John Adams and the Constitutional History of the Medieval British Empire James Muldoon Studies in Modern History General Editor: J. C.D. Clark Studies in Modern History Series Editor J.C.D. Clark Department of History University of Kansas Lawrence, KS, USA This series is designed to accommodate, encourage and promote books which embody new perspectives on old areas of study. More information about this series at http://www.springer.com/series/14138 James Muldoon John Adams and the Constitutional History of the Medieval British Empire James Muldoon John Carter Brown Library Providence, RI, USA Studies in Modern History ISBN 978-3-319-66476-7 ISBN 978-3-319-66477-4 (eBook) https://doi.org/10.1007/978-3-319-66477-4 Library of Congress Control Number: 2017950727 © The Editor(s) (if applicable) and The Author(s) 2018 This work is subject to copyright. 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Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: © World History Archive/Alamy Stock Photo Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland P reface When discussing the respective spheres of responsibility proper to the Church and to the State, and the limits on the right of the Church to intervene in secular affairs, medieval canon lawyers employed a useful image. For churchmen to intervene in secular matters would be as wrong as the act of a man who “put his sickle in a stranger’s harvest.”1 Such an act violated a legitimate boundary line and enabled the trespasser to steal from the owner. The phrase came to mind in the course of writing this book. After all, what right does a medieval historian have to write a book on one of the most deeply intellectual of the Founding Fathers? Am I swinging my sickle in the bountiful fields that academic practice assigns to specialists in American colonial history? This project originated many years ago as a query from my graduate mentor, Brian Tierney, some time after I had completed graduate school where I studied medieval canon law and written a dissertation on the concept of secular power in the medieval canonists. He inquired what I could make of Adams’s Dissertation on the Canon and Feudal Law, a col- lection of essays that Adams published in 1765 against the backdrop of the Stamp Act Controversy and the rumor that the Church of England was going to establish a diocese in North America. At first glance, the 1Innocent III, Venerabilem (1202) in The Crisis of Church and State 1050–1300, ed. Brian Tierney (Englewood Cliffs, NJ: Prentice Hall, 1964; reprinted, University of Toronto Press: Toronto, 1988), 133–134 at 133. The phrase is from Deuteronomy, 23:25. v vi PREFACE title is misleading because the articles were not about law, canon or feudal in the literal sense. These laws represented the kinds of pressure involved in the struggle between the North American colonists and the increasing power of the English parliament. It seemed to me that Adams was employing the image of the two laws to compare the situation in the colonies with the Norman Conquest of England in 1066 and the imposi- tion of what came to be labeled the Norman Yoke, feudalism in secular affairs and the canon law of the reformed Catholic Church in religious matters, on Saxon England. This image was widely employed in the sev- enteenth century by opponents of the Stuarts to describe Stuart govern- ment and became a part of the English political vocabulary.2 In the course of reading Adams I discovered that he never used the term Norman Yoke, but it seemed to me that he did not need to use that specific language to make his point. His readers would recognize the image and the association with Norman oppression. As we shall see, the image of the imposition of the yoke contributed to the theme of the his- tory of England since 1066 as the contest between the virtuous Saxon republican tradition and the Norman tradition of oppression. The strug- gle between the colonists and parliament was only the most recent stage of that conflict. Could Adams have really believed that the eighteenth-century govern- ment of England was ready to suppress the Americans in the way that the Normans suppressed the Saxons? Would the American colonies have been returned to the medieval dark ages unless the colonists had rebelled and continued to develop a republican government? Given the memory of the English Civil War (1642–1649), the numerous historical works available to the English-speaking world that dealt with English constitu- tional history, and the memory of the English Civil War, how could the Americans not fear a repetition of Norman and Stuart oppression? That being the case, how could they not recognize the two laws as symbols of the Norman Yoke? Professor Tierney’s interest in Adams’s writings sprang from an exchange of articles with Prof. Samuel Beer, a distinguished political sci- entist. Professor Beer had published an article contrasting the political 2Christopher Hill, Liberty Against the Law (London: Penguin, 1996), 83–90; also his Puritanism and Revolution (London: Secker & Warburg, 1958); John Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957, 1987), 318–319. PREFACE vii thought of Thomas Aquinas (1225–1274) with that of John Adams (1735–1826) in order to demonstrate the radical difference between medieval political thought and that of the American revolutionaries. Professor Beer argued that when the American revolutionaries chose to create a republic “they turned their backs on one of the main lessons of the Western political tradition,” a belief that authority was vested “in a hierarchy of natural virtue and a hierarchy of divine ordination,” a theory that he argued was central to the thought of Aquinas. He employed “the Thomistic system as a magnifying glass to bring more fully into view the deeper lineaments of the hierarchic idea,” which he argued was the fun- damental principle of medieval political thought. In his opinion, “we today will not grasp the radicalism of the American choice in 1776 unless we compare it with the ancient political orthodoxy against which both the English republicans and their American successors took up arms.”3 In Beer’s opinion, for 2000 years virtually all political thinkers “had rejected popular government” because they “did not doubt that the ruler, whether prince or prelate, knew what was good for the ruled and, therefore, had the right, indeed the duty, to direct them toward the good.”4 The bulk of the people were not capable of knowing what was best for them. In contrast to the thought of Thomas Aquinas, Beer pointed to John Adams’s A Dissertation on the Canon and Feudal Law. According to Beer, these essays “had gone to the heart of the conflict between Britain and America,” and saw it “as a contest between the idea that the many must look to the few for instruction in and direction toward the com- mon good and the opposing idea that the many can themselves deter- mine the common good and direct the polity toward its realization.”5 Professor Beer’s polarized vision of political thought, medieval and modern, Aquinas and Adams, did not go unchallenged. Tierney pointed out that Aquinas was far from being the only medieval thinker who dealt 3Samuel H. Beer, “The Rule of the Wise and the Holy: Hierarchy in the Thomistic System,” Political Theory14 (1986): 391–422 at 391–393. He made a similar argument in “The Rule of the Wise and the Holy: Thomas Aquinas,” Chap. 1 of To Make a Nation: The Rediscovery of American Federalism (Cambridge: Harvard University Press, 1993), 31–65. 