And Chapter 6, “Constitutional Conflict and the American Revolution.”

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Law of Nations

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References 29
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1 See below for the courses in law that George Wythe offered at The College of William and Mary after appointment as the first professor of law in America in 1779.

2 His cousins included Edmund Randolph (governor of Virginia, participant in the Constitutional Convention and supporter of the Constitution in the Virginia ratifying convention, Washington’s first secretary of state), John Marshall (supporter of the Constitution in the Virginia ratifying Convention, Congressman, envoy to France, Secretary of State under John Adams, and fourth Chief Justice of the Supreme Court); Henry “Light-Horse Harry” Lee (supporter of the Constitution in the Virginia ratifying convention, governor of Virginia, father of Robert E. Lee); and John Randolph of Roanoke (Congressman, prominent supporter of states rights). (See Smith, 1996, Table between pp. 368-369.)

3 Brown gives a spare, 200-page critique, though it must be read with Beard (1913) at hand, and raises grave doubts about Beard’s historical methods. McDonald (1958) devotes more than 400 pages to detailed, often quantitative, refutation of Beard’s analysis.

4 Bailyn (expanded edition 1992, Postscript) argues that the Framers depended on much the same literature the Founders knew. In particular, he argues, the anti-Federalists used much the same literature as the Founders, with the same charges, fears and rhetoric, as in the run up to the Revolution in 1776.

5 The Founders and Framers had a first try at designing a federal constitution when they wrote the Articles of Confederation (submitted in 1777, ratified in 1781). Many thought the Articles ill-designed precisely because the drafters did not think them through as an integrated, balanced system with separation of powers and adequate checks and balances.

6 John Locke drafted for the government of the Carolinas a set of “Fundamental Constitutions” modeled on Harrington’s Oceana, including an aristocratic, large-landholders upper house that initiated legislation, and a lower house that could vote only yes or no on legislation the upper house drafted (Morgan 1989, p. 129). This did not work at all well.

Hume (1985, p. 514) offered some praise to Harrington and Oceana. He dismissed Plato’s Republic and More’s Utopia: “All plans of government, which suppose great reformation in the manners of mankind, are plainly imaginary. Of this nature are the Republic of Plato, and the Utopia of Sir Thomas More. The Oceana is the only valuable model of a commonwealth, that has yet been offered to the public.” Hume then discusses the flaws he finds in Oceana, and puts forward his own plans that avoid these flaws. Another well-known utopia was The New Atlantis, by Francis Bacon (1561-1626), who was greatly admired by many of the Founders and Framers.

7 Adair (1957) makes the case that Madison’s notions of an “extended” republic, presented both at the Constitutional Convention and in the Federalist Papers, are based on a few final paragraphs in Hume’s “Idea of a Perfect Commonwealth.” Bailyn (expanded edition 1992, p. 329) finds Madison’s notions of an “extended” republic, as opposed the Montesquieu’s famous views that only a small republic could survive, were anticipated in print by two authors supporting the Constitution. Further, Bailyn (p. 368) argues that Madison “was doing what … James Wilson and Alexander Hamilton were doing, too … and what many other lesser figures … were also doing, namely, showing the inapplicability in America of the inherited notion that republics can survive only on a small scale…. The difference between Madison and the other federalist writers who tackled the problem of size lay not in the point of the arguments but in the style and quality of argumentation.” Bailyn (1992, pp. 371-375) discusses other attacks by Americans on the authority of Montesquieu’s views.

8 Some authors think that parties were not well enough organized until say after the American Revolution to label governments as Tory or Whig. Nevertheless, whether a given politician was Whig or Tory was clear.

9 Morgan (1989) writes:

Harrington … offered in his Commonwealth of Oceana a model of government so bewildering in its detail that it could scarcely have had a wide reading. But its analysis of England’s society and politics was carried to the public in simpler form in a variety of briefer tracts, including many by Harrington himself. (p. 89) …. Harrington expounded, or rather buried, these ideas in his tiresome Utopian fantasy. But the fact that Oceana is virtually unreadable did not prevent the ideas in it from finding their way into popular tracts and gaining wide acceptance in both England and America in the seventeenth and eighteenth centuries. (p. 157)

10 As Morgan (1989) notes:

There is no evidence that they [the Americans] were familiar with the writings of the Levelers, where the would have found the most explicit discussion of it [the idea of popular sovereignty]; but they were familiar with Locke …

11 For a strong exposition of the view that Jefferson drew primarily on Locke, see Becker (1922). In contrast, Wills (198X) asserts the primacy of Scottish Enlightenment thought in the Declaration.

12 See Tuchman (1984), Mansfield (1965), Kramnick (1968) and Owen (1974) for discussions of the Whig Ascendancy and its opponents.

13 Locke phrased his compact theory in terms of individuals. Bolingbroke spoke of a compact among men who were all-powerful fathers of family, patriarchs. Hume denied that governments arose from compacts, and instead stressed the necessity of government to avoid problems that would arise without it, particularly insecurity of life, liberty and property.

14 McDonald (1982, p. 365, n. 1) writes that Pope was the only poet Hamilton quoted in his papers. Adams was advised as a young man to study Swift and Pope to gain command of language; he sent a gift of several volumes of Pope to his son, John Quincy; on a tour of English gardens with Thomas Jefferson in 1786, they visited Pope’s (d. 1744) garden; on the title page of his A Defense of the Constitutions … (1787), Adams placed a line from Pope; and in his writings on human nature he drew heavily on Pope’s Essay on Man, among other authors (McCullough 2001, pp. 51, 259, 357, 374, 421). John Marshall wrote in 1827, when he was seventy two, that, “At the age of twelve, I had transcribed Pope’s Essay on Man, with some of his Moral Essays.” (Smith 1996, p. 21.)

