SCIENTIFIC AND AMERICAN PRACTICALITY
In the early 1820’s codification could still be discussed without hysteria. Grimk^’s invocation of the scientific analogy impressed a profession which was not only finding hitherto undreamed-of fascinations in patent law but was also, with rather dazed amazement, beginning to realize that the progress of technology was causing an exciting revolution in the law of commerce and business. For a short, happy period codification was a professional problem without political implications. Even James Kent, in his first volume in 1826, with ceremonial bow to Francis Bacon, admitted that the torrent of reports had become overwhelming, that the spirit of the age demanded simplicity, and that a compendium of American law upon the model of Comyn’s Digest, “executed by a like master artist, retaining what is applicable, and rejecting every thing that is obsolete and inapplicable to our institutions, would be an immense blessing.’’ Kent may have been gently insinuating that his own Commentaries were substantially such a digest; he was not yet, at any rate, at that stage of outrage against the very idea of a code which inflamed his otherwise serene old age, and which Fenimore Cooper, patently drawing Kent’s features in his Squire Dunscomb of The Ways of the Hour, described in 1850.
While equanimity still prevailed, Henry Dwight Sedgwick analyzed William Sampson in The North American Review with a judiciousness which was not thereafter, on this topic, to distinguish that patrician journal. Sedgwick went along astonishingly (considering the audience for whom he was writing) with the “Hibernian’’ theses of Sampson (though he confessed his distaste for that temper). Yes, originally the Common Law was the “bloody code of barbarians’’; yes, it was cultivated in a manner to impart an air of" mystery, “inasmuch as its reasons and principles were not to be found in the existing state of things’’; yes, it was and is founded solely on the principle of author-
ity, despite the fact that in every other branch of “intellectual effort" —principally the sciences—^veneration for precedent has proved “one of the principal barriers to human improvement." In special pleading the Common Law has become a curse, and in real estate it is sheer confusion. As to wills and inheritance, so long as the struggle between precedent and reason continues, “legal opinions must be dubious to a perplexing degree, inasmuch as the result in any given case will depend more on the character and turn of mind of the judge, who is to decide it, than upon any general principle."
All this, and more, Sedgwick would concede—everything that Sampson and Grimk^ adduced. He even went so far as to suggest that we should no longer depend upon modern English decisions in either equity or in Common Law because, since our Revolution, we should have been, and by 1824 even more must be, creating our own jurisprudence. Though Sedgwick well knew that some of his eminent colleagues were becoming apprehensive, he submitted that, at least for the larger and wealthier states, there were commanding reasons for putting the laws “into written codes/’ With a kind of bland innocence which contrasts sharply with Grimk^’s vehemence, Sedgwick noted that simplification, order, arrangement, and efficiency were “taking place in every other branch of human knowledge and effort," and so thought it likely that the law should not be exempt from the operation of “beneficent" principles otherwise universally prevalent.
Even as Sedgwick wrote, the age of legal innocence was coming to a close; codification was on the way to becoming a party banner. In retrospect, the controversy appears all the more insane because the partisans of codification were contending for what they presented as the inherent rationality of the epoch, while their opponents accused them of endeavoring, like the Jacobins of France, to put to the guillotine the very paradigm of reasonableness which had painfully been evolved in the contentious history of the Common Law. It is not accurate to say that all the champions of codification were Jacksonians. Hundreds of Democratic lawyers remained as hostile to the notion as were Cooper and Kent. And it must be recorded, considering how he has been maligned, that in this miserable contest, Joseph Story showed himself a man of principle rather than of party.
Story was the foremost advocate of legal scholarship; yet as early as 1821 he saw that something had to be done “to avert the fearful calamity, which threatens us, of being buried alive, not in the catacombs, but in the labyrinths of the law." The notion of a digest had early become familiar to him; he did not blench at the idea of a code, and defended Livingston’s work against disparagement “by the exclu-
sive admirers of the common law." For Francis Lieber’s Encyclopaedia Americana in 1835 Story wrote a trenchant article, disagreeing with both advocates and foes of codes, yet contending that "much may be done to simplify the principles and practice of the law by judicious codification." The next year, when Rantoul’s agitation became so strong that Governor Everett, who detested the scheme, had to act, Story served on a commission which, though advising against wholesale regularization, did point out certain areas, such as criminal law, property and personal rights, contracts, where a code might be not only feasible but desirable. However, Story was a broad-gauged and exceptional man.
The fact that such advocates of codification as Sampson and Ran- toul were also friends of labor meant for most members of the profession that there was a link between the two causes. Indeed, Frederick Robinson told an assembly of the trades unions of Boston in 1834 that lawyers themselves were a combination, and so had no right to complain about combinations of labor; he added for good measure that judges should be made responsible to the people by periodic elections. This same Robinson scandalized Rufus Choate by addressing to him an open letter:
Whenever a system of plain and equal laws have been proposed, the brotherhood of the bar have always with one consent, in the legislature, in the newspapers and every where, represented it as chimerical, as the scheme of levellers; that the English Common Law is the height of perfection, and that the united wisdom of the world could not produce its equal. But if we will be governed by our own reason, and not by the dictation of interested men, we shall find that a plain, equal, humane, and concise code of civil, and criminal laws, could easily be made and compiled by disinterested legislators.
