Abstract
It has been said that in the absence of legal training, past historians have failed sufficiently to appreciate the relevance of law as a conceptual template, shaping the character of the American revolutionary project. One legal historian, John Reid, has even suggested that non-legal historians have indeed ‘misunderstood the legal and constitutional history of the American Revolution’.1 In particular, Reid pinpoints a failure to appreciate the function of law both ‘in setting the stage’ for rebellion and in ‘formulating the conditions’ under which it was to be fought.2 By such ‘conditions of law’ Reid understands ‘not merely substantive rules of law, but the certainty, the power, and the effectiveness of that law and whether it was directed by a unicentric or multicentric authority’.3 Indeed, Reid argues persuasively that ‘legal stagesetting’ as well as constitutional concerns played a pervasive but distinguishable role in pre-revolutionary American politics. It would therefore seem particularly fruitful to consider how such conditions or legal stagesetting may have featured as well in the developing post-revolutionary American understanding of court function — particularly in decisions with regard not only to interpreting but to striking down procedurally legitimate laws.
Let all men hereby take head how they complain in words against magistrates, for they are gods.
(John Haywarde, Les Reportes del Cases in Camera Stellata, 1609)
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Notes
J. P. Reid, ‘In an Inherited Way: English Constitutional Rights, the Stamp Act Debate, and the Coming of the American Revolution’, Southern California Law Review vol. 49, 1976, p. 1109. The importance of Reid’s contribution — as well as that of several other new legal historians referred to in the discussion below — to a renewed examination of American revolutionary constitutionalism has been recently studied to great effect by Jack P. Greene. See ‘From the Perspective of Law: Context and Legitimacy in the Origins of the American Revolution’, Southern Quarterly, vol 85, Winter 1986, pp. 56–77. The discussion below is indebted to Greene’s careful presentation. An illuminating examination of the contribution of both old and new law school historians is also found in Stanley Katz, ‘The Problem of Colonial Legal History’, in J. P. Greene and J. R. Pole, eds, Colonial British America: Essays in the New History of the Early Modern Era (Baltimore, 1984), pp. 457–90.
J. P. Reid, In a Defiant Stance: The Conditions of Law in Massachussets Bay, the Irish Comparison, and the Coming of the American Revolution (University Park, Pa., 1977), p. 2.
J. P. Reid, ‘The Ordeal by Law of Thomas Hutchinson’, New York University Law Review, vol. 49, 1974, p. 602. Here Reid is building on some suggestive findings by a second new legal historian, William Nelson, in The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass. 1975).
J. P. Reid, ‘In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution’, New York University Law Review, vol. 49, 1974, p. 1087; Greene, ‘From the Perspective of Law’, p. 65.
Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Politics of the British Empire and the United States, 1607–1788 (Athens, Ga., 1986), p. 25.
Lewis Morris, Some Observations upon the Charge Given by the Honourable James De Lancey, Esq…. (New York, 1734), cited in Green, Peripheries and Center, p. 26.
William Nelson, ‘The Legal Restraint on Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760–1775’, American Journal of Legal History, vol. 18, 1974, pp. 7, 10, 14, 23–4, 26, 28. Nelson developed this thesis with regard to the power of juries at greater length in his Americanization of the Common Law, pp. 3, 8, 21, 23, 28–30, 165–71.
J. P. Reid, In Defiance of the Law: The Standing Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill, 1981) pp. 3, 48, 121; Thomas C. Grey, ‘Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought’, Stanford Law Review, vol. 30, 1978, 863–7, 892.
Roscoe Pound, The Formative Era of American Law (Boston, Mass., 1938), pp. 3, 6–7.
