Sect and Superstition: The Protestant Framework of American Codification

Abstract

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today’s textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist ‘Republic of Statutes’, the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Codification, ‘one of the set pieces of American legal history’,¹ has long been understood as a staging ground for certain rivalries—sometimes simple, sometimes complex and overlapping. Debates over codifying the common law pitted Francophile admirers of the Code Napoleon against Anglophile defenders of Lord Coke; formalists against pragmatists, conservatives against ‘radicals’, the defenders of property and judicial supremacy against legislative populists and democratic levelers.² These divisions were certainly ones recognized by commentators at the time. James Fennimore Cooper, for instance, organized his final novel The Ways of the Hour around one extended gripe about New York’s Field Code of Procedure, which for Cooper symbolized the improvidence of populist lawmaking. ‘[T]ens of thousands voted for’ codification yet ‘did not know anything about it’. It was among the central tragedies of Cooper’s novel that New York’s legislature could not resist the popular drive towards codification and especially the disruptions of marital property and married women’s estates that Cooper ascribed to Field’s Code.³ Legislators were needed who were ‘honest enough or bold enough to get up and tell the people they are not all fit to be trusted’. But, lamented the protagonist, ‘this is not the way of the hour’.⁴

Though largely forgotten today, The Ways of the Hour almost perfectly illustrated the political, regional, class, and even gendered divisions over codification at mid-century, but one admiring review saw something else in the work. Penned by the eccentric public intellectual Orestes Brownson in his eponymous journal, one of the few admiring reviews of Cooper’s last work praised it for getting its theology right. A labor radical-turned-transcendentalist in his youth, Brownson had by the 1850s become one of America’s notable cultural critics and an outspoken Roman Catholic apologist. Brownson figured Cooper’s work would not be ‘to the taste of the young, the giddy, the thoughtless, the sentimental’, but he agreed with its thesis that popular sovereignty was poised to upend well defined legal rights by mere popular vote. Yet this, Brownson thought, was merely a symptom of an underlying problem: The root problem was heresy. ‘The whole tendency we deplore’, he concluded his review, ‘results inevitably from Protestantism, which destroys the conservative influence of religion, by subjecting it to popular control’.⁵

The 1851 review was not the hasty conclusion of a recent convert. Brownson returned to the themes of populism, positivism, and Protestantism two decades later, during what might be regarded as the heyday of codification in America. By then the elderly Brownson thought New York’s experimentation with codes offered a perfect illustration of the follies of Protestant faith. As Brownson told the story, ‘Our wise law reformers in this state, a few years since … attempted to codify the laws so as to supersede the demand for any knowledge of the Common Law to understand them’. But on this score, New York’s code had proven a failure. ‘[T]he ablest jurors in the state find [its provisions] a puzzle, or nearly inexplicable, and our best lawyers are uncertain how to bring an action under the new Code of Procedure.’ In fact, such a large number of interpretations had accreted upon the code that shortly after Brownson wrote, New York replaced its original 500 sections with a 3300-section tome that attempted to consolidate the judicial glosses.⁶ So likewise, Brownson thought, ‘[t]he Protestant, reduced to the sacred text … would be reduced to the condition of the lawyer who should undertake to explain the statutes of any one of our states, in total ignorance of the Common Law’. He concluded that what both the lawyer and ‘[t]he Protestant needs, in order to interpret the sacred texts, [is] a knowledge of revelation which can neither be obtained from the text itself without interpretation nor supplied by private judgment’.⁷

Many works have addressed the complex relationship between popular sovereignty and positive legislation over the course of the codification debates in the United States. What these works have missed, this article contends, is the Protestantism. Although few were as explicit in their analysis, most of the elite lawyers who debated the wisdom and desirability of codification in the nineteenth-century United States were fully aligned with Brownson’s premise that codification was inseparable from a kind of liberal Protestantism that had taken hold in the early national era. Codifiers like David Dudley Field, author of the code attacked in the Ways of the Hour, declared codification to be the necessary final step of the Protestant Reformation. He and his allies frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’ as medieval Europe had been. Field’s opponents, meanwhile, denounced the codifiers’ simple-minded reliance on the idea that texts alone could adequately convey common meanings. Like the popular Catholic polemicists of their day, the common law apologists who opposed codification delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-multiplying number of sects.

Recapturing this intellectual history of recrimination between the ‘sectarians’ and the ‘superstitious’ helps us to better understand the politics of codification and law reform in the nineteenth century, as it demonstrates how the apostles of legislation might remain staunch opponents to legislative-driven reforms while Jacksonians like James Fenimore Cooper might be troubled about the democratic excesses of popular legislation. What the policies of the law should be was a different question from what the law essentially was, and that inquiry raised troubling questions of authority that law itself could not answer. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism that were worked out over time, and the fact that today’s textualism may be as foreign to textualisms of the past as to other methods entirely.⁸ Rather than the forerunners of a modern, rationalist ‘Republic of Statutes’,⁹ the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often workaday lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.¹⁰

I. THE COURSE OF AMERICAN CODIFICATION

Contests over codification in America date back to the very beginning of colonization. The earliest Puritan settlers of Massachusetts Bay strenuously debated whether and how written law could constrain the discretion of local magistrates, and how to keep any resulting code ‘in accordance’ with English law, as mandated by the charters.¹¹ Ultimately the 1641 Body of Liberties, which enumerated a declaration of rights in a style that would become very familiar in American constitutionalism, triumphed over a draft code that confined itself to strictly repeating Old Testament scriptures.¹²

The Revolution left American law on an uncertain foundation, prompting a number of commentators to suggest either that America’s break with England required a break with English common law, or that American lawyers needed at least some written guidance about which statutes and precedents were to remain in force.¹³ Virginia led the way, both in reorganizing its statutes and codifying its criminal law while leaving other fields to common law development. (Ever after, jurists on all sides believed that criminal law ought to remain positive law.)¹⁴ On this project of legislative organization even fierce political opponents like Thomas Jefferson and Joseph Story could agree.¹⁵

The course of codification sharply turned in 1823, when the Irish (Protestant) émigré lawyer William Sampson called for a complete abolition of the common law in favor of a distinctively American code. Sampson’s address before the New-York Historical Society gained national attention and significantly politicized the idea of codification. Sampson’s well-known defense of labor organizers in New York led observers to associate his interest in codification with democratic radicalism, especially after a number of Jacksonian Democrats voiced their own support for codification in the following years. New York organized and revised its statutes in the 1810s and 1820s, but common law defenders like former Chancellor James Kent ensured these ‘Revised Statutes’ did not significantly encroach upon the state’s common law of property or contract.¹⁶

Into the 1840s, codifiers offered a more moderate proposal than Sampson’s. Rather than adopting a code to the total abrogation of the common law, most codifiers insisted on culling together and systematizing only well-established principles from the common law reports (which, after a burst of American publishing, were growing at an unmanageable rate). Such a half measure would ease research burdens for basic matters while allowing cycles of common law development and recodification to continue into the future. A leading proponent of this position was David Dudley Field, the Manhattan lawyer whose name became synonymous with American codification. Another was Field’s fellow New Yorker, Edward Livingston, who oversaw the project to merge Spanish and French codes with common law institutions like the jury in civilian Louisiana.¹⁷

