I have read about 10 pages in Justinian and Translated about 4 Pages into English. This is the whole of my Days Work. I have smoaked, chatted, trifled, loitered away this whole day almost. . . . But I am resolved to translate Justinian and his Commentators Notes by day light and read Gilberts Tenures by Night till I am master of both. . . . [Diary, 5 October 17581087]
But, it is my Destiny to dig Treasures with my own fingers. No Body will lend me or sell me a Pick axe. [Diary, 18 December 17581088]
I. Introduction: The Influence of Civilian Learning in Early American Jurisprudence
WHAT influence did continental European jurisprudence, the civilian learning of the Roman-based civil law and of the European Enlightenment, have on the English colonies in America? Much ink has flowed on aspects of this topic, over issues as disparate as whether the characteristic American “district attorney” derived from the Dutch institution of the “schout” and whether Cicero was a “role model for early American lawyers.”1089 Masterful studies have been done by Peter Stein on “The Attraction of Civil Law in Post-Revolutionary America” and by Herbert Alan Johnson on the law merchant in colonial New York. I certainly do not intend to make outrageous claims for civilian influence1090 or to populate the rural courthouses of America with Ulpians, Justinians, and home-spun Montesquieus. I put forward only one such “barn yard Justinian,” and a very atypical one at that, John Adams.
Young Adams, sitting in Braintree as a neophyte lawyer in 1758, certainly saw himself as something of a classical Roman character. In his mind’s eye an invisible toga often descended over his young shoulders, at least when he was not chasing the attractive Hannah Quincy in “Cupid’s Grove.”1091 Adjusting the imaginary folds of this toga, he wrote in his new diary: “Few of my Contemporary Beginners, in the Study of the Law, have the Resolution, to aim at much Knowledge in the Civil Law. Let me therefore distinguish my self from them, by the Study of the Civil Law, in its native languages, those of Greece and Rome.”1092
Adams was ever eager to put distance between his young self, humble in origin but Harvard educated, and what he perceived to be the rabble of “common” colonial lawyers, whom he characterized as “Petty foggers” and “dirty Dablers in the Law.”1093 And he was ambitious. Even before he had met his role-models in the elite of the Boston bar, such as Jeremiah Gridley, James Otis, Benjamin Pratt, Benjamin Kent, and Oxenbridge Thacher, Adams felt the pressing need to be one of a select few.1094 A direct corollary, at least in his aspiring young mind, was the need to master the classics of both the civilian and the common law literature.
28. John Adams (1735–1826) by Benjamin Blyth (circa 1766). The earliest portrait of Adams, painted after he had started his career as a lawyer. Courtesy, Massachusetts Historical Society.
Adams started out his legal career in rural Worcester. He had gone there after Harvard to teach school. Teaching school was one way to avoid the family pressure to become a minister, but Worcester was dull. The best source of intellectual and social excitement was the occasional visits of the circuit judges to the local courthouse.1095 In 1756 Adams signed up for the usual legal apprenticeship. His master was James Putnam, a Worcester attorney.
Life with Putnam was not all roses. Adams would later lament that “[n]ow I feel the Disadvantages of Putnams Insociability, and neglect of me. Had he given me now and then a few Hints concerning Practice, I should be able to judge better at this Hour than I can now.”1096 Nevertheless, Putnam had a good library. It was, according to Adams, “not large: but he had all the most essential Law Books: immediately after I entered with him however he sent to England for a handsome Addition of Law Books and for Lord Bacons Works.”1097 And Adams read. By his contemporary account he did, while at Worcester, read “Wood. Coke. 2 Vols. Lillies Ab[ridgemen]t. 2 Vols. Salk [eld’s] Rep[orts]. Swinburne. Hawkins Pleas of the Crown. Fortescue. Fitzgibbons. Ten Volumes in folio I read, at Worcester, quite thro—besides Octavos and Lesser Volumes, and many others of all sizes that I consulted occasionally, without Reading in Course as Dictionaries, Reporters, Entries, and Abridgements, Etc.”1098
On completion of his Worcester apprenticeship, Adams returned to his native Braintree to seek his fortune in law practice. But he had a problem. His primary need was to gain admission to the Suffolk bar, and that would require being put forward by some influential Boston lawyers. What to do? His first act, the day after arriving from Worcester, was to go to the Harvard College Library and take out “Justinians Institutions with Arnold Vinnius’s Notes.”1099 Why? “I shall gain the Consideration and perhaps favour of Mr. Gridley and Mr. Pratt [patriarchs of the Boston bar] by this means.”1100
He was not far from the mark. In Adams’ fateful call on Gridley three weeks later, to obtain Gridley’s crucial support for his bar application, Gridley cross-examined him on his education, emphasizing the need to study the “civil Law, and natural Law, and Admiralty Law.”1101 Adams particularly recalled being asked if he had read Grotius and Pufendorf, whom Gridley described as “great writers.”1102 Adams had to make lame excuses. “I cannot say I have Sir. Mr. Putnam read them, when I was with him, and as his Book lay on the Desk in the office for the most part when he had it not in his hand, I had generally followed him in a cursory manner, so that I had some very imperfect Idea of their Contents. . . .”1103 “[B]ut,” Adams hastily added, it was his “intention to read them both as soon as possible.”
Fortunately, because of his cram efforts with Vinnius on his arrival from Worcester, Adams was better able to answer another question. What, Gridley inquired, had Adams “lately read” in Latin? Adams answered proudly, “Cicero’s Orations and Epistles, and the last Latin I read was Justinians Institute with Vinnius’s Notes.”1104 Gridley, at that point, took Adams to his library and lent Adams a copy of Van Muyden’s Comfendiosa Institutionum Justiniani Tractatio In Usum Collegiorum.1105 In Gridley’s opinion this text was better for Adams, Vinnius being “a Commentator more suitable for Persons, of more advanced Age and longer research, than yours.”1106 Adams recalled, years later, how he was utterly dumbfounded by Gridley’s “handsome library of the civil and Cannon Laws and Writers in the Law of Nature and Nations.”
29. Purported to be Jeremiah Gridley (1701/1702–1767). Attorney General, Justice of the Peace and of the Quorum. Courtesy, Harvard Law School Art Collection.
30. The Gridley-Adams copy of Johannis Van Muyden’s Compendiosa Institutionum Justiniani Tractatio (Utrecht, 1707). This book was loaned by Jeremiah Gridley to John Adams in 1758 and bought by Adams from Gridley’s estate after 1767. Courtesy, Boston Public Library.
Adams next dutifully called on Benjamin Prat and James Otis. They also cross-examined Adams on his classical training and asked him why he had omitted being sworn in the Worcester Inferior Pleas Court and had failed to get the usual letter of recommendation from Putnam.1107 But, nevertheless, “Mr. Otis received me more like a Brother than a father, and began to descant on Homer and Horace and Latin and Greek Prosody.”1108
As a result of his efforts Adams was routinely sworn in at the Suffolk bar on 6 November 1758. He had no formal legal education and only a two years’ apprenticeship in the countryside.1109 But he could talk about Cicero. As Gridley put it to the Court, on moving Adams’ application, “I take it he is qualified to study the Law by his scholarship. . . .”1110
So Cicero and Justinian helped Adams get sworn at the bar. But what practical use did civilian learning—the civil law jurisprudence of the neoclassicists and the European Enlightenment—have in Braintree or Boston in 1758? Was it just an elite affectation? Or was it a device for restricting practice to an educated few and controlling the “pettyfogger” competition? Could it have influenced, in any demonstrable way, the fundamental jurisprudence of important colonial lawyers such as Adams?
One thing is certain. The civil law and Roman law books were here, and in surprising numbers. Recent research by Herbert Johnson and others has clearly established that.1111 But, as Maxwell Bloomfield has recently queried, were these books really read?1112 Did the serious study of continental jurisprudence and civilian learning predate the Revolution? Was it part of the Revolution’s background, or was it a result of the Revolution? Or both? Was it applied in practice? Any kind of complete answer is far beyond the scope of this paper, but, fortunately, the tireless labors of the editors of the Adams Papers, particularly the editors of The Legal Papers of John Adams, Kinvin Wroth and Hiller Zobel, and the editors of the first two volumes of the Papers of John Adams,1113 together with the work of Julius Goebel, Jr. on The Law Practice of Alexander Hamilton1114 have begun to shed some light on these problems. Most particularly, we now can know more about the application of civilian learning in early American legal practice and the influence of neoclassicism on the self-image of the legal profession.1115
Again, I intend to concentrate solely on the legal career of John Adams from 1758 to 1775. Why? I certainly do not intend to imply that Adams was a typical lawyer of the period, or that anything that was true of his knowledge, his legal education, or his practice was necessarily true for anyone else. But Adams was in at the beginning of a formal structure for the Suffolk County bar in 1770 and at the initiation of requirements for legal education in Massachusetts. His extraordinary papers give us a “candid” view of the pre-revolutionary legal elite that he knew intimately and whose values he shared. Furthermore, the scope and nature of Adams’ legal learning are just plain interesting. Adams was the man sent in 1784 to negotiate the crucial five million guilder loan from the Dutch bankers in the dark hours for America.1116 What did he know about the civil law of Europe?
II. Young John Adams and His “Pick Ax”: Early Legal Training (1756–1761)
The young Adams frequently felt sorry for himself. This was particularly so when his first writ was abated, a crisis for any adolescent attorney. He lamented: “[I]t is my Destiny to dig Treasures with my own fingers. No Body will lend me or sell me a Pick axe.”1117 And, to an astonishing degree, Adams really was self-taught.
