The Legacy of Substantive Law

Early American law, like early American legal institutions, was shrouded in ambiguity. It is a misnomer to speak of "American" colonial law, because the colonies were fundamentally reshaping their legal traditions and, at best, shared only broad tendencies. Those tendencies included an emphasis on simplicity (abetted by a modest bench and bar), a commitment to humane and rational approaches to the law, a strong sense of equity in practice if not in form, a respect for due process, an antidevelopmental bias in the treatment of real property, and a propensity to erect legal rules that served the interests of the top of the social order. The widespread distribution and easy alienation of real property attenuated blatant class conflict.

The colonists learned through experience that a legitimate rule of law required constant adaptation. Adaptation sometimes became invention; the law of slavery was colonial America's most radical and troubling departure from its transplanted legal

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tradition. Colonial law had another important tendency in that it was consensual. Early Americans did not articulate a popular will theory of law, but most of their substantive law rested on the practical assumption that wide agreement with rules would promote their legitimacy. The crisis of imperial authority that surfaced in the mid-eighteenth century ignited these latent presumptions, culminating in revolution, a new nation, and the Americanization of the ambiguous tendencies of colonial law.

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The Law in Revolution and Revolution in the Law

The Ambiguity of the American Revolution

There is no doubt that the American Revolution was indeed a revolution in that British colonies transformed themselves into sovereign states and later into an independent nation. The new American states also eradicated the few vestiges of feudalism, such as the practice of primogeniture, that had persisted in the colonies. There is no denying, as well, that the revolutionary leaders suffused their rhetoric with powerful social possibilities. Thomas Jefferson's assertion in the Declaration of Independence that "all men are created equal" presented a startling specter of social change to a world accustomed to unquestioned social hierarchy. ¹ Extensive landholding and frontier conditions before the Revolution lent substance to this rhetoric of social leveling, especially in comparison with England. Benjamin Franklin, for example, insisted on wearing a simple republican black coat, even when he represented American interests in the fashionable courts of Europe.

Yet the American Revolution was an ambiguous affair as revolutions go. It presented few scenes of revolutionary crowds pitted against a besieged upper class; the battle over who should rule at home was less dramatic than the struggle to secure home rule from the English. The Declaration of Independence aimed to free Americans from the control of the British monarchy, not to free all Americans, as the perpetuation of slavery made clear. The King, not the American upper class (such as it was), Jefferson wrote, was the object of revolutionary ardor because "He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people." ² Americans were not angry at one another, by and large; they were angry at their British rulers. An elite class, one anxious to partake fully in the emerging commerce of the

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era, remained firmly in control. The Revolution hardly touched the way of life carved out by country nabobs south of Pennsylvania. Planters not only kept their black slaves, but they maintained control over tidewater society and local government, partly because their less affluent neighbors willingly deferred to their leadership. Most of the northern colonies indeed brought an end to slavery, because the economic justification for it was dubious in any case. In Boston, New York, and Philadelphia, a coalition of merchants, landowners, and (most significantly) lawyers dominated patriot leadership. They preserved property rights and generally retained a secure hold over state government after the Revolution.

The leadership of lawyers in the Revolution perhaps explains why the entire affair exuded a legal pungency. No heads rolled in America; loyalists were tarred and feathered but not hung. Patriot leaders permitted them to flee with their lives and they confiscated their lands only after proper legislative and judicial proceedings. The revolutionary pamphleteer Thomas Paine, in Common Sense, captured the conservative and legal cast of events begun in 1776 when he wrote that in "America the law has become king." ³ If the Revolution produced no massive social upheaval, it did compel Americans to rethink their assumptions about the nature of law, and it was in this way that the Revolution had its greatest impact.

Changes in law flowed from the Revolution on two levels and in two different chronological spans. ⁴ Although the history of private law during the Revolution remains unwritten, the evidence suggests that only modest change occurred. The newly free American states, through so-called reception statutes, formally embraced that part of the English common law that did not contradict prior colonial practices. Revolutionary violence, it seems, did little to nourish any profound change in private law. Yet, when viewed over the long haul, the Revolution had enormous consequences for private law, because it permitted Americans in the following century to engage in the kind of experimentation that was impossible within the empire. The forces of acquisitive capitalism and the Enlightenment's emphasis on individual reason and human worth stimulated not only the revolutionary generation but fueled the explosive outburst of nineteenth-century American lawmaking.

In the short haul, though, the Revolution's impact was most pronounced on public law. Americans of this generation scrutinized the relationship of fundamental principles of government to the legitimacy of legal action as they never had before and never would again. The did so because the essentially conservative nature of the Revolution posed for them a profound predicament: they had to "break the law while remaining legal." ⁵ Throughout the years from 1760 to 1787, the revolutionaries repeatedly assessed their place under the British constitution, the relationship of written to unwritten law, the basis of sovereign authority for American law, the proper instrument for invoking that authority, and the ties that would bind the new states to one another and to central authority. Sovereignty, representation, federalism were the constitutional issues with which the generation of the Revolution wrestled.

The solutions came in fits and starts. What Americans believed to be the basis of constitutional authority in 1761, in 1776, and in 1787 were different; what we think of today as the essence of our constitutional tradition emerged only gradually.

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Date: 2015-01-29; view: 882