EQUITY
In 1760 Lord Karnes presented to Benjamin Franklin his The Principles of Equity. Franklin answered that he would send copies to the Americas, not only to those which had courts of chancery but to those which, “having no such courts, are obliged to mix equity with the Common Law/’ The book would be of service in either sort, since few of the colonial judges “have been bred to the law/'
In the colonies, such controversies as in mid-eighteenth-century England were finding their way to Chancery usually had to be adjudicated, if at all, by the legislatures. Their jurisprudence. Story would charitably relate, was “lax." Hence the new nation had no viable precedents. It got little help from its favorite textbook: Blackstone said so little about equity as to make it sound unattractive. The liberty of considering cases in an equitable light, he said, should not be indulged very far, “lest therefore we destroy all law.” Though Common Law without equity might appear hard and disagreeable, the public good would less be served by equity without law. Pure equity, Blackstone warned, “would make every judge a legislator, and introduce the most infinite confusion.’’
Wherefore, when the American profession, acting upon Franklin’s insight, advocated a system of equity, it found itself with still another, and this time extremely bitter, fight on its hands. Hostility was particularly virulent in Massachusetts. There, Erastus Worthington commented in 1810 how only a few years before the people had imagined the Common Law to be a terror, but now, twenty years after that debate, their veneration for it had become so fanatical that they rejected proposals for equity by shouting, “Touch not with unhallowed hand a single particle of this mighty fabric.’’ In 1829, said The American Jurist, equity was still being presented to the populace “as a shapeless monster that would destroy the law; and the court of chancery has been described as a sort of bottomless pit where thousands of suitors are engulfed in ruin.’’ Another legal journal placed the blame, as did all apologists, upon politicians who, in order to promote selfish interests, made equity diabolical. A pamphlet which circulated through Albany during the Constitutional Convention of 1821, signed by “Hamilton,’’ attacked everything for which the lawyers believed
Alexander Hamilton had stood, especially accusing the property interests of trying to thwart republican institutions through the tyrannical establishment of Chancery.
Nor should we assume that opposition to equity arose only out of the ignorant backwoods. In 1826 Anthony Laussat published in Philadelphia An Essay on Equity in Pennsylvania which almost persuaded John Marshall that the two kinds of courts should not be separated— but not quite. Laussat drove home his point by repeating the pleas of the lawyers that the “malleability” of the Common Law is such that —if the judiciary shows a proper disposition—all the ends of equity can be accomplished under ordinary forms. Instead of fabricating a distinct code, he said, we should remodel the Common Law to meet our emergencies—as we in America are free to do. Champions of equity had to consider their position carefully when Gulian Verplanck in New York said that collisions between equity and law in matters of contract would show that in equity there exist no uniform principles. The argument over equity versus Common Law cannot easily be resolved into a debate between Democrat and Whig; on the contrary, it cut across party alignments, to the confusion of the multitude, though a fair number of the populace were persuaded that equity meant only one more legalistic scheme to curtail their liberties.
Popular distrust of equity arose first of all from the fact that it dispensed with juries. This became the central issue, but in the early decades the democracy was even more outraged because in equity witnesses were put under oath and were directly interrogated by a judge. Joseph Story braved the wrath of America by explaining that courts of equity, in proceeding without juries,
address themselves to the conscience of the defendant, and require him to answer upon his oath the matters of fact stated in the bill, if they are within his knowledge; and he is compellable to give a full account of all such facts, with all their circumstances, without evasion, or equivocation.
No wonder that Tom and Dick, let alone Laussat and Verplanck, bethought themselves of their fathers' protests against the Star Chamber or High Commission, and dug in their heels. While in one mood the people had complained about the expense of special pleading, in another, when demanded thus to stand and deliver, they found protection in the skill of a clever lawyer.
