Maurice G. (Maurice Garland) Fulton.

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seeming to be in the balance. But the right is more precious than
peace, and we shall fight for the things which we have always
carried nearest our hearts for democracy, for the right of those
who submit to authority to have a voice in their own govern-
ments, for the rights and liberties of small nations, for a universal
dominion of right by such a concert of free peoples as shall bring
peace and safety to all nations and make the world itself at last

To such a task we can dedicate our lives and our fortunes,
everything that we are and everything that we have, with the
pride of those who know that the day has come when America
is privileged to spend her blood and her might for the principles
that gave her birth and happiness and the peace which she has
treasured. God helping her, she can do no other.




[Charles Mills Gayley (1858 ) is professor of English in the Uni-
versity of California. After graduating from the University of Michigan, he
studied in Germany, and on his return to this country, occupied positions in
the University of Michigan until 1889 when he went to California. The
selection here given is from a book, Shakspere and the Founders of Liberty
in America, which Professor Gayley published in 1917 to remind Americans
how essentially at one with Englishmen they had always been in institu-
tions, love of liberty, and democratic ideals.]

The political freedom that, between 1609 and 1640, our Eng-
lish ancestors of Virginia and New England put into form and
practice is the political freedom for which our grand-uncles of
old England fought from 1642 to 1649, nay, to 1689, Bradford,
and Brewster, Winthrop and Endicott, John Cotton and Roger
Williams, Harvard and Thomas Hooker, of New England,
Alexander Whitaker, Clayborne, Bennett, and Nathaniel Bacon,
of Virginia, belong to the history of English ideals no less than
to that of America. And Hampden, Pym, Cromwell, Milton,
Bunyan, and the Seven Bishops who defied the second James,
were but brothers to our English sires in New England. Brothers
of the same blood and ultimate ideal were also the royalists of
Virginia. Then* conservatism and devotion to a lost cause ren-
dered them none the less certain "in the free air of the New World
to develop into uncompromising democrats and fierce defenders
of their own privileges."

Of all these Englishmen of the seventeenth century, whether
of the Old World or the New, there was a heritage hi common.

iFrom Shakspere and the Founders of Liberty in America (copyright, 1917; Tht
Macmillan Company). Reprinted by permission.



One language welded of the Old English, Scandinavian, Gallic,
and Latin: manly, direct, sober, and natively consistent; unfet-
tered, experimental, acquisitive; from emergency to emergency
shaped according to the need, incomparable in riches ever cumu-
lative. One race, one nation, one blood infused of many strains
and diverse characteristics: of the Anglo-Saxon, the personal
independence and native conservatism; of the Norman, the
martial genius, equity, political vision, masterful and unifying
authority and of the Norman, the chivalry, the romance and
culture, too; of the Celt, intermingling with these in the cen-
turies that flowed into Shakspere, a current of aspiration,
poignant passion, poetic imagination stirring the blood but
not intoxicating the Anglo-Norman reason. One custom, of
spiritual ideal but of tried experience practical rather than
speculative, distrustful of veering sentiment, slowly crystalliz-
ing into the stability of a national consciousness: a custom of
individual prerogative and of obedience to the authority that
conserves the prerogative; of fair play and equality of oppor-
tunity, of fearless speech for the right, and simple for the com-
mon weal; a custom making for popular sovereignty, for alle-
giance, for national honor in national fair dealing, for the might
that is right; one custom, mother of the law. One common law:
the progressive expression "of a free people's needs and standards
of justice;" the outgrowth of social conditions, deriving its
authority not from enactment of sovereign monarch or sovereign
legislature but from the aggregate social will the law of prece-
dent and of the righteous independence of the courts.