Some outstanding earlier proponents of the transit of ideas position have been Julius Goebel, Jr, History of the Supreme Court of the United States, vol. 1 (New York, 1971); Joseph H. Smith, Colonial Justice in Western Massachusetts: The Pynchon Court Record (Cambridge, Mass., 1961); and, to a somewhat more subtle extent, Zechariah Chafee, Jr, ‘Colonial Courts and the Common Law’, Massachusetts Historical Society Proceedings, vol. 68, 1952, pp. 132–59. A variant of this approach has found its way into the literature of political science through the ‘fragment’ theory of Louis Hartz and the interpretation of the colonial milieu by Samuel Huntington — a student of Hartz — as politically and institutionally one of ‘Tudor polity’. See Samuel Huntington, ‘New Society, Old State’, in Edward Handler, ed., The American Political Experience (Lexington, 1968), pp. 90–103. The Tudor polity model interprets the ultimate revolutionary conflict between Britain and America as a disjunction and conflict in institutional modernization. Simply put, the argument is that while Britain moved forward with parliamentary sovereignty in the eighteenth century, an isolated America remained as a seventeenth-century fragment with regard to its political and institutional life. For an account of an historian’s concern with the limitations of this approach, see Katz, ‘Problem of Colonial Legal History’, p. 459.
G. R. Elton, The Tudor Constitution (Cambridge, 1960), p. 344. Indeed, the very sovereignty of Parliament being claimed in England during the eighteenth century was defended on the basis of the ancient constitution and the fundamental law. William Petyt, The Ancient Right of the Commons of England Asserted (London, 1680); also Petyt, Jus Parliamentarium: Or, the Ancient Power, Jurisdiction, Rights and Liberties, of the most High Court of Parliament, revived and asserted (London, 1739, but written in the 1680s); James Tyrell, Bibliotheca Political: Or an Enquiry into the Ancient Constitution of English Government (London, 1694); Humphrey Mackworth, A Vindication of the Rights of the Commons of England (London, 1701), p. 3. For an excellent discussion of this issue, see. H. T. Dickinson, ‘The Eighteenth-Century Debate on the Sovereignty of Parliament’, Transactions of the Royal Historical Society, vol. 26, 5th series (London, 1976). Edmund Burke would note later that whether one referred to an original contract, the ancient constitution, or the Revolution settlement, all were testimony to the fact that ‘the people’ retained no power which was distinct from the legislature representing them. Sovereignty rested explicitly and irremovably in the King, Lords, and Commons. See Burke, Reflections on the Revolution in France in Writings and Speeches of Edmund Burke, vol. III, pp. 287–308; also An Appeal from the New to the Old Whigs, in Writings, vol. IV, pp. 61–215. Dickinson suggests that precisely because fundamental references were technically useless in restraining Parliament, Americans chose to divide the exercise of sovereignty: ‘The Eighteenth-Century Debate’, p. 208.
Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), p. 105; Pamphlets of the American Revolution: 1750–1776 (Cambridge Mass., 1965), p. 66.
J. P. Reid, ‘The Apparatus of Constitutional Advocacy and the American Revolution: A Review of Five Books’, New York University Law Review, vol. 42, 1967, p. 194, cited in J. P. Greene, ‘From the Perspective of Law’, p. 66.
A failure to distinguish rhetoric from reality seems particularly at work in the ‘Tudor polity’ model. The deference to authority, the relative security of power removed from public view, the perception of law as unchallengeable, so essential to maintaining Tudor rule and its institutional balance, would seem to be wholly missing from American pre-revolutionary rhetoric. Recourse has most commonly been had either to anachronism, finding the seeds of judicial review in Coke and seventeenth-century fundamental law, or to the impositions of power politics of the Federalist party and its chief judicial spokesman, John Marshall. As I show below, however, they could not have retrieved the seeds of judicial review by looking back to Coke. The seeds were not there to be found. There are faults as well with the power politics explanation, which are discussed below in Chapter 7. See, for example, William Nelson, ‘The Eighteenth-Century Background of John Marshall’s Constitutional Jurisprudence’, Michigan Law Review, vol. 76, 1978, pp. 893f.
Stuart Prall, The Agitation for Law Reform During the Puritan Revolution, 1640–60 (The Hague, 1966), p. 15. Margaret Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick, 1949), pp. 55–6.
John Pym, The speech or declaration of John Pym (1641), in Andrew Sharp, ed., Political Ideas of the English Civil Wars, 1641–49 (London, 1983), p. 34.
