Saturday, April 27, 2013

Henry Adams and the Origins of Professional Legal History in America

[Here is another installment in Guest Blogger David Rabban's series of posts on Law's History.]
In my first post about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I highlighted its contents and major conclusions.  This second post addresses the importance of Henry Adams as the first major professional legal historian in the United States, which I knew nothing about when I started my research for the book.

During an understandably overlooked period of his varied and productive career, Henry Adams taught history at Harvard from 1870 until he resigned in 1877 to pursue a more active and cosmopolitan life in Washington, D.C.  Neither Adams himself nor subsequent biographers and scholars attached much significance to his few years as a Harvard professor.  Compared to his subsequent multi-volume works of American history and especially to his great books, The Education of Henry Adams and Mont Saint Michel and Chartres, his brief career at Harvard seems minor.  For an understanding of the history of legal history in the United States, however, the years Adams spent at Harvard were crucial.  During this period, Adams and his students virtually created the field and provided a model for subsequent legal historians in England as well as in their own country.  Most importantly, Adams applied the methods and the findings of German legal historians to the study of Anglo-American law while emphasizing its Teutonic origins.

For two years after his graduation from Harvard College in 1858, Adams, like many Americans of his generation, studied law in Germany.  At the invitation of Charles W. Eliot, the recently appointed president of Harvard who soon transformed it into a major research university, Adams returned in 1870 to teach medieval history and to become the editor of the North American Review.  Adams recognized that he was “brought in to strengthen the reforming party in the University,” led by Eliot, which assured him “of strong backing from above.”  Soon after his appointment, Adams indicated his commitment to Eliot’s reforms by publishing an article in the North American Review stating that successful education must “make the scholar its chief object of interest.”

In a series of book reviews in the North American Review in the early 1870s, Adams assessed the work of major European legal scholars and set forth his own views about legal history.  The Essays in Anglo-Saxon Law (1876) by Adams and three of his students, whose contributions earned the first Ph.Ds granted by the History Department, carried out the research in primary sources that Adams had urged in his reviews.  Their publication announced a new school of American legal history, received international acclaim, and stimulated further historical research by American law professors.

Mostly reviewing books by English and German authors, Adams repeatedly criticized the English for not emulating the scientific history practiced in Germany.  Particularly embarrassing for the English, Adams emphasized, German legal scholars had written numerous books that bore directly on the legal history of England and that the English themselves had not even consulted.  Indeed, little of this outstanding German scholarship had even been translated into English.  He declared German “scientific” scholarship vastly superior to the mostly insular and amateurish work produced in England, which was constrained by the historical fictions of the English common law and the weaknesses of the English educational system.  According to Adams, the German scholars had demonstrated what English scholars resisted, that archaic German law, rather than Roman law or “William the Conqueror’s brain,” was the source of the English common law and of its constitutional system.  Adams viewed Henry Maine’s Ancient Law, published in 1861, as a promising exception to the poverty of English scholarship, placing Maine at the same level of intellectual importance as Darwin.  But Adams complained that Maine often advanced theories he did not attempt to prove, that his “brilliant  hypotheses” remained “hazardous guesses.”

The Essays in Anglo-Saxon Law stressed the Germanic origins of Anglo-Saxon law in England, and thus the relevance of archaic German law on the continent to understanding the history of English law.  More generally, they identified Germanic sources of positive English values, such as equal rights and democratic government.  Differentiating German law from Roman law, they maintained that the archaic German family did not resemble the Roman patriarchal family, whose structure Maine assumed had been a universal stage of social development.  From the extensive archival research I did for my book, one of the most interesting discoveries was an unpublished letter from Maine to Adams in the Lamont Library at Harvard, which praised the Essays by Adams and his students and acknowledged that he should have treated German law more extensively in his own work.  Thus Maine, the most famous legal scholar in England, recognized the importance of the emerging American legal historians.  I was also struck that Patrick Wormald, in his important book published in 1999, The Making of English Law: King Alfred to the Twelfth Century, called the Essays “serious, though now rarely cited,” and praised the one by Adams as “lastingly important.”

[The series continues here.]