Chapter CXXXIX: Act 1895: , may be given to a married woman on applying to (28)

A more scientific character has thus been taken on by American law. It is noticeable both in legal text-books and in the opinions of the courts of last resort. In the latter precision of statement and method in discussion are invited by the uniform practice of preparing written opinions. The original practice of reading these from the bench has been generally discontinued. They are simply handed down to an official reporter for publication, which is done at the expense of the government by which the court is commissioned. With the judicial reports of each state the lawyers of that state are required to be familiar; and this is rendered possible, even in the larger ones, by state digests, prepared every few years by private enterprise. Outside of the state their circulation is comparatively limited, though sets of all are generally found in each state library, and of many in the Bar libraries at the principal county seats. The private libraries of lawyers in large practice also often contain the reports of adjoining and sometimes those of distant states as well as those of their own and of the Supreme Court of the United States. The decisions of one state, however, are now best known in others through unofficial reports. One large publishing concern prints every case decided in the courts of last resort. They are published in several distinct series, those, for instance, coming from the northern Atlantic states being grouped together as the Atlantic Reporter, and those from the states on the Pacific coast as the Pacific Reporter. Another house has published a compilation professing to give all the leading American cases from the first to the latest volume of reports. Another makes a similar selection from the decisions of each year as they appear, and publishes them with critical annotations. There are also annual digests of a national character, comprehending substantially all American cases and the leading English cases reported during the preceding year.

These various publications are widely diffused, and so the American lawyer is enabled, in preparing for the argument of any cause involving questions of difficulty, to inform himself with ease of such precedents as may apply. A court in Texas is thus as likely to be made acquainted with a decision in Maine or Oregon as with one in any nearer state, and in the development of American law all American courts are brought in close touch with each other.

English and American law.

This tendency has been advanced by the steady growth of codification. That is beginning also to serve to bring English and American law nearer together in certain directions. A Negotiable Instruments Act, promoted by the American Bar Association and prepared by a conference of commissioners appointed by the several states to concert measures of uniform legislation, has been adopted in the leading commercial states. It is founded upon the English "Chalmers's Act," and the English decisions giving a construction to that have become of special importance. The acts of parliament known as the Employers' Liability Act and the Railway and Canal Traffic Act have also served as the foundation of similar legislation in the United States, and with the same result. Modern English decisions are, however, cited less frequently in American courts than the older ones; and the older ones themselves are cited far less frequently than they once were. In the development of their legislation, England and the United States have been in general harmony so far as matters of large commercial importance are concerned, but as to many others they have since 1850 drawn apart. Statutes, at one point or another, probably now affect the disposition of most litigated causes in both countries. Their application, therefore, must serve more or less to obscure or displace general principles, which might otherwise control the decision and make it a source of authority in foreign tribunals. The movement of the judicial mind in the United States, and also its modes and form of expression, have a different measure from that which characterizes what comes from the English bench. American judges are so numerous, and (except as to the Supreme Court of the United States) the extent of their territorial jurisdiction so limited, that they can give more time to the careful investigation of points of difficulty, and also to the methodical statement of their conclusions. Whatever they decide upon appeal being announced in writing, and destined to form part of the permanent published records of the state, they are expected and endeavour to study their words and frame opinions not only sound in law but unobjectionable as literary compositions.

The choice of American judges, particularly in the older states, has been not uninfluenced by these considerations. Marshall, Bushrod Washington, Story, Kent, Ware, Bradley, and many of their contemporaries and successors, were put upon the bench in part because of their legal scholarship and their power of felicitous expression. Hence the better American opinions have more elaboration and finish than many which come from the English courts, and are more readily accepted as authorities by American judges. But the great multiplication of reports has so widened the field of citation as in effect to reduce it. Each of the larger and older states has now a settled body of legal precedent of its own, beyond which its judges in most cases do not look. If a prior decision applies, it is controlling. If there be none, they prefer to decide the case, if possible, on principle rather than authority.

While the state courts are bound to accept the construction placed upon the Constitution and laws of the United States by the Supreme Court of the United States, and thus uniformity of decision is secured in that regard, the courts of the United States, on the other hand are as a rule obliged to accept in all other particulars the construction placed by the courts of each state on its constitution and laws. This often gives a seeming incongruity to the decisions of the Supreme Court of the United States. A point in a case coming up from one judicial circuit may be determined in a way wholly different from that followed in a previous judgment in a cause turning upon the same point, but appealed from another circuit, because of a departure from the common law in one state which has not been made in another. In view of this, a doctrine originally proposed by Mr Justice Story in 18427 has not been infrequently invoked of late years, which rests upon the assumed existence of a distinctive federal jurisprudence of paramount authority as to certain matters of general concern, as for example those intimately affecting commerce between the states or with foreign nations. The consequence is that a case involving such questions may be differently adjudged, according as it is brought in a state or in a federal court.8

The divergences now most noticeable between English and American law are in respect of public control over personal liberty and private property, criminal procedure and the scope of the powers of municipal corporations.

