James Coolidge Carter and
Mugwump Jurisprudence

LEWIS A. GROSSMAN

When James Coolidge Carter died at age seventy-seven in 1905, a front page article in the New York Times declared, "It was admitted everywhere that he possessed one of the most thoroughly equipped legal minds which this country ever produced." His friend Congressman William Bourke Cockran eulogized him on the floor of the United States House of Representatives as "a man recognized all over the world as the leader of the American bar." Lawyer and diplomat Joseph H. Choate, another longtime friend, remarked in his memorial address at the Association of the Bar of the City of New York that Carter "had become at the time of his death one of [this nation's] best known and most valued citizens." 1	1
These encomiums cannot simply be dismissed as sentimental praise of the recently departed. Carter was, in fact, an extremely distinguished and influential figure in the final decades of the nineteenth century, possibly the most famous lawyer in the country. President Grover Cleveland likely would have appointed him Chief Justice of the United States if not for concerns about his health.2 He was a national leader in the areas of legal practice, jurisprudence, and legal and political reform, and he built important intellectual and personal bridges between these fields.	2
Carter was perhaps the most respected appellate advocate in the nation. He argued approximately three dozen matters before the Supreme Court, including some of the most important cases of the Gilded Age.3 He also achieved distinction among practicing lawyers for his leadership in professional associations and debates over law reform. He served as president of the American Bar Association, the New York State Bar Association, and the Association of the Bar of the City of New York. From within the last of these organizations, he led the successful fight against the efforts of his nemesis, David Dudley Field, to replace New York State's decisional private law with a civil code. Codification was one of the most widely discussed legal reform issues during the 1880s, and Carter's name became almost synonymous with the anticodification position.	3
As a jurisprudential writer, Carter was the preeminent American champion of historical jurisprudence, an important strain of Gilded Age legal thought that has recently gained the attention of a few scholars after being neglected for many years.4 To advance his struggle against codification, Carter set forth ideas similar to those of Friedrich Karl von Savigny, the renowned German historical jurist. Like Savigny, Carter equated the unwritten law with the evolving customs of the people. He argued that common law judges, instead of making law, found the basis for their decisions in "the social standard of justice, or from the habits and customs from which that standard itself has been derived."5 Statutory enactments, by contrast, often conflicted with custom, or came to do so as custom changed while the written law remained static. In Carter's view, legislation contrary to custom was not only futile, but promoted grave mischief as the people strove to evade its enforcement. Therefore, he contended that the regulation of private affairs should remain primarily the province of unwritten law. Although he never taught at a law school, Carter was, at the time of his death, scheduled to present these jurisprudential theories in a major series of lectures at Harvard Law School, where he was an influential and active alumnus.6	4
Finally, Carter was also one of the nation's leading municipal reformers. He was a member of the legal team that, in 1876, brought down New York City's notorious political boss William Tweed by successfully prosecuting a civil suit by the state against him for corruption and graft. Later, Carter was president of the City Club, an important reformist association dedicated to extirpating party-based corruption from New York City's government. He was also a founder and president of the National Municipal League, which pursued a similar agenda on the national level. As an organizer of the nonpartisan Citizens' Union, he was one of the principal supporters of reformist candidates for the New York City mayoralty, and he was himself prominently mentioned as a potential candidate for that office.7	5
Carter deserves much more attention than he has received from scholars, not only because of his considerable influence as an individual, but also because he exemplified a patrician political culture to which many Gilded Age legal figures belonged, a political culture I will designate with the label Mugwump. 8 A large number of elite urban lawyers were Mugwumps, as were many elite law professors. Although Carter's avid jurisprudential interests distinguished him from most of his colleagues in the bar, and his ongoing practice experience and reform activism differentiated him from the Harvard Law School faculty, perhaps no person better illustrates the interwoven theoretical, political, and practical concerns of legal Mugwumpery. 9	6
The Mugwumps were transitional figures, struggling to accommodate traditional modes of thought to the challenges of modernity. Not surprisingly, therefore, Carter's legal and political theories were characterized by a precarious synthesis of apparently inconsistent elements. He spun out extended arguments for limiting the role of legislation even as he acknowledged the increasing need for it in contemporary society. He incongruously seemed to embrace both a belief in natural law and a relativistic evolutionism. He layered views characteristic of the antebellum Jacksonian Democrats over a base of attitudes he inherited from their bitter rivals, the Whigs. For a long while, Carter was able to gather this melange of ideas and influences into a coherent, though complex, system of beliefs. Ultimately, however, the foundation of his jurisprudence, like that of Mugwumpery itself, began to crack under the weight of a rapidly changing and diversifying nation.	7
I. Mugwump Political Culture Background
Defined narrowly, the Mugwumps were northeastern urban gentleman reformers who, in the 1884 presidential election, bolted the Republican Party to vote for Democrat Grover Cleveland because they considered James Blaine, his Republican opponent, to be a corrupt spoilsman. The New York Sun ridiculed these genteel rebels by calling them "Mugwumps," a term derived from an Algonquin word meaning "great man" or "chieftain." The nickname became popular among the bolters' critics, and the bolters themselves ultimately embraced the label as one signifying their noble adherence to principle rather than party. 10	8
The Mugwumps were overwhelmingly Anglo-Saxon Protestants, and many were descendants of old-stock New England families. Most had attended college, typically at elite schools such as Harvard and Yale, and this high educational status set them apart from the mass of Americans. The vast majority were professionals or entrepreneurs, and approximately one-quarter were lawyers. Although there were substantial variations of wealth among the Mugwumps, almost all were men in comfortable circumstances. In short, the Mugwumps existed in a privileged, exclusive subculture, and the word Mugwump almost inevitably assumed a cultural, as well as political, meaning. Today historians often use it to describe members of the Gilded Age urban gentry class without regard to their electoral behavior.11	9
Representatives of the Mugwump type pursued an agenda of civil service reform, tariff reform, and sound money, an agenda often deemed by scholars to reflect a broader commitment to laissez-faire. 12 Their reformist program was based largely on their moralistic opposition to the capture of the political process by unscrupulous party bosses and nouveau-riche corporate plutocrats. In his great work, The Age of Reform, historian Richard Hofstadter suggested that the Mugwumps were motivated primarily by a selfish desire to regain the political influence and cultural authority they had lost to these rising figures, whom they viewed as crude upstarts. Subsequent scholars have variously embraced this "status resentment" thesis or rejected it for failing to recognize the Mugwumps' sincere dedication to the public welfare. But whether the Mugwumps focused primarily on advancing their own interests or those of the public, they viewed corrupt politicos and new men of wealth as their main obstacles. 13	10
Carter's Mugwumpery
Like many members of the elite New York City bar, Carter was a Mugwump. He had been a loyal Republican until 1884, but that year, attracted to Cleveland's personal integrity and commitment to political reform, he joined the great bolt. Indeed, he led the Association of the Bar of the City of New York's campaign against Blaine. Thereafter, he maintained a steadfast nonpartisan stance, supporting candidates of any affiliation who were dedicated to resisting the power of entrenched parties and special interests. As noted by his colleague William Hornblower, "He never. . . became a party man, but held himself at all times free to act as his sense of duty required in each successive political contest between the parties."14	11
