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CHAPTER II

The Colonial Perspective: Ancient and Medieval

Truth is the eye of history.” Polybius said it, Jefferson read it in the two separate editions of Polybius he owned, and American readers studied it in four recent printings of Polybius’s General History.¹ Citizens of the greatest, the latest of empires, Americans opened Polybius for information about earlier empires—how they rose, how they flourished, how they fell. Polybius, the stiff, earnest moralist, so determined to find the truth, so beguiled with detail, with fact, with simple preachments of virtue, made an irresistible appeal to colonial readers. There was conviction in him, in his details, in his facts.

American readers knew that history was more than an idle tale for winter nights. Their history reading was purposeful, part of their quest for a usable past as a guide to the present and the future. “Before the establishment of the American states,” Jefferson wrote to John Adams in retrospect, “nothing was known to History but the Man of the Old World.”² This Man of the Old World was the predecessor of the American, the ancestor of the Man of the New; and his history, from ancient times on, should be enlightening for those who searched the past for present purposes.

Americans educated in the eighteenth century early acquired a familiarity with the classics, with civilizations and empires which had produced Greek and Latin literature. Classical allusions, metaphors, and similes peppered their writing and oratory; few were the events in the ancient past with which the American Revolutionary generation was unfamiliar. And yet, in spite of their early exposure to the originals—Virgil, Cicero, Tacitus in Latin, Thucydides in Greek—Americans usually preferred translations, popularizations, secondary surveys. For Jefferson, reading Latin and Greek authors in their original was a sublime luxury, but it was a luxury he managed frequently to resist, as the many uncut pages of his personal copies of the Latin and Greek classics bear witness.³

I

Shortcuts to the classics, printed in English, won universal popularity: Charles Rollin’s Ancient History, for example, was written “for those who do not intend to make very deep researches.” Rollin extracted from the Greek and Latin authorities material he judged “most useful and entertaining … most instructive.” This was all most colonial readers asked. Rollin wanted to reveal “by example rather than precept” the arts of war and peace, the principles of government, and the conduct of life “that suits all ages and conditions.” He hoped to assist men in knowing “the manners of different nations, their genius, laws and customs.”⁴

However, much of the colonial reading in ancient history was supplied not by ancient historians as such but by seventeenth- and eighteenth-century political writers searching for illumination on problems of their own day. For example, Edward Wortley Montagu, regarding himself as an “Old Whig” true to “Commonwealth Principles,” demonstrated in his Reflections on the Rise and Fall of Antient Republicks, which appeared in 1759, “The principal causes of the degeneracy of manners which reduc’d those once brave and free people [the Greeks and Romans] into the most abject slavery.” After all, explained Montagu, “as the British state and the ancient free Republicks were founded upon the same principles, and their policy and constitution nearly simlar, so, as like causes will ever produce like effects, it is impossible not to perceive an equal resemblance between this and our manners.” Montagu blamed the collapse of Athens on the luxury and immorality of the citizenry, along with their proclivity for “venal orators, who encouraged that corruption to maintain their influence.”⁵

A contemporary of Montagu, Walter Moyle, a political dabbler in antiquarian studies, furnished American readers with two essays on the Greek and Roman commonwealths. “I am,” he said, “on the side of liberty.” He traced the history of Sparta to show the value of government by consent to a free maritime people who declined to be tyrannized by a clerical faction. He used Roman history to show the political decay brought by luxury and by magistrates remaining too long in office.⁶ James Burgh, whose Britain’s Remembrancer went through three American editions between 1747 and 1759, also fastened upon corruption, vice, and luxury as the reasons for the collapse of empires. A luxurious people were disinclined to do their own fighting, and by hiring others to do it for them, they invited tyranny and military despotism. All great empires had sunk “under Luxury and Vice.” When ordinary citizens wasted their time and money “getting drunk, haunting of Bawdyhouses, seeing Plays, hearing Musick, etc.,” the fabric of the empire began to tear.⁷

These remarks certainly applied to Rome, in the opinion of Oliver Goldsmith, novelist turned historian. Rome had risen “by temperance and … fell by luxury.” Rome was a victim of her own success and victories. Conquest of Carthage was fatal, for Romans felt smugly safe and superior and entered into a decline “from their ancient modesty, plainness, and severity of life.” Romans grew accustomed to luxury; they allowed themselves to be bribed into oppression because they dreaded “more the dangers of poverty than of subjection.”⁸ The men who overcame Roman liberty were military leaders backed by mercenaries. Standing armies were fatal. “The militia of antient Rome made her mistress of the world.” But standing armies enslaved that great people, and their excellent militia and freedom perished together.⁹

