The Founding of the American Republic 2; C. Carson

The majority of the colonists were of English lineage, and they were preponderantly British in origin, since the latter designation would include those of Scotch and Irish descent. What the Americans con structed when they got the oppor tunity was mainly alterations and reshapings of their English her itage. Nonetheless, there was consider able ambiguity in the attitude of the colonists toward their English background. Indeed, this am biguity has attended the attitudes of those who have come from Europe over the centuries to settle in America. On the one hand, they have rejected the Old World, the most obvious sort of rejection being their very coming to the New World. Many who came have fled from one kind or another of persecution or oppression. The Old World has often been described by those who betook themselves to the New as a seat of persecution and corruption. Certainly, Amer ican colonists of the latter part of the eighteenth century readily identified the English Church and Dr. Carson is Chairman, Social Science De partment, Okaloosa-Walton College. He is a noted lecturer and author, his latest book en titled Throttling the Railroads.

1971 THE ENGLISH HERITAGE 525 government with corruption - the Church with its pampered hier archy and impoverished parish priests, and the government with its rotten boroughs and members of Parliament whose votes were bOUght by the monarch with sine cures. And yet, however ambiguous their attitude toward it may have been at times, the Americans did not basically reject their English heritage. Instead, they valued it essentially, made great efforts to preserve it, treasured its outlines, and, when the time came, builded upon it. From first to last, over a colonial period of a little less than two hundred years these settlers showed their attachment to and dependence upon England. Fathers who could afford it frequently sent their sons to be educated in Eng land. They read English books, watched English plays, if any, and consumed English-produced goods. A Pro-British Bias In many ways, the settlers showed their preference for things English, both in words and deeds. Professor Samuel E. Mori son says that two early New Eng land writers, Nathaniel Morton and Edward Winslow, declared that one of the main reasons the Pilgrims left Holland for the New World was the fear that their children would lose their language and nationality) One historian has recently shown how devoted the Puritans were to their Eng lish background. He says, "They were hardly more worried that their laws should be 'scriptural,' that is approved by the Bible, than that they should be sufficiently English; and that any changes in English laws should have ample warrant in local needs."2 Even more strongly, he declares: Scholarly dispute as to whether early New England law was primarily scriptural or primarily English is beside the point. For early New Eng landers these two turned out to be pretty much the same. Very little of their early legal literature attempted to construct new institutions from Biblical materials. They were trying, for the most part, to demonstrate the coincidence between what the scrip tures required and what English law had already provided. 3 A case could be made, however, that the New Englanders were among the least devoted to their English heritage of the American colonists. They were dissenters from the Church, developed a con siderable literature of their own, were opposed to such things as 1 William Bradford, Of Plymouth Plan tation, Samuel E. Morison, ed. (New York: Modern Library, 1967). p. 25.

2 Daniel J. Boorstin, The Americans: The Colonial Experience (New York: Vintage Books, 1958), p. 21. 3 Ibid., p. 24.

526 THE FREEMAN September plays, had colleges of their own, and had more latitude than was usual in developing their govern ments. Certainly, many of the other colonies conformed much more closely to English ways. A Virginian, writing in 1728, con trasted that colony with others, and proclaimed that "Virginia may be justly esteemed the happy Retreat of true Britons and true Churchmen."4 Statements affirm ing the connection between Brit ain and America can be found in abundance all the way up to the Declaration of Independence. Some Pressure to Conform Not all the affirmations of ad miration for things English nor all the reliance on Britain should be taken at face value as indicat ing the real state of sentiment or that everything that was done was voluntary. Colonists were under a variety of pressures and restraints which bent them toward such con formity. The charters under which they were supposed to operate usually required that their laws not be contrary to English law.

For example, the General Court of Massachusetts was authorized by the charter to make laws for the inhabitants, with the proviso that they be "not contrairie to the 4 Hugh Jones, The Present State of Virginia (New York: Joseph Sabin, 1856) , p. 48. Lawes of this our Realme of Eng land."5 The Maryland charter pro vided that the proprietor "was to make no laws incompatible with those of England, and none with out the consent of the freemen or their representatives."6 Since others usually had similar provi sions, colonists found it in their interest not only to conform to the British pattern but to profess to do so as well. A dependence on Britain for many things was engendered by British regulations. In general, they were encouraged over the years to buy various products from the mother country because of re strictions on their manufacture in the colonies. Such· restriction def initely hampered the development of an American literature by lim iting printing opportunities. An American printer could rarely un dertake the publication of a book because of the scarcity of type.