Carter was almost the epitome of the Mugwump type. He was an old-stock Protestant whose family had settled in Massachusetts in the early seventeenth century. He was raised in New England (Lancaster, Massachusetts) and attended an elite northeastern university (Harvard College and Harvard Law School). Perhaps the only aspect of Carter's early life that deviated from the Mugwump paradigm was his economic background. He came from a large family of modest means, and it was a financial struggle for him to attend Harvard. Joseph Choate remarked that Carter "[came] into life with no advantages but his own natural gifts stimulated by poverty and the spur of necessity." Although other Mugwumps had faced such hardships, they were a small minority. Carter's family had long been socially prominent in his hometown of Lancaster, however, and this heritage of community leadership was typical of the Mugwump type.15	12
After law school, Carter spent the remainder of his productive life practicing law in New York City, a center of Mugwumpery. Like many other Mugwump lawyers, Carter resisted narrow disciplinary specialization and associated closely with professionals and intellectuals in a wide variety of fields. He maintained extensive social and professional contacts not only with gentry society in New York City, but also, through his Harvard connections and activities, with like-minded individuals in Cambridge-Boston, the Mugwumps' other main home. Among Carter's friends and correspondents were some of the leading lights of Mugwump culture, including E. L. Godkin, the editor of the Nation and the New York Evening Post; Charles Eliot, the president of Harvard University; Charles Eliot Norton, the distinguished scholar and editor of the North American Review; and Seth Low, the president of Columbia and independent mayor of New York City. Carter was a lifelong bachelor, and his social life apparently revolved almost entirely around the exclusive men's clubs to which many Mugwumps belonged. 16	13
Carter embraced all the core issues of genteel liberal reform, including civil service reform, free trade, and sound currency. His choice of foes was as typically Mugwump as his selection of friends. He directed his rancor primarily at party bosses, corrupt politicians, and self-aggrandizing tycoons. His disdain for the very rich merits special attention, for despite his modest origins, Carter himself became an extremely wealthy man by representing large corporations. At the time of his death in 1905, he was worth a million and a half dollars, an impressive fortune even on the scale of the generally affluent Mugwumps.17 The malice Carter frequently expressed for the wealthiest Americans may have been rooted in a version of the "status resentment" that, according to Richard Hofstadter, characterized the Mugwumps. The tone of his speeches and private correspondence suggests that he perceived the new breed of magnificently rich men to be not only more powerful than he, but also, in Hofstadter's words, "uneducated and uncultivated, irresponsible, rootless, and corrupt, devoid of refinement or any sense of noblesse."18	14
II. The Jacksonian Model and Its Limitations Special Legislation and Plutocratic Tyranny
Most scholars who have studied Carter have made the error of asserting that he was motivated by a desire to thwart social welfare regulation and advance the interests of big business. Roscoe Pound, who clearly scorned Carter, began this trend by linking his ideas to judicial attacks on "modern social legislation." Later scholars followed suit. Benjamin Twiss remarked that Carter "furnishes a provocative example of the influence of [probusiness] bias on a really deep thinker." More recently, Matthias Reimann has opined that "Carter's protest against legislation was protest against infringement on the economic freedom of his wealthy clients." According to Morton Horwitz, "At bottom [of Carter's jurisprudence] was a long-standing fear of legislative intrusion into the distribution of wealth and privilege."19	15
Horwitz's assertion is correct, but not in the way he intended. Although Carter strongly opposed redistribution of wealth by the legislature, he found the upward variety of redistribution to be more prevalent and objectionable than the downward sort. He frequently condemned the excessive wealth of the very rich, their corrupt control of the government, and their use of this control to exploit the working class and poor. In a letter to Harvard president Charles Eliot, for example, Carter condemned the fact that "the great mass of our wealthy people have by degrees become combined to acquire and use the political powers of the nation for the purpose of making money for themselves."20	16
Scholars who have wrongly characterized Carter as having a probusiness bias belong to a long tradition of interpreters of Gilded Age legal thought. For much of the twentieth century, the prevailing portrait of late nineteenth-century jurists was painted by progressive historians. They depicted proponents of laissez-faire constitutionalism as servants to a corporate plutocracy, grafting their favored economic principles onto American law in order to suppress popular demands for just social legislation.21	17
Today, however, few legal historians completely embrace the progressive interpretation of Gilded Age jurisprudence. Since the 1960s, with Alan Jones's seminal articles on Thomas Cooley, legal scholarship about the period has come to be dominated by revisionists such as Jones, Charles McCurdy, Michael Les Benedict, and Howard Gillman, who perceptively link the laissez-faire thought of the late nineteenth century to antebellum Jacksonian ideals of government neutrality and equality under the law. These historians argue that Gilded Age jurists, like their Jacksonian predecessors, did not oppose regulation per se, but rather "special legislation" or "class legislation" that promoted the interests of particular individuals or groups, rather than the common good. According to this thesis, legislation favoring the wealthy was as objectionable to Gilded Age jurists as legislation favoring the working class.22	18
Although the problem of special legislation was central to late nineteenth-century legal thought, the revisionists' use of the term Jacksonian to describe jurists of that era is not always apt. The antebellum Jacksonians believed that the main threat to liberty was the capture of the government by a financial aristocracy. By contrast, many of the Gilded Age individuals discussed by the revisionists primarily feared popular forces. Carter and many other Mugwumps, however, really did echo the Jacksonians by focusing their wrath on special legislation benefiting moneyed interests. As Carter remarked, "Many complain--none more than I--of schemes, such as protective tariffs, bounties, and subsidies, by which a government confers favours upon classes of persons which it cannot confer upon all alike and by which the greater part of the burdens of taxation are shifted to the shoulders less able to bear them." 23 As discussed below, Carter was much less likely to oppose government measures designed to ease the plight of the working class.	19
Carter's statements in support of free trade, a cause he shared with the Jacksonians, dramatically illustrate his own almost obsessive concern about the machinations of industrial magnates and their political hirelings. He believed that the Republican and Democratic parties were both "controlled by an enormous aggregation of interests which think themselves dependent upon a protective tariff." Addressing the duty on coal and iron, Carter asked, "What was the object of that duty?. . . The reason of it was to make those who happened to have coal and iron, a little wealthier than they were before. The reason was to make those men who were worth $100,000 in coal and iron worth $200,000 at one stroke of the pen."24	20
Carter was outraged by the way the protective tariff effectively shifted wealth from the general public to an affluent few. "To tell an individual that he shall not buy this or that kind of goods in England, France, or Germany, and to compel him to buy these goods at a greatly increased price from particular persons in this country, is to give to such persons an enormous monopoly, and to lay the rest of the country under the heaviest taxation for their benefit." In attacking the tariff and other examples of "private enrichment by public bounty," Carter asked, "How is it possible for the masses of the people and the ranks of labor to behold the sudden acquisition of great fortunes in ways widely removed from honest industry without suspecting that by some method the fruits of their labor have been diverted from them, and without becoming dissatisfied, restless, and uneasy at what they regard as an unequal distribution of the fruits of the Nation's industry[?]"25	21
Carter employed similar language in his impassioned oral argument before the United States Supreme Court in favor of the federal income tax. He denounced "the growing concentration of large masses of wealth in an ever diminishing number of persons." He decried how the "wealthy and powerful classes" used their power over the legislative and judicial processes to ensure that "the principal burdens of taxation [were] borne by the poor." These provocative statements were not simply rhetorical flourishes on behalf of a client; Carter genuinely supported the income tax.26	22
The Mugwump Battle against the Code
In light of Carter's and other Mugwumps' concerns about special legislation favoring wealthy interests, it is interesting to examine the rhetoric of the successful campaign against the New York Civil Code that the Association of the Bar of the City of New York waged under Carter's direction.	23