In 1848, the codifiers achieved a signal victory with New York’s adoption of Field’s Code of Procedure. Over the next several decades, the code won acceptance in nearly 40 other American jurisdictions and influenced procedural reform even in England.¹⁸ During the 1860s, Field persisted in drafting penal, political (constitutional), and civil codes for New York, and even an international code in the following decade.¹⁹ A couple of western states adopted these codes, but the effort to enact the Civil Code in New York provoked an articulate defense from the common law lawyer James Coolidge Carter, who argued against the code before the city bar association and the state legislature. Carter managed to defeat enactment year after year—twice by securing governors’ vetoes—until the state senate finally voted the project down in 1888.²⁰

Carter’s victory over Field became a familiar tale in American legal history, not only because of the personalities involved—two of America’s wealthiest and most influential corporate attorneys—but also because of the apparent pyrrhic quality of Carter’s triumph. Less than two decades later virtually every state had organized its statutes into nominal codes. While these codes may have lacked the comprehensiveness that Field (and European jurists) hoped to achieve, they nevertheless arranged vast areas of law and grafted together new ‘super statutes’ regulating industry, corporations, and inheritance.²¹ Common law jurisprudence remained central to academic legal education, but America became increasingly governed by statutes, and courts increasingly concerned with statutory construction.²²

With the rise of legal realism, skepticism towards both the common law and the ‘law on the books’ consigned the codification debates to the nineteenth century. Legislation multiplied exponentially while systematic organization of statutory law continued apace. Although twentieth-century statutes did not codify the common law in the most technical sense, the American Law Institute’s Restatements, Model Penal Code, and Uniform Commercial Code achieved comparable effects. Positive law has increasingly become the only thinkable law, such that attempts to valorize A Common Law for the Age of Statutes, to cite one example, sound increasingly dissonant.²³

II. CODIFICATION IN INTELLECTUAL HISTORIES OF AMERICAN LAW

From the 1960s to the early 1980s, it seemed as if historians of nineteenth-century legal thought wrote exclusively about codification. Codification was the organizing theme of Perry Miller’s Legal Mind in America and a central part of arguments about American jurisprudence offered by Morton Horwitz, Maxwell Bloomfield, and Lawrence Friedman.²⁴ Raising as it did questions about the nature of law and the responsibilities of democratic legislatures, codification seemed to hold the key to understanding all of American political economy. Legal historians asked ‘why is there no codification in the United States’ with the same polemical tone—and substantive import—as Werner Sombart’s Why Is There No Socialism in the United States?²⁵ Interest in American codification has subsided since then, even as codification remains the major organizing theme of European legal history.²⁶

Instead, historians of legal thought in recent decades have reversed course and focused almost exclusively on the defenders of common law jurisprudence. Where codification is broached at all, as in Horwitz’s later work, the focus has remained on the thought and motivations of codification’s opponents, especially James C Carter. Historians following Horwitz have judged the common law lawyers harshly for trying to cloak their ‘conservative’ politics—meaning, above all, a stance against redistribution—in the mystifications of a legal science which they alone understood. Recent work by David Rabban, Kunal Parker, and Lewis Grossman has considerably revised this thesis. These studies have shown that Carter and his associates supported redistributive policies such as progressive taxation but feared that legislation would be an improper means of securing progressive reform. Frequently the counsel of corporate litigants, the common law lawyers understood the pervasive influence corporations exerted on legislators, and they trusted judicial common law to counteract the self-dealing of corporate lobbyists and captured legislatures.²⁷

These works provide greater clarity as to why lawyers like Carter were so influential and esteemed by the American public.²⁸ Nevertheless, their purview remains strikingly limited. Following in the track of Horwitz’s critique, each proceeds on the assumption that the defense of the common law was so peculiar a position that it requires careful explanation, while codification was a straightforward, sensibly progressive reform whose aims can remain unstated. Such a position uncritically accepts the codifiers as the forerunners of modern lawyers and bureaucrats, comfortable with wide-ranging statutory law. The codifiers, however, were products of their own time. Their modes of thought and assumptions came not from the twentieth-century administrative apparatus, but from nineteenth-century governance, not least of all from a liberalized Protestant establishment.

The common law lawyers deserve the nuanced treatment they have recently received, but in giving sole attention to the intricate defense of the common law, historians have lost sight of what the common law was being defended from. Carter, for instance, insisted that he thought little about the nature of jurisprudence until Field’s civil code roused him from his dogmatic slumber. According to Carter, all his jurisprudential writing was a direct response to Field’s philosophy, yet the most recent attempts to explain Carter’s jurisprudence rarely even mention Field.²⁹ Attempting to tell the history of common law thought without accounting for the provocations of the codifiers is—to pick a contemporaneous example—like writing a history of the American Whigs while ignoring Andrew Jackson and the Democrats: we are given the rebuttal without hearing the opening argument.

This one-sided approach obscures the ferocity of the century-long codification debate as well as the chief mystery of how lawyers who shared the same social class and culture could divide so bitterly over legal philosophy. Carter and Field were both among Manhattan’s elite corporate lawyers. They co-founded the first modern bar association in New York City and even shared the same clients, such as the presidential candidate Samuel Tilden. Antislavery men before the Civil War, in the postbellum years Field and Carter both drifted to the moderate center of ‘Liberal’ and ‘Mugwump’ Republicanism—factions willing to bolt their party in favor of economic issues but unwilling to press civil rights for freedmen. Most importantly, both retained a Jacksonian outlook on law and legislation: statutory law was not to favor special interests nor to ‘divide property among those who have not earned it’, as Field argued.³⁰

Broadening the scope beyond Field and Carter, one finds much the same shared culture among the elite lawyers—both in New York and around the nation—who published works on the codification question. Class and political affiliation, clients and lawyerly vocations—rarely did these divide elite lawyers.³¹ Instead, most shared a Jacksonian regard for popular sovereignty but argued about the best means to safeguard it, whether through a scientific codification of general laws or through the empowerment of a legislatively independent cadre of judges.³² Nevertheless, division over the sources and structure of law remained deep and trenchant.

To be sure, I do not seek to minimize the influence or effects of forces that have attracted significant attention in the codification debates. Industrialization and the coming of the market revolution, democratization and the status anxiety it elicited, antislavery mobilization and military occupation, professionalization and the search for order—all of these movements swirled around and flowed through the lawyers’ debates, and each could divide ‘brother from brother’, as it were, at least at the margins.³³ Still, overall trends remain elusive. When the Spanish comparativist Aniceto Masferrer surveyed the American codification debates, he reluctantly concluded that though the debates were quite ‘passionate’, nothing of substance divided the codifiers from their common law antagonists.³⁴ My own account is in large agreement, except in one respect. Religious affiliation and its discursive tropes formed one remarkably constituent cultural fault line between the proponents of codification and the defenders of the common law, from the turn of the nineteenth century to the demise of Field’s Civil Code in the 1880s.

