Empire of Liberty: A History of the Early Republic, 1789-1815 (69 page)

Since Americans had become convinced that the dependence of the judges on executive caprice was, in the words of William Henry Drayton of South Carolina,“dangerous to liberty and property of the subject,” they sought to end that dependence at the Revolution.
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Most of the Revolutionary state constitutions of 1776–1777 took away the traditional power of the governors to appoint judges and gave it to the legislatures. The judges’ tenure clearly no longer depended on the pleasure of the chief magistrate. These changes in the judiciary’s status often were justified by reference to the doctrine of separation of powers made famous in the eighteenth century by Montesquieu—that, as the Virginia constitution of 1776 asserted,“the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.”

This separation of the judges from their customary magisterial connection made them independent of the governors, but they were not yet independent of the people or their representatives in the state legislatures. In some of the states the legislatures elected the judges for a prescribed number of years—annually in Rhode Island, Connecticut, and Vermont—which was bound to make the judges feel dependent. When the assembly of Rhode Island, for example, did not like the behavior of
the state’s supreme court in 1786, it simply elected a new court the following year. But even in those states that granted judges tenure during good behavior, the legislatures controlled the judges’ salaries and fees and the power of removal, usually by the simple address of a majority of the legislature. Of the thirteen original states only three—Virginia, North Carolina, and New York—gave a measure of independence to their judges, but only a measure: in Virginia and North Carolina the legislatures elected the judges, and in New York judges had to retire at age sixty.
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Because the American Revolutionaries had so closely identified the judges with the much hated magisterial power, they sought in 1776 not to strengthen the judiciary but to weaken it. They especially feared the seemingly arbitrary discretionary authority that colonial judges had exercised. That discretion had flowed from the fact that the colonists’ laws came from many different and conflicting sources. The colonial judges accepted many parliamentary statutes, but not all; they recognized much of the body of unwritten common law, but not all; and they had to reconcile what they accepted of the English common law with their own colonial statutes.

Because of these different sources of metropolitan and provincial law, the ability of colonial judges to pick and choose the appropriate law had often been much greater than that exercised by judges in England itself.
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The result, as Jefferson put it in 1776, was that Americans had come to view judicial activity as “the eccentric impulses of whimsical, capricious designing men.” Inevitably, most Americans in 1776 had come to believe that their popularly elected legislatures could be better trusted than judges to dispense justice, in Jefferson’s words,“equally and impartially to every description of men.”
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Coupled with this dislike of the judiciary was an equally intense popular dislike of lawyers. By the middle of the eighteenth century lawyers had achieved a measure of stability and some distinction as a profession. But the Revolution disrupted these developments. Many of the most prominent lawyers were Loyalists who fled the country or were disbarred. With the loss of as much as a quarter of the colonial legal profession, opportunities opened up for all sorts of legal sharpers and pettifoggers. All this in turn made the democratic middling forces released by the Revolution even more hostile toward lawyers, especially since lawyers were growing in number four times faster than the general
population.
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In the eyes of many average Americans and popular radicals, the most famous being editor Benjamin Austin of Massachusetts, lawyers became responsible for everything that was wrong in the society. They were simply locusts who enriched themselves by living off the disputes and distresses of ordinary folk. In 1786 even Braintree, Massachusetts, the hometown of the former attorney John Adams, passed a resolve to “crush . . . that order of Gentlemen denominated Lawyers.”
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Since lawyers flourished by manipulating the arcane and intricate mysteries of the common law, they were best dealt with by eliminating or reforming the common law—that body of unwritten rules, practices, and precedents drawn from centuries of English jurisprudence. Although the Revolutionary leaders—many of them attorneys themselves—could scarcely be opposed to lawyers, some of them were interested in simplifying the common law and in bringing it into line with American conditions. Not only did they hope to create certainty out of uncertainty, but, more important, they were eager to circumscribe the much resented judicial discretion that had been exercised by the royal courts. By having the new state legislatures write down the laws in black and white, some of the Revolutionaries aimed to turn the judge into what Jefferson hoped would be “a mere machine.”
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The solution was codification—that is, relying exclusively on statutes and not on the unwritten common law. Indeed, throughout Western and Central Europe in the last half of the eighteenth century codification of the law became a central reform of all enlightened statecraft. Continental rulers everywhere sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights. Eventually these efforts at legal codification were at least partially successful in Bavaria, Prussia, and Austria, and most fully successful with the Civil Code of Napoleonic France.
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Although the eighteenth-century English remained committed to the complexities and obscurities of their common law, even they attempted
some systemization of their laws. In 1731 through parliamentary statute they established English rather than Latin as the language of legal practice and legal authority and for the first time began treating law as a subject to be taught in universities. At the same time, British jurists sought to summarize what they believed about their law in a comprehensive and methodical manner. William Blackstone’s
Commentaries on the Laws of England
(1765–1769) was only the most famous of these efforts to reduce the English laws to a system. Everywhere in Great Britain in the last half of the eighteenth century there was talk of rationalizing and humanizing the absurd and barbarous notions of justice that had existed in the past. Existing statutes should be consolidated, and law-making or legislation should be made into a science for the improvement of society. Despite all this talk of legal reform, however, the complicated and largely untidy common law continued to remain for most English jurists the foundation of the entire legal structure.

