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Cooper's Monikins : Contracts, Construction, and Chaos1

Scott Michaelsen
(SUNY Buffalo)

Presented at the 8th Cooper Seminar, James Fenimore Cooper: His Country and His Art at the State University of New York College at Oneonta, July, 1991

[may be downloaded and reproduced for personal or instructional use, or by libraries]

Originally published in James Fenimore Cooper: His Country and His Art (No. 8), Papers from the 1991 Conference, State University of New York College -- Oneonta and Cooperstown. George A. Test, editor. (pp. 93-106)

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That angel form, in light enshrined,
     Beside the living throne,
Is Justice, still to heaven confined--
     For God is just alone.
This Angel, of celestial birth,
Her faint resemblance here on earth
     Has sent, mankind to guide--
Yet, though obscured her brightest beams
     Still with too vivid ray she gleams
     For mortals to abide.
--John Quincy Adams, "Justice. An Ode"

Our constitutions are yet green, said the politician. Inflexions are easy. It is construction makes the constitution; and these vary with the men in power.
--H. H. Brackenridge, Modern Chivalry, Pt. II, Vol. II (1805)

When President Bush nominated Clarence Thomas for the U.S. Supreme Court on July 1, 1991, he said that he asked himself the following question before selecting Thomas: "Would he faithfully interpret the Constitution, and avoid the tendency to legislate from the bench?" Similar to the rhetoric used when nominating his last Supreme Court appointee, David H. Souter, such words resonate with more than two hundred years' debate on constitutional construction, or interpretation.2 The terms of the debate may have changed -- today experts speak of "originalist" versus "expansionist" interpretation, or "strict construction" versus "liberal construction" -- but the structure of the argument is intact.

Divisive political and philosophical issues of construction are at the heart of James Fenimore Cooper's The Monikins (1835), a novel that surely ranks as Cooper's most under-appreciated work. The text undoubtedly presents a number of problems for the reader. As the period's most complex John Bull/Brother Jonathan scenario, The Monikins involves an American (Cooper) speaking for a wealthy Englishman (Sir John Goldencalf) who joins with an American sailor (Captain Noah Poke) to visit England and America in allegorical disguise -- the monkey lands of "Leaphigh" and "Leaplow" (see Appendix for summary of the narrative).

{94} The book is highly unreadable in a conventional sense, testing a reader's limits with the tenacity of an Andy Warhol film. Chapter 10, for example, is entirely taken up with Goldencalf, Poke, and the "monikins" of Leaphigh developing "protocols" for inter-species discussion. Ten points for discussion are drafted three times, and the results critiqued. Chapters 20 and 21 (Captain Poke's trial) are given over completely to attorneys' arguments concerning the meanings of laws and judicial decisions, and the significance of the word "forthwith" is debated. Chapter 36 witnesses two lengthy debates on legislation and treaties: for many pages the characters argue whether the color "black" is "black," "white," or "lead-colored."

These sections have been called dull and perverse by a number of Cooper scholars; indeed, they are absolutely exasperating chapters, but hardly inept. They are satire of a type that enacts certain problematics of interpretation in order to criticize the very canons of interpretation. Most of the major conversations in the book bear on questions of contractual construction -- specifically, the interpretation of wills, business agreements, protocols, declarations of independence, marriage contracts, laws, (dematerialized) promissory notes, affidavits, treaties, and charters, all presented in the text for the reader's inspection. The theme of the book is contractual obligation and its relationship to the social order, and The Monikins, perhaps more than any of Cooper's fictional works, reflects what Eric Sundquist has called Cooper's "anxious concern with legal or documentary modes of performance" (9). In the end, it is this thematic focus on the contract and its interpretation that justifies the book's approach. The most perverse parts of the book will prove the most interesting in this regard. Again following Sundquist, Cooper's "seemingly stilted fictional maneuvers" and stylistic excesses cannot be divorced from the problem of contractual performance.