"In England the supply had been limited as part of the control of the press; a Star Chamber Decree of 1637 allowed only four persons, each with a limited number of apprentices, to operate type-found ries at anyone time. Not until the Revolution could American printers buy type of American 5 Quoted in Boorstin, Opt cit., p. 20. 6 T. Harry Williams. et. ai., A History of the United States, I (New York: Al fred A. Knopf, 1959),34.

1971 THE ENGLISH HERITAGE 527 manufacture."7 In the late seven teenth century, the King provided the Governor of Virginia with orders "that no person be per mitted to use any press for print ing upon any occasion whatso ~v~r."8 Not !l.ll th~ dependence of the colonies upon England was by choice, it is clear. Even so, the Americans did re vere the essentials of their Eng lish heritage. They could hardly have done otherwise; to reject it out of hand would have been to repudiate much of themselves as they were. The furniture of their minds was made up largely of British conceptions. Their angle of vision was set to see things the way one of such descendance would see them. The best proof that they revered the heritage, however, is that they kept so much of it when they had an opportunity following the revolt to dispense with it. To see that this was so, it will be use ful to call up the outlines of the English systems and ways.

British Conservatism A profound ingredient of the English heritage is the conserva tive cast of mind. In a general sense, this may not distinguish British peoples from most others. It is quite likely that most peoples at most times have been prepon7 Boorstin. Ope cit., p. 319. 8 Ibid., p. 332. derantly conservative, though not necessarily in a discriminating way. It could even be argued that man is by nature conservative (as are also the lower animals) in that he usually prefers to continue to do things in the same way he has done them. Small children tend to be conservative in insisting on ritualizing activities and in their intolerance toward things or peo ple that are different. Such con servatism is undifferentiated in its posture toward things familiar, reveres them for their familiarity alone. British conservatism is some thing different from and more than what might well be called "brute conservatism." If it were not, it should hardly have come to our attention, for it would only be a universal condition, one which would be no more worthwhile to announce than that Englishmen have two legs. The particularities of British conservatism took shape over many centuries of experience, took shape in the Middle Ages as a people defended their ways against Danish and Norman mon archs, as the classes battled against arbitrary and despotic kings, as the thrust of change was blunted by the persistent clinging to ancient rights and privileges.

British conservatism was a re ality long before Edmund Burke so elegantly gave it a set of articu528 THE FREEMAN September lated concepts and a language. Englishmen over many centuries harked back to the Magna Charta as the fount of their privileges. Parliament for its first several cen turies did not claim to legislate; it claimed only the power to par ticipate in declaring what the law 'was, and the law was, most fre quently, what it had been since the memory of man runneth not to the contrary. When the English Church broke from the Roman Church, the least changes were made in it of all the churches born out of the Protestant Reforma tion. The English had a revolu tion, of sorts, in the middle of the seventeenth century, but in short order they returned to their older arrangements. This is not to say that the British did not change; it is rather to affirm that when they changed they kept much more than they changed, and they were given to defending their changes on the grounds that they were restoring an earlier condi tion. It was this that the Ameri cans inherited and brought with them to their constitution-making and their attitudes toward insti tutions.

The Literary Heritage One of the most important of the things the colonists derived from England was the literary heritage. The vehicle through which it was transmitted was the English language, which became the tongue of the continental colonies. It is easy to ignore the significance of so common a thing as language, to imagine that what language one uses does not matter. It is quite otherwise, of course, for each language has its nuances, shades of meaning, rhythms, and tones. A language embodies much of the history and experience of a people; it embraces their values and transmits their culture. The English language was just becoming an effective literary language when the English colo nies were settled in the seven teenth century. The Renaissance and Reformation were the major movements out of which English was developed into a literary lan guage. Latin had been the lan guage used by peoples of Western Europe for formal and elegant secular writings, as well as those of the Church. The break with the Roman Church hastened the de velopment of national languages, and the Renaissance gave great impetus to growth of an imagin ative and scientific literature. The English language came into its own with Elizabethan poets and dramatists, the King James Ver sion of the Bible (1611), and the scientific writings of the seven teenth century. Hence, English men going forth into the wilder1971 THE ENGLISH HERITAGE 529 ness of the New World brought with them a potent and virile vehicle of communication.

