Covenants Without the Sword eminently, as we have seen, American. This is in no way to be wondered at, for in its intellectual pedigree it is Puritan. As Mr. Pound has so well pointed out, the dominant note in our legal and legislative ideals and systems is still Puritan. To the Puritan "covenants without the sword" was a favorite juristic and political idea. Men were free moral agents. The basis of everything must be free will. "The church is a willing covenant." Hence the Puritan made contract the basis of ecclesiastical polity, of political associa tion and of law. An eminent Puritan apologist says:— "Geneva was at once the strength and the weakness of the Puritans: their strength, be cause it gave them their idea realized; their weakness, because it made them think the only method of realization was in and through the state."39 This is the key to much of our Ameri can political theory—the sacred rights of the majority, the express and implied assent of the minority and the general consent of all; it is the key to much of our juristic theory—freedom of con tract, non-interference, sanctity of a rule agreed upon by a majority on the bench or at the polls, etc. "We will venture to define municipal law in Ameri can jurisprudence as a rule agreed upon by the people regulating the rights and duties of persons."39 The Puritan had great faith in this covenant or agreement, for which he found a warrant in the covenant that made Abraham and the children of Israel the people of God. Perhaps it was part of the exaggerated faith in the mere machinery of things which Matthew Arnold harps on so often as a character istic of the Anglo-American Philistine. Browne, himself, says that the Puritan
- A M. Fairbairn in Encyc. Britannica, art.
"Independents." ^Andrews, American Law, 35. •
507
imagined that reformation was, as a matter of polity, only to be brought about by structural and organic changes in the church; and a polity in which the few could covenant for the many. "The Kingdom of God," he says, "was not to be begun by whole parishes, but rather by the worthiest, be they ever so few."40 The bearing of this Puritan attitude of mind on religious institutional history in this country and England is obvious, but its bearing on our political and juristic history, if not quite so obvious, is quite as real. The dominant ideas of the adolescence of any system, and particularly a legal system, are sure to take hold of it and persist. At any rate, faith in the efficacy of a bare legislative or judicial declaration that a thing is or shall be law is seen to survive all discouragement of practical experience in America. It has been the theme of remarks of the Presidents of the Ameri can Bar Association at their last three meetings. It plays a large part in Mr. Carter's late book. Dead-letter laws and fool legislation, as a result of this Puritan idiosyncrasy which persists in us, have been the subject of jest among lawyers and laymen for fifty years, but the output increases steadily. The Puri tan empire is slowly passing westward, and is there bringing forth legislative and juristic harvests worthy of the sowers who went before. Along with this exaggerated faith in abstract rules and declarations and cove nants, so characteristic of our people, goes a more or less unconscious contempt for those same rules in their concrete appli cation, which is also characteristically American.41 This, too, is Puritan— the free moral agent freely exercising his free will in each emergency and ^Browne's "True and Short Declaration," page 6. "Fagan's "Confessions of a Railway Signal man" is full of illustrations of this.
