Having returned, as he put it, to “the small Boston world” following his wedding year abroad, Henry introduced an advanced research seminar at Harvard on medieval institutions.1 The course probed deeply into Anglo-Saxon law, a fresh area of interest for Adams stimulated during his recent stay in London, where his social circle included a scattering of legal scholars. The seminar proved to be the catalyst for Henry’s initial effort in the emerging field of scientific history. Just as the old Puritans, to whom the past revealed God’s divine plan, gave way to generations of patriotic writers, so the patriots, recorders of the nation’s glorious Revolution, were now giving way to university-trained men. Among them, Adams did his share of training. Having received permission from President Eliot to go ahead with the section, he recruited a handful of doctoral students and together they produced an ambitious monograph that traced the roots of English Common Law—a welter of codes, customs, and legal practices—back to its purported Anglo-Saxon origins. Democracy, in other words, was but a matter of descent.
Henry’s interest in comparative jurisprudence might seem ironic considering his disinclination to follow family protocol and study law. But as editor of the North American Review he ruminated with interest over the recent historiography in the field, developing a passion for, of all things, German legal studies, which he believed more scientific and less impressionistic than scholarship coming out of England. This notion convinced him that the German seminar method had much to offer students researching the past as well. “A scientific training is as necessary to the historian as to the mathematician,” he wrote in an 1874 review of William Stubbs’s Constitutional History of England, “and it is the misfortune of England that she has never yet had a scientific historical school.”2
Henry’s reading of the recent literature persuaded him that, contra the long-established view, Germanic rather than Roman law had spawned the constitutional rights enjoyed in the modern West. His interest conformed to a broader trend among a rising generation of American historians at this time who were taking terminal degrees in Germany. Albert Bushnell Hart, who commenced a four-decade tenure at Harvard in the early 1880s, completed a doctorate at the University of Freiburg; Herbert Baxter Adams (no relation) of Johns Hopkins took a Ph.D. at Heidelberg; and William E. Dodd, a distinguished University of Chicago scholar—and later U.S. ambassador to Germany—studied at the University of Leipzig. One could go on.3
From the German scientific perspective emerged in American seminars the germ theory of history. This hypothesis emphasized the Teutonic roots of democracy, claiming that the “germ” of representative government emerged from folk and shire “moots” (county courts) in the ancient Black Forest, whence it traveled in waves to England (following the fifth-century Roman withdrawal) and still later to New England (think Puritan town hall meetings). This clean, uncomplicated, and thoroughly Anglo-Saxon–centered history explained in its sweeping association of ideology and race everything from the Boston Tea Party to calls for immigration restriction. The germ theory further privileged a Wasp perspective of historical development that conveniently diminished the Latin Catholic world. First, it argued against the prevailing notion that antiquity—Greco-Roman culture—served as the primary impulse behind Western civilization’s legal framework as embodied in the Code of Justinian. And second, in celebrating Anglo-Saxon law as a precursor to American law, it shone a reflective negative light on French civilization, now seen, after the German defeat of the French army at Sedan in 1870 (resulting in the collapse of the French Second Empire), as a deficient model for emulation. To American scholars, rather, modern French history appeared to be a chaotic and failed search for stability as monarchy gave way to republic, which gave way to empire, and so on. A unified Germany, by contrast, though in its bare infancy, presented an altogether different image as a conservative, prosperous nation. A consensus emerged that the source of this measured, mature development was the body of Anglo-Saxon laws that continued, presumably since the days of the shire moots, to inform the German legal code.4
Aside from abetting certain contemporary cultural and racial assumptions, the Teutonic school offered its American wing an additional advantage. Ever since 1776 a long train of European aristocrats, diplomats, and critics had prophesied the impending collapse of the United States. Apparently America, with its tradition-defying youth and conspicuously populist politics, lacked the stable ideological underpinnings to emulate the Continent’s superior legal legislation. The theory of Anglo-Saxon law, however, suggested an altogether different narrative. Rather than regard the United States as an outlier, men like Henry Adams could see in their country’s particular “racial” profile the most recent link in a long line of representative governments, predating by far the Enlightenment or even the Puritan origins of America. As an all-encompassing statement of civilizational development, the flexible germ theory neatly carried the considerable weight of Brahmin class conservatism.
Adams’s handpicked seminar students consisted of Ph.D. candidates Henry Cabot Lodge, Ernest Young, and J. Laurence Laughlin. The last looked back upon their academic quartet with warm appreciation: “Those were busy but halcyon days when we dined at Adams’s house on the Back Bay… and held our seminar meetings in his well-walled library with its open fire. We searched the early German codes… for the first glimmerings of the institutions which through the Normans and Anglo-Saxons formed the basis of English and, of course, of American legal development.”5 The papers they produced served as their degree-qualifying theses and, when joined by their instructor’s separate piece, “The Anglo-Saxon Courts of Law,” were collected in Essays in Anglo-Saxon Law (1876). The prominent Boston publishing house Little, Brown and Company released the book; Adams edited the essays and generously financed their printing to the tune of some $2,000—a bit over $47,000 in current dollars.
