Contract and Consent

Representation and the Jury in Anglo-American Legal History

J. R. Pole

• Publisher: University of Virginia Press
• Year: 2010
• ISBN:
  9780813928920
• Topic: Law
• Subtopic: Legal History
• Index: Law

In Contract and Consent, the renowned legal historian J. R. Pole posits that legal history has become highly specialized, while mainstream political and social historians frequently ignore cases that figure prominently in the legal literature. Pole makes a start at remedying the situation with a series of essays that reintegrate legal with political and social history. A central theme of the essays is the link between Anglo-American common law and contract law and American political and constitutional principles. Pole also emphasizes the political functions of legal institutions in English and American history, going so far as to suggest that we need to divest ourselves of any notion of the separation of powers. Instead, we need to acknowledge the historical role of courts, juries, and the common law as agencies of political representation and as promulgators of law and policy.

Other essays show the implications of independence for American law, and how American political scientists converted the concept of sovereignty from its authoritarian claims in the eighteenth century into a product of the political process in the nineteenth and twentieth centuries. Although the American colonies made their own versions of the common law, there was no simple division between "English" and "American" law. But it was of fundamental importance that an entitled, landed aristocracy was never imported into or allowed to take root in America, with the result that American law was much simpler than its English counterpart, with the latter's accretion of esoteric language and procedures.

Having established the basis of Anglo-American legal history in contract and common law in part one, in the second half of the volume Pole explores various constitutional and legal themes, from bicameralism in Britain and America and the role of the Constitution in the making of American nationality to the performance of representative institutions in the century following the American Revolution.

I

CONTRACT & CONSENT

Introduction

Reason and Custom

Time changes the face of things, origins become occluded, straight lines are bent, and in the words of W. H. Auden, “… History to the defeated / May say Alas! but cannot help or pardon.” History, however, keeps one or two tricks up its sleeve, including the advantage of being unpredictable. A case in point is that of Baker v. Carr, in which, in 1962, the Supreme Court of the United States, under the leadership of Chief Justice Earl Warren, took responsibility for reverting to the first principles of the Republic, an unpredicted turn that led to the most fundamental decisions of the Warren era. The case came up from the supreme court of Tennessee, whose state constitution required the legislature after each decennial census to maintain equality of representation by redrawing electoral district boundaries. Decades of neglect to fulfill this obligation had led to gross disparities of representation between diminishing populations in the rural areas and the increasingly crowded cities. The Supreme Court saw this neglect as a constitutional violation calling for a constitutional remedy. But before that, the Court had to decide whether the issue was justiciable, that is, whether it fell within the powers assigned to the judiciary.

There was no precedent for direct federal intervention in a state’s electoral system and the Court returned the case to the state judiciary. It was clear enough where this would lead. The Court was reclaiming the power to restore the original principle of the Constitution.¹ The state acted accordingly and direct federal intervention was averted.

Writing, however, had appeared on the wall. Only two years later, Reynolds v. Sims comprised a group which gave Warren, with an eight-to-one majority, the occasion for a direct announcement of constitutional principle. “Legislators,” he declared, “represent people, not trees or acres; legislators are elected by voters, not farms or cities or economic interests.” To the argument which had been made that certain interests deserved special consideration, he replied that it was “inconceivable that a State law to the effect that, in counting votes for legislators, the votes for citizens in one part of the State would be multiplied by two, or five, or ten, while votes in another area would be counted only at face value, could be constitutionally sustainable.”² Warren’s central argument was simple: as declared in Baker v. Carr, a constitutional violation required a constitutional remedy. That seemed clear enough. But Mr. Justice Frankfurter, joined by Justice Harlan in closely reasoned dissents, saw the problem through a more complex lens. The distribution of seats was a responsibility assigned to the legislature, not to the courts; by entering into questions of the design of electoral districts, Frankfurter argued, the Court would inevitably involve itself in partisan politics, in which it would be trapped by rival interests claiming to stand on rival interpretations of the Constitution. This insight proved to be prescient. That consideration, however, could not override the principle of political individualism on which Warren based the Court’s finding. Setting aside the specially safeguarded equal representation of the states in the Senate, the Constitution acted directly on persons as individuals, not as members of groups, and derived its authority from a contract to which free individuals were supposed to have agreed at the formation of political society.

A legally binding contract must reflect the mutual understanding and intentions of the parties at the time it was made. Generations of landed and commercial transactions had made the process familiar. The principle of political contract which lay at the foundations of American government rested on the same authority; the individual wills must, of course, give their consent voluntarily, free from coercion or deceit.