Long before Magna Charta features of this law, this conser-
vatively expanding charter of liberties and duties, are distin-
guishable in the procedure of our forefathers in England. From
the days of Ethelbert to those of Alfred, and from Alfred to
Edward the Confessor, for four and a half centuries before the
Conquest, this law, hardly if at all affected by foreign corpus or
code, had been "gathering itself together out of the custom of"
the independently developing Anglo-Saxon. This sanction "the
Conqueror, who claimed the crown by virtue of English law and
professed to rule by English law," repeatedly bound himself to


observe, "and he handed down the tradition to all who came
after him." This law of national precedent, further developed
under Henry II and systematically expounded by Glanvil, or
by some clerk under his direction, grew into the Great Charter
of King John with its equal distribution of civil rights to all
classes of freemen, and its restriction of monarchical preroga-
tive. "The king," writes Bracton in the days of John's successor,
Henry III, "must not be subject to any man but to God and the
law; for the law makes him king. Let the king therefore give to
the law what the law gives to him, dominion and power; for there
is no king where will, and not law, bears rule." The relation of
this English law of custom to the general nature of law as set
forth in the civil code of the Roman system, Bracton expounds;
but from that system the peculiar English law is not derived.
Expanding through Fortescue and Littleton, this English law
is the common law of Coke; and by the Virginia charter of 1606,
probably drafted by Coke, the rights of the common law were
conferred upon the colonists of the New World.

For these Englishmen of the "sceptered isle" and of the un-
tilled wilderness of the West there had been one spirit energizing
toward freedom civil and religious; one charter of rights and
obligations. Of political development there had been a continuous
history for eleven hundred years before England was planted in
America. There had also been one literature, as ancient and as
noble, stirring in embers of racial tradition a tradition of ser-
vice and heroism and generous acceptance of fate; kindling
to mirth and pity, humanity and reverence; leaping to flame in
imagination and power; and, in the decades when first the Eng-
lish peopled "worlds in the yet unformed Occident," attaining
full glory in the zenith of Shakspere.

Not with those eleven hundred years ceased the oneness of
the English heritage. For a period longer than that which has
elapsed since the American branch of the Anglo-Saxon race has
been a separate nation, the heritage was one. One hundred and
forty years have succeeded our Declaration of Independence.
Through the hundred and seventy which preceded, the history
of Britain was the continuing property of our forefathers of Vir-


ginia and New England. Not only Hampden and Cromwell
and the Ironsides, but Chatham, Holland, Burke, and Sir Philip
Francis were compatriots of the colonials. The admirals of the
fleet, Blake, Vernon, Anson, Hawke, were our admirals. It was
for the nascent empire of our British and British- American fore-
fathers that they won the supremacy of the sea. The victories
of Marlborough, Clive's conquest of India, Wolfe's conquest of
Canada to which the young George Washington contributed
the services of his still British sword were glories not of a for-
eign race but of our race. For four generations we have been
an independent people. But for six generations before that the
intellectual and spiritual strivings of our British compatriots
toward truth and freedom were those of the British in America.
Harrington, Algernon Sidney, Locke, Hume, and Berkeley were
ours. And in literature, Milton and Bunyan, Dryden and Pope,
Swift, Addison, Gray and Goldsmith were our poets and essay-
ists. Such was the birthright of our British forefathers in the
American colonies. True it is that in legal procedure they pre-
ferred, during the years of primitive social conditions, the appeal
to divine law and the law of reason or of human nature, as ex-
pounded by Hooker and his school, to any kind of law positive;
and it is true that, within the field of positive law, they took more
kindly to the civil which derives authority from enactment than
to the common which derives from precedent. But when they
reached "the stage of social organization which the common law
expressed," they were only too glad to claim that birthright also,
as conveyed by various early charters. And upon such right they
based their appeal for civil liberty.

