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Remaking Custom

Remaking Custom: Law and Identity in the Early American Republic

Ellen Holmes Pearson
Copyright Date: 2011
Pages: 272
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  • Book Info
    Remaking Custom
    Book Description:

    History has largely forgotten the writings, both public and private, of early nineteenth-century America's legal scholars. However, Ellen Holmes Pearson argues that the observers from this era had a unique perspective on the young nation and the directions in which its legal culture might go.

    Remaking Customdraws on the law lectures, treatises, speeches, and papers of the early republic's legal scholars to examine the critical role that they played in the formation of American identities. As intermediaries between the founders of America's newly independent polities and the next generation of legal practitioners and political leaders, the nation's law educators expressed pride in the retention of the "republican parts" of England's common law while at the same time identifying some of the central features that distinguished American law from that of Britain. From their perspective, the new nation's blending of tradition and innovation produced a superior national character.

    Because American law educators interpreted both local and national legal trends,Remaking Customreveals how national identities developed through Americans' articulation of their local customs and identities. Pearson examines the innovations that legists could celebrate, such as constitutional changes that placed the people at the center of their governments and more egalitarian property laws that accompanied America's abundant supply of land. The book also deals with innovations that presented uncomfortable challenges to law educators as they sought creative ways to justify the legal cultures that grew up around slavery and Anglo-Americans' hunger for land occupied by Native Americans.

    eISBN: 978-0-8139-3093-0
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xiv)
  4. Introduction
    (pp. 1-10)

    In a footnote buried in the third volume of hisCommentaries on American Law,retired New York chancellor James Kent paused to outline for his readers the duties of a law book author. The first thing that a law book should do, Kent explained, “is to state the law as it is, truly and accurately.” If the author was a “lecturer or commentator,” then he could be “more free in his observations on [the law’s] history and character, and he ought to illustrate it by comparison with the institutions of other countries and ages.”¹ It was lucky for historians of...

  5. 1 America’s Common Law: Custom, Choice, and History Lessons
    (pp. 11-30)

    Anglo-American cultural identity, so tied to custom and an immemorial constitution and law, shaped colonial British American society from the first settlements to the establishment of independent governments and legal systems, and beyond. English law was locally variable in nature, a quality that enabled each colony to formulate customs that suited its peculiar social circumstances and, over time, to harden them into law. This provincial autonomy resulted in a wide variety of local legal systems that even the cohesive force of rebellion and a strengthened federal government could not meld into one “American” law. War and confederation instead helped...

  6. 2 American Constitutions and American Character
    (pp. 31-73)

    Americans made their emphasis on choice and consent tangible when they created their constitutions, which represented some radical departures from their English common-law roots. Revolutionary-era Americans had little desire to form their governments in the English image. After all, they had rebelled against England’s ruling institutions. Yet, it was hard for them, even in a state of rebellion, to let go of English political forms. For Anglo-Americans, a constitution was not only a frame of government, but also a firmly entrenched part of their identity and a marker of their polities’ character. According to Sir William Blackstone, the English Constitution...

  7. 3 Property Acquisition and Inheritance
    (pp. 74-112)

    In America, James Wilson declared, property was “of more consequence than life or personal liberty.”¹ With this statement, Wilson combined English traditions of exclusive property rights with the American experience of upward mobility through ease of property acquisition to produce a snapshot of American attitudes toward property and status in the early national period. From the first British colonial settlements, the abundance of land and the absence of a hereditary aristocracy to monopolize that land were central to forming American identities. This key point of difference between American and English societies meant that American property law worked under a distinctive...

  8. 4 The Question of Slavery in the New Republic
    (pp. 113-140)

    Zephaniah Swift once boasted that Americans lived in a country where the “constitution of government, the system of law, and the administration of justice” secured “to every member of the community the highest political felicity.” They had created a union of ideal republican polities founded on the principles of liberty and equality for all. Unfortunately, according to Swift, America also owned the distinction of being “the origin and theatre of the most extensive slavery known in any country.”¹ As Americans strove to set themselves apart from England by showing off their superior republican governments and laws, slavery was a stigma...

  9. 5 Public Lands, Expansion, and the Native Americans
    (pp. 141-171)

    In a charge to the Grand Jury in 1783, South Carolina judge John F. Grimké celebrated the new nation’s victory and congratulated his audience on their new position as the envy of Europe. He encouraged them to “behold the honor you are held in by them . . . see how they press to your hospitable shores.” He charged his fellow citizens to “look forward to the immense Empire, the work of your hands, that you are creating.” Expansion and attention from other nations were, according to Judge Grimké, “the rewards” of Americans’ “Virtue and Bravery!”¹ Empire was certainly on...

  10. 6 Custom, the Written Law, and American Legal Treatises
    (pp. 172-194)

    In an 1823 address, Philadelphia attorney Charles Jared Ingersoll boasted that America’s mechanical arts—its ships, houses, carriages, and other items of construction—were certainly Great Britain’s equal. The nation was also gaining on Europe in the quality of its education and science. By far, Ingersoll proclaimed, America’s crowning point of superiority was the creation of a model form of representative democracy, the principles of which could be found not just in the state and federal legislatures but also in its Bible societies and civic organizations. Free speech and the right to assembly, according to Ingersoll, had made everyone a...

  11. Conclusion
    (pp. 195-200)

    In the mid-1820s, while studying with Henry St. George Tucker in Winchester, Virginia, Charles James Faulkner penned an essay on the distinctiveness of American law. “The peculiar situation of this country,” Faulkner wrote, “has given a very peculiar cast to our legal institutions.” Emigrating “from a nation whose body of civil regulations had already acquired a perfection & intensity and at a period when the knowledge of human rights & remedies had grown into a science,” Virginia’s first colonists, he announced, left the parent country, “not as infants without ideas & [not] without a conception of these rights” that were...

  12. Notes
    (pp. 201-226)
  13. Bibliography
    (pp. 227-244)
  14. Index
    (pp. 245-252)
  15. Back Matter
    (pp. 253-254)