FOREWORD TO THE QUINCY PAPERS
During his short life, Josiah Quincy Jr. (1744–1775) shone like a brilliant shooting star across the landscape of pre-revolutionary America. In thirty-one brief years he gained the respect and admiration of men difficult to please, including John Adams, Benjamin Franklin, James Otis and John Dickinson. Had Quincy lived, he could have been a leader of the new Republic and a household word. Even cut off so cruelly, he was idolized by his contemporaries and descendants, not the least by his son, who became mayor of Boston and president of Harvard. Today, towns, streets, stylish marketplaces and Harvard buildings bear the proud family name. Indeed, Josiah Quincy’s young patriotism, his compassionate and wise maturity beyond his years, his inspiration to others that survived him, and his own quite considerable acts of political courage earned him a place among the founders of American freedom, and indeed, so his contemporaries believed.
One of Quincy’s gifts to posterity, however, has been widely overlooked. An industrious and brilliant student, he kept detailed commonplace books and travel journals throughout his life. From his initial studies in law and politics, to his courageous—given his health—travels to the South and the extraordinary mission to London on behalf of the American cause in 1774 that hastened his death, all were carefully recorded in manuscripts now at the Massachusetts Historical Society. Equally important, in 1761 Quincy undertook what was to become the first American law reports, partly to aid his studies, but also to provide a tool for colonial legal development, a tool that he found badly needed. These, too, have been preserved, both as manuscripts at the Massachusetts Historical Society and in a volume edited in 1864 by his devoted great-grandson, Samuel M. Quincy, then serving as a Union officer in Port Hudson, Louisiana. The latter book, prized and continuously cited over the years by the Supreme Judicial Court of Massachusetts, lacks a modern edition and, thanks to the use of pulp paper, is deteriorating on the few shelves where it can still be found.
Quincy’s industry has provided political and legal historians with an unusual opportunity, the chance to enter the extraordinary mind of an American patriot immediately before the Revolution. Quincy’s roving curiosity defied his tuberculosis-ridden body and his Strabismus eye defect, and he traveled on long and dangerous trips. These trips are described in journals that provide a view of most of the important American colonies, and of England itself, at the onset of the Revolutionary War. It is almost as if Quincy’s papers were a traveling video camera, faithfully recording table settings in Charleston, the conversations of beautiful Southern women, the ugly facts of slavery, the controversies dividing Americans, and the subtle political landscape of Charleston, Philadelphia, and London.
We badly need another authentic and candid view of this period. Important as the founding of our country surely is, most historical accounts rely on a surprisingly narrow base of original material. As we and our loyal research assistants can testify, transcription of manuscripts is a tedious, exacting business, and even producing scholarly editions of previously transcribed documents, like the Southern Journal, the London Journal, and the Reports, requires laborious checking against the originals. The early editors, Samuel Quincy and Mark Anthony DeWolfe Howe, both lacked time, and both were loyal Quincys, or were married to Quincys. In every instance, much of their work has had to be corrected and expanded.
There are relatively few scholarly edited and transcribed papers describing the pre-Revolutionary period, and secondary accounts naturally turn to them. The most obvious example is the Adams Papers, a massive scholarly project that has generated scores of secondary accounts, spanning the range from David McCullough’s spectacularly successful John Adams (New York, 2001) to more modest efforts.1 In all cases, huge debts were owed to the Adams Papers project, and to devoted editors such as L. H. Butterfield, Malcolm Freiberg, L. Kinvin Wroth and Hiller B. Zobel. Another obvious example is Leonard W. Labaree’s Papers of Benjamin Franklin, a forty-six-volume project that has already inspired three best-selling biographies: Edmund Morgan’s Benjamin Franklin (New Haven, 2002), Walter Isaacson’s Benjamin Franklin: An American Life (New York, 2003), and Gordon Wood’s The Americanization of Benjamin Franklin (New York, 2004), winner of the Pulitzer Prize.
