LEGAL BENEVOLENCE
As many have remarked, democratic Americans were pretematurally ready to sue each other in courts of law, especially in the primitive turmoil of settlement across the Alleghenies. They had constantly to employ lawyers, and often they made folk heroes out of those champions who, like Sergeant Prentiss in Alabama, could turn the courtroom into a circus. It was the legend of Lincoln's wily resourcefulness before a jury that helped to earn him the title of “Honest” Abe. To be sure, the widely advertised dignity of Marshall, Story, Kent, Pinkney, Wirt, and a hundred other nationally famous paladins of the law went far to quiet native prejudice, and to convince—or half convince —the populace that the profession, at least on their exalted levels, were at heart dedicated not only to winning cases but to disinterested justice. Then too, the massive doctrinal works of Hoffman, Du Ponceau, Kent, and Story reinforced this lofty image and served in some measure to overcome the lingering distrust of legal chicanery.
Nevertheless, distrust persisted. Farmers and shopkeepers might
drink with the circuit rider in the tavern at night, and be delighted (as they were with Lincoln) at his witticisms, but the next day when he appeared in court, they calculated that he had cards up his sleeve. In their inarticulate fashion, they suspected, what Tocqueville had concluded, that the American lawyer “resembles the hierophants of Egypt, for like them he is the sole interpreter of an occult science.”
As Hoffman and Kent forced upon the reluctant nation an admission that the law was more than a mere bag of tricks, residual cynicism assumed a more sophisticated form. In a society where revivalist morality permeated the multitude, including even those who had not undergone conversion, an inevitable accusation arose: lawyers may not be agents of tyranny, but by the very nature of their calling they are dishonest. They are committed to vindicating their client regardless of the merits of his cause, to making the worse appear the better case.
This renewed assault, by those whom jurists often labeled “the infallible mob,” portrayed the successful lawyer as nothing better than a sort of licensed knave, a minister of Satan. In the mob’s view, “To conceal truth, to pervert evidence, to mislead juries and brow-beat judges, are supposed to be the grand attainments of legal ambition.” In the early days of the lawyers’ struggle for prestige, and indeed for years thereafter in Western communities, jurists combated these charges by insisting that jurisprudence consisted in administering the Second Table of the Ten Commandments. Washington Van Hamm in The Western Law Journal of 1849 offered the challenge: if our statutes or decisions can be proved violations of divine principles, “then we will cheerfully admit that our laws should be so altered as to conform to this great code of Divine Law.”
Defenses in this vein—of which there are thousands—had the effect only of augmenting suspicion. A more persuasive argument was devised by William Williamson in 1843: because the two professions, clerical and legal, do not contend for power as they did in medieval England, we dwell in a happy era wherein “the reciprocity of our ministers and men of the law, in sentiment, and in coordinate efforts for the public good, have originated resemblances between them.”
All this, however, could be dismissed by the pious—some of whom were lawyers—with a sweeping observation that the legal methodology was now so complicated that its relation to moral integrity could not readily be perceived. The more the lawyers protested that their justice was identical with that of the Golden Rule, the more the righteous mob accused them of perverting abstract concepts to the manipulation of technicalities. It is very easy, said a South Carolina professor in 1838, to bring in the basic axioms of moral philosophy, but as for the
law itself, that “is now so technical and artificial in its character, that its relations and connections with [the moral] cannot be well comprehended or expounded by one not professionally learned in the law." Midway in the rise of the legal profession, the threat arose that its progress might be checked, nay, even destroyed, unless it could decide within its own cohorts where its own dedication, its own highest obligations, lay. Throughout the Constitutional debates of the 1840's and r85o’s, down to the fatal actions of 1861, this was the issue that drove them, that haunted them, that led many to reminiscent falsifications of their careers. The inability of the best-trained minds to comprehend what they had to deal with, their often pathetic efforts to preserve their reputation for consistency, amount both to the glory and the tragedy of the era.