Henry’s lead essay, arguing for the continuity of Anglo-Saxon law throughout the Wasp world, established the tone for those that followed. Rather than a compilation of uneven opinions, they all carried in their titles the prefix “The Anglo-Saxon,” followed by, in suffix succession, “Courts of Law,” “Land-Law,” “Family Law,” and “Legal Procedure.” The result is a tightly argued and thematically cohesive work, which, in the spirit of scientific history, is largely bereft of flowery prose or rhetorical flourishes. It equals the Romantic writers, however, in providing readers of American history with a usable past. Francis Parkman, for example, was at that time producing a colorful and richly acclaimed seven-volume study, France and England in North America (1865–92). It celebrated the removal of French Catholic power in the New World and with it the commensurate rise of Anglo influence, typified by congregationalism, constitutionalism, and capitalism. Assessing this immense project in 1969, one scholar wrote that Parkman uncritically accepted the notion of progress, “especially the progress of Protestant, Anglo-Saxon civilization.”6 The scientific historians, though armed with advanced degrees, arrived at more or less the same conclusion.
Adams’s essay opens with a lengthy sentence trumpeting the virtues of Teutonic historiography: “The long and patient labors of German scholars seem to have now established beyond dispute the fundamental historical principle, that the entire Germanic family, in its earliest known stage of development, placed the administration of law, as it placed the political administration, in the hands of popular assemblies composed of the free, able-bodied members of the commonwealth.” Moving from grand generalization to grander generalization, Henry insisted that as Americans enjoyed the power-sharing machinery of state and local governments, ancient Germans had lived in small districts that formed into larger states that might be said to constitute a kind of cohesive confederation. Assemblies fashioned by free men, he argued, made this “federal” system run.7
Adams’s conflation of genetics and social development in Anglo-Saxon Law aligned comfortably with the dominant race thinking of his day. He presumed Germanic law to be more democratic and tenaciously entrenched than its Roman or Celtic coequals. How else could one explain its persistence through centuries of Viking raiders and Norman conquerors? He argued further that frequent separation from other groups allowed Teutonic jurisprudence to flourish, noting its existence amid only the “purest Germanic stock.” This type of racialist-isolationist rationale would find an institutional platform some years later (1894) in the formation of the Immigration Restriction League, established by three Harvard graduates. Responding to recent immigration from southern and eastern Europe, these men presumed the racial composition of the nation was under assault. Boston, already impacted by an earlier Irish diaspora, radiated an ethnic diversity that worried many of the city’s older families. “By 1900,” notes one writer, “more than 400,000 Bostonians out of a population of 560,000 had at least one foreign-born parent.” John Murray Forbes, a wealthy Bostonian variously involved in railroads, industry, and the Chinese opium trade, offered financial assistance to the League, insisting, “The great struggle… centers on keeping our voting power and our reserves of public lands out of reach… of the horde of half-educated and wholly unreliable foreigners now bribed to migrate here, who under our present system can be dumped down on us annually.”8
Believing that the problems of urban crime, poverty, and unrest could be traced in great part to recent immigration trends, the IRL sought to impose literacy standards for new arrivals and to cap the number of Catholic and Slavic immigrants coming from southern and eastern Europe. Lodge, Henry’s former protégé and now a senator, supported a literacy bill—calling for the ability to read forty words in any language—that passed Congress in 1896 before succumbing to President Grover Cleveland’s veto. Cleveland called the bill “a radical departure from our national policy relating to immigration.”9 Subsequent immigration acts did go into law in 1903, 1917, 1918, 1921, and 1924 that established various quotas and restrictions; the 1917 act, the most comprehensive immigration act passed to date, included a literacy exam.
Rather than a pioneering effort, Anglo-Saxon Law in fact conformed to a broader determination in certain intellectual circles to discern “difference” by constructing categories of human development based on variations in language, body size, environment, and so on. It was part, in other words, of the emerging social Darwinian worldview. This idea, popularized by the prominent English polymath Herbert Spencer, enjoyed a remarkable vogue in an America riven by racial division and industrial discontent. Accordingly, gross inequalities in income, education, and justice could be rationalized as a struggle for existence, a “survival of the fittest,” as Spencer put it, dominated by the strong. Catching the cultural zeitgeist, Anglo-Saxon Law won favorable notices in a number of major publications on both sides of the Atlantic, including the Boston-based American Law Review, which called the essays “remarkable in the first place for their entire renunciation of English models and for their adoption not only of German methods, but of the authority and opinions of the now dominant German school.” Herbert Baxter Adams, perhaps closer to the German bias than any scholar in the United States, reserved for Henry and his young dissertators a special distinction, calling their joint effort “the first original historical work ever accomplished by American university students working in a systematic and thoroughly scientific way under proper direction.”10
Henry dedicated Anglo-Saxon Law to President Eliot with the short citation “This volume, fruit of his administration.” He could have said as much of himself. Adams’s tenure at Harvard lasted but a few years and he regarded this particular project with a special pleasure. “Nothing since I came to Cambridge,” he wrote to Lodge late in his lecturing days, “has given me so much and so unalloyed satisfaction as the completion of our baking this batch of doctors of philosophy.”11 Of course for Henry one kind of satisfaction overshadowed all others, and it could scarcely be found in a Cambridge seminar room. As the project neared completion, another presidential election loomed, and in this coming canvass of 1876 he would try one final time to reform the “mess” of American politics.