Beyond even these objections, the mass of the nation worried over the prospect that a judge in Chancery, unchecked by a jury, could deliver his opinions at random, according to his subjective notions of right and wrong. They did not trust such wisdom. The Chancellor,
said “Hamilton," sits “in foro conscientiae, surrounded by frail mortals, and he a frail mortal like themselves." Such an arrangement, surmised the populace, could produce justice—provided that all participants were angels. But, “whatever the friends of such an institution may say of the obligatory force of precedent and law in controlling the opinions of the chancellor; rely upon it, it all resolves itself into his gracious will." By the nature of the plot, he will appoint himself keeper of the conscience of the people. He alone will determine questions of fraud, misfortune, accidents, trust. Would it not be better for the people to keep their own consciences instead of surrendering them to a James Kent, who “Hamilton" said was convinced of his own infallibility? In Massachusetts, the Constitution of 1821 did allow for a court of Chancery, but in spite of the urging of Story and other judges, “the terrors of the court"—which to the public were “terrors of the unknown"—restrained the General Court from establishing Chancery until 1877.
Kent and Story did not win the multitude by their admission that in equity the courts would have to depend even more upon post-Revolu- tionary English decisions than in law. We have nothing domestic to guide us, Kent reasoned: “We must resort for information to the courts of that nation from which our jurisprudence, as well as the best of our institutions are derived, and we can do it with uncommon advantage." On these topics Story repeated his admiration for Mansfield, Hardwicke, and above all for Lord Eldon—who has given dignity “as well as finish, to that curious moral machinery, which, dealing in an artificial system, yet contrives to administer the most perfect of human inventions, the doctrines of conscience ex aequo et hono”
If Story entertained doubts as to whether in America equity could be made into a “science," he was assured by his reading of Kent’s career as Chancellor. Kent brought American equity to maturity, and his work showed that America should be grateful that “the beautiful and varied principles of Equity" were tardily developed here, because otherwise we might have on the benches men “inadequate to the duties of their stations, from their want of learning." Kent remedied all that. In delivering the bar’s epitaph on Kent in 1848 John Duer compared his opinions as Chief Justice with those he gave as Chancellor, characterizing the latter so that all the world could see, if it would, how Kent had brought equity to a point of scientific perfection:
They deal more in the investigation of principles; they are more discursive and argumentative; more scientific and lucid in arrangement; more sustained,
dignified and impressive in style—they embrace a far larger variety of topics, and these topics are not narrow and technical, but are drawn from the general principles of our nature, and reach to all the relations and interests of civil society—and the learning that he employs to adorn, illustrate, or enforce his views, is more various and recondite, and more elevated and classical in its tone and character.
This summarizes the ideal of the profession, and by implication says that if the ideal could be thus realized in Chancery, then Chancery was part of legal science. By this time the pseudonymous “Hamilton” was forgotten.
The great volume of the literature shows how long it took the lawyers to persuade the American people, to tolerate suits in chancery. Worthington in 1810 pleaded-that chancellors will be as much bound by reports as judges in Common Law, that equity in civil cases will “ameliorate the severity” of the law, that it will not trespass upon cases which require a jury, that it will cut down special pleading, that it is “more consonant to sound and unfettered reason,” that it is “liberal and unembarrassed with forms.” A circumspect public, which only recently heard the lawyers extolling the virtues of the Common Law, suddenly heard it accused, as compared with equity, of the very vices American common sense had raised against it. They listened in amazement to Worthington’s peroration that equity “has established a system of rules which by sound and exquisite logic nicely defines the rights of men and cautiously obliges them to observe those rights.”
Story took up his championship of the cause with a review of Johnson's Reports on Kent in The North American Review of 1820, a piece that was discussed throughout the nation, but his greatest service to the cause was contained in two immense volumes of Equity Jurisprudence of 1835. He contended that there are cases, and in modern society an increasing number of cases, where a simple judgment for either party will not do equal justice to both sides. Yet courts of Common Law have no rituals of remedy; they can give a general judgment only in the prescribed forms. Equity does not merely fill in vacuums of the law, it is a distinct science. The great advantage of equity courts is that they “can adapt their decrees to all the varieties of circumstances, which may arise, and adjust them to all the peculiar rights of all the parties in interest.” Should we continue striving to dispose of these problems under the Common Law, we shall shake “venerable foundations.”
