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Updated: October 3, 2025
True, there were brutal interludes when Home Secretaries lost their heads, or hysterical magistrates their sense of justice, or when the chivalrous constabulary of Westminster was replaced by Whitechapel police, dense to the courtesies of the situation; but even these tragedies were transfused by its humors, by the subtle duel of woman's wit and man's lumbering legalism.
He had contended with great force and brilliancy that Jackson, in declaring martial law, had not committed a contempt of court; that if Jackson had violated the Constitution in declaring martial law the matter was not one of contempt or for a local court to judge. "Do you see," said Aldington, "his mind runs in a channel of pure legalism, and then it escapes between freer shores."
Marshall established judicial review; he imparted to an ancient legal tradition a new significance; he made his Court one of the great political forces of the country; he founded American Constitutional Law; he formulated, more tellingly than any one else and for a people whose thought was permeated with legalism, the principles on which the integrity and ordered growth of their Nation have depended.
The judges who rendered this decision were well-meaning men. They knew nothing whatever of tenement-house conditions; they knew nothing whatever of the needs, or of the life and labor, of three-fourths of their fellow-citizens in great cities. They knew legalism, but not life.
The evil heritage of the sixteenth century is still heavy upon us, and this heritage is one of jealousy and hate, not of charity and toleration. It is an heritage of legalism and technicalities, of self-will and individualism, of shibboleths that have become a dead letter, of prejudices that are fostered on distorted history and the propaganda of the self-seeking and the vain.
We have too much legalism in our social structure and not near enough of the humanism that the socially minded mother can bring. Is the increasing incidence of divorce a revolt against domesticity? To some extent yes, but where women obtain the divorce it is mainly a refusal to tolerate unfaithfulness, desertion, incompatibility of temperament.
But this view, though it had a strong hold on very noble minds, was at bottom a legalism out of touch with reality. It may be doubted whether any man felt it in his bones as men feel a genuine national sentiment. On the other hand American national sentiment was a reality. It had been baptized in blood.
In its extreme form legalism tends to bring about that ruin of human nature which it starts by postulating; for, by forbidding Man's higher faculties to energise, it necessarily arrests their development, and so makes it possible for the lower faculties to draw to themselves an undue share of the rising sap of Man's life.
This reductio ad absurdum of legalism is exactly paralleled, in many of our elementary schools, in the answers to arithmetical questions given by the children.
The whole structure of legalism would collapse if men were allowed to absolve themselves from obedience to the letter of the Law, out of regard for what they conceived to be its spirit. To interpret a commandment, in the sense of providing for its application to the fresh cases that may arise for treatment, is the work, not of poets and prophets but of Doctors and Scribes.
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