Basically every proponent of codification who published nationally prominent tracts, treatises, or addresses on the issue adhered to one of the forms of what this article refers to as ‘liberal Protestantism’, a pan-denominational expression of Christianity that became popular in the early national era. Many outspoken code proponents including David Dudley Field, as well as Henry Sedgwick, Francis Wharton, Jesse Higgins, the southerner Thomas Smith Grimké, and the westerner WA Scott were devout members and leaders in New School Presbyterian or liberalized Episcopalian and Unitarian churches. Others like William Sampson, George Hoadly, and Joseph Rantoul waned in their commitment to church attendance, but as sons, brothers, or business partners of prominent ministers and evangelical philanthropists, they could hardly escape the cultural influence of the so-called ‘empire of benevolence’, and they shared many of its intellectual assumptions.³⁵

The leading common law defenders, by contrast, were more religiously diverse but generally shared an antipathy towards liberal Protestantism. A significant number, including James C Carter, Francis Lieber, and R Floyd Clarke were religiously unorthodox (even by Unitarian standards) or outspokenly irreligious. Carter’s law partner and mentor, the renowned New York lawyer Charles O’Conor, was Roman Catholic. And some, like Gulian Verplanck, John Pickering, and William Hornblower, adhered to conservative Protestant denominations (often proudly bearing the name ‘Old School’) that rejected new theologies of a liberalizing Protestantism.³⁶

Spanning the nineteenth century, the codification question intersected with the emergence of democratic politics of the Second and Third Party Systems, the transition of labor practices to industrialization and commercial finance, the religious upheavals of the ‘Second Great Awakening’, and—involved in all of these—the increasingly pervasive language of science, whether ‘political science’, ‘scientific management’, or the ‘science of revival’. In framing their arguments, however, leading jurists across the century relied on religious analogies and logics with a frequency that has been obscured in the historical accounts.³⁷ ‘[T]heology admits of a closer comparison with the [law], than any other science does’, wrote the common law lawyer John Pickering in 1834. Later in the century, R Floyd Clarke agreed: ‘The Religious Code [the Bible] of earlier centuries is as truly the work of man, as any Code of laws ever made by man; and the analogy between them is, therefore, perfect.’ As the Bible had ‘codified’ primitive science, so legal codification would improvidently freeze the law at an imperfect state of understanding.³⁸ The Old School Presbyterian Pickering, the irreligious Clarke, the Catholic Brownson—each made his rebuttal by analogy to theology. But against what were they arguing?

III. THE PROTESTANT STRUCTURE OF AMERICAN CODIFICATION

The codification debates provoked wide-ranging arguments and diverse approaches from legal commentators. No two codifiers—or common law lawyers—agreed on all points, but debate centered most frequently and most heatedly on several themes: the locus of legal authority, the nature and interpretation of legal texts, the means of knowledge, and the sacredness of the common law heritage. Before these issues sharpened in the 1820s, many had already encountered them in America’s tumultuous period of religious disestablishment. A liberalized Protestantism significantly influenced codification movements through the rest of the century, thus prompting opponents of codification to contend with the foundational assumptions of liberal Protestant thought.

1. The varieties of American liberal Protestantism

American disestablishment across the early republic resulted in a dizzying variety of religious groups and sects, even within the relatively narrow stream of Protestant Christianity.³⁹ Historians have struggled over terms such as liberal, modern, or evangelical to describe trans-denominational American Christians who departed from the Calvinist orthodoxy of the Puritans, a theology that emphasized God’s sovereignty over a predetermined and hierarchical social world. New School Presbyterians were more ‘liberal’ than their Calvinist Old School counterparts in their embrace of an evangelicalism premised on a measure of self-determination, but not nearly as ‘liberal’ as nonevangelical Unitarians who subjected all doctrine—including the very nature of God—to common-sense rationalism. Despite its imprecision liberal has become a conventional label that can usefully apply across denominations to distinguish religious world-views that converged on issues of authority, interpretation, epistemology, and history.⁴⁰

Nevertheless, I use the term ‘liberal Protestantism’ advisedly and recognize that it is not without serious drawbacks. Any intellectual history at the intersection of law and religion risks oversimplifying either, and generalizing across denominations and across eras is especially perilous. After the Civil War, ‘liberal’ became a widely used label to describe an emerging Christian theology that minimized literal readings of scripture and used deconstructive interpretive methods to free itself (hence the use of ‘liberal’) from conventional interpretations and the authority of traditional practices.⁴¹ The degree to which American law and American religion operated with a shared set of hermeneutical practices is a fascinating question, one on which research is only beginning, but it is not the aim of this article.⁴² Consequently, I use ‘liberal’ not as a synonym for the modernist hermeneutics of a later era, but in the sense that political historians of the early republic tend to use—as a constellation of thought, variously sourced, that emphasized the importance and authority of individual actors and self-determination.⁴³ Liberal Protestantism, on this account, covers the variety of Christian denominations that could be said to have moved beyond the communal and deterministic Calvinist orthodoxy of the Puritans, whether because they were never Calvinist to begin with (like Wesleyan Methodists), or because they found ways to modify their Calvinism for revivalist appeals to individually stirred hearts (as in Charles Finney’s New School Presbyterians), or because they appealed to individual reason in defiance of the revivalism that was sweeping their co-religionists (like the staid and respectable New England Unitarians).⁴⁴

Whether or not liberals tried to remain under a Calvinist banner, they all insisted that individuals had the responsibility—and thus the ability—to obey the gospel call immediately. Spiritual authority thus devolved onto ordinary individuals, even within hierarchical denominations. In a classic work, the historian Nathan O Hatch argues that American Protestantism became significantly decentralized in the early republic as Christian populists rejected traditional claims to authority based on ministerial education, denominational licensing, or any other mechanism that sharply distinguished the spiritual qualifications of clergy from the laity. Salvation was no longer to be mediated through a long course of catechetical instruction by trained elites; in some denominations, recently converted farmers had all necessary qualifications to become preachers of the gospel. Although Presbyterians remained influential publishers, by far the largest gains in adherents went to denominations that granted more authority to ordinary congregants, such as the Methodists, Baptists, and Disciples of Christ.⁴⁵

The authority of ordinary individuals to apprehend and accept the doctrines of salvation gave unprecedented importance to the Reformation idea of biblical perspicuity. Against Catholic teaching that only the magisterium of the church could pronounce on the interpretation of scripture, Protestants had for centuries insisted that scripture was sufficiently clear about important doctrines (those pertaining to salvation especially), that any believer could discern them. Against Catholic tradition, Protestants taught that the Bible alone (sola scriptura) ‘was the only reliable source of religious authority’. The religious historian Mark Noll shows how Americans pressed these ideas further, as many insisted ‘that personally appropriated understanding of Scripture was the only reliable means of interpretation’. Many American churches accordingly professed ‘no creed but the Bible’, while others speculated that perspicuity extended not only to the spirit-filled but to any ordinary reader.⁴⁶