Adams’ Diary indicates almost exactly what he read in the period from 1756 to 1758 in Worcester and in the period from 1758 to 1760 in Braintree.1118 During the earlier period Adams was technically a student and apprentice, but Putnam was an indifferent teacher.1119 During the later period Adams was technically a full-fledged practitioner, but, in fact, business was slow starting. Under the informal tutelage of Jeremiah Gridley, a great teacher, Adams filled the empty hours between clients with an extensive course of study.
There was quite a difference between the books read in Worcester, which were largely common law classics and abridgements, and Adams’ Braintree reading under Gridley’s influence. In Adams’ words: “I have read no small Number of Volumes, upon the Law, the last 2 Years [1758–1760]. Justinians Institutes I have read, thro, in Latin with Vinnius’s perpetual Notes, Van Muydens Tractatio Institutionum Justiniani, I read thro, and translated, mostly into English, from the same Language. Woods Institute of the Civil Law, I read thro. These on the civil Law 3 on the Law of England I read Cowells Institute of the Laws of England, in Imitation of Justinian, Dr. and student, Finch’s Discourse of Law, Hales History, and some Reporters, Cases in Chancery, Andrews Etc. besides occasional searches for Business. Also a general Treatise of naval Trade and Commerce, as founded on the Laws and Statutes.”1120
This is quite a list, with a strong civilian flavor. In particular, not only was there a heavy emphasis on Roman Law, but Dr. Cowell’s Institutes of the Laws of England exposed Adams to England’s leading civilian propagandist.1121 Cowell’s Institutes laid out the entire English common law on the framework of Justinian’s Institutes.1122 Furthermore, St. Germain’s Doctor and Student, Mathew Hale’s History of the Common Law of England, and the “general Treatise of the naval Trade,” almost certainly Charles Molloy’s De Jure Maritime et Navali, incorporated many references to civil and canon law.1123
But did Adams really absorb this learning? By his own account, “AH this series of Reading, has left but faint Impressions, and [a] very Imperfect system of Law in my Head.”1124 First, Adams doubted his own grasp of common law principles. “I must form a serious Resolution of beginning and pursuing quite thro, the Plans of my Lords Hale, and Reeve. Woods Inst[itutes] of common Law I never read but once, and my Ld. Coke’s Com[mentary] on Lit[tleton] I never read but once. These two Authors I must get, and read, over and over again. And I will get em too, and break thro, as Mr. Gridley expressed it, all obstructions.”1125 Gridley clearly would have made a great football coach!
Adams was equally concerned about his civilian learning. “Besides, I am but a Novice in natural Law and civil Law. There are multitudes of excellent Authors, on natural Law, that I have never read, indeed I never read any Part of the best authors, Pufendorf and Grotius.”1126 This is consistent with Adams’ awkward admission to Gridley, during Adams’ interview for the bar, that he hadn’t really read Grotius or Pufendorf.1127 “In the Civil Law, there are Hoppius, and Vinnius, Commentators on Justinian, Domat, Etc. besides Institutes of Cannon and feudal Law, that I have to read.” Adams concluded by vowing, “Thus let me, every night before I go to bed, write down . . . [in my diary] what Book of Law, I have read.”1128 Alas, the next entry reads, “I have not read one Word of Law, this Day.”1129 Was it the distraction of Hannah Quincy again?
In addition to the listed volumes, Adams’ Diary indicates that, during the 1759 to 1760 period, he did further reading in the Enlightenment authors, particularly Montesquieu’s Spirit of the Laws,1130 and in 1761 Adams did indeed carry out his resolve to read canon law. “I borrowed of Mr. Gridley, the second Volume of the Corpus Iuris Canonici Notis illustratum. Gregorii 13 Iussi editum. . . . Mr. Gridley about 15 months since, advised me to read an Institute of the Cannon Law—and that Advice lay broiling in my Head, till Last Week, when I borrowed the Book.”1131
But that canon law book was borrowed by a very prejudiced man. Adams remarked: “I am very glad, that he gave, and I took, the Advice, for it will explain many Things in Ecclesiastical History, and open that system of fraud, Bigotry, Nonsense, Impudence, and Superstition, on which the Papal Usurpations are founded, besides increasing my skill in the latin Tongue, and my Acquaintance with civil Law, for in many Respects the Cannon Law is grafted on the civil.”1132 One might have hoped that, on actually reading the book, Adams would change his good Congregationalist mind-set. Alas, no. Two weeks later Adams remarked, “This Institute is a curious Monument of Priestly Ambition, Avarice and sublety. Tis a system of sacerdotal Guile.”1133 As will be seen, Adams’ “A Dissertation on the Canon and Feudal Law,” written in 1765, reflected the same knee-jerk prejudice.
Was all of Adams’ civilian reading a facade to conceal such preconceived views of the world? Fortunately, we have more concrete evidence of how much he learned. The most important evidence will be analyzed in Parts III, IV, and VI of this paper. That was Adams’ actual application of canon and civil law authority in his legal practice and political writing.
And there is other evidence. In Adams’ Earliest Diary there are his laborious notes on Justinian’s Institutes 2.1.12 and 3.14.3 through 3.18.pr.1134 The notes are clearly based on the Van Muyden Tractatio . . . 3d ed. Utrecht, 1707. This book, again, was an abridgement of Justinian’s Institutes, and almost certainly the copy lent to Adams by Gridley.1135 While these notes are hardly polished, they demonstrate serious effort. The editors of the Earliest Diary, doubtless in despair over Adams’ “cramped” writing, allege that Adams, in abstracting and translating, “seems to have been satisfied at times with gibberish.”1136 How true, but the notes bear a striking resemblance to my own painful efforts as a student of Roman law at Oxford, and, I am sure, the same could be said of countless other law students. Furthermore, as will be seen, Adams actually applied Institutes 2.1.12 in a famous case, Doane v. Gage (Court of Vice Admiralty 1768–1769)1137 and his understanding of the Roman jus naturale and jus gentium concepts in Institutes 2.1.12 and 3.14.3 ff. appears to have had a direct influence on his famous Novanglus letters.1138
We also have Adams’ student “Commonplace Book” and a fragment of his “Student Notes.”1139 The “Notes” reveal that Adams was well aware of the passages in Coke on Littleton, folio 11b (E. Coke, The First Part of the Institutes of the Lawes of England, London, 1628), which set out the use of civil law in the ecclesiastical, Constable and Marshal, and Admiralty jurisdictions. There is also mention of the Laws of Oleron, the early sea laws, which would continue to fascinate Adams.1140 Questions over the proper choice of civil law in key jurisdictions, particularly in Admiralty, probate, and divorce cases, would later be a feature of Adams’ law practice.1141 Adams’ “Commonplace Book” also demonstrated a good knowledge of Roman contract and bailment principles, and had at least one reference to Christopher St. German, the pioneer of English comparative law studies.1142
Adams’ Diary itself contained crabbed passages that were evidence of painful agony over Wood’s New Institutes of the Imperial or Civil Law and Van Muyden’s Tractatio.1143 Again, the editors of the Adams Papers were not impressed with Adams’ accuracy, suggesting that “the diarist’s mind was not on his books when he made these memoranda, but was ‘roving from Girls to friends’ and other matters not closely related to law.”1144 But there can be no doubt that Adams was actually reading the books. And, again speaking as one who has also studied the Institutes as examination set texts, it is agony. As Adams later recalled: “At this time October 1758 the Study of the Law was a dreary Ramble, in comparison of what it is at this day . The Name of Blackstone had not been heard, whose Commentaries together with Sullivans Lectures and Reeves’s History of the Law, have smoothed the path of the Student, while the long Career of Lord Mansfield, his many investigations and Decisions . . . have greatly facilitated the Acquisition of it.”1145
Blackstone and Mansfield might “smooth the path” for law students, but in his later career, both legal and political, Adams found reason to distrust both. On several occasions he used the knowledge he had gained by a hard slog through original sources to contradict what Jefferson called “the honeyed Mansfieldism of Blackstone.”1146 Indeed, in both “The Clarendon Letters” and “The Novanglus Letters,” Adams attacked the principles of parliamentarianism that Blackstone held most dear.1147 Proximate to the “gibberish” so taxing to Adams’ editors are also some gems of insights, most particularly that the ultimate justification of all law is human reason and that principles of government must be adapted to new conditions.1148
Adams had some rivals in this early period, and he was terribly sensitive about competition. One was Robert Treat Paine. “Bob Paine is conceited and pretends to more Knowledge and Genius than he has.”1149 Adams once told Paine that he, Adams, was reading Vinnius, a “Dutch Commentator” on the Institutes. Paine was not suitably impressed and retorted, “Vinnius . . . you cant understand one Page of Vinnius.”1150 Adams did not take this lightly. “He must know that human Nature is disgusted with such incomplaisant Behaviour. Besides he has no Right to say I dont understand every Word in Vinnius . . . for he knows nothing of me.”1151 Both Adams’ law practice and his political writing will demonstrate that he did understand a little Vinnius and perhaps even more Van Muyden.1152
31. Robert Treat Paine (1731–1814) by Edward Savage and John Coles (circa 1796–1801). Justice, Supreme Court; Attorney General. Courtesy, Massachusetts Historical Society.
Adams had another rival, Peter Chardon. “He has a sense of the Dignity and Importance of his Profession, that of the Law. . . . He talks of exulting in an unlimited field of natural, civil, and common Law. . . . This fellows Thoughts are not employed on Songs and Girls. . . . He will make something.”1153 Adams wanted to be like him, “exulting in an unlimited field of natural, civil, and common Law” and filled with the dignity and importance of being a lawyer.