It was through this language, too, that they imbibed the litera ture. One historian of ideas notes t.h!lt. if Am.~l'ie9..ng gh9..r~d with Great Britain the balladry and the more formal literature of the motherland. But the literary legacy was greater than this, for it was through English and Scotch channels that the Graeco-Roman classics and the literature of the Renaissance were transmitted to the American people.... The Brit ish newspaper, pamphlet, broad side, and magazine likewise pro vided colonial Americans with models."9 By the time of the American re volt, they had at the least four major categories of literary in fluence from Britain. The first of these to reach its fruition was that of the English Renaissance. Out standing works were produced by Thomas More, Edmund Spenser, Thomas Kyd, Christopher Mar lowe, and, preeminently, William Shakespeare. Spanning a much greater period of time and encom passing a much more diverse bounty of offerings was the Eng lish Reformation literature. It ranges from the writings of John 9 Merle· Curti, The Growth of Ameri can Thought (New York: Harper, 1951, 2nd ed.), p. 4.

Wyclif in the late fourteenth cen tury to John Wesley in the late eighteenth century, and includes those of Hugh Latimer, Miles Coverdale, John Tyndale, Robert Browne, Richard Hooker, John Buwyan., John M.\\'ton, G~otg~ Fc>x, and so forth. A third category was the seventeenth century philosophi cal and scientific literature which included the works of Francis Bacon, Thomas Hobbes, Isaac Newton, Roger Boyle, Edmund Halley, and John Locke. The lit erary heritage which had the most direct impact on founding the American Republic was that of political writings. This was a rich literature indeed, for it included the contributions of James Har rington, Edward Coke, Thomas Hobbes (not much referred to by Americans but an essential part of the justification of government because of the nature of man), Algernon Sidney, John Lilburne, John Milton, John Locke, John Trenchard, Earl of Shaftesbury, Thomas Gordon, William Black stone, and Joseph Addison, among many others.

Customs and Mores The British tradition included a complex of social arrangements, customs, institutions, and mores. Some of these had the sanction of law, and in some cases there were attempts to establish and maintain 530 THE FREEMAN September these relationships by law. Indeed, it would be difficult to name an institution that was not in some way buttressed by the power of government in seventeenth cen tury England. The Church was established, supported by taxation, and attendance at its services re- . quired. Economic organizations were usually chartered by govern ment, given monopolies for trade or manufacture in some jurisdic tion, their activities viewed as adjuncts of government. Manu factures were restricted as to where they might be carried on, wages controlled (usually in an attempt to keep them lower than the market price), and prices of goods frequently fixed. The devel opment of libertarian ideas in America (as well as in England) is given greater meaning with such a background in mind.

Marriage, the family, and prop erty were tangled in a web of restrictions and prescriptions. Ac cording to law, the landed inherit ance must go to the eldest son, a system known as primogeniture. In like manner, estates were fre quently entailed so as to prevent their being _broken up and dis posed of during the lifetime of the owner. Both these practices were widely established in the Ameri can colonies. Moreover, in Eng land, according to ancient practice, tenants had claims, in perpetuity, to the lands which they rented. A strong case could be made that these, and similar practices, but tressed the family as an institu tion. Not only did the eldest son inherit the estate (or other claims to property) but also the respon sibilities of the father, such as, to look after the widowed mother, to take care of unattached females in the family and any others who might not be able to provide for themselves.

Classless America Probably, though, these regula tions and prescriptions had much more directly the purpose of main taining a class system. Certainly, England had a class system in the seventeenth and eighteenth cen turies, though it had become more flexible, more subtle, and more complex than it had been in earlier centuries. There was an aristocra cy made up of the titled nobility and the upper clergy, whose mem bers had the privilege and respon sibility of sitting in the House of Lords. There was what has been most commonly referred to as a middle class composed of the landed gentry and merchants and tradesmen. The gentry were reck oned by their rent rolls, but the merchants were not so formally recognized. The merchants were a class primarily because they had been granted government privi1971 THE ENGLISH HERITAGE 531 leges, patents, and monopolies in trade and manufacture. There were assorted other free men be neath these in the scale, yeoman farmers, mechanics, parish priests, and so on. Below these were the disfranchised, those who did not have the basic political privileges and had insufficient economic priv ileges to be independent. An at tempt was made to transfer the outlines of this system to America.

