Contract and Consent

Contract and Consent: Representation and the Jury in Anglo-American Legal History

J. R. Pole
Copyright Date: 2010
Pages: 280
https://www.jstor.org/stable/j.ctt6wrr38
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    Contract and Consent
    Book Description:

    InContract 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.

    eISBN: 978-0-8139-2892-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Preface
    (pp. xi-xii)
    JRP
  4. Acknowledgments
    (pp. xiii-xiv)
  5. Part I Contract and Consent
    • Introduction Reason and Custom
      (pp. 3-8)

      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 ofBaker 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...

    • 1 Where the Law Comes From The Courts and the Making of Society
      (pp. 9-33)

      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...

    • 2 John Slade’s Other Harvest Common Law, Contract, and the American Republic
      (pp. 34-63)

      Ideas of contract are almost (though not quite) as old as the human activities of giving and receiving. If I give you this thing hoping or expecting that you will give me that thing, or even in return for something, that exchange is no contract; but if I give you this thing onconditionthat you give me that thing or do something for me, and you agree to the condition, there is a primitive form of contract. The essence is a promise.¹ But what constitutes a promise? And need the promise offer a reciprocal advantage? Legal advocates, philosophers, and...

    • 3 Sedition and the Jury in London and New York
      (pp. 64-105)

      The English judicial system, and with it the jury, became involved in almost every phase of the series of political crises that afflicted England during the first century of American colonization. The irrepressible Leveller John Lilburne was twice, in 1649 and 1653, subjected to political trials for alleged offenses against the state and twice acquitted by irrepressible London juries. His supporters struck a commemorative medal bearing the legend “John Lilburne, saved by the power of the Lord and the Integrity of the Jury.” A Leveller pamphlet appearing in the same year included this right of juries to judge law as...

    • 4 American Independence and the Crisis of Sovereignty
      (pp. 106-120)

      The issue of sovereignty links with other essays in this study because sovereignty is the legitimate use of superior power, and legitimacy, according to Anglo-American traditions, is conferred by some form of contract. When the British Empire split, it was along the seam which identified sovereignty as power joined to legitimacy. British sovereignty over the empire appeared from a parliamentary point of view to be a self-evident condition, almost a tautology, which reached its apogee in 1766 with the passage of the Declaratory Act, asserting that Parliament had the right to bind the colonies “in all cases whatsoever.”¹ Was it...

    • 5 Inferences and Continuities
      (pp. 121-134)

      Ever since Alexis de Tocqueville publishedDemocracy in America,it has been a familiar observation that England’s settlers brought no aristocracy to American shores. Tocqueville himself, visiting the United States in the early 1830s, found the closest resemblance to an aristocracy in the legal profession.¹ His list of attributes absent from the colonial and early national scene could be extended in the manner of Henry James: no great houses, no Gothic cathedrals, no little Norman churches, no bishop, no royal court, no Houses of Parliament, no capital city, no Eton nor Harrow . . .

      This absence of a hereditary...

  6. Part II Occasional Essays
    • 6 Some Problems of a Colonial Attorney General in a Multicultural Society
      (pp. 137-153)

      Even the wide variety of personalities, with their different backgrounds, grievances, and disputes encountered by William Kempe in both his private and official practices as attorney general of the province of New York in the mid-eighteenth century can hardly have prepared him for the appearance, on some unspecified date apparently in or around 1754, of the disconsolate figure of Juan Miranda. For not only was Miranda a mulatto and Spanish-speaking, but he was a slave. And it was extraordinary, probably unknown, for a person of color, let alone a slave, to present himself in his own person to such an...

    • 7 Bicameralism and Republican Government in the British American Colonies and in the United States
      (pp. 154-171)

      At the time of the early English settlements in North America and the Caribbean islands, the bicameral structure of parliaments would not have seemed to need either explanation or justification. From the political point of view, the kingdom was made up of its estates. The Church of England, ecclesiastically self-governing, was represented in the House of Lords by the bench of bishops, the peers spiritual; the peers temporal, each of whom would be summoned to a parliament by a writ from the crown, sat there in their own right. The House of Commons—etymologically related to “communes”—consisted of representatives...

    • 8 The Individual, the Region, the Nation Where Three Roads Meet
      (pp. 172-184)

      An air of Greek tragedy hangs over the origins of the American Civil War—a sort of willed inevitability. Where three roads meet, three roads also diverge: it depends which way you are going. Here in Vienna (at a conference convened by the Austrian Association for American Studies), where the Oedipus complex was discovered, or invented, the invocation seems dramatic but appropriate. The attempted secession of the Southern states, and the formation of the Confederacy, involved all our three terms of reference—the individual, the region, and the nation: it was region against nation; and region or locality seemed for...

    • 9 Nation-Making and the American Constitutional Process
      (pp. 185-198)

      The great distinction and historic achievement of the American Constitution was to weld the disparate, shambling cluster of the self-interested original states into a national union. In other words,to createa nation of shared principles. The idea that a true political community was to be defined as a community of principle had advocates among the many differing thinkers whose names have been variously linked with the concept or the fore-runners of the Enlightenment, notably Machiavelli, Harrington, Locke, Montesquieu, Burlamaqui, Hume, and Rousseau.¹ In the longest of long runs, as Abraham Lincoln was to insist, when he warned Americans that...

    • 10 The Performance of Representative Institutions, 1776–1876 Ideology, Estates, and Interests
      (pp. 199-218)

      The great revolutions of the later eighteenth century set in motion a vast transformation of government which it is impossible to think of as ever in any one period having become formally complete. After the passage of a century or so, however, its outlines and character were clear enough for some sort of summary; and an informal, temporary completeness might be discerned in certain very distinct events. It was symbolized, and in part effected, by the passage of the British Reform Act of 1867; by the establishment of the Third French Republic; by the American Civil War and preservation of...

  7. Notes
    (pp. 219-246)
  8. Index
    (pp. 247-264)