And what constitutes the new kinds of issues, the simple-minded kept cisking. What requires this “refined and elevated system”? Worthing-
ton attempted to spell them out: he started, mildly enough, with paupers, bankrupts, ecclesiastical polity, paternal and guardian authority, and the property rights of married women. He then disclosed where the drive for equity originated by enumerating contracts, trustees and trusts, probate, mortgages, bailments, and injunctions. It would not tax a rural member of the General Court to perceive that these were matters arising out of the world of business, that the advocates of equity were looking toward a society in which such transactions would become central. Yes, the Common Law, with its great adaptability, was capable of growing along with the economic changes, but equity was still more responsive. You ask, is equity important? “Is it important,” answered Story, “to administer substantial justice, to suppress frauds, to relieve against inevitable casualties, to succour the injured, to interpose preventive checks against malice and oppression, or mistaken claims of right?”
One point, we note in passing. Story took pains to drive home. If people supposed that a chancery judge simply lolled at his ease and delivered his opinion out of untutored instinct, let them know that in this field the scholarly requirements were even more exacting than in the Common Law.
James Kent made the classic argument in 1821 before the New York Convention—we wonder whether the level on which he spoke meant much to the rabble. It would, he said, be contrary to the cautious policy of a free government to concentrate the two powers in a single system—all the while, his opponents supposing that by maintaining separate systems he was undermining their cautious system. Instead, Kent so bewildered them by warning against the hazard “of having equity so intermixed with law, and law so intermixed with equity, as to lose the certainty and distinct character of each” that they could respond only by such a furious discharge as the anonymous “Hamilton’s.”
Story admitted in 1820 that in states where the concept of equity prevailed there was a tendency to make it “a sort of arbitration-law, or to decide cases upon their peculiar circumstances, without reference to any general principles.” Nothing could be further from his ideal of equity, and nothing more harmful to the profession and to the nation. He contended that no longer even in England was equity “the length of my Lord Chancellor’s foot.” The freedom of equity provided an opportunity to confirm and illustrate old doctrines “by unfolding new analogies, and expounding the nature and limits of principles, in a manner full of instruction and interest.” The public could not be more mistaken in supposing that equity consists of “discretionary jus-
tice.” In reality, there is no department “more completely fenced in by principle, or that is better limited by considerations of public convenience.” However, because it is “an intricate, but an exquisitely finished system wrought up with infinite care,” administration of it requires a corresponding skill and erudition. It was a business for professionals.
The insistence of the lawyers that the best of them, even though a precious few, succeeded in the delicate feat of balancing law against equity sounds like a sign of nervousness. Both Binney and Du Ponceau in their eulogies of Tilghman asserted that his equity was as scientific as his law. By equity, Tilghman never meant, “as some have affected to understand that word,” the fluctuating emotions of a judge, “but those eternal principles of right and wrong,” a science reduced to a regular system so rational that its superiority was admitted even by practitioners of the Common Law. The same contention was affirmed throughout the next decades; to survey the literature today is to grow weary of the repetition, yet also to marvel at the necessity for keeping it up. Equity is justice, George Robertson was typically declaring at Transylvania in 1837; it is not variable like the changing sentiments of the multitude, but is “as constant as the fixed and rational principles of civil right and civil law.” In that year Timothy Walker’s textbook conceded that the “early definition”—he does not say just how early —may have countenanced the notion that equity consists in the application of moral principles to human transactions, but that we had so far come of age in America that we could categorically say, “conscience is now no more the guide of the chancellor than of the judge.” Indeed, such a concept of discretion “would not be tolerated in any magistrate, under a free government.”
On these grounds the lawyers made their plea—that equity be regarded in nascent America as a distinct, but scientific system of jurisprudence. Let us grant, argued James Holcombe, that the early Chancellors of England arrogated a “wide latitude of authority” to themselves, “and partly from the use of the word” in a sense more enlarged from that permitted by the civilians; still in England, and hence in America, equity has been limited to remedial justice of a sort which the Common Law simply cannot administer. Progressively forgetting what their progenitors had said, commentators like Henry St. George Tucker explained that “the rules of the common law are too strict and rigid to adapt themselves to the various wants of men, to the necessities of justice, and to the important alterations which are continually occurring in the changeful character of human affairs.”
Whereupon Tucker perilously went on to admit what his own fa-
ther would not have allowed, that the boundaries of the two systems might sometimes overlap. To this objection he answered that the suitor was better off if presented with alternatives. The wise David Hoffman, however, posited a warning as early as 1825 which would , trouble not only the American public but the lawyers themselves. Distinctions between equity and Common Law, he said, often seem “nice and metaphysical"; in fact they are matters of expediency. Should we try to abolish equity, our whole legal system would need to be remodeled. But if, on the other hand, we force upon Common Law tribunals the task of administering both jurisdictions, we shall produce “a hybridous, and unseemly monster of the law," which would have “the comeliness and virtues of neither parent."
