History of the American BAR
Prejudices Against Law and Lawyers
The preceding chapters have shown how, at the time of the War of the Revolution, in each of the American Colonies a Bar had developed, composed of trained and able lawyers. The old antipathies towards the “attorneys,” against whom so much legislation had been directed, in the earlier years had died away, for the character and talents of the men who undertook the practise of the profession had so distinctly changed.
The services rendered by the legal profession in the defence and maintenance of the people’s rights and liberties, from the middle of the Eighteenth Century to the adoption of the Constitution, had been well recognized by the people in making a choice of their representatives; for of the fifty six Signers of the Declaration of Independence, twenty-five were lawyers; and of the fifty-five members of the Federal Constitutional Convention, thirty-one were lawyers, of whom four had studied in the Inner Temple, and one at Oxford, under Blackstone. (1) In the First Congress, ten of the twenty-nine Senators and seventeen of the sixty-five Representatives were lawyers.
The rise of the real American Bar, however, was coincident with the birth of the Nation; and its history may be conveniently divided into three eras. The first begins
(1) The Supreme Court of the United States, by Hampton L. Carson. See also Influence of the Bar in our State and Federal Government, by J. 14. Benton, Jr. (1894).
with the year 1789 and ends with the close of the War of 1812: – a period marked by the growth of the early Federal Bars composed chiefly of lawyers from Pennsylvania, Maryland and Virginia, by the initiation of law schools, and by the masterful work of the great jurists of the Bars in New York and in the New England States who laid so solidly the foundations of the real American Common Law. The second period comprises the years from 1815 to 1830–the reign of Chief Justice Marshall–when the Federal Bar was composed of the legal giants from the Bars of all the States. The third period ends with the outbreak of the Civil War, covering roughly the years' of ferment in the law, when the chief task before the legal profession was the great one of reformation, of adjusting the Common Law to meet the flood of changing conditionsC social, economic and political C for which these years were notable.
While the American Bar developed great lawyers and great judges in the period from 1789 to 1815, there were three obstacles to its growth and to the study of law as a science. These obstructive factors were: first, the unpopularity of lawyers as a class; second, the bitter feeling against England and English Common Law; third, the lack of any distinct body of American law, arising from the nonexistence of American law reports and law books.
Nothing in legal history is more curious than the sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class. For a time, it seemed as if their great services had been forgotten and as if their presence was to be deemed an injury to the Nation. There were several contributing causes, however, which occasioned this outbreak of popular feeling.
In the first place, a large number of the most eminent and older members of the Bar, being Royalists, had either left the country,(1) or retired from practise. Thus, Maryland was deprived of two of her greatest advocates, Daniel Dulany and George Chalmers; Pennsylvania lost John Galloway; New York lost William Smith, Jr., Thomas Barclay and John Tabor Kempe; New Jersey lost Josiah Ogden. In Massachusetts, the losses to the Bar from this cause were especially heavy. The situation was graphically described in 1824 by William Sullivan, from his personal recollections. (2)
“Thirteen of the Bar, . . . were Royalists and left the country; and among them Jonathan Sewall, then Attorney-General, a man held in high esteem for professional talent; and Sampson Salter Blowers, who enjoyed an honorable reputation as a lawyer and the esteem of many affectionate friends; Samuel Quincy, Timothy Ruggles and James Putnam. Some who remained were neutral, so far as they could be, consistently with safety. The Royalists who departed, and those who remained, are not to be censured at this day, for conscientious adherence to the mother country. The former had little reason to rejoice in the course which they adopted. Few received such reward for loyalty as they expected. Some exchanged eminence in the Province for appointments, such as they were, in the Colonies; and some ease and comfort here, for insignificance and obscurity at home. Most of them deeply regretted their abandonment of their native land. Such effect had the Revolution on the members of the Bar, that the list of 1779 comprised only ten barristers and four attorneys, for the whole State, who were such before the Revolution."(3)
(1) See Loyalists of the American Revolution, by Lorenzo Sabine (1864). It is to be remembered that in the American Colonies 25,000 Loyalists, at the least computation, took up arms for the King. Sabine gives sketches of the lives of at least 130 lawyers who left the country as Tories; and there were several hundred other lawyers whose lives were not of sufficient note to describe, but who also became refugees.