III. The Sodalitas Club: The Intellectual Elite at the Pre-Revolutionary Boston Bar (1761–1765)
“Last Monday [prior to 8 January 1761], had a passionate Wrangle, with Eb Thayer, before Major Crosby. He called me a petty Lawyer. This I [Adams] resented.”1154 And so he should. Adams was making steady progress at the bar by 1761. In November 1761 he was “admitted an attorney in the Superior Court,” the highest step then available.1155 In 1762 as a result of Chief Justice Thomas Hutchinson’s desire “to add dignity to the proceedings of that [the Superior] Court, all members of its bar were formally called as barristers at the August term.”1156 “Adams was among those who thereafter appeared in ‘Gowns and Bands and Tye Wiggs.’”1157
Great was the difference that Adams perceived between his be wigged self and “petty Lawyers.” Indeed, the period of Adams’ first success corresponded with a new offensive, at least in his diary, attacking his more “base” rivals. “Looking about me in the Country, I found the practice of Law was grasped into the hands of Deputy Sheriffs, Petty-foggers and even Constables, who filled all the Writts upon Bonds, promissory notes and Accounts, received the Fees established for Lawyers and stirred up many unnecessary Suits. I mentioned these Things to some of the Gentlemen in Boston, who disapproved and even resented them very highly. I asked them whether some measures might not be agreed upon at the Bar and sanctioned by the Court, which might remedy the Evil?”1158
The answer, even in 1761, was the “Association” and “the Club.” Civilized professional men could join together and set down the standards of decent behavior and practice. “A Meeting was called and a great Number of regulations proposed not only for confining the practice of Law to those who were educated to it and sworn to fidelity in it, but to introduce more regularity, Urbanity, Candour and Politeness as well as honor, Equity and Humanity, among the regular Professors. Many of these Meetings were the most delightfull Entertainments, I ever enjoyed. The Spirit that reigned was that of Solid Sense, Generosity, Honor and Integrity: and the Consequences were most happy, for the Courts and the Bar instead of Scenes of Wrangling, Chicanery, Quibbling and ill manners, were soon converted to order, Decency, Truth and Candor.”1159 When Adams’ colleague and Gridley’s friend, Benjamin Prat, rode away to New York in November of 1761, “to take his Seat as Chief Justice of that State,” his final words to his comrades were “Brethren above all things forsake not the Assembling of yourselves together.”1160
But there were Clubs and, then, there were Clubs. On 24 January 1765 Adams was approached in court by Samuel Fitch. The news was electrifying: “[T]hat Mr. Gridley and he had something to communicate to me, that I should like, in Sacred Confidence however.”1161 Adams went to Gridley’s office “after many Conjectures what the secret might be” and heard the news:
That He and Mr. Fitch had proposed a Law Clubb—a private Association, for the study of Law and oratory.—As to the Bar, he thought of them, as he did think of them—Otis, Thatcher, Auchmuty. He was considering, who was for the future to support the Honour and Dignity of the Bar. And he was determined to bring me into Practice, the first Practice, and Fitch too. He could easily do it, by recommending. And he was very desirous of forming a Junto, a small sodality, of himself and Fitch and me, and Dudley if he pleased might come, in order to read in Concert the Feudal Law and Tullies orations. And for this Purpose he lent me, the Corpus Juris Civilis in 4 Partes distinctum, eruditissimis Dionysii Gothofredi J.C. clarissimi notis illustratum, at the End of which are the Feudorum Consuetudines Partim ex Editione vulgata partim ex Cujaciana vulgata, appositae, as also the Epitome Feudorum Dionysio Gothofredo Authore.1162
32. Benjamin Prat (1711–1763) attributed to John Smibert. Chief Justice, Province of New York; Moderator, Boston Town Meeting. Courtesy, Harvard Law School Art Collection.
We accordingly agreed to meet the next Evening [10 January 1765?] in one of Ballards back Chambers and determine upon Times, Places, and studies. We accordingly met the next Evening, Mr. Gridley, Fitch and I, and spent the whole Evening. Proposals were to read a Reign and the statutes of that Reign, to read Hurds Dialogues and any new Pieces. But at last we determined to read The Feudal Law and Cicero only, least we should loose sight of our main Object, by attending to too many. Thursday Nights were agreed on, and to meet first at Mr. Gridleys office. There we accordingly met on the Thurdsday Night [17 January 1765] following, and suffered our Conversation to ramble upon Hurds Dialogues, the Pandects, their Discovery in Italy by Lotharius in 1127, in the Reign of Stephen, upon Lambard de priscis Anglorum Legibus, in Saxon and Latin, upon Ld. Kaims [Karnes], Mr. Blackstone &c. But we agreed to meet the next Thursday night at Mr. Fitch’s, and to read the Three first Titles of the feudal Law, and Tullies oration for Milo.1163
The next meeting was at Samuel Fitch’s on 24 January 1765. “We read the 3 first Titles of the feudal Law, and We read Gothofreds Notes and We looked into Strykius for the Explanation of many hard Words in those 3 Titles—The Valvasors, Capitanii, Guardia and Guastaldi. This Strykius wrote an Examen Juris feudalis, by Way of Question and Answer. His account of the original of the Consuetudines Feudorum is, that they were collected and written by Gerardus Niger, and Obertus, the Consulls of Milan.—We read also Part of Tully’s Milo—and are to read the 4th. and 5th Title of The Feudal Law, and the rest of that oration next Thurdsday night [31 January 1765].”1164
Adams was in seventh heaven. “I expect the greatest Pleasure from this sodality, that I ever had in my Life—and a Pleasure too, that will not be painfull to my Reflections.”1165 How unlike his memories of other “Pleasures,” particularly with Hannah Quincy!1166 Adams missed the next Sodalitas meeting at Joseph Dudley’s on 31 January 1765,1167 but the following meeting, on 21 February 1765, was his turn to be host. He entertained the Club “at Blodgets”:
We were never in better Spirits, or more Social. We began the 13th. Title of the feudal Law De Alienatione Feudi and read three Titles. Gridley proposed that we should mark all those Passages, which are adopted by the English Law, that when we come to read Ld. Coke we may recur back upon Occasion, to the originals of our Law.1168
This was an important meeting in the development of Adams’ political thought and jurisprudence. The topic of conversation was the feudal system, and Adams had brought up Rosseau’s hostility to feudal institutions. This sparked a lively analysis of the merits and defects of feudalism.1169 Later, in writing “A Dissertation on the Canon and Feudal Law,” Adams would reflect on this conversation and recall the writing of Strykius on the ius gentium and the function of the feudal law as a component of the ius gentium1170 In Adams’ opinion there was no “absurdity” in the institutions of the feudal law taken by themselves. At certain times such institutions had served a necessary purpose. It was the survival of these laws and institutions into different times and conditions which made them unjustifiable. Laws and institutions, Adams reflected, must continue to justify themselves, by reason or consensus, or they become oppressive.1171
Gridley returned the conversation to self-improvement by producing “a Book intituled in Herennium Commentarius, as an Introduction to Tully De Oratore”:
Gridley. Our Plan must be, when we have finished the feudal Law, to read Coke Littleton, and after him a Reign and the Statutes of that Reign. It should also be a Part of our Plan, to improve ourselves in Writing, by reading carefully the best English Writers, and by Using ourselves to writing—for it should be a part of our Plan to publish Pieces, now and then. Let us form our Style upon the Ancients, and the best English Authors.1172
Adams concluded: “I hope and expect to see, at the Bar, in Consequence of this Sodality, a Purity, an Elegance, and a Spirit, surpassing any Thing that ever appeared in America. Fich [Fitch] said that he would not say he had Abilities, but he would say he had Ambition enough to hope for the same Thing.”1173
Ironically, this is the last account of the Sodalitas in Adams’ Diary. Gridley died shortly thereafter, in 1767, as did Joseph Dudley, the same year at the age of only thirty-five.1174 Samuel Fitch and Adams alone survived. Fitch chose royal preferment as Advocate General in Admiralty from 1770 to 1776, and as Solicitor to the notorious American Board of Customs Commissioners.1175 In 1776 Fitch sailed to Halifax and then to England.1176 Adams took the other fork in the way and became President of the United States.
IV. Dead Whales, Smuggled Madeira, and Applied Civilian Learning in Adams’ Legal Practice (1766–1774)
After the question of whether a lawyer like Adams ever read his civil law books, the next logical question is whether they ever did him any good.
Of course, there are many conceivable ways such legal learning might do a lawyer like Adams some “good.” It might be of direct help in his practice, with immediate application to certain kinds of legal problems. Or it could assist in his definition of himself as a professional, or in his conception of what should characterize the best features of any lawyer or association of lawyers. Or it could influence his fundamental ideas about the operation of the legal system, such as his ideas about the ways in which law and lawyers ought to relate to political society as a whole. The latter I will call “legal ideology.”
Regrettably, even with the splendid edition of the Legal Papers of John Adams, we still do not know as much about Adams’ legal ideas as we would like.1177 But we do know something. The obvious place to start would be to see if there was any evidence that Adams’ study of Roman or Enlightenment civilian sources had a direct application in his law practice.
In England, as Adams carefully noted in his “Student Notes,” civil law was applied “in certain Cases, not only in Courts Ecclesiastical, but in the Court of the Constable and Marshal, and of the Admiralty.”1178 There is clear evidence that he read, in his travails with Coke upon Littleton, the famous section defining—perhaps a bit narrowly—the scope of civil law authority in English Courts.1179 He must have been at least aware of the existence of Doctors’ Commons in London—the last stronghold of English civilian practice.1180 Was civil law applied in Massachusetts in analogous cases? Did Adams at least attempt it? The first sensible places to look would be the Admiralty cases, as well as any cases touching on the traditional ecclesiastical jurisdictions of domestic law and non-realty probate.1181
A. The Case of the Whale: Doane v. Gage (1766–1769)1182
The colonial vice-admiralty courts were “primarily to provide a forum for enforcement of the Acts of Trade and Navigation, with which England sought to control colonial commerce for the benefit of the Mother Country.”1183 Most admiralty cases in Adams’ Massachusetts were smuggling and revenue cases. But Adams did have one classic civil jurisdiction (i.e. non-revenue or non-criminal) admiralty case, Doane v. Gage, the “Case of the Whale.”
