Vol. 14 No.10 (October 2004), pp.805-812
RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES, by John Phillip Reid. DeKalb, Illinois: Northern Illinois University Press, 2004. 160pp. Cloth $32.00. ISBN: 0-87580-327-X
Reviewed by Craig Hanyan, Professor Emeritus, Brock University, St. Catharines, Ontario, Canada. Email: firstname.lastname@example.org
In COMMON SENSE Thomas Paine (1776) reached a rhetorical high point as he urged the creation of a “CONTINENTAL CHARTER.” He demanded:
Where . . . is the King of America? I’ll tell you Friend, he reigns above, and doth not make havock of mankind like the Royal [Brute] of Britain. . . . Let a day be solemnly set apart for proclaiming the charter; let it be brought forth and placed on the divine law, the word of God; let a crown be placed thereon, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries, the law ought to be King . . . But . . . let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is (p.55).
John Phillip Reid, in his brief but wide-ranging RULE OF LAW, explores the foundations of blessings that Paine proclaimed: law as both divinely and popularly ordained; law an autonomous and independent entity, resistant to contemporary human will, even the will of a king; law as the bulwark of rights and freedom; and law as an authority that informs the essence of “the charter.” The seven chapters of the book focus on the law which, in the words of Daniel J. Hulsebosch (2003, 444), created “the Anglo-American idea of a constitution: a national legal environment anterior to the positive law of kings, their courts, and legislatures.” Essentially, the law under scrutiny antedates the post-1688 ascendancy of parliament, an ascendancy that led to John Austin’s (1968, 9) nineteenth-century definition of law as commands “set by political superiors to political inferiors.” In his first chapter, “Rule’s Law,” Professor Reid tells us that he will offer “detailed consideration of two debates that . . . together with summary highlights both before and after the seventeenth century, should serve to clarify . . . how rule-of-law ideally functioned . . . in England and Great Britain prior to the middle of the nineteenth century, and how it functioned in the North American colonies and the United States well into the twentieth century” (p.4).
“Before” begins in chapter two, “Law’s Bridle,” with Magna Carta and Henry of Bracton’s (1968) thirteenth-century treatise ON THE LAWS AND CUSTOMS OF ENGLAND. Both fostered the development of an enduring body of autonomous law that precipitated from custom and precedent and served to restrain as much as to direct power. Lawyers, the learned professionals who defended and judged the personal liberties and rights of clients, worked with this complex and [*806] often murky body of knowledge to shape the meaning of due process and the rule of law. Assisted by occasional acts of Parliament, they continually refined the plastic substance of a developing constitution. They groped forward in the development of rules that bolstered one central principle that bridled power: the Crown was the creature of law and must rule thereby, just as all others must be ruled by that law.
RULE OF LAW, in the chapter entitled “Rule’s Inverse,” leaps forward to the seventeenth century and the struggles of the Civil War years. Although the resort to arms may have been the inverse of the rule of law, the principle of rule by law did not suffer, for men often appealed to it to justify extraordinary and often violent acts. Reid points out that both King Charles and his opponents claimed to champion the rule of traditional law and thereby emphasized that law’s centrality to the rights of Englishmen and the vitality of that legal tradition. Sir Robert Berkeley’s defense of Charles I’s aggressive extension of the Shipmoney tax to inland counties nevertheless appeared to presage “the introduction of rational law” (p.25), law judged to be reasonable by the Crown and by compliant judges. Facing death, however, Charles defended traditional law and rights against a legislature that meant to impose its reason and will. He challenged law as the command of Parliament as a sovereign power, the understanding not only of Austin but a view to emerge earlier in the minds of William Blackstone and William Murray, Lord Chief Justice Mansfield.
In the next two chapters—”Law’s Hedge” and “Law’s Bridling”—Reid explores two very different efforts to ensure the rule of law, proving that it was held dear on both sides of the Atlantic. The settlers of Massachusetts Bay colony won a statement of their legal rights in the 1641 BODY OF LIBERTIES (Whitmore 1889) but remained uneasy given the latitude that the magistrates of the colony claimed in the matter of criminal penalties. Unconvinced by John Winthrop’s forceful presentation of the case for discretionary sentencing, the colonists, in the LAWS AND LIBERTYES of 1648 (Barnes 1975), extracted a more particular and explicit codification. Biblically defined criminal penalties in these 1648 laws were often severe, but the people of Massachusetts had, in their understanding, escaped “arbitrary” rule, rule other than by law.