Noll further contends that popular authority became more defensible after the American embrace of Scottish common-sense rationalism. A response to Enlightenment skepticism (religiously motivated for some), common-sense realism affirmed that the ordinary faculties of human perception and reasoning could indeed arrive at objective truth. Significantly deviating from the Calvinist insistence on man’s fallen and depraved nature, common sense (particularly Francis Hutcheson’s variety) won many American adherents by offering ‘a scientific, universal, and optimistic ethical theory that did not require the sanction of tradition’. The philosophy, in essence, offered to render all of God’s works perspicacious: humans could not only read and understand the scriptures for themselves, they could also scientifically read ‘natural revelation’, examining their own minds and the natural environment to arrive at universal truth without guidance from mysterious traditions or archaic superstitions.⁴⁷

Still, liberals retained one significant aspect of American Calvinism in its sense of where history was going: a belief that the Reformation would ultimately culminate in the millennium, a time of unprecedented peace, prosperity, and universal Christianity. The Reformation had helped to clear the ground of superstition and the despotism of clerics; renewed enlightenment and spirituality would thrust the world forward towards the climax of history. The dramatic success of the revivals and the growing power of benevolent organizations in America even led some to suspect that America had a special role to play in bringing on this millennial dawn.⁴⁸

Liberal Protestantism encountered opposition on many fronts. Old School Presbyterians at Princeton insisted that modern theology conform itself to Calvinism and not the other way around. Roman Catholic apologists contended that common sense was not as common as Protestants hoped, nor was scripture so easy to interpret. Catholics argued in particular that the rapidly growing number of Protestant schisms was the natural consequence of encouraging individuals to pursue their own reading of scripture.⁴⁹

Alongside these recriminations of Protestant ‘sectarianism’ and Catholic ‘superstition’, the legal codification debate came to maturity. Liberal Protestants had shown how to apply common-sense philosophy and a widely accepted logic of history to their thinking about texts and the articulation of popular authority for moral norms. The codifiers extended that reasoning to law.

2. The locus of legal authority

Lawrence Friedman writes that the codifiers hoped to make litigation ‘so simple and rational that the average citizen could do it on her own’.⁵⁰ Such a claim points towards the view of authority the codifiers held, although it goes well beyond the position many were comfortable taking. As in liberal Protestantism, the codifiers wrestled with an ambiguity as to whether the egalitarian impulses in their movement properly applied to all people, all insiders (ie, Christians/lawyers), or only educated insiders (academic philosophers). While some codifiers, like the Delaware legislator Jesse Higgins, hoped codes would rid America of the legal profession entirely, most agreed that ‘such hopes will never be realized this side of utopia’, as the U.S. Monthly Law Magazine put it.⁵¹

What the codifiers agreed upon was that the law did not need to be mediated through judicial authority. ‘In monarchical or aristocratic governments, it would not be so much to be wondered at that a class should arrogate to itself the knowledge and interpretation of laws; but that this should happen in a republic, where all the citizens both legislate and obey, is … incredible’, Field wrote. Since ‘all the citizens both legislate and obey’, codifiers treated the claim that judges had special authority to declare and apply the law as similar to the claim that priests had special powers to absolve sin—an explicit comparison codifiers often made. American judges, declared Higgins, were like ‘the Romish priesthood when that imperious hierarchy was most ambitious and intolerant; … they were learned, and laymen ignorant’. Likewise, the New Yorker Henry Dwight Sedgwick and the South Carolinian Thomas Smith Grimké mocked the ‘superstition’ and ‘superstitious venerations’ of the common law, using language typical of anti-Catholic polemic.⁵² The epithet ‘priestcraft’ was ubiquitous across the debates, succinctly analogizing the hierarchical authority of judges to pre-Reformation prelates.⁵³

The fact that judges increasingly published their opinions in publicly printed case reports after 1805 did nothing to blunt the codifiers’ charges that judges cloaked their authority in mystery and superstition. On the contrary, the accretion of published precedent only further irritated the codifiers, who complained not only of the growing number of case reports and the difficulty of digesting them, but also about precedential reasoning itself. Precedent appealed to tradition and validated the authority of the judge as the interpreter of tradition. Codifiers like Sedgwick condemned ‘the veneration and obedience paid to authority and precedent’ in both law and religion, and they especially objected to the ‘air of mystery’ in the judicial process. Because precedents had become so numerous and could potentially lead in so many directions, judges continued to exercise significant discretion despite the increasing publication of judicial opinions. Codifiers suspected that judges continued to exercise their authority by using non-public, mysterious reasoning. It was often in this context that the codifiers made explicit comparisons to the Catholic priesthood.⁵⁴

Beyond criticizing judges, some codifiers said that all lawyers who defended the common law system presumptuously set themselves above popular authority. ‘He seems to care nothing, [for] the opinions of other men’, Field said of Carter. ‘He knows what is good for them better than they know themselves.’ To explain why common law lawyers persisted in their arrogance, Sedgwick compared them to Catholics. Noting that several otherwise brilliant men adhered to Catholicism, a religion ‘equally at variance with right reason and divine revelation’, he surmised that they did so only because they ‘had been brought up to be catholics …. Had these men been born in a protestant country’, they would have been ‘champions of a purer faith’. So too the common law lawyer:

The faith of the lawyer is much akin to that of the [Catholic] theologian. He is brought up to think with the highest reverence of the wisdom of our ancestors, and especially the wisest of them, the ancient sages of the law. These are to him the holy fathers, whose creed he thinks it almost impious to doubt …. To his mind, law and justice are identified with the particular forms, modes, and principles in which he has been accustomed to see them dispensed, and any interference with these he considers as endangering the existence of all law and justice, in the same way in which many pious Christians sincerely believe the particular rites and dogmas of their own sect to be the very body and soul of religion, and that whatever affects the one must endanger the other.

In both cases, Sedgwick saw the same problem: some Americans had simply grown up too accustomed to the authority of tradition and hierarchy.⁵⁵

On the question of authority, common law defenders drew fewer analogies explicitly from religion than did the codifiers, but they nonetheless found themselves echoing Catholic and Old School criticisms of liberal Protestants by arguing that the codifiers had a naive view of authority. Since all authority was naturally and necessarily mediated, common law defenders declared that codifiers were simply substituting one privileged class for another. Codifiers like the New York lawyer Robert Fowler had asserted that ‘where the people make the laws, the people alone codify them’. The common law lawyers replied that ‘the people’ never drafted codes. Even their elected representatives usually assigned the task to two- or three-member commissions. ‘The complaint’ about judge-made traditions, argued Carter, ‘really amounts to this, that judges make the law instead of commissioners’. Ordinary people would never enjoy unmediated understanding of the law or access to justice—the codifiers’ resolve to maintain the privilege of the legal profession admitted as much. Better, then, to favor the judicial community—and for the common law lawyers, community was a key term. Like Carter, they did not express a preference for ‘the judge’ or ‘the judiciary’ in contrast to legislators; instead they opposed ‘the body of judges’ to an individual commissioner such as Field: an interpretive community dedicated to that enterprise versus the individualized reading of a single lawyer.⁵⁶