This was a truly fabulous squabble over which whale ship was entitled to a dead whale. The whale had been hit by a harpoon from a boat launched by a ship captained by Adams’ client, a Captain Doane. The whale, quite sensibly, took off for the bottom. At some later point he returned to the surface and was hit by another harpoon. This harpoon came from a boat launched by a rival ship, commanded by a Captain Gage. At some other point—either before or after Gage’s “iron” hit—Doane’s boat’s line came free. Under the custom of the whalers, a whale “belonged” to the boat that first struck it, even if another struck it later, if the first harpoon’s line was attached to its boat at the time of the second hit. But “if the whale became ‘loose’ without having been struck a second time,” the new harpoon gained full possession.1184
So the key issue was simply whether Doane’s boat was attached to the whale when Gage struck it, or whether the whale was a “loose” whale. No less than seventy-four witnesses, thirty-four for Doane and forty for Gage, would testify. John Adams represented Captain Doane and Robert Treat Paine and James Otis represented Captain Gage.1185 Never was a dead whale given such posthumous dignity. He was fought over by seventy-four eyewitnesses, two signers of the Declaration of Independence—one a future President of the United States—and the great James Otis!
For this case Adams prepared a truly remarkable “Notes of Authorities,” with lengthy quotations on ownership of wild animals from Grotius’ De Jure Belli ac Pads and Justinian’s Institutes. Adams’ key point—rather contrary to the whalers’ custom—was that once a wild animal was acquired by possession (presumably by being hit with his client’s harpoon) that “Property acquired by Possession does not cease with the Loss of Possession.” This proposition came directly from Grotius.1186 But Adams’ notes contained a contrary rule from the Roman law sources themselves. “Ferae igitur Bestiae et Volucres, et Pisces, et omnia animalia, quae mari, Coelo, et Terra nascuntur: simulatque ab aliquo capta fuerint, jure gentium, statim illius esse incipiunt. Quod enim ante nullius est, id, naturali Ratione, occupanti conceditur.” “Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner.”1187 (Justinian’s Institutes, 2:1:12). But the Institutes add: “[c]um vero tuam evaserit Custodiam, et in Libertatem naturalem sese receperit, tuum esse definit, et rursus occupantis fit,” “An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it.”1188 This, of course, was a rule more in keeping with the whalers’ custom.
Adams did not leave it there. He checked the Institutes’ passage against the Digest, thus demonstrating both a degree of sophistication about the Roman law and access to a copy of the entire Corpus Juris Civilis. There he located the section (Digest 41:1:5) describing a controversy between Trebatius and Justinian’s compilers. Trebatius was of the opinion that one who wounded a wild beast immediately became owner, and that “he must be held to retain the ownership so long as he kept on following the animal up, but that, if he relinquished the pursuit, his ownership ceased . . . so that if, at any moment while the pursuit lasted, some other person should capture it . . . he must be held to have committed a theft on the person first mentioned.”1189 This was certainly a view which would appeal to Captain Doane. Justinian’s compilers, however, indicated that “[a] good many authorities hold that the party does not become owner unless he captures it, because there is a considerable chance of the capture not being made; and this is a better view to take.”1190 Here was a view that would surely appeal to Captain Gage!
Regrettably, no one seems to have recorded who won. There is only Paine’s cryptic note on 27 October 1769, “Whale case finished.”1191 Lengthy depositions survive, however, and they tend to indicate more concern with whalers’ customs, such as “mateship,” than with Roman law. There is no indication that Adams’ classical learning was ever brought to bear. This result would have amused Herman Melville—who described the unwritten law of whaling as “a system which for terse comprehensiveness surpasses Justinian’s Pandects and the By-laws of the Chinese Society for the Suppression of Meddling with other People’s Business . . .
- I. A Fast-Fish belongs to the party fast to it.
- II. A Loose-Fish is fair game for anybody who can soonest catch it.”1192
But Adams certainly did get his Roman law books out for the case, and doubtless would have tried to see if the Court of Vice Admiralty would have listened to those arguments, even in Boston in 1768. This would have been particularly true if the Roman law had clearly cut his way. Equally significant, the lengthy testimony and depositions that definitely did take place were all in the form of written interrogatories, a civilian practice adopted “in deference to the civil law procedure followed in the High Court of Admiralty in England, or for convenience in a hearing four years after the event. . . .”1193
B. The Case of John Hancock’s Remarkable, Vanishing Madeira: Sewall v. Hancock (1768–1760)1194
John Hancock, according to the sworn testimony of His Majesty’s Commissioners of Customs, claimed that he could land wine from his vessel, the good sloop Liberty, without, alas! actually paying His Majesty’s customs. The wine seemed to disappear between the point of arrival and the subsequent inspection by royal officers. This maneuver legally was known as “landing goods before entry.”1195
On 9 May 1768 the Liberty arrived at Boston from Madeira and made entry of “twenty-five pipes of madeira wine, upon which the duties were paid.”1196 Cynics that they were, almost nobody in authority around the Boston waterfront took this declaration seriously. The case of the vanishing Madeira was on.
The revenue officers’ problem was getting witnesses. It was not easy. To make a long story short, one Thomas Kir, a tidesman who at the time of the Liberty’s arrival had reported nothing, became willing to testify that he had been locked in the Liberty’s steerage while Hancock’s men illegally unloaded wine. There was no corroborating testimony, as his fellow tidesmen were “variously reported as asleep or drunk.”1197 But the Commissioners of Customs, with the help of the powerful H.M.S. Romney, seized the Liberty in Boston harbor.
Adams represented Hancock. A lengthy and complex case followed in the Court of Admiralty, “and a painfull Drudgery I had of his [Hancock’s] cause”:
There were few days through the whole Winter, when I was not summoned to attend the Court of Admiralty. It seemed as if the Officers of the Crown were determined to examine the whole Town as Witnesses. Almost every day a fresh Witness was to be examined upon Interrogatories. They interrogated many of his [Hancock’s] near Relations and most intimate Friends and threatened to summons his amiable and venerable Aunt, the Relict of his Uncle Thomas Hancock, who had left the greatest Part of his Fortune to him. I was thoroughly weary and disgusted with the Court, the Officers of the Crown, the Cause, and even with the tyrannical Bell that dongled me out of my House every Morning.1198
The litigation featured the in-chamber examination and interrogatory procedure of the civil law, rather than common law procedures. Further, Adams at least twice employed extensive civilian authorities to advance his client’s cause, and used them to illuminate two separate questions of legal principle. First, Adams stated that “[w]e are here to be tryed by a Court of civil not of common Law.”1199 This meant that “we are therefore to be tryed by the Rules of Evidence that we find in the civil Law, not by those that We find in the Common Law.”1200 In the absence of a jury trial right at civil law, the civil law insisted on certain strenuous rules of proof. One such rule was:
“The Number of Witnesses ought to be two at the least to make a full Proof, and these must be free from all Exceptions, Either as to their Persons or their Depositions. For the Testimony of a single Witness is of no Validity, tho the Person is of a great Character,” &c. “For one Witness may mistake or lie, and be corrupted, and yet be consistent with himself, and so remain undiscovered; whereas two or three Witnesses may more easily be found in a Conspiracy by a prudent Judge if they are separately examined.”
Adams quoted this key rule, which would destroy the Crown’s single witness case, from Thomas Wood, A New Institute of the Imperial, or Civil Law, a book he had studied as a student.1201 Adams backed up this argument with an abundance of civilian authority, quoting the classic Codex maxim, “Simili modo sanximus, ut unius testimonium nemo Indicum, in quacunque causa facile patiatur admitti. Et nunc manifeste sanximus, ut unius omnino testis responsio non audiatur. . . .” (Codex 4:20:9:1). He also included some slightly inconsistent passages from the Digest, further sections from Wood’s New Institute of the Imperial, or Civil Law, sections from Johannes Calvinus’ Lexicon Juridicum Juris Caesarei Simul et Canonici, and references to the account of civil law procedures in Fortescue’s De Laudibus Legum Angliae.1202
Adams’ second key argument was that in cases where the laws inflict specially severe penalties—as in the case of the smuggling laws invoked against Hancock—these laws should be strictly construed. For this argument he cited Jean Domat’s The Civil Law In Its Natural Order (Strahan trans., 1722):
Domat. V. 1. Page 13. Preliminary Book. Tit. I. Sect. 2 N. 15. “The Laws which restrain our natural Liberty, such as those that forbid any Thing that is not in itself unlawfull or which derogate in any other manner from the general Law, the Laws which inflict Punishments for Crimes and offences, or Penalties in civil matters; those which prescribe certain Formalities; the Laws which appear to have any Hardship in them” &c. “are to be interpreted in such a manner, as not to be applied beyond what is clearly expressed in the Law,” &c. “We ought to give to such Laws all the Temperament of Equity and Humanity, that they are capable of.” Notae: “Interpretatione Legum Poenae molliendae sunt, potius quam asperendae. In Poenalibus Causis benignius interpretandum est. In levioribus Causis proniores at Lenitatem Judices esse debent, in gravioribus Poenis, Severitatem Legum, cum aliquo temperamemto benignitatio subsequi.”1203
The last three sentences, as the editors of the Legal Papers observed, are quoted from a note in Domat from Digest 48:19142; 50:17:155; 48:19:11. Adams also cited again, for the same proposition, Wood’s A New Institute of the Imperial, or Civil Law.1204
Adams concluded his analysis with an eloquent plea. He held that the Admiralty judge, his erstwhile dining partner Robert Auchmuty, could not have “his cake and eating it too” by choosing the worst from the common and civil law systems, at his discretion:
Shall We say that We are to be governed by some Rules of the common Law and some Rules of the civil Law, that the Judge at his Discretion shall choose out of each system such Rules as please him, and discard the rest. If so Misera Servitus est. Examinations of witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them. Shall We suffer under the odious Rules of the civil Law, and receive no advantage from the beneficial Rules of it? This, instead of favouring the Accused, would be favouring the Accuser, which is against the Maxims of both Laws.1205
Adams’ arguments were not, in the end, successful,1206 but his knowledge of civilian authorities was certainly used directly to the aid of his client, John Hancock, and to the preservation of Hancock’s excellent, but remarkably elusive, Madeira wine.