Not at all with 1776 did the English heritage cease to be the
same for the sons of England at home and over the seas. In
their resistance to taxation without representation, to coercion
by force, to the Acts of Trade, the colonists in America were sup-
ported by Fox and the elder Pitt, by Shelburne, Camden, Burke,
Rockingham, and all true patriots at home. Americans were
asserting their rights as Englishmen under charter and common
law. "Do not break their charter; do not take away rights
granted them by the predecessors of the Crown!" cried members


of the English House of Commons. Pitt "pointed out distinctly
that the Americans were upholding those eternal principles of
political justice which should be to all Englishmen most dear,
and that a victory over the colonies would be of ill omen for
English liberty, whether in the Old World or the New." Speak-
ing of the tea-duty, Lord North had asseverated, "I will never
think of repealing it until I see America prostrate at my feet."
To this Colonel Barre retorted, "Does any friend of his country
really wish to see America thus humbled? In such a situation
she would serve only as a monument of your arrogance and your
folly. For my part, the America I wish to see is America in-
creasing and prosperous, raising her head in graceful dignity,
with freedom and firmness asserting her rights at your bar, vin-
dicating her liberties, pleading her services, and conscious of
her merit. This is the America that will have spirit to fight your
battles, to sustain you when hard pushed by some prevailing
foe. . . . Unless you repeal this law you run the risk of losing
America." In the House of Lords, three devoted defenders of
American liberty were the Dukes of Portland, Devonshire, and
Northumberland. They were descended from Henry Wriothes-
ley, third Earl of Southampton, the founder, with Sir Edwin
Sandys, of the charter liberties of Virginia. In that House,
protesting against the "Intolerable Acts" of 1774, the Duke of
Richmond thundered, "I wish from the bottom of my heart that
the Americans may resist, and get the better of the forces sent
against them." Not the historical precedent of England nor the
political wisdom of her best "arrayed her in hostility to every
principle of public justice which Englishmen had from time im-
memorial held sacred," but the perversity of an un-English
prince and of his fatuous advisers. Bent upon thwarting the
policy of reformers who would make the Commons more truly
representative of the English people, upon destroying the system
of cabinet government and resuscitating the theory of divine
right, these unfortunates picked their quarrel with the American
colonies. "For," as John Fiske shrewdly remarks, "if the Am-
erican position, that there should be no taxation without repre-
sentation, were once granted, then it would straightway become


necessary to admit the principles of Parliamentary reform," and
to call the Liberals to power in England. A representation of the
colonies hi Westminster, though favored by some great English-
men, might have been impracticable; but if George III had lis-
tened to the elder Pitt and his followers, he would have recog-
nized the right of American freemen to levy their own taxes, and
the Revolution would have been obviated. The would-be auto-
crat forced the issue in America and was defeated. If there had
been no revolution in America there would have been a revolu-
tion hi England, and the monarch would in all probability have
been dethroned. The War of Independence reasserted for Eng-
land as well as for America the political rights for which Eng-
lishmen, from the tune of King John to that of James I, from
the time of Hooker, Shakspere, Sandys, Bradford, Winthrop,
Sir Thomas Dale, and Sir Francis Wyatt, to that of Cromwell,
had contended. It confirmed the victories of the Great Rebellion
and of the Revolution of 1688. The younger Pitt denounced
the war against the American colonies as "most accursed, wicked,
barbarous, cruel, unnatural, unjust, and diabolical." And when
Charles Fox heard that Cornwallis had surrendered at Yorktown,
he leaped from his chair and clapped his hands. The victory at
Yorktown dissipated once for all the fatal delusion of divine
prerogative. Those who conceived and carried through the
American Revolution were Anglo-Saxons: Otis, Samuel and John
Adams, Hancock, Henry, Richard Henry Lee, Franklin, Jeffer-
son, Washington. The greatest of Americans was the greatest
Englishman of his age: Washington was but asserting against
a despotic sovereign of German blood and broken English speech
the prerogative of the Anglo-Saxon breed, the faith of his liberal
brothers in England.

Political history has, indeed, worn its independent channel;
but spirit and speech, letters, order of freedom and control in
the America of today are of the ancient blood and custom.