In terms of immediacy, the problem for the lawyers around 1840 was to dispose of the accusation that by becoming increasingly technical they betrayed morality. This charge is difficult to document because, while we know it was everywhere half articulated before the Revolution, it makes its way stealthily into the record only thirty years thereafter. The accusers are vague, but the defendants show by their responses that they felt the sting. In 1822 Henry Dwight Sedgwick, in an attack upon applications of English Common Law to American situations, said with mischievous irony that the faith of a lawyer is much akin to that of a theologian. Both are trained to reverence the wisdom of their ancestors, and so the lawyer identifies justice with particular forms and rituals:
Any interference with these he considers as endangering the existence of all law and justice, in the same way in which many pious Christians sincerely believe the particular rites and dogmas of their own sect to be the very body and soul of religion, and that whatever affects the one must endanger the other.
Thus both evangelical and Unitarian piety reacted against the elevation of law into an intricate system of reason by insinuating that lawyers, like the overintellectualized theologians of New Haven, separated substance from form, spirit from letter, and sacrificed justice to technicality.
The most obvious riposte the lawyers could make, and one which they resorted to interminably, was to argue that there is nothing inherently wicked in formal rules. J. F. Jackson, in the popular Knickerbocker, recognized that many regard the law as a mere mechanism, “words destitute alike of philosophy and meaning’’; but in order to demonstrate that the practice of the advocate could be consistent with
personal integrity he pointed out that every science has its forms, that grammar and mathematics have rules and figures of demonstration, and so “it is only through the technicalities of the law that its spirit can be imparted and the understanding reached.” Some apologists, however, were more aggressive. Employing the lawyers' distrust of “genius,” they sought to prove to a populace already jealous of whatever surpassed the norm that the training of a lawyer excited the normal affections of the heart. Genius alone, said William Barry at Transylvania, can accomplish much, “but it acquires additional force and derives its principal charm from virtue.” By this logic it followed that a profession which demanded of its neophytes knowledge of the greatest number of facts also excited the “amiable affections of the heart” which “impart lustre to the utility of learning.”
Barry in 1821 was plagiarizing from David Hoffman’s first volume of 1817. His words may seem puzzling to a modern reader unfamiliar with the devious paths through which America made its way out of the eighteenth century into the nineteenth. One thing, however, is clear about them: though Hoffman and Barry do not venture to say that jurisprudence is Christian, they strive to assert the morality of the law by mingling within the heart of the lawyer amiability and utility. We get, I believe, a hint of what is going on behind the scenes from a lecture by James Kent at Columbia in 1824:
No man can preserve in his own breast a constant and lively sense of justice, without being insensibly led to cherish the benevolent affections. Those affections sharpen the perceptions of the moral sense, and give energy and a proper direction to all the noble powers of the understanding. The observation I have somewhere met with, is no less profound than striking, that wisdom is as much the offspring of the heart as of the head.
This reveals the strategy: when pressed with a frontal attack upon their fortress of erudition the jurists make a sally by the flank and confound their opponents by a demonstration that the real source of legal technicality is a heart as much imbued with benevolence as that of any revivalist.