Resistance to arbitrary rule appeared equally important in the second effort Reid describes—an effort that occurred during the time of the Commonwealth and which echoed the insistence of King Charles that he had a role in preserving rights of his subjects under law. By 1657, England, under the Protectorate of Oliver Cromwell, had shifted from military rule toward civilian control. The “Humble Petition and Advice” of that year asked of Cromwell “that your highness will be pleased, by and under the name and style of lord protector . . . , to hold and exercise the office of chief magistrate of these nations, and to govern, according to this petition and advice, in all things therein contained, and in all other things according to the laws of these nations, and not otherwise; that your highness will be pleased during your lifetime to appoint and declare the person who shall immediately after your death succeed you in the government of these nations” (Stephenson and [*807] Marcham, 1937, 529). Thus urged, Cromwell might change from Lord Protector into king. Reid tells us that, at this time, “the attorney who seems to have had the greatest influence with Cromwell was Bulstrode Whitelocke, a leading barrister and lord commissioner of the treasury” (p.57). Along with other lawyers,
Whitelocke urged Cromwell to embrace not just rule-of-law but the ancient constitution and the good old law. Legitimacy of the title of lord protector depended . . . [on] a military foundation . . . But the title of king . . . besides coming from Parliament as part of the Petition and Advice, “will likewise have a foundation upon the old and known Lawes of the Nation; so there will be both the present constitution, and likewise the ancient foundation of the Lawes of England to be the Basis of the Title of King”(p.58).
Backed up by Richard Boyle, Lord Broghill, who had commanded for Cromwell in the Irish wars, other lawyers argued that the title and office of king was intimately bound up with the traditional laws of the country. Hence that office must be filled if the legal rights of the subjects of “these nations”—England, Scotland, and Ireland—were to be preserved and fostered. “The laws restrained a king, not a protector, or as Bracton had said, they hedged the king in” (p.59). Conversely, neither those restraints nor the authority of a king could be attached to the title of Lord Protector by Parliament: only very limited credence could be given Parliament-created law in so great and complex a matter. Cromwell understood the arguments, but perhaps forced by the republicanism of the army, he refused the crown. He would soon be dead, and “law would triumph in the end with the Restoration” (p.66).
Professor Reid’s statement of the case from traditional law made in Cromwell’s presence prepares the reader for the sixth chapter, “Law’s Umpire,” which might also be entitled “Law and the Empire.” Parliament, as the sovereign source of law, gained ground after the settlement of the Glorious Revolution, or more exactly, after the passage of the Septennial Act demonstrated that Parliament had the power to tinker with that settlement and would use its power do such things as alter the charter of the East India Company and incarcerate London officials. Most Britons, unlike critics such as Henry St. John, Viscount Bolingbroke, accepted this change, not fathoming the extent to which the legal protections of traditional law might clash with the benevolent legislative power wielded by Robert Walpole and his successors as Prime Minister. Americans thought differently. Clinging firmly to the legal traditions of the “ancient constitution,” they resisted Parliament’s efforts to tax them and to regulate their economy. Parliament responded with the Declaratory Act of 1766. Reid has said elsewhere (1991, 62) that this asserted “the constitution of sovereign command,” and “that constitution made the decision of power almost inevitable once the Declaratory Act became law.” The colonists met power with force. In the book under review Reid tells us that “if seen from the point of view of Bracton, [Sir Edward] Coke, [John] Pym, Charles I, [Algernon] Sydney, and [Matthew] Hale, it is no exaggeration to say that the [*808] American Revolution was the greatest triumph for rule-of-law” (p.75). The triumph was enduring, ongoing. Reid, in his last chapter and conclusion, asserts “Rule’s Determinacy”: the thick and complex substance of the law did not yield to evanescent political and social pressures but endured to preserve the legal rights of litigants, perhaps even beyond the administrative empires that emerged in twentieth-century American government. He ends with these words: “The law that Bracton expounded, Coke taught, and Charles I pleaded may have been constitutionally archaic in the nineteenth century, but was still known and still studied. And in the United States it was ever ready to be argued by counsel and applied by the courts” (p.96).
RULE OF LAW can readily find a place in courses dealing with the history of Anglo-American law and with the changes in the Atlantic world that led to the American Revolution. It should serve as a point of departure for readings offering a differing perspective. Over twenty years ago one critic pointed out that Reid’s understanding of that Revolution was at odds with “the neo-Whig views of Bernard Bailyn (1967) . . . and Caroline Robbins (1959) . . . and others whose writings emphasized republicanism, an ideology born of a variant of late-seventeenth and early-eighteenth-century Whig thought [and] . . . views of Henry S. Commager (1977) . . . and Henry May (1976) . . . who saw in the Revolution the flowering of the European Enlightenment” (Sosin, 1982, 38). This invitation to comparison still stands, and the “others” since that time have multiplied, many pointing to social and economic changes that heated and forged republican thought. Reid, however, specifies that he views the American Revolution from the vantage of men who held dear the traditions of English law. Fair enough, for lawyers played a major role in the enterprise, they led in a society much given to litigation, and the conditions of law in the American colonies provided at least a strong plank in the bridge which enabled a people to cross from discontent to rebellion.
