Sunday, November 18, 2012

How Americans Viewed the Common Law

Taken from Trevor Colbourn's The Lamp of Experience, 1965; reprinted by Liberty Fund.

The American approach to medieval history, to the Goths, or, more popularly, to the Saxon chapter of their history, derived partly from this classical orientation, partly from colonial interest in common law in Saxon times. In a new country, land titles were frequently in question, leading, as David Ramsay observed, to an “infinity of disputes.” By the mid-eighteenth century, the profession of law was “common and fashionable.”15 To study law was to study its history. Sir John Vaughan’s Reports reminded colonial lawyers of the connection of law and history insofar as “much of the Saxon law is incorporated into our Common Law.” The virtues of both were duly digested by John Adams: “the liberty, the unalienable and indefeasible rights of man, the honor and dignity of human nature … and the universal happiness of individuals, were never so skillfully and successfully consulted as in that most excellent monument of human art, the Common Law of England.” In these words Adams echoed the awe and reverence of his generation toward an antique golden age of English history. Blackstone urged lawyers to investigate the “fountains” of their profession, “the customs of Britons and Germans, as recorded by Caesar and Tacitus,” wherein lay the common law as developed from the “northern nations.”16

Tacitus’s Germania enjoyed a remarkable vogue in the eighteenth century. John Adams read Tacitus frequently. Jefferson would enthusiastically tell any inquiring student to look to Tacitus as “the first writer in the world without a single exception”; his works were “a compound of history and morality of which we have no other example.”17 Tacitus was a convenient authority on many subjects—on Rome herself as well as on the Saxon tribes which emigrated from Germany to England. American admirers were not even obliged to strain their command of Latin, for they could enjoy the pleasures of Thomas Gordon’s new English translation, which came complete with moral discourses. Tacitus, Gordon explained, was “an upright Patriot, zealous for public liberty and the welfare of his Country,” a “declared enemy to Tyrants,” a historian “of extraordinary wisdom,” whose work demonstrated that “no free people will ever submit to … [tyranny] unless it steal upon them by treachery.” It was not surprising that Gordon’s new translation was on the first order list of the Library Company of Philadelphia.18

History in the Germania certainly stirred the blood of readers interested in ancient virtue. Fascinated by the virtues of the splendid Germans, Tacitus wrote at length of their purity, their independence, their democratic inclinations. True, the form of German government was monarchical, but it was an elective kingship, constrained by assemblies of the tribes. Royal authority was neither unbounded nor arbitrary, and the German kings secured obedience by the justice of their rule and the example of their behavior. Their people lived a simple, happy life, “in a state of chastity well secured, corrupted by no seducing shows and public diversions, by no irritations from banqueting.” Their private life would be acceptable to the most rigid puritan. The ancient Germans, Tacitus claimed, were “almost the only Barbarians contented with one wife.”19 It became hard to resist the frequently offered conclusion that a corrupted and depraved Roman Empire had little chance of surviving the onslaught of Germanic virtue.

Of contemporary writers on Germanic history the most popular in the colonies was a Frenchman, Paul de Rapin-Thoyras, “a Man of Learning and industry; Honesty and Candour.”20 His History of England depicted the English as direct descendants of Tacitus’s noble Germans. The fate and influence of these descendants he followed from the time they crossed the Channel to Britain until he concluded his account of English development with the eighteenth century. Rapin not only popularized Tacitus but at the same time also provided a bridge over which Americans could travel from ancient to medieval history. To an impressive roster of American admirers, Rapin in the translation by Tindal was as accessible as Gordon’s Tacitus. Although crusty John Adams questioned Rapin’s impartiality, he respected him; and John Dickinson referred to the History continually, in nearly every one of his publications.21

Rapin accepted the Germania as a basic source. He argued that the Anglo-Saxons, who were the very Germans celebrated by Tacitus, continued upon arrival in England their virtuous customs of government, banding together “to assist one another, and act in common for the good of All.” They set up a central government with an elected king and witenagemot or parliament, “where the Concerns of the whole nation only were consider’d.” Under Alfred, greatest of the Saxon monarchs, “all Persons accused of any Crime were to be tried by their Peers.” “This Privilege,” he added, “which the English have preserved to this day, is one of the greatest a Nation can enjoy.” His readers were reminded that Alfred was responsible only for securing a custom “established by the Saxons Time out of Mind.” Rapin, it might be added, was not an unreserved admirer of the Saxons. While ready to concede the virtues they brought from Germany, he noted that the Saxons also brought over their “reigning Vice,” an addiction to strong liquor.22