Whig historians singled out Julius Caesar for particular attention. He was the military despot, the tyrant whose assassination was so laudable if politically futile. Although neither Cato nor Brutus accomplished much by their opposition to Caesar, both were classic heroes of freedom. Cato failed to die gloriously in battle, but in disemboweling himself (to save Caesar the trouble), he died “one of the most faultless characters we find in the Roman history.”¹⁰ Joseph Addison’s play, Cato, A Tragedy, achieved enduring popularity in the colonies. It was the play with which the first professional drama company opened in Philadelphia in 1749,¹¹ and it became especially popular after the Stamp Act crisis, appearing in four editions between 1767 and 1787. Cato supplied Lord Bolingbroke with a yardstick to estimate the threat of military despotism: after all, even the great Cato failed to save Roman liberty from the combination of a Caesar and a standing army.¹²

In the histories read by the colonists, Brutus had an acute sense of patriotism. “Love of his country broke all the ties of private friendship,” and his murder of Caesar was the destruction of “a tyrant who had usurped the rights of mankind.”¹³ Brutus was a historical justification for tyrannicide. His failure was his inability to persuade the corrupt Roman populace that their liberties needed immediate rescue. Against this background, Americans agreed with William Robertson’s conclusion that “the Roman empire must have sunk, though the Goths [had] never invaded it, because the Roman virtue was sunk.”¹⁴ Greece and Rome declined as they became rich, luxurious, corrupt, licentious; Rome gave way to the Goths because the Goths had retained their virtue—this was an agreeable explanation to American colonists, who, through their English and German forebears, claimed descent from the conquerors of Rome.

II

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. The Mirrour, 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

III

The consensus of historical opinion studied in America supported the existence of a nonfeudal Saxon economic system, even though there was division over the merits of an allodial and a feudal system. Any discussion of feudalism inevitably led to a discussion of when and how feudalism came into England. Americans who admired Saxon political and economic freedom were curious to learn the reasons for the destruction of both. If Saxons were so virtuous, why were they vanquished? If allodial ownership was superior to feudal tenure, why was feudalism victorious? Most books Americans studied identified feudalism with despotism and tyranny. If feudalism was such a “barbarous system,”³⁸ as Mrs. Macaulay described it, there was surely some extraordinary explanation for its success.

The usual answer was to identify the arrival of feudalism with the arrival of the Normans in 1066. According to Jean Louis de Lolme, a favorite of John Adams, “the establishment of the feudal system in England was an immediate and sudden consequence of that conquest which introduced it.” Obadiah Hulme, reading the same sources studied in the colonies, concluded that the Norman Conquest brought economic, political, and religious tyranny, “monsters till then, unknown in England.”³⁹ But the whole question was complicated by the political sympathies of the historians who explored it.

Many seventeenth-century English writers felt that modern Parliamentary claims to political responsibility depended at least in part upon unbroken continuity in English development; to admit a break in historical evolution might admit grounds for monarchical pretensions. Sidney was inclined to propose that there had been no true Norman conquest, “neither conquering Norman nor conquered Saxon, but a great and brave people composed of both, united in blood and interest in the defence of their common rights.” As added political insurance he refuted royalist claims based on even an imagined conquest, insisting that “the rights … of kings are not grounded upon conquest. The liberties of a nation do not arise from the grants of princes.” William Atwood was equally concerned: admit the conquest and “the Inheritance which everyone claims on the Laws will be maintainable only as a naked Right, and naked Rights are thin and metaphysical Notions which few are Masters or Judges of.”⁴⁰

There were ways of overcoming the embarrassment of a Norman military victory. For example, Isaac Kimber thought that the Saxons fell before Norman arms because of the softening influence of luxury, idleness, and vice; despite this handicap “the English fought with as much Valour as the Normans.” Henry Care argued that the Normans secured power by guile: it was true that the Normans defeated and killed the Saxon King Harold, but Duke William pretended a right to the English crown; William agreed to a compact to observe the Saxon laws and customs; on this understanding the English submitted as partners of the Normans. Unfortunately William then broke his oath, and he and his successors “made frequent Incroachments upon the Liberties of their People.” Care’s position was restated in the eighteenth century by the Irish law professor Francis Sullivan, who asserted that the Normans had pretended to an oath to support Saxon laws favorable to “the liberties of the people.” Once in authority, they “showed how little regard they had to that obligation, and how bent they were on setting themselves free from all restraint, and to destroy all traces of the old Saxon laws.” Sullivan acknowledged that the old elective Saxon monarchy continued in outward form, but held that William’s election was extorted “by dread of his power.” William had obligations to the “hungry adventurers” he had brought with him and thus seized Saxon allodial lands and parceled them out to eager Normans in return for pledged allegiance. In this way, Sullivan concluded, feudalism was introduced into England, and hence “the maxim prevailed that all lands in England are held from the king.”⁴¹