Scholars have often emphasized Carter’s belief in custom as a source of law, but they have neglected the role Carter assigned communal reason to discern the unwritten ‘social standard of justice’. Judges ‘know and it and feel it because they are a part of the community. And moreover it is placed before them in a blaze of light by the animated debates of thousands of other professional men belonging to the same community, whose vocation is to study and apply it.’ But Carter criticized Field as an individual interpreter of the law, one who demanded that his statements ‘in every instance, right or wrong, be made the law’. Attacking the American view of codification, common law lawyers implicitly agreed with critics of Protestantism that individual authority and ‘private judgment’ were inferior to the authority of a hierarchically organized interpretive community.⁵⁷

Like Catholic polemicists, common law lawyers pointed to the internal divisions of the codification movement as proof that the codifiers’ promotion of popular authority undermined their own movement. Carter wrote that ‘the irreconcilable difference of opinion among the advocates of codification concerning the most important questions’, made the meaning and virtue of ‘codification’ differ according to the beholder. The Philadelphia lawyer Joseph Hopkinson warned that a code might contain ‘the arbitrary dictates of a single man, or any body of men, who promulgate their own individual sense of right and justice’. Without a designated interpretive authority and salutary checks from an appellate hierarchy, what remained besides private judgment?⁵⁸

The codifiers answered that they could find non-controversial, universal legal principles within the texts used by the legal community, a belief that plunged them deeper into debate over the nature and interpretation of written texts.

3. The nature and interpretation of texts

After all Americans had accomplished in revolutionizing politics and religion, remarked William Sampson in his widely reprinted address, they retained ‘one pagan idol to which they daily offered up much smoky incense’: the common law, sitting ‘upon its antique altar, for no use or purpose but to be praised and worshipped by ignorant and superstitious votaries’. Sampson then chronicled the apparently contradictory reasoning of the common law lawyers: ‘It was oral tradition as opposed to written law; it was written law, but presuming the writing lost; it was that of whose origin there was no record or memory, but of which the evidence was both in books and records.’⁵⁹

Sampson and his fellow codifiers thought that the time had come to discard oral tradition. They argued instead for the sufficiency and perspicuity of legal texts (at least to qualified readers like themselves). ‘[I]t may be safely asserted that the whole body of the Common Law has ceased to be lex non scripta, and actually is now a part of the lex scripta’, Grimké wrote. Field premised his Civil Code on the same proposition: ‘[A]ll that we know of the law, we know from written records. To make a Code of the known law is therefore but to make a complete, analytical, and authoritative compilation from these records.’ Whatever oral traditions or courtroom practices persisted in particular locales, the written case reports were sufficient in themselves to communicate the law.⁶⁰

Not only did the codifiers take a sola scriptura approach to their texts, they also argued that the particular facts of the various case reports could be stripped away, leaving behind ‘general rules’ much in the same way that Protestants defended universal propositions with ‘proof texts’ stripped from their historical or biblical contexts. ‘The report of a case sets forth, at length, all the facts which it involves, the arguments of counsel, and the opinion, with all its reasons and illustrations of the Court’, noted Francis Hilliard, ‘while the principle recognized or decided may be concisely but clearly expressed in a few marginal lines’. Modern lawyers commonly extract holdings from a case, but the codifiers were venturing into uncertain territory for their time. A major puzzle they confronted was which holdings, and at what level of specificity, were fit for codification. ‘Some one has estimated the whole number of rules laid down in the reports at two million’, Field wrote, but ‘[n]o man would dream of collecting and arranging all these in a code’. Instead, ‘[t]he province of a code is not to give all the rules of law, general and particular, but only such as are general and fundamental’. Where to locate the line between general and particular, fundamental and factual, would bedevil the codifiers, but they agreed the exercise was possible in principle.⁶¹

Discernment between general and needlessly particular rules was possible, the codifiers thought, because legal texts were perspicuous, a term originating in Protestant theology that American lawyers used frequently. While most codifiers did not expect legal texts to be perspicuous to all ordinary readers, they agreed with Grimké that if:

we can lay before the inquiring reader [ie lawyer], not in the form of oral evidence or tradition, but in pages perfectly intelligible, the whole of the Common Law … where can be the difficulty of determining, with the aid of talent, industry, experience and knowledge, either how much of this written Law is actually of force, or, which is far more important, and by no means so difficult, how much of it ought to be obligatory?⁶²

In their views of perspicuity, American codifiers diverged from their English counterparts. Bentham’s efforts at codification included a number of proposed institutions such as a Public Opinion Tribunal and a Legislation Minister who was responsible for maintaining the ‘clearness’ of legislation for the common people. No such institutions seemed necessary to the American codifiers. A diligent lawyer, perhaps even a lay reader, could find the fundamental principles of the written law without these external aids, and all fundamental principles were, indeed, written.⁶³

Against the codifiers’ faith in the sufficiency and perspicuity of legal texts, common law lawyers pleaded ‘the intrinsic ambiguity of language, by which we must express our intentions’, as Pickering stated the position, analogizing to Protestant sectarianism. Protestants sought ‘to instruct us in … a written law … [y]et, how many different, not to say contradictory constructions, are put upon the various parts of the sacred code, with … confident belief, that each construction is the true one!’. Protestantism vaunted perspicuity, yet ‘[h]ow various have been the opinions and dogmas of its professors upon what would seem to be the most plain and intelligible portions of its text’. If Protestants divided in their interpretation of divine law, ‘[h]ow vain, then, is the hope of attaining to perfect exactness in the formation of any laws which are the work of man’.⁶⁴

Common law lawyers thus found similar sectarianism among the codifiers unsurprising, especially when the latter disagreed about the level of generality desirable in a code. Professed advocates of codification such as John Norton Pomeroy and William Hornblower complained about Field’s Civil Code, the latter declaring it ‘grossly incomplete in some branches, absurdly minute in others’. Favoring codification in principle, these lawyers thought Field had codified the wrong rules and drawn inappropriate distinctions between the general and the specific. Not surprisingly, such reviews became favorite citations in the New York debates.⁶⁵

Even if codifiers could agree on a desired level of generality, common law lawyers argued that the indeterminacy of language made written codes inferior to the common law tradition, especially in the codifiers’ ideal world of popular authority. As Pickering argued, ‘[T]his ambiguity of language cannot be removed by common consent in any community where each man has an equal right to decide upon the construction of the words of a language’. Judgment would still be required under a code, but Carter believed that judgment in pursuit of justice would be hindered by a code that shifted disputes from principles to language: ‘At present … [t]he search is for a rule …. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words.’⁶⁶

A dispute about words was a tiresome exercise, unworthy of the name of judgment precisely because codifiers tried to proof-text general principles apart from the factual context of cases. An early advocate of codification in the 1820s, the New York lawyer Gulian Verplanck by 1839 had deserted to the common law lawyers, refusing to give up ‘the rich inheritance of decided cases, which teach the meaning of words by the example of things’. It was the facts of the cases, not the holdings, which provided the law’s ‘most perspicuous commentary’. Field proposed that ‘that only is truly law which has been provided before [the facts of a particular case]’, but Carter insisted that the nature of law ran in the opposite direction: ‘The fact must always come before the law…. Apart from known, existing facts, present to the mind of the judge, or the codifier, he cannot even ask, and still less answer, the question, what is the law?’ Judges discerned justice not from texts but from the experiential life of a community (through custom), and they passed on their understandings through traditions that kept both fact and holding, experience and meaning, bound together.⁶⁷