For an interesting analysis of citations of legal and political authorities in eighteenth-century America, see Donald Lutz, ‘The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought’, American Political Science Review, vol. 78, 1984, p. 193. A sampling of the Leveller discussion of fundamental law may be found in the following tracts: (Anon.) The Fundamental Lawes and Liberties of England Claimed, asserted, and agreed unto, by severall Peaceable Persons of the City of London, Westminster, Southwark, Hamblets, and Places adjacent; … (9 July 1653)[H. L.: *EC65 A100 653f]; John Lilburne, The Legall Fundamentall Liberties of the People of England (London, 8 June 1649) [H. L.: E. 560 (14)]; England’s New Chains Discovered (London, 26 Feb. 1649), in Haller and Davies, eds, The Leveller Tracts 1647–1653, pp. 157–70, and An Outcry of the Young-men and Apprentices of London … after the lost Fundamental Laws and Liberties of England, cited in T. B. Howell, A Complete Collection of State Trials (London, 1816), vol. 4, p. 1326; John Jones, Judges Judged Out of Their Own Mouthes (London, 6 May 1650), [H. L.: E 1414 (1)]; Jurors Judges of Law and Fact: Or, certain Observations of certain differences in points of Law between … Andr. Horn and (the author of) A Letter of due Censure … to … Lilburne (London: w.d., 1650), [H. L.: E 1414 (2)]; William Walwyn, Juries Justified: Or, A Word of Correction to Mr. Henry Robinson; for His seven Objections against the Trial of Causes, by Juries of twelve men (London: Robert Wood, 1651), [H. L.: *Ec65 W1798 651j]. As has been helpfully discussed by G. E. Aylmer, the term Leveller has been rather loosely applied to a number of thinkers who held disparate views on any number of specific religious, social, and economic issues. Aylmer, ed., The Levellers in the English Revolution (Ithaca, 1975), pp. 9–55. For obvious reasons, there should be an equal reluctance to impose a tighter unity of position on Leveller legal thought than the pamphlet and trial records will bear. However, my own conclusion is that perhaps a greater agreement among Leveller writers may be found on legal reform issues, and particularly on the question of the importance and scope of juries’ lawfinding powers, than on any other issue. A similar though not identical conclusion is reached by Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200–1800 (Chicago, 1985), p. 162.
While both the Levellers and Coke made reference to a fundamental law that pre-dated the Norman invasion, Coke argued that, legally, the Normans had done nothing to interrupt its historical continuity. From this legal perspective, no Conquest had taken place. The Levellers disagreed, attributing much of the corruption of England’s ‘fundamental laws’ to the perverse legal practices they claimed were introduced under the ‘Norman Yoke’. Before the Norman Conquest, ran one tract, ‘the nation never knew or felt the charge, trouble, or intanglements of Judges, Lawyers, and Attorneys, Solicitors, Filors, and the rest of that sort of men …’ (Anon.) The Onely Right Rule for regulating the Lawes and Liberties of the People of England (28 January 1652/3) [H. L.: E 684 (33); film A199, reel 105), p. 5. See also William Cole A Rod for the Lawyers: Who are hereby declared to be the grand Robbers and Deceivers of the Nation … (London, 1659) [H. L.: *EC65.C6766.659rb).
R. A. MacKay, ‘Coke — Parliamentary Sovereignty or the Supremacy of the Law?’ Michigan Law Review, vol. 22, 1923–4, p. 215. The discussions of Coke’s jurisprudence are legion. It is useful to note those that remain among the more frequently cited. Samuel Thorne, ‘Dr. Bonham’s Case,’ Law Quarterly Review, vol. 54, 1938, pp. 543–52. A. V. Dicey, The Law of the Constitution (London, 1959), p. 46; Charles H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910), pp. 139–48.
English Reports (London, 1912), vol. 8, p. 118, contains his dicta that ‘in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void; for when an act is against Common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such an act to be void.’ For a report of Coke’s claim before James I that while ‘God had endowed his Majesty with excellent science and great endowments of nature; but His majesty was not learned in the law’ which was ‘not to be decided by natural reason but by artificial reason’, see S. R. Gardiner, History of England (London, 1883), vol. 2, p. 38.