At any rate, Robinson went on, we could hardly have anything worse than the present system. By the time codifiers were thus speaking, the lawyers had banded together and were striking back.
We should not be surprised that as early as 1818 Daniel Webster sensed the danger and warned, “It yet appears to us to be among the idlest and weakest theories of the age, that it is possible to provide, beforehand, by positive enactment, and in such manner as to avoid doubts and ambiguities, for all questions to which the immense variety of human concerns gives rise.” This thesis would continue to be the principal bludgeon of the opponents, and as time went on, the tone in which it was spoken became increasingly shrill in spite of many efforts to prove that codification was not revolutionary or to amend the slogan to innocuous "consolidation." The professionals were not de-
ceived. John Anthon's The Law Student of 1850 (a textbook widely used for a decade or more) summarized their matured conviction that destruction of the Common Law “by a set of stiff apothegms, dignified by the name of code, would be a national calamity."
In resisting the threat of codification lawyers reiterated all the arguments that had been used or were still being used to win American consent to the Common Law, though against would-be codifiers they had to resort to several emphases that were mildly embarrassing. Hoffman, always a generous intellect, could conceive that a code achieving comparative certainty might be a blessing, but the real danger was that such a revolutionary undertaking would fall into “the unholy hands of visionary and rancorous politicians," would become the instrument of “the horde of levellers"—which was enough to cause the democracy to suspect that they too ought to be codifiers. “The Common Law,” declared William Sullivan, “will not submit to the trammels of ‘codification,'" and if citizens asked why not, George Bliss came up with an answer which others also would find useful: “I fear that efforts to build up a system of law, without resort to the common law, would prove like attempts to frame a system of theology, while revelation is discarded." From either the moral or intellectual point of view, demanded Henry Warner of the New York Law Institute, “Who, that wishes well to our jurisprudence, either in point of science or practice, would exchange the common law, the precious common law, for a patch-work code?"
Naturally such spokesmen refurbished the lawyers’ contentions that the Common Law grows with life itself, and that by contrast a code would turn out to be a Procrustean bed. There is, said Henry Wheaton to the New York Law Institute, a false attraction in the ideal of uniformity which, as Bacon—potent name!—had remarked, binds hand and foot those who are shallow in judgment. But experience is complex. It is the part of madness, exclaimed The United States Monthly Law Magazine in 1851, to suppose that a time will ever come when law will not be intricate, not have its technical rules, its conflicting analogies; but still worse, “Those who indulge the pleasing hope of making the law so simple, that every man will be his own lawyer, may rest assured that such hopes will never be realized this side of Utopia." Aside from the fact that codes themselves—as French procedure demonstrates—require “construction," the American demand is a device of ignorance. Codification is a ruse of the pettifogger, and under the charge of confusion in the law is masked “a superficial knowledge, a merely practical knowledge of law—a knowledge sufficient to fill the mind of the student with perplexities and doubts.
but which does not extend to a comprehension of those great principles and illustrative analogies by which such difficulties are removed." It is obvious therefore that legislatures would be too ignorant ever to frame a coherent code, even if they tried. In fact, history shows that codes—those of Justinian, of Napoleon—^are the work of despots. "The Spanish Inquisition was a very simple, energetic court." Was this what codifiers wanted?
On the other hand, was it not evident that the Common Law (adapted in the skilled hands of the profession to American conditions) "has been, under God, and next to the bounty of Providence, the chief source of all the blessings that are enjoyed—of all the happiness and prosperity that exist, throughout this widespread and flourishing country"? In its free and “genial" spirit the Common Law is "analogous to that which is beginning to prevail in commerce," and which is rapidly making the United States the richest nation on earth. The founders of the Republic were men of business, knew that the common concerns of life should be left to men’s own notions, and "that there might be such a thing as endeavouring to regulate these matters with too much precision, and they saw that the attempt would defeat itself." This was exactly what codification, by its inherent nature, endeavored. As for Grimk^’s eloquent invocation of modern science. The North American Review dismissed it with a wave of the hand: "One may as well think of composing a system of natural philosophy, which shall be perfect, and without the possibility of further improvement, as a code of laws, to which advancing society is to be chained."
I Thus we suspect that the resistance to codification sprang from a j|Variety of motives—on the lowest plane from the lawyers’ desire to fmonopolize a profitable mystery, on the highest from an intellectual (vision of infinite extensibility. Yet very close to the heart of its inspiration was a conception of American civilization. The legal organizations of this country, state and federal, said The North American, are unique; they have resulted from our appropriation of the Common Law; they are eminently practical. In the end of it, the argument against the codes became an attack on Grimk^’s idea of the sublime. He and his ilk, said The United States Law Journal, attempt to dazzle the public with dissertations on Civil Law, the code of Justinian, the code of Napoleon, and a whole army of codes, but we know what their effects have been in foreign lands. We may say without fear, "they will not do in this country." Grant to codification all its advocates claim for it—"its sublimity and its consistency;—to all of which by the way, if we had time, we could easily show that their title is exceedingly
questionable,—we claim for the common law all the merit of superior solidity and usefulness," And to this grand conclusion the weight of the profession came, after their voyaging in the once-uncharted seas of equity and the Civil Law, In elegance and refinement, the French have many advantages, “but in what is really valuable, they are always behind hand. They wear the ruffle but we wear the shirt,"