C. Divorces, Wills, and Harpooned Officers of the Royal Navy: Applications of Civil Law in Broadstreet v. Broadstreet (1771–1774); Clap’s Will (1767–1768); and Rex v. Corbet (1760)
Adams’ application of civil law was not limited to spectacular or unusual cases. His background proved useful in ordinary will and divorce problems. A good example is Broadstreet v. Broadstreet (1771–1774).1207 Poor Abigail Fuller married Dr. Joseph Broadstreet in February 1770. Within a few months, Broadstreet was making not-so-loving statements, such as “‘he was a damned fool for having of her and that he should rather have married a Negro if She had money!’”1208 Domestic bliss diminished.
Abigail eventually sought a divorce before the Governor and Council, who had jurisdiction under the Province Act of 3 Nov. 1692, c. 25.1209 Represented by Jonathan Sewall, and probably by Adams as well, Abigail sought a divorce a mensa (“from Bed and Board”—the equivalent of a separation and maintenance decree) and “‘thereby be intitled to the separate and sole use and improvement of her own Estate for the maintenance of herself and Child.’” Joseph, represented by Josiah Quincy, Jr., denied Abigail’s “libel”—the civil law writ—and alleged that “‘dark and mercenary Enemies to his household’” had by “‘insinuating arts [withdrawn] the affections of his Wife.’” Two justices of the peace were assigned to take testimony . . . , depositions were read and the parties heard.1210 The critical issues were whether a separation should be ordered and whether alimony was due. Adams’ notes, as carefully analyzed by the editors of the Legal Papers, make it clear that “the canon law, as applied in the ecclesiastical courts in England, was an important source of the Massachusetts law of divorce.”1211 The key sources examined were a treatise by a distinguished English civilian, John Godolphin’s Repertorium Canonicum (London, 3d ed., 1687), Richard Burn’s famous Ecclesiastical Law (London, 2nd ed., 1767), and, again, Thomas Wood’s A New Institute of the Imperial, or Civil Law (4th ed., 1730).1212 Abigail, incidentally, won. She got a separation, plus costs and 25 pounds sterling alimony a year.
The Governor and Council also sat as the Supreme Court of Probate.1213 Clap’s Will (1767–1768) was a case about one Samuel Clap, who allegedly “had not been himself for the last year of his life.”1214 The issue was whether Clap, during his last year, was capable of making a will which disinherited his eldest living son, William. Evidence was taken according to the procedure and form of civil law interrogatories. Adams, who appeared in defense of the will and Clap’s sanity, referred in his case notes to William Nelson’s Lex Testamentaria (London, 2d ed., 1724) and John Godolphin’s The Orphan’s Legacy (London, 4th ed., 1701), both basic civil law texts of Doctors’ Commons.1215 Adams apparently relied on Godolphin’s statement of presumptions in favour of sanity when “the testator is known to have intervals of lucidity, or if the will is ‘wisely and orderly made.’”1216 He also referred to both Godolphin and another leading English civilian, Henry Swinburne, in making notes of the case of Gardiner v. Purrington (1763) in his Diary.1217 Swinburne’s leading treatise, A Treatise of Testaments and Last Wills, compiled out of the laws ecclesiastical, civil and canon . . . (5th ed., 1728) was a great civilian text and was in Adams’ law library.1218
Even more striking examples of applied civilian learning were provided by Adams’ cases on the criminal side of the Admiralty. The statute of 28 Hen. 8. c. 15 (1536) established a “criminal jurisdiction” for the Admiralty, encompassing various criminal offenses committed at sea. Provision was included for jury trial. During the days of Adams’ practice in Massachusetts, such trials were held before a Special Court of the Admiralty under a commission issued on 14 January 1762.1219
On 22 April 1769 the British warship, H.M. Frigate Rose, intercepted the brig Pitt Packet off Marblehead. The brig was boarded, apparently to press sailors. The crew hid in the forepeak, and, when confronted by the British lieutenant, Henry Panton, one sailor, Michael Corbet, drew back a harpoon and impaled the British officer, killing him instantly.1220 Lieutenant Panton is now in a King’s Chapel, Boston, grave.
Adams, with James Otis, was hired to represent the seaman.1221 The key issue was whether the killing was justifiable homicide and, if so, was there any appropriate punishment at civil law. In his preparation for the case Adams scoured the civil law authorities on self-defense and provocation. Among the sources listed in his “notes of Authorities” and/or quoted in his “Argument and Report” are John Calvin’s Magnum Lexicon Juridicum, title “culpa” (Geneva, 1734); Jean Domat’s The Civil Law in its Natural Order: Together with the Public Law (1st ed. Strahan trans., 1722); Thomas Wood’s A New Institute of the Imperial, or Civil Law (3d ed., 1721); Robertus Maranta’s Praxis, sive de ordine judiciorum . . . vulgo speculum aureum et lumen advocatorum (Cologne, 1614); and Andreas Gail’s Practicarum observationum tam ad processum judiciarum praesertim imperialis camerae quam causarum decisiones pertinentium (Cologne, 1721).1222
At trial, on 14 June 1769, Adams came prepared to argue that the homicide was a justified response to the threat presented by press gang officers to an innocent seaman, who only wished to stay with his ship:
In these Circumstances what could he do? but defend himself, as he did? In these Circumstances what was his Duty? He had an undoubted Right, not merely to make a push at Lt. Panton, but to have darted an Harpoon, a dagger thro the Heart of every Man in the whole Gang.1223
Adams invoked the Codex, 9:16:2, for the right to kill in self-defense. “‘De eo, qui salutem suam defendit. Is qui aggressorem vel quemcunque alium, in dubio vitae discrimine constitutus occiderit, nullum ob id factum, calumniam metuere debet.’”1224 He also invoked the Scottish civil law authority, Barrington’s Observation upon the Statutes (London, 2nd ed., 1766). “‘By the Law of Scotland there is no such Thing as Man Slaughter, nor by the civil Law; and therefore a criminal indicted for Murder, under the Statute of Henry the Eighth, where the Judges proceed by the Rules of the civil Law, must either be found guilty of the Murder or acquitted.’”1225
Furthermore, reasoned Adams, if the governing law was civil law, then the killing was punishable by death only if it were murder, there being no civil law death penalty for unjustifiable homicide without malice. The equivalent common law crime of manslaughter was more risky, as it might be argued that the seamen were not entitled to benefit of clergy before a Special Admiralty Court.1226 Adams also discovered a statute forbidding impressment of American seamen and moved for jury trial.1227
The result was dramatic. Adams had only just begun his closing argument to the Special Court of Admiralty when, suddenly, Lieutenant Governor Hutchinson called for an adjournment. Four hours later the Special Court returned. A verdict of justifiable homicide was announced. The seamen were set free.1228
There are many other examples of Adams’ use of civil law authorities in his practice. In the bizarre criminal admiralty case, Rex v. Nickerson (1772–1773), Adams invoked the Codex, Maranta, Domat, Gail, Wood, and Francis Bacon in a brilliant and successful defense against a charge of piracy. There he obtained an acquittal on the grounds that the evidence against his client was either wholly circumstantial, or inadmissible under the applicable civil law.1229 And there were cases on slavery, where Gridley cited the Institutes1230 and Adams cited Voltaire and Montesquieu.1231 There were also routine Admiralty revenue cases where Adams cited civilian sources.1232 A close examination of the record would find many more.1233
True, some of Adams’ accounts were nearly comic searches for authority. “I went upon the first Appeal that has been yet made and prosecuted before Judge Auchmuty, and as it is a new Thing the Judge has directed an Argument, and a Search of Books concerning the Nature of Appeals by the civil Law. I found Time to look into Calvins Lexicon Title Appellatio and Provocatio, and into Maranta, who has treated largely of Appeals. Borrowed Ayliff, but there is no Table and could find nothing about the Subject. Domat I could not find.”1234
At other times, Adams clearly evaded the issue of choice of law between common law and civil law jurisdictions. “I shall not enter into any enquiry, how far the Admiralty sessions in England, or a Special Court of Admiralty in America ought to proceed by the rules of civil law, though it is a question of immense importance to Americans.”1235 But Adams certainly did employ his civil law books and his civilian learning in the “trenches” of active practice, and he employed them effectively. Of that there can be no doubt.
V. Adams and Professional Elitism: The Founding of the Suffolk County Bar Association and Other Restrictive Practices (1762–1774)
In his Earliest Diary the young Adams reflected anxiously and characteristically on “Proof of Genius,” i.e. how he could prove his own. It occurred to him that “Order, Method, System, Connection, Plan, or whatever you call it, is the greatest Proof of Genius, next to Invention of new Wheels, Characters, Experiments, Rules, Laws, which is perhaps the first and greatest.”1236 Although Adams’ energy turned up but a few original ideas, he was a great systematizer of what he knew. Nowhere was this more evident than in his attempts to impose a “system” on the entire local legal profession.