The lawyers thus put a spoke in their own wheel. Story argued that the two should be separate but co-ordinate jurisdictions, their judgments, if at variance, to be reviewed by still a third organization. He could foresee the horrible consequence wherein all clear distinctions of right and wrong would be confounded, wherein lawyers would be betrayed into “unfrequented labyrinths." He appealed to the ingrained American belief in checks and balances, and he appealed in vain.
Though some states, notably New York under Kent, enacted separate systems, the lawyers undid themselves by their already registered boast that in America both counsel and judge were prepared, unlike the English, to work both sides of the legal street. Even in New York, where in 1845 Murray Hoffman in a two-volume manifesto defended the Court of Chancery, it had to be admitted, somehow, that though no “scientific compilations of modern knowledge, exhibit a system of such pure morality, so consistent with the dictates of a sound unbiased reason," still delay and expense had marred the beauty of equity even from the very birth of the court.
From the point of view of such theorists as Kent and Story, their failure to impose upon the United States a predse differentiation was a defeat. But they were resourceful men, and quickly learned how to plead the enumerated classes of cases upon equity assumptions rather than upon those of the Common Law. One illustration out of a hundred may suffice: the security of patents.
Here, above all, was the category of dispute in which an appeal to a jury would be unfortunate. A man's right to his invention could be sustained only by the untrammeled wisdom of a particular judge, skilled in the techniques and learned in knowledge of the craft. On this point, the law was called upon to resist the democracy’s contention that useful devices serving the general public were the natural
possessions of those they most benefited. Today we find it hard to suppose that in the Republic there could arise such a contention, such a readiness to profit by the inventions of genius without regard to the genius; the fact is that such an attitude did exist. The lawyers were powerless to refute it under proceedings in Common Law. They ventured into equity, and there they succeeded.
In this crucial area the connection between the campaign for equity and the technological transformation of the society is most obvious. Thomas Fessenden published in Boston in 1810 a pioneer defense of patent rights, the tone of which is still eighteenth-century: he argues grandly, in the manner of a Franklin, that authors of useful improvements in the arts deserve reward, because to them “mankind are indebted not only for the comforts, ornaments, and luxuries of life, but even for those necessaries, the want of which would convert the human race into hordes of wandering, naked, and houseless savages, much more miserable and defenceless than the brute inhabitants of the wilderness.” After 1815, as the industrial revolution proceeded in New England at a pace which then seemed dizzy, Joseph Story would indulge himself less in neoclassical rhetoric and simply insist that in order to improve factories the law of patents should be developed through a “liberal construction,” and that this was possible only in equity. By the middle of the century, however, a new rhetoric was devised for the enhancement of patents; not surprisingly, Daniel Webster brought it to full flowering in his last appearance in court, as attorney for Charles Goodyear in 1852. Interestingly enough, Webster's opponent was Rufus Choate, which indicates that even at this date the self-advertised “conservatives” could not entirely agree about patents. Webster argued his cause with a burst of the old Websterian power. He ridiculed the superstition that the right of an inventor to his invention is a monopoly, and grandly assumed that by now the American people had become so intelligent that as few of them would “pick a flaw” in an inventor's title as would question their neighbor's title deed. Yet what carried the argument, with the court and with the public, was Webster's portrait of the solitary, self-reliant, suffering pioneer of technology. Having ignored his years of lonely endeavor, those who had laughed at Goodyear opened their eyes in astonishment:
They then saw what they had been treating with ridicule, was sublime; that what they had made the subject of reproach, was the exercise of great in- vendve genius; that what they had laughed at, the perseverance of a man of talent with great perceptive faculties, with indomitable perseverance and intellect.
It dawned on them, Webster concluded, as though another sun had risen in the hemisphere. Thus it was that in equity lawyers who were bound by the Common Law to distrust genius could escape from the trammels of their profession and could join, at least rhetorically, with their clerical rivals in saluting the “sublime.’'