It is no exaggeration to say that the post-revolutionary and Jacksonian eras in general were overrun by complex issues concerning the status of contracts and contractual interpretation. Private contracts, treaties, the common law, the United States Constitution: each of these acknowledged forms of contract were developing separate canons of construction during the era, as evidenced in such works as Nathan Dane's A General Abridgment and Digest of American Law (1824), James Kent's Commentaries on American Law (1826-30), and Joseph Story's series of commentaries, including the Commentaries on the Constitution of the United States (1833), as well as tracts such as John Taylor's Construction Construed, and Constitution Vindicated (1820) and Gulian C. Verplanck's An Essay on he Doctrine of Contracts (1826).3 It was, in part, a matter of setting rules for reading, although the stakes of the debate itself were highly overdetermined along axes such as commercial versus agrarian capitalism, and federal versus state power (Newmyer 18-89). Not surprisingly, and perhaps inevitably, the philosophical debate was always contaminated by the era's Democrat and Whig politics. The Whig rhetoric of the period pitted "growth" and "action" against "stagnation," while the Democratic rhetoric saw the struggle as one between private and public interests.

{95} With reference to Constitutional interpretation, on the one hand there are conservative scholar Story's highly influential rules for interpretation -- thirty pages which read as a kind of hymn to expansionist construction. He said that new constructions are things of great value to the nation, and talked about honoring those who ferret out constructions "in proportion to the uniformity and universality of that construction, and the known ability and talents of those, by whom it was given...." (Story 137).4 On the other hand, there is Jacksonian David Henshaw, who attacked the Marshall Court's version of construction in his pamphlet, Remarks Upon the Rights and Powers of Corporations, and of the Rights, Powers, and Duties of the Legislature Toward Them (1837). Henshaw accused Supreme Court Chief Justice John Marshall of destroying the principle of construction.5 He argued that "what was granted in the Constitution was meant to be a well-defined grant," and that the Constitution was not supposed to be enlarged as future circumstance dictated. The result of Marshall's meddling (and Story's, too), was to make the Constitution "a plastic mess in the hands of the Supreme Court to mean anything or nothing," Henshaw saw this sort of reasoning as a "vortex" that would engulf "every other transaction of civil society" (172).

Henshaw and Story represented the antipodes of the interpretive continuum in Jacksonian America -- roughly, Democratic and Whig. Complicating much of this was that, for jurors, the rules of construction also depended upon the very nature of contracts in general. Had contracts, as Dane suggested, "commenced with human society?" Had "the obligation of contracts...been felt in Adam's time?" (I:87). Or, on the other hand, were contracts "not anterior to society but the creations of government" (White 655)? In other words, were contracts part of natural law or civil law? The answer to this question always at least implicitly affected the way one read, and therefore enforced, a contract.

All of these issues, and nearly all sides of the debate, were exposed in a single Supreme Court case of 1827, Ogden v. Saunders.6 Five separate opinions were written, and a who's who of lawyers argued the case, including Henry Clay and Daniel Webster. It is also the first of the famed contract clause cases which Marshall lost -- a sign of great sea change within the court. Ostensibly at stake was whether New York State's bankruptcy law violated the Constitution's contract clause, but the case erupted into a complex debate over the fate of philosophies of natural law, and the justices were forced to take positions on construction controversies that were frankly self-contradictory.

Perhaps most remarkable were some of the arguments against natural law as a force controlling and regulating private contracts between two parties. Justice Bushrod Washington's lead majority opinion, which supported the constitutionality of the debtor laws, said this about natural law:

This law is to be taken in strict subordination to the municipal laws of the land where the contract is made, or is to be executed.... The former is the common law of all civilized nations, and each of them; the latter {96} is the peculiar law of each and is paramount to the former whenever they come in collision with each other. (0gden 259)

This is an extraordinary, pathbreaking moment in the Court's gradually conceiving of all forms of obligation as products of positive law rather than natural law, and subject to State regulation, and of conceiving obligation itself as "superior external force" rather than part of the eternal verities, as Justice Robert Trimble's affirming opinion seemed to hint (325).

On the other side of the case, on behalf of the defendant and opposed to state debtor laws which potentially altered the original terms of private contracts were a number of "desert island" arguments. Webster, for example, asked:

Suppose a contract to be made between two persons cast ashore on an uninhabited territory, or in a place over which no law of society extends. There are such places, and contracts have been made there by individuals casually there, and these contracts have been enforced in Courts of law in civilized communities. Whence do such contracts derive their obligation, if not from universal law?7 (Ogden 241)

Marshall and his allies, Gabriel Duvall and Joseph Story, followed this line in their dissent, saying that "individuals do not derive from government their right to contract, but bring that right with them into society" (346).