(2) Address to Suffolk County Bar, by William Sullivan (1825).
(3) Emory Washburn said that in 1775, when Levi Lincoln (Harvard I772) settled in Worcester County, only two lawyers remained in the county, the rest having left the country. See Mass. Hist. SoE. ProE., Vol. XI (1869).
Of the lawyers who remained, many were either actively engaged in politics or in the army; while others had accepted positions on the bench.
This left the practise of the law very largely in the hands of lawyers of a lower grade and inferior ability.
Meanwhile, the social and financial conditions of the country after the Revolution tended to produce great unrest. Interruption of business by the war, and high prices, had brought about embarrassment in all classes, and an inability to meet their debts. Great Britain, in closing her ports by navigation laws and prohibitory duties, had deprived the American industries of employment. Public debts were enormous, necessitating ruinous taxation. The Federal Government owed to its soldiers large sums, and payment in the paper money of the time was farcical. The Tories whose estates had been confiscated were returning and making strenuous efforts to have their property restored. English creditors were trying to recover their claims, barred by various statutes of confiscation and sequestration.
The chief law business, therefore, was the collection of debts and the enforcement of contracts; and the jails were filled to overflowing with men imprisoned for debt under the rigorous laws of the times.(1)
Irritated by this excessive litigation, by the increase of suits on debts and mortgage foreclosures, and by the system of fees and court costs established by the Bar Associations,—
(1) In the little rural county of Worcester, Massachusetts, having a population of less than 5,000, there were at one time more than 5,000 actions on the docket of the Inferior Court of Common Pleas.
See for an excellent account of the condition of affairs at this time, from a lawyer's standpoint, the Life of James Sullivan, by T. G. Amory.
the people at large mistook effects for cause; and attributed all their evils to the existence of lawyers in the community. Thus, in the conservative little town of Braintree, close to Boston, the citizens in town meeting, in 1786, voted that:
“We humbly request that there may be such laws compiled as may crush or at least put a proper check or restraint on that order of Gentlemen denominated Lawyers, the completion of whose modern conduct appears to us to tend rather to the destruction than the preservation of the town.” (1)
Another small town, Dedham, instructed its representatives in the Legislature as follows:
"We are not inattentive to the almost universally prevailing Complaints against the practice of the order of lawyers; and many of us now sensibly feel the effects of their unreasonable and extravagant exactions; we think their practice pernicious and their mode unconstitutional. You will therefore endeavor that such regulations be introduced into our Courts of Law, and that such restraints be laid on the order of lawyers as that we may have recourse to the Laws and find our security and not our ruin in them. If upon a fair discussion and mature deliberation such a measure should appear impracticable, you are to endeavor that the order of Lawyers be totally abolished; an alternative preferable to their continuing in their present mode."
Other communities were more radical, and demanded the complete abolition of the legal profession.
Such was the popular discontent arising from all these conditions, that, in Massachusetts, an open rebellion broke out, in 1787 (the well-known Shays' Rebellion), directed
(1) Three Episodes of Massachusetts History, by Charles Francis Adams. See also Remarks of Charles Francis Adams, in Proceedings of The American Antiquarian Society (October, 1902).
largely against the courts and the lawyers, and requiring to be put down by military force. As McMaster says: (1)
“The lawyers were overwhelmed with cases. The courts could not try half that came to them. For every man who had an old debt, a mortgage or a claim against a Tory or Refugee, hastened to have it adjusted. While, therefore, everyone else was idle, the lawyers were busy; and as they always exacted a retainer, and were sure to obtain their fees, grew rich fast. Every young man became an attorney, and every attorney did well. Such prosperity soon marked them as fit subjects for the discontented to vent their anger on. They were denounced as banditti, as blood-suckers, as pickpockets, as windbags, as smooth tongued rogues. Those who having no cases had little cause to complain of the lawyers, murmured that it was a gross outrage to tax them to pay for the sittings of courts into which they had never brought and never would bring an action ….The mere sight of a lawyer… was enough to call forth an oath or a muttered curse from the louts who hung around the tavern."