From 1762 through 1774 Adams supported attempts to impose a formal structure on the Boston bar.1237 His youthful aversion to the “pettyfoggers” who competed with him in Braintree led him to welcome more restrictive criteria for practice and more stringent standards for legal education.1238 It is not clear that he went so far as to support the attempt in 1762 by the tory Chief Justice, Thomas Hutchinson, to establish the rank of barrister and to require gowns and wigs. But Adams did show up in court, bewigged and all, and from 1762 onward he was present at the core of every effort to establish a formal bar association.1239 In January 1770 the Suffolk County barristers and attorneys formed a new Suffolk County Bar Association. Not surprisingly, Adams was elected its first secretary. The Association met regularly until the courts were closed in 1774.1240
33. First page of the Bar Book, Suffolk County (1770), in the hand of John Adams, its first Secretary. Courtesy, Massachusetts Historical Society.
In 1763 new rules were devised by senior members of the bar that would have limited practice in the Inferior Court to “sworn attornies.” The necessary consensus, however, was blocked by the unexpected opposition of the brilliant and eccentric James Otis. Adams was disgusted. “Thus with a whiff of Otis’s pestilential Breath, was this whole system blown away. But the Barr was in a great Rage!”1241 Adams continued to lobby tirelessly for “a regular Progress, to the Gown” with a long “State of Probation.”1242
In July 1766 the Boston bar finally introduced a “regular Progress.” It was a seven-year stretch, including three years of apprenticeship, two years as an Inferior Court of Common Pleas attorney, and two years as a Superior Court attorney. Of course Adams was enthusiastic.
At Boston. A Meeting of the Bar at the Coffee House, for the Admission of Three young Gentlemen, Mr. Oliver, Mr. Quincy and Mr. Blowers, and another Meeting appointed next Fryday sennight, to consider of some Measures for Limitation, making a Pause, &c. They [young lawyers] swarm and multiply. Sed, The Country grows amazingly, and the Time will not be long e’re, many who are now upon the Stage will be in their Graves. . . . Within 4 Years possibly some of all these Ranks may depart. But the Bar has at last introduced a regular Progress, to the Gown, and seven Years must be the State of Probation.”1243
It was a far more rigorous path than Adams’ own training and apprenticeship. Adams doubtless thought that such was progress. Even so, the new restrictions were not completely effective, and attempts by the Boston lawyers to gain bar concurrence throughout the province failed. There is no need to duplicate here the able work of John Murin, Gerard Gawalt, and Charles McKirdy on the development of the Massachusetts legal profession as a whole during this period.1244 But three points should be made about Adams in particular. First, Adams was a genuine elitist concerning the legal profession. He aspired to make it an aristocracy of talent and learning, excluding both those who sought advancement through family and wealth and those who were uneducated and uncultured. Second, Adams believed that humanist learning in general, and neoclassical legal studies in particular, were useful in achieving this goal. He pursued these studies himself and imposed them on his students and apprentices. “[T]he great works of the civil law should be studied—not only Justinian and his commentators, but Wood, Domat, Ayliffe, and Taylor,” because, as Adams advised his student Jonathan Mason in 1776, “this was a study ‘so interspersed with History, Oratory, Law, politics, and Warr, and Commerce, that you will find Advantages in it, every day.’”1245
Finally, if Adams encouraged high standards and restrictions on bar membership, he surely did not advocate a narrow view of legal education. In his advice to others, or in his own development, Adams envied cosmopolitan legal learning.1246 His avid development of his personal law library and his encouragement of other such libraries emphasized what today would be called comparative law, public international law, and political philosophy.1247 “I am mostly intent at present, upon collecting a Library, and I find, that a great deal of Thought, and Care, as well as Money, are necessary to assemble an ample and well chosen Assortment of Books.—But when this is done, it is only a means, an Instrument. When ever I shall have compleated my Library, my End will not be answered. Fame, Fortune, Power say some, are the Ends intended by a Library. The Service of God, Country, Clients, Fellow Men, say others. Which of these lie nearest my Heart?”1248 In all events, Adams built a great law library. He could fairly, if not modestly, say that “at any Sacrifice . . . and Accordingly by degrees I procured the best Library of Law in the State.”1249 His was a “profoundly intellectual approach to the law.”1250
Of course it could also be argued that Adams’ professional elitism and his emphasis on intellectualism were not-so-subtle devices to promote a narrow professional monopoly. They probably were. But, as McKirdy has observed, learning was the one and only way that the then humble, but able, Adamses, Gridleys, and Danas could compete with the great families of patronage and wealth, such as the Lyndes, Stoddards, and Sewalls.1251 If this was a restrictive practice, its restriction emphasized talent and training, not wealth and privilege.
Gerard Gawalt has stated that “the individualism that marks the American legal profession today can be traced to the triumph of competition over the corporate spirit that had motivated eighteenth-century organizers of the professional bar in Massachusetts.”1252 Without arguing whether the great corporate firm of today’s elite practice emphasizes any kind of “individualism,” it certainly was true that Adams would have mourned the loss of the highly interrelated elite bar of his day. He believed such a bar could effectively encourage quality, learning, and the exchange of ideas.1253
It is probably much too great a leap to try to link Adams’ professional self-image with his civilian training, although the emphasis of the civilian tradition on learned elitists, on jurists, and on breadth of legal study certainly invites comparison.1254 Adams did say that “[t]he Roman Lawyers were good Writers. Justinians Institutes were pure as Classicks.”1255 The ability to read and write well and to think analytically about the law were directly tied in Adams’ mind to classical training. “By studying the classic treatises he hoped to grasp the theory of the law. . . .”1256
Adams, throughout his life, promoted a corporate, restrictive bar that would require, or reward, such intellectual training. It was not all a question of economic self-interest. In Adams’ view such an elite bar could and should encourage its individual members to master the universals of legal culture. It could be a force for public good. It could be a force for change, even revolutionary change.
VI. Adams and Legal Ideology: “A Dissertation on the Canon and Feudal Law” (1765) and “The Letters of Novanglus” (1775)
“In spite of his dogmatisms and inconsistencies he [John Adams] remains the most notable political thinker—with the possible exception of John C. Calhoun—among American statesmen.” Thus Vernon Parrington has lauded John Adams’ political thought, and Parrington has hardly been alone.1257 We have examined Adams’ youthful training in civil law sources, his application of those sources in practice, and the influence of his neoclassical education on his self-image as a lawyer and his view of lawyers as an intellectual elite. But what of his politics? There remains the difficult question of what influence, if any, his early civilian training and knowledge had on Adams’ fundamental ideas about the legal system and the politics of his day.
It certainly should be no surprise that the Sodalitas Club played a large role in this regard. Indeed Adams’ first serious writing about law and politics was originally intended to be a paper for a Sodalitas dinner. This was the so-called “A Dissertation on the Canon and Feudal Law,” a most remarkable mix of sober analysis and raging invective.
A. “A Dissertation on the Canon and Feudal Law” (1765)
The first surviving version of the “Dissertation” is a fragment in Adams’ Diary “D/JA/10”—the same manuscript “Paper book No. 10” that contained the first records of the Sodalitas.1258 Judging only from its context, the fragment was written following the 21 February 1765 Sodalitas meeting which Adams himself hosted “at Blodgets. We were never in better Spirits, or more Social.”1259
Between drinks at Blodgets that February night Gridley proposed another rather strenuous discussion topic: feudalism. “We began the 13th. Title of the feudal Law De Alienatione Feudi and read three Titles.”1260 Adams quoted to his brethren “the Preface to the Historical Law Tracts, ‘The feudal Customs ought to be the Study of every Man, who proposes to reap Instruction from the History of the modern European Nations,’” but then quoted Rousseau Du Contrat Social (1762), which defined the feudal system as “‘that most iniquitous and absurd Form of Government by which human Nature was so shamefully degraded.’”1261 This caused quite a stir and a debate. Fitch said that the feudal system was a military necessity, “a wise and good system, for a martial People in such Circumstances.” Adams replied, “I think that the Absurdity and Iniquity lies in this, that Nations at Peace and in Plenty who live by Commerce and Industry, have adopted such a system.” Gridley agreed, adding cryptically “that Rousseau is shallow.”1262 Thus Adams began to think about the imposition of old systems of law and custom on societies which no longer required such laws as a matter of practical necessity, assuming that they ever did. Revolutionary musings!
Right after these Sodalitas notes, Adams wrote in his Diary that “[t]his Sodality has given rise to the following Speculation of my own, which I commit to writing, as Hints for future Enquiries rather than as a satisfactory Theory.”1263 Thus begins the “Dissertation,” and it is an extraordinary piece. Adams lambasted the “Cannon and Feudal Law” as the shrine of the “Desire of . . . Dominion, that encroaching, grasping, restless, and ungovernable Principle in human Nature, that Principle which has made so much Havock and Desolation, among the Works of God. . . .”1264 Despite the caution of Fitch and Gridley, Rousseau was on the throne in the torrential attack that followed. No hint of any recognition of the reasons or justifications or even the civilization represented by the feudal and canon law systems emerged, and certainly no indication that here was a man who could and did read canon law in Latin.1265 “[O]f all the . . . Nonsense, Delusion, and Frenzy that had ever passed thro the Mind of Man, none had ever been more glaring and extravagant than the Notions of the Cannon Law, of the indellible Character, the perpetual succession, the virtuous and sanctified Effluvia from Episcopal Fingers, and all the rest of that dark Ribaldry which had thrown such a Glare of Mistery, Sanctity, Reverence and Right Reverence, Eminence and Holiness around the Idea of a Priest.”1266
The basic contrast was, of course, with America. “I always consider the settlement of America with Reverence and Wonder.”1267 There the stalwart Puritan heroes “[a]fter their Arrival here . . . pursued their Plan both of Ecclesiastical and Civil Government in direct Opposition to the Cannon And the feudal systems.”1268 This was great rhetoric, but was it educated? And was it loyal? If it had been given as a Sodalitas paper, what would Gridley have said?
