Hostility to lawyers and case-law is no new phenomenon in this country. Puritans and Quakers arrived with unpleasant memories of the English bench and bar, who had harried them out of their homes. To them, law meant heresy trials, and the impression that these left on the minds of their victims has been set down forever by Bunyan in the prosecution of Faithful at Vanity Fair. The Colonists were no more anxious to transplant some Lord Hate-good, his counsellors, and his law books to our shores, than Eugene V. Debs would strive to set up injunctions and sedition statutes if he were founding a socialistic commonwealth in the South Seas. The popular attitude toward lawyers was re-inforced by the clergy who were naturally reluctant to have their great moral and intellectual influence disputed by men who would hire themselves out to argue either side of any question. The ministers who ruled Massachusetts and Connecticut by the Law of Moses, wanted no rivals to challenge their decisions upon the authority of Bracton and Coke. And everywhere, except perhaps on the Southern plantations, the complicated structure of feudal doctrines, which constituted such a large part of English law well into the 18th century, was as unsuited to Colonial ways and needs as a Gothic cathedral in the wilderness. Life was so pressing, time was so short, labour so scarce, that the only law which could receive acceptance must be so simple that the settlers could apply it themselves. Although Justice Story has spread wide the belief that our ancestors brought the Common Law to New England on the Mayflower, the truth is that only a few fragments got across. These were rapidly supplemented by rules based on pioneer conditions. Much the same phenomenon occurred as in the California of 1849, where the miners ignored the water-law of the Atlantic seaboard which gave each person bordering on a stream some share of the water, and adopted instead the custom better suited to a new country of first come, first served. Almost the earliest task of the founders of a Colony was the regulation of the disputes which arise in a primitive civilization by a brief legislative code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings. Gaps in these codes were not filled from the Common Law, as would be the case to-day, but by the discretion of the magistrate, or in some Colonies, in the early days, from the Bible. Land laws and conveyances were simple,—the underlying English principle of primogeniture was abolished outright by several Colonial charters, and disputes of title were lessened by the admirable system of registering deeds. Such law did not require lawyers, and it is not surprising that even the magistrates were usually laymen. The chief justice of Rhode Island as late as 1818 was a blacksmith. Oftentimes a controversy was taken away from the court by the legislature and settled by a special statute. Thus, instead of the English and modern American judge-made law, the Colonists received for the most part executive and legislative justice, and lived under a protoplasmic popular law, with the Common Law only one of its many ingredients.
The training of the few Colonists who did become lawyers may be judged from that of an early attorney general of Rhode Island:
“When he made up his mind to study law, he went into the garden to exercise his talents in addressing the court and jury. He then selected five cabbages in one row for judges, and twelve in another row for jurors. After trying his hand there a while, he went boldly into court and took upon himself the duties of an advocate, and a little observation and experience there convinced him that the same cabbages were in the court house which he thought he had left in the garden,—five in one row and twelve in another.”
The natural alienation of such attorneys from the intricacies of English law was increased by occasional conflicts between that system and Colonial statutes or conceptions of justice. An excellent Connecticut act for the disposal of a decedent’s land was declared void by the Privy Council in London as contrary to the laws of England, and the attempt of the New York governor and judges to enforce the obnoxious English law of libel in the prosecution of Peter Zenger in order to throttle the criticism of public officials by the press, would have succeeded if the jury had not deliberately rejected the legal definitions given by the court.
The Common Law became somewhat more popular when the principles of individual rights which had blocked Stuart oppression were used against George III. After the Revolution, however, it suffered with all things English. Many lawyers had been Loyalists. The commercial depression turned the bar into debt collectors. The great decisions of Lord Mansfield which laid the foundations of modern business law were rejected by Jefferson and many other Americans because of that judge’s reactionary policy towards the Colonies. Many States actually passed legislation forbidding the use of English cases as authorities in our courts. The enforcement of the Common Law of sedition and criminal libel by judges, many of whom had been educated in England, identified the Common Law with the suppression of freedom of speech. Nevertheless, the old simple Colonial rules were insufficient to decide the complex commercial questions which were constantly arising, especially in maritime transactions. Aid had to be obtained from some mature system of law.