For the classic account of the deep fissure between the legal views of the Levellers and those of Sir Edward Coke with which this analysis takes at least partial issue, see J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957, 1987), pp. 125–7. Pocock’s position is to some degree shared by Christopher Hill in Puritanism and Revolution (London, 1958), pp. 75–82. However, for another critical view of the Pocock position, see Robert Seaburg, ‘The Norman Conquest and the Common Law: the Levellers’ Argument from Continuity’, Historical Journal, vol. 24, 1981, pp. 791–806. For a helpful discussion of Leveller legal thought that shares Seaburg’s perspective, see Green, Verdict According to Conscience, Ch. 5.
For perhaps the most strenuous critique of Coke’s jurisprudence as suitable for a coherent historical continuity reading, see Holdsworth, History of English Law (London, 1922–32), vol. 5, pp. 475–9. See also MacKay, ‘Coke’, pp. 215–47; S. E. Thorne, Sir Edward Coke, 1552–1952 (London, Seiden Society, 1957). pp. 10–17.
Thorne, Sir Edward Coke, p. 10. For a clear statement which suggests that he did not question the power of Parliament to set aside the common law, see 3 English Reports, XVIII; 4 Reports I, II, IX–XI. Cited in MacKay, ‘Coke’, pp. 217–21; J. W. A. Gough, Fundamental Law In English Constitutional History (Oxford, 1955), p. 206.
As both Maitland and Holdsworth have noted, Coke was, throughout his life, a strenuous advocate of one political cause or another. In terms of his legal advocacy, Holdsworth notes that ‘whether he is reporting a case, or arguing for the supremacy of the common law in the state, or upholding the privileges of Parliament he does it with all his strength; and the result is that he talks and writes himself into a decided view of the subject. I doubt very much whether in all Coke’s writings a passage could be found in which he admits he has left any uncertainty in the law…. His work therefore is disfigured by inconsistent statements…. And this readiness to accept anything in support of his view which he is defending, makes it easy for him to misrepresent his authorities by reading into them the sense which supports the conclusions he wishes to draw.’ William Holdsworth, A History of English Law (Boston, 1927), vol. V. pp. 495–6.
Cited in Holdsworth, History of English Law, vol. III, p. 472.
Holdsworth, History of English Law, vol. V, p. 475.
(Anon.) Certain Proposals for regulating the Law, to make the same more plain and easy to be understood, and lesse chargeable and expensive than heretofore, n.d. (in the regin of Charles I), in Walter Scott, ed., The Somers Collection of Tracts (London, 1812), vol. V, pp. 534–5. (Anon.), The Law’s Discovery: Or a brief Detection of sundry notorious Errors and Abuses comtained in our English Laws, whereby Thousands are annually stripped of their Estates, and some of their Lives. By a Well-wisher to his Country (London, 1653), in William Oldys and Thomas Park, eds, Harleian Miscellany (London, 1909), vol. II, p. 577. It should be noted that while the Revolution did accomplish the rendering of statute law into English, existing case reports were not translated until the late eighteenth century. This should be noted with particular significance to the American colonies, which also lacked their own domestic case reports until the 1830s.
Certain Proposals for regulating the Law, p. 535. The reduction of the laws to a single handbook was a common proposal of the revolutionary era. William Shepard, perhaps Cromwell’s principal law reformer, proposed in 1656 that the entire law should be codified in order to render it ‘as short and as clear as may be.’ Cited in Donald Veall, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970), p. 92.
Coke, Institutes of the Laws of England, part 2 (1642) (London, 1809), p. 179. Interestingly enough for those who press the non-historical character of the Leveller legal position, Lilburne characterized the fundamental law as that historical collection of charters, such as Magna Carta, although in his second trial he added to this list quotations from Genesis, Deuteronomy, and the Acts of the Apostles. See Christopher Hill, Puritanism and Revolution, p. 76.
The Leveller proposal that the law be rendered from Latin to English was not put into effect until 1731 (4 George II, cap. 26). According to D. B. Horn and Mary Ransome, the substitution in indictments was opposed by lawyers and was deplored by Blackstone. English Historical Documents (New York, 1969), vol. x, p. 237. The act applied to all pleadings, rules, orders, indictments, informations, inquisitions, presentments, verdicts, etc. And, the stated purpose of the act was to prevent subjects from being ‘ensnared or brought in danger by forms and proceedings in courts of justice, in an unknown language.’ Importantly for Americans, however, the act specifically applied only to ‘that part of Great Britain called England’, and noted specifically that ‘nothing in this act, nor any thing herein contained, shall extend to certifying beyond the seas any case or proceedings in the court of admirality, but that in such cases the commissions and proceedings may be certified in Latin as formerly they have been.’ See Statutes at Large, vol. xvi, pp. 248–9.