As Americans became aware of the legal reform that was taking place in the mother country and elsewhere in Europe, they became increasingly frustrated with their confused hodgepodge of barbarous and antiquated laws.“I knew,” Jefferson recalled in his autobiography,“that our legislation under the regal government had many very vicious points which urgently required reformation.”
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The break from Great Britain in 1776 at last gave him and other reformers the opportunity to simplify and clarify the unwritten nature of the common law and reduce the ability of judges to pick and choose what was law.

In 1776 most of the states agreed to retain as much of the English common law as was applicable to their circumstances, until it should be altered by future legislative acts. Nearly all the states thus began weeding out archaic English laws and legal technicalities and codifying parts of the common law. Society, it was said, often with ample quotations from the eighteenth-century Italian legal reformer Cesare Beccaria, needed “but few laws, and these simple, clear, sensible, and easy in their application to the actions of men.”
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Only through scientific codification and strict judicial observance of what William Henry Drayton of South Carolina called in 1778, quoting Beccaria,“the letter of the law” could the people be protected from becoming “slaves to the magistrates.”
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The Revolutionaries aimed to modernize state power, and thus their new state assemblies began legislating in a programmatic manner—creating institutions, organizing taxes, reforming the legal system, printing money—and in the process doubling and tripling their output of statutes. Not only did modern commercial policy and the need for improvement of all sorts demand new legislation, but the Revolutionary desire for legal reform and codification also required the enactment of an increasing number of laws.

But within a decade following the Declaration of Independence many Revolutionaries began to realize that all their law-making and all their plans for legal reform and simplification were not working out as they had hoped. Many statutes were enacted and many laws were printed, but rarely in the way reformers like Jefferson and Madison had expected. Unstable, annually elected, and logrolling democratic legislatures broke apart well-thought-out plans for comprehensive legal codes and passed statutes in such confused and piecemeal ways that the purposes of simplicity and clarity were defeated;“for every new law . . .,” complained a South Carolinian,“acts as rubbish, under which we bury the former.”
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Not only did the laws proliferate in ever-increasing numbers, but also many of the new statutes were poorly drafted and filled with inaccuracies and inconsistencies. As jurist St. George Tucker recalled, every attempt by Virginians to systemize and clarify their laws was “the parent of new perplexities, by the introduction of new laws; and the re-enaction, omission, or suspension of former acts, whose operation is thus rendered
doubtful
, even in the most important cases.”
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The multiplicity, mutability, and injustices of all this legislation meant that judicial discretion, far from diminishing, became more prevalent than it had been before the Revolution, as judges tried to bring some order out of the legal chaos.

By relying more and more on judicial interpretation, the American states were replicating British developments that had taken place a generation earlier. Of course, English common law judges had always
exercised an extraordinary degree of discretion in interpreting the law, especially in setting aside the bylaws of corporations that were repugnant to the prerogatives of the king or to what many took to be the mysterious common law of the land.
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Even with the development of parliamentary sovereignty in the eighteenth century, English judges continued to interpret and construe parliamentary statutes in such a way as to fit them into the entire legal structure.
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Thus eighteenth-century English common law judges, despite having to acknowledge the sovereign law-making authority of Parliament, were left with an extraordinary amount of room for statutory interpretation and construction. In the mid-eighteenth century that traditional discretionary judicial duty was greatly enhanced by both William Blackstone and especially Lord Mansfield, the chief justice of the Court of King’s Bench between 1756 and 1788 . Both British jurists, confronted with a multitude of inconsistent and contradictory parliamentary statutes, carved out a huge interpretative role for British judges as they sought to bring the law into accord with equity, reason, and good sense.
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In the decades following the Revolution, Americans confronted with a similar “prolixity in our laws” used these British examples of judicial flexibility and creativity and expanded them.
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Even before the Revolution, as Edmund Burke pointed out in 1775, the colonists had turned Blackstone’s
Commentaries
into an American best seller, buying more copies per capita than the English themselves. What Americans wanted from Blackstone was not his emphasis on legislative sovereignty but rather his understanding that the law was reasonable and predictable and that the courts had a responsibility to make it so.

By the 1780s many Americans were already having serious second thoughts about their earlier confidence in their popularly elected legislatures and were beginning to re-evaluate their former hostility to judicial power and discretion. When particular statutes had to be enacted for every circumstance, said Connecticut clergyman Moses Mather in 1781, the laws proliferated and led to a confusion that wicked men could exploit for their private advantage. All the legislatures really should do was enact
a few plain general rules of equity and leave their interpretation to the courts.“Indeed,” said Mather,“where civil justice is to be administered not by particular statutes, but by the application of general rules of equity, much will depend upon the wisdom and integrity of the judges.”
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This was a far cry from the Beccarian reformist sentiments of 1776 and represented the extent to which experience since the Declaration of Independence with the “excesses of democracy” had changed the thinking of some Americans.

By the 1780s many American leaders had concluded that their popular state assemblies not only were incapable of simplifying and codifying the law but, more alarming, had also become major threats to individual liberties and the property rights of minorities, and the principal source of injustice in the society.
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Although James Madison had counted on the new federal government’s becoming an impartial umpire that would mitigate the problem of unjust legislation by the states, other leaders reasoned that if such impartial judicial-like umpires were needed, then why not rely on judges themselves? Indeed, many gentry in the aftermath of the Revolution looked to the once feared judiciary as a principal means of restraining the rampaging and unstable popular legislatures. As early as 1786 William Plumer, a future U.S. senator and governor of New Hampshire, concluded that the very “existence” of America’s elective governments had come to depend upon the judiciary:“that is the only body of men who will have an effective check upon a numerous Assembly.”
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