[Moses Colt Tyler (1835-1900) was a distinguished American educator
and scholar in literature and history. After graduating from Yale in 1877,
he became a Congregational minister, but his health failing from overstudy,
he spent four years hi England recuperating. On his return to America, he
accepted, in 1867, the chair of English literature at the University of Mich-
igan. In 1881 he was called to the professorship of American history at
Cornell, a position which he held until his death. His literary histories
dealing with the Colonial and the Revolutionary periods of American litera-
ture have secured for him a wide reputation for scholarship. In a time when
it has become fashionable to sneer at certain features of the Declaration of
Independence, it is well for every American to follow Tyler's admirable dis-
cussion of the criticisms to which this great document has been subjected.
As limitations of space hi this volume have made it necessary to abridge
Tyler's article, the student should if possible secure it hi its entirety and
carefully read it.]

It can hardly be doubted that some hindrance to a right
estimate of the Declaration of Independence is occasioned by
either of two opposite conditions of mind, both of which are
often to be met with among us: on the one hand, a condition
of hereditary, uncritical awe and worship of the American Revo-
lution, and of that state paper as its absolutely perfect and glori-
ous expression; on the other hand, a later condition of cultivated
distrust of the Deckration, as a piece of writing lifted up into
inordinate renown by the passionate and heroic circumstances of
its origin, and ever since then extolled beyond reason by the
blind energy of patriotic enthusiasm. Turning from the former
state of mind, which obviously calls for no further comment, we
may note, as a partial illustration of the latter, that American
confidence in the supreme intellectual merit of this all-famous
document received a serious wound some forty years ago from
the hand of Rufus Choate, when, with a courage greater than
would now be required for such an act, he characterized it as
made up of "glittering and sounding generalities of natural

1 From North American Review, vol. clxiii, p. r (July, 1896).


right." What the great advocate then so unhesitatingly sug-
gested, many a thoughtful American since then has at least sus-
pected that our great proclamation, as a piece of political
literature, cannot stand the test of modern analysis; that it
belongs to the immense class of over-praised productions; that
it is, in fact, a stately patchwork of sweeping propositions of
somewhat doubtful validity; that it has long imposed upon man-
kind by the well-known effectiveness of verbal glitter and sound;
that, at the best, it is an example of florid political declamation
belonging to the sophomoric period of our national life, a period
which, as we flatter ourselves, we have now outgrown.

Nevertheless, it is to be noted that whatever authority the
Declaration of Independence has acquired in the world, has been
due to no lack of criticism, either at the tune of its first appear-
ance, or since then; a fact which seems to tell in favor of its es-
sential worth and strength. From the date of its original publica-
tion down to the present moment, it has been attacked again and
again, either in anger, or in contempt, by friends as well as by
enemies of the American Revolution, by liberals in politics as
well as by conservatives. It has been censured for its substance,
it has been censured for its form, for its misstatements of fact,
for its fallacies in reasoning, for its audacious novelties and para-
doxes, for its total lack of all novelty, for its repetition of old
and threadbare statements, even for its downright plagiarisms;
finally, for its grandiose and vaporing style.

Perhaps, however, the most frequent form of disparagement
to which Jefferson's great state paper has been subjected among
us is that which would minimize his merit in composing it, by
denying to it the merit of originality. . . .

By no one, however, has the charge of a lack of originality
been pressed with so much decisiveness as by John Adams, who
took evident pleasure in speaking of it as a document in which
were merely "recapitulated" previous and well-known state-
ments of American rights and wrongs, and who, as late as in the
year 1822, deliberately wrote:

"There is not an idea in it but what had been hackneyed in Congress
for two years before. The substance of it is contained in the declaration of


rights and the violation of those rights, in the Journals of Congress, in
1774. Indeed, the essence of it is contained in a pamphlet, voted and
printed by the town of Boston, before the first Congress met, composed by
James Otis, as I suppose, in one of his lucid intervals, and pruned and pol-
ished by Samuel Adams."

