Main currents in American thought

A far solider nature than the ebullient Crafts was Hugh Swinton Legaré. Of distinguished social position, the most cultivated mind in the South before the Civil War, and one of the most cultivated in America, he was an embodiment of the serious Charleston that served as counterweight to the gayer. In Legaré the moral earnestness of the South came to its most attractive expression. The repository of two streams of ethical idealism, he was as Puritan as Calhoun. Natively aristocratic, with a high sense of personal integrity and civic responsibility, a profound student of law and letters, with the Charleston parochialism brushed away by wide travel and intimate acquaintance with old-world civilizations and classical cultures, he represented the excellent seriousness that came to flower on the Carolina plantation as well as in the New England meetinghouse. Southern Puritanism might be less ungainly than that of Massachusetts, but it was equally introspective, given to melancholy; and Hugh Legaré found his life as serious an affair, and as laborious, as any New England Calvinist discovered his to be. It is no holiday business to serve righteousness; wisdom does not flower in the primrose path of dalliance; and this Charleston gentleman emerged from a prolonged and arduous self-discipline as complete a Puritan as Theodore Parker.

Descended in the fifth generation from a Huguenot ancestor who settled in Charleston about 1695, he was French in name and by cherished family tradition, but in little else. Through successive intermarriages, the original French strain was pretty much diluted by the Scotch and English, and few Gallic traits came down to him. In temperament and sympathies he was the child of his mother, Mary Swinton, of Scotch Covenanter blood. The native seriousness that came to him by right of inheritance was intensified by fate. Inoculated for the smallpox in his fourth year, the poison lingered in his system, keeping him sickly for years and permanently stunting the lower half of his body. Thus set apart from active life, he turned to books and entered upon the career of a scholar. At the time of his death in 1842, at the age of forty-five, he was perhaps the best linguist and the most widely read man in America. A mature student of the classics, he was intimately acquainted with French, Spanish, Italian and German, and had added Romaic as a help to his Greek. This may seem a meager list in comparison with Theodore Parker’s nineteen languages, but the substantial acquisitions he gathered from the several bodies of literature were far from meager.

Yet immense as were those acquisitions they were only supplementary to his professional studies. The Charleston Puritan gave to the study of law the same intensity that the Boston Puritan gave to theology. Not content with a three years’ reading course in a law office, he went to Europe to pursue his studies more comprehensively. At the University of Edinburgh he plunged into an investigation of the Roman and Civil Law, which henceforth was to be his major intellectual interest. He found in the continental systems, he believed, a body of legal principles more comprehensive and philosophical than the English Common Law, and the ambition grew upon him to ingraft certain features of the Civil Law upon American practice. After two years’ intense study he came home, engaged in active practice of his profession, and ten years later, at the age of thirty-five, was appointed chargé d’affaires at Brussels, where he spent four rich years. His diplomatic and social life was subordinated to his studies, into which he threw himself with the keenest zest, enlarging his knowledge of modern letters and adding to his encyclopedic knowledge of legal systems. In 1841 he was appointed Attorney-General of the United States in the cabinet of President Tyler, and upon Webster’s retirement was given the additional portfolio of Secretary of State ad interim. While on a visit to Boston with President Tyler to assist in the Bunker Hill Monument celebration, he was taken suddenly ill and died at the home of his friend Professor Ticknor.

The man thus prematurely cut down was a nature of vast solidity. Profoundly serious, inclined to the blackest melancholy, as pessimistic as Fisher Ames, with no leaven of humor, no romance, no careless idling, he was a hard taskmaster to his days. He toiled prodigiously at his self-appointed tasks. His standards were severe, whether in letters or law or politics or morals. As a critic he dealt with substantial subjects: The Constitutional History of Greece; The Origin, History and Influence of Roman Legislation; Early Spanish Ballads; Jeremy Bentham and the Utilitarians; Lord Byron’s Character and Writings—solid dissertations done with German thoroughness—reviews of huge compass that provided opportunity for independent treatises. As a lawyer he was rather a philosophical historian than a special pleader. He was far more given to exploring the labyrinths of ancient codes than to arguing cases. His legal erudition appalls the layman. He had sat at the feet of black-letter philosophers; he had been instructed by sages long since forgotten. His mind was an ample storehouse of archaic legal maxims. He delighted in the crabbed law Latin—its sententious phrases worn to the quick, the residuum and repository of the wisdom bequeathed by past generations. Richer in poetry than any verses of Byron were the Latin words habeas corpus to one who, like this scholar, understood how packed they were with English history, how rich in suggestion to all who love English freedom. From this immense erudition came his love for old books and venerable authorities.