David Dudley Field, one of three code commissioners appointed by the New York legislature in 1857, drafted the bulk of the civil code. After the commission presented the civil code to the legislature in 1865, Field spent many years fruitlessly lobbying for its adoption. Both the assembly and the senate voted to enact the code in 1879 and 1882, but each time the governor vetoed it. Undaunted, Field lobbied for the passage of the civil code annually throughout the 1880s.27	24
During this decade, Carter served as the coordinator and main spokesperson for the forces opposing codification. The nerve center of the anticodification campaign was the Association of the Bar of the City of New York. The Mugwumps figured prominently in the 1870 founding of this organization, and by 1884 at least fifty-three of the most politically active Mugwumps belonged to it, five were on its executive committee, and Carter was its president. There almost certainly were numerous additional, less prominent, bolters in the association, and many members who were Democratic or Republican party loyalists had patrician reform sympathies. The leading Mugwump newspaper in New York City, the Evening Post, published by Carter's friend E. L. Godkin, repeatedly editorialized against the civil code. The leading Mugwump magazine, Godkin's Nation, printed a lengthy anticodification essay by Carter. 28	25
Morton Horwitz suggests that the opponents of the code may have feared its progressive aspects. In fact, the anticodification pamphlets produced by the city bar association hinted that the code was a plot by plutocratic interests to shape the law in their favor. For example, George H. Adams charged that "the Code in no wise limits in any respect the persons or corporations who may create a trust, or who may become trustees of a trust[.]" J. Bleecker Miller attacked the code for allowing "the formation of corporations for any purpose with such undefined powers and duties on the part of its officers toward the public and towards the stockholders." He continued, "[I]f we adopt this Civil Code, we will. . . certainly have, first, a great increase of the power of rich and unscrupulous men, acting especially through corporations, and then a socialistic reaction."29	26
The charge that drew the most attention was George L. Rives's assertion that the code's provisions favored elevated railways, most notably by making them immune to suit for depriving property owners of light and air. Rives was a model of the Mugwump type--a New York City lawyer educated at Columbia and Cambridge who was extremely active in reform politics, served in the administration of President Grover Cleveland, and belonged to a variety of gentlemen's clubs. In his pamphlet Torts Under the Code, Rives focused on the ways in which the code appeared to relieve "the great railroad corporations" from liability to adjoining property owners, as well as to injured passengers, employees, and bystanders. 30	27
To fully understand the animus with which Carter and his allies from the Association of the Bar of the City of New York attacked the civil code, it is necessary to understand their feelings about David Dudley Field, the primary author. One of the most illuminating facts about Carter and Field's rivalry, rarely noted by legal historians, is that their fight over codification was only one battle in a broader war between the two men.31	28
The rift between Carter and Field probably developed in the late 1860s because of Field's representation of financiers Jim Fisk and Jay Gould in their fight with Cornelius Vanderbilt over control of the Erie Railroad. During this sordid confrontation, Fisk and Gould employed such tactics as bribing state legislators and placing Tammany Hall boss William Tweed on the Erie board of directors to ensure friendly treatment by Tammany judges. These judges repeatedly granted Field's requests for injunctions and for the appointment of Tweed loyalists, including William Tweed, Jr., as receivers. Boston Mugwump Charles Francis Adams condemned this spectacle as an "extraordinary perversion of the process of law." He, his brother Henry, E. L. Godkin, and other Mugwump commentators publicly savaged Field for his role in the Erie wars. The Erie episode impelled Carter and other reform-minded lawyers in 1869 to begin organizing the Association of the Bar of the City of New York in hopes of improving the moral character of lawyers and judges.32	29
The first direct public confrontation between Carter and Field occurred in 1875, when Carter, along with Wheeler Peckham and Charles O'Conor, represented the state of New York in the highly publicized and successful civil suit it brought against Tweed to recover $6 million in stolen public funds. Field represented Tweed. There was clearly no love lost between the two lawyers. In his summation, Carter criticized Field's use of "every device of technicality for the purpose of obstructing the progress of justice and leading to an erroneous result." He taunted his counterpart for being known around the world not for his legal reforms, but "in connection with the great frauds which have disgraced the civilization of our time, and in connection with the person mainly and chiefly responsible for them [Tweed]."33	30
To Carter and like-minded attorneys and journalists, Field thus embodied two grasping and dissolute forces that were conspiring to capture the government and legal system: corporate plutocrats and city bosses. Indeed, Field was perceived to be an important link between the two. Rives's allegation that Field drafted the code to favor elevated railroads therefore had a certain plausibility, even if it was in fact nonsense. The anticodifiers' suspicions were heightened by the fact that Field's client Jay Gould had, in 1881, gained control of the Manhattan Elevated Railroad through a series of morally questionable maneuvers. Even worse, Cyrus Field, David's brother, controlled another line, the New York Elevated. The New York Times opined, "As the proposed Civil Code was designed to include the laws affecting corporations, the use of the work of a man like Field. . . would have been somewhat analogous to the hiring of a Tombs 'shyster'--interested in procuring the freedom of imprisoned scamps of various degrees of criminality--to codify the criminal laws of the State." 34	31
Carter's Incomplete Embrace of Jacksonianism
It is clear that, like the Jacksonians before the Civil War, Carter and other Mugwumps feared the capture of the political process by wealthy interests. Nonetheless, Gilded Age gentry political culture should not be subsumed under the rubric of Jacksonianism, for there were critical differences between the Mugwumps and the antebellum Democrats. 35 Although they shared a desire to create a political and legal system insulated from manipulation by the money power, they reached very different conclusions about how to structure that system. Consequently, the indiscriminate use of the label Jacksonian may muddle rather than clarify one's understanding of the elite legal thought of the late nineteenth century.	32
Consider, for example, the two political cultures' sharply contrasting attitudes toward working class political power. Jacksonianism was, above all, a people's movement. One of the Jacksonians' core principles was rule by the majority of free white men, regardless of wealth or education. As articulated by historian Harry L. Watson, they believed that "public questions should be decided by the public voice." They also insisted that a large portion of the citizenry was qualified to hold public office and should be given the opportunity to do so.36	33
The Mugwumps, by contrast, displayed an unapologetic elitism. They viewed society as a hierarchy topped by a natural aristocracy of educated, public-spirited gentlemen like themselves. To preserve their traditional role as political, cultural, and moral leaders, the "best men" had to resist the influence, not only of self-seeking magnates, but also, in Carter's words, of "the unthinking and the vicious multitudes who crowd our cities."37	34
Although Carter expressed concern about the plight of the urban masses, he also exhibited callous disdain for them. For example, he confessed that despite his opposition to the plutocrats' schemes to procure government favors at the expense of the working class, he expected laborers would "waste" and "misspend" any additional income they were permitted to keep. "When the workman has learned to exercise that self-restraint which will enable him to make good use of the entire product of his labour, he will have acquired at the same time the intelligence and the courage which will enable him to win it."38	35
In light of his contempt for the capacities and character of the working class, it is not surprising that Carter strove to diminish its involvement in political affairs. In 1876, as a member of a commission on city government established by Governor Samuel Tilden, Carter authored a report recommending that the expenditures of each municipality in New York be controlled by a board of finance elected only by those voters who paid more than a specified amount in property taxes or rent.39 Later in life, Carter opined, "Jefferson's democratic principles assume the possession of a certain measure of intelligence, independence, and virtue in the people. This assumption was generally good in his time, and perhaps is generally good now, except in the cases of crowded and ill-conditioned populations. These are really not capable of self government."40	36
