The Fusion of Law and Politics

DURING the whole colonial period, America probably did not produce a single lawyer who was deeply learned by the strict English standards. Americans tended to be smatterers and admirers of the law, never its high priests; few if any of them were thoroughly at home in the man-made jungle of conveyancing, bills in chancery, and real actions.

Still, even the scarcity of lawbooks and the meagerness of the technical apparatus of legal learning did have some advantages. The few books available, while sometimes overvalued and idolatrized, were often thoroughly mastered. Jefferson found his legal learning in a few classics like Bracton, Coke, and Blackstone (which, as his Commonplace Book shows, he reread and made his own). He was more likely to see the broad outlines than if he had wandered in a library overflowing with the disordered legal lore of all past ages. In Lord Coke, for example, Jefferson saw not merely a crabbed legalist, but the champion of a broad and still relevant position: “a sounder Whig never wrote, nor profounder learning in the orthodox doctrines of British liberties. Our lawyers were then all Whigs.” Jefferson much preferred Coke to “the honeyed Mans-fieldism of Blackstone” which he thought had bred a subtle Toryism, even among the younger American lawyers who called themselves Whigs. Jefferson’s reverence for the pristine Anglo-Saxon form of English common law—however vaguely grounded in historical facts—provided him with a framework for a sensible legal simplicity and for refurbishing the rights of Englishmen.

More than one wise modern lawyer has noted how the lawyer-framers of the Federal Constitution were served by the fact that they had so few books. Justice Miller, one of the ablest men to sit on the Supreme Court in the late 19th century, described ignorance as a major shaping factor in the law of our Western states; the first judges, he is supposed to have observed, “did not know enough to do the wrong thing, so they did the right thing.”

The New World abounded with legal problems for which English precedents either did not exist, or were not available on this side of the Atlantic. So American judges boldly extrapolated half-understood principles or ingeniously adapted half-irrelevant English legislation. These tendencies were reenforced in the last third of the 18th century by the convenient appearance of Blackstone’s Commentaries, which also deprived colonial lawyers of the dangerous temptation of making their own code.

While American legal knowledge became simplified and popular, the very idea of law acquired a new flavor which would long influence American legal thinking and political institutions. Any system of common law looks at how things have been done to determine how they ought to be done: it respects the going machinery of society and looks primarily to its functioning rather than to sudden legislation or to a legal code. Strangely enough this tendency was reënforced in colonial America. The boundary between technical “law” (once the monopoly of a learned class) and every other kind of knowledge became less clear.

To Americans like Jefferson the laws seemed interfused with everything else in the community. The numerous letters which Jefferson wrote to aspiring law students advised them to acquire a good general education, to read widely, and not to neglect languages, mathematics, or natural philosophy. “This foundation being laid, you may enter regularly on the study of the laws, taking with it such of its kindred sciences as will contribute to eminence in its attainment. The principal of these are physics, ethics, religion, natural law, belles lettres, criticism, rhetoric and oratory. The carrying on several studies is attended with advantage. Variety relieves the mind as well as the eye.”

Colleges introduced “legal” matter, not for professional reasons, but because it was closely connected with theological and “philosophical” studies. The first curriculum of King’s College listed for the fourth year “the Chief Principles of Law and Government, together with History, Sacred and Profane” and soon established a professorship of natural law. Jefferson’s own plans, both for the College of William & Mary and later for the University of Virginia, included a broad study of law in close relation to humanistic subjects. The wider context of American legal studies, which shows how far the American concept of the profession had drifted from its English guild backgrounds, was nowhere better expressed than in President Ezra Stiles’s plan (1777) for a professorship of law at Yale:

The Professorship of Law is equally important with that of Medicine; not indeed towards educating Lawyers or Barristers, but for forming Civilians [citizens]. Fewer than a quarter perhaps of the young gentlemen educated at College, enter into either of the learned professions of Divinity, Law or Physic: The greater part of them after finishing the academic Course return home, mix in with the body of the public, and enter upon Commerce or the cultivation of their Estates. And yet perhaps the most of them in the Course of their Lifes are called forth by their Country into some or other of the various Branches of civil Improvement & the public offices in the State. Most certainly it is worthy of great attention, the Discipline and Education of these in that knowledge which shall qualify them to become useful Members of Society, as Selectmen, Justices of Peace, Members of the Legislature, Judges of Courts, & Delegates in Congress. How Happy for a community to abound with men well instituted in the knowledge of their Rights & Liberties? This Knowledge is catching, & insinuates [among those] not of liberal Education—to fit them for public service. It is greatly owing to the Seats of Learning among us that the arduous Conflict of the present day has found America abundantly furnished with Men adequate to the great and momentous Work of constructing new Policies or forms of Government and conducting the public arrangements in the military, naval & political Departments & the whole public administration of the Republic of the United States, with that Wisdom & Magnanimity which already astonishes Europe and will honor us to late Posterity…. It is scarce possible to enslave a Republic of Civilians, well instructed in their Laws, Rights & Liberties.

In a later age, when the American legal profession was to become more self-conscious, it would boast of the decisive role of “lawyers” in founding the nation and its institutions. Of the fifty-six signers of the Declaration of Independence, twenty-five were “lawyers”; of the fifty-five members of the Constitutional Convention in Philadelphia, thirty-one were “lawyers”; in the first Congress, ten of the twenty-nine Senators and seventeen of the sixty-five Representatives were “lawyers.” But, contrary to common belief, this does not show the importance of a specialized learned profession in the making of our nation. The American experience had not bred awe for the learned specialist in law or in anything else. The boundaries of all American professional privilege were hazy. What it does show is the pervasiveness of legal competence among American men of affairs and the vagueness of the boundary between legal and all other knowledge in a fluid America. How little does it tell us about Jefferson—a self-trained lawyer with a brief apprenticeship in George Wythe’s office—to say that he was a “lawyer” by profession!

What it meant to be a lawyer in America was classically expressed in the career of Andrew Jackson, who at the age of twenty, after an apprenticeship of rollicking travels with an itinerant court and the tutelage of the convivial Colonel John Stokes, in 1787 was declared by the court to be “a person of unblemished moral character, and … competent … knowledge of the law.”

This early breakdown of the walls around technical legal knowledge provides a clue to American political life for decades to come. Out of a distrust of lawyers grew a widening respect for law. The American Revolution could be framed in legal language because that language spoke for the literate community. The great issues of American politics through the Civil War in the 19th century and the New Deal in the 20th would be cast in legal language—the sacred test of “constitutionality”—precisely because Americans saw the revered legal framework as the skeleton on which the community had grown. In this use of a legal test for politics there was a kind of conserving narcissism not often found among nonprimitive nations. In the world of dreams-come-true the community had begun to make its actual image the mold of its desires.

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