From the beginning of this legal crusade, however, one point was clear, that the doctrine of patents would prove to be, as Story predicted in 1818, “the metaphysics of the law.’’ Here, if anywhere, we have to depend not on general principles but on “the minute and subtle distinctions which occasionally arise in the application of those principles.’’ In 1849 George Ticknor Curtis put together a textbook on patents which frankly declared that in this administration precedents counted for less than the nice discrimination of decision under varying circumstances of fact. John Kane in the same year drew the obvious moral that decisions in this area could not be left to “those whose minds have undergone no special training in science—for whom there are no axioms, no starting points in argument, no definitions, no vocabulary, no alphabet evenl’’ Which was to say that in patent law the necessity of getting rid of juries was especially apparent.
Throughout the debate, juries were the issue. Lawyers might persuade a grumbling populace that equity had its precedents, but they could not conceal their eagerness to extend the categories of cases to be tried in equity in order to prevent citizens from meddling. At the beginning of the controversy Brackenridge warned that America had an advantage over England: without distinct courts of Chancery “we have the assistance of a jury to whom the facts may be referred upon which constitutes the exception, and upon which the equity arises.’’ Forty years later Lysander Spooner pulalished in Boston An Essay on Trial by Jury, which was a last short blast against Chancery. Government, he mourned, must be formed only by voluntary association, of which a jury is the most precious; juries should be allowed to decide both law and fact. The scheme of equity is a cheat, perpetrated by those who imagine themselves to have a more exquisite sense of justice than the people;
They cannot claim or expect that the whole people shall practise the folly of taking on trust their pretended superior knowledge, and of committing blindly into their hands all their won interests, liberties, and rights, to be disposed of on principles, the justness of which the people themselves cannot comprehend.
Because they knew that the people would not bow before this fancied superiority, they deceived them by inventing Chancery.
BOOK two: the legal mentality
Joseph Story insisted that he and his sort had no intention of eliminating juries from trials in which they played a legitimate part—in criminal actions, for instance. Yet William Duane's attack on the “Philistines" in 1807 predicted that if property disputes were to be settled without the aid of the people, then the democracy would be undone. By 1815 Story was delighted to find that the merchants of Boston preferred equity in admiralty cases: “They declare that in mercantile causes, they are not fond of juries." Yet for obvious reasons, the lawyers exercised restraint in admitting that they often found juries a nuisance. Chief Justice Durfee of Rhode Island in 1840 exposed the tensions which soon erupted in Dorr's Rebellion by baldly stating that all law is so complicated and artificial that, though it does begin with natural reason, it simply cannot be understood by any except those who have studied it carefully. Only these can move amid its “adventitious and invented forms and modes of proceeding," whereof most juries are incompetent.
Granted that such open utterances are rare, still the nagging attacks on Chancery show that there persisted an apprehension that educated lawyers were plotting to eradicate juries of the uneducated. Eventually it was not a lawyer who brought the accusation into the open, but a member of that landed oligarchy, who was a friend of Kent's but also a sometime idol of the American democracy, the “national novelist," James Fenimore Cooper. His last effort in fiction, published in 1850, was The Ways of the Hour, As a story, it is a pathetic book; but under the circumstances—considering his fame as creator of Leatherstocking, his feud with the American public, and his own conduct of libel suits in the New York courts—this labored, wooden book received immense attention. It was an assault upon the vulgarity, ignorance, emotionalism, the utter incapacity of the American jury when it came to judging either law or fact.
Cooper's central figure, a civilized New York lawyer whom he calls Thomas Dunscomb, is a copy of the recently departed James Kent. He is called on to defend an innocent woman before a country jury. Cooper announces his theme in his preface, that the institution of juries may be admirable in a monarchy, but is unsuited to a democracy. The very principle which makes it an engine against royal presumption “renders it unsafe in a state of society in which few have sufficient resolution to attempt even to resist popular impulses." Dramatizing his thesis at tiresome length, he indicted the jury system as irresponsible, vague, and unprincipled, in a society where men are not urged by outside pressures to perform the right, where they “are left to the perverse and free workings of a very evil nature."