The disconnection between the Mugwumps and the Jacksonians is also starkly illustrated by their differing positions on the issue of codification. The antebellum Democrats generally supported codification, and David Dudley Field himself was a leading Barnburner Democrat before he joined the Republican Party in the 1850s. Despite their concerns about the corruption of the political process by wealthy interests, the Jacksonians placed more trust in the political branches of government than in judges, especially unelected judges. They decried common law decisions as undemocratic usurpations of legislative power by an unelected aristocracy, and they condemned the common law itself as an incomprehensibly voluminous, mystifyingly intricate, and dangerously ambiguous feudal remnant.41	37
Conversely, Carter made defeat of the civil code his greatest cause. He was deeply distrustful of the men who enacted and enforced legislation and was a tireless advocate for the common law and for the indispensable role of judges. His position on codification actually echoed that of the antebellum Democrats' antagonists, the Whigs. They, like Carter, were strong supporters of the common law, urged the preservation of a powerful and independent judiciary, and, with some exceptions, fervently opposed codification.42 Thus, Carter's resistance to codification is a compelling example of his affinity to Whig, rather than Jacksonian, ideals.	38
III. Mugwump Whiggery
Unlike David Dudley Field, Carter probably did not have Democratic roots. He almost certainly migrated to the Republican Party from a starting point of Whiggery, as did most Mugwumps, especially those who were Yankee Protestant New Englanders with college degrees. Joseph Choate, who attended Harvard College with Carter in late 1840s, recalled, "Like all the young men of that day, he was a devoted admirer of [Whig leader Daniel] Webster." It is thus not surprising that certain aspects of Carter's world view, and that of other Mugwumps, appear to have derived from Whig traditions.43	39
Consider, for example, the very similar elitist attitudes displayed by the Mugwumps and the Whigs. In contrast to the Jacksonians, with their leveling instincts, the Whigs generally resisted giving the working class a greater voice in government, either as voters or as public servants. In the words of historian Daniel Howe, the Whigs were heirs to a colonial "politics of deference," and they "made use of an old-fashioned elitist view of politics and society." They considered highly educated and well-off citizens to be the natural leaders of the republic. The Mugwumps clearly inherited this hierarchical outlook.44	40
Another commonality between the Whigs and the Mugwumps was their antipartyism. The Jacksonians, who are often credited with inventing the modern political party, believed parties were not only inevitable in a free country, but also essential, because they permitted the popular majority to combine and defeat aristocratic forces. The Whigs, by contrast, often decried parties as "factions" pursuing their self-interest to the detriment of the common good. They considered parties to be inherently corrupt, especially when organized around mere loyalty rather than issues and values. The Mugwumps, as discussed below, echoed these antiparty sentiments almost exactly.45	41
These Whiggish features of the Mugwump outlook clearly helped shape Carter's legal and political theories. Another critical facet of the Whigs' ideology, their faith in government as an instrument to promote the public good, had a less obvious legacy among Carter and the Mugwumps. Nonetheless, as my conclusion shows, even this attitude colored Carter's thought in important ways.	42
Probably the most significant feature of American Whiggery embraced by the Mugwumps, however, was its moralism. John Gerring has pointed to the "moral order of Yankee Protestantism" as one of the key features of the Whigs' system of beliefs. Influenced by the Second Great Awakening and by Christian moral philosophers such as Brown University's Francis Wayland, the Whigs accepted immutable standards of ethical conduct based on the principle of avoiding, in Gerring's words, "selfishness, greed, and licentious behavior." Jacksonian political culture, by contrast, was relatively secular, uninfluenced by moral philosophy, and tolerant of the mores of the Irish and German immigrant communities, including their use of alcohol.46	43
The Mugwumps shared the Whigs' focus on moral issues, as well as the substance of their ethics. They were, as college students, educated by the same moral philosophers from whom the Whigs drew inspiration. Although the Mugwumps' outlook became increasingly secular during their maturity in the age of Darwin, their ethical code survived the erosion of the religious foundation on which it originally rested. Like Whig morality, Mugwump morality was predicated on "repressing the base interests of self and promoting the welfare of others, the general welfare, and the republic."47	44
It is impossible to understand Mugwump jurisprudence without grasping the importance of this ethical system to their world view. David M. Tucker, in his recent book, Mugwumps: Public Moralists of the Gilded Age, argues that the gentry reformers' chief distinguishing trait was their devotion to promoting the virtue essential to free government and a properly operating market economy. Many other scholars have recognized the centrality of this moralism to Mugwumpery, although more than a few have, unlike Tucker, disparaged it as overfastidious self-righteousness. 48	45
Self-righteous or not, Carter never stopped voicing his own concerns about the moral condition of American society. Like other Mugwumps, his morality was built on a single core principle, namely avoiding self-interest. He deemed "human selfishness" to be the most ignoble of personal characteristics and the source of most unethical behavior in both the public and private spheres. Carter's disdain for self-regarding conduct and his desire to promote "public virtue and private morality" shaped almost every aspect of his jurisprudence.49	46
IV. Legislators, Judges, and Public Virtue The Problem with Politicians
The best-known aspect of the Mugwumps' ethical agenda was their crusade to cultivate selfless dedication to the common weal among public servants. Carter's conviction that judges were more likely than legislators to exhibit this characteristic was an important factor in his opposition to codification. Considering his view of legislators' morality, it is hardly surprising that he did not want the great body of private law turned over to them.	47
The members of the Legislatures of our own States are likely to be not the wisest, but the smartest only. Instead of having the public good at heart they often have only their own personal interests or ambitions, or they have been elected through the patronage and money of some powerful pecuniary interest and are faithful alone to that influence. Moreover, the pecuniary value which may lie in some special legislation is often so great that powerful private interests are found willing to pay prodigious sums to secure it, and corruption and bribery are practised to a frightful extent; the forces of corruption become organised by some skilful leader, expressively called a boss, who acquires a control of legislation greater than that enjoyed by many sovereigns. 50
Despite the surface similarity to antebellum Democratic rhetoric in this condemnation of special legislation, Carter's assertion that political party bosses orchestrated political corruption was completely foreign to Jacksonianism. The Mugwumps viewed the seemingly ineradicable party mechanisms established during the Jacksonian era as the main source of moral decadence in government. They bolted the Republican Party in 1884 because they perceived James Blaine to be the embodiment of corrupt machine politics. Although many Mugwumps afterward maintained a nominal identification with one or the other party, independence was their keyword. As one historian explains, "Above all, they did not consider party loyalty the primary ideal to which a man should aspire. The dictates of their consciences mattered more to them than all the persuasions and seductions the party organization might offer." Carter himself repeatedly expressed great disdain for "the ordinary politicians. . . who surrender every principle at the call of party. . . interest."51	48
While reluctantly acknowledging that the "formation of general parties. . . is useful, or, at all events, inevitable" at the state and national levels, Carter denied that there was any acceptable place at all for political parties in municipal governance. His long experience with party-based urban corruption was perhaps the most important reason for his limited faith in the activist state. Like many Mugwumps, especially those in Tammany-dominated New York City, Carter was almost fanatical about ridding city government of the parties' pernicious influence. "What have [the parties] to do with municipal affairs?" he asked. "They have nothing properly to do with that; nothing whatever."52	49