Government Chartered Activities There were all sorts of insti tu tions which derived from England, but perhaps the main outlines and character of many of them can be suggested by the idea of the corp oration. A corporation, most bas ically, is some organization author ized by the sovereign. It might be a political organization such as the town, an economic one such as a trading company, or an edu cational one such as a college. The monarch authorized such organi zations by granting to them char ters or patents which spelled out their privileges, the scope of their activities, and might include vari ous limitations. Such corporations were relics of the Middle Ages, but they were given new vitality at the time of the settling of America by the founding of col onies on the basis of such charters. The tendency of this method of establishing organizations was to make all activity hinge on govern ment and be controlled by gov ernment.

The Sritish Constitution British political institutions and practices had the most direct bear ing on the founding of the United States, and it was from these that the most extensive borrowings were made. The most basic of these was the constitution itself. Some examination of it will clar ify the relation between British and American political organiza tions. It is no simple matter to de scribe the English constitution. It cannot be read in a single docu ment as can the United States Constitution. Indeed, much of it is nowhere written down in a document or collection of docu ments. It is a combination of sev eral sorts of things: the first of these is the way things are done in government, the procedures, practices, and customs; the second would be great acts which have altered these or fixed them more firmly, such as the Act of Su premacy of 1534 which placed the leadership of the Church in the hands of the monarch, or the Res toration Settlement of 1660 and the immediately succeeding years; a third kind would be great docu ments which have limited the king, such as the Magna Charta, 582 THE FREEMAN September the Petition of Right, and the Bill of Rights; fourth, would be court decisions which built up a body of law.

What the Americans learned or deduced from the existence of the English Constitution was a par ticular fortification of the idea of a higher law. There were other sources of the American belief in the higher law than the British constitution, but this was the main embodiment of it with which they were familiar. Americans learned over a long colonial period how one set of laws could be used to limit and restrict their own gov ernments. Many of them did not miss the point, either, that such restrictions could be protective of their rights and privileges, for however much the colonists might resent certain restrictions, the re quirements that their laws must conform to British laws secured to them their rights and priv ileges as citizens within an em pire. The best proof of this is that some of the same ways they had been restrained as colonies under the English constitution were re introd uced as restraints on the states in the United States Con stitution.

Separation and Balance of Power The principle of separation and balance of power among the branches was embodied in British government for Americans, as it ,vas for the Frenchman, Montes quieu. Of the three branches, it might be supposed that Americans were least attracted to monarchy. So they were, if monarchy be con sidered only in its manifestation of the trappings of royalty, the apex of an aristocratic structure, and hereditary rule. Such trap pings are only historical accidents, an Aristotelian might say; the essence of monarchy is rule by one. Americans did not abandon the monarchical principle, as we shall see; they trim.med away the superficial aspects of it, kept it under different guises or names, and counterbalanced it with other principles of disposing of power. Rule by one - limited by being circumscribed - was kept in the office of governor and president. Not only did Americans keep the monarchical principle, but they kept many of the functions that the English monarch had per formed. In England,' the king was chief executive; so are the gov ernor' and the President. The king appointed officers under him, took the leadership in forming and ex ecuting foreign policy, W~lS in con trol of the military forces, and had the prerogative of mercy, as well as being ceremonial head of state. All these powers, the Presi dent may exercise. Of course, there are some which were 1971 THE ENGLISH HERITAGE 533 sloughed off, such as head of a state church and all those that have to do with the hereditary principle.

Governmental Instruments The debt of Americans to the English legislative system is much better known than that to the monarchical principle. The most obvious borrowing is of the two house legislature. In like manner, there are similarities between the House of Commons and the United States House of Representatives: each is composed of members elected by district, each is the more numerous body, and each has the power of origination of revenue measures. The House of Lords and the Senate have both similarities and differences: the Lords are hereditary largely, while the members of the Senate were originally chosen by. state legislatures and still have fixed terms; each body is the smaller of the two; the Lords had more court functions, while the Senate has more to do with appointments in the executive branch. One court function of Parliament is pre served for Congress in the power of impeachment, another in the investigative powers.

