Remaking Custom: Law and Identity in the Early American Republic

6. Custom, the Written Law, and American Legal Treatises

6 Custom, the Written Law, and American Legal Treatises In an 1823 address, Philadelphia attorney Charles Jared Ingersoll boasted that America’s mechanical arts—its ships, houses, carriages, and other items of construction—were certainly Great Britain’s equal. The nation was also gaining on Europe in the quality of its education and science. By far, Ingersoll proclaimed, America’s crowning point of superiority was the creation of a model form of representative democracy, the principles of which could be found not just in the state and federal legislatures but also in its Bible societies and civic organizations. Free speech and the right to assembly, according to Ingersoll, had made everyone a representative. But although these forms of self-government had made America’s governing bodies the finest in the world, he complained that American judges and lawyers still stubbornly insisted on adhering “with professional tenacity to the laws of the mother country.” English adjudications were “received with a respect too much bordering on submission.” Americans readily adopted British commercial law, which Ingersoll believed was inferior to that of continental Europe. Even more frustrating for Ingersoll was his impression that English legists were ignoring important American legal innovations in favor of inferior European legal authority. He complained that America’s statesmen were turning out principles of international law that he considered far superior to those of British admiralty courts, yet English lawyers, “while silently availing” themselves of European law, had “seldom if ever made use of an American law book.” The English committed this slight despite the fact that American law was of the “same language, system, and subject matter.” The Philadelphia attorney deplored the “colonial acquiescence” under which Americans adopted English legal principles and insisted that “the use and respect of Custom, the Written Law, and American Legal Treatises | 173 American jurisprudence in Great Britain” would begin only when Americans “ceased to prefer English adjudications” to their own.1 As Ingersoll pointed out, in the decades since Independence, America had made great social, economic, and political strides. Through a war and occasional economic setbacks, the new nation pressed hard to establish itself as a political and economic contender in the Atlantic world. The Louisiana Purchase of 1803 and acquisition of additional territory along the Gulf Coast and west of the Rocky Mountains quickly turned the young nation into an empire. These territorial gains gave America’s citizens even more easily accessible land and more opportunity for social and economic success . As new territories gained population, residents quickly organized and joined the union as new states. Territorial expansion meant internal commercial growth. At the same time, Americans’ efforts to break into international markets gave them ample and varied opportunities to realize their economic potentials externally as well.2 Although many American visions remained locally oriented, even the most isolated sections of the nation had some ties to networks that led into the next state or territory and eventually across the sea. A vocal minority echoed Ingersoll’s fears that America’s law was not keeping pace with the changes occurring in other parts of its society, and some raised questions about whether the common law was compatible with their expanding societies. To be sure, the courts had been busy, particularly after 1815, creating indigenous precedent. By the 1820s, this precedent was also being recorded and published in law reports on the state and federal levels, but a growing body of more accessible American legal precedent still did not provide a separate American legal identity to some legists’ satisfaction. American lawyers still had to rely far more on English precedent and treatises than some would have preferred. Blackstone’s Commentaries was still the preeminent text with which they learned the fundamentals of common law, and American legists had to rely on English and continental European treatises for their foundations in the growing field of commercial law. Demands for a distinctive American form of law, combined with a strengthened desire to treat the law as a rational science, produced a resurgence of calls for law reform, particularly through codification. The frustration that Ingersoll expressed represented that same tension between custom and innovation that had plagued legists during initial debates over common law’s usefulness in America. The codification movement of the 1820s and 1830s engendered far broader debates than the more 174 | Remaking Custom tentative suggestions for reform made around the Revolution. Like the earlier deliberations over change in American...