Rapin’s description was accepted by other historians contributing to the colonists’ portrait of their ancient ancestors. Thomas Lediard, translator of Mascou’s History of the Ancient Germans, justified his publication by proclaiming it The History of Our Great Ancestors. England’s laws, customs, and constitution were formed on the German model, according to Lediard, who issued Mascou’s work in 1737, the same decade Rapin’s appeared. A century earlier Richard Verstegan had written with the same ambition of showing what a renowned and honorable nation the Germans had been, “that thereby it may consequently appear how honourable it is for Englishmen to be from them descended.” Nathaniel Bacon, the Cromwellian lawyer, presented the same portrait of Saxons as a free people governed by laws made by themselves. Readers of Bacon’s Historical Discourse encountered a delightfully balanced and serene Saxon constitution: “a beautiful composure,” he called it, “mutually dependent in every part from the Crown to the clown, the Magistrates being all choice men, and the King the choicest of the chosen; election being the birth of esteem, and that of merit, this bred love and mutual trust.” In both the seventeenth and eighteenth centuries, significant political meaning lurked behind Bacon’s pious wish to know again “the happiness of our Fore-fathers the ancient Saxons.”23

There seemed general agreement on Saxon virtues in the histories Americans most often consulted. There was little need of filial piety to arrive at strong convictions on the reality of ancestral liberties. Even that cautious diplomat and statesman Sir William Temple praised the Saxon kings as “just, good, and pious Princes” who governed with such sense and moderation that “no popular Insurrection ever happened in any of the Saxon reigns.” David Hume, considered a tory historian because of his affection for the Stuarts, praised Britons and Saxons as lovers of liberty and fighters against despotism. Hume thought the Germans had carried “to the highest pitch the virtues of valor and love of liberty,” and it was inevitable that the Saxons “imported into this island [England] the same principles of independence which they inherited from their ancestors.” Like most writers Hume based his remarks on “the masterly pencil of Tacitus,” but unlike many such admirers he did not believe the Saxons especially democratic in political practices. He denied existence of a popular branch of the Saxon legislature and insisted that the House of Commons could not and should not seek its origins in Saxon times.24

Hume was an exception to the historical rule, and the colonial perspective was not changed by his doubts and reservations on the reality of Saxon democracy. His fellow Scot Lord Kames, the jurist and friend of Benjamin Franklin, endorsed the thesis of Saxon liberty. Kames in his popular British Antiquities portrayed a Saxon polity appealing to rural Americans: the Saxons, he asserted, were cultivators of corn, farmers whose economy allowed true social democracy; they elected their judges and gave security of tenure; their kings were men whose powers gradually developed, and originally the Saxon king was “no more than but the chief judge.”25 Kames contended that the Saxons migrating from Germany took only such customs and laws as suited their new English circumstances26 —an observation with point for Americans seeking parallels to their eighteenth-century circumstances.

Americans also liked the conclusions of Henry Care, whose English Liberties praised Saxon ancestors for the wisdom of their government, their “excellent Provisions for their Liberties,” and precautions against oppression. William Atwood, a seventeenth-century contemporary of Care and later Chief Justice of New York, renewed discussion of the elective nature of the Saxon king, whom he described as nothing more than a splendid general who maintained office and dignity by “hardy actions and tender Usage of his People.”27 George St. Amand, author of one of the many historical essays that flourished in the colonial bookmarket, reiterated this idea of an elective Saxon monarchy. Like Atwood, St. Amand used the Mirrour of Justices in contending for Saxon democracy. TheMirrour, considered an essential reference for the colonial lawyer’s bookshelf, professed to set forth the “ancient laws and usages” whereby Saxons governed themselves before the Conquest. First published in the sixteenth century, it claimed to be a commentary of early Saxon derivation.28 St. Amand inquired: “Why mayn’t we suppose the Book was a Translation of some Manual of the Saxon Laws, put into Norman French, with such additions as Horn [its editor, and a part-time fishmonger] thought proper, to accommodate it to the Usages of the Time he lived in?” Americans accepted the Mirrour as a contribution to Saxon history and agreed that the Mirrour’s pronouncements on Saxon government “ought to be received for Truth.”29

Obviously many historians who wrote about Saxon history found in it support for the political lessons they wished to demonstrate. Lord Somers was such a man. A Whig statesman who assisted in the arrangements for the offer to William and Mary in 1689, Somers believed people could change their rulers if they were tyrannical, and he was satisfied that history supported this belief. The many American purchasers of Somers’s Judgment of Whole Kingdoms (its twelfth and thirteenth editions were published in Newport and Philadelphia, respectively) at once knew the purpose of the book: to assure that “their Children’s children may know the Birth-right, Liberty, and Property belonging to an Englishman.” James Tyrrell, like Somers an associate of John Locke and an admirer of Saxon antiquity, felt that as a participant in the Glorious Revolution of 1688 he should contribute to justification of Parliament’s action against James II. After all, Tyrrell asked, had not the Saxon monarchs been obliged to seek the consent of their parliament to all legislation? Algernon Sidney was in the same situation. He was hardly a historian, but he was ready to praise the Saxons as lovers of liberty enjoying a government dominated by their witenagemot. Basing his remarks on that “wise author” Tacitus, he noted that Saxon “kings and princes had no other power than was conferred upon them by these assemblies.”30