The charge against Lilburne was that he ‘didst maliciously, advisedly, and traitorously publish’ ‘false, poisonous, traitorous and scandolous’ books such as An Outcry of the Young-men and Apprentices of London, or an Inquisition after the lost Fundamental Laws and Liberties of England which called the present government, among other things, ‘tyrannous and usurped’ and ‘unlawful’. T. B. Howell, State Trials (London, 1816), vol. iv, pp. 1130, 1131, 1136. Although Lilburne’s actual crime might be construed as seditious libel, he was charged with treason based on a number of statutes passed by the Rump in 1649 which extended the Treason Acts to the expression of opinion. Lilburne’s opinions had been particularly sharply expressed in, for example, England’s New Chains Discovered (London, 26 Feb. 1649) and The Second Part of England’s New Chains Discovered (London, 24 March 1649). See W. Haller and G. Davies, eds, Leveller Tracts, 1647–1653 (New York, 1944).
Howell, State Trials, vol. IV, pp. 1274–5.
Howell, State Trials, vol. IV, p. 1275.
Howell, State Trials, vol. IV, p. 1381. Coke, The First Part of the Institutes of the Laws of England: Or, A Commentarie upon Littleton (1628; London, 1809), p. 366.
John Jones, Jurors Judges of Law and Fact: Or certain Observations of certain differences in points of Law … (London, w.d., 1650), p. 16. Despite Jones’s attack on the claim that common men — ‘mechanics, bred up illiterately in handicrafts’ — were incapable of understanding the law, and his scathing criticism of lawyers (and judges) for having composed law in an ‘uncouth Giberish of their own making’, in a language of ‘hotch-potch French and quelquechose latin’, Jones still recognizes there will be cases which require ‘men of social ability to interpret the laws’ (pp. 47–50, 51–2, 78–9).
Howell, State Trials, vol. IV, pp. 1379, 1380.
Howell, State Trials, vol. IV, p. 1307.
Howell, State Trials, vol. V, p. 446.
Perhaps more importantly, despite Lilburne’s acquittal of 1653, he remained a prisoner of state ‘for the peace of this nation’ until his death in 1657. See Pauline Gregg, Free-Born John: A Biography of John Lilburne (London, 1961), pp. 333–4.
Howell, State Trials, vol. VI, pp. 954f. Both Mead and Penn were charged with breach of the peace and unlawful assembly rather than directly breaching the recently renewed Conventicles Act. Penn and Mead published their own account of the trial as The People’s Antient and Just Liberties (London, 1670), cited in Green, Verdict According to Conscience, p. 222. A sample of the tracts discussing the role of juries may be found in (Anon.), The Jury-man charged: or, A Letter to a Citizen of London (London, 1664), H. L.; William Smith, Some Clear Truths (London, 1664).
J. Gough, Fundamental Law in English Constitutional History (London, 1955), p. 206; Edward Corwin, ‘Progress of Political Theory from the Revolution to the Founding’, American Historical Review, vol. 30, 1924–25, p. 522.
This was to remain true until the passage of Fox’s Libel Act in 1792. See T. F. Plucknett, A Concise History of the Common Law (Boston, 1956), p. 501.
William Blackstone, Commentaries, IV, ch. II, pp. 150–1.
E. P. Thompson, Whigs and Hunters (London, 1975), pp. 158–69. On Thompson’s account, Whig rulers were prisoners of their own rhetoric. ‘[T]hey played the game of power according to rules which suited them, but they could not break those rules or the whole game would be thrown away’ (p. 263).