15 Bailyn (1967, p. 22) quotes well known lines from the will (1774) of American patriot Joshiah Quincy, Jr. (1744-1775), of Massachusetts:

I give to my son, when he shall arrive to the age of fifteen years, Algernon Sidney’s works,—John Locke’s works,—Lord Bacon’s works,—Gordon’s Tacitus,—and Cato’s Letters. May the spirit of liberty rest upon him.

The authors are Algernon Sidney (1622-1683), Sir Francis Bacon (1561-1626) and John Locke (1632-1704). The works mentioned are Thomas Gordon’s (d. 1751) translation of the Roman historian, Tacitus, who wrote scathingly of tyranny, corruption and loss of liberty in the early Roman Empire, after the destruction of the Roman Republic, and John Trenchard (1662-1723) and Gordon’s Cato’s Letters. Bailyn (1967, p. 42) writes that

Gordon prefaced his translations with introductory “Discourses” of prodigious length in which he explained beyond all chance of misunderstanding the [Whigish] political and moral meaning of [Tacitus’s work].”

16 George Wythe, Chancellor of Virginia, signer of the Declaration of Independence, and participant in the Constitutional Convention, introduced John Marshall to the study of Montesquieu and Hume in 1780 (Smith 1996, p. 78). There were more than forty students in the law course Marshall took from Wythe.

17 Madison’s views of the banking system changed back and forth. Jefferson, so greatly changeable in many of this opinions, disliked a federal banking system from the start.

18 Fink (1945) points out that some parts of the theory of mixed government were foreshadowed in Aristotle.

19 The republican writer Algernon Sydney later formulated that notion that the descendants of those whose virtue had ennobled them should be considered noble until their actions proved them otherwise (Fink 1945, p. 97). Sydney was born in 1622, was an active republican writer during the Commonwealth period, went into exile after the Restoration, negotiated a pardon from Charles II and returned to England in 1677, and was executed for treason in 1683.

Harrington was arrested for treason after the Restoration, treated harshly in jail, leaving mental and physical damage, was never brought to trial and finally released, and died in 1677 without writing further on political topics.

20 The Framers modified the concept of sovereignty to allow imperium in imperio, but the concept retained a strong hold on them. When Hamilton wrote to Washington to urge the constitutionality of the Bank of the United States he argued

It was “inherent in the very definition of government … that every power vested in a government is in its nature sovereign, and includes, by the force of [that] term, a right to employ all the means requisite …” (Brookhiser 1999, p. 91, italics in original.)

21 The extent of Blackstone’s influence has been called into question; see McDonald (1982, p. 378, n. 17). McDonald (1982, pp. 57-62) discusses the ways Blackstone did and did not influence Alexander Hamilton (signer of the Constitution, one of the authors of the Federalist Papers, and Secretary of the Treasury under George Washington).

22 George Wythe was appointed the first law professor in America in 1779, at the College of William and Mary. Marshall took his course of lectures the second time they were offered, starting May, 1780 (Smith 1996, p. 75ff.). Hamilton, like most other budding lawyers, read law in a practicing lawyer’s office (Brookhiser 1999, pp. 55-56; McDonald 1982, pp. 51-52.)

23 “Its initial subscribers included George Wythe, John Jay, James Wilson, Roger Sherman, John Adams and virtually every leading member of the legal profession.” (Smith 1996, p. 77.) Thomas Marshall, father of John Marshall, was a charter subscriber. “For the next several years, father and son studied Blackstone together.” (Smith 1996, p. 75) Wythe was Chancellor of Virginia, a signer of the Declaration of Independence, and a participant in the Constitutional Convention. Jay (NY) was first Chief Justice of the United States and an author of the Federalist Papers. Wilson (PA) and Sherman (CT) were signers of the Constitution, and played important roles in its ratification. Adams (MA) was a leader in the Revolution and the second president of the United States. Thomas Marshall was a surveyor, not a lawyer.

24 From the start, Blackstone has been viewed by some as a conservative influence. Brookhiser (1999, pp. 170-171) writes of Jefferson’s views:

Fretting about the conservatism of law professors at the University of Virginia, he complained that Coke had once been “the universal elementary book of law students, and a sounder Whig never wrote.” But when “honeyed … Blackstone became the students’ hornbook, from that moment,” the legal profession “began to slide into toryism.”

25 Hamilton cited Grotius and Pufendorf, as well as Locke and Montesquieu, in a pamphlet he wrote in 1775; there is some question of whether he read Grotius and Pufendorf in any depth until later, and he read Vattel after the war but before the Constitutional Convention in 1787.

26 Bailyn (1967, p. 43), writes,

By 1728, in fact, Cato’s Letters [Trenchard and Gordon] had already been fused with Locke, Coke, Pufendorf and Grotius to produce a prototypical American treatise in defense of English liberties overseas [by Daniel Dulany, Sr., Annapolis, 1728, The Rights of the Inhabitants of Maryland to the Benefits of the English Laws].

27 Kramnick (1968, p. 201, and n. 37) raises the issue of whether Mandeville’s thought is mercantilist or laissez-faire.

28 Gibbon’s Decline and Fall of the Roman Empire, consciously or not, essentially takes a physiocratic view of the relationship of the countryside to cities.

29 When revised or reprinted volumes are used, the most common previous publication date is typically given in parentheses.

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