Blackstone he looked upon as a modern—“a gentleman’s law book, clear, but not deep”; and the wisdom of my Lord Coke seemed to him not so mellow as that drawn from the more capacious vats of earlier days. He quoted Grotius and Vattel and Pufendorf and Bourlamaqui more readily than the South Carolina Digest, and the names of Papinian and Ulpian and Modestinus and Voet and Cujacius, of the Corpus Alaricianum, of the Justinian, Gregorian, Hermogenian, and Theodosian codes, slipped familiarly from his pen. How many outlandish authorities were contained in the huge inkwell on his desk it is idle to conjecture. Probably not three men in America comprehended the significance of half the references that he offered for the consideration of his fellow lawyers, or were competent to question his deductions. Even the learned Judge Story and Chancellor Kent seem mere dabblers in comparison with this philosophical historian.

Such learning must inevitably mold one’s thinking in kindred fields, and he came naturally to espouse what for want of an exacter term may be called the Common Law theory of politics. It is a conception of law as an organic growth, the result of man’s laborious search for a rational freedom in the social body, the single and avowed end of which is justice. It has taken form not by the decrees of legislatures, but by decisions of the judiciary, tested and reëxamined and reargued generation after generation; built up code by code through slow evolution, the wisdom of the past serving as counselor to the present; continuously expanding its jurisdiction from the community to the nation, and from the nation to a world society; the one guarantee of a sober and rational progress. Theorists and philosophers come and go; revolutions succeed and fail; foolish statutes and temporary constitutions have their day; but the organic body of the law survives all surface change, building into the fabric of society what experience proves to be good, sloughing off what experience has outgrown—the tempered rule of social justice; the exact measure of every civilization compared with which the majority will is a crude and inadequate makeshift.

From such a conception it follows that government is little more than ancillary to the law, and political principles are sound in the measure that they are founded on legal principles. Thus by following the musty path of jurisprudence Legaré arrived at the same goal that John Cotton had reached two hundred years before—the apotheosis of magistracy. With the older Puritan he could assert, Scripturae plenitudinem adoro. The sufficiency of the law to social justice was axiomatic in his thinking. But the scriptures which he adored were the words of the judges, whose decisions were above the authority of legislator or governor and little concerned with a transient majority will. The old theocrat had set up his theocracy; the modern lexolater would set up his lexocracy; but the end was pretty much the same. Very likely Legaré, like the present-day lexolater, would deny the conclusion, yet it was implicit in his premises, and his scorn of political theory was sufficient proof. Practical politics he regarded as rather a trumpery business that achieves no solid results.⁠[1] The political philosopher he was profoundly suspicious of. The flood of speculation let loose upon the world by the revolutions of the seventeenth and eighteenth centuries seemed to him to have invited disaster, and the political classics of those revolutions he cared little for.

He distrusted the “era of illumination” that sacrificed use and wont to abstract theory. “We have not too much faith in the ‘march of intellect,’” he remarked dryly, “and would not ... pitch our anticipations in too high a key” (ibid., Vol. II, p. 264). But his greatest contempt he reserved for the intellectual revolutionaries—“hair-brained metaphysicians and empirical demagogues” (ibid., Vol. I, p. 216), who would upset the nice balance of the law. To this matter he returned again and again, with the scorn of the legal mind for ambitious political systems. “Innovators or Revolutionists, who go only for an imaginary abstract rectitude and symmetry of government,” he said, “are always dangerous, and sometimes the greatest curse with which heaven in its wrath can visit an offending people” (ibid., Vol. II, p. 286).

