Remaking Custom: Law and Identity in the Early American Republic
U.S. Constitution, Law, Common law, English law
Most historians of the early republic are familiar with John Murrin’s image of the Constitution as a roof unsupported by the walls of a national culture. Although opting not to address it directly, Remaking Custom offers a potential qualification to Murrin’s argument. Coming at the familiar subject of the development of a national culture from the unfamiliar terrain of the law, Ellen Holmes Pearson finds early national legal scholars to be experts less at demolition than renovation. Rather than create a legal apparatus ad hoc, they refurbished Americans’ English legal inheritance by republicanizing what they could, jettisoning what they could not save, and building new foundations where the English inheritance was wanting. While neither bold nor particularly ambitious, Remaking Custom is a short, accessible, and suggestive exploration of the intersection of law, nationalism, and identity in the era following Independence.
These lawyers, chiefly St. George Tucker, Joseph Story, Tapping Reeve, and James Kent (and numerous lesser figures) were also scholars who penned works that began the process of using the law to fashion [End Page 541] distinctive American identities. Although Pearson maintains that these figures knew of and learned from each other’s work, she provides very little evidence that they actually did so. Instead, Remaking Custom provides a series of close studies of how these thinkers offered their own interpretations of particular problems in the legal culture of the early national United States and particular states and regions within it. Apart from student/teacher or mentor/protégé relationships, there is little sense of whether or how these legists engaged one another’s work.
The common starting point for legal theorists in the generation after the Revolution was Blackstone’s Commentaries. Nowhere was this dependence more apparent than in legists’ treatment of the common law, which seemed inapplicable to an enlightened republic. Nevertheless, legal scholars resisted the impulse to jettison it. The common law’s flexibility enabled it to accommodate the new nation’s diverse local cultures, and innovations made to the common law enabled legists to demonstrate superiority of the United States to England. Legal intellectuals rejected the argument that the common law’s legitimacy stemmed from its antiquity. Instead, they maintained that common legal principles emerged from consent and natural principles that all rational people could intuit. In this way, legists helped transition from British to American law while building a foundation on which the nation could begin to elaborate its own legal culture.
The written constitution was one key feature of that culture that spoke directly to the new national character that Americans were keen to build. Written constitutions epitomized the engaged, public-spirited citizenry that was the only bulwark against corruption and despotic power. Yet, if American legists found in written constitutions a useful counterpoint to English traditions, in other respects they hesitated to strike out on their own. While rejecting primogeniture and entail as aristocratic features inapplicable to republican polities (and unnecessary, given the availability of cheap land), legists raised few objections to English laws limiting women’s property rights. In fact, Pearson argues flatly that women were “losers” (106) in the transition from British to American legal cultures, since the absence of equity courts in most states deprived women of an alternative to the more unforgiving common law. Nevertheless, legal thinkers’ deference to English precedent in this respect was consistent with their goal of creating a legal culture that expressed national values. Both the innovations they made, and those they opted not to make, [End Page 542] enhanced the nation’s mission of making property ownership accessible to free white men.
Slavery embarrassed these thinkers deeply, partly because its presence made it hard to argue American superiority to England. These figures were also convinced that slavery violated the core American principles of equality and liberty. They sought to deflect national guilt by establishing the legal foundation of slavery in the ancient world and in premodern England. Legists were also anxious to prove that American law ameliorated the condition of the enslaved to degrees hitherto unknown (especially in Britain’s Caribbean colonies). Despite substantial consensus, regional legal cultures emerged over slavery. St. George Tucker’s cooling ardor for emancipationist schemes epitomized the South’s accommodation to slaveholding. James Kent demonstrated the North’s prudent progressivism by highlighting New York’s gradual emancipation law. A similar difference between legal cultures emerged between East and West over the question of dispossessing Native Americans of their land. All legists, regardless of their sympathy with the Native population, sought to justify whites’ right to Indian territories. But Hugh Brackenridge, writing from the Pennsylvania frontier, maintained that whites were within their rights to take possession of Indian lands by any means necessary. From the long-settled East, James Kent came essentially to the same conclusions, shorn of the pathological hatred for Native Americans that shone through in Brackenridge’s popular works.
Pearson’s final chapter shows how early republican legal treatises struggled to reconcile conflicting ideals, chiefly those between custom and innovation and national versus local identities. The legists considered here resisted calls to codify the law. For all its flaws, they believed that the common law best accommodated American pluralism, although these figures tended to look askance at new, technically focused treatises that, they believed, reduced the law to a trade. Others wrote detailed works on state laws, but Pearson argues that James Kent and Tapping Reeve pointed the way toward a national legal culture that accommodated the role of states as essential guarantors of individual rights.
Remaking Custom provides an interesting perspective on the development of American national identity in this formative era. It does so not only because it approaches this question from the hitherto understudied direction of the law, but because Pearson necessarily takes a trans-Atlantic approach to the question of American identity. Because American law was embedded in English precedent, the development of a [End Page 543] national legal culture compelled legists to tackle in a very practical way the question of national distinctiveness. It was one thing for the literati to call for a national literature, but it was quite another for legal authorities to decide how much, or whether, American law should integrate English precedent. It is too bad that Pearson does not address these questions more directly. The text sticks close to the legal issues, and wider matters of interest to scholars of American identity are seldom addressed, even in the endnotes. Nevertheless, for readers willing to connect the dots between the law and larger questions of national identity mostly for themselves, Remaking Custom can be a worthwhile book.
Daniel Kilbride is associate professor and chair of the history department at John Carroll University outside of Cleveland, Ohio. He is writing a book on American travelers in Europe, circa 1750–1870.