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Cooper’s novel aroused more of that patriotic execration which had been heaped in 1838 upon Home As Found, but editors, especially in New York, had to be circumspect because of the suits he had conducted against them in the previous decade. Hundreds of lawyers were secretly delighted, but few came into the open. A few years later Horace Binney informed Sir J. T. Coleride that the prejudice against trial by jury had been steadily growing in America, though in ordinary esteem it remained the ark of the covenant. Interestingly enough, only in The Western Law Journal, published in Cincinnati, was Cooper’s book favorably reviewed. “To select an ignorant farmer (whose talk is of bullocks),’’ said the anonymous commentator, “to determine the sanity of a testator, or the principles of a steam engine, would seem the height of folly—a folly which men do not commit, who voluntarily select arbitrators for the amicable adjustment of such disputes.’’
Significantly, the Cincinnati writer selected as illustrations two classes of cases for which Kent and Story had created equity—testaments and patents. In this sort of business, he informed the democracy, "jurors are men of little intelligence, ignorant of the sciences, and unaccustomed to intellectual efforts.’’ When the contest over equity is reduced to this degree of explicit admission, we may say that at last the object which all along had been the aim of the lawyers stands revealed. Yet it is easy to become so gifted with hindsight as to forget what had for men like Tilghman, Kent, Story been a larger comprehension of the purposes of equity. Indeed, they disliked the tumult of a clownish jury, and were eager to expedite the business of a commercial community. It is also true that in equity as in the Civil Law they saw their sort of vision. Story’s son, paraphrasing the father, said that in the broad doctrines and “liberal” spirit of Chancery, the great Justice delighted:
Its free, flexible, and yet distinct and practical principles, comported better with the character of his mind, in which the love of Justice and Freedom was native, than the narrow and more technical doctrines of the common law. Equity, in his mind, was a central sun, raying out its principles into every department of the law, and animating all the systems around it, from the nearer system of Commerical and Natural Law, to the distant system of Real Law.
The victory that these campaigners won, though it was not as complete as they desired, was substantial. When the Constitution of the United States had made the distinction, “in law or equity,” the nation hardly knew from its own experience what this signified. By 1850 the separation had become a part of the national consciousness. In a
manner of speaking, this achievement was as important for the attainment of an American mentality as any in other areas of struggle.
4 .
PRACTICALITY
Midway through his career at the Philadelphia Bar, Horace Binney, in a mood of candor, declared that the practice of law added nothing to the lawyer's intellect. He is concerned to win, but win or lose, he forgets the case as soon as he has been paid. The physician learns new facts, increases his knowledge from every patient, “but the lawyer’s facts are unproductive of all benefits, except to the fortunate client.” All of this, conceded the sage, justifies the “sneer which is commonly directed against the mere lawyer.”
During the years in which Hoffman, Du Ponceau, Kent, Story were creating the rational science, reading the civilians, devising an American equity, there were circulating among the populace such handbooks as, to mention only one, John M’Dougal’s The Farmer's Assistant (third edition, Chillicothe, Ohio, 1815), which eloquently was subtitled Every Man his own Lawyer. Herein, boasted the author, the tradesman, farmer, mechanic or manufacturer may perceive a correct table of forms and precedents adapted to his concerns, so that he may transact his business without the assistance of lawyers. The sale of works of this nature suggests that hundreds were not fully persuaded by the rhetoric of the great jurists.
David Hoffman addressed himself against this anti-intellectualism more than did Kent or Story. In 1836, he pleaded that a liberal mind must discover its zeal by collecting from the range of science and art whatever may embellish it. In his last valiant appeal, his Circular of 1844, he stood at Thermopylae: he would have naught to do with the notion that law students are to be merely mechanical artisans. No attorney could be “a good and lasting one” who was not versed in the reasons of the law.
I therefore cannot acquiesce in, and never will yield to the vulgar error of putting practice before and above theory—it is an unnatural inversion of the established order of nature—an ignorant and slovenly way of urging young men on to attempts far beyond the powers of the human mind.
Hoffman knew the enemy, if only because he, the veteran instructor of young attorneys, lacked the judicial immunity of Kent and Story.
The American Jurist for 1830 saluted Hoffman’s service to legal education, but objected to his prologues on the nature of man and of society. The student, said this critic, has no need to study the properties of the sea anemone or the metaphysical theories of Descartes, much less to be confounded by theological preliminaries about moral liberty and free agency.