By contrast, the codifiers’ attempt to live without the authority of tradition sacrificed the very thing, Pickering wrote, ‘which gives to doubtful words a determinate signification’. Only after judges had considered a long series of fact-laden cases could one become reasonably sure what a text actually meant. Hopkinson agreed that statutes were ‘unsettled and liable to misconception, until a course of judicial decision, which in fact is common law, gives them certainty and character’. From this debate, Orestes Brownson drew his conclusions that codifiers shared with Protestants a naive view of textual authority and interpretation.⁶⁸

Disagreement on whether general law could be extracted from case reports stemmed in part from the codifiers’ acceptance of the Christianized common sense that Noll describes as a ‘scientific, universal, and optimistic’ theory of knowledge. Since many common law lawyers rejected the tenets of common-sense rationalism, they carried the debate into the realm of epistemology.

4. The means of knowledge

The vocabulary of common sense abounded among reformers of the American bar. Codifiers like Grimké confidently affirmed that ‘the common sense of the people, becoming every day more enlightened’ could not ‘suffer the indefinite continuance of the Laws, in their present condition’. Others declared that practices variously labeled Catholic, feudal, or European would appear obviously absurd if only they lost the authority of tradition. Although a few lawyers may have learned Scottish philosophy from its source, most adopted the American pairing of common sense with religious ideas of natural or biblical revelation. Hilliard’s Elements of Law, for instance, reasoned that legal ‘rules are founded upon the basis of equity, reason, and right. If this be so, then obscurity no more belongs to the former than to the latter; upon which the instinct of conscience, the conclusions of the understanding, and the teachings of revelation, pour their mingled light.’ In sum, the immediate target of American common-sense rationalism was not the skepticism of David Hume, but the crippling depravity propounded by John Calvin.⁶⁹

A major premise of American common sense (what made it ‘optimistic’ in Noll’s account) was that science properly conducted made the world simpler, and the codifiers adopted this ideal zealously. ‘[T]o the gaze of ignorance’, wrote Grimké, ‘Creation is naught, but complexity and chaos; yet, to the eye of Science, the works of God are equally admirable for the simplicity of their elements, and the completeness of their system’. The codifiers sought this blend of simplicity and completeness for the law, reducing the sprawling law reports to a terse, systematic set of rules. Field’s favorite term to describe common-sense simplicity was plain. He hoped his procedure code would produce a ‘plain and rational system of procedure’ that would require pleadings to give ‘a plain statement in ordinary language’ simple enough that ‘a plain man’ could understand them.⁷⁰

If codifiers could overcome the veneration of tradition, they believed judgment too would become a simple task. ‘Nothing’, wrote Sedgwick, ‘is … more simple than the ownership of real property’. It was ‘always subject to the apprehension of the senses, and yet subtleties, quibbles, refinements, and false analogies, have been introduced into it to such an extent, that it can excite little admiration except in the eyes of a thorough bred common lawyer’. If, however, procedure were freed from tradition and reformed simply to draw out relevant facts, justice would be easy to render. ‘[W]hen the whole facts (or truth) are known’, Higgins summarized, ‘the decision agreeable to law is easy; the law properly being agreeable to the simplest dictates of nature and reason’.⁷¹

Common sense encouraged the codifiers to believe that searching for general principles in the law books would yield universal legal truths. ‘It is impossible … that truth is so difficult to find, as the present system supposes’, Higgins wrote. According to Field, ‘only such [rules] as are general and fundamental would remain’ after codification. An ideal code, Fowler supposed, would be ‘concerned only with those larger principles indicated; those which have the force of law universally, or independently of the peculiar groups of facts to which they have, or have not, been applied’. Timeless legal truth waited in the reports to be discovered.⁷²

Catholics, of course, had pioneered the study of natural law, so one might expect them to have sympathized with the Protestant quest to codify universal law in systematic detail. However, most Catholic natural law theorists agreed with the Anglican commentator William Blackstone about the ‘indifference’ of natural law and revelation on most civil matters. Positive law had a wide realm, and its provisions might differ widely across time and place without ever conflicting with divine law. The Protestants’ mistake, Catholics argued, was that, relying only on their own reason, they too frequently elevated a provisional and culturally determined rule to the status of universal truth. The historian of theology E Brooks Holifield notes that American Catholics in particular ‘delighted in displaying the ambiguities of Common Sense Realism’ and argued ‘that the “common sense” to which Protestants so frequently appealed was always culturally determined, taking one form in one part of the world and another in others’. The common law lawyers agreed.⁷³

The codifiers’ mistake, Carter wrote, was the ‘false assumption that courts lay down rules absolutely’. Devoted to a universalizing science, codifiers thought that case reports contained timeless, objective law, but the common law:

takes the transactions of the past, and, by classifying them, makes its rules, but it makes them provisionally only. It declares that they are binding upon the courts only so far as respects transactions substantially like those from the examination of which the rules have been framed. In respect to future cases which may wear different aspects, it suspends judgment.

Whether a case in the present was ‘substantially like’ one decided in the past required a skillful interpretation, not of statutory rules, but of the facts of community life.⁷⁴

The ideal of a code containing only timeless, fundamental law was an impossible dream, the common law lawyers argued, because positive law in its essence was geographically and temporally bounded. Altered facts could reshape a rule’s applicability and its core meaning. On this reasoning, some common law lawyers such as Carter and his New York ally Albert Mathews defined the doctrine of stare decisis quite narrowly. In their jurisprudence, it properly applied only to the judgment between the parties, not to the opinion, not even to the language of the holding. While judges were to maintain tradition, they maintained it within dynamic communities that could require modifications to the old reasoning. Thus with custom as a source of law, the common law could flexibly adapt to evolving local communities.⁷⁵

Over time, common law judges recognized exceptions to general principles and forged new doctrinal paths, but common law lawyers argued that codification would destroy this process and stifle progress. In an extended analogy, Clarke compared the attempt to codify New York’s law to the Christian propensity to treat the Bible as a ‘divine Code based on Revealed Religion’ in matters of science. Too often, particular expressions in the Bible had been treated as timeless truth, but this ‘crystallization of ideas’ thwarted human progress by preventing scientific challenges to received wisdom. The more general a rule, Carter warned, the more pernicious the effects of codification. ‘Suppose a general rule were enacted that promises made upon consideration were binding.’ Given the norm of statutory supremacy, judges were bound to render unjust verdicts unless Field codified all of the particular exceptions to the doctrine of consideration. If, on the other hand, judges freely modified the general statutory rule at their discretion, ‘this would have utterly destroyed [Field’s] code, qua code, by converting it into a ridiculous digest’, Carter scoffed; ridiculous, because it turned material fit for a treatise into a statute that its enforcers could nevertheless disregard.⁷⁶