McRee, in his Life of James Iredell, thus describes conditions in South Carolina: (2)
“The return of the Tories, and their strenuous efforts to procure the restoration of their property, the activity of the lawyers, stimulated by the opening of a lucrative career; the commencement of new, the revival of long dormant suits – all conspired to foster exasperation, cupidity, avarice, revenge ….A very violent prejudice, at this period, existed in narrow and vulgar minds against the legal profession. This antipathy was fermented by many persons of more talent and less principle as a means of destroying those whom they feared as rivals, and as an instrument by which they might effect their political ends. The lawyers of the State were generally conservatives; —–
(1) History of the, People of the United States, by J. B. McMaster, Vol. I.
(2) Life and Times of James Iredell, by Griffith J. McRee.
hence it was that they excited, in addition to other causes, the animosity of the radicals; and in a signal degree the hatred of those who may be distinctively and exclusively characterized as demagogues, charlatans and political tricksters.”
The Letters of an American Farmer, written in 1787, by H. St. John Crevecoeur, also express the sentiment of the time:
“Lawyers are plants that will grow in any soil that is cultivated by the hands of others, and when once they have taken root they will extinguish every vegetable that grows around them. The fortunes they daily acquire in every province from the misfortunes of their fellow citizens are surprising. The most ignorant, the most bungling member of that profession will, if placed in the most obscure part of the country, promote litigiousness and amass more wealth than the most opulent farmer with all his toil ….What a pity that our forefathers who happily extinguished so many fatal customs and expunged from their new government so many errors and abuses both religious and civil, did not also prevent the introduction of a set of men so dangerous ….The value of our laws and the spirit of freedom which often tends to make us litigious must necessarily throw the greatest part of the property of the Colonies into the hands of these gentlemen.
In another century, the law will possess in the North what now the church possesses in Peru and Mexico.”
Much the same conditions prevailed in all the States. In New Hampshire and in Vermont there were the same widespread outcries that the courts should be abolished, that the number of lawyers was too large, that the profession should be entirely suppressed, that their fees should be cut down, that the payment of debts and the foreclosure of mortgages should be postponed by “stay acts,” until debtors could pay. There were numerous riots. The debtors of Vermont set fire to their court-houses; those of New Jersey nailed up their doors. Lawyers were mobbed in the streets, and judges threatened.
In Rhode Island, an act providing for payment of debts in paper money was held unconstitutional, in 1786, in the famous case of Trevett v. Weeden; whereupon the Legislature passed an act prohibiting lawyers from practising unless they took the test oath, agreeing to take paper money at par.
When the great debates were going on in the various State conventions, in 1787-1789, regarding the adoption of the Constitution, much of the opposition of the anti Constitution men, or Anti-Federalists as they were later called, was due to the fact that the proposed Constitution “was the work of lawyers.” (1)
For nearly thirty years after the Revolution, constant efforts were made in many States to mitigate the evil and the supposed monopoly of lawyers by abolishing the system of bar-call and fees established by courts or Bar Associations.
In Massachusetts, acts were passed, in 1785 and 1786, authorizing parties to a suit to argue their own causes in court and forbidding the employment of more than two lawyers by either party. Plans for law reform were urged even by prominent members of the Bar, such as John Gardiner (2)–to the disquiet, however, of most of their fellow members. Through Gardiner’s influence, resolutions were introduced into the Legislature, in 1790, to investigate —-
(1) See Elllot's Debates on the Constitution.
(2) John Gardiner was born in Boston in 1731, and removed to England, where he studied law and was called as a barrister at the Inner Temple. He became an intimate acquaintance of Lord Mansfield, appeared as junior counsel for the defendant in the famous John Wilkes case, and also for Beardmore and Meredith, two of the publishers indicted with Wilkes. He removed to the Island of Saint Christopher, where he became Attorney General; thence he came to Boston in 1783.