These grumblings became thunder before the storm when Benjamin F. Butler issued his Plan for the Organization of a Law Faculty for the University of the City of New York, at the request of the Council, in 1835. Here was voiced anew that intractable concern with practical results which, since the days of pioneer justice, had looked askance upon the towers of intellect the lawyers were erecting. The ordinary “scientific” course, said Butler, commences with the law of nature, goes through the law of nations and constitutional law, before condescending to the municipal law, which comprises the only body of jurisprudence with which students must actually deal. This may be a “philosophical order,” but nothing can be more useless for training a practitioner. The first two volumes of Blackstone and the whole of Kent’s Commentaries —Butler dared to assault the throne—“are at this time almost equally inappropriate, because they have little or no connection with the practical business of the office, which will therefore be utterly unintelligible.” Butler was not quite so radical as he sometimes sounded: he merely proposed to “invert” the standard order of study, so as to devote the first year to practice and pleading, and to transfer the law of nature and of nations to the “General Course.” But what he meant was that young men could go forth with some basic instruction in pleading, and leave the law of nature to their senile meditations. Butler scored heavily against the theorists by insisting that the method he proposed was natural, that it would be similar to the instruction followed “in the mechanical and other arts,” where the learning of practice preceded the acquisition of principles.
Had Butler been an isolated phenomenon, he might have been dismissed as a Jacksonian vulgarian, even though the spokesman of a university. But in 1835 Francis Hilliard issued The Elements of Law, which he advertised as a comprehensive survey of all an American lawyer needed to know. The basic principles, Hilliard said, are so few and simple that a child can grasp them. Subtleties and nice distinctions can quickly be demolished. “Municipal rules are founded upon the basis of equity, reason, and right.” The Common Law is, in American courts, reduced to the rule of common sense. The science of matter has been deprived of mystery, and so likewise has been the
BOOK two: the legal mentality
science of mind. “In the new spirit, no less just than liberal, that now prevails, all knowledge is held to be practical^’ Hilliard insisted that the law should be brought into rapport with the mentality of the century.
Men of the majestic era of John Marshall—for whom Hoffman spoke—were simply bewildered at this rising insistence upon practicality. They never held that lawyers should not test their learning in the courts, that they should not seek to win decisions. But that, with their erudition in the Common Law, in civil law and in equity, they should ever conceive of themselves as mere technicians—this notion they repudiated. So, in 1846, those who survived were the more dismayed by William A. Porter’s address to the Law Academy of Philadelphia, printed in so reputable a vehicle as The Pennsylvania Law Journal, which frankly declared that theory without practice is valuable only as an amusement, and that in the law, as in the case of any machine, well- informed persons “will infinitely sooner entrust business to mere men of practice, of whose learning they know nothing, than to those whom they have every reason to believe most firmly grounded in the principles of their professions, but of whose practical ability they have no good evidence.” As the historian moves into the 1850’s he is struck with how plaintive become the laments of the periodicals that the profession has been subverted by lawyers who regard the law as a mere aggregation of arbitrary provisions. Such are never to be admitted, said The United States Monthly Law Magazine in 1851, “into a comprehension of the great principles, the wide, extending analogies, which are everywhere pervading and everywhere giving a reason and consistency to the law.” But increasingly thenceforth, up to the disputations of the war, laments of this sort became mere whistling into the wind. As catastrophe loomed, Theodore Sedgwick in 1857 ridiculed the logic-chopping of the textbooks—meaning those of Kent and Story— by declaring that the lawyer’s science was entirely practical:
It is only by an intimate acquaintance with its application to the affairs of life, as they actually occur, that we can acquire that sagacity requisite to decide new and doubtful cases. Arbitrary formulae, metaphysical subtleties, fanciful hypotheses, aid us but little in our work.
In more senses than Sedgwick understood, he marked the end of an era, just as the revivalists of 1858 comprehended little of how effectively they closed a period in the religious excitement. The “pragmatists” in both piety and in legalism believed that they drew upon native inspiration;' though they paid a formal respect to what the mind had wrought, they sought, after long years of exasperation and
recent years of political frustration, to get on with a commonsensical notion of their function. This resolution seemed deceptively feasible in the euphoric world of the Revival. In the realm of the law, simplification was oddly enough more difficult because lawyers more than the ministers found themselves tangled in the contradictions of their morality.
l- Aui/ jS JuCceS5 ^i/LLY
CHAPTER FOUR