At this moment a rival to the Common Law presented itself in the Napoleonic code of 1804, attractive to the populace just because it was French, and to many of the bar because of its logical arrangement and because unlike English lawyers they were widely read in Roman and modern Continental law. For a time it was actually doubtful whether the legal assistance which American judges needed would be drawn from England or France. French writers were cited in the courts and Livingston drafted a code on the Napoleonic model for Louisiana. The English law had, however, one great advantage. It was written in our own language. Furthermore, a group of exceptionally able judges such as Joseph Story and James Kent, by their decisions and writings, virtually imported the great bulk of the Common Law into this country and reworked it to meet American conditions. Nevertheless, this law was something that came from outside and had not grown up altogether from the lives and thoughts of our own people, so that it has never meant to Americans what English law means to Englishmen, for whom it is as much a product of their own land as parliamentary government or the plays of Shakespeare.
Another reason for American hostility to law was found at the frontier. The pioneer, imbued with the conviction that he was entitled to the land which he had cleared, ploughed and sown, often thrown by crop failures into debt to the tradesmen in the town, resented law as something which was forced upon him by people who led easy lives, who took his land away for some technical defect of title, foreclosed mortgages, compelled him to pay for goods of high prices and low quality, suppressed hereditary feuds, and substituted a mass of book learning which he was too ignorant or too busy to read, for the simple principles of fair play which seemed sufficient to him. Habitual obedience to law was a spirit which could not develop in men who were largely squatters, and who, from the outset of our national history, disregarded the Congressional statutes which required that public lands must be surveyed before they were settled. Sometimes, as in this instance, the settler’s resistance to law was successful. More often they were overpowered by the strength of civilization and submitted to the law sullen and unconvinced.
The old frontier is gone, a new frontier has arisen. The meeting place of unfriendly races has moved Eastward from the Missouri to the Merrimac. The pioneers of to-day came often from autocratic lands where law was something imposed on them from above, and they were slow to regard our law as different in kind. It was not a part of themselves. Moreover, they did not find in America the energetic police organization which had compelled their obedience in Europe. The men who framed our system of laws were taught by Puritanism that duties declared by those lawfully in authority should be voluntarily performed. A statute once on the books got much vitality from this spirit and from the social pressure of the homogeneous settled communities, whatever the difficulties of enforcement at the frontier. These forces behind law became weaker when the population was split into numerous and diverse races by the great tide of immigration. Obedience to law, never automatic among us, now became liable to cease altogether whenever a person thought the law unreasonable or felt fairly certain that he would not be found out.
This belief that a law ceases to have obligation when it becomes inexpedient to obey it, extends far beyond the recently arrived elements in our population. For instance, a wealthy man with several American generations behind him, who was serving on the jury in an accident case, stood up on a chair as soon as the jury got into the consultation-room and urged them to disregard everything which the judge had instructed them about the inability of the plaintiff to recover if he, as well as the defendant, was negligent. “This doctrine of contributory negligence,” said this educated juryman, “is not the law of France or Germany or any country on the Continent of Europe. A number of eminent writers agree that it is a thoroughly bad law. Let’s have nothing to do with it.” Needless to say, the plaintiff recovered. This conception of a higher law than that on the books may owe something to the Abolitionists’ belief that they were not bound by the laws protecting the inhuman institution of slavery. Many conscientious persons still hold that a man ought not to be punished for disobeying a law which he believes to be morally wrong. Fortunately, a corrective to this dangerous doctrine of the inner legal light is found in the words of a leading Abolitionist, Judge Ebenezer Rockwood Hoar, in charging the Grand Jury on riotous resistance to the fugitive slave law, although he himself regarded it as vicious legislation:
“A man whose private conscience leads him to disobey a law recognized by the community must take the consequences of that disobedience. It is a matter solely between him and his Maker. He should take good care that he is not mistaken, that his private opinion does not result from passion or prejudice, but, if he believes it to be his duty to disobey, he must be prepared to abide by the result; and the laws as they are enacted and settled by the constituted authorities to be constitutional and valid, must be enforced, although it may be to his grievous harm. It will not do for the public authorities to recognize his private opinion as a justification of his acts.”