So far, so good, but this paradox emerged: while attorneys for the plaintiff as well as the Court's majority argued that all private contracts were infinitely modifiable by force of law, they also argued for strict, originalist interpretation of the contract known as the U.S. Constitution, often buttressing their arguments with materials from the Federalist or from the records of the Constitutional Convention or State debates. Conversely, attorneys for the defendant and the Court's minority believed that the wording of private contracts was inviolable, unalterable, while the Constitution was fair game for all versions of expansionist interpretation. To reiterate, it would appear that, for the Whigs, the sacredness of the contracting parties' intentions was important for private contracts, but not so much with reference to the Constitution, and for the Democrats, the sacredness of the Constitutional Convention's intentions was much more important than that of partners in business, debtors and creditors.

Another affirming Justice, Smith Thompson, pointed a way out of the dilemma, but it was potentially fraught with peril. In his view, a contract such as that between Ogden and Saunders was always "construed, governed, and controlled by such [civil] laws"; "there can be no natural right growing out of the relation of debtor and creditor" (297, 309). But at the same time, his version of constitutional interpretation was breathtakingly pragmatic, and he thereby broke with his fellow Justices:

{97} If the letter of the constitution does not imperiously demand a construction which denies to the States the power of passing insolvent laws like the one in question, policy and expediency require a contrary construction. Although there may be some diversity of opinion as to the policy of establishing a general bankrupt system in the United States, yet it is generally admitted that such laws are useful, if not absolutely necessary, in a commercial community. (emphasis added) (310)

Thompson's thoughts on both private contractual and constitutional interpretation are consistent, but only at the price of radicality. In the language of Henshaw, this creates a "nothing" of a Constitution. In the words of Jefferson, such a practice will "make it a blank paper by construction" (quoted in Meese 29). In the language of The Monikins, the Constitution will be transformed into "the Great and Sacred National Allegory," something to which one refers figuratively, yet no longer a real referent (259).


The Monikins was nothing less than an attempt to recontextualize the large fact that is the U.S. Constitution, as well as positive law in general, within a group of increasingly ideal, seemingly natural constructs, such as the good-faith language accord (Chapter 10), foreshadowed in the word "monikin" ("moniker" as the problem of naming); the compact of friendship (Chapter 7); the wedding contract, premised on love rather than inheritance (Chapters 13 and 30); the fair-dealing monetary contract (Chapter 12), again foreshadowed in the title ("money"-kin as the problem of capital); wills (and thereby right to property). In The Monikins the contract is the paradigm for all human relations. It is the organizational form that institutionalizes supposedly natural vested rights.

The fictionalized "Introduction" to the book begins with Cooper in a state of solitude, hiking in the Alps at the edge of an abyss overlooking the Lake of the Dead. A group of travellers is preparing to cross a narrow pass from the other side of the abyss. As the first traveller, a woman, slips, Cooper springs forward and saves her. Her husband exclaims:

"You have more than saved my life -- you have probably saved my reason -- will you pardon a question? Can money serve you?"
I smiled and told him, odd as it might appear to him, that though an American, I was a fine gentleman. He appeared embarrassed, and his fine face worked until I began to pity him, for it was evident he wished to show me, in some way, how much he felt he was my debtor, and yet he did not know exactly what to propose. (2)

{98} A number of important symbolic events are occurring at the same time. Most importantly, Cooper and Goldencalf (for it is he) shake hands and thereby engage in a primitive form of obligation -- Daniel Webster's desert island agreement or contract. By Cooper's act, Goldencalf is in Cooper's debt. Goldencalf mistakenly offers him money, which Cooper correctly refuses. It is soon after this meeting that the "Author of the Spy" receives from Goldencalf the monikin manuscript, with the request to publish it in America. It seems like a strange way to pay a debt, but Goldencalf says that, "The world must know the truth, and I see no better means than by resorting to your agency" (3). Goldencalf repays his debt with truth itself.