The fine work of the editors of the recently published Papers of John Adams allows us to follow easily the subsequent history and drafts of the “Dissertation.”1269 It was never presented to the Sodalitas. Instead, the approval of the Stamp Act by Parliament in March 1765 (in Adams’ words that “enormous Engine . . . for battering down all the Rights and Liberties of America”)1270 incited Adams to a new idea. He would publish the “Dissertation” in the Boston Gazette.1271
It was a slightly cooler version that was finally published in the Gazette as a series in August, September, and October of 1765. The Gazette version actually acknowledged that there just might have been a reason for the feudal system.1272 And it did omit the “Reverence and Wonder” passage about America.1273 But it still was a polemic, a hard-hitting piece. Not only were the corrupt customary laws of Europe contrasted with the ideals of righteous American settlers, but also with universal principles of law and reason, namely, “the principles, of the best, and greatest, and wisest legislators of antiquity.”1274
Now what did Adams mean by this? What standar1275 The truth was that young Adams was not too certain. But he had an idea. “[N]o such unworthy dependences took place in the ancient seats of liberty, the republic of Greece and Rome.” Bad history, but Adams meant something more. What really contrasted with the medieval European oppression of church and state was the reason of the Enlightenment. And this, in Adams’ mind, was built on the classical, civilian notions of universal legal principles, the rights and duties of the ius gentium. “[E]very writer, who would allow the people to have any right to life or property, or freedom, more than the beasts of the field, and who was not hired or inlisted under arbitrary lawless power, has been always willing to admit the feudal system to be inconsistent with liberty and the rights of mankind”1276
In the third and fourth installments of “A Dissertation,” in the Monday, 30 September 1765 Gazette, and the Monday, 21 October 1765 Gazette, Adams unveiled an important political and legal theory about the colonists’ proper relationship with the British Crown. The colonists, in Adams’ theory, “were contented therefore to hold their lands of their King, as their sovereign Lord . . . but to no mesne or subordinate Lords, nor were they willing to submit to any of the baser services.”1277 This rather confused version of feudal theory laid the groundwork for Adams’ later assertion that loyalty to the Crown did not automatically require consent to the taxation of Lords and Commons. Adams continued further that “Rulers are no more than attorneys, agents and trustees for the people; and if the cause, the interest and trust is insidiously betray’d, or wantonly trifled away, the people have a right to revoke the authority, that they themselves have deputed, and to constitute abler and better agents, attorneys and trustees.”1278
Were these doctrines rebellious? Not in Adams’ view. They were but a proper assertion of a legal order against an “arbitrary lawless power.” But what was the source of this legal order? It clearly could not be the Parliament. “Let it be known, that British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative and coeval with government. . . .” And where could this constitution be found? “[M]any of our rights are inherent and essential. . . . Let them search for the foundations of British laws and government in the frame of human nature, in the constitution of the intellectual and moral world”1279
For Adams, therefore, the ius gentium of the classical legal tradition and, more significantly, the continental Enlightenment were obvious sources of intellectual authority to resist the arbitrary power of the Parliament. “Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature; search into the spirit of the British constitution; read the histories of ancient ages; contemplate the great examples of Greece and Rome. . . .” Most particularly, “Let the Bar proclaim, ‘the laws, the rights, the generous plan of power,’ delivered down from remote antiquity. . . .”1280
Adams surely had reasons to take pride in “A Dissertation.” It may have been terrible legal history, but it had a useful and coherent political thesis. The four installments in the Boston Gazette were published anonymously.1281 But, to Adams’ delight, they were reprinted at once in England, through the efforts of Thomas Hollis, who placed them in the London Chronicle.1282 Further, to Adams’ even greater pleasure, the pieces were regarded as so learned they were attributed generally to Jeremiah Gridley. When the installments of the “Dissertation” were collected and published together in 1768 in The True Sentiment of America—again through Hollis’ influence—they were attributed to “Jeremy Gridley, Esq; Attorney General of the Province of Massachusetts Bay.”1283
It was a proud thing to be mistaken for Gridley, but Adams, naturally, had to put the record straight. What could be a better opportunity than a letter to the talented historian and pamphleteer, Mrs. Catharine Macaulay? Adams simply oozed false modesty:
Indeed it was rather a Mortification to me to find that a few fugitive Speculations in a News Paper, had excited your Curiosity to enquire after me. The Production, which some Person in England, I know not who, has been pleased to intitle a Dissertation on the cannon and the Feudal Law, was written, at Braintree about Eleven Miles from Boston in the Year 1765, written at Random weekly without any preconceived Plan, printed in the Newspapers, without Correction, and so little noticed or regarded here that the Author never thought it worth his while to give it Either a Title or a signature. And indeed the Editor in London [Thomas Hollis], might with more Propriety have called it The What d ye call it, or as the Critical Reviewers did a flimsy lively Rhapsody than by the Title he has given it.
But it seems it happened to hit the Taste of some one who has given [it] a longer Duration, than a few Weeks, by printing it in Conjunction with the Letters of the House of Representatives of this Province and by ascribing it to a very venerable, learned Name. I am sorry that Mr. Gridleys Name was affixed to it for many Reasons. The Mistakes, Inaccuracies and Want of Arrangement in it, are utterly unworthy of Mr. Gridleys great and deserved Character for Learning and the general Spirit and Sentiments of it, are by no Means reconcilable to his known Opinions and Principles in Politicks.
It was indeed written by your present Correspondent, who then has formed Designs, which he never has and never will attempt to execute. Oppressed and borne down as he is by the Infirmities of ill Health, and the Calls of a numerous growing Family, whose only Hopes are in his continual Application to the Drudgeries of his Profession, it is almost impossible for him to pursue any Enquiries or to enjoy any Pleasures of the literary Kind.1284
Hollis himself was eventually corrected by Andrew Eliot as to the true identity of the author, and Hollis added to his own copy that “This Dissertation . . . was written by John Adams, Esq., a young gentleman of the law. . . . He has a large practice, and will probably be soon at the head of his profession.”1285
David R. Chesnutt, an able historian with an obvious musical streak, recently has stated that the “simple theme” of Adams’ “A Dissertation” contrasts to Adams’ later “Novanglus” letters as “the Pachelbel Kanon” contrasts to “the Bach Brandenburgs”1286 “A Dissertation” was certainly simplistic, but it was a young work. As the times became increasingly intense, Adams became a more sophisticated ideologue, and his appeal to neoclassical jurisprudence for universal principles of law became more explicit and more precise.
The “Novanglus” letters were the culmination of Adams’ revolutionary thought. They were written right up to the outbreak of the fighting.1287 While earlier letters published by Adams evoked civilian authority and delved tentatively into jurisprudence, none could match “Novanglus” for learning and style.1288
There were twelve “Novanglus” letters, published anonymously in the Boston Gazette between 23 January and 17 April 1775. A thirteenth letter was never published, because of the suspension of printing following the battles at Lexington and Concord on 19 April 1775.1289 The “Novanglus” letters were provoked by, and responded to, another series of letters. These were written by Daniel Leonard, under the pen name “Massachusettensis,” and were published anonymously in consecutive issues of the Massachusetts Gazette and the Boston Post-Boy and Advertiser from 12 December 1774 to 3 April 1775.
Leonard, a successful lawyer from Taunton, had been a close friend of Adams.1290 He also had been a supporter of Samuel Adams and James Otis, but was turned from the popular party by the Boston Tea Party and subsequent events, which were too hot for his taste. He became a loyalist. By August of 1774 he had been driven from his Taunton home by enraged patriots and had settled with his family in the safety of Boston.1291 His letters, commencing three months later, emphasized the practical benefits of subordination to Britain and the “inconsistency of whig reasoning on the relationship between Parliament and the colonies.”1292 It was never clear whether Adams recognized, at the time, that his anonymous adversary was his old friend.1293
Adams’ editors have given Leonard an edge in the contest. “In this encounter at least, Leonard understood better the art of public persuasion. Adams sought to bowl over his opponent with an astonishing display of legal scholarship that might have impressed lawyers but would certainly have left ordinary readers bewildered, exhausted, and finally bored.”1294 Nevertheless, at least from this impressed lawyer’s perspective, Adams was juristically and intellectually superior, and, in fact, in a class by himself.
Adams’ purpose in writing the “Novanglus” letters was to establish a legal justification for a Commonwealth status for American colonies under a constitutional monarch. His first target, therefore, was the theory that the Crown’s theoretical dominion in the colonies brought with it the unlimited power of Parliament.