Certainly, this view of events can be enlarged beyond the perspective of law and the emphasis changed. T. H. Breen (1997), drawing on the literature of British and American history has observed that “four new elements . . . influenced how the colonists imagined themselves within the Anglo-American world: the developing military strength of Great Britain, the spread of a consumer-oriented economy, the creation of a self-conscious middle class culture, and, most significant for our purposes, the stirrings of a heightened sense of British national identity” (p.16). In particular, the English nationalism and the English sense of personal superiority that grew rapidly from the victory of Blenheim and the War of Spanish Succession through the Seven Years’ War galled Americans as much if not more than the assertions of Parliament’s sovereignty. Fred Anderson’s (2000, 413) rich and complex exploration of the Seven Years’ War informs us that “in the end there was no love left to be lost between the provincials and regulars who together had added Canada to the British empire.” Sharply defined as other than English, and increasingly alienated, Americans eventually shifted from rights embedded in the ancient constitution to the more abstract statement of natural [*809] rights found in the work of John Locke. They also responded more forcefully to the Quebec Act of 1774 than to the Declaratory Act: the former had given a large chunk of their patrimony over to Frenchmen, a crowning insult.
Reid’s emphasis on the relationship between monarchy and the rights of Englishmen will point the student toward the work of Richard L. Bushman (1985), who found that the provincials of Massachusetts looked to the Protestant king to preserve their rights, only to become disillusioned and fearful as they came to understand the Crown as an element in the exploitive “interest” politics of London. It is fair, moreover, to consider that English interests in Ireland may have fed into the efforts of lawyers to crown Cromwell. Cromwell’s subjugation of that island required the common law rules governing real property to be more extensively applied there, expanding the work begun under James I by Sir John Davies. Monarchy and land law were intimately entwined, and basically, many rules endured until the Law of Property Act, 1925 (15 & 16 Geo. V. c. 20), legislation that took shape as Ireland’s parliament began to function in 1922. Some particular rights of Englishmen—their “interest”—in the third “nation” may have moved Broghill and Whitelocke, who had acquired land in Westmeath and Kildare. Whitelocke, moreover, an articulate defender of the legal profession, had advocated restoration of monarchy as early as 1651, and that points the student toward another context from which the Humble Petition and Advice emerged: hostility toward the existing legal system, the failure of legal reform in fractious interregnum parliaments, and the early swell of distrust of lawyers. That swell appears to have abated by the time of the Humble Petition and Advice, making it easier to state the case for monarchy and traditional law in the interest of lawyers.
Traditional law was not the rule in fifteenth-century Ireland or in early Virginia. Conciliar justice, a Tudor expedient tailored to the peripheries of the royal authority, gave power to ambitious and often ruthless men determined to exploit opportunities. Their deeds, a new understanding of law as presented by Thomas Hobbes and Francis Bacon, and familiarity with Roman-Dutch law, helped to define the context in which settlers in Massachusetts Bay demanded legal rules that limited magisterial discretion; and as Mary Sarah Bilder (2001, 66) has pointed out, in Massachusetts, “into the 1660s, … the appeal, with its promise of rehearings, remained central to the judicial system.” The Puritan vision of a social covenant made the settlers’ demand legitimate, but the realities of the rule of law elsewhere could only have fueled it. The new imperial “Zones of Violence” to which Eliga H. Gould (2003) has directed our attention helped to foster deviant legal environments eventually made more secure by the common law: the rule of traditional law followed on imperial expansion and often on successful rapacity. This rule of evolution held for Massachusetts, a evolution as important as colony’s avoidance of conciliar justice.
The reader should keep the conditions of law in mind as she proceeds through Reid’s seventh chapter, “Rule’s Determinacy.” Drawing on work by E. P. Thomson (1975), Christopher Waldrep (1996), and Lucy E. Sayler (1995), [*810] he points to their discovery that local judges followed the rules of the law strictly, defending the weak. Reid’s point is heartening. Nevertheless, if the Post-Civil War “Black Codes” were applied in a way that gave African-Americans due process, this may have reflected the fact that poorer whites also came before county courts. Those courts did not protect against extra-legal coercion, and by the 1890s the legal system had been shaped into a hostile structure with PLESSY v. FERGUSON as the keystone. Time also eroded due process granted Chinese-Americans. The Supreme Court in UNITED STATES v. SING TUCK and UNITED STATES v. JU TOY, written by Oliver Wendell Holmes, Jr., denied judicial review to the citizenship claims of those ethnic appellants. So, the rule of law may run off the tracks at high levels. But, then, Reid has said that he would take us only “into the twentieth century.” He has presented his case as a skilled and committed advocate: readers will profit by weighing his paean to the common law as the foundation of the rule of law against the record of Anglo-American politics and law. The lessons should not be lost on citizens of a country combining the best legislature that money can buy with the most powerful of elective monarchies.
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PLESSY v. FERGUSON, 163 U.S. 537 (1896).
U.S. v. JU TOY, 198 U.S. 253 (1905).
U. S. v. SING TUCK, 194 U.S. 161 (1904).
© Copyright 2004 by the author, Craig Hanyan.