This natural law contract between gentlemen, a legitimately sacred agreement, serves as a guiding thread for all of the contracts that follow. In fact, the rest of the text is organized like Dante's Inferno, so that the reader moves progressively from "higher" to "lower' forms of contract -- from a natural contract set within the "sublimity" of the Alps to the ironically Sacred Allegory established down in Leaplow. From near-heaven (a contract with God as a third-party guarantor, as in Rousseau's formulation), to the deepest pit of hell, when the reduction of the Constitution to Allegory brings on the "Great Moral Eclipse," the reader proceeds through a genealogy of contracts. Between certain order and certain chaos lie all of the other forms of contractual obligation. As one moves down the scale, the distance from the original contract grows greater. At each level more powerful methods of interpretation will need to be brought to the contractual text in order to keep it in line with "primitive" obligation.

A short distance from the first contract is the bond between Goldencalf and Poke. Goldencalf says:

I propose that we introduce ourselves to each other at once and swear an eternal friendship, or, at least, until we may find it convenient to dispense with the obligation. (63)

Poke responds, "Being used to meet with squalls...I shall accept your offer under the last condition named." Rather than being offended, Goldencalf is encouraged by Poke's answer. He says to himself: "I liked the stranger's caution. It denoted a proper character and a proof of responsibility." Different from the gentleman's agreement, Goldencalf and Poke nevertheless have carefully and simply thematized their bond of friendship.

Descending, one reaches the negotiation of the protocols with the monikins, the first of the truly "perverse" sections in the book. As the chapter opens, the monikin Dr. Reasono determines that diplomatic negotiations must be carried out prior to any inter-species conversation. In Poke's words, "human natur' and monkey natur' were not the same" (89). The "contracting parties" (91) draw up three different agreements, which appear to be increasingly less rational. The first agreement carefully provides in Article 10 that "any doubtful significations in this protocol shall be interpreted, as {99} near as may be, in favor of both parties" (91), which is a potentially legitimate rule of construction. The third agreement, on the other hand, is an immense tautology:

There shall be an amicable, logical, philosophical, ethical, liberal, general, and controversial interview.
The interview shall be amicable.
The interview shall be general....
The interview shall be controversial, liberal, philosophical, ethical, logical, general, and amicable.
The interview shall be as particularly agreed upon. (97-98)

The document is accepted, but before the interview has gone very far, Goldencalf raises a question of construction, and Lord Chatterino, another monikin, begins an analysis that threatens the conversation:

The doctrine of constructions enjoining that instruments are to be construed, like wills, by their general, and not by their especial tendencies, it would be dangerous to the objects of the interview to allow the application to be granted. (102)

Chatterino's construction from the "general" tendencies of a document rather than its actual language is specially enjoined in Cooper's writings on the topic of construction, and, indeed, is a practice of which Marshall was particularly fond (Lennertz 181). Cooper suggests not only that the approach is specious but that the drafting of the protocols themselves was a waste of time; the communication crisis finally is averted by "an act of courtesy" on the part of the monikins. Common courtesy, not documents and constructions, guides a conversation between the two gentlemanly groups. The contract constituted by communicative language is as close to the natural law contract as is the bond of friendship. For Cooper, the nightmare of "shrewd" and "ingenious" negotiations evaporates as soon as one recognizes and respects one's other. Not only was Chapter 10 "perverse" and "dull"; its action was unnecessary.

So far, the reader has witnessed contracts in close enough proximity to the Alpian contract that actual documents have not been needed, much less interpretive canons. Formal laws, however, pose real challenges. The method for interpretation and contextualization of the Leaphigh common law (i.e., the customary law of England handed down in judicial decisions rather than statutes) is damned by Cooper. A typical Leaphigh lawyer "commenced his argument by a vigorous and lucid sketch of the condition of the world previously to the subdivisions of its different inhabitants into nations...." {100} in a satire of Blackstone's introductory lectures (207). Cooper says that Leaphighers view their ancient law as mythical, rather than as positive and factual. The disastrous result is a series of constructions or extrapolations from myth: tradition holds that the King of Leaphigh can do no wrong, therefore he need not have a conscience, therefore he need not have a memory, therefore, from a legal point of view, the King must be presumed to have no memory (208-13).