Under the constitutional provision that no one shall be deprived of life, liberty or property without due process of law, American courts frequently declare void statutes which in England would be within the acknowledged powers of parliament. These provisions are liberally expounded in favour of the individual, and liberty is held to include liberty of contract as well as of person. Criminal procedure is hedged about with more refinements and safeguards to the accused than are found in England, and on the other hand, prosecutions are more certain to follow the offence, because they are universally brought by a public officer at public expense. The artificiality of the proceedings is fostered by a general right of appeal on points of law to the court of last resort. It is in criminal causes involving questions of common-law liability and procedure9 that English law-books and reports are now most frequently cited. American municipal corporations are confined within much narrower limits than those of England, and their powers more strictly construed.

Trial by jury.

Trial by jury in civil causes seems to be declining in public esteem. The expenses necessarily incident to it are naturally increasing, and the delays are greater also from a general tendency, especially in cities, where most judicial business is transacted, to reduce the number of hours a day during which the court is in session. The requirement of unanimity is dispensed with in a few states, and it has been thus left without what many deem one of its essential features. The judge interposes his authority to direct and expedite the progress of the trial less frequently and less peremptorily than in England. A jury is waived more often than formerly, and there is a growing conviction that, with a capable and independent judiciary, justice can be looked for more confidently from one man than from thirteen.

The United States entered on the work of simplifying the forms of pleading earlier than England, but has not carried it so far. Demurrers have not been abandoned, and in some states little has been done except to replace one system of formality by another hardly less rigid. The general plan has been to codify the laws of pleading by statute. In a few states they have proceeded more nearly in accordance with the principles of the English Judicatare Act, and left details to be worked out by the judges, through rules of court.10

The legislature and the courts.

Most of the state constitutions assume that the powers of government can be divided into three distinct departments, executive, legislative and judicial; and direct such a distribution. In thus ignoring the administrative functions of the state, they have left a difficult question for the courts, upon which the legislature often seeks in part to cast them. The general tendency has been to construe, in such circumstances, the judicial power broadly, and hold that it may thus be extended over much which is rather to be called quasi-judicial.11 A distinction is taken between entrusting jurisdiction of this character to the courts, and imposing it upon them. Where the statute can be construed as simply permissive, the authority may be exercised as a matter of grace, when it would be peremptorily declined, were the meaning of the legislature that it must be accepted.12 The courts, for similar reasons, have generally declined (in the absence of any constitutional requirement to that effect) to advise the legislature, at its request, whether a proposed statute, if enacted, would be valid. While its validity, were it to be enacted, might become the subject of a judicial decision, it is thought for that reason, if for no other, to be improper to prejudge the point, without a hearing of parties interested. The constitutions of several states provide for such a proceeding, and in these the Supreme Court is not infrequently called upon in this way, and gives responses which are always considered decisive of legislative action, but would not be treated as conclusive in any subsequent litigation that might arise.

Police power of states.

The general trend of opinion in the Supreme Court of the United States since 1870, upon questions other than those arising under the XIVth Amendment, has been towards recognizing the police power of the several states as entitled to a broad scope. Even, for instance, in such a matter as the regulation of commerce between different states, it has been upheld as justifying a prohibition against running any goods trains on a Sunday, and a requirement that all railway cars must be heated by steam.13 In the "Granger Cases,"14 the right of the state to fix the rate of charges for the use of a grain elevator for railway purposes, and for general railway services of transportation, was supported, and although the second of these was afterwards overruled,15 the principle upon which it was originally rested was not shaken.

On the other hand, reasons of practical convenience have necessarily favoured the substantial obliteration of state lines as to the enforcement of statutory private rights. Massachusetts in 1840, six years before the passage of Lord Campbell's Act, provided a remedy by indictment for the negligent killing of a man by a railway company, a pecuniary penalty being fixed which the state was to collect for the benefit of his family. In most of the other states by later statutes a similar result has been reached through a civil action brought by the executor or administrator as an agent of the law. In some, however, the state must be the plaintiff; in others the widow, if any there be. The accident resulting in death often occurs in a state where the man who was killed does not reside, or in which the railway company does not have its principal seat. It may therefore be desirable to sue in one state for an injury in another. Notwithstanding such an action is unknown to the common law, and rests solely on a local statute, the American courts uniformly hold that, when civil in form, it can be brought under such statutes in any state the public policy of which is not clearly opposed to such a remedy. In like manner, the responsibilities of stockholders and directors of a moneyed corporation, under the laws of the state from which the charter is derived, are enforced in any other states in which they may be found. Thus a double liability of stockholders to creditors, in case of the insolvency of the company, or a full liability to creditors of directors who have made false reports or certificates regarding its financial condition, is treated as of a contractual nature, and not penal in the international sense of that term.16 As a judgment of one state has equal force in another, so far as the principle of res adjudicata is concerned, the orders of a court in a state to which a corporation owes its charter, made in proceedings for winding it up, may be enforced to a large extent in any other. The shareholders are regarded as parties by representation to the winding- up proceedings, and so bound by decrees which are incidental to it.17

The provisions of the United States law on different subjects and the literature concerning them are given in the separate articles. See the bibliography to the article LAW; also Cooley on The Constitutional Limitations which rest upon the Legislative Power of the States of the American Union; Andrews on American Law; and Russell on The Police Power of the State, and Decisions thereon as illustrating the Development and Value of Case Law. (S. E. B.)