This inherent conservatism of the legal mind explains Legaré’s intellectual sympathy with Federalism and his contempt for Jefferson. The latter to him was the prince of demagogues, and his ink was vitriol when he wrote of him, as thus in one of his letters: “The immortal sayings and doings of the holy father in democracy—the servant of the servants of Demos (whose nose of wax he knew better than anybody how to shape to his own convenience,)—the infallible, though ever-changing, St. Thomas of Canting-bury. And here, you may be sure, I cross myself devoutly and cry out, with an all-fervent benediction to that canonized worthy, pax tecum (pronounced, you know, Scottice, pox tacum)” (Writings, Vol. I, p. 208). Modern political theories seemed to him mere upstart doctrines compared with the venerable principles of the law, and he came to look with suspicion on all political liberalism not sponsored by lawyers and supported by briefs. A passionate lover of liberty, he was as distrustful of democracy as John Adams, and his condemnation was as frank—“that scene of wild impulse, and tyrannical misrule—a pure democracy” (ibid., Vol. II, p. 271). No state, Beverley Tucker pointed out, was so little democratic as South Carolina, and Legaré shared the common Charleston distrust of it. As he watched England and France during the tumultuous thirties, and saw the struggle over Nullification at home, his concern for the future became acute and his pessimism as black as Fisher Ames’. In a letter from Brussels, in the year 1833, shortly after the passage of the English Reform Bill, he wrote:

Back of this ingrained conservatism was a tender Puritan conscience that must twist his legal studies to ideal ends. After all it was no other than a juridical romanticism that Hugh Legaré discovered in the bottom of his scholar’s cup. As medieval as Sir Walter, he sought his romance in old law-courts rather than in feudal castles, in black-robed advocates rather than in knights and ladies; and he persuaded himself that those old litigations, preserved in scraps of Latin and law French, were dramatic episodes in the ceaseless battle for human rights, whereof the single objective was justice. Slowly, stone upon stone, the lawyers were erecting an impregnable citadel, within which justice kept her inviolable court. It is a pleasant fiction still believed in by lawyers of the old school, and to Legaré in his study it bore the very semblance of truth. He had read too many law books; he had speculated too little on politics; immersed in his codes, he had forgotten to inquire into the hidden springs of sovereignty. In his contempt for practical politics he had neglected to study even the primer of economic determinism. To the economic historian, Legaré’s boundless faith in the sufficiency of legal processes is incomprehensible. A few lessons from the wiser Jefferson would have taught him much that he needed to know concerning the economic sources of power. In his attitude towards the law Jefferson was a suspicious realist. He had no faith in legal codes that had grown up under monarchical and aristocratic systems, and he put no trust in government by lawyers.

He could not understand how the Common Law, interpreted by the Tory Blackstone, and applied by Federalist lawyers, should serve the needs of a democracy. Democratic America, he was convinced, must create a new democratic law, and hold its judiciary in strict subjection to its will; to surrender sovereignty to an aristocracy of the bench would mean the abdication of democracy. But Legaré refused to go to school to Jefferson. He clung to his romantic conception of the law with the same passionate conviction that Calhoun clung to his romantic dream of a Greek democracy; and with the ebbing of the romantic tide they were both left stranded.

But if Legaré was unsympathetic towards the new political theory that came from the French intellectuals, and frankly hostile to the new political practice that came in with the Jacksonians, he warmly approved the new economics that came with the Industrial Revolution. In his whole-hearted acceptance of Adam Smith he seems not a Carolinian at all, but an English liberal of the Cobden-Bright school. He adopted the principle of laissez faire, the gospel of progress, the attitude of optimism. He accepted the theory of the beneficence of commerce as a universal civilizing agency, and he looked forward confidently to an eventual parliament of man, a future federation of the world. Commerce in the end must outlaw war, and peace with freedom would spread the blessings of civilization to the ends of the earth.⁠[2]