William I was no hero to these historians. He was a crafty Norman who had entered into a firm compact with the innocent English, pledging he would “Govern conformably to the Antient Constitution.” Yet William knew that “what is Introduced by Force, by Force may be removed.” Roger Acherley said it in his essay on The Britannic Constitution, and argued that in any case his only victory was a personal one over Harold. Even Lord Somers presented William as “unjustly stiled the Conqueror,” a man who secured the English crown “by a free Choice and Submission of the Peers and Body of the People.” Thus King William had obligations inconsistent with his subsequent imposition of feudal despotism. If not a Conqueror, he treated the English as conquered people. According to Kimber, William acknowledged from his deathbed that “he had unjustly usurped the Crown of England.” For Algernon Sidney this was an unavoidable conclusion. After all, if William had no right by conquest and no right by forced election or ruptured compact, he had no right by inheritance from Edward the Confessor. Sidney reminded his readers that William “was a bastard, and could inherit nothing.”⁴²

For all the variety among various historical and legal views of the character of the Norman invasion, the preponderant opinion offered American investigators was that after 1066 feudalism and tyranny made their unwelcome appearance in England. Yet all agreed that whatever the Conquest actually was, it did not abrogate the Saxon constitution, since William and his successors had gone through the motions of observance of the Saxon system of Edward the Confessor. Rapin noted that William’s son, William Rufus, promised to restore English government to the basis enjoyed before the Conquest and to reestablish Saxon laws.⁴³ Rufus failed in his pledge, but his promise certainly seemed to imply both that the submersion of the Saxon system was no more than temporary, and that English people expected its reinstatement. Most American students therefore looked upon the Norman arrival as “that period of English history, which contaminated the purity of the English constitution … with a despotick spirit; of which time has not been able totally to eradicate.”⁴⁴

IV

In American eyes English medieval history settled into a pattern of periodic efforts to reestablish pre-Norman liberties. Most authorities stressed the charters gained from successive Norman and Angevin monarchs, the Magna Charta of 1215 emerging as the most important of such measures of restitution. The best-selling Rapin served well in this respect. He reviewed the background of Magna Charta in his detailed History of England and added a summary in his Dissertation on the Whigs and Tories.

Rapin’s Dissertation served as a handy introduction to and summary of political developments in the post-Conquest era. Rapin reminded readers of the Parliamentary system of the Saxons before the arrival of William, “surnamed the Bastard.” Then he reviewed the dispossession of the English by the Normans. He pointed out that the Norman nobility acquired the same dislike of royal despotism as demonstrated by the Saxons, so that a political alliance developed in which the object was to restore government “to the same state, as in the times of the Saxon kings.” Faced with this opposition, Norman monarchs found it increasingly desirable to promise a return to ancient Saxon government and laws, and Henry I confirmed his promise in a charter. Unhappily Henry lived up to his commitments in the same fallible fashion as his brother William Rufus, and the most that could be said was that “the rights of the subject received strength from these promises.” Stephen and Henry II also found it necessary to bind themselves—more strongly than their predecessors—to restore the Saxon laws, but the political crisis was merely postponed. This came with the challenge to King John, the outcome of which was Magna Charta.⁴⁵

In the colonial perspective Magna Charta was the most important and inspiring of steps backward in the direction of the glorious and virtuous Saxon system. For this view Americans owed much to Sir Edward Coke and John Selden. Certainly Coke was as frequently cited on Magna Charta as Tacitus on the ancient Germans, and in American eyes the reliability of both was self-evident. Coke had approached Magna Charta as “no new declaration” but as a reaffirmation “of the principal grounds of the laws of England.”⁴⁶ This made the Charter an unrevolutionary document, no detraction for the conservative lawyers who gave it so much of their attention. As Henry Care commented, a public confirmation of Saxon common law could never be construed as a gracious royal concession.⁴⁷ Coke’s popular interpretation meant new life for the supremacy of common law over royal prerogative, indicating that kings ruled on sufferance or under compact.