1 The Slaughter-House Cases, 16 Wallace's Reports, 36, 81.

2 Ibid. 89, 111, 129.

3 Guthrie on the Fourteenth Amendment, 27.

4 Baldwin's Modern Political Institutions, 111, 112.

5 Holden v. Hardy, 169 United States Reports, 336, 385-387.

6 Columbia Law Review, i. 99.

7 Swift v. Tyson, 16 Peters' Reports, 1, 19.

8 See Forepaugh v. Delaware, Lackawanna & Western Railroad Company, 128 Pennsylvania State Reports, 267; Faulkner v. Hart, 82 New York Reports, 313; and Lake Shore & Michigan Southern Railway Company v. Prentice, 147 United States Reports, 101.

9 See, as examples, Commonwealth v. Rubin, 165 Massachusetts Reports, 453, in which Holmes, C.J., traces the rule that, if a man abuse an authority given him by the law, he becomes a trespasser ab initio, back to the Year Books; and Commonwealth v. Cleary, 172 Massachusetts Reports, 175, in which the same judge refers to Glanville and Fleta as authority for the proposition that the admission in evidence, in cases of rape, of complaints made by the woman soon after the commission of the offence is a perverted survival of the old rule that she could not bring an appeal unless she had made prompt hue and cry.

10 This has been carried furthest in Connecticut. See Botsford v. Wallace, 72 Connecticut Reports, 195.

11 Norwalk Street Railway Company's Appeal, 69 Connecticut Reports, 576; 38 Atlantic Reporter, 708.

12 Zanesville v. Zanesville Telephone Company, 63 Ohio State Reports, 442; 59 North-Eastern Reporter, 109.

13 New York Railroad v. New York, 165 United States Reports, 628.

14 Munn v. Illinois, 94 United States Reports, 113; Chicago Railroad Company v. Iowa, ibid. 155.

15 Wabash Railway Company v. Illinois, 118 United States Reports, 557; Reagan v. Farmers' Loan and Trust Company, 154 United States Reports, 362.

16 Huntington v. Attrill, 146 United States Reports, 657.

17 Great Western Telegraph Company v. Purdy, 162 United States Reports, 329; Fish v. Smith, 73 Connecticut Reports, 377; 47 Atlantic Reporter, 710.

AMERICAN LITERATURE.

Beginnings.

The earliest books which are commonly described as the beginnings of American literature were written by men born and bred in England; they were published there; they were, in fact, an undivided part of English literature, belonging to the province of exploration and geographical description and entirely similar in matter and style to other works of voyagers and colonizers that illustrate the expansion of England. They contain the materials of history in a form of good Elizabethan narrative, always vigorous in language, often vivid and picturesque. John Smith (1579-1631) wrote the first of these, A True Relation of such Occurrences and Accidents of Note as hath happened in Virginia (1608), and he later added other accounts of the country to the north. William Strachey, a Virginian official of whom little is known biographically, described (1610) the shipwreck of Sir Thomas Gates on the Bermudas, which is believed to have yielded Shakespeare suggestions for The Tempest. Colonel Henry Norwood (d. 1689), hitherto unidentified, of Leckhampton, Gloucestershire, a person eminent for loyalty in the reign of Charles I. and distinguished in the civil wars, later governor of Tangiers and a member of parliament for Gloucester, wrote an account of his voyage to Virginia as an adventurer, in 1649. These are characteristic works of the earliest period, and illustrate variously the literature of exploration which exists in numerous examples and is preserved for historical reasons. The settlement of the colonies was, in general, attended by such narratives of adventure or by accounts of the state of the country or by documentary record of events. Thus George Alsop (b. 1638) wrote the Character of the Province of Maryland (1666), and Daniel Denton a Brief Description of New York (1670), and in Virginia the progress of affairs was dealt with by William Stith (1689-1755), Robert Beverly (f. 1700), and William Byrd (1674-1744). Each settlement in turn, as it came into prominence or provoked curiosity, found its geographer and annalist, and here and there sporadic pens essayed some practical topic. The product, however, is now an indistinguishable mass, and titles and authors alike are found only in antiquarian lore. The distribution of literary activity was very uneven along the sea-board; it was naturally greatest in the more thriving and important colonies, and bore some relation to their commercial prosperity and political activity and to the closeness of the connexion with the home culture of England. From the beginning New England, owing to the character of its people and its ecclesiastical rule, was the chief seat of the early literature, and held a position apart from the other colonies as a community characterized by an intellectual life. There the first printing press was set up, the first college founded, and an abundant literature was produced.

