Remaking Custom: Law and Identity in the Early American Republic

1. America's Common Law: Custom, Choice, and History Lessons

Anglo-American cultural identity, so tied to custom and an immemorial constitution and law, shaped colonial British American society from the first settlements to the establishment of independent governments and legal systems, and beyond. English law was locally variable in nature, a quality that enabled each colony to formulate customs that suited its peculiar social circumstances and, over time, to harden them into law. This provincial autonomy resulted in a wide variety of local legal systems that even the cohesive force of rebellion and a strengthened federal government could not meld into one “American” law. War and confederation instead helped to sanction the diversity of laws among the united American states, much as they helped to delineate the legal differences between England and its former colonies.1 Newly independent Americans looked upon their legal and constitutional innovations as some of the principal cultural advantages that they possessed over the parent country. Individual honor and reputation were central to a man’s political success in the early republic. This culture of honor extended to Americans’ worries about how outsiders perceived their new nation.2 Despite impressive economic growth, particularly during the middle and later parts of the eighteenth century, and the increased social sophistication that accompanied this growth, Americans never felt that they measured up to metropolitan standards. During the colonial period, settlers had developed an idealized notion of English society that included images of English superiority in cultural pursuits such as art, education, material wealth, and social graces. Their increasing involvement in English economic activities and political interactions with the center made them painfully aware that their 1 America’s Common Law Custom, Choice, and History Lessons 12 | Remaking Custom social and cultural institutions were anemic in comparison with those of the parent country.3 Pre-Revolutionary settlers dealt with these tensions between metropolitan ideal and colonial realities awkwardly. They attempted to erect their own cultural institutions based on English models, while they simultaneously tried to portray their own societies as less corrupt, rather than less sophisticated, versions of the parent country’s culture. These notions of cultural inferiority continued beyond the Revolution. But after 1776, and even more so after ratification of the Constitution, Americans could hold out their republican governments as the first step in building a society that promised to contain a national character vastly superior to any already in existence, including that of England. They proudly announced to the world that they had removed all of the corrupting, feudal vestiges of the Norman invasion and restored the English common law to its pre-invasion form. Despite the parts that they perceived as corrupt, however, Americans knew that England’s common law offered a fine template for their own legal culture, and they remained indebted to English precedent.4 Therefore, leaders of the new polities continued to use the familiar, if cumbersome and outmoded, common law, but they longed for a more orderly system than the English model provided. Common law, with its mysterious origins and generations of precedent, ran contrary to the Enlightenment-era impulse to place all aspects of society into rational categories. But as a product of this same Enlightenment quest for order, Sir William Blackstone’s Commentaries on the Laws of England provided American legal practitioners with a template that allowed them to implement those reforms that their polities needed, while also retaining those elements of English law that they still deemed practical. Blackstone’s work provided the central text from which American legal scholars drew applicable law principles, but it also represented, according to James Wilson, a source of “excellent materials of contrast.”5 Therefore, while Blackstone’s work had come to represent how Englishmen differed from others, it could also help Americans explain how they differed from the English. In pointing up these divergences, the early republic’s legal scholars reinterpreted the law’s character. They reframed the meaning of custom in a common-law culture by adding elements of consent and choice. Moreover, they confronted the question of who owned the common law. Along the way, they sculpted a vision of America as a nation of superior laws, a nation that they believed would realize unsurpassed cultural and social achievements. America’s Common Law | 13 I Neither the English version of the common law nor Blackstone’s Commentaries offered a perfect fit for the new American polities. Some of the more dissatisfied legists debated whether they should retain...