“the present state of the law and its professors in the Commonwealth.” A statute was enacted authorizing parties to empower under seal any person whom they chose, whether regular attorney or not, to manage their causes..
Perhaps the most powerful attacks on the “dangerous” and “pernicious” “order” of lawyers and their “malpractices, delays and extravagant fees” were the letters of Benjamin Austin, an able pamphleteer and Anti-Federalist politician of Boston, who wrote, in 1786, under the name of “Honestus,” and whose letters had a widespread influence:
"The distresses of the people are now great, but if we examine particularly we shall find them owing in a great measure to the conduct of some practitioners of law .... Why this intervening order? The law and evidence are all the essentials required, and are not the judges with the jury competent for these purposes? . . .
"The question is whether we will have this order so far established in this Commonwealth as to rule over us ....The order is becoming continually more and more powerful ....There is danger of lawyers becoming formidable as a combined body. The people should be guarded against it as it might subvert every principle of law and establish a perfect aristocracy .... This order of men should be annihilated ....No lawyers should be admitted to speak in court, and the order be abolished as not only a useless but a dangerous body to the public."
The remedies he proposed were (a) an American code of law; (b) parties to appear in person or by any friend whether attorney or not; (c) referees, to take the place of courts; (d) a State Advocate-General, to appear for all persons indicted.(1)
(1) See Observations on the Pernicious Practice of the Law by Honestus (Benjamin Austin) as Published occasionally in the Independent Chronicle in Boston in 1786 (1819).
Duane was the editor of the Republican newspaper organ, the Aurora; and to his vigorous but rancorous pen Jefferson attributed in large part his election to the presidency. He had himself been tried for seditious riot in Philadelphia, in 1799, and acquitted a case growing out of the unpopular Alien and Sedition Acts.
The following extracts illuminate dearly the popular sentiments regarding lawyers. It is interesting to note that Duane calls the profession “our national aristocracy,” a phrase repeated thirty years later by De Tocqueville:
“The profession of the law assumes in every State a political consequence, which, considering the use which is made of it, has become truly a subject of the most serious concern; the loose principles of persons of that profession; their practice of defending right and wrong indifferently for reward; their open enmity to the principles of free government, because free government is irreconcilable to the abuses upon which they thrive; the tyranny which they display in the courts; and in too many cases the obvious understanding and collusion which prevails among the members of the bench, the bar, and the officers of the court, demand the most serious interference of the legislature and the jealousy of the people ….
“A privileged order or class, to whom the administration of justice is given as a support, first employ their art and influence to gain legislation; they then so manage legislation as never to injure themselves; and they so manage justice as to engross the general property to themselves through the medium of litigation; and the misfortune is, that to be able to effect this point, it is attended by loss of time, by delay, expense, ill blood, bad habits, lessons of fraud and temptation to villainy, crimes, punishments, loss of estate, character and soul, public burden, and even loss of national character."
Duane then compared the mystery with which the old English clergy surrounded the Bible before it was printed in English to the “farrago of finesse and intricacy and abstruseness” to which the lawyers had brought the science of law.
His remedy was to promote speedy trials by confining the courts to local and county tribunals with scant and difficult right of appeal, and “if a lawyer should be thought necessary, let him be appointed and paid by government to assist to arrange and represent each party’s cause to the jury.” He also advocated a radical extension of a system of arbitration. He pointed out that when unbefogged by the sophistries of professionals, the law was not so mysterious and intricate as it seemed, and that if there were no lawyers, every man might acquire law for himself:
“So long as justice can be demanded only by professional lawyers, so long will the knowledge of it be the exclusive property of the profession, and none will think it worth while to read what to him appears useless. If, on the contrary, it was not necessary to employ these professors to ask for justice, law would soon become a part of academic study, and no youth would leave college without reading Blackstone and Wilson; they would bring home their books of law, with their books of history, geography and ancient languages. By this means, and the practice every man would find in his private business, in helping his neighborhood to settle and adjust disputes, etc., society would be prodigiously advanced in knowledge and respectability of talents for legislators and statesmen."