The characteristic fact in the Puritan colonies is that literature there was in the hands of its leading citizens and was a chief concern in their minds. There were books of exploration and description as in the other colonies, such as William Wood's (d. 1639) New England's Prospect (1634), and John Josselin's New England's Rarities (1672), and tales of adventure in the wilderness and on the sea, most commonly described as "remarkable providences," in the vigorous Elizabethan narrative; but besides all this the magistracy and the clergy normally set themselves to the labour of history, controversy and counsel, and especially to the care of religion. The governors, beginning with William Bradford (1590-1657) of Plymouth, and John Winthrop (1588-1649) of Massachusetts Bay, wrote the annals of their times, and the line of historians was continued by Winslow, Nathaniel Morton, Prince, Hubbard and Hutchinson. The clergy, headed by John Cotton (1585-1652), Thomas Hooker (1586-1647), Nathaniel Ward (1579- 1652), Roger Williams (1600-1683), Richard Mather (1596-1669), John Eliot (1604-1690), produced sermons, platforms, catechisms, theological dissertations, tracts of all sorts, and their line also was continued by Shepard, Norton, Wise, the later Mathers and scores of other ministers. The older clergy were not inferior in power or learning to the leaders of their own communion in England, and they commanded the same prose that characterizes the Puritan tracts of the mother country; nor did the kind of writing deteriorate in their successors. This body of divines in successive generations gave to early New England literature its overwhelming ecclesiastical character; it was in the main a church literature, and its secular books also were controlled and coloured by the Puritan spirit. The pervasiveness of religion is well illustrated by the three books which formed through the entire colonial period the most popular domestic reading of the Puritan home. These were The Bay Psalm Book (1640), which was the first book published in America; Michael Wigglesworth's (1631-1705) Day of Doom (1662), a doggerel poem; and the New England Primer (c. 1690), called "the Little Bible." The sole voice heard in opposition was Thomas Morton's satirical New English Canaan (1637), whose author was sent out of the colony for the scandal of Merrymount, but satire itself remained religious in Ward's Simple Cobbler of Agawam (1647). Poetry was represented in Anne Bradstreet's (1612-1672) The Tenth Muse lately sprung up in America (1650), and was continued by a succession of doggerel writers, mostly ministers or schoolmasters, Noyes, Oakes, Folger, Tompson, Byles and others. The world of books also included a good proportion of Indian war narratives and treatises relating to the aborigines. The close of the 17th century shows literature, however, still unchanged in its main position as the special concern of the leaders of the state. It is Chief-Justice Samuel Sewall's (1652-1730) Diary (which remained in manuscript until 1878) that affords the most intimate view of the culture and habits of the community; and he was known to his contemporaries by several publications, one of which, The Selling of Joseph (1700), was the first American anti-slavery tract.

Puritanism.

The literature of the first century, exemplified by these few titles, is considerable in bulk, and like colonial literature elsewhere is preserved for historical reasons. In general, it records the political progress and social conditions of the Puritan state, and the contents of the Puritan mind. The development of the original settlement took place without any violent check. Though the colony was continually recruited by fresh immigration, the original 20,000 who arrived before 1640 had established the principles of the state, and their will and ideas remained dominant after the Restoration as before. It was a theocratic state controlled by the clergy, and yet containing the principle of liberty. The second and third generations born on the soil, nevertheless, showed some decadence; notwithstanding the effort to provide against intellectual isolation and mental poverty by the foundation of Harvard College, they felt the effects of their situation across the sea and on the borders of a wilderness. The people were a hardfaring folk and engaged in a material struggle to establish the plantations and develop commerce on the sea; their other life was in religion soberly practised and intensely felt. They were a people of one book, in the true sense,--the Bible; it was the organ of their mental life as well as of their spiritual feelings. For them, it was in the place of the higher literature. But long resident there in the strip between the sea and the forest, cut off from the world and consigned to hard labour and to spiritual ardours, they developed a fanatical temper; their religious life hardened and darkened; intolerance and superstition grew. Time, nevertheless, ripened new changes, and the colony was to be brought back from its religious seclusion into the normal paths of modern development. The sign was contained, perhaps, most clearly in the change effected in the new charter granted by King William which made property the basis of the franchise in place of church-membership, and thus set the state upon an economic instead of a religious foundation. It is rather by men than by books that these times are remembered, but it is by the men who were writers of books. In general, the career of the three Mathers coincides with the history of the older Puritanism, and their personal characteristics reflect its stages as their writings contain its successive traits. Richard Mather, the emigrant, had been joint author in the composition of The Bay Psalm Book, and served the colony among the first of its leaders. It was in his son, Increase Mather (1639-1723), that the theocracy, properly speaking, culminated. He was not only a divine, president of Harvard College and a prolific writer; but he was dominant in the state, the chief man of affairs. It was he who, sent to represent the colony in England, received from King William the new charter. His son, Cotton Mather (1663-1728), succeeded to his father's distinction; but the changed condition is reflected in his non-participation in affairs; he was a man of the study and led there a narrower life than his father's had been. He was, nevertheless, the most broadly characteristic figure of the Puritan of his time. He was able and learned, abnormally laborious, leaving over 400 titles attributed to him; and at the same time he was an ascetic and visionary. The work by which he is best remembered, the Magnalia Christi Americana, or the Ecclesiastical History of New England from its First Planting in the Year 1620, unto the Year of our Lord 1698 (1702), is the chief historical monument of the period, and the most considerable literary work done in America up to that time. It is encyclopaedic in scope, and contains an immense accumulation of materials relating to life and events in the colony. There the New England of the 17th century is displayed. His numerous other works still further amplify the period, and taken all together his writings best illustrate the contents of Puritanism in New England. The power of the clergy was waning, but even in the political sphere it was far from extinction, and it continued under its scheme of church government to guard jealously the principles of liberty. In John Wise's (1652-1725) Vindication of the Government of New England Churches (1717) a precursor of the Revolution is felt. It was in another sphere, however, that Puritanism in New England was to reach its height, intellectually and spiritually alike, in the brilliant personality of Jonathan Edwards (1703-1758), its last great product. He was free of affairs, and bred essentially the private life of a thinker. He displayed in youth extraordinary precocity and varied intellectual curiosity, and showed at the same early time a temperament of spiritual sensitiveness and religious ideality which suggests the youth of a poet rather than of a logician. It was not without a struggle that he embraced sincerely the Calvinistic scheme of divine rule, but he was able to reconcile the doctrine in its most fearful forms with the serenity and warmth of his own spirit; for his soul at all times seems as lucid as his mind, and his affections were singularly tender and refined. He served as minister to the church at Northampton; and, driven from that post, he was for eight years a missionary to the Indians at Stockbridge; finally he was made president of Princeton College, where after a few weeks' incumbency he died. The works upon which his fame is founded are Treatise concerning the Religious Affections (1746), On the Freedom of the Will (1754), Treatise on Original Sin (1758). They exhibit extraordinary reasoning powers and place him among the most eminent theologians. He contributed by his preaching great inspiring force to the revival, known as "the Great Awakening," which swept over the dry and formal Puritanism of the age and was its last great flame. In him New England idealism had come to the birth. He illustrates, better than all others, the power of Puritanism as a spiritual force; and in him only did that power reach intellectual expression in a memorable way for the larger world. The ecclesiastical literature of Puritanism, abundant as it was, produced no other work of power; nor did the Puritan patronage of literature prove fruitful in other fields. If Puritanism was thus infertile, it nevertheless prepared the soil. It impressed upon New England the stamp of the mind; the entire community was by its means intellectually as well as morally bred; and to its training and the predisposition it established in the genius of the people may be ascribed the respect for the book which has always characterized that section, the serious temper and elevation of its later literature and the spiritual quality of the imagination which is so marked a quality of its authors.