As seventeenth-century writers found political satisfaction in this Saxon emphasis, so did writers in the eighteenth century. Among the most influential contributors to the Saxon myth,31 and from the colonial viewpoint among the most timely in publication, was the anonymous author of the Historical Essay on the English Constitution, whose work appeared in London and Dublin in 1771. The author’s identity has lately been a subject of some discussion—evidence points to a mysterious Obadiah Hulme—but American readers were content to accept the book for its content. They eagerly digested this summary of Saxon virtues, a veritable handbook on the historic rights of Englishmen. It rounded out the colonists’ picture of their Saxon ancestors. “Our Saxon forefathers,” according to Hulme, “founded their government upon the common rights of mankind. They made the elective power of the people the first principle of our constitution, and to protect it, they delegated power for no more than one year.” Hulme argued for annual Saxon parliaments, which he felt were the quintessence of the Saxon system along with an elective monarchy.32

After reading Hulme it was easier to agree with the conclusions of such men as Molesworth and Bolingbroke. According to Molesworth, one of the original Real Whigs, “all Europe was beholden to the Northern nations for introducing or restoring a constitution of government far excelling all others.” According to Bolingbroke, “the Principles of the Saxon Commonwealth were therefore very democratical.”33 The Saxon system epitomized freedom, a freedom consisting of “being subject to no Law but such to which the Person who is bound consents.” It was a system “agreeable to the Rules of Reason.”34 This view, expressed in England in the 1720s, became a basic Revolutionary doctrine in America in the 1760s.

One of the many charms of English history for its colonial readers was its occasional ability to furnish evidence of human happiness. They were attracted to the Saxon past because here they found an ancient political utopia; furthermore, one based on attractive economic arrangements. Tacitus wrote about Saxon land tenure as well as Saxon government; and colonial lawyers, concerned with quitrents, land titles, and rights of inheritance, were exposed to magnificently partisan accounts of the land system of their admirable ancestors.

Most of the historians popular in America described an agrarian Saxon society which was distinctly nonfeudal. Primogeniture was not practiced in ancient Germany; inheritance was “unto all their male children,” as Richard Verstegan phrased it in 1628. Migrating Saxons took this custom from Germany to England. The great seventeenth-century scholar and antiquary, Sir Henry Spelman, agreed that Saxon land tenure had been allodial in character, “according to the ancient manner of the Germans,” so that, owning their land outright, owners disposed of it as they desired, free of rents, encumbrances, or entails. He concluded that feudalism entered England with the Normans. After the Conquest of 1066, Duke William “divided all England among his soldiers,” so that “all things resounded with the feudal oppressions, which in the time of the Saxons had never been heard of.”35

American readers discovered that even when a writer considered feudalism desirable, he often conceded the nonfeudal nature of Saxon England. Spelman’s account may well have appeared more persuasive because he preferred the stability made possible by regulated feudalism—subsequent to the worst Norman excesses. This approach was somewhat similar to that later offered by David Hume. In Hume’s opinion Norman feudalism introduced into England “the rudiments of Science and cultivation,” and served as a corrective to the “rough and licentious manners” of the allodial practices of the Saxons. Hume praised feudalism for its system of primogeniture, but conceded that Norman feudalism was “destructive of the independence and security of the people.”36 Sir John Dalrymple, author of a popular eighteenth-century essay on Feudal Property, is another example of a writer who considered feudalism praiseworthy, but denied that the Saxons practiced it. Saxon land tenure, he claimed, was allodial, and descents were free. The Germanic invaders of Britain had found more land than they could use and therefore felt under no constraint to accept feudal restrictions. The Saxon nobility was “allodial, personal, and honorary,” and was presided over by a virtually elective monarch.37

[15.]Ramsay, History of the American Revolution, I, 43.

[16.]Edward Vaughan, ed., The Reports and Arguments of That Learned Judge, Sir John Vaughan … (London, 1706), 358; John Adams, “On Private Revenge,” Boston-Gazette, Sept. 5, 1763; William Blackstone, Commentaries on the Laws of England, 4th ed., 4 vols. (Oxford, 1770), I, 35–36.

[17.]John Adams to Jefferson, Feb. 3, 1812, Cappon, ed., Adams-Jefferson Letters, II, 295; Jefferson to Mrs. Anne Carey Bankhead, Dec. 8, 1808, Jefferson Papers, Massachusetts Historical Society.