Cooper is drawing a fine but definite line. The law is a fact, he says, that must be contextualized according to ideal obligations and responsibilities -- the Alpian contract -- and not according to the historical myths that grow on it Like barnacles on a ship. As John P. McWilliams has noted, "Cooper's primary standard of political justice is the proximity of the civil to the divine law...." (22).8 Leaphigh, however, appears irretrievably removed from such proper procedures. For page after page the reader hears the sound of the wind whistling through the ruins of Leaphigh's legal institutions. "Everything is a matter of routine and propriety" (193), resulting in the destabilization of sacred agreements in Leaphigh. Marriage has become a hypocritical institution (199), and the four monikins whom Goldencalf saved quickly forget their obligations to him (156, 170).

Worse is yet to come in Leaplow. Goldencalf becomes a legislator in this relatively new country with the hope that he will find the "Legion" (the U.S. Senate) "regulating error by apt and unanswerable quotations from that great charter which is based an the eternal and immutable principles of right" (240). In Leaplow he also meets Brigadier Downright, an interlocutor who most clearly speaks with Cooper's voice. (Downright is the monikin doomed to be served up as a main course to Goldencalf, which says something about the way Cooper saw his position in the culture.) The Brigadier argues that governments and their laws are always facts, or positive rules that establish rights and limitations (245). The greatest need in Leaplow, according to Downright, is to come to terms with the factuality of the government (256-7), to the practical manner in which the Allegory has been made to function during the first years of the Republic.9 Unfortunately, Goldencalf does not listen exclusively to the forthright Downright. As he begins his terms in office, Goldencalf believes that he has been elected to:

Act practically, according to the literality of the legal, implied, figurative, allegorical significations of the Great National Compact, under a legitimate construction. (264-5)

As if Confusion had not sufficiently made his masterpiece, the Legion is already concocting new constructive strategies. Captain Poke, also elected to office, perfectly expresses the hopes of the members of the house when he argues that the "silence" of the general public on the issue of the color "black" should be "construed" as "an expression of contempt for words in general" (269). Poke not only constructs from silence, in what may be a parody of John Marshall's decision in the Dartmouth College case and others, but, by doubting the validity of words, denies entirely the value of the Allegory. Because "words were so many false lights to mislead," having no {101} "just value," any law might be passed (270). At the moment that the Leaplow Legion turns its constitution into a blank, it will call for "Order!" in the name of chaos (271).10

The country begins, quite literally, to disappear, to roll up on itself like the heavens in Revelations (6:14). The Great Moral Eclipse takes away the light, making it impossible to square construction with the natural law contract made high on the mountain. A "great conciseness in language" results as well (285). "Half of the vernacular of the country appeared to be compressed into the single word 'dollar'" (282). The final political discussion between Goldencalf and Brigadier Downright degenerates into silence (299). Finally, Goldencalf and Poke eat the Brigadier, and try to choke each other to death (302-03).

The nonsensical constructions that take up the whole of Chapter 26 do not constitute a community-building conversation but rather a new Tower of Babel. The house of representatives has become the house radically divided. The senatorial "Legion" is now understood in the Biblical sense, as when the man possessed by the devil tells Jesus, "My name is Legion: for we are many" (Mark 5:9). The eclipse presages an annihilation that may no longer be preventable.


In Cooper's letters to the New York Evening Post in the mid-1830's, as the infamous "A.B.C." correspondent, he wrote extensively about construction issues with reference to the Bank War and the enforcement of the 1831 French reparations treaty. He said that Whig forms of construction erased the constitution altogether, substituting pure constructibility (Letters III: 83). This is the path to the blank page, the nothing. But that does not mean that he was on the side of the Democrats. Even a David Henshaw implicitly believed that the founding fathers used the Constitution to open up a field for necessary, future interpretations, whereas Cooper saw the founders' intentions as basically manifest in 1787, needing only further implementation. And Cooper would have rejected any of the levelling tendencies of the Democrats.11

Cooper's notions set him just to one side of the controversies of his day. In Ogden v. Saunders, there was no voice representing Cooper's concept of natural law united with the strictest possible construction, even though such a belief system does have the merit of self-consistency, and therefore evidences theoretical integrity.