Franklin.

The secularization of life in New England, which went on concurrently with the decline of the clergy in social power, was incidental to colonial growth. The practical force of the people had always been strong; material prosperity increased and a powerful class of merchants grew up; public questions multiplied in variety and gained in importance. The affairs of the world had definitely obtained the upper hand. The new spirit found its representative in the great figure of Benjamin Franklin (1706-1790), who, born in Boston, early emigrated to Philadelphia, an act which in itself may be thought to forecast the transfer of the centre of interest to the west and south and specifically to that city where the congress was to sit. Franklin was a printer, and the books he circulated are an index to the uses of reading in his generation. Practical works, such as almanacs, were plentiful, and it is characteristic that Franklin's name is, in literature, first associated with Poor Richard's Almanack (1732). The literature of the 18th century outside of New England continued to be constituted of works of exploration, description, colonial affairs, with some sprinkling of crude science and doctrines of wealth; but it yields no distinguished names or remembered titles. Franklin's character subsumes the spirit of it. In him thrift and benevolence were main constituents; scientific curiosity of a useful sort and invention distinguished him; after he had secured a competence, public interests filled his mature years. In him was the focus of the federating impulses of the time, and as the representative of the colonies in England and during the Revolution in France, he was in his proper place as the greatest citizen of his country. He was, first of men, broadly interested in all the colonies, and in his mind the future began to be comprehended in its true perspective and scale; and for these reasons to him properly belongs the title of "the first American." The type of his character set forth in the Autobiography (1817) was profoundly American and prophetic of the plain people's ideal of success in a democracy. It is by his character and career rather than by his works or even by his great public services that he is remembered; he is a type of the citizen- man. Older than his companions, and plain while they were of an aristocratic stamp, he greatens over them in the popular mind as age greatens over youth; but it was these companions who were to lay the foundations of the political literature of America. With the increasing political life lawyers as a class had naturally come into prominence as spokesmen and debaters. A young generation of orators sprang up, of whom James Otis (1725-1783) in the north, and Patrick Henry (1736-1799) in the south, were the most brilliant; and a group of statesmen, of whom the most notable were Thomas Jefferson (1743-1826), James Madison (1751-1836), and Alexander Hamilton (1757-1804), held the political direction of the times; in the speeches and state-papers of these orators and statesmen and their fellows the political literature of the colonies came to hold the first place. The chief memorials of this literature are The Declaration of Independence (1776), The Federalist (1788), a treatise on the principles of free government, and Washington's Addresses (1789-1793-1796). Thus politics became, in succession to exploration and religion, the most important literary element in the latter half of the 18th century.

18th-century poetry and fiction.