Much of the English legal sys tem was established in the Amer ican colonies and some of it con tinued after the break. The most basic principle of justice, which the British had long labored to establish, was government by law. It is frequently described as a government of laws rather than of men. The fundamental require ment for this to prevail is that men be tried by standing laws, that they lose life, liberty, or property only after having been convicted of violating some law which was on the books preceding the committing of the act. A variety of procedures in Eng lish law supported this principle. The underlying one was the right to a writ of habeas corpus, the right of a person being held to demand that he be charged with violating some law or be released. As one historian notes, "Meant to serve as an effective check on arbitrary power, the writ was clearly established by Parliament in the late seventeenth century as a means of releasing a person un lawfully imprisoned."lo Independent Judiciary Another English principle which influenced Americans was that of having an independent judiciary.

This principle was fairly well es tablished before the end of the seventeenth century. The main threat to the independence of the 10 Robert A. Rutland, The Birth of the Bill of Rights (New York: Collier Books, 1962) , p. 15.

534 THE FREEMAN September judiciary had been the monarch, who had from time immemorial tried to use the courts as ex tensions and instruments of him self. The way to do this was through the power of appointment and dismissal. Several of the Stu art kings were notorious for sub duing the courts by these devices. Following the Glorious Revolution (1688-89), monarchs could no longer dismiss judges, and in the course of the eighteenth century kings abandoned the practice of appointing new judges upon their accession to the throne. England had an independent judiciary; judges could serve during good behavior, subject to dismissal only by both houses of Parliament. Grounded in Common Law The cornerstone of English law was the common law. The common law had taken shape during the Middle Ages as a result of deci sions of the king's courts who sought to find the common ele ments in the diverse customs and practices among the English peo ple. It arose as an edifice from judicial decisions over many cen turies and was a depository of legal experience for a people. Un doubtedly, the common law was, and is, a mixed bag; one can find somewhere in it rulings along al most any line sought. It is ordi narily seen as having much more consistency than that, however, because in any given era the rul ings fall into a pattern. It is pro foundly conservative, for the law is resistant to change; courts are ordinarily considered to be bound by precedents, and legislative en actments are usually only frivo lously suggestive and tentative be side it. By the time the judges have brought a legislative act within the confines of existing law, any radical character which the act might have had originally will usually have been lost. The common law is the main device by which the courts counterbal ance legislatures in the English system. Among the protections of individuals under the common law, were the following, according to one account: "due process of law, habeas corpus, and an ad monition 'that no man ought to be imprisoned, but for some cer tain cause .... ' The common law also offered accused persons the expectation that they would readi ly be 'tried in the county where the fact is committed.' Double jeopardy for the accused was for bidden .... "11 Trial by Jury Trial by jury was common prac tice in England long before Euro peans became aware of the Amer icas. Courts are, after all, instru11 Ibid., pp. 19-20.

1971 THE ENGLISH HERITAGE 535 ments of government, judges fre quently appointed by the executive power. Juries, by contrast, are made up of private citizens, peo ple in like condition to whoever is being tried in that they are of the ruled. They are charged with determination of the facts, but these must ever be viewed in the light of the penalty to be assessed if the person is found guilty. The jury may also have most directly in mind the future peace of the community. Hence, trial by jury was venerated both by the English and their American descendants. The English heritage, then, was a rich one. Many had left England to come to America for one reason or another. Yet, their coming they would rarely construe as a repudi ation of their heritage. Those things that drove them from Eng land could be and usually were thought of as aberrations from the traditions. The Church of England was a corruption of orig inal Christianity; therefore, it needed to be purified. The tyran nies of monarchs were violations of the constitution. In this view, the colonists were frequently joined by a numerous body of the English people and could find their ideas substantiated by British thinkers.

Of course, the Americans made innovations in the English herit age. They grew away from the English system in many ways and, at the least, became devoted to their interpretation of it. What they chose to preserve of it was that attenuation of it that pre vailed in America, that which had become a part of themselves out of long experience. It is time now to examine that experience. ~ Next: The 'Colonial Religious Experience ALSO BY CLARENCE B. CARSON THE AMERICAN TRADITION 316 pages - cloth $5.00; paper $2.00 THE FLIGHT FROM REALITY 568 pages - cloth $5.00; paper $2.50 Order from: The Foundation for Economic Education, Inc. Irvington-on-Hudson, New York 10533 HOWARD CALLAWAY DURING the past several years there has arisen in this country a great deal of discontent and a dreary pessimism concerning the prospects for happier times. The most persistent explanation is that the government, "the system,'" has failed to meet the needs and as pirations of various large groups of people. And this is exactly what has happened. To admit the fact, however, is not to justify the ful fillment of such "needs" and de sires.