. Even such a rebel as Rantoul served his apprenticeship to Blackstone and could hardly repudiate the tuition even when trying to escape from what he considered the coils of Blackstone’s serpents. For Blackstone taught them, authoritatively, what the great jurists of England affirmed, “that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law.'' Modern critics, employing techniques for legal and psychological analy- I sis which the early Americans did not possess, now discover contradic- ‘ tory premises at the base of Blackstone’s facade. Indeed, even in the j early years of the Republic the American subservience to him was not j everywhere as abject as usually is reported. Hoflfman in 1823 said that 1 his was only a “bird’s eye view” of a complicated science, and Story, always saluting him as the greatest of the moderns, drove his own students far beyond the Commentaries. Yet when St. George Tucker
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edited the classic in 1803, even though, as we have seen, he followed his leader Jefferson in denying that the Common Law was an inherent part of American federal jurisprudence, he still devoted himself to this endeavor because Blackstone’s Commentaries transformed the rude chaos of English laws into “the semblance of a regular system.” Hence there could be no better model for Americans to observe. Tucker made a gallant effort to supplement Blackstone, to require the student to learn American municipal law along with the English, but he in effect reinforced the general proclamation which arose from courts and law schools that Blackstone was the magician who stretched his scientific wand over the illimitable ocean and brought from it, in the words of Josiah Quincy,
a well-proportioned, well-cemented fabric, pleasing to the sight, satisfactory to the taste, approved by the judgment, its architectural principles just, its parts orderly and harmonious, in which justice was found consorting with reason, and controversy guided by the spirit of truth, and not by the spirit of victory.
By 1841, Henry St. George Tucker, son of the Jeffersonian editor, pushed aside his father’s scruples and hailed Blackstone as the Linnaeus of the law. The student of botany or natural history. Tucker said, may be ushered into a disordered magazine wherein the treasures of knowledge are thrown together like heaps of lumber; but just as the great scientists are enabling the neophyte to enter instead a beautifully arranged museum where he can command at once a general view of the various compartments and different classes, so by coming into the law through Blackstone he possesses from the beginning a coherent plan. Blackstone “placed the study of the law in the rank of the sciences, by system and classification.” This proposition became for the profession, in the time of its glory, an article of faith so axiomatic that he who questioned it might in that America be more easily denounced as a heretic than one who, like Abner Kneeland, denied the existence of God.
Because America had conned what Blackstone had wrought, the profession could early turn defense of the Common Law into an attack upon its American enemies by presenting as virtues the very characteristics that had been most suspect. These detractors wanted the Republic to restrict its legality to statute law, and in cases of perplexity to trust entirely to the “reason” of judge and jury. “For heaven’s sake,” cried Joseph Hopkinson of Philadelphia in 1809, in a vigorous assault upon Jefferson, “do not let us, in a search after certainty, throw down the permanent rules of the Common Law,” to erect in their place the
caprices of juries. For the supreme quality of the Common Law is precisely that amid its complexities it sustains order, supplies certainty. It is not because it is English that we should receive it, continued Hopkinson, “but because it is the law of reason and justice.’* It should bind us to the extent that we ourselves are reasonable. If from this premise the Jeffersonians conclude that reason will best be exercised by dealing with matters “expressed in black and white,” they show themselves ignorant of the nature of reason. Consider the dictionary: “scarcely a word in our language has a single, fixed, determinate meaning.” Mere language is no means for stabilizing ideas; what to the ignorant seems a floating mass of imprecision actually is the most precise engine ever devised by man: within it are included not only the rules of reason and nature but the tested accretions. “You cannot separate the law from the construction of the law.” Brute statutes are liable to misconception until weighed in a series of decisions, “which in fact is common law.” While the average citizen, who assumed that of course what was reasonable could be made into law and then be applied, blinked in amazement at this curious logic, the lawyers pressed their point all the harder, especially as Andrew Jack- son was inaugurated in 1829. The democratic reasonableness found itself accused by Joseph Willard in that year of becoming an “ocean of universal skepticism” which threatened to inundate “that venerable pile, the common law.” The folly of the insurgence can be refuted by the slightest consideration of the nature of this pile: particular decisions, not necessarily connected to begin with, have in the process of time been grouped into general principles, and so the Common Law has become a science.