Common law lawyers thus doubted the optimistic assurances of common-sense rationalists that humans could, with enough persistence, know the intricacies of natural law and write them down in a simple and comprehensive order. The future held ‘a thousand cases that no human foresight could have comprehended in general provisions’, wrote Verplanck. Only the methods of the common law, with its acceptance of provisionality and modifiability—its humility against claiming timeless truth—would effectively meet these challenges.⁷⁷

When discussing Carter’s views, legal historians frequently point to his belief in natural, objective law as a distinguishing feature of common law ‘orthodoxy’. Carter thought that judges only declared the law, discerning it from the facts, customs, and traditions that confronted them, and in this sense Carter believed that law had an objective existence outside the mind of the judge.⁷⁸ However, the codifiers’ affinity for common-sense epistemology with its aims of universality and simple, timeless truth reveals that they too adhered to a type of natural law philosophy. In comparison to the common law lawyers, the codifiers embraced a notion of legal objectivity that was much more detailed than their supposed natural law opponents were willing to accept. They were also much more confident that they knew where history was taking them.

5. The direction of history

When leading codifiers looked back at the historical processes that had prepared the way for their reforms, they frequently focused not on the Enlightenment but rather on the Protestant Reformation. ‘The Reformation shut for ever the dark book of despotism, in religion, politics, and science’, Grimké wrote, but not yet in law. Codifiers treated the common law method as a relic of Catholic England. Its rules were ‘the invention of the same times and same men, who’ crafted the indulgence system ‘to make sale of the mercy of God [and] the justice of man’, Higgins wrote. It was only an accident of colonial history, Field thought, ‘that a most artificial system of procedure, conceived in the midnight of the dark ages, established in those scholastic times when chancellors were ecclesiastics and logic was taught by monks … was imposed upon the banks of the Hudson’.⁷⁹

Codification would thus bring the liberating spirit of the Reformation to the law, and it might, some argued, help to bring about the millennium of Christian peace and prosperity. Field’s proposed international code in particular elicited this commentary. An international audience expressed skepticism at the project, but Field ‘with American audacity, saw no such impassible barriers’, wrote his brother and biographer. ‘He had read the prophecy of the last days, that the valleys should be exalted and the hills made low to prepare a highway for the coming of the Prince of Peace, and every strong-armed toiler could help to clear obstructions out of the way.’ Field was more temperate in his own remarks before an international audience, but he nevertheless offered his code as a ‘law of Christendom’, that if accepted ‘would prove a benefit to the whole human family’, echoing a millennialist prophecy Protestants derived from Genesis 12.⁸⁰

Non-lawyers also made use of similar millennial rhetoric. Codification caught the attention of lay Protestant publishers, benevolent associations, and peace societies, who linked international codification to their millennial aspirations decades before Field began to write his code. Such a ‘code once completed will be laid up in the hearts of the people, as in a holy ark of the covenant’, wrote the Christian Examiner in 1841, alluding to a millennial prophecy from Jeremiah.⁸¹

For codifiers and evangelical Protestants, codes possessed millennial implications because of their power to unite people under the same laws and institutions. Unlike burgeoning volumes of case reports, a code could be copied from one jurisdiction and easily enacted in another—as had happened numerous times in the case of Field’s procedure code. As more jurisdictions adopted the same statutes, conflict of laws would disappear, and legal institutions could establish higher levels of federation, culminating in a congress of nations that could secure world peace. Before Field attempted to codify international law, he had hoped his domestic codes would fill the role, providing:

a Code American, not insular but continental, as simple as so vast a work can be made, free in its spirit, catholic in its principles! and that work will go with our ships, our travelers and our armies; it will march with the language, it will move with every emigration, and make itself a home in the farthest portion of our own continent, in the vast Australian lands, and in the islands of the southern and western seas.

One promise of codification thus lay in the hope that universal legal principles could in fact become universal positive law. ‘You stand … in the very portals of a new time’, Field concluded in his ‘Code American’ address. In this new era, it was yet to be determined who ‘shall be the lawgiver of the [human] race’. Field hoped his American listeners would be inspired to dream it would be their state, their nation that made the law for the world to come.⁸²

Codifiers posed cataclysmic events—the Protestant Reformation, the inauguration of the millennium—and plotted law reform efforts between them, but common law lawyers held to a different historical sensibility that lacked a cataclysmic vocabulary and emphasized continuity over time. Kunal Parker’s work explores the prominent idea of the ‘insensibility’ of common law change. Law in the common law system changed over time, but it changed so gradually, and in such step with broader society, as to be nearly imperceptible. As Parker argues, American common law lawyers admired the thought of Edmund Burke, who defended the insensible development of English law against the allure of cataclysmic revolution. Even when a historian could trace the genealogy of a rule to a particular enactment, Burke contended that the process by which the rule passed into broader legal tradition was ultimately ‘mysterious’, embracing a concept of authority and tradition American codifiers abhorred.⁸³

Common law lawyers did not necessarily disagree that history was moving towards greater legal unity, but they resisted the idea that codification could achieve that end. Instead, only the common law exhibited the advantageous ‘tendency’ that spurred ‘the private law of all English speaking States to a unity’, Carter proclaimed. Carter’s supporting argument that ‘[r]ight, reason, and justice are … everywhere the same’ seems to belie his belief that common law rules were provisional and determined by local culture. Carter supposed, however, that Americans were becoming more culturally united, and only as this convergence progressed would the ‘reciprocal influence of intellectual and legal culture … bring all private law into unison’. Private law remained culturally determined, but as American culture became more uniform, so too—insensibly—would the law. Codes, on the other hand, cemented disunity into writing unless states enacted exactly the same words with exactly the same interpretation—but the codifiers could not achieve that feat without granting significant authority to an interpretive hierarchy.⁸⁴

In their historical sensibilities, the common law lawyers shared an affinity with amillennialist theologians for the continuity of tradition that changed only imperceptibly and mysteriously. In their efforts at legal unity, they believed the common law promised Catholicism in a non-theological sense: it was an all-embracing method that could adapt within an increasingly unified America.

6. The Christianity of the common law

Many of the arguments for and against codification, as noted, rested on analogies to religious culture. Codifiers charged common law lawyers with acting like obscurantist priests, and common law lawyers retorted that codifiers were like sectarian Protestants in their naive views of perspicuity and textuality. But what of direct claims that the common law itself was Christian?