A convincing object-lesson in the sufficiency of the principle of laissez faire, he discovered in the amazing progress of America. The mainspring of that progress he found in economic freedom—freedom “from those undue restraints and that impertinent interference of government in the interests properly belonging to individuals.” “I know,” he said, “that the cardinal spring and source of our success is freedom—freedom of thought, freedom of speech, freedom of action, freedom of commerce” (Writings, Vol. I, p. 306). The greatest of these was free trade between the states. His travels in England and the contrast between English progress and continental backwardness confirmed him in this belief. “The doctrine of Free Trade,” he asserted, “is a great fundamental doctrine of civilization. The world must come to it at last, if the visions of improvement in which we love to indulge are ever to be realized” (ibid., Vol. I, p. 272). He went further and accepted the Industrial Revolution with its division of labor as a necessary agency of social amelioration. “It is evidently in the order of nature, and we must take it with all its good and all its evils together.” In forecasting the effect of that revolution he was troubled by no fears.

Remembering how dependent were southern cotton interests on English industrialism and commerce, one can understand Legaré’s acceptance of laissez faire economics. His idealism, his local pride, his romanticism, were all enlisted in its behalf, and he painted in glowing colors. But his frank advocacy of capitalism is harder to understand, except perhaps on the ground that Charleston was a considerable shipping port and his clients were engaged in commerce. In the bitter dispute with Jackson over the Bank, Legaré adopted northern views on national finance. Although nominally a Democrat, he had never been an agrarian, and he went with Webster and Clay against the subtreasury scheme and a metallic currency. His thoughtful speech on The Spirit of the Sub-Treasury, delivered in 1837, was thoroughgoing Whig doctrine, asserting the excellence of the modern banking system and extolling the economic fruitfulness of credit. He repudiated every principle of John Taylor; denied every dogma of agrarian economics; and eulogized the English financial system as the germinal source of English greatness.

Applying the principle of credit to American conditions, he discovered the secret of American expansion in the principle of speculative borrowing, and expanded his doctrine of economic freedom by asserting that freedom to borrow was a necessary preliminary to freedom to work. “A people have been enriched by debt,” he argued, overlooking the possible fallacy of a post hoc ergo propter hoc, “and ‘by owing, owe not.’” As he contemplated the amazing progress of the nation, his lyric enthusiasm becomes prologue to a somewhat lame conclusion that enthrones the banker as the fairy godmother of the hardy pioneer.

Such ebullient rhetoric fits the mouth of the politician rather than the scholar, and such careless logic comes oddly from a southern intellectual. In his ignorance of the economics of John Taylor, Legaré was unprovided with principles to reply to his own arguments, and unaware of the lameness of his confident conclusions. But though he might glow with optimism as he contemplated the westward expansion, for the future of the South and of his own beloved state he was deep in pessimism. From the first he had dissented vigorously from the program of Nullification. An ardent Union man, he believed with his friend James Petigru that secession meant ruin for South Carolina. Calhoun seemed to him a monomaniac, consumed by a single idea. He feared the hot passion of the states-rights party and he was troubled over slavery. His travels abroad had acquainted him with European views on the subject; he watched the spread of English humanitarianism and he had come to recognize the institution as an anachronism. It seemed to him impossible for the South to withstand much longer the augmenting pressure of civilized opinion. He could justify slavery in his own eyes both by ancient law—servitus est constitutio juris gentium—and by comparison of the condition of the negro with that of the English wage worker. The ideal of a Greek democracy was vastly congenial to his aristocratic temperament, but he knew that it was a romantic dream, and he was oppressed by the shadow of impending ruin. Writing from Brussels on April 8, 1833, he concluded an anxious letter thus:

Thus like old John Winthrop two hundred years before, this descendant of southern Pilgrims, this Charleston lawyer and intellectual, found the words of the Hebrew Scriptures rising to his lips in moments of deep emotion. In spite of travel and many books and ripe culture and catholic sympathies, Hugh Legaré remained Puritan at heart, sorely puzzled with life, the burden of his days heavy upon him, walking soberly in the way of duty. North or south, the Puritan was still Puritan, whether he were Theodore Parker, the Boston radical, or Hugh Swinton Legaré, the Charleston conservative.