The Warren Court’s position thus derived from common ground with colonial Americans when they repudiated their allegiance to the king and followed by contracting to form a government of their own. But their commitment involved a paradox: when they stepped out of doors into the marketplace, town square, meetinghouse, or church, they took their part in collective, organically formed communities. But when they theorized about government, they perceived something different: a political society created contractually by the rational intent of independent individuals. In current psychological terms society in its political form was the creation of the human faculties of reason and will. For legal purposes the concept of will translated into intention. And the intention was to protect rights which already inhered by nature in every mature individual.

The town meeting of Concord, Massachusetts, explained the implications when it resolved on October 21, 1776: “We conceive that a Constitution in its proper idea intends a system of principles established to secure the subject in the possession and enjoyment of their rights and privileges, against any encroachment of the governing part.”³ In his brief but influential tract Thoughts on Government, John Adams approached the obligations of society on similar lines by distinguishing society from government; society, he explained, was from the nature of man, not from God. A curious distinction, since Adams would hardly have denied that the nature of man was from God; one had, however, to distinguish between man before and after the Fall, exonerating God from the natural consequences following from that unhappy event. The crucial point was that government was created by deliberate choice, which meant the aggregation of individual choices.⁴ “The happiness of the individual,” Adams declared, “is the end of man.” It must be the individual’s sense of his own condition that gave value to the efforts of society; the individual retained an unmistakable primacy of self-knowledge and self-interest. This distinctive emphasis on the individual—by which was generally meant the adult white male individual—was characteristic of the development of contractarian thought among Americans; the theme was a commonplace, repeated in innumerable tracts (though more so in secular tracts than in sermons). William Livingston, a governor of New Jersey, asserted that “governments in these states are in fact nothing more than social compacts for the mutual advantage of the individuals of whom they are composed.”⁵ The radicals who seized power in Pennsylvania in the spring of 1776 emphasized “the protection and security of the community” while recognizing that the community was composed of individuals. In Virginia a formulation written by George Mason and adopted by the general convention held in Williamsburg as early as May 6, 1776, declared that all men were “by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity.”⁶ In Massachusetts, after a draft constitution drawn up by the general assembly had been thrown out by the towns, and after a prolonged convention whose handiwork was circulated to and ratified by town meetings throughout the state, the Constitution of 1780 explained exactly how political society came into being. “The body politic,” it declared, “is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen, and each with the whole people, that all shall be governed by certain laws for the common good.”⁷ When George Washington, as president of the Philadelphia Convention, transmitted the text of the draft Constitution to the Congress, he warded off anticipated objections by reminding the states of the principle underlying self-government: “individuals entering into society, must give up some share of liberty to preserve the rest.”⁸

Universal assumptions about individual rights did not in themselves dictate the forms of the new Constitution, but they were wholly consistent with the logistics by which it would operate; Chief Justice Warren’s argument would have been understood on both sides. It was no comfort to Anti-Federalists that, under the Constitution, individuals would be equal in voting power. They understood that very well. Their crucial objection to the Constitution, as they charged over and over again, was the threat of consolidation of power. The independence of the states would be swallowed into the maw of the new federal government. They trusted the states more than the federal government for the protection of the rights which they held dear and whose sources lay deep in the layered complexities of the common law.

In the chapters that follow I have begun by attempting to establish a connection between the issues outlined above and the common law of contract as it emerged as a crucial though contentious issue in seventeenth-century England. This has necessarily involved some attention to the arcane processes, and not least the writ system through which the common law operated, a system which was more familiar to the general public in that period than legal technicalities are now. While these essays are self-contained and each is devoted to a separate theme, they are unified by a common interest in the ways in which public law and legal institutions contributed to the social process. This may not appear to be a startling proposition until we reflect that most mainstream history, while quite justifiably absorbed in politics and power, and preoccupied with standards and costs of living, with land and commerce, with religious passions and conflicts, with cities and populations, with war, diplomacy, and finance, and—more recently—with families, gender, and minority interests, and other familiar themes, most of the mainstream of historical writing has been singularly neglectful of the history of law.

The neglect is periodically interrupted when spectacular state trials—the trial of the Seven Bishops in England under James II, the prosecution for seditious libel of John Peter Zenger in New York in 1735, the sensational General Warrants cases in England in the 1760s—throw normal politics into disarray and impinge on the distribution of power. But the law then seems to sink below the surface of events to run its own course without explanation of decisions which would affect the outcomes of future cases; the narrative of political or economic life offers no explanation of the law’s own points of reference or criteria of judgment and why, therefore, the law could not be equated with the will or intentions of government—or, for that matter, of interests in the economy or the society which wanted the law to lean in their favor. That (for example) Lord Mansfield and his colleagues might, from the King’s Bench, have nudged the common law in ways which promoted economic development and capital formation, not to mention the economic independence of women, seems to be a somewhat neglected consideration.