But there is a danger here. John Adams was hardly a “typical” colonial, and his graphic journals and letters have, to put it mildly, “a point of view.” Benjamin Franklin was more moderate, but he certainly was not “typical.” Had he lived today he may well have won both the Pulitzer and the Nobel prizes, quite apart from founding fire departments, printing houses, hospitals, a field of science, a major university and a large country.2 He very much had “a point of view” as well. And so did Alexander Hamilton and the very few other figures whose papers have been edited and made available.3
This is not to say Quincy was “typical” either. He remains one of the brightest young men either editor has encountered in a lifetime of university teaching. But he represented a different point of view from, say, his contemporary, friend and kinsman, John Adams. Quincy was certainly a patriot, but his beloved brother, Samuel, was a Loyalist, later to be proscribed. As we shall see, Quincy hated mob violence and, like Franklin, remained hopeful that war could be avoided. Indeed, his fatal trip to England was, in part, to aid Franklin in the pursuit of that goal. Quincy, more than any of his contemporary peers whose papers have been edited, was a moderate, and was keenly sensitive to the extent that the American Revolution was, in part, a civil war, and had serious risks and costs to the colonies. In addition, his brutally candid views of slavery and his careful description of the religious and gender bias encountered on his journeys, make his journals peculiarly valuable. In important ways, Quincy was a man whose sensibilities were well ahead of his time. Some of his views were so controversial that someone, perhaps a devoted descendant, cut out a crucial section from his Southern Journal with a knife.4
Of course our efforts are feeble compared to the Adams, Franklin and Hamilton Papers. Quick death gave us a very limited body of Quincy materials, and we have not even purported to cover much of that, leaving many articles and letters to future devotees. But, nevertheless, Quincy’s wit, sensitivity, intelligence and, above all, courage, lend a valuable new point of reference in discussing the sources of the American Revolution, a much-needed counterpoint to John Adams and others.
THE COLONIAL SOCIETY PROJECT
All of this must be seen in the context of the Colonial Society of Massachusetts and its extraordinary support of scholarly publications. Founded over a century ago, it is neither a library, like the Boston Athenaeum or the American Antiquarian Society, nor a repository of manuscripts, like the Massachusetts Historical Society. Unlike all of these, it has no full-time employees. Rather, its substantial endowment is used to support scholarly conferences, publications, and outreach to scholars and teachers, often using the Society’s matchless Bulfinch house on Boston’s Beacon Hill.
Under the leadership of its President, Frederick D. Ballou, and its Editor of Publications, John W. Tyler, the Colonial Society has embarked on a massive three-part project to document the causes of the American Revolution and the period immediately preceding hostilities. The four-volume Quincy Papers is merely the first part of this project. Dr. Colin Nicholson of the University of Stirling is now at work on the Bernard Papers, the extensive correspondence between the royal governor, Francis Bernard, and his English superiors and other contemporaries, extending until Bernard returned to England in 1769. This will be followed by the third part of the project, the papers of the great loyalist Chief Justice, Thomas Hutchinson, who would ultimately succeed Bernard to become Governor of Massachusetts until the outbreak of the Revolution. This massive endeavor has been undertaken by John W. Tyler. Thus, for the first time, the beginning of the American Revolution will be seen from the fully authenticated point of view of loyalists and their correspondents, including the Board of Trade, Secretaries of War, and other British government departments, and of moderates, such as Quincy.5
This huge effort will add the most important papers of Josiah Quincy, Jr., and the extensive papers of two leading contemporary loyalists, Francis Bernard and Thomas Hutchinson, to the corpus of carefully transcribed and edited original materials on the American Revolution. It will also provide generations of scholars with grist for their mills, and a better perspective on what really happened at the birth of the American Republic. We are proud to be a part of this effort, and deeply grateful for the vision and support of John W. Tyler and his colleagues. Like many historians, we love to give our personal perspectives at length, on anything of interest, but we strongly suspect that future generations will be more grateful for better original evidence. This is the vision of the Colonial Society.6
THE ORGANIZATION OF THE QUINCY PAPERS
1. Volume One: The Political Commonplace and the London Journal
The most impressive feature of Quincy’s papers is that they give a detailed picture of a talented young patriot. Each side of the brain, each aspect of the intellect can be studied. Volume 1 will present Quincy’s political thought, commencing with a major biographical introduction, “The Making of a Patriot,” followed by Quincy’s Political Commonplace Book. This remarkable book, at first glance, appears to be a random collection of quotations and thoughts. In fact, as Neil York’s introduction makes clear, it was closely organized ideologically around major topics of political controversy and theory. Thus, Quincy would combine Cicero, Francis Bacon, and David Hume together in one section, despite the vast chronological and cultural gaps between them, because they all addressed a universal concern, say power and corruption, or tyranny, or the difference between standing armies and militia.7 Add to this an extensive system of cross-references, topical headings, and indices, and you have a good picture of the political side of Quincy’s brain.
The Political Commonplace Book was a book of maxims. It is important to understand the importance of learning by maxims, particularly to intellectual elites in the seventeenth and eighteenth centuries. Modern pedagogy, particularly professional instruction, has abandoned instruction by maxim for case method, problem solving, clincial internship, empirical experimentation and other methods of instruction. But instruction by maxim was important during the late Renaissance, both on the Continent and in England, and was particularly championed by one of Quincy’s intellectual heroes, Francis Bacon.8 (The Gilbert Stuart portrait of Quincy, reproduced supra, shows Bacon’s Works in the background.) Roman antiquity also employed such an approach, as reflected in Cicero’s speeches and in Justinian’s Digest. This, of course, made it all the more popular for educated colonials. In the exceptional arguments by John Adams, James Otis, and Jeremy Gridley before the Governor in defense of the December 18, 1765, Memorial of the Town of Boston against the Stamp Act, all three argued from “sound Maxim[s] of the Law,” including “a Maxim of the ancient Roman Law.”9 The importance of this pedagogy to Quincy and other patriots will be explored in the “Introduction” to the Law Commonplace at the beginning of volume 2.