Carter and other Mugwumps had great disdain for the "spoils system," by which local party bosses distributed public offices and jobs to men who would pledge their electoral support to the party. The Mugwumps' relentless campaign to reform city government, through merit hiring and other means, was an effort to promote administrative expertise and efficiency, but it was also, as Carter emphasized, a "moral enterprise." He told one audience, "What is needed is the creation of a public sentiment that the delivery of Municipal Government into the hands of a band of politicians is all wrong. Then the advance of pure government will be resistless, for with corruption on one side and purity on the other, there can be but one outcome. . . ."53	50
The Mugwumps' moralism, antipartyism, and elitism reinforced each other. Genteel reformers disdained the unqualified and self-serving men who, under the party patronage system, assumed offices that should have been filled by educated and virtuous individuals like themselves. The Mugwumps also condemned the urban masses who, instead of exercising their suffrage according to principle, sold their votes to party operatives in exchange for public jobs. Carter observed:	51
[T]here is the floating and unattached vote, which cares nothing about politics of any kind, cares nothing, indeed, about any interest in society, is destitute, in one sense, of public spirit. Your tramps, or floaters, of whom there are thousands in the city of New York; the lowest classes, the most ignorant classes of laborers, the foreigners who have just arrived here by thousands.. . . [Their] votes. . . are all in a certain sense purchasable. 54
Carter warned that as this web of corrupt bargains gave party politicians and their corporate sponsors control over urban votes and revenues, the ethical basis of the state and national governments would be undermined along with that of the municipal governments. "[I]t is absolutely impossible, if our cities should continue to be given over to corrupt plunder in the way they now are, for the Republic itself to maintain the institutions under which it has so long lived." The New York legislature maintained extensive control over the state's cities, and Carter observed that this centralization of authority simply "ma[d]e the fortunes of our principal cities the traffic of the lobbies" and enhanced the power of "corrupt cliques and rings. . . quick to perceive that in the business of procuring special laws concerning local affairs they could easily outmatch the fitful and clumsy efforts of disinterested citizens."55	52
Thus, the state legislature, the very body that would have stewardship over Field's proposed code, was implicated in the corruption stemming from party domination of municipal affairs. Carter bemoaned how party control of legislators enabled corrupt interests to shape lawmaking. "I have little faith in the legislature. To freemen you can talk, but to slaves, what can you say[?] When the power is held by a boss, it is the boss you must move." National politicians were also embroiled in "this wretched spectacle of moral cowardice.. . . [The wealthy] absolutely control the organizations of the dominant party and the great mass of Senators and representatives are, first of all, the supporters of some particular pecuniary interest."56	53
Carter asked, "How shall we get good government?. . . It comes to this: Have the right men in office. I mean those men who have sufficient ability to understand their duties and honesty enough to execute them properly." He was appalled at the poor qualifications of the assemblymen and senators who drafted the states' laws. "When we consider the amount of the talent, skill and training which is called into requisition to satisfy those needs which are most immediately felt by individuals, as in business affairs[,] and those with which the learned professions are concerned, and compare it with that to which the all important task of framing our laws is entrusted, the spectacle seems almost ludicrous." He was even more outraged, however, by the legislators' immorality, their "engross[ment] with party and personal schemes" rather than with the public interest.57	54
Therefore, it is little wonder that Carter told Godkin, "I can render no greater service in my day and generation than by defeating the various schemes of codification and other forms of over-legislation." Lawrence Friedman has correctly pointed out that Field's Civil Code was the product of an expert commission made up of legal elites, not of the legislature itself. Nonetheless, Carter worried that even if the code were acceptable as enacted (a doubtful outcome, in light of Field's questionable ethics), the legislature would inevitably amend it and make "[u]nnecessary and unwise changes. . . sought from personal and unworthy motives."58	55
The Problem with Judges
Carter believed his efforts to defeat codification and generally discourage legislation would, if successful, reduce legislators' opportunities for mischief, but he almost certainly understood that victory in this struggle would not solve the problem of corruption. The judiciary would remain the primary expositor of New York's law, and Carter had ample reason to doubt the fitness of judges to play this role. In 1846, as part of the national Jacksonian-era movement to make the courts accountable to the people, New York State had revised its constitution to provide for the direct election of judges for eight-year terms. Consequently, the judges whom Carter wanted to entrust with the development of the law were selected in the same manner as assemblymen and mayors.59	56
Much of the bar believed that the direct election system gave party bosses excessive power over the courts. At the 1867 state constitutional convention, there was widespread sentiment, fanned by attorney delegates, to enhance the independence of judges by revoking the elective system, increasing the length of their terms, or both. The people of New York State ultimately approved an amendment to extend the terms of higher court judges from eight to fourteen years but rejected a proposal to give the governor the power to appoint judges with the advice and consent of the senate.60	57
During the late 1860s and early 1870s, leading reformist lawyers frequently attacked judicial corruption, most prominently in connection with the aforementioned legal battle over control of the Erie Railroad. In 1871, a year after Carter helped found the Association of the Bar of the City of New York, the organization began working to promote the integrity and independence of the judiciary. First, it participated in a successful effort to defeat one of Boss Tweed's candidates for the state supreme court. Soon afterward, the association commenced an energetic campaign to remove dishonest judges already on the bench. It prepared a lengthy memorial to the state legislature condemning the "influence of corruption upon [the] official conduct and decisions" of many judges. This memorial triggered legislative proceedings leading to the impeachment and removal of two prominent Tammany Hall judges, George G. Barnard and John H. McCunn, and the resignation of a third, Albert Cardozo.61	58
Carter was a leading figure in two subsequent attempts by the city bar association to insulate the bench from corrupt party politics. In 1893, it organized a successful statewide campaign against the election of Judge Isaac H. Maynard to the court of appeals. Maynard, a Democrat, had allegedly tampered with the results of a state senatorial election when he was the deputy attorney general of New York. The association hosted a giant public meeting at Cooper Union, during which Carter implored the audience to defeat Maynard at the polls. "Do this, and hereafter to the band of spoliation and of rings and bosses of the State you will create a monument and warning which they will hereafter in all time to come take notice of." Maynard was soundly defeated.62	59
Five years later, Tammany boss Richard Croker declined to renominate Judge Joseph F. Daly for the supreme court because the judge had refused to make certain court appointments demanded by Croker. The bar association vigorously supported Daly's reelection on an independent ticket. Carter delivered speeches at two huge rallies. In a Carnegie Hall meeting, over which he presided, he warned:	60
There is a danger at all times that the political boss will nominate, even for a Judge, some man who will do his bidding or the bidding of his party, and when such a man is put upon the bench, he will carry out the unholy compact he has tacitly entered into, and the bench is degraded and justice imperiled.. . . Are the Judges of our courts to understand that their continuance in office depends upon their acquiescence in the personal or political demands of party machine leaders?63
This time, the reformers' efforts failed; Croker's candidate won the election.64	61
In light of Carter's decades-long fight against judicial corruption, and the uneven success of those efforts, it is worth considering whether he considered judicial, rather than legislative, control over the development of the law to be a positive good or simply the lesser of two evils. At times, Carter suggested it was the latter. He bemoaned "the occasional incompetency, and, alas! sometimes, but not often, the worse than incompetency, of our judges. . . the flagitious instances in which the mere creatures, or tools, of political factions or private interests have found places in the sacred seat of judgment." In a letter to William Bourke Cockran, he opined, "You and I know the imperfections which attach to this instrumentality [the judiciary], but it is the best we have, or can have."65	62
