Main currents in American thought An interpretation of American literature from the beginnings to 1920
gentleman’s law book, clear, but not deep”; and the wisdom of my Lord
Coke seemed to him not so mellow as that drawn from the more capacious
vats of earlier days. He quoted Grotius and Vattel and Pufendorf and
Bourlamaqui more readily than the South Carolina Digest, and the names
of Papinian and Ulpian and Modestinus and Voet and Cujacius, of the
_Corpus Alaricianum_, of the Justinian, Gregorian, Hermogenian, and
Theodosian codes, slipped familiarly from his pen. How many outlandish
authorities were contained in the huge inkwell on his desk it is
idle to conjecture. Probably not three men in America comprehended
the significance of half the references that he offered for the
consideration of his fellow lawyers, or were competent to question his
deductions. Even the learned Judge Story and Chancellor Kent seem mere
dabblers in comparison with this philosophical historian.
Such learning must inevitably mold one’s thinking in kindred fields,
and he came naturally to espouse what for want of an exacter term
may be called the Common Law theory of politics. It is a conception
of law as an organic growth, the result of man’s laborious search
for a rational freedom in the social body, the single and avowed
end of which is justice. It has taken form not by the decrees of
legislatures, but by decisions of the judiciary, tested and reëxamined
and reargued generation after generation; built up code by code through
slow evolution, the wisdom of the past serving as counselor to the
present; continuously expanding its jurisdiction from the community
to the nation, and from the nation to a world society; the one
guarantee of a sober and rational progress. Theorists and philosophers
come and go; revolutions succeed and fail; foolish statutes and
temporary constitutions have their day; but the organic body of the
law survives all surface change, building into the fabric of society
what experience proves to be good, sloughing off what experience has
outgrown--the tempered rule of social justice; the exact measure of
every civilization compared with which the majority will is a crude and
inadequate makeshift.
From such a conception it follows that government is little more than
ancillary to the law, and political principles are sound in the measure
that they are founded on legal principles. Thus by following the musty
path of jurisprudence Legaré arrived at the same goal that John Cotton
had reached two hundred years before--the apotheosis of magistracy.
With the older Puritan he could assert, _Scripturae plenitudinem
adoro_. The sufficiency of the law to social justice was axiomatic in
his thinking. But the scriptures which he adored were the words of
the judges, whose decisions were above the authority of legislator
or governor and little concerned with a transient majority will. The
old theocrat had set up his theocracy; the modern lexolater would set
up his lexocracy; but the end was pretty much the same. Very likely
Legaré, like the present-day lexolater, would deny the conclusion, yet
it was implicit in his premises, and his scorn of political theory was
sufficient proof. Practical politics he regarded as rather a trumpery
business that achieves no solid results.[408] The political philosopher
he was profoundly suspicious of. The flood of speculation let loose
upon the world by the revolutions of the seventeenth and eighteenth
centuries seemed to him to have invited disaster, and the political
classics of those revolutions he cared little for. He distrusted the
“era of illumination” that sacrificed use and wont to abstract theory.
“We have not too much faith in the ‘march of intellect,’” he remarked
dryly, “and would not ... pitch our anticipations in too high a key”
(_ibid._, Vol. II, p. 264). But his greatest contempt he reserved for
the intellectual revolutionaries--“hair-brained metaphysicians and
empirical demagogues” (_ibid._, Vol. I, p. 216), who would upset the
nice balance of the law. To this matter he returned again and again,
with the scorn of the legal mind for ambitious political systems.
“Innovators or Revolutionists, who go only for an imaginary abstract
rectitude and symmetry of government,” he said, “are always dangerous,
and sometimes the greatest curse with which heaven in its wrath can
visit an offending people” (_ibid._, Vol. II, p. 286).
I have no faith at all in speculative politics. A theorist in
government is as dangerous as a theorist in medicine, or in
agriculture, and for precisely the same reasons--the subjects
are too complicated and too obscure for simple and decisive
experiments. I go for undisputed results in the long run. (_Ibid._,
Vol. I, p. 303.)
Man begins a revolution, but its issues are with God alone. The
voluntary revolutions of man have always been abrupt, violent and
for the worse: so that the wisdom of antiquity laid it down, as a
maxim, that every fundamental change in the State must needs be
bloody and deadly. (_Ibid._, Vol. II, p. 297.)
This inherent conservatism of the legal mind explains Legaré’s
intellectual sympathy with Federalism and his contempt for Jefferson.