In short, then, we cannot, whatever demagogues promise, escape from it. “It becomes,” concluded Willard, “our sustaining peace and happiness, dwelling with us at all times, encircling our persons, our characters, and estates, restraining the army of violence, and preserving us in the enjoyment of our rights.” Du Ponceau publicized a phrase which Kent gratefully took up, that the Common Law is the very atmosphere we breathe. Kent improved upon the idea: “we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; it is interwoven with every idiom that we speak; and we cannot learn another system of laws, without learning, at the same time, another language.” This wisdom without dogmatism, said The American Jurist in 1829, alone “is adequate to securing the great ends of government, the protection and happiness of its citizens.”
At this point historians may perceive the inner tendency of the
movement for domesticating the Common Law, though many advocates were never fully conscious of what they were doing and the resistants never altogether comprehended why they objected. The lawyers' aim was exactly the opposite of that of the revivalists. Instead of dreaming of creating on the continent a distinct, unique millennial utopia, they were striving to subject the society to a rule of universality. Even as they argued that the Common Law could and should be adapted to America, they in reality were contending that, leaving out the portions which pertained only to a feudal and royal order, the national spirit, as Du Ponceau phrased it, should be so conformed to the Common Law that it has “an undoubted ascendancy through the whole or a great majority of the States." Because, said Charles Jack- son in the crucial year of 1829, system of action established by the Common Law “needed only to be known, to be universally approved,” the lawyers could finally contend that the very idea of a unique, exceptional America is nonsense. The thesis took shape with such writers as Hopkinson: a young country, he said, must use the experience of others. Du Ponceau, Hoffman, Kent, Story, Parsons hammered it into shape. By 1851, for instance, a writer on legal education in The United States Monthly Law Magazine proclaimed that should our law students be confined to the peculiarities amid which they were born, if they never inquired beyond the limits of their county courts, if they never had any larger prospect “of the realms of universal jurisprudence" than the reports of their native states, we may remain fellow-citizens, but we shall be strangers to one another. The law may stretch its network over the expanding circles of business, but it will never become, as through glorious centuries the Common Law did become in England, “a living product sympathizing with the national mind, inwrought with the ripest lessons of experience and the soundest deductions of philosophy, to rule by the attractive simplicity of its provisions, and the commanding justice of its requirements.”
There is nothing in all this literature to permit any suspicion that these apologists were not as nationalistic as Charles Grandison Finney. But they, in contrast to (and, as we shall see, sometimes in open conflict with) the religionists, were the first to work out a philosophy of national personality within a frame of cosmopolitan reference. Under the form of accommodating English law to the United States, they were asserting the universal against the particular, the comprehensive rationality of traditional wisdom against the fiat of individual statute, the heritage of civilization against provincial barbarism. Their quest for inherent rationality within the Common Law rapidly became a very different concern from what had occupied Blackstone or still oc-
cupied English jurists. The English had only to continue discovering, if they could, deeper ranges for that reasonableness; Americans had to assert the rationality, assume it perfect, and impose, by force of argument and judicial rule, this sophistication upon a recalcitrant people. Jeffersonians sensed the nature of the plot in such an apparently innocuous statement by John Marshall as this;
I understand by the law mentioned in the statutes of the United States, those general principles and those general usages which are to be found not in the legislative acts of any particular State, but in that generally recognized and long established law, which forms the substratum of the laws of every State.
The democracy was the more apt to discern a purpose in this sentence because Marshall -voiced it in the Burr trial. Perceived in that context it reveals the often inarticulate premise of the lawyers’ endeavor, that on the basis of this ubiquitous Common Law they might hold the nation together and guide it to prosperity. If they should fail, the national federation would disintegrate.