Law was sanctified by custom, and customs differed from one community to another. But customs frequently had to be mediated by the courts, which, from the Middle Ages down to the emergence of parliamentary sovereignty in the seventeenth to eighteenth centuries, in effect became the authoritative sources of law. And by a perverse and paradoxical irony, after the Americans had established a complex republican government under the protection of a written constitution, armed with a bill of rights which incorporated but added new provisions to the old common law, the unelected Supreme Court, by exercising the negative power over legislation, developed virtually law-making powers of its own.

The issues discussed under this heading overlap with those of a chapter devoted to the Anglo-American jury, the ancient institution on which devolved much of the responsibility for local administration. Much more than parliaments or assemblies, the jury system (though sometimes cruelly abused) integrated people with their government. The jury has always been extolled as the most basic protector of popular liberties; it is a central thesis of this chapter that the jury (at its best), so far from being separate and distinct from formal politics, is historically an organ of public opinion and thus of political representation. Such was prominently the case in 1651 when the London jury acquitted the Leveller John Lilburne; such was the case in 1984 when a London jury acquitted the civil servant Clive Ponting, who was charged under the Official Secrets Act for leaking documents concerning the Falklands War. (He argued in defense that he had leaked them to a member of Parliament, and Parliament was sovereign). These deep continuities explain the emotions aroused by proposals to “reform” the jury system; but antiquity is not self-justifying, and in many important respects, as this chapter explains, the modern jury would hardly be recognized as the same institution if brought face-to-face with its medieval ancestor. Comparable disparities have come to characterize the English and American jury systems.⁹

The explanations and clarifications which I have attempted in these essays are far from resolving the numerous problems, some of them highly technical, which surround Anglo-American legal history. But in some justification of the labors that have been expended in the cause, a beginning will have been achieved if legal issues are restored to their rightful place in the mainstream and current of Anglo-American history.

1

Where the Law Comes From

The Courts and the Making of Society

I. Law generates law, creating its own procedures, methods, unspoken assumptions which, taken as a whole, form a legal culture, in turn transfusing the political culture in which it grows. English and in time American legal cultures molded themselves primarily around variants of the common law, which Americans fashioned to reflect the needs of colonial cultures and their prevailing elites. Roman or civil law was occasionally cited in chancery courts, not so much as defining law, but rather as indicating legal principles. Lord Mansfield, who presided over the King’s Bench for most of the second half of the eighteenth century, took steps to introduce equity or civil principles into many of his judgments in commercial cases. He never liked the common law so much, he said, as when it was like equity.¹ In England, other fields included the law merchant, whose precepts got absorbed by the common law during the eighteenth century, and also, notably, ecclesiastical law, of which a residue still, at the time of writing, survives in the bench of bishops in the House of Lords. This arrangement, peculiar to the relationship of the Church of England to the state, could have no constitutional equivalent under the Constitution of the United States.

The courts of high commission were swept away early in the life of the Long Parliament. Before that upheaval, the common law had been swallowing the other and lesser jurisdictions. Ecclesiastical jurisprudence covered those areas of life, such as marriages, births, deaths, and burials, which were the province of the church. The common law itself was much influenced by the canon or civil law, so that the two couldn’t be easily disentangled; judges, law officers, and commentators, like the early seventeenth-century attorney general in Ireland Sir John Davies, who were steeped in civil law did not hesitate to borrow one from another.² At the foundations of the common law lay medieval commentaries such as those attributed to Bracton and Fleta, together with accumulations of casebooks, beginning with some three centuries of Year Books; but at its heart lay the idea of reason. The common law’s method used both, applying reason to case history, accumulating in the process an ever growing mound of precedent. Precedent (sometimes spelled “president”) was not in itself law. But it was evidence of law. It signaled directions even if it did not enforce conclusions. In the early seventeenth century, Sir Edward Coke, attorney general, chief justice, and later member of Parliament, injected his own brand of legal reasoning into the common law, well knowing that reason, which had always been in very high repute in the Western tradition of theology, and its cousin, philosophy, enjoyed exceptional prestige among the gifts of God to man. To understand the subsequent growth of the common law and at the same time to pursue its hold on the legal processes of England’s Anglophone colonies, we must reckon with the concept of reason in those earlier generations.

Reason, then, was more than logical procedure, the ability to argue that if A was A, then B must be B: it...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Part I: Contract and Consent
• Part II: Occasional Essays
• Notes
• Index