Both constitutional litigants and historians today debate whether America was ‘founded as a Christian nation’, but arguments in the nineteenth century focused not on the Christian character of the nation, but of the nation’s common law. Influential common law jurists like Chancellor Kent, Lemuel Shaw, Joseph Story, and Daniel Webster all argued before the Civil War that the common law embodied Christianity and would never run contrary to true religion. By the end of the century, Justice David Brewer (Field’s nephew) relied on such pronouncements to write for a unanimous Supreme Court that a ‘mass of organic utterances’ in American common law proved ‘that this is a Christian nation’.⁸⁵

The codifiers tended to be dismissive of such claims. One of their supporters, Francis Wharton explained in his influential criminal treatise that ‘the ethical rules of Christianity’ had influenced the common law insofar as Americans had ‘made indictable breaches of domestic duty which were not criminally punishable by the old Roman law’ and that witnesses customarily took their oath upon a Bible. ‘[B]eyond this’, Wharton declared, ‘we have not gone’, and the idea of a Christian common law was nonsense. One of Wharton’s reviewers agreed that Christianity was ‘an affair of the individual alone’, its own teaching implying a separation between law and dogma.⁸⁶ And Field himself regarded the ‘separation of church and state’ to be one of the signal achievements of early American law.⁸⁷

Thus, although codifiers frequently drew on Protestant modes of argument, they insisted that Protestantism had nothing to do with American law. Scholars have tended to accept Wharton’s view uncritically, that where jurisprudence did not unequivocally cite its theology, Christianity had no substantive influence. Classic works in law and religion, however, have long shown how religious patterns of thought and narrative can structure legal jurisprudence on deeper levels than the mere borrowing of a few ethical rules. Such scholarship raises the suspicion that Wharton, a devout Protestant in a society that privileged Protestantism, could simply ignore how deeply American Protestant thought had shaped the jurisprudential system he described.⁸⁸

None of this means that in nineteenth-century America one’s religious views necessarily determined one’s stance on codification. A liberal Presbyterian might well have concluded that the doctrines of perspicuity and popular authority properly applied only to the Bible within Christian churches (indeed, this appears to have been the view of Hornblower, a Presbyterian critic of the Field Civil Code). Codification in Canada progressed as a Roman Catholic undertaking as codes seemed to be the best security for Catholic political and religious rights, while the German opponent of codification Carl Friedrich von Savigny considered his jurisprudence an extension of his deeply Protestant commitments.⁸⁹

The point is rather than when many American codifiers argued about authority, interpretation, knowledge, and history, they drew upon a familiar Protestant intellectual culture, framework, and vocabulary. One historian of religion in America has recently argued that the Protestant Bible was ‘primarily a medium through which public discourse happened’ in the nineteenth-century United States, ‘rather than primarily a substantive source for that discourse’. That is, ‘people said what they had to say in the language of the Bible’.⁹⁰ One could conclude much the same about the codification debates—not that a particular theology dictated a stance or method on codification, but that when lawyers argued about the law, they did so using discursive tools supplied by their religious context.

This affinity gave the American codification debates a different character from those in England or Europe. On the other side of the Atlantic, the leading proponents of positivism and codification—Comte, Mill, Bentham, Austin, Cambacérès, Thibaut—all tended to be irreligious or religious radicals, dismissive of traditional Catholic and Protestant Christianity alike. In America, religiously indifferent or heterodox lawyers were more often defenders of a conventional legal method. In their opposition to the Protestant impulses underlying American codification, they emphasized tradition, hierarchy, mystery, and continuity, and they aligned their arguments—ironically at times—with those of American Catholics or Old School Calvinists.

IV. CONCLUSION

American proponents of codification cast their proposals in the language and logic of the liberal Protestantism that rose to prominence in the nineteenth century. Where their theological commitments seemed to support their jurisprudence, Protestant codifiers readily drew the connections and offered them as compelling arguments. Authority, perspicuity, epistemology, and millennialism could be joined in a coherent world-view for both law and religion. Because their theological convictions were so widely held, codifiers had the luxury of denying religious schema as the source of their thought and claiming a natural common sense as the basis of their reforms.

In attacking these positions, common law defenders struck at the assumptions of American Protestantism, often mirroring the arguments propounded by American Catholics or Old School Protestants. But unlike their opponents, common law lawyers rarely acted from religious motivation (committed Catholic apologists like Orestes Brownson excepted). If lawyers like James C Carter and his associates ever realized that their attack on American codification and its Protestant underpinnings echoed Catholic theology, they had nothing to gain in saying so.⁹¹ Rather, like the Gilded Age elites studied in Jackson Lears’s classic account, common law lawyers embraced Catholic forms—either for functional or aesthetic reasons—while rejecting Catholic dogma.⁹²

Paying attention to the theological structure of the debates can help us understand why this chapter in American legal history seems to have closed with the nineteenth century. The intensity of the codification controversy came to an abrupt end as the structure of thought known as ‘modernism’ came simultaneously to American theology and American law: the liberal biblical scholar (‘liberal’ in the modernist sense) Charles Augustus Briggs was acquitted of heresy just before Oliver Wendell Holmes Jr penned ‘The Path of the Law’.⁹³ Creating and elevating the role of the expert social scientist, modernism offered a paradigm that rejected both popular authority and tradition, common sense and romantic mystery. Part of the codification project endured, but undergirt with a new philosophy.⁹⁴ Furthermore, the dismantling of the Protestant establishment in the twentieth century allowed space for opposition to legal realism to arise from Roman Catholic jurists in fully confessional terms.⁹⁵

The continuation of statutory consolidation in the era of legal modernism has obscured the significant discontinuity of thought between the nineteenth century codifiers and the modern theorists of legislation. The basis for the codifiers’ positivism, their optimistic views on perspicuity, and their millennial zeal pose significant challenges for those who wish to see the codifiers as rational champions of statutory law, living ahead of their time. More than that, this history undermines the pretentions of our present textualism to ground itself in either universal methods or methods established by ‘history and tradition’ in American law. Building on Jonathan Gienapp’s argument that the founding generation itself did not hold to the positivisms of our present moment or even perceive the Constitution as an ‘exclusively written text’, the codification debates supply the second act of the story, one in which confidence in texts, their clarity, and their authority had to be constructed out of cultural tools that were not yet available at the founding nor remain in much use among elite legal circles today.⁹⁶

Engaging in this excavation of an earlier textualism reveals that on occasion it was the common law lawyers, so often depicted in the literature as curious premodern specimens, who could actually appear ahead of their time. After all, the problem of language and the uncommonness of common sense were not phenomena suddenly discovered in the 1970s. Common law lawyers made these concepts the heart of their critique, in some ways anticipating and seeking to avoid the problems of statutory interpretation that have arisen in recondite battles over, for instance, the distinction between ‘construction’ and ‘interpretation’ or ‘the meaning of original meaning’.⁹⁷ On this account, the common law lawyers are not so strange as they have seemed, nor the codifiers so familiar. Perhaps it for such accounts that we turn to history—and to theology.⁹⁸

This article has had a long preprint life. Its first draft was finished the week my son was born; its final revision the week he turns ten. To some degree it bears the marks of graduate student work, but it has elicited thoughtful conversations along its journey, and I’m grateful to the editors and anonymous reviewers who have helped complete its journey in print. Special thanks to Jim Whitman, Nicholas Parrillo, Michael Thate, Jane C. Manners, Dirk Hartog, Daniel T. Rodgers, and the Modern American Workshop and Religion and Public Life Workshop at Princeton University for helpful comments and direction at the early stages. Many thanks to Sam Bray, Jon Butler, John Witte Jr., Craig T. Green, Sarah A. Seo, and José Argueta-Funes for comments and criticisms all along the way.

Footnotes