Interestingly, however, Carter concluded on other occasions that there were many judges of high caliber, despite the bosses' control of the judicial selection process and the infamous episodes of corruption. Even in the midst of the Daly controversy, Carter acknowledged that many occupants of the New York bench were "[j]udges of the highest learning and ability and of perfect fidelity." In a letter to Governor Levi Morton concerning trial judges who might be promoted to the appellate bench, Carter reviewed the seven judges in the department encompassing New York City and observed, "I suppose all of them owe their positions pretty much to Tammany Hall, and I have been surprised at two things: first, that that organization should have selected such good men, and, second, that they should have exhibited so little subserviency to the power to which they are indebted for their places."66	63
In this letter to Morton, Carter listed the preferred traits of an appellate judge as "first, what may be called professional qualifications; that is to say, the union of intellectual ability and discipline; and, second, personal character." While this is hardly an original statement regarding judicial qualifications, it is notable because these were the very characteristics the Mugwumps believed distinguished their own kind from other segments of society. Carter's implicit assumption that the best judges were men of the Mugwump type is revealed by his definition of "personal character." In his view, a judge graced with this quality not only based his decisions on principle rather than on "personal or political" motives, but also manifested a sort of patrician refinement. Carter faulted one judge for being "rough, imperious, and often inconsiderate. . . not a natural gentleman."67	64
Carter had witnessed too much corruption, party loyalty, and ungentlemanly behavior on the bench to think that the New York judiciary fulfilled the Mugwump ideal. The federal and Massachusetts courts, with their appointive systems and life tenure, perhaps approached it more closely. A Boston Mugwump like James Bradley Thayer may well have been confident, as G. Edward White asserts he was, that the typical judge was a rational Brahmin gentleman. 68 It was more difficult to reach this conclusion in New York, however, where judges were the products of the rough-and-tumble politics of the party system. Even in New York, however, judges came nearer to the paradigm than did legislators, in Carter's opinion. Moreover, the city bar association's occasional victories in the sphere of judicial reform may have persuaded Carter that reform-minded lawyers, if properly organized, could exert substantial influence over the composition of the judiciary. Perhaps that is why he deemed the problems of incompetence and corruption on the bench to be "curable mischiefs." Carter believed that if attorneys embraced their duty of promoting improvement in the law, "[o]ur advice would be taken in the selection of judges, and we should select the best." 69	65
V. The Common Law, Custom, and Mugwump Morality
Carter's greater affinity for the men who populated the bench than for those who served as legislators was an important reason why he struggled to keep private law within the province of the courts. It was not, however, the only reason. The common law had a particular appeal to him. He developed a theory about its source and evolution that made it a perfect vehicle for his Mugwump values.	66
Mugwump Ethics and the Private Sphere
That the Mugwumps are most often remembered for attempting to purify government should not obscure their deep commitment to advancing private morality as well. According to the Mugwump moral code, the keys to ethical behavior in the private realm were, as in the public context, the avoidance of self-interest and the pursuit of the public good. From the antebellum moral philosophers, and from more secular theorists such as John Stuart Mill, the Mugwumps adopted an ethical system based on benevolence, altruism, and the subordination of selfish desires. Carter, for example, asserted that "[a]ll the advances in civilisation and morality which society has thus far made are due to the cultivation and development of those moral sympathies which find their activity in co-operation and mutual aid."70	67
Robert Kelley has observed that Mugwump moralism "was fundamentally concerned with society, not with personal conduct--temperance, dancing, Sunday laws, and the like." It is true that the Mugwumps generally opposed state regulation of personal vices, for reasons explored below. Their strong views concerning the limits of government action should not, however, be confused with tolerance for debauchery among the citizenry. For instance, Carter condemned working class saloons, "where men are tempted to ruin themselves and their families by indulgence in drink and are led into the commission of the worst of crimes."71	68
Nonetheless, the Mugwumps' efforts to promote private morality focused chiefly on economic issues. For the gentry reformers, political economy and moral philosophy were inextricably intertwined. They rejected the ethos of rapacious and selfish individualism that they thought characterized the new breed of industrialists and financiers. Instead, they advanced a competing vision of market behavior based on self-restraint, mutual dependence, and fair dealing. As Tucker observes, the Mugwumps "knew the normal marketplace not as a Hobbesian war of all against all, but, instead, as a moral endeavor governed by restraint and the golden rule."72	69
Clearly, the ethical mandate to avoid self-regarding behavior was not nearly so absolute in the private realm as in the public, for many Mugwumps benefited greatly from the commercial development and economic growth of the Gilded Age. About half of them were entrepreneurs and financiers, and Mugwump lawyers such as Carter earned large fortunes representing individuals and enterprises dedicated to making money. Nonetheless, Mugwumps generally deplored material values and condemned the accumulation of riches as an end in itself. As early as his graduation from Harvard College, Carter urged his fellow students "to teach men that even in this world there is something worth living for beside their bodies and something more valuable than heaps of gold, or palaces of marble."73	70
Wealth was legitimate in the Mugwumps' eyes only if it was earned (or inherited) honestly and counterbalanced by a sense of public responsibility and a sincere concern for the welfare of others. They saw themselves as the heirs to long family traditions of gentlemanly business practices and high-minded community leadership. By contrast, the new rich, lacking any sense of noblesse oblige, were oblivious to both commercial ethics and their duties to society. Mugwump editor Charles Eliot Norton's disgust at the new capitalists' conduct led him to question "systems of individualism & competition. We have erected selfishness into a rule of conduct, & we applaud the man who 'gets on' no matter at what cost to other men."74	71
Carter himself decried "hoarded prosperity." Despite his own substantial wealth, he was not nearly so rich as magnates like Fisk or Gould, nor, in his eyes, nearly so selfish and corrupt. Carter viewed such men's unrestrained pursuit of mammon as contrary to the nation's moral traditions. He observed, "The recent prodigious increase of wealth, the vast accumulations by single individuals, often gained by dishonest or questionable practices, the pursuit of frivolous pleasures, the display of luxury, the indifference of many men of wealth to the public welfare. . . are spectacles which suggest moral degeneration." Carter went so far as to welcome a looming financial crash. "If it comes great fortunes and great reputations will come to bitter grief, but the lesson will be valuable and instructive."75	72
Carter's concern for fair dealing extended beyond his opposition to the exploitative schemes of robber barons. The main theme of his jurisprudential writings was the interaction between customary morality, higher morality, and the law, and the majority of his examples concerned the law's treatment of commercial practices that contradicted his vision of the market as a cooperative and ethical realm. He focused on conduct such as the watering of milk by milkmen, the concealment of risk by marine insurance policy holders, and the failure of merchants of goods to disclose defects to customers.76 As discussed below, he concluded in each instance that the common law, though based on societal custom, embodied ideal ethical norms.	73
The Social Standard of Justice
Carter believed that the moral foundation of the common law, which he termed "unwritten law," made it superior to the written law as a way to regulate private relations. He explained that the method of common law decision making, unlike the process of applying statutes, permitted judges to decide each matter on a moral basis, according to the requirements of "justice." Although written law sometimes offered more certainty than unwritten law, this certainty came at the expense of justice, because rules established by statute "are rigid and absolute, and cannot be modified and shaped to suit the varying aspects which different cases may exhibit." A court applying the common law, by contrast, did not establish rules "absolutely," but rather did so "provisionally," based on the particular facts before it, "and whenever a case arises presenting different aspects, the rule is subject to modification and adaptation as justice or expediency may dictate."77	74