In fact, one of the leading causes for this popular odium of the profession was the general feeling that the intricacies of special pleading which made the law so mysterious and unintelligible to laymen, the technicalities of the old Common Law, and the jargon of Latin, French and unfamiliar terms in which it was so often expressed were all tricks of the trade, designed and purposely kept in force by the Bar, in order to make acquisition of a knowledge of the law difficult to the public, and in order to constitute themselves a privileged class and monopoly.
As early as 1764, Governor Colden of New York had expressed this feeling in a letter to the Earl of Halifax:
“I have often thought that lawyers have introduced misteries and absurdities into their law forms that mankind in general who are not lawyers may not in such cases have the use of their own reason, in judging of them.”
In a sketch of Chief Justice Parsons, written in 1821 the popular conception of the attitude of lawyers towards the community in 1774 is thus described: (1)l
“When Parsons came to the Bar, in every case of importance, all was thought to depend on the learning, sagacity, cunning and eloquence of Counsel. It would have been in vain for any one man to have attempted a reformation, for most practitioners at that period would have united against a change, from the mistaken idea that business depended on giving an air of mystery to the proceedings of the profession; forgetting that no science, however difficult to attain, has any mystery in its farthest researches or in its remotest principles. It can hardly be believed at this day, but it is a fact, that many old lawyers, who were in full practice when Blackstone’s Commentaries first appeared in the country, were frequently heard to regret and complain that he should have so simplified and arranged his subject, and so clearly explained the principles of law, that the same amount of knowledge, which had cost them many years to collect, might be obtained in a short time.”
Parallel with this animosity against lawyers as a class was the prejudice against the system of English Common Law on which the courts based their decisions – a prejudice
(1) Biographical Sketches of Great Lawyers and Statesmen, by Samuel L. Knapp (1821).
felt, not only by many intelligent as well as unintelligent laymen, but also by many American lawyers themselves.
After the Revolution, there had been much discussion in the courts as to the extent to which the Common Law of England was binding. Some States had expressly adopted, in their Constitutions, such parts of the Common Law as formed the law of the Colonies prior to 1775 or 1776 or to the date of the State Constitution – New York, New Jersey, Delaware, Maryland, Rhode Island, New Hampshire. In other States there had been much feeling of uneasiness until some authoritative declaration should be made.(1)
All parties, of course, agreed that English law, since the Revolution, had no binding force whatever; but many of the Anti-Federalists claimed that the English law prior to the Revolution had no force in the United States except and by virtue of these express Constitutions and statutes.
They sought to eliminate entirely English law from the United States; and their position is well stated in a letter of Jefferson to John Tyler, Judge of the United States District Court in Virginia, written in 1812:(2)
“I deride with you the ordinary doctrine that we brought with us from England the Common Law rights. This narrow notion was a favorite in the first moment of rallying to our rights against Great Britain. But it was that of men who felt their rights before they had thought of their explanation. The truth is that we brought with us the rights of men. On our arrival here, the question would at once arise, by what law will we govern ourselves.
(1) The Adoption of the Common Law by the American Colonies. C Amer. Law Register, Vol. XXI (1882).
As to how far the Common Law has been adopted in the various States, see Amer. and Eng. Encyl.. of Law, 2d ed., Vol. VI, p. 286, note 3.
(2) Letters and Times of the Tylers, by Lyon G. Tyler, Vol. I (1884).
Mingled with the antagonism to anything savoring of England and monarchy in our law was another factor, the influence of which was felt in the decisions of the United States courts for nearly seventy-five years of our early jurisprudence–namely, the jealousy of the individual States at any infringement by the National Government on their State jurisdiction. In the early cases brought before the Federal courts, the doctrine was upheld that these courts were bound by the Common Law of England as the national Common Law of this country.
