American independence presented a legal puzzle: On the one hand, having broken away from the mother country after years of bitter political and ideological conflict, many Americans instinctively rejected all things British, including the “aristocratical” common law. The sentiment ran particularly strong among laymen such as Boston firebrand Benjamin Austin, Jr. and his activist disciples, the Shaysites, but it also trickled up to members of de-professionalized state judiciaries and, in the 1790s, to Jeffersonian-leaning members of the professional legal elite. A hard practical reality, however, pressed up against these anti-British impulses: Eighteenth-century Anglicization had produced a colonial legal system predicated largely on the English model. No immediately workable “American” alternative leapt to peoples' minds, even as Paine purported to make “law” the nation's king. Indeed, parts of the English tradition –for example, trial by jury – Americans considered inviolate. That Blackstone's “honied” Commentaries remained the only intelligible treatise available to American lawyers only complicated matters, subtly introducing additional intellectual dependencies on the English framework.
Remaking Custom explores this puzzle through the eyes of oft-forgotten early national legal writers. The Litchfield founding professors, James Wilson, St. George Tucker, Connecticut's Zephaniah Swift, Pennsylvanian Hugh Henry Brackenridge, and Chancellor Kent (among others) play starring roles here. The book argues that these “legists” forged a uniquely American legal identity by embracing the common law's “accommodating,” experience-based lawmaking process precisely in order to test (and, if necessary, reject) its traditional substance against foundational republican principles and local practice. Their jurisprudence thus involved a curious intermingling of deference, nationalism, imitation, and innovation. They “tended to mimic Blackstone's organization” and, on some issues (e.g., slavery), seem to have followed him “almost to the letter” (3, 127). At the same time, all sought to put an “American stamp” on Blackstone, often using him as a “handy whipping post for all that Americans considered corrupt or unrepublican in England's laws and Constitution” (3). Consent and choice served as their organizing principles – only consent by the people to whom a law applied could invest it with obligatory force on American shores; and any part of English law that applied here (or not) resulted from the free choice of the American people (23–24). The American emphasis on written constitutions reflected the legists' commitment to consent and choice as distinctive foundational attributes of the American character.
In successive topical chapters, Pearson skillfully explores her legists' views on property rights, slavery, public lands, Native Americans, and codification. But if Pearson enlivens these pages with a diverse array of names, substantial intellectual consensus ultimately emerges among them. In addition to embracing consent, choice, and written constitutions, all Pearson's legists questioned unthinking reliance on English precedent; all basically rejected British limitations on male property acquisition and inheritance, while continuing to deny property rights to women; all entertained visions of continental empire that excluded Native Americans; and all rejected substitutionary codification in favor of elucidating, rather than eliminating, the common law through “partial codification.” In so doing, Pearson contends, these writers “created a common-law system that remained an integral part of their American identities” (200).
Remaking Custom is highly readable, assiduously researched, and meaningfully contributes to the underappreciated intellectual history of pre-Langdellian American jurisprudence. A few minor critical observations come to this reviewer's mind. For one, Pearson's consensus-based thesis leads her to de-emphasize not only tensions between her legists, but within each of them. In Part II of his satirical novel Modern Chivalry (1804–05), for example, Brackenridge, consistent with Pearson's theme, defended the common law against attacks by Aurora editors and the western Pennsylvania radicals. And yet 3 years later, in a pamphlet cited (although never analyzed) by Pearson (6), Judge Brackenridge advocated abolishing the common law entirely in favor of a simple code. How can we explain the Pennsylvanian's about-face and what might it say about the early American jurisprudential identity? Although the writings Pearson examines span well over half a century, the book manages to avoid any significant discussion of intellectual changes through time, even as, for example, the ‘Revolution of 1800’ introduced revealing divisions within the legal consciousness (which John Marshall pried wider), bitter political infighting among Pennsylvanian Republicans deeply influenced Brackenridge's jurisprudential views and, perhaps most importantly, the War of 1812 operated to transform the role of law and lawyers in American society. Lastly, one wonders whether Pearson underestimates the extent of American hostility to the English heritage, particularly in the 1790s. Swift's successor as Connecticut chief justice, Jesse Root, in a remarkable showing of legal nativism, wrote unequivocally in The Origin of Government and Laws in Connecticut (1798) that the English common law remained “in every respect . . . inapplicable” to Americans. But although Judge Root falls squarely within Remaking Custom's temporal and analytical purview, Pearson curiously does not count this “legist” among her own.