This view of the common law differed from the "classical orthodoxy" of Carter's contemporary, Christopher Columbus Langdell, who emphasized stare decisis and logical deduction from broad principles. In contrast to practitioners like Carter, academics such as Langdell, the dean of Harvard Law School, felt the need to forge a logically coherent "legal science" that would vindicate their role in the university. Although Langdell believed that considerations of justice were relevant to the establishment of general foundational principles, his desire to impose formal conceptual order on the legal system as a whole led him to resist appeals to justice in the resolution of particular cases.78 Conversely, Carter and other anticodifiers painted a portrait of the common law that highlighted its flexibility and case-specific justice.	75
It is important to recognize, however, that by justice, Carter did not mean natural or divine law. Indeed, he explicitly rejected the theory that law derives directly from Nature or God. 79 Instead, he referred to the "popular standard of justice," "social standard of justice," or "national standard of justice." In his later writings he largely replaced these phrases with alternatives such as "the opinions, customs, and habits of the people," or simply "custom." Carter asserted an absolute identity between the common law and custom. "[C]ustom is not simply one of the sources of law from which selections may be made and converted into law by the independent and arbitrary fiat of a legislature or a court, but. . . law, with the narrow exception of legislation, is custom." 80	76
Carter's customary theory of law represented a rejection not only of natural law jurisprudence, but also of the theory, popularized by Jeremy Bentham and John Austin, that law is a command proceeding from the state's sovereign power and enforced by a sanction. In challenging the application of this definition to the common law, Carter pointed out that judges were not themselves sovereign, and he dismissed Austin's assertion that the sovereign legislature tacitly delegated to courts the authority to make law. More important, Carter argued that judges did not "make" law at all, but rather "declared" already existing law, which they "found" among the "habits, customs, business and manners of the people, and those previously declared rules which have sprung out of previous similar inquiries into habits, customs, business and manners."81 He often asserted that judges were society's "experts" at ascertaining these customs, although he never offered any real support for this assertion.82	77
By equating the common law with custom, Carter acknowledged that the law would change as the habits and manners of society changed. He criticized jurisprudential writers who "have a way of pointing us to crude states of society, village communities, etc. in order to show the origin and nature of law. To my mind the thing is going on right before our eyes every day and we have only to thoroughly scrutinize the process to learn just what it is." Despite the fluidity Carter ascribed to law by linking it to custom, however, when he spoke of custom and the social standards that grew out of it, he was referring to deep-rooted phenomena.	78
The social standard of justice, though resting upon public opinion, does not rest upon the opinion of the present moment, or that of a few, or a class, or even the whole, when heated by passion or swayed by interest. It is that settled opinion which belongs to the state of moral and intellectual progress which the nation has reached, from which men may be occasionally diverted for a moment, but to which they will ever return.
The slow evolution of custom ensured that so long as the legal system remained court-centered, the law would change only by degrees.83	79
Carter's preference for gradual and ordered change rooted in custom was reminiscent of the antebellum Whigs, who had an organic vision of history that stressed each generation's responsibility to previous and future ones. Enthusiastic adherents of the theories of Edmund Burke, they believed contemporary institutions embodied the moral sense of the race and should not be suddenly overthrown. Carter showed his Whig roots when he described custom as "the imperishable record of the wisdom of the illimitable past reaching back to the infancy of the race, revised, corrected, enlarged, open to all alike, and read and understood by all."84	80
Carter's Value-Laden Historicism
Because customs were constantly evolving and varied from society to society, Carter's central reliance on custom sometimes appeared to take him to the brink of ethical relativism. For example, he declared, "In the case. . . of a custom admitted to be universal in any human society, no doubt could be started concerning its legality in the courts, nor concerning its propriety in the forum of morals. Neither law nor practical morality can ever transcend a universal custom. Polygamy may be wrong in New York, but it is right among the Turks." In another instance, Carter contended simply, "Justice is. . . not an absolute, but a relative virtue." E. L. Godkin's Nation, one of the leading Mugwump periodicals, agreed. An unsigned review of one of Carter's articles, almost certainly written by Godkin himself, stated, "[Justice] is the rule of action prescribed by social morality.. . . [I]t is what the bulk of men comprising the community would think fair and right." 85	81
By basing justice on evolving national customs, Carter seems at first glance to have abandoned the lessons of the antebellum moral philosophers, who considered ethical norms to be objective, absolute, and immutable principles. Thus, it is interesting that more of Carter's contemporary critics attacked him for perpetuating natural law notions than for promoting ethical relativism. Roscoe Pound, for example, complained, "While he claims to be an historical jurist, his philosophical position is that of natural law." David Dudley Field condemned Carter for the "religious aspect to his theory" and for groundlessly assuming that judges "know what is divine and what human better than other men." Even the laudatory Nation review quoted above quibbled, "Mr. Carter, unfortunately,. . . gives some countenance to the notion that there is something called 'abstract and absolute justice. . . ,' a 'hidden reality,' but still a 'reality.'" 86	82
These criticisms reveal that Carter clung to a form of moral objectivism even while recognizing social flux. He maintained that "the conceptions of ought and must in the breast of the individual. . . proceed from a higher source.. . . Otherwise neither the conception of a higher condition, nor the aspiration to reach it would be explicable." In short, Carter declared that "[the ideal] has an existence as truly as the actual." 87	83
Despite the reality of man's ideal conceptions, however, Carter concluded it was impracticable to base a legal system directly on them. What then, was the precise role of the ideal in Carter's jurisprudence? James Grafton Rogers, in a 1932 biographical essay, contended that even Carter himself did not know the answer to this question.	84
[Carter's] conception of law as a moral code, eternal in time and space, is coupled. . . by a thought that law must conform to the accepted standards of the community at large. This is really a transition stage in legal philosophy halfway between classical and medieval theory of natural law and the growing view of law as a simple reflection of relative social standards. The confusion puzzled even him.88
In light of the seemingly contradictory statements sprinkled throughout Carter's writings, it is easy to see why Rogers thought he was befuddled. Nonetheless, Carter's simultaneous embrace of natural law notions and historical evolutionism was not simply a case of jurisprudential schizophrenia. His thought represented a coherent, if not always clearly expressed, melding of the two approaches.	85
Consider how other thinkers of Carter's era clung to timeless norms, even while recognizing the inevitability of historical change. As Dorothy Ross explains, Gilded Age gentry intellectuals, disconcerted by their realization that the American republic could not avoid the historical forces that had led to corruption, mass poverty, class struggle, and despotism in Europe, developed "historico-political" theories that stressed the continuity of principle within material flux. According to Ross, these Mugwumps accepted historical transformation in the United States, but they viewed it as the gradual unfolding of reason and liberty, or, alternatively, as a "dynamic atomistic movement contained within a larger stasis" of republican values. Stephen Siegel has identified a parallel impulse among legal thinkers of the time. The "historist" laissez-faire constitutional jurists he has examined believed that "societies, social norms, and institutions are the outgrowth of continuous change effected by secular causes" but "evolve according to [objective] moral ordering principles that are discoverable through historical studies."89	86