Beyond that, there are ways in which Cooper's view was inadequate to the task of forming a nation in the 1830's. For example, a great deal of Cooper's narrative debates the merits of a "social-stakes" system of politics. ("Social-stakes," according to Brigadier Downright's colloquial definition, is the view that "the goods of the world ought to be the test of political power" [298].) In these discussions and the plot developments that follow, Cooper tried to deny the possibility of change altogether, foreclosing a future different from the deep past. There are three different versions of a {102} "social-stakes" system in the text: the elder Goldencalf's version involves stockjobbing -- buying and selling public funds, or what he called "investing" in the "body corporate, the public" -- in a way that destabilizes settled property rights (12-13, 28). The second version belongs to the younger Goldencalf, after he rejects his father's life ways as corrupt. He makes a number of investments abroad in order to develop "sympathy" for the "welfares" of peoples around the world (57): he buys slaves, plantations in the West Indies, East India, and Louisiana, a cotton manufactory, and stock in Spanish and New York commercial houses, and takes a great interest in the development of these concerns. In sum, Goldencalf becomes an up-to-date colonialist businessman.

The third version belongs to the pious minister, Dr. Etherington, father of Goldencalf's beloved. He suggests at the end of the text that Goldencalf should look closer to home, using his money to become a significant landowner, and that Goldencalf then parlay such ownership into political participation. He also recommends that Goldencalf examine the past, society's "great-grandfathers," for inspiration that would qualify him for political responsibilities (307-8). Goldencalf agrees, and sells out his business interests. With Goldencalf's only real political interlocutor -- the Brigadier -- dead, or at least non-existent, the book's voice fades into that of a British lord, owner of a network of boroughs. This motion backwards out of a social-stakes system that is capitalist in form and into a kind of belated medievalism is perhaps the surest sign of the text's anxiety concerning the drives of modernity.

It is not surprising that such tendencies did not win over the readers of Cooper's day, but nevertheless The Monikins is a remarkable map of a conversation still ongoing, albeit somewhat changed in form. A recent article by University of Michigan Law professor Frederick Schauer, for example, shows that the boundaries of the debate are still comprehensible in Cooper's terms. Schauer suggests:

To construe its [the Constitution's) language too literally or too much like the language in a conventional statute would be both unrealistic and inconsistent with its deeper purposes. In some ways, the Constitution is a metaphor. (135)

That this rings and rhymes with Cooper's Great and Sacred National Allegory is, perhaps, a fair measure of his achievement.

Since The Monikins is so little read, a summary of the narrative may be helpful. Sir John Goldencalf is the purported author of the text. His surname, which evokes Exodus 32 and the worship of mammon, is taken from a butcher's signboard and given to his orphan father. Chapters 1-4 tell the story of their lives in England up to the time of the father's death. Chapters 5-6 relate Goldencalf's attempts to use his father's wealth, accumulated through "stockjobbing," to develop a "social stakes theory" of {103} politics: he purchases a borough, makes numerous overseas investments, and finds himself raised to the level of baronet. At the end of Chapter 6, Goldencalf experiences a kind of "madness" when he learns that his choice for a bride has rejected him in marriage on the grounds that she requires several years' freedom to explore, on her own, similar political ideas. In Chapter 7, the perhaps crazed Goldencalf and his new American friend Captain Noah Poke save four performing monkeys from the cruelties of their masters. The monkeys turn out to be "monikins" -- sentient beings from the South Pole who live in the land of Leaphigh (allegorical for England). Chapters 8-14 involve discussions with the monikins on a number of cosmological and scientific topics, and an eventual voyage to the South Pole, through two seemingly impenetrable walls of ice.
Chapters 15-22 are spent in Leaphigh, with Goldencalf and Poke engaged in adventures involving Leaphigh's political, religious, academic, and legal institutions. Poke violates the Leaphigh common law, and a monikin from Leaplow (America), Brigadier Downright, saves Poke from capital punishment by clever legal maneuvering. Chapters 23-26 take place in Leaplow, where Goldencalf, Poke, and the ship boy Bob are elected to the Legion (House of Representatives), and participate in the crafting of legislation. In Chapters 27 through 29, a "great moral eclipse" engulfs Leaplow, leaving everyone but Goldencalf and Downright overcome by the lure of money and self-interest. In Chapter 30, Goldencalf, at Poke's behest, eats Downright for dinner, stares at the Brigadier's severed head, and again seemingly goes mad. He awakes to find himself back in Europe, where Poke has been nursing him. The woman of his dreams, Anna, is waiting nearby. But did he or did he not travel to the South Pole? Finally, in Chapter 31, Goldencalf marries, sells his speculative investments and purchases three more English boroughs, and is raised to the House of Peers as "Viscount Householder." The book ends with fifty- two maxims or "inferences" that Goldencalf draws from his own story.