The latter to him was the prince of demagogues, and his ink was vitriol
when he wrote of him, as thus in one of his letters: “The immortal
sayings and doings of the holy father in democracy--the servant of the
servants of Demos (whose nose of wax he knew better than anybody how to
shape to his own convenience,)--the infallible, though ever-changing,
St. Thomas of _Canting_-bury. And here, you may be sure, I _cross_
myself devoutly and cry out, with an all-fervent benediction to that
canonized worthy, _pax tecum_ (pronounced, you know, _Scottice, pox
tacum_)” (_Writings_, Vol. I, p. 208). Modern political theories seemed
to him mere upstart doctrines compared with the venerable principles of
the law, and he came to look with suspicion on all political liberalism
not sponsored by lawyers and supported by briefs. A passionate lover
of liberty, he was as distrustful of democracy as John Adams, and
his condemnation was as frank--“that scene of wild impulse, and
tyrannical misrule--a pure democracy” (_ibid._, Vol. II, p. 271). No
state, Beverley Tucker pointed out, was so little democratic as South
Carolina, and Legaré shared the common Charleston distrust of it. As he
watched England and France during the tumultuous thirties, and saw the
struggle over Nullification at home, his concern for the future became
acute and his pessimism as black as Fisher Ames’. In a letter from
Brussels, in the year 1833, shortly after the passage of the English
Reform Bill, he wrote:
Mankind have too little sense to maintain, for any length of time,
a well-tempered democracy, and a great deal too much to bear an
unlimited one--the most dreadful form of “State sovereignty,”
beyond all doubt, in which the descendants of the father of the
first murderer have ever given loose to their ruffian instinct
of violence and oppression. If they have a moderate policy of
the kind, which happens (as all complicated machines will) to be
occasionally a little out of order, their only idea of a remedy
is to pull it down, and along with it every thing that makes a
civil society worthy of its name. Who could ever have dreamed
that the law of brute force which now crushes Europe ... should
be deliberately adopted in America, instead of the really sublime
institutions of a federal jurisdiction, (fallible, of course, but
generally right) and that this relapse into downright barbarism
should be vaunted, by the most enlightened men in the Southern
States, as a _grand_ improvement and the only thing wanting to
make our government as perfect as we have been swearing it was all
along. (_Ibid._, Vol. I, p. 210.)
Back of this ingrained conservatism was a tender Puritan conscience
that must twist his legal studies to ideal ends. After all it was no
other than a juridical romanticism that Hugh Legaré discovered in the
bottom of his scholar’s cup. As medieval as Sir Walter, he sought his
romance in old law-courts rather than in feudal castles, in black-robed
advocates rather than in knights and ladies; and he persuaded himself
that those old litigations, preserved in scraps of Latin and law
French, were dramatic episodes in the ceaseless battle for human
rights, whereof the single objective was justice. Slowly, stone upon
stone, the lawyers were erecting an impregnable citadel, within which
justice kept her inviolable court. It is a pleasant fiction still
believed in by lawyers of the old school, and to Legaré in his study
it bore the very semblance of truth. He had read too many law books;
he had speculated too little on politics; immersed in his codes, he
had forgotten to inquire into the hidden springs of sovereignty.
In his contempt for practical politics he had neglected to study
even the primer of economic determinism. To the economic historian,
Legaré’s boundless faith in the sufficiency of legal processes is
incomprehensible. A few lessons from the wiser Jefferson would have
taught him much that he needed to know concerning the economic sources
of power. In his attitude towards the law Jefferson was a suspicious
realist. He had no faith in legal codes that had grown up under
monarchical and aristocratic systems, and he put no trust in government
by lawyers. He could not understand how the Common Law, interpreted
by the Tory Blackstone, and applied by Federalist lawyers, should
serve the needs of a democracy. Democratic America, he was convinced,
must create a new democratic law, and hold its judiciary in strict
subjection to its will; to surrender sovereignty to an aristocracy of
the bench would mean the abdication of democracy. But Legaré refused
to go to school to Jefferson. He clung to his romantic conception of
the law with the same passionate conviction that Calhoun clung to
his romantic dream of a Greek democracy; and with the ebbing of the
romantic tide they were both left stranded.
But if Legaré was unsympathetic towards the new political theory
that came from the French intellectuals, and frankly hostile to the
new political practice that came in with the Jacksonians, he warmly
approved the new economics that came with the Industrial Revolution. In
his whole-hearted acceptance of Adam Smith he seems not a Carolinian
at all, but an English liberal of the Cobden-Bright school. He adopted
the principle of _laissez faire_, the gospel of progress, the attitude
of optimism. He accepted the theory of the beneficence of commerce as
a universal civilizing agency, and he looked forward confidently to an
eventual parliament of man, a future federation of the world. Commerce
in the end must outlaw war, and peace with freedom would spread the
blessings of civilization to the ends of the earth.[409]
A convincing object-lesson in the sufficiency of the principle of
_laissez faire_, he discovered in the amazing progress of America. The
mainspring of that progress he found in economic freedom--freedom “from
those undue restraints and that impertinent interference of government
in the interests properly belonging to individuals.” “I know,” he said,
“that the cardinal spring and source of our success is freedom--freedom
of thought, freedom of speech, freedom of action, freedom of commerce”
(_Writings_, Vol. I, p. 306). The greatest of these was free trade
between the states. His travels in England and the contrast between
English progress and continental backwardness confirmed him in this
belief. “The doctrine of Free Trade,” he asserted, “is a great
fundamental doctrine of civilization. The world must come to it at
last, if the visions of improvement in which we love to indulge are
ever to be realized” (_ibid._, Vol. I, p. 272). He went further and