Perhaps nowhere in our literature would it be possible to find
a criticism brought forward by a really able man against any
piece of writing less applicable to the case, and of less force and
value, than is this particular criticism by John Adams and others,
as to the lack of originality in the Declaration of Independence.
Indeed, for such a paper as Jefferson was commissioned to write,
the one quality which it could not properly have had, the one
quality which would have been fatal to its acceptance either by
the American Congress or by the American people is origi-
nality. They were then at the culmination of a tremendous con-
troversy over alleged grievances of the most serious kind a
controversy that had been steadily raging for at least twelve
years. In the course of that long dispute, every phase of it,
whether as to abstract right or constitutional privilege or per-
sonal procedure, had been presented in almost every conceivable
form of speech. At last, they had resolved, in view of all this
experience, no longer to prosecute the controversy as members of
the empire; they had resolved to revolt, and, casting off forever
then- ancient fealty to the British crown, to separate from the
empire, and to establish themselves as a new nation among the
nations of the earth. In this emergency, as it happened, Jeffer-
son was called upon to put into form a suitable statement of the
chief considerations which prompted them to this great act of
revolution, and which, as they believed, justified it. What, then,
was Jefferson to do? Was he to regard himself as a mere literary
essayist, set to produce before the world a sort of prize-disserta-
tion a calm, analytic, judicial treatise on history and politics
with a particular application to Anglo-American affairs one
essential merit of which would be its originality as a contribu-
tion to historical and political literature? Was he not, rather, to
regard himself as, for the tune being, the very mouthpiece and
prophet of the people whom he represented, and as such re-


quired to bring together and to set in order, in their name, not
what was new, but what was old; to gather up into his own soul,
as much as possible, whatever was then also in their souls, their
very thoughts and passions, their ideas of constitutional law, their
interpretations of fact, their opinions as to men and as to events
in all that ugly quarrel, their notions of justice, of civic dignity,
of human rights; finally, their memories of wrongs which seemed
to them intolerable, especially of wrongs inflicted upon them
during those twelve years by the hands of insolent and brutal
men, in the name of the King, and by his apparent command?
Moreover, as the nature of the task laid upon him made it
necessary that he should thus state, as the reasons for their in-
tended act, those very considerations both as to fact and as to
opinion which had actually operated upon their minds, so did it
require him to do so, to some extent, in the very language which
the people themselves, in their more formal and deliberate utter-
ances, had all along been using. In the development of political
life in England and America, there had already been created a
vast literature of constitutional progress a literature common
to both portions of the English race, pervaded by its own stately
traditions, and reverberating certain great phrases which formed,
as one may say, almost the vernacular of English justice, and of
English aspiration for a free, manly and orderly political life.
In this vernacular the Declaration of Independence was written.
The phraseology thus characteristic of it is the very phraseology
of the champions of constitutional expansion, of civic dignity
and progress, within the English race ever since Magna Charta;
of the great state papers of English freedom in the seventeenth
century, particularly the Petition of Right in 1629, and the Bill
of Rights in 1789; of the great English Charters for colonization
in America ; of the great English exponents of legal and political
progress Sir Edward Coke, John Milton, Sir Philip Sidney,
John Locke; finally, of the great American exponents of political
liberty, and of the chief representative bodies, whether local or
general, which had convened in America from the time of Stamp
Act Congress until that of the Congress which resolved upon our
independence. To say, therefore, that the official declaration of


that resolve is a paper made up of the very opinions, beliefs, un-
beliefs, the very sentiments, prejudices, passions, even the errors
in judgment and the personal misconstructions if they were
such which then actually impelled the American people to that
mighty act, and that all these are expressed in the very phrases
which they had been accustomed to use, is to pay to that state-
paper the highest tribute as to its fitness for the purpose for
which it was framed.

Of much of this, also, Jefferson himself seems to have been
conscious; and perhaps never does he rise before us with more
dignity, with more truth, than when, late in his lifetime, hurt
by the captious and jangling words of disparagement then re-
cently put into writing by his old comrade, to the effect that the
Declaration of Independence "contains no new ideas, that it is
a commonplace compilation, its sentences hackneyed hi Congress
for two years before, and its essence contained in Otis's pamph-
let," Jefferson quietly remarked that perhaps these statements

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