Obviously they drew upon their inheritance from the “benevolent” eighteenth century, but they also invoked the newer vogue of the concept which had been spread in America by the theology of Edwards and Hopkins. Further, they allied themselves with the sentimental version of benevolence that by the 1820’s was becoming the staple of gift books and annuals. Yet at the same time the lawyers were employing a masterful subtlety. For the idea of benevolence, either in its eighteenth-century meanings or in the altered connotations of the
nineteenth, always carries an implication of doing good for one's fellow men. The virtue upon which the structure of the law is erected, said Hoffman—he called it “sublime"—“is that of Happiness, or (its other name) Utility." Josiah Quincy, speaking in 1822 about applications of the laws of Massachusetts to poverty and vice, was fully in possession of this legal moralism which absolved the laws themselves from the jurisdiction of moralists. The moral and religious attributes of man, he began, are the most elevating; of all the means “within the command of society" for disseminating moral and religious influences among the masses, none can be compared with the administration of justice. Wherefore Quincy concluded with the question which needed no answer; “Indeed, truly considered, what is justice itself, but the essence of all that religion teaches, and all that morality suggests, abstracted and adapted by human wisdom, to the exigencies of man in society?" Using the same sequence of propositions at Transylvania, and in the same year—thus showing that legal conscientiousness was no monopoly of New England’s—^Jesse Bledsoe assured Kentuckians: “The Great Author of nature is here the only legislator, and reason, aided by those manifestations of his will which he has been pleased to make by revelation, the only interpreter of these laws." So what to the mob might from the outside seem to be an occult science imposed by pagan hierophants turned out to be, when seen from within, a translation into technicalities of Almighty Wisdom—and thus became the instrument of social prosperity. Or, as Samuel Chapin said in 1829, the instructor in jurisprudence teaches his pupils not merely rules of procedure but the basic principle that civil society is an ordinance of heaven, that it is as truly designed to aid man in securing the end of his being as is the church. “It is not a combination simply for the protection of life and property; but it is an association for moral improvement."
The end result was, to the confusion of citizens who ventured to complain about the delays and expense of the courts, that despite appearances the whole fraternity was sanctified, not because all of them were professing Christians, but because their religion was social. Daniel Webster characteristically summarized the dialectic in his eulogy upon Joseph Story:
And whoever labors on this edifice, with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name, in fame, and character, with that which is and must be as durable as the frame of human society.
Faced with this conception of the legal function, how could a society concerned with social progress object to the “technicalities” of the law? How could they call in question the moral integrity of the profession? It was indeed true, said Archibald D. Murphey of North Carolina in 1830, the courts cannot form principles into a general system; they can only contribute to particular branches of ethics, such as contracts. It is the business of philosophers to construct codes of morals, but there was no need to conclude from the unsystematic nature of the Common Law that administration of it was remote from the great principles of ethics; on the contrary, the chancellors and a few of the Common Law judges of England (“having Lord Mansfield at their head”), the American Supreme Court, “chancellor Kent of New York, Judge Cooper, and a few others, have contributed more to the development and illustration of the principles of ethics, and their proper application to the business and affairs of life, than all the other learned men of the world.” Their principles, thus spread before the people at last, “are gradually weakening the force of precedent and adding new beauties to our system of jurisprudence.”
There was more to come. Social happiness, sought for by benevolent lawyers, might mean just any society—England, France, or China. But in America, the frame of society was unique. So it followed that the benevolent heart of the lawyers and their amiable disposition, which was one with their devotion to utility, were also identical with their selfless, disinterested patriotism. Leaving aside lawyers who go into politics, said Rufus Choate, the ordinary practitioner “performs a function of peculiar and vast usefulness in the American Commonwealth.” In this respect he is more serviceable than any other professional or business man, for upon him supremely rests the responsibility “to preserve our organic forms, our civil and social order, our constitutions of government,—even the Union itself.” Once patriotism and rectitude were thus combined, it was obvious that the profession operated under a religious sanction, even when engaged in the most hairsplitting disputation. “Such is the spirit of active interchangeable beneficence diffused by them [the lawyers] through our Christian community,” said William Williamson, “that has contributed, in no small degree, to found and foster our free institutions, and distinguish us in the grade of nations.” Even in the backwoods, lawyers were variously aware—thanks mainly to the teachings of Story—that the forms of law in America were not native, that Americans had lessons to learn from the Common Law, from nineteenth-century developments in England, and from Continental civil law. But when they countered the charge of legalistic chicanery, they, along with the revivalists, appealed to the
peculiar purity of this society, which they identified with the purity of its institutions, and which they dedicated, whether in the South or the North, to the preservation of the national Union.