Quincy’s London Journal came literally at the end of his young life. He died on the returning ship as it approached Gloucester Harbor. But this Journal followed naturally from the Political Commonplace. Quincy’s London voyage was his effort to put his political ideology of moderation and national persuasion into practice. That the result was deeply disappointing should not detract from the drama of Quincy’s encounters, which included practically every political figure of interest to the colonies, including Lord North. The timing also showed that Quincy was no parlor idealist. By 1774, British tempers were becoming short, and Franklin found his situation in England precarious, despite his credentials as a colonial agent.10 Quincy’s situation was even more dangerous. British newspapers and intelligence had linked him to his incendiary articles, even though those were under a pseudonym.11
Not enough has been written about the colonial moderates and their hopes for a politically independent America without war. Yet, in 1774, most well-informed politicians on both sides of the Atlantic believed war could be averted. The mythology of the Revolution, combined with “twenty-twenty hindsight,” has naturally enshrined the radicals. The London Journal gives a different perspective—one of heartbreaking sacrifice and deep courage, dedicated to preserving an English-speaking alliance, where common respect for the rights of Englishmen and a Whig ideology would triumph over bigotry on both sides. Not until the “Grand Alliance” of the twentieth century would that dream be realized.
2. Volume Two: The Law Commonplace and the Southern Journal
Students frequently ask where the great lawyers of the early Republic “went to law school.” Of course, the likes of John Adams, James Otis, Robert Treat Paine, Joseph Story, John Marshall and even Abraham Lincoln went to no law school. They were products of the apprenticeship system of professional training. Well into the nineteenth century, apprenticeship was the primary form of American legal education, even of elite legal education. Only after 1871, and the development of the case method at Harvard Law School, was apprenticeship finally replaced by the university professional school as the choice of elite students.12
But we know painfully little about this process. Up to now, one of the best original accounts was John Adams’s commonplace and pleading books (circa 1759), as transcribed and edited by Kinvin Wroth and Hiller B. Zobel.13 But Quincy’s Law Commonplace (circa 1763) is simply in a different league. Carefully structured, painfully cross-referenced, and beautifully indexed, it provides a complete picture of how the common law was organized in the brain of a top colonial lawyer of the 1760s. As such, it provides a perfect counterpoint to the Political Commonplace, and together the two books set out, with great thoroughness, Quincy’s ideology of government and jurisprudence.
American legal academics naturally like to believe that formal legal education, within “The Academy,” is superior to learning the law directly in a professional context. Combine that prejudice with the lack of transcribed and edited original material, and the result is an unjustified depreciation of the sophistication and value of legal apprenticeships at least for some. This is true of even the best scholars of American legal pedagogy.14 Quincy’s Law Commonplace, with its elegant organization and deep insights, should cause such scholars to think again about the legal education of our founders, and about the value of apprenticeship.
It was appropriate to pair the work of Quincy as a law student with his account of his first great adventure as a young man, the Southern Journal. Despite the death of a brother at sea and his tuberculosis, Quincy burned with curiosity about the other colonies, and resolved to set out on a “Grand Tour,” going by sea to Charleston in February, 1773, and returning overland through North Carolina, Virginia, Maryland, Pennsylvania, New York, Connecticut, Rhode Island to Boston, arriving in May. In addition, Quincy had been appointed to the Committee of Correspondence, and Dr. Joseph Warren and others wished him to meet with other colonial leaders and “test the waters” for colonial resistance. The Journal gives a graphic account of every detail of the trip, from the harrowing voyage—when Quincy read Shakespeare’s The Tempest in his bunk—to the details of South Carolina concerts and dinner parties. Of the greatest interest, however, are the candid descriptions of a slave society and the corrosive effects on women and poor whites, all carefully set out by Quincy. Also of the greatest importance are sections describing the legal profession in the colonies, the modes of legal education, and Quincy’s efforts to contact fellow political moderates. Even religious practices were of the greatest interest to Quincy, and he described in detail the services at the first Catholic parish in the colonies, the practices and politics of the Quakers, and the beliefs of the Mennonite settlers of Pennsylvania.