In a similar fashion, Carter believed that the evolution of custom was characterized by the gradual unfolding of eternal, objective moral principles. Therefore, the common law, by reflecting customary standards of justice, embodied elements of natural law. As Carter explained, "[The law] possesses as an essential feature a moral character;. . . it springs from and reposes upon that everlasting and infinite Justice which is one of the attributes of Divinity; and. . . it is so much of that attribute as each particular society is able to comprehend and willing to apply to human affairs." Because Anglo-American civilization was highly advanced, its customs, and hence its law, were approaching the ideal. Carter provided various concrete examples of this phenomenon. For instance, he described how in the field of sales, "[a]n improved sense of fairness led honest [merchants of goods] to disclose defects known to them but not apparent to ordinary observation." This practice had become so customary in the United States that the courts had replaced the traditional principle of caveat emptor with a legal duty to disclose. 90	87
In short, although Carter sometimes made assertions that, in isolation, sound almost modernist in their apparent relativism and positivism, it is important to consider such statements in light of his overall philosophy, which retained a core of moral objectivism. For example, when he stated, "I have sought to discover those rules only which actually regulate conduct, not those which ought to regulate it," he seemed to anticipate the positivism of Oliver Wendell Holmes and the legal realists. Tellingly, however, he then remarked, "I imagine that the rule which will be found in fact to exist, is the best." 91	88
Carter's disposition to locate higher morality in the realm of the actual was illustrated by his approach to the greatest intellectual development of his time, Darwinian evolution. Like many American thinkers after the Civil War, Carter was profoundly influenced by the theory of evolution. "The law of any people, savage or civilized," he argued, "is, and of necessity must be, a gradual and slow evolution--a growth--proceeding from their original nature acting upon, and being acted upon by, the circumstances with which they are surrounded." Clearly, Darwinism bolstered Carter's theory of legal change. Nonetheless, if the driving principle behind evolution was a brutal, individualistic struggle for existence, as was commonly believed, it posed a problem for Carter and others who embraced an ethical paradigm of cooperative self-restraint.92	89
Hence Carter's delight on discovering a "grand book" on a trip to Great Britain, Alexander Sutherland's treatise on animal and human evolution, The Origin and Growth of the Moral Instinct. 93 As Carter himself described the book, "[Sutherland] shows in great detail how the increasing care of offspring leads to self-sacrifice for others, develops by degrees the kindly and generous feelings, how it extends from the immediate family to a whole kindred, thence successively to a community and a nation and ultimately to the whole human race, manifesting itself in the cultivation of the higher individual qualities and in the improvement of society with all its intellectual appliances and charities." 94	90
In Sutherland's work, Carter found a scientific basis for his faith that custom, and therefore law, evolved toward an ideal of altruistic morality. "Under this natural process, physical well-being and moral progress advance pari passu and the whole company of human virtues spring into action and propagate their influences in ever widening circles." Carter was thus able to conclude that evolutionary theory, far from undermining the moral basis of his jurisprudence, actually reinforced it. 95	91
The Role of Mugwump Reform
Despite Carter's frequently voiced belief in inexorable moral progress, he sometimes intimated a concern that such progress in his own time had slowed to a crawl, or perhaps stagnated altogether. "[W]e have only to look at history and we see that civilization never goes back. It goes slowly, sometimes very slowly indeed.. . . but still, it does not go back, and we need not be afraid of that."96	92
Carter pondered whether anything could be done to ensure continued improvement. He acknowledged that "[u]nder the great process of Evolution," early man's moral and intellectual advance out of savagery resulted not from "his own conscious effort," but from the interaction between "the nature of his original constitution and the environment in which he was placed." However, like the prominent sociologist Lester Ward, Carter contended that in modern times, the evolution of human beings was subject to purposive direction and "want[ed] active and affirmative help." He explained, "The progress thus begun [by the spontaneous process of evolution] has been carried forward by designed effort, and it is that effort, and the rules which should govern it, which most deserve our attention."97	93
What form did Carter think this "active and affirmative" help should take? He maintained that the primary instrument for progress was not legal compulsion, but moral reform. "[S]o far as law proceeds from habits and customs, being merely the jural form in which they are exhibited, it cannot be improved except by improvements in habits and customs." Therefore, Carter asserted that "a law, in order to be efficacious, must always be preceded by a corresponding degree of moral education extending through the community."98	94
For Carter, as for other Mugwumps, "moral education" meant the indoctrination of the masses by the gentry elite. As early as his Harvard College graduation, he stressed the "high duty of those whose part it is to lead and control public opinion." Throughout his career, he urged the "better classes of society" to expend "zeal and labor. . . in kindly and sympathetic efforts to change and elevate the thoughts and desires of those less fortunate than themselves" and to "cultivat[e] and develop[ ]. . . those moral sympathies which find their activity in co-operation and mutual aid." Carter thought these efforts were likely to succeed, for the "more cultivated and enlightened. . . are looked up to and imitated, and their influence flows down through all ranks of society and manners and morals rise in response."99	95
Carter believed that judges, who generally were drawn from the same natural aristocracy as the reformers, recognized these ethical advancements and transposed them into their decisions. By this process, the Mugwumps had a greater influence over the development of the common law than they could ever attain over the content of legislation in a political world increasingly dominated by plutocrats and party bosses. The nation was being rapidly transformed by immigration, urbanization, and industrialization, and Carter sought to ensure the continuity and growth of Mugwump authority and values in the midst of these developments. Thus, like the Whigs, he proffered a nostalgic, elitist vision of a civilization guided both morally and legally by cultivated gentlemen. The uneducated masses would accept the leadership of the affluent and classically educated, and the select few would in turn instill virtue in the population as a whole.100	96
VI. The Challenge of Diversity
Carter's view of the patrician elite as a moral vanguard with values superior to those of the general population did not square with another important aspect of his jurisprudence. He frequently declared that the customs of the people were "universal" and that there was a single, uniform "national standard of justice."101 These assertions were critical, because any acknowledgment that there was a diversity of customs threatened to undermine the defense of the common law that Carter fashioned in response to the codifiers' attacks.	97
The codifiers frequently condemned the common law's ex post facto quality. Because the common law was inaccessible to nonlawyers, they argued, citizens were not aware of what was legally required of them until a judge issued his decision. A code, by contrast, would allow any person to determine his duties and responsibilities before taking action. David Dudley Field declared, "[T]hat only is truly law which has been provided beforehand." Carter's response hinged on the uniformity of custom. He contended that it was fair to presume that the people were familiar with common law rules, because the common law was based on custom, and "[t]he term [custom ] itself imports that it is known to all. " He explained, "A man can hardly live in society without knowing how men act--that is, what custom is.. . . Custom is of all things the one most universally known." 102	98
The codifiers also often protested that judges did not "find" the unwritten law among the customs of the people, as Carter claimed, but rather "made" it themselves. Field argued, "[T]he legislative and judicial departments should be kept distinct.. . . [W]e violate [this maxim] every hour that we allow judges to participate in the making of the laws."103 In response, Carter maintained that it was inaccurate to state that judges made law, because custom was an objective, nondiscretionary basis for their decisions. This theory could only be cogent, however, if custom was consistent throughout society. If Carter had conceded the existence of multiple, competing customs, he also would have had to acknowledge that judges did not simply find the law, but rather selected which customs to follow.	99
Carter's contention that cus