[18.]Gordon, trans., Works of Tacitus, I, II; John Trenchard and Thomas Gordon, Cato’s Letters … , 4 vols. (London, 1748), I, 192. Note that Jefferson was so fond of Gordon’s translation that he had three sets collated with the Latin original, two going to the Library of Congress in 1815, and the other eventually reposing in the private library of the late Arthur Machen of Baltimore. Wolf, “First Books and Printed Catalogues of the Library Company,” Pennsylvania Magazine of History and Biography 78 (1954): 12.

[19.]Gordon, trans., Works of Tacitus, II, xxii, 325–33, 362.

[20.]Paul de Rapin-Thoyras, History of England, trans. Nicholas Tindal, 2d ed., 4 vols. in 5 (London, 1732–47); comment by Sir John Fortescue, De Laudibus Legum Angliae, trans. John Glanvil (London, 1741), xvii.

[21.]Boston-Gazette, Feb. 1, 1773.

[22.]Rapin, History of England, I, 148, 27, 46, 42, 160–61.

[23.]John Jacob Mascou, The History of the Ancient Germans … , trans. Thomas Lediard, 2 vols. (London, 1737–38), I, xiv, 57, 64; II, 228; Richard Verstegan, A Restitution of Decayed Intelligencies in Antiquities … (London, 1628), 42; Nathaniel Bacon, An Historical Discourse of the Uniformity of the Government of England … , 2 vols. (London, 1647–51), II, 301; I, 112. The publishing history of Bacon’s work is curious and reveals the Stuarts’ hostility to such political history: the Historical Discourse was reprinted secretly with a 1651 date in 1672, and again in 1682; the last edition was suppressed, and reissued after the abdication of James II in 1689.

[24.]Jonathan Swift, ed., The Works of Sir William Temple … , 2 vols. (London, 1750), II, 584; Hume, History of England, I, ii, 141–42, 145.

[25.]Henry Home, Lord Kames, Essays upon Several Subjects concerning British Antiquities … , 3d ed. (Edinburgh, 1763), 196.

[26.]Kames, Historical Law-Tracts, 2d ed. (Edinburgh, 1761), no. 1. Transcribed by Jefferson in Gilbert Chinard, ed., The Commonplace Book of Thomas Jefferson, A Repertory of His Ideas on Government (Baltimore, 1926), 99–103.

[27.]Henry Care, English Liberties: or, the Free-Born Subject’s Inheritance … (London, n.d. [1680?]), 95; issued in a fifth edition in Boston in 1721 and a sixth edition in Providence in 1774. William Atwood, The Fundamental Constitution of the English Government… (London, 1690), 37–39, 73.

[28.]See William Searle Holdsworth, A History of English Law, 12 vols. (London, 1903–38), II, 284–90.

[29.]George St. Amand, An Historical Essay on the Legislative Power of England. … (London, 1724), 94, 4–5.

[30.]John, Lord Somers, The Judgment of Whole Kingdoms and Nations … (London, 1710), 8, and title page; issued in Philadelphia in 1773 and Newport, R.I., in 1774. It was brief, to the point, and cheap at sixpence a copy; see also Robbins, Eighteenth-Century Commonwealthman, 78–80. James Tyrrell, Bibliotheca Politica … (London, 1689), 222; Algernon Sidney, Discourses Concerning Government, 2 vols. (Philadelphia, 1805), II, 239. Sidney remarked that the Saxons were “lovers of liberty,” who “understood the ways of defending it.” Ibid., 238.

[31.]For a discussion of the Saxon myth, see Appendix I.

[32.]Obadiah Hulme, An Historical Essay on the English Constitution (London, 1771), 7, 24, 31. Published anonymously and long ascribed to Allan Ramsay. Also issued in Dublin, 1771. For a discussion of the authorship, see Sowerby, ed., Catalogue of Jefferson’s Library, V, 205; and Caroline Robbins, “Letter to the Editor,” Pennsylvania Magazine of History and Biography 79 (1955): 378.

[33.]Robert Molesworth, An Account of Denmark as It Was in the Year 1692 (London, 1694), chap. 4, as transcribed by Jefferson, Commonplace Book, ed. Chinard, 212; Bolingbroke, Remarks on the History of England (London, 1747), 53.

[34.]George St. Amand, An Historical Essay on the Legislative Power of England (London, 1762), 148.

[35.]Verstegan, Decayed Intelligencies, 57; Gibson, ed., Works of Spelman, Pt. II, 5; see also Spelman, De Terminis Juridicis … (London, 1648), chap. 8, as transcribed by Jefferson, Commonplace Book, ed. Chinard, 186: “The feudal law was introduced into England at and shortly after the Conquest.”

[36.]Hume, History of England, I, 159–60, 162–63, 201.

[37.]Sir John Dalrymple, An Essay towards a General History of Feudal Property … (London, 1757), 18, 320, 336. See also, Jefferson, Commonplace Book, ed. Chinard, 149–50; and Pocock, The Ancient Constitution, 243–44.

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