1. This is a lecture version of a longer article.

2. James Madison is the first American theorist of constitutional interpretation. He specifically thematized the problems of "theoretical uncertainty and honorable determination" in Federalist 37 (Epstein 111-25).

Two interpretations of the word "construction" open up the field of interpretive possibilities. Either the rules of construction constitute a hermeneutics, or theory of interpretation, founded on the idea of intentionality, or such rules "construe" a given text in the sense of heaping together, piling up, or building (OED), in which case the Constitution is a "foundation" for a "superstructure" that must be discovered ([Hamilton et al.] 226). The tension between these definitions is in evidence in a number of documents of the Jacksonian period.

3. Some of these items may not appear to be contracts per se. During the tenure of the Marshall Court the notion of a contract was expanded to include an extraordinary number of things. Nathan Dane's pathbreaking work opened with hundreds of pages on the different forms and significations of contracts. He began by saying, "a contract is nothing more than an agreement reduced to writing" (1:88). It perhaps goes without saying that business agreements were and are contractual in nature. But treaties, said Dane, "are contracts of the highest order" Since the time of Sir William Blackstone's Commentaries (1765-69), the common law was seen as a set of voluntary contractual obligations hidden deep in the mists of time (Blackstone 1:74). And constitutions, as Rousseau and his many predecessors had thematized, were also social contracts. The Marshall court itself "in...formative cases...held that a state grant of lands is a contract, a state grant of tax exemption or of tax preference is a contract, and a state grant of a corporate charter is a contract" (Levy 130).

4. See White 117-18 regarding the importance and significance of Story's rules for later jurists. Hurwitz has noted Story's proclivity for the "enlarged" in his decisions that use common law precedent (28).

5. Henshaw was directly attacking Marshall's decision in Dartmouth College v. Woodward (1819), although he was indirectly arguing against an entire line of Marshall Court contract cases stretching back to Fletcher v. Peck (1810). Other significant cases in this line include Gibbons v. Ogden (1824), Ogden v. Saunders (1827), a case which will be analyzed in this article, and Providence Bank v. Billings (1830). With great regularity, each Marshall decision bristled with new, complicated, and idiosyncratic rules for construction. Newmyer and White are particularly strong in describing the Marshall era contract decisions.

6. See Johnson for a solid, general introduction to the case.

7. Webster's remarks as officially reported by Wheaten.

8. I happily acknowledge my indebtedness to John McWilliams' first book on Cooper for a number of his foundational insights into Cooper's view of the law.

9. Construction theorists across the political spectrum, including Cooper and Story, agreed that the actual workings of the American government during its formative years should serve as powerful evidence for Constitutional interpreters. See, for example, Cooper, Democrat 108-9.

10. The problem of the validity of words was raised by Madison in Federalist 37. Complete disconnection between words and things was precluded, although Madison did not deny words' "unavoidable inaccuracy" (229).

11. The key example of Democratic constructive strategies is the case of Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, first argued during the Marshall era in 1831. It confronted the question: "should established property rights yield to prospective property rights?" (White 663). Justice Taney's 1837 opinion answered affirmatively, shocking may conservative observers by writing:

the rule of construction in all such cases, is now fully established to be this; that any ambiguity in the terms of the contract, must operate against the adventurers, and in favor of the public.... [W]e must not forget that the community also have rights, and that the happiness and well being of every citizen depend on their faithful presentation. (Proprietors 544, 548)

For more on the significance of this landmark case see Kutler, who calls Taney's strategy "creative destruction."


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