4Beer, “Rule of the Wise and the Holy,” 391. 5Beer, 392–393. viii PREFACE with political matters and he was far from being the most important.6 He discussed the large amount of work that scholars dealing with medi- eval political thought had produced since World War II, especially work dealing with theories of political representation that Beer had asserted only arose much later. Tierney pointed out that theories of popular rep- resentation had arisen in the later Middle Ages in connection with the conciliar movement that sought to create a constitutional structure for the Christian Church. Furthermore, it was not the theologians and philosophers such as Aquinas who were developing these theories but the canon lawyers who were a dominant force in the organization and administration of the medieval Church.7 For these thinkers the con- cept of representation “implied also an actual bestowal of authority upon the representative by those whom he was to represent, with the corollary that such authority could be withdrawn in case of abuse.” A pope’s power was “a derivative and limited right of government con- ferred on him by the Church” so that the pope “far from possessing absolute power, responsible to no human tribunal” had limited power and could be removed if he failed in his role.8 In Tierney’s opinion, well before the eighteenth century, the concept of representation, one of the most debated issues in the decade preceding the American Revolution, was being discussed and developed by medieval scholars, especially canon lawyers. In fact, there “seemed to be a possibility of presenting a coherent history of the growth of Western constitutional thought from twelfth-century jurisprudence to the fully developed constitutional theo- ries of the seventeenth century.”9 Seen in that light, Adams’s work does 6Brian Tierney, “Hierarchy, Consent, and the Western Tradition,” Political Theory 15 (1987): 646–652. It is worth noting that in To Make a Nation, Beer did not cite Tierney’s article. 7On the importance of the canonists: see Walter Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London: Methuen, 1949), 1–4. 8Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism (Cambridge: Cambridge University Press, 1955; reprinted and enlarged, Leiden: Brill, 1998), 4–5. 9Tierney, Foundations , xxi; subsequently, he produced a volume to do just that: Religion, Law, and the Growh of Constitutional Thought, 1150–1650 (Cambridge: Cambridge University Press, 1982). See also the work of Francis Oakley, The Conciliarist Tradition (Oxford: Oxford University Press, 2003) and J.H. Burns and Thomas M. Izbicki, Conciliarism and Papalism (Cambridge: Cambridge University Press, 1997). The work of Tierney, Oakley, and those who have demonstrated the importance of the medieval canonists has received strong criticism, especially from Cary Nederman: see his PREFACE ix not appear to be the radical break with the past that Prof. Beer postu- lated, because the medieval debates about governance provided concepts and a vocabulary that when secularized in the early modern world could be and were employed in secular political debates up to the eighteenth century and beyond.10 At the beginning of his article, Tierney observed that the work of medievalists is ignored except by fellow medievalists. At the same time, “everyone feels competent to pass judgment on medieval achievements, or to decry the lack of them.”11 This was not restricted to Prof. Beer’s work. The Tierney-Beer debate ended with the publication of Tierney’s article. One might have expected some further discussion between the authors because of the importance of the issue at stake, the development of representative government, but none occurred. There was some schol- arly discussion of these articles but not apparently in journals devoted to “Conciliarism and Constitutionalism: Jean Gerson and Medieval Political Thought,” History of European Ideas , vol. 12 (1990): 189–209; his “Constitutionalism – Medieval and Modern: Against Neo-Figgisite Orthodoxy (Again),” History of Political Thought, 17 (1996): 179–194; and his “Empire and Historiography of European Political Thought: Marsiglio of Padua, and the Medieval/Modern Divide,” Journal of the History of Ideas (2005): 1–15. Nederman in turn received a sharp response from Francis Oakley, “Nederman, Gerson, Conciliar Theory and Constitutionalism: Sed Contra, ” History of Political Thought , 16 (1995): 1–19. 10The way in which medieval ecclesiastical concepts entered the secular political vocabu- lary has attracted a good deal of interest in recent years: see , for example, Carl L. Becker, The Heavenly City of the Eighteenth-Century Philosophers (New Haven: Yale University Press, 1932). There is also the work of Carl Schmitt: see Giacomo Marramao, “The Exile of the Nomos : For a Critical Profile of Carl Schmitt,” Cardozo Law Review , 21 (2000): 1567–1587 at 1571. The work of Tierney, Oakley, and those who have demonstrated the importance of the medieval canonists has received strong criticism, especially from Cary Nederman: see “Conciliarism and Constitutionalism: Jean Gerson and Medieval Political Thought”, History of European Ideas , 12 (1990): 189–209; see also “Constitutionalism— Medieval and Modern: Against Neo-Figgisite Orthodoxy (Again),” History of Political Thought , 17 (1996) 179–194; and “Empire and the Historiography of European Political Thought: Marsiglio of Padua, and the Medieval/Modern Divide,” Journal of the History of Ideas (2005): 1–15. Nederman in turn received a sharp response from Francis Oakley, “Nederman, Gerson, Conciliar Theory and Constitutionalism: Sed Contra, ” History of Political Thought , 16 (1995): 1–19. 11Tierney, “Hierarchy and Consent,” 646.