In 1793, Judges Jay, Wilson, Iredell and District Judge Peters held all violations of treaties were indictable without a Federal statute; almost at the same time, before Judges Iredell, Wilson and Peters, an American was indicted at Common Law, for sending threatening letters to the British Minister.(1) In 1794, it was also laid down as law by Judge Iredell, in a charge to the Grand Jury, and by Chief Justice Jay in a case in Pennsylvania.
“Such was the state of the law when Judge Chase, in U.S. v. Worral (2 Dall), in 1798 (Chief Justice Jay, Judge Wilson and Judge Iredell being no longer on the Bench, and Chief Justice Ellsworth being abroad), without waiting to learn what had been decided by his predecessors, startled both his colleagues and the Bar by announcing that he would entertain no indictments at Common Law. No reports being then or for a long time afterwards published, of the prior rulings to the contrary, it is not to be wondered that the judges who came on the Bench after Judge Chase supposed that he stated the practice correctly.” (2)
This decision, as stated above, caused an immense excitement among lawyers, and many protests were made against it by those of,Federalist politics, who lamented this denial of Common Law jurisdiction.
(1) See Henfield's Case in Wharton's State Trials, p. 49; Wharton's State Trials, p. 651; Lives of the Chief Justices, by G. Van Santvoord; Constitutional Law, by T. Sergeant (1822). See also Federal Common Law in Virginia Law Register (1904).
(2) See Wharton's Criminal Law, Vol. I, p. 168.
P. S. DuPonceau wrote in 1824 that: "This decision of Judge Chase made a great noise at the time and left vague but strong impressions, the more so as he was known to be a man of deep learning and considerable strength of mind, and more disposed to extend than to limit power."
See also Review of DuPonceau's Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, April 22, 1824, by Charles J. Davies, in North Amer. Review, Vol. XXI (1825), in which he says: "The opinion of Judge Chase seems to have been reverenced as a sort of perpetual edict."
Finally, the prejudices of the people crystallized in radical legislation. In 1799, the State of New Jersey actually passed a statute, forbidding the Bar to cite or read in court any decision, opinion, treatise, compilation or exposition of Common Law made or written in Great Britain since July 1, 1776, and prescribed heavy penalties.
In 1807, the State of Kentucky followed suit with a statute, providing that reports and books of decisions in Great Britain since July 4, 1776, “shall not be read or considered as authority in any of the courts.” Under this statute, the court went so far as to stop Henry Clay from reading from 3 East’s Reports 200 that portion of an opinion of Lord Ellenborough which stated the ancient law prior to 1776 (see Hickman v. Boffman, Hardin’s Reports 356).
In Pennsylvania, the feeling against the Common Law took shape, in 1802-1805, in the impeachment trial of the Chief Justice and judges of the Supreme Court, Edward Shippen, Jasper Yeates and Thomas Smith, charged with a single “arbitrary and unconstitutional act,” that of sentencing Thomas Passmore to jail for thirty days and imposing a $50 fine for a “supposed contempt,” the ground of the impeachment being that punishment for contempt of court was a piece of English Common Law barbarism, unsuited to this country and illegal)
(1) The Courts from the Revolution to the Revision of the Civil Code, by William H. Loyd, Jr., Univ. of Penn. Law Review, Vol. LVI (1908).
See also for a highly colored account of this case Sampson against the Philistines, by William Duane (1805).
In this trial, in which Caesar A'. Rodney (later United States Attorney General, appeared for the prosecution, and Alexander J. Dallas and Jared Ingersoll for the defendants, occurred one of the finest pleas in behalf of the Common Law, in the annals of American legal history.