Algernon Sidney’s commentaries on the Great Charter, though written by a nonlawyer, were much admired by the colonial legal profession. For Sidney the Charter was an assertion of “the native and original rights of our nation” and embodied King John’s pledge that neither he nor his successors would ever encroach upon such rights. Magna Charta could not and did not give anything to the people, “who in themselves had all.” The chief merit of the document was bringing John to admit that there were popular rights “perpetually inherent, and time out of mind enjoyed.” (So said Coke in the Institutes.) Sidney might deplore John’s failure to adhere to his pledge in emulation of William I, who had “engaged his faith, but broke it”; nevertheless the rights persisted and received royal acknowledgement of their priority. Sidney concluded that by breaking the rights affirmed in Magna Charta, a king branded himself “an execrable perjured person” with whom the people would know how to deal.⁴⁸

In the Charter was a historical illustration of the compact theory so honored four centuries later. Roger Acherley summed up Magna Charta as “a Renewal of the Original Contract,” and Anthony Ellis in his Tracts on Liberty insisted that the Charter’s provisions embraced the entire populace. Here, Ellis claimed, was a democratic document in which “the nobility and commonalty acted so much in concert, that there was no less provision made for the privileges of citizens and burgesses, than for the nobility and gentry.” This conclusion seemed justified in light of Coke’s legal interpretation. According to Henry Care, the famous thirty-ninth chapter of the Charter, with its guarantee of the rights of freemen, deserved to be written in gold. Under this provision “No free man shall be taken or imprisoned or dispossessed … except by the legal judgement of his peers or by the law of the land.” Englishmen were assured, Care noted, of a trial “by Equals,” and Englishmen on both sides of the Atlantic viewed this thirty-ninth chapter as one of their birthrights.⁴⁹

The Charter reestablished ancient rights. It also represented a step toward the restoration of what Hulme’s Historical Essay called “the elective power of the people,” natural for a document patterned “in living memory of Saxon liberties.” Bolingbroke called the Charter “a rough Building raised out of the Demolitions, which the Normans had made, and upon the solid Foundations laid by the Saxons.” Rapin believed royal power was so curbed “that it was in a manner reduced to the same state as under the Saxon kings before the conquest.” The Charter became a yardstick to measure misgovernment, and English kings found themselves deposed “for intending to establish an absolute power contrary to magna charta.” Such was the fate, Rapin commented, of Edward II and Richard II. English monarchs acquired sweeping obligations: since Magna Charta was, as Lord Somers declared, only “an Abridgement of our antient Laws and Customs, the King that swears to it, swears to them all.”⁵⁰

Thus the admiration that Magna Charta excited led to extravagance of thought and language. Even a cautious historian like David Hume praised the Charter for bringing “some order and justice into the administration” and charged King John with such minor vices as “cowardice, inactivity, folly, levity, licentiousness, ingratitude, treachery, tyranny, and cruelty.”⁵¹ According to the Historical Essay, England owed a debt to those barons who in resisting the rapacity of John revived English liberties.⁵²

There was some disagreement over the political reality of what Rapin had called “the Charter of Liberties.” Some scholars, such as the Restoration historian Robert Brady, felt Magna Charta was misinterpreted by anti-Stuart writers who perverted historical truth for political advantage. Brady complained, if unavailingly, about those “turbulent men, who hold forth to the People, Ancient Rights and Privileges, which they have found in Records and Histories, in Charters, and other Monuments of Antiquity.” In his opinion Magna Charta was a minor relaxation of feudal practices which increased baronial and not popular privilege.⁵³ But American readers had little cause to be impressed with this historical judgment. The overwhelming majority of their historians exalted Magna Charta, making the Brady school seem unimportant and partisan. In the opinion of Francis Sullivan, this historical controversy was a fight “between the favourers of arbitrary power and the asserters of freedom.”⁵⁴

V

For colonial readers the accounts of ancient Greece and Rome told of contending liberty and tyranny, in which tyranny prevailed and empire disintegrated. Historical accounts of ancient and medieval England were far less conclusive: although the happy system of the colonists’ Saxon ancestors underwent drastic revision at Norman hands, most historians told of strenuous efforts to recapture Saxon liberty. Englishmen who had known utopia in the form of a free, nonfeudal government might know it again. Magna Charta epitomized their Saxon spirit. From the American viewpoint, the question now was England’s capacity to complete the Saxon restoration. But the books they studied offered disappointing and ominous answers.