The more refined forms of literature also began to receive intelligent attention towards the close of the period. The Revolution in passing struck out some sparks of balladry and song, but the inspiration of the spirit of nationality was first felt in poetry by Philip Freneau (1752-1832), whose Poems (1786) marked the best political achievement up to his time. Patriotism was also a ruling motive in the works of the three poets associated with Yale College, John Trumbull (1750-1831), Timothy Dwight (1752-1817), and Joel Barlow (1754-1812), authors respectively of McFingal (1782), a Hudibrastic satire of the Revolution, The Conquest of Canaan (1785), an epic, and The Vision of Columbus (1787), later remade into The Columbiad, also an epic. These poets gathered about them a less talented company, and all were denominated in common the "Hartford Wits," by which name rather than by their works they are remembered. The national hymn, "Hail Columbia," was composed by Joseph Hopkinson (1770-1842) in 1798. Fiction, in turn, was first cultivated by Charles Brockden Brown (1771-1810), a Philadelphian, who wrote six romantic novels (1798-1801) after the style of Godwin, but set in the conditions of the new world and mixing local description and observation with the material of mystery and terror. Fiction had been earlier attempted by Mrs Susanna Haswell Rowson, whose Charlotte Temple (1790) is remembered, and contemporaneously by Mrs Hannah Webster Foster in The Coquette (1797) and by Royall Tyler (1758-1826) in The Algerian Captive (1799); but to Brown properly belongs the title of the first American novelist, nor are his works without invention and intensity and a certain distinction that secure for them permanent remembrance. The drama formally began its career on a regular stage and with an established company, in 1786 at New York, with the acting of Royall Tyler's comedy The Contrast; but the earliest American play was Thomas Godfrey's (1736-1763) tragedy, The Prince of Parthia, acted in Philadelphia in 1767. William Dunlap (1766-1839) is, however, credited with being the father of the American theatre on the New York stage, where his plays were produced. One other earlier book deserves mention, John Woolman's (1720-1772) Journal (1775), an autobiography with much charm. With these various attempts the 18th century was brought to an end. In 200 years no literary classic had been produced in America.

The new nation.

The new nation, which with the 19th century began its integral career, still retained the great disparities which originally existed between the diverse colonies. Political unity, the simplest of the social unities, had been achieved; "a more perfect union," in the language of the founders, had been formed; but even in the political sphere the new state bore in its bosom disuniting forces which again and again threatened to rive it apart until they were dissipated in the Civil War; and in the other spheres of its existence, intellectually, morally, socially, its unity was far from being accomplished. The expansion of its territory over the continental area brought new local diversity and prolonged the contrasts of border conditions with those of the long-settled communities. This state of affairs was reflected in the capital fact that there was no metropolitan centre in which the tradition and forces of the nation were concentrated. Washington was a centre of political administration; but that was all. The nation grew slowly, indeed, into consciousness of its own existence; but it was without united history, without national traditions of civilization and culture, and it was committed to the untried idea of democracy. It was founded in a new faith; yet at the moment that it proclaimed the equality of men, its own social structure and habit north and south contradicted the declaration, not merely by the fact of slavery, but by the life of its classes. The south long remained oligarchic; in the north aristocracy slowly melted away. The coincidence of an economic opportunity with a philosophic principle is the secret of the career of American democracy in its first century. The vast resources of an undeveloped country gave this opportunity to the individual, while the nation was pledged by its fundamental idea to material prosperity for the masses, popular education and the common welfare, as the supreme test of government. In this labour, subduing the new world to agriculture, trade and manufactures, the forces of the nation were spent, under the complication of maintaining the will of the people as the directing power; the subjugation of the soil and experience in popular government are the main facts of American history. In the course of this task the practice of the fine arts was hardly more than an incident. When anyone thinks of Greece, he thinks first of her arts; when anyone thinks of America, he thinks of her arts last. Literature, in the sense of the printed word, has had a great career in America; as the vehicle of use, books, journals, literary communication, educational works and libraries have filled the land; nowhere has the power of the printed word ever been so great, nowhere has the man of literary genius ever had so broad an opportunity to affect the minds of men contemporaneously. But, in the artistic sense, literature, at most, has been locally illustrated by a few eminent names.

The most obvious fact with regard to this literature is that--to adopt a convenient word--it has been regional. It has flourished in parts of the country, very distinctly marked, and is in each case affected by its environment and local culture; if it incorporates national elements at times, it seems to graft them on its own stock. The growth of literature in these favoured soils was slow and humble. There was no outburst of genius, no sudden movement, no renaissance; but very gradually a step was taken in advance of the last generation, as that had advanced upon its forefathers. The first books of true excellence were experiments; they seem almost accidents. The cities of Boston, New York and Philadelphia were lettered communities; they possessed imported books, professional classes, men of education and taste. The tradition of literature was strong, especially in New England; there were readers used to the polite letters of the past. It was, however, in the main the past of Puritanism, both in England and at home, and of the 18th century in general, on which they were bred, with a touch ever growing stronger of the new European romanticism. All the philosophic ideas of the 18th century were current. What was most lacking was a standard self-applied by original writers; and in the absence of a great national centre of standards and traditions, and amid the poverty of such small local centres as the writers were bred in, they sought what they desired, not in England, not in any one country nor in any one literature, but in the solidarity of literature itself, in the republic of letters, the world-state itself,--the master-works of all European lands; they became either actual pilgrims on foreign soil or pilgrims of the mind in fireside travels. The foreign influences that thus entered into American literature are obvious and make a large part of its history; but the fact here brought out is that European literature and experience stood to American writers in lieu of a national centre; it was there that both standard and tradition were found.

