The Common-Law mind and the renewal of America

Abraham Lincoln’s greatness began in the courthouse. Before the trial of the Civil War, there was the country lawyer of the Eighth Illinois Judicial Circuit; the tall, somewhat gangly, ambitious apprentice with his way to make; the man of deeds, notes, wills, juries, county courts, railroad charters, disputed fees and property. That legal apprenticeship was foundational to his statesmanship. It was Lincoln’s instinct for the Common Law as an organic force, one that he knew so well from his life as a country lawyer, that enabled him to see the scope for the renewal of the United States from the dais at Gettysburg in 1863, and gave him his pitch-perfect ear for the inner workings and profundities of the American constitution.

The history of the Anglo-American Common Law is a history of renewal, restoration and reinvigoration that is grounded in practicalities and tangibility. It does not try to answer ‘what is Justice?’ deductively. It searches for justice inductively, case by case, precedent by precedent, and roots itself constitutionally in the community’s capacity for self-government. Not without an endearing sense of grandiosity, Winston Churchill was still right when he said in his sweeping history of the English-speaking world that the claims and disputes across its vast stretches obtain according to the Common Law, at least in theory, and not uniformly. Lincoln the lawyer was dealing in the same terms and, naturally, he had a ‘Common-Law mind’. His life on the judicial circuit showed he understood that the real gem of the Common Law was redress and remedy, not revolution. In its deepest working sense, even the most ordinary, granular case could distil the most fundamental political question there is: what sort of government do we want? Better yet, what sort of government does our history of cases and precedents point us toward?

Lincoln lived these questions on the Eighth Illinois Judicial Circuit for two decades before he ever had to apply them to the fate of the Republic. In Bailey v Cromwell (1841), Lincoln’s Common Law-mind appears in miniature. The case turned on whether a promissory note for the purchase of Nance, a young woman claimed as a slave, could be enforced. Similar cases had foundered, since property law was usually ironclad and appeals to more abstract notions of freedom had little hope of success. The Constitution itself had no real protections for Nance. As the case progressed, Lincoln himself drew from a seemingly extrinsic sense of freedom that was not constitutionally protected at the time, at least not without some manoeuvrable legal logic. He argued Nance was in and of herself ‘a free person until proven to be a slave’. But Lincoln was far craftier than to let his argument rest on this alone, especially since it was apparently so constitutionally vulnerable.

He argued that the forms and traditions of American law, that is to say the Common Law, held that, by presumption, the girl was free and at liberty until evidential facts showed conclusively otherwise. Implicit in this was the due process of the Common Law that every American instinctively expects, and the notion that the individual is at liberty a priori before any law intervenes otherwise. This was novel on the Illinois judicial circuit and its potency was that it compressed American liberty and constitutional rights into a single case. Lincoln’s argument managed to manoeuvre an enslaved girl who would have otherwise had no hope of legal status beyond property into the protective ring of the Common Law. Lincoln won the case and the girl’s freedom was affirmed. It was a legal starting point. It was case-building. Perhaps it was a small remedy, but an important one in its own way because it showed his common-law mind in action. Lincoln’s later transformational statesmanship during the Civil War enlarged what he had argued in this case into the renewal of the American constitution.

If he appealed to the high-minded Jeffersonian hopes of 1776, splendid as they are, his actions showed his deep sense that they get us nowhere when detached from the Anglo-American Common Law inheritance that underwrites them and has pointed them every step along the way. He could not have the liberty of a girl in danger of slavery affirmed by a court of law with appeals to the ideals of the Declaration of Independence, especially considering how problematic and contradictory they would be when applied to her case. The Declaration is aspirational, but meaningless without the instincts, habits and political DNA that have made American aspiration durable. The ‘self-evident truths’ of the Declaration are only self-evident insofar as they are the surface ripples of deeper waters. The Constitution and the remarkable process of 1787 were a manifestation of the principles of the Common Law: due process, popular self-government, redress of grievances and, above all, an instinct for political regeneration. The year 1776 gave America its heading, perhaps, and 1787 gave America a durable political settlement. But in 1863, Abraham Lincoln the Common Law lawyer reasserted American democracy as an evolutionary process of rediscovery.

The first half of 1863 was, in many ways, the bleakest moment in the war for the Union forces. Confederate victories at Fredericksburg the previous winter and Chancellorsville in spring 1863 wounded the Union’s will to continue the struggle. Time and again, massive Union forces had marched into Confederate territory, only to be wrong-footed and bloodily repulsed again. The situation had changed by the summer of that year after the great Union twin victories at Gettysburg in Pennsylvania and Vicksburg deep in Mississippi. From this point on, the initiative remained with the Union.