[A]fter the maxim was established, quod principi placuit legis habet vigorem, and so far from including the two houses of parliament in the idea of this imperial crown, it was intended to insinuate that the crown was absolute, and had no need of lords or commons to make or dispense with laws. Yet even these court sycophants when driven to an explanation, never dared to put any other sense upon the words imperial crown, than this, that the crown of England was independent of France, Spain, and all other kings and states in the world.1295
In the process of making this argument, Adams demonstrated a mastery of both colonial and English seventeenth-century constitutional history, together with an understanding of England’s historical relations with Scotland, Wales, and Ireland, and of the history of British provincial law,1296 including the post nati controversy and Calvin’s Case.1297 But the essence of Adams’ argument was not the doubtful precedents of English colonial history. The core of the argument was the application of three legal principles of the ius gentium, namely: (1) that under the law of nature and nations resistance to arbitrary power is allegiance to the principles of law, i.e. “[r]esistence to lawful authority make rebellion”;1298 and (2) that under the law of nations and the law of the English constitution itself there was no lawful parlimentary authority over the colonies, whether under the pretext of an “imperial crown” or otherwise,1299 i.e. “if the colonies are feudatory to the kings of England, and subject to the government of the king’s laws, it is only to such laws as are made in their general assemblies, their provincial legislatures”; and (3) therefore, resistance to attempts to subordinate colonial government to parliamentary edicts was, as a matter of universal legal principle, an affirmation of legal order.1300
Throughout Adams resorted extensively to civilian, comparative law and Enlightenment sources. He began with his “principle one,” that resistance to arbitrary power was lawful by the law of nature and nations. He turned first to Grotius’ De Jure Belli ac Pacis:
Be it remembered then, that there are tumults, seditions, popular commotions, insurrections and civil wars, upon just occasions, as well as unjust. Grotius B. I. c. 3 § I. observes “that some sort of private war, may be lawfully waged. It is not repugnant to the law of nature, for any one to repel injuries by force.”1301
Adams then turned to Baron Pufendorf’s Law of Nature and Nations, and the attached notes of Jean Barbeyrac, the French jurist:
Pufendorf’s law of nature and nations L. [Bk.] 7. c. 8 § 5 and 6. Barbeyrac’s note on §6. “[I] When we speak of a tyrant that may lawfully be dethroned, we do not mean by the people, the vile populace or rabble of the country, or the cabal of a small number of factious persons; but the greater and more judicious part of the subjects of all ranks. Besides the tyranny must be so notorious and evidently clear, as to leave no body any room to doubt of it, &c. Now a prince may easily avoid making himself so universally suspected and odious to his subjects: for as Mr. Locke says, in his treatise of civil government c. 18.§.209. ‘It is as impossible for a governor, if he really means the good of the people, and the preservation of them and the laws together, not to make them see and feel it; as it is for the father of a family, not to let his children see he loves and takes care of them.’ And therefore the general insurrection of a whole nation does not deserve the name of rebellion”1302
Adams concluded by invoking the full greatness of the Enlightenment against poor old “Massachusettensis”: “Surely Grotius, Puffendorf, Barbeyrac, Lock, Sidney, and LeClerk, are writers, of sufficient weight, to put in the scale against the mercenary scriblers in New-York and Boston, who have the unexampled impudence and folly, to call these which are revolution principles in question, and to ground their arguments upon passive obedience as a corner stone.”1303
Adams then turned to his “second” principle—the absence of any lawful parliamentary authority over the North American colonies. Again, he appealed to the universal law of nations, as the law of “right reason,”1304 and to classical antecedents:
Is America incorporated into the realm? Is it a part of the realm? Is it a part of the kingdom? Has it any share in the legislative of the realm? The constitution requires that every foot of land should be represented, in the third estate, the democratical branch of the constitution. How many millions of acres in America, how many thousands of wealthy landholders, have no representative there?
But let these “best writers” say what they will, there is nothing to the law of nations, which is only the law of right reason, appiled to the conduct of nations, that requires that emigrants from a state should continue, or be made a part of the state.
The practice of free nations only can be adduced, as precedents of what the law of nature has been thought to dictate upon this subject of colonies.
Their practice is different. The senate and people of Rome did not interfere commonly in making laws for their colonies, but left them to be ruled by their governors and senates. Can Massachusettenis produce from the whole history of Rome, or from the Digest, one example of a Senatus consultum, or a Plebiscitum laying taxes on a colony.1305
Thus in Adams’ view there was an explicit source of “the law of nations” directly relevant to the lawfulness of his positions: namely, “the practice of free nations” as “precedents of what the law of nature has been thought to dictate . . . ,” and “the opinions of the best writers upon the law of nations,” including Justinian’s Digest.1306 This authority was not only relevant, but, in Adams’ view, it supported a single particular rule as to foreign territories. “I deny therefore that the practice of free nations, or the opinions of the best writers upon the law of nations, will warrant the position of Massachusettenis, that when a nation takes possession of a distant territory, that becomes a part of the state equally with its ancient possessions. The practice of free nations, and the opinions of the best writers, are in general on the contrary.”1307 Furthermore, this universal authority, in Adams’ view, indicated a practical and just solution to the American “problem.” The provincial governments were commonwealths, with legislative independence, but they owed allegiance to the Crown as a constitutional sovereign. Rule by an absolutist parliament, in which the colonists had no voice, violated this natural law1308 Only if the natural lawful order were recognized would a peaceful society, based on true principles of law be possible. Quoting James Harrington’s The Oceana (3d ed., 1747), Adams concluded:
“A faithful peace was to be expected from men whose affections were conciliated—nor was any kind of fidelity to be expected from slaves.” The consul exclaimed, Eos demum, qui nihil praeterquam de libertate, cogitent, dignos esse qui Romani fiant. That they who regarded nothing so much as their Liberty, deserved to be Romans. Itaque et in senatu causam obtinuere, et ex auctoritate patrum, latum ad populum est, ut privernatibus civitas daretur.1309
Adams was not writing the “Novanglus” letters to urge “precipitating us into a civil war.”1310 On the contrary he had a compromise in mind. It was a compromise most ironically suggested by his study of the traditional dividing line between the civil law admiralty jurisdiction and common law jurisdictions, i.e. the “low water mark” of the ocean:
And therefore I contend, that our provincial legislatures are the only supream authorities in our colonies. Parliament, notwithstanding this, may be allowed an authority supreme and sovereign over the ocean, which may be limited by the banks of the ocean, or the bounds of our charters; our charters give us no authority over the high seas. Parliament has our consent to assume a jurisdiction over them. And here is a line; fairly drawn between the rights of Britain and the rights of the colonies, viz. the banks of the ocean, or low water mark. The line of division between common law and civil, or maritime law. If this is not sufficient—if parliament are at a loss for any principle of natural, civil, maritime, moral or common law, on which to ground any authority over the high seas, the Atlantic especially, let the colonies be treated like reasonable creatures, and they will discover great ingenuity and modesty. . . .1311
“Massachusettensis” had argued that there was “no possible medium between absolute independence and subjection to the authority of parliament.”1312 Adams replied:
If this is true, it may be depended upon that all North America are as fully convinced of their independence, their absolute independence, as they are of their own existence, and as fully determined to defend it at all hazards, as Great Britain is to defend her independence, against foreign nations. But it is not true. An absolute independence on parliament, in all internal concerns and cases of taxation, is very compatible with an absolute dependence on it in all cases of external commerce.1313
Until fighting actually began, Adams was looking for universal legal principles to resolve the dispute, perhaps resolve it “in a few hours,” even as those principles also justified the continuing American resistance, leading to war.
A staggering compilation of common law authority on the rights of parliament and the nature of the Crown graced the concluding “Novanglus letters.” Adams’ argument incorporated Calvin’s Case, the post nati dispute,1314 and extended into the most learned dissertations on the legal status of Wales and Ireland, Guernsey and Jersey, and the Counties Palatine.1315 His citations ranged from Coke’s Reports and Institutes to the latest Burrow’s Reports and the decisions of Lord Mansfield.1316 It was all a convincing demonstration of Adams’ ability to do serious research. Not only was this research remarkably accurate for its day, but it led Adams to propose a “royal Commonwealth” model which, in different times, would prove to be both practical and successful.1317 The “Novanglus” letters were an attempt to apply universal principles of law both to justify an ordered freedom and to prevent war. They demonstrated a genuine and cosmopolitan legal learning, and they represented, then and now, the legal mentality at its best. But even as Adams began writing the thirteenth “Novanglus” letter in April 1775, men were training on the Green at Lexington.
C. Conclusion: An Ideology of Universal Legal Principles
Adams tried to sound like Cicero.1318 His legal ideas were neoclassical too. He believed that there were universal principles of law applicable to all intelligent, civilized peoples and that these legal principles curbed arbitrary power.1319 This was nothing new in Massachusetts. Even John Winthrop “asserted the dependence of all civil laws upon natural law, and implied that a test of the law of nature was its agreement with the needs of the society to which it is applied.”1320 Still the young Adams sounded the call of fundamental law with a new assurance, and the notes were resonant with civilian learning and the spirit of the continental Enlightenment.
What was the ultimate significance of civilian learning in Adams’ own view? It was not just as a symbol of professional elitism, although Adams truly believed in the virtue of elitism.1321 Nor was it merely a useful tool in practice and advocacy, although it had stood him in good stead in cases from dead whales to affairs of state. Nor did Adams freely apply civilian precedents outside those cases concededly governed by civil law to fill in the gaps of the common law, much less to attack or subvert common law rules.1322 Rather, such learning was, to Adams, the mark of the whole intellectual lawyer. It linked the struggling, ambitious young apprentice in the Worcester office with the juristic world.
It was a world of legal principles, not just legal rules and procedures. It encompassed the jurisprudence of Grotius, Montesquieu, Ayliffe, Pufendorf, Vattel, Babeyrac, Domat, and Burlamaqui.1323 It extended to the renaissance of Bacon and Selden, and even to those ultimate classical symbols of humanist aspiration in the law, the classical Roman jurists, Justinian’s compilers, and Cicero.1324 It encouraged a provincial lawyer to dare to think “big,” to aspire to have universally valid ideas.
When Adams, as a battle-scarred seventy-year-old Federalist, took up his pen to continue writing his “Autobiography,” he recalled an incident nearly forty-seven years in the past.1325 It was that day in October 1758 when the young Adams went to seek support and advice from the patriarch of the Boston bar, Jeremiah Gridley.
[Gridley] “Have you read Grotius and Puffendorf?”
[Adams] “I cannot say I have Sir. . . .”
[Gridley] “You will do well to do so: they are great Writers. Indeed a Lawyer through his whole Life ought to have some Book on Ethicks or the Law of Nations always on his Table. They are all Treatises of individual or national Morality and ought to be the Study of our whole Lives.”1326