The question of the existence of a national Common Law in the criminal jurisdiction of the Federal courts was finally set at rest by the decision, in 1812, in the case of U.S. v. Goodwin (7 Cranch, 32), argued by Attorney General Pinkney for the Government, Dana of Connecticut for the defendants declining to argue. Judge Johnson gave the opinion, holding that an indictment for libel on the President could not be sustained without a Federal statute on the subject, and stating that:
"Although this question is brought up now for the first time to be decided by this Court, we consider it as having long since been settled in public opinion- the general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition ....All exercise of criminal jurisdiction in Common Law cases is not within their implied powers."(1)
Even after this decision, a feeling of unrest at the weight given to the English Common Law by the courts cropped up through the country; and an excellent description of this condition was given by Peter S. DuPonceau, Provost of the Law Academy of Philadelphia, in an address to the students, as late as 1824:(2)
(1) See U.S. v. Coolidge, I Gallison 488, in 1813, in which Judge Story attempted to make a distinction between power to indict and power to punish. Judge John Davis dissenting, the case was taken to the Supreme Court on a division of opinion; but the Supreme Court refused (I Wheaton, 415), in 1816 to hear an argument on the point.
(2) See A Dissertation on the nature and extent of the Jurisdiction of the Courts of the United States, being a,valedictory address to the students of the Law Academy of Philadelphia, April 23, 1824, by Peter S. DuPonceau, Provost of the Academy.
Tucker's Blackstone, Vol. I, App. E; Kent's Commentaries, Vol. I, p. 311; Rawle on the Constitution, Chap. 30; North American Review, July, 1825; Speech of Bayard, in Debates on the Judiciary, in 1802, p. 372, Story's Commentaries on the Constitution, Vol. I, s. 158.
Federal Common Law--Virginia Law Registers Vol. X (1904); Wharton's Criminal Law, Vol. I.
“Various circumstances have concurred after the Revolution to create doubts in the public mind respecting the operation of the Common Law in this country as a national system, particularly in criminal cases. The bitter feeling of animosity against England which the Revolutionary War produced was not amongst the least of these causes ….
“… I am well aware that this doctrine of the nationality of the Common Law will meet with many opponents. There is a spirit of hostility abroad against this system which cannot escape the eye of the most superficial observer. It began in Virginia, in the year 1799 or 1800, in consequence of an opposition to the alien and sedition acts; a committee of the legislative body made a report against these laws which was accepted by the House, in which it was broadly laid down that the Common Law is not the law of the United States. Not long afterwards, the flame caught in Pennsylvania; and it was for a time believed that the Legislature would abolish the Common Law altogether. Violent pamphlets were published to instigate them to that measure. The whole, however, ended in a law for determining all suits by arbitration in the first instance, at the will of either party, and another prohibiting the reading and quoting in courts of justice of British authorities of a date posterior to the Revolution.(1)
“It was not long before this inimical disposition towards the Common Law made its way into the State of Ohio. In the year 1819, a learned and elaborate work was published in that State (2) in which it was endeavored to prove not only that the Common Law was not the law of the United States, but that it had no authority in any of the States that had been formed out of the old Northwestern Territory. But few copies of his work have been printed; nevertheless, as it is learnedly and elaborately written, it cannot but have had a considerable degree of influence. In
(1) This spirit was considerably checked by a well-written pamphlet published at the time by Joseph Hopkinson, Esq., of Philadelphia, in which he demonstrated the absurdity of the project of abolishing the Common Law.
(2) Historical sketches of the principles and maxims of American Jurisprudence, in contrast with the doctrines of the English common law on the subject of crimes and punishments, by Milton Goodnow (Steubenvale, 1819).
other States, attacks upon the Common Law, more or less direct, have appeared from time to time. Its faults are laid hold of and exhibited in the most glaring light; its ancient abuses, its uncertainty,. the immense number of volumes in which its doctrines are to be sought for,… and above all the supposed danger to our institutions from its still being the law of the monarchical country, the opinions of whose judges long habit has taught us to respect, which opinions are received from year to year and admitted in our courts of justice if not as rules, at least as guides for their decisions; these are the topics which are in general selected for animadverson.
It is probable that no one thing contributed more to enflame the public mind against the Common Law than did the insistence of the American courts on enforcing the harsh doctrines of the English law of criminal libel – that truth was no defence, and that the jury could pass only on the fact of publication and the application of the innuendo.