Politically, too, things were heading towards resolution. The question remained open on what the status of the newly freed slaves would be, still deeper what sort of constitutional settlement could be configured to include formerly rebel states. The settlement of 1787 had been something of a peace treaty between states jealous of their prerogatives, wary of central authority and anxious that the federal government should be rather like the mortar between bricks: it not only keeps them together, but also keeps them apart. What would happen when the rebellious Southern states rejoined the Union and reimposed their otherwise constitutionally protected state prerogatives as they had in 1787, most particularly around slavery? Hundreds of thousands of lives lost, an ocean of blood expended, the nation traumatised and, after all that, slavery might just return constitutionally reaffirmed, as if there were no civil war, no vindication, no renewal. Lincoln knew that a flag had to be planted which marked that the war itself would be a constitutional renewal that expunged slavery. Nothing less would make all the sacrifice and loss worthwhile.

The Revolution of 1776 had worked because it was not a revolt against law; rather, it was an assertion of it. In this vein, it was a half-revolution and a vindication that rooted itself in something real against distant, disconnected power by a generation of new Americans who lived and breathed the English Common Law. They lived it in their juries, in their representative bodies and in their interactions with the local judiciary. They lived self-government. America is America because the English Common Law inheritance gave aspiration an actual constitutional body. The proof of this is in the demonstration: when the Constitution of 1787 was drafted, consider how interwoven the most basic mechanisms of the Common Law are throughout. It was the world they knew. Indeed, how many centuries of English legal history are encapsulated in the Fifth Amendment’s Due Process clause that undergirds the interactions in American courtrooms daily? That DNA matters.

Lincoln understood this better than perhaps anyone of his generation because he, too, had lived it. He believed in 1776, but he trusted in 1787. He did not abandon the Declaration. Far from it. In fact, he very often appealed to it. The Emancipation Proclamation had the Declaration woven around it in order to buttress it and make it much more than a strategic war measure. But Lincoln’s genius, of which he had shown flickers at the bar, lay in his recognition that the core crisis of the Civil War was constitutional resettlement and the regeneration of the Union after slavery.

Lincoln could not let the Constitution become a dead shelter for slavery. His speech at Gettysburg showed his instinct for the politics of American renewal: that the old settlement must be made to answer the present crisis without ceasing to be itself. Or, as another great contemporary, Benjamin Disraeli, would later put it in 1867 on the issue of broadening the voting franchise in Britain, the question was not whether to change, but how to change. Crucially though, this meant change in accordance with the traditions and instincts of national history. This implicit Anglo-American question was a case that Lincoln the Common Law lawyer had explored and answered before.

Lincoln’s address at the commemoration of the battlefield at Gettysburg in November 1863 acquired mythical status, but its legend has been maintained because it was Lincoln the statesman’s answer of how to change, how to redress, how to re-unify, and how to renew. His solution was not to forge a second founding against the first. Instead, it was an exhortation backwards: it recalled and reminded why America was what it was, but it also worked on a deeper level, like a court case that was distilling the political essence of what American democracy asked of itself. It was the recalibration of the American settlement against the squalid catastrophe of civil war. There had to be a purpose for this case. Lincoln returned to 1776, but he did not remain there.

The speech answers the question that every case, in the end, perhaps asks: what sort of government are we prepared to preserve? Lincoln’s reply, ‘of the people, by the people, for the people’, is what ‘self-evident’ truly means, and it only means that because of the inbuilt political and historical DNA Lincoln understood so well. It is the American Common Law republic speaking in its own idiom. It can have a ‘new birth of freedom’. Not altogether new, perhaps, but a reapplication of something older and deeper, drawing on the instincts of the Common Law that Lincoln had burnished all his life.

In this way, the speech showed that Lincoln saw the time of the deepest crisis for the United States as a point of reinvigoration. Renewal would proceed like one case, dire as it was, building towards another. There is something gratifyingly organic in that. The Civil War did not remake America by erasing its inheritance, but by forcing Americans to recover their inheritance more fully. Slavery had compromised the Union morally, complicating the constitutional questions at its heart; secession had made the Union politically impossible. The work of Lincoln’s presidency was to restore it in a new settlement that combined the work of preservation with the possibility of further peaceful political evolution.

So many of America’s present troubles and division revolve around the very questions Lincoln tried to answer in his time. Now, 250 years on from 1776, there’s a sense that things are going wrong. Just about anywhere we look, there is a feeling that the nation is somehow on the wane or that America is backsliding. Lincoln didn’t buy it in 1863. His faith in the regenerative powers of American democracy, honing his extraordinary common-law mind for all those years on the Illinois legal circuit, would mean he might suggest we reframe the question. We should not ask, ‘how divided are Americans?’ – indeed, it’s difficult to imagine a sharper divide in American history than the Civil War – but rather ‘what are we now?’ As such, this still chimes with the fundamental questions of American democracy and the larger, centuries-old English political tradition that underwrites it: ‘How do we maintain self-government? How do we evolve? How do we redress? How do we restore?’

It is by asking and answering such questions that America rediscovers and regenerates itself. Lincoln saw and understood this, which lent him both wisdom and his remarkable belief in the American constitution. America at 250 should remind us of its capacity for self-rediscovery and its durability because of the instincts of the Common Law deeply woven into its DNA. It should remind us, as Lincoln the Common Law lawyer understood, that American democracy is a renewable charter.