S. R. Gardiner, History of England, vol. VII, pp. 123, 361.
Stephen, History of the Criminal Law (London, 1883), pp. 382, 383. Stephen adds that ‘the popular notions about the safeguards provided by the trial by jury, if only ‘the good old laws of England’ were observed, were, I think, as fallacious as the popular conception of those imaginary good old laws’. Stephen also called the ten years preceding 1688 ‘perhaps the most important in the judicial history of England’. It was not until an act of 1760 that it was provided for the continuance of judge’s commissions on the death of the King (Geo. III, cap. 23). Statutes at Large, vol. XXIII, pp. 305–6.
Holdsworth, History of English Law, vol. V, p. 351.
See the trial of Algernon Sidney, in T. B. Howell, State Trials, vol. IX, pp. 815ff.
Holdsworth, History of English Law, vol. V. pp. 475–7.
G. W. Paton and D. P. Durham, eds, Jurisprudence (Oxford, 1982), p. 332. For example, Coke had earlier denied the right of habeas corpus in certain cases and had denied Parliament’s authority to limit the royal prerogative.
Holdsworth, History of English Law, vol. V, pp. 474–5; Paton and Durham, Jurisprudence, p. 332.
Gordon Wood, The Creation of the American Republic (New York, 1969), p. 263.
Rodney Barker, Political Ideas in Modern Britain (London, 1978), p. 260.
Holdsworth, History of English Law, vol I, p. 350.
See Throckmorton’s Case (1554), State Trials, vol. II, p. 869.
Floyd V. Barker (1608), Collected Reports, vol. 12, pp. 23–4.
Holdsworth, History of English Law, vol. I, p. 345. While technically permissible, the practice of fining jurors was less common in the first half of the seventeenth century than in the 1660s, when judges attempted to enforce the unpopular Conventicles Act (1664) against Quakers. In fact, most Quakers were convicted, although not without considerable evidence of extreme pressure and harassment from the bench in several cases. See T. A. Green, ‘The Jury, Seditious Libel and the Criminal Law’, in R. H. Helmholz and T. A. Green, Juries, Libel, and Justice: the Role of English Juries in Seventeenth- and Eighteenth-Century Trials for Libel and Slander (Los Angeles, 1984), p. 80.
Vaughan, 135 C.P. (Common Pleas). See The English Reports (Edinburgh, 1912), vol. 124, p. 1006. See also Holdsworth, History of English Law, vol. IX, p. 29; vol. I, p. 345.
Bushell’s Case, The English Reports, vol. 124, p. 1010. This has also been the interpretation of at least one later historian examining the case. See Mark De Wolfe Howe, ‘Juries as Judges of Criminal Law’, Harvard Law Review, vol. 52, 1939, pp. 582–3. This case was somewhat unusual insofar as the Justices exchanged words with the jurors, particularly Bushell, about the basis of the verdict.
Even arguably the most influential pamphlet of the period, John Hawles’ The English-Men’s Right (1680), would require considerable stretching of interpretation by later generations of American colonists to suggest anything more than that juries must be allowed to determine the general issue of law and fact together in order to avoid becoming ‘engines of oppression’. See also John Somers, The Security of English-mens Lives or the Trust, Power, and Duty of the Grand Jury of England (London, 1682), p. 2 (H. L.); [H. E.], The Jury-man charged; or, A Letter to a Citizen of London. Wherein it is shewed the true meaning of the Statute, Entitled, An Act to prevent and Supress Seditious Conventicles (London, 1664), p. 1 (H. L.). The tract refers to ‘false Glosses and Interpretations detected’, and accuses judges of having made ‘a nose of Wax of the Law, and suffer the Law to be baffled’ (pp. 1, 15); John Hawles, Remarks upon the Tryals of Edward Fitz harris … Colonel Sidney … and the Award of Execution against Sir Thomas Armstrong (London, 1689) (H. L.), p. 47 Hawles notes that ‘the Judges having been made by [the King], and it is in his Power to turn them out, punish, to prefer or reward them higher …’ (pp. 76–9, 93, 101, 103); John Hawles, The Grand-Jury-man’s Oath and Office Explained: And the Rights of English-Men Asserted (London, 1680) (H. L.), pp. 12–15; William Penn, The People’s Ancient and Just Liberties (London, 1670) (H. L.); William Penn, Truth Rescued From Imposture (London, 1670) (H. L.); Henry Care, English Liberties: Or, the Free-Born Subjects’ Inheritance (London, 1700, 1st ed., 1682), pp. 134–5; [John Tutchin], The Observator, vol. II, no. 40, 21–5 Aug. 1703; no. 41, 25–8 Aug. 1703 (H. L. Film SC8)
For a brief discussion of these trials, see Philip Hamburger, ‘The Development of the Law of Seditious Libel and the Control of the Press’, Stanford Law Review, vol. 37, 1985, pp. 698–700. Trial of Dover, Brewster & Brooks (1663), Howell, State Trials, vol. 6, p. 540; Trial of John Pym (1664), 82 English Reports, p. 1068; Trial of Sir Samuel Barnadiston (1684), State Trials, vol. IX, pp 1334–5; Proceedings Against Richard Baxter, State Trials, vol. XI (1685), p. 494: see Hamburger, pp. 698–9.