3. Volumes Three and Four: The Law Reports
One of the mysteries of American law is why more than 110 years would pass without any attempts at law reporting. During the same period, Massachusetts presses turned out 201 separate issues of the Laws and Orders of the General Court and 208 issues of the Acts and Laws, just from 1742 to 1775. In addition, the Lawes and Libertyes, the codified collection of the statutory law first published in 1648, was regularly reprinted in a dozen different editions. In England, hundreds of law reports were published during this period, but none in America.15
Due to his early death, Quincy’s Reports were not published until 1864, edited by his great-grandson Samuel Quincy. But the manuscript makes it clear that Quincy intended for these reports to be true, published law reports, not just student notes.16 Covering the period 1761 to 1772, they were the earliest American laws reports. But more importantly, the reports demonstrated Quincy’s brilliance as a lawyer, and his quick, insightful eye. Judicial opinions were rarely written, and were delivered orally from the bench, often with little explanation. Quincy’s Reports, therefore, focused on the arguments of counsel. Quincy also commented freely, and often critically, on charges to the grand juries, admissions of counsel to the bar, and even Chief Justice Hutchinson’s appearance in court following the burning of his house.17 And many of these arguments were of the greatest importance, both politically and legally, and featured great advocates, such as Jeremy Gridley, Oxenbridge Thacher, Robert Auchmuty, John Adams, Robert Treat Paine, and James Otis. Some of the most famous cases included the Stamp Act Memorial of Boston and parts of the Boston Massacre proceedings. Other cases shed light on consumer protection, bawdy houses, rights of women, early commercial law, and the conduct of public officials.18
Samuel Quincy’s annotations to the 1864 first edition have been greatly expanded and brought up to date. In addition, new appendices have been created, cross-referencing areas of law practiced by counsel, collaboration between attorneys, the number and identity of dissenting opinions, sources of legal authority and the areas of law covered by the litigated cases, later citations to Quincy’s Reports, lists of admitted practicing lawyers with biographies, lists of cases in which Quincy appeared himself, the Catalogue of Books Belonging to the Estate of Josiah Quincy in its original form and then sorted alphabetically, and, finally, the composition of the Superior Court of Judicature bench at different periods, with brief biographies of the judges.
Not only do the cases reported by Quincy give detailed insights into the daily lives of colonial citizens, be they doctors, ship owners, shop keepers, thieves, magistrates or whores, but they are of great importance in describing the evolution of American common law doctrines, and their gradual autonomy from English authorities. The Reports remain valid precedent as well, and have been continuously cited by the Massachusetts courts as legal authority, as recently as 1959.19
It is strangely painful to read Quincy’s commonplace books and journals during the recent events in the Iraq war. Quincy saw himself as advocating the freedom of his homeland, while resisting mob rule and violence. His comments in the Southern Journal and the London Journal describe an increasingly desperate effort to build an autonomous America, while avoiding a bitter war, which, in important ways, was a civil war between Americans, including between Quincy’s patriot colleagues and his brother, Samuel, a devoted loyalist. Continuous blunders by the British government undercut Quincy’s hopes, culminating in the disastrous redeployment of troops to Boston in 1774. Quincy risked his life to travel to London in that year in the hope that, properly informed, British authorities would rely on negotiation and diplomacy, rather than resort to military force. Quincy, with Benjamin Franklin, warned all who would listen in London that there could be no “military solution” in America, only a political accommodation.
Ironically, the strongest ties between England and her colonies were threatened by military action. Thoses ties were the common law, the “rights of Englishmen,” and English political ideas, ties that would ultimately be the foundations of a long-term alliance. Quincy, shocked by the violence of the Stamp Act mob that burned Chief Justice Hutchinson’s house on August 27, 1765, asked, “Who, that sees the Fury and Instability of the Populace, but would seek Protection under the Arm of Power? Who that beholds the Tyranny and Oppression of arbitrary Power, but would lose his Life in Defence of his Liberty?” Reports, p. 173 (italics in the original). He then answered his own question. The solution was a rule of law, that provided security while protecting freedom, “that best Asylum, the Glorious Medium, the British Constitution! Happy People! if ye preserve it inviolate. May ye never lose it through licentious Abuse of your invaluable Rights and Blood-purchased Liberties! May ye never forfeit it by a tame and infamous Submission to the Yoke of Slavery and lawless Despotism.” Reports, p. 174 (italics in orginal).
Quincy’s faith in a rule of law as the ultimate protection of freedom is the cornerstone of today’s American legal system and remains the chief article of faith of Quincy’s spiritual heirs, the American legal profession. Likewise, Quincy’s Whig ideology of political compromise and moderation remains the foundation of faith of America’s political center. Terrorism and war have recently challenged both ideological belief systems, threatening individual rights and poisoning political cooperation through increasingly shrill partisanship. Well in advance of his time, Quincy understood the true costs of racial and gender bigotry, and of unreasoning divisiveness to a free people. Quincy gave his life for what he believed. His papers still speak eloquently to us, across the centuries.
Daniel R. Coquillette Neil Longley York