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The American Revolution and the Law

The American Revolution and the Law: Anglo-American Jurisprudence before John Marshall

Shannon C. Stimson
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    The American Revolution and the Law
    Book Description:

    In 1773 John Adams observed that one source of tension in the debate between England and the colonies could be traced to the different conceptions each side had of the terms "legally" and "constitutionally"--different conceptions that were, as Shannon Stimson here demonstrates, symptomatic of deeper jurisprudential, political, and even epistemological differences between the two governmental outlooks. This study of the political and legal thought of the American revolution and founding period explores the differences between late eighteenth-century British and American perceptions of the judicial and jural power.

    In Stimson's book, which will interest both historians and theorists of law and politics, the study of colonial juries provides an incisive tool for organizing, interpreting, and evaluating various strands of American political theory, and for challenging the common assumption of a basic unity of vision of the roots of Anglo-American jurisprudence. The author introduces an original concept, that of "judicial space," to account for the development of the highly political role of the Supreme Court, a judicial body that has no clear counterpart in English jurisprudence.

    Originally published in 1990.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6147-7
    Subjects: Philosophy, Law

Table of Contents


    • 1 Political Thought and Historical Problematics
      (pp. 3-9)

      The aim of this essay is to challenge the assumption of a basic unity of vision and purpose at the roots of Anglo-American jurisprudence through a study of the role of juries and judgment in revolutions. Through a comparative look at the relationship between English and American conceptions of law and judgment in the seventeenth and eighteenth centuries, the conclusion can be reached that British and American jurisprudence are separated not only historically by differing court practices which commentators have frequently observed, but correlatively by essentially different theoretical conceptions of sovereignty, the nature of law, and the extent of ordinary...

    • 2 Historical Transformations and Legal Legacies
      (pp. 10-33)

      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 nonlegal 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...

    • 3 Juries and American Revolutionary Jurisprudence
      (pp. 34-66)

      The colonial judiciary and particularly the jury system have been neglected subjects of early American law. Yet, it is common knowledge that the American colonies won their independence at a time when the jury system was being acclaimed as a fundamental guarantor of individual liberty. When colonial intractability was first displayed over the Sugar Act of 1764, the issue was not simply one of taxation, but, as Burke recognized, principally one of the power of Parliament to set aside trial by jury in an effort to enforce vastly unpopular legislation.

      By this act . . .so construed and so...


    • 4 Locating the ‘Voice of the People’
      (pp. 69-85)

      To examine John Adams’ jurisprudence provides a convenient entrée to one strand of legal thought which occupied colonials both during and immediately after the Revolution. His legal thinking contains many of the apparent disparities and inconsistencies in argument that one might expect from any lawyer struggling to legitimate a radical departure from English jurisprudence – a revolution in the law – while remaining within the constraints of the language and existing institutions of the old jurisprudence. Thus while Adams was author of most, and inspirer of all, of the remarkably innovative Massachusetts Constitution – the model for several other state constitutions as well...

    • 5 Law in the Context of Continuous Revolution
      (pp. 86-105)

      In sharp contrast to Adams’ fears of American declension, Thomas Jefferson’s political and legal thought is buttressed by psychological optimism and inner certitude. Altogether missing from Jefferson’s thought is any note of the tragic, or of the doubt, anguish, or uncertainty which come from the consciousness of the chasm separating ideals from harsh reality.¹ ‘It is part of the American character’, he wrote, ‘to consider nothing as desperate; to surmount every difficulty by resolution and contrivance.’² Altogether absent is any uncertainty or fear of some future judgment. Such doubts did not of course escape John Adams, just as they had...

    • 6 The Politics of Judicial Space
      (pp. 106-136)

      From Alexander Hamilton’s perspective, no mechanical structure ‘checking and balancing’ orders of men, such as Adams proposed, could alone save a ‘factious’ people from destroying itself. Nor could men rely, as Jefferson seemed to suggest, on the improvement of humań nature through technological progress and education. Although their individual visions differed, both Adams and Jefferson held out hope that a new ‘science’ of politics (or man) would vest final judgment about public law with a community or an order of homogeneous and likeminded men.¹

      However, Hamilton offered another understanding of the nature of popular government and the function of judgment...

    • 7 Government by Discussion: Continuing Debate over Judicial Space
      (pp. 137-148)

      In the task of searching for ways to ‘interpret’ the American Constitution and to understand (so as to delimit) the function of the Supreme Court, constitutional and jurisprudential theorists have almost invariably begun with Marshall’s principal opinions. He remains ‘The Source’, even as widespread uncertainty and disagreement persist about the actual character of his contribution to understanding the court’s function or indeed about any particular opinion he may have written. Nevertheless, from the perspective of jurisprudential innovation, the differing perspectives on the role of courts and juries in maintaining a space for reflective judgment within the sphere of popular politics...