E. G. Henderson, ‘The Background of the Seventh Amendment’, Harvard Law Review, vol. 80, 1966, p. 333. While securing the right to juries to render a general verdict, the act clearly delineated the standard division between law and fact. It is a commonplace that in the years following passage of Fox’s Libel Act, prosecution for seditious libel increased and juries convicted more often than previously. See Holdsworth, History of English Law, vol. X, p. 693; and D. A. Rubini, ‘The Precarious Independence of the Judiciary, 1688–1701’, Law Quarterly Review, vol. 83, 1967, pp. 343–55.
Howell, State Trials, vol. IX, p. 817; John H. Langbein, ‘The Criminal Trial before the Lawyers’, University of Chicago Law Review, vol. 45, 1978, pp. 263ff.
Howell, State Trials, vol. XII, p. 183.
(Anon.), Of Tryals by a Jury (1722), reprinted in Justices and Juries in Colonial America (New York, 1972), p. 297.
H. T. Dickinson, ‘The Eighteenth-Century Debate on the Sovereignty of Parliament’, pp. 192, 205; Dickinson, ‘The Eighteenth Century Debate on the “Glorious Revolution”’, History, vol. 61, 1976, pp. 29–45. J. A. W. Gunn, Politics and the Public Interest in the Seventeenth Century (London, 1969), p. 308. Gunn makes the very interesting suggestion that this expropriation of ‘salus populi’ by the Whigs under Walpole to justify ‘reason of state’ may explain the reluctance of later radicals, such as Wilkes, to employ it as a rallying cry for critics of government. Philip Hamburger has shown that the doctrine of seditious libel was substantially broadened in the aftermath of the Glorious Revolution to include ‘seditious’ criticisms of government generally, not just of particular officials, as had been the practice in Coke’s time. Likewise the notion of treason was expanded to be used as a means of controlling a critical press. Hamburger, ‘Development of the Law of Seditious Libel’, p. 720.
Blackstone, Commentaries, IV, c. 33, s. 5; Howell, State Trials, vol. VIII, p. 243.
Betty Kemp, Kings and Commons: 1660–1732 (New York, 1957); J. H. Plumb, The Growth of Political Stability in England, 1675–1725 (London, 1967).
See ‘Some Remarks Upon Government and Particularly Upon the Establishment of the English Monarchy … in Two Letters Written by and To a member of the Great Convocation Holden at Westminster … the 22nd of Jan., 1688–89 by A.B.N.T’, cited in Gunn, Politics and the Public Interest, p. 9. I owe the point concerning the restriction of the franchise in England after 1688 from a 40-shilling to a 200-pound freehold to Mr Alan Houston. For a discussion of the treatment of Catholic and Protestant dissenters, see E. P. Thompson, Whigs and Hunters; Douglas Hay et al. (eds), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975).
See H. Mission, ‘Memoirs and Observations in his Travels over England’ (London, 1698, trans. 1719), p. 328. Cited in Green, Verdict According to Conscience, p. 278.
Leonard Levy, Legacy of Supression: Freedom of Speech in Early American History (Cambridge, Mass., 1960), p. 254; T. E. May, Constitutional History of England, vol. II, p. 142–50; Rex v. Winterbottom, in State Trials, vol. XXII, p. 875.
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Stimson, S.C. (1990). Historical Transformations and Legal Legacies. In: The American Revolution In The Law. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-10056-9_2
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