Early 19th-century classics.

American literature first began to exist for the larger world in the persons of Washington Irving (1785-1859) and James Fenimore Cooper (1789-1851). Their recognition was almost contemporaneous. The Sketch Book (1810) was the first American book to win a great reputation in England, and The Spy (1821) was the first to obtain a similar vogue on the continent. The fame of both authors is associated with New York, and that city took the first place as the centre of the literature of the period. It was not that New York was more intellectual than other parts of the country; but it was a highly prosperous community, where a mercantile society flourished and consequently a certain degree of culture obtained. The first American literature was not the product of a raw democracy nor of the new nationality in any sense; there was nothing sudden or vehement in its generation; but, as always, it was the product of older elements in the society where it arose and flourished under the conditions of precedent culture. The family of Irving were in trade. Cooper's father was in the law. A third writer, William Cullen Bryant (1794-1878), is associated with them, and though he announced his poetic talent precociously by Thanatopsis (1807), his Poems (1832), immediately republished in London, were the basis of his true fame. Born in Massachusetts, he lived his long life in New York, and was there a distinguished citizen. His father was a physician. All three men were not supremely endowed; they do not show the passion of genius for its work which marks the great writers; they were, like most American writers, men with the literary temperament, characteristically gentlemen, who essayed literature with varying power. If the quality of this early literature is to be appreciated truly, the fact of its provenance from a society whose cultivation was simple and normal, a provincial bourgeois society of a prosperous democracy, must be borne in mind. It came, not from the people, but from the best classes developed under preceding conditions.

Irving.

Irving all his life was in the eyes of his countrymen, whatever their pride might be in him, more a travelled gentleman than one of themselves. He had come home to end his days at Sunnyside by the Hudson, but he had won his fame in foreign fields. In his youth the beginnings of his literary work were most humble--light contributions to the press. He was of a most social nature, warm, refined, humorous, a man belonging to the town. He was not seriously disposed, idled much, and surprised his fellow-citizens suddenly by a grotesque History of New York (1809), an extravaganza satirizing the Dutch element of the province. He discovered in writing this work his talent for humour and also one part of his literary theme, the Dutch tradition; but he did not so convince himself of his powers as to continue, and it was only after the failure of his commercial interests that, being thrown on himself for support, he published in London ten years later, at the age of thirty-six, the volume of sketches which by its success committed him to a literary career. In that work he found himself; sentiment and distinction of style characterized it, and these were his main traits. He remained abroad, always favoured in society and living in diplomatic posts in Spain and England, for seventeen years, and he later spent four years in Spain as minister. Spain gave him a larger opportunity than England for the cultivation of romantic sentiment, and he found there his best themes in Moorish legend and history. On his return to America he added to his subjects the exploration of the west; and he wrote, besides, biographies of Goldsmith and Washington. He was, as it turned out, a voluminous writer; yet his books successively seem the accident of his situation. The excellence of his work lies rather in the treatment than the substance; primarily, there is the pellucid style, which he drew from his love of Goldsmith, and the charm of his personality shown in his romantic interest, his pathos and humour ever growing in delicacy, and his familiar touch with humanity. He made his name American mainly by creating the legend of the Hudson, and he alone has linked his memory locally with his country so that it hangs over the landscape and blends with it for ever; he owned his nativity, too, by his pictures of the prairie and the fur-trade and by his life of Washington, who had laid his hand upon his head; but he had spent half his life abroad, in the temperamental enjoyment of the romantic suggestion of the old world, and by his writings he gave this expansion of sympathy and sentiment to his countrymen. If his temperament was native-born and his literary taste home-bred, and if his affections gave a legend to the countryside and his feelings expanded with the view of prairie and wilderness, and if he sought to honour with his pen the historic associations and memory of the land which had honoured him, it was, nevertheless, the trans-Atlantic touch that had loosed his genius and mainly fed it, and this fact was prophetic of the immediate course of American literature and the most significant in his career.

Cooper's initiation into literature was similar to that of Irving. He had received, perhaps, something more of scanty formal education, since he attended Yale College for a season, but he early took to the sea and was a midshipman. He was thirty years old before he began to write, and it was almost an accident that after the failure of his first novel he finished The Spy, so deterring was the prejudice that no American book could succeed. He was, however, a man of great energy of life, great force of will; it was his nature to persist. The way once opened, he wrote voluminously and with great unevenness. His literary defects, both of surface and construction, are patent. It was not by style nor by any detail of plot or character that he excelled; but whatever imperfections there might be, his work was alive; it had body, motion, fire. He chose his subjects from aspects of life familiar to him in the woods or on the sea or from patriotic memories near to him in the fields of the Revolution. He thus established a vital connexion with his own country, and in so far he is the most national by his themes of any of the American writers. What he gave was the scene of the new world, both in the forest and by the fires of the Revolution and on the swift and daring American ships; but it was especially by his power to give the sense of the primitive wilderness and the ocean weather, and adventure there, that he won success. In France, where he was popular, this came as an echo out of the real world of the west to the dream of nature that had lately grown up in French literature; and, besides, of all the springs of interest native to men in every land adventure in the wild is, perhaps, the easiest to touch, the quickest and most inflaming to respond. Cooper stood for a true element in American experience and conditions, for the romance in the mere presence of primeval things of nature newly found by man and opening to his coming; this was an imaginative moment, and Cooper seized it by his imagination. He especially did so in the Indian elements of his tale, and gave permanent ideality to the Indian type. The trait of loftiness which he thus incorporated belongs with the impression of the virgin forest and prairie, the breadth, the silence and the music of universal nature. The distinction of his work is to open so great a scene worthily, to give it human dignity in rough and primitive characters seen in the simplicity of their being, and to fill it with peril, resourcefulness and hardihood. It is the only brave picture of life in the broad from an American pen. Scott, in inventing the romantic treatment of history in fiction, was the leader of the historical novel; but Cooper, except in so far as he employed the form, was not in a true sense an imitator of Scott; he did not create, nor think, nor feel, in Scott's way, and he came far short of the deep human power of Scott's genius. He was not great in character; but he was great in adventure, manly spirit and the atmosphere of the natural world, an Odysseyan writer, who caught the moment of the American planting in vivid and characteristic traits.

Bryant.

This same spirit, but limited to nature in her most elemental forms and having the simplest generic relations to human life, characterizes Bryant. He, too, had slender academic training, and came from the same social origins as Irving and Cooper; but, owing to his extraordinary boyish precocity, the family influences upon him and the kind of home he was bred in are more clearly seen. He framed his art in his boyhood on the model of 18th-century verse, and though he felt the liberalizing influences of Wordsworth later there always remained in his verse a sense of form that suggests a severer school than that of his English contemporaries. He lived the life of a journalist and public man in New York, but the poet in him was a man apart and he jealously guarded his talent in seclusion. Though he was at times abroad, he resembled Cooper in being unaffected by foreign residence; he remained home-bred. He wrote a considerable quantity of verse; but it is by a quality in it rather than by its contents that his poetry is recalled, and this quality exists most highly in the few pieces that are well known. To no verse is the phrase "native wood-notes wild" more properly applied. His poetry gives this deep impression of privacy; high, clear, brief in voice, and yet, as it were, as of something hidden in the sky or grove or brook, or as if the rock spoke, it is nature in her haunts; it is the voice of the peak, the forests, the cataracts, the smile of the blue gentian, the distant rosy flight of the water-fowl,--with no human element less simple than piety, death or the secular changes of time. It is, too, an expression of something so purely American that it seems that it must be as uncomprehended by one not familiar with the scene as the beauty of Greece or Italian glows; it is poetry locked in its own land. This presence of the pure, the pristine, the virginal in the verse, this luminousness, spaciousness, serenity in the land, this immemorialness of natural things, is the body and spirit of the true wild, such as Bryant's eyes had seen it and as it had possessed his soul. In no other American poet is there this nearness to original awe in the presence of nature; nowhere is nature so slightly humanized, so cosmically felt, and yet poetized. Poetry of this sort must be small in amount; a few hundred lines contain it all; but they alone shrine the original grandeur, not so much of the American landscape, as of wild nature when first felt in the primitive American world.

American romanticism thus began with these three writers, who gave it characterization after all by only a few simple traits. There was in it no profound passion nor philosophy nor revolt; especially there was no morbidness. It was sprung from a new soil. The breath of the early American world was in Bryant's poetry; he had freed from the landscape a Druidical nature-worship of singular purity, simple and grand, unbound by any conventional formulas of thought or feeling but deeply spiritual. The new life of the land filled the scene of Cooper; prairie, forest and sea, Indians, backwoodsmen and sailors, the human struggle of all kinds, gave it diversity and detail; but its life was the American spirit, the epic action of a people taking primitive possession, battling with its various foes, making its world. Irving, more brooding and reminiscent, gave legend to the landscape, transformed rudeness with humour and brought elements of picturesqueness into play; and in him, in whom the new race was more mature, was first shown that nostalgia for the past, which is everywhere a romantic trait but was peculiarly strong under American conditions. He was consequently more free in imagination than the others, and first dealt with other than American subjects, emancipating literature from provinciality of theme, while the modes of his romantic treatment, the way he felt about his subjects, still owed much to his American birth. In all this literature by the three writers there was little complexity, and there was no strangeness in their personalities. Irving was more genially human, Cooper more vitally intense; Bryant was the more careful artist in the severe limits of his art, which was simple and plain. Simplicity and plainness characterize all three; they were, in truth, simple American gentlemen, of the breeding and tastes that a plain democracy produced as its best, who, giving themselves to literature for a career, developed a native romanticism, which, however obvious and uncomplicated with philosophy, passion or moods, represented the first stage of American life with freshness of power, an element of ideal loftiness and much literary charm.

General progress.