The Rule of Laws, page 33
Some governors now invited English lawyers to join their administrations, but many sent back alarming reports about the state of the colonies’ laws. The Earl of Bellomont, when he arrived as governor of New York in 1698, declared that the attorney general of Rhode Island was ‘a poor illiterate mechanic, very ignorant’, while his predecessor was ‘very corrupt, brutish, with no principles in religion’.41 And one English barrister commented that Virginia’s courts combined the work of Chancery, the King’s Bench, Common Pleas, and Admiralty, so ‘the sense of the law was mistaken, and the form and method of proceeding was often very irregular’.42 The Board of Trade directed that governors and other administrators should take steps to ensure proper legal standards among the settlers. Under this pressure, American lawyers began to refer more closely to English laws and customs. The Rhode Island Assembly acquired and consulted a book of English statutes. Lawyers and judges studied Coke’s work on property, which was frequently republished and circulated widely. Gradually, the colonies consolidated their legal institutions into more unified systems, recognizing the common law, while their lawyers undertook more specialist training. Indeed, free of the historical complexities of English legal institutions, American lawyers could often develop more systematic and coherent procedures than their counterparts across the Atlantic.43
Some English writers were still troubled by the idea that English law, which they regarded as a privilege as much as a form of governance, should not be applied directly overseas. The judge and jurist Sir William Blackstone maintained that the American colonies were conquered lands, so the common law could not apply to them directly. Their laws were similar, he argued, simply because they had been copied from the English. This, incidentally, meant that they could maintain slavery, something that was already subject to debate in England. But when Blackstone published the first volume of his monumental Commentaries on the Laws of England, in 1765, American lawyers eagerly ordered copies and studied it avidly.44 Its contents were disorganized, but Blackstone had made a heroic effort to bring order to the rules of the common law. And this was just the text that Americans needed to develop their nascent legal systems. The English publisher sold 1,000 copies in America before a local edition appeared, which quickly sold another 1,400. The most eminent lawyers subscribed, and the renowned Chief Justice John Marshall claimed he had read it four times by the age of twenty-seven. More than lawyers, Blackstone had intended it for laymen. Farmers, merchants, cabinetmakers, cordwainers, soldiers, and tavern keepers all consulted its pages. Initially, some of the more independence-minded American politicians objected to Blackstone’s view that they did not enjoy common law rights, and legal scholars supplemented his text with commentaries on the new American laws. But no one doubted that Blackstone was the starting point for anyone keen to understand, follow, and develop the law in America.45
IN ENGLAND, MEANWHILE, a combination of political and judicial activities continued to develop the common law. Parliament held more regular sessions after 1688 and found itself responding to increasing numbers of petitions for new legislation. Concerned about social problems, justices of the peace, members of a growing middle class, and new voluntary associations all lobbied for new laws, better methods of policing, and more effective penalties. They introduced bills to penalize gin drinking and practices of prostitution, which they saw as both symptom and cause of spiralling poverty, lawlessness, and disorder, particularly in London, and they lobbied for new criminal offences with extremely harsh punishments. Moral panic about crime was matched by anxiety about overregulation and abuses of power in a pattern all too familiar to the modern world. But by the 1750s, parliamentarians had accepted the necessity of legislating for the day-to-day government of their nation. People came to see law in the decisions of their Parliament as much as in the ancient principles of the common law.46
Still, the idea that the common law had an existence and authority of its own, apart from that of the monarchs and their parliaments, did not disappear. Both Radicals and Whigs, when they were in opposition, cited the common law as a guarantor against arbitrary and tyrannical rule. It represented a series of fundamental rights, they claimed, which the government was bound to protect and which it could not alter without the people’s consent. They took inspiration from theories developed by philosophers and legal scholars about natural rights.47 Hugo Grotius, the Dutch legal philosopher, had laid the basis for these ideas in the early seventeenth century in his influential work on natural law, which he had equated with Christian principles. The English philosopher John Locke further developed these ideas in the seventeenth century in his influential writings on property ownership. He argued that individuals had natural rights to own property on the basis of the labour they put into it.
These ideas about natural laws and rights, particularly as they concerned property, had a tremendous influence across the Atlantic.48 Following the conclusion of its very expensive wars with France, the British Parliament tried to extract more revenues from its flourishing American colonies. Inevitably, this led to resentment and resistance, and although there was now a sense of a common legal heritage, more and more Americans became determined to achieve autonomy, many lawyers among them. Several seized upon Coke’s ideas about liberties and property rights, along with his famous statements in Dr Bonham’s Case, which seemed to put the authority of the law above the power of the king. A number of them talked of the ‘fundamental rights’ of Englishmen and declared that the legal control exercised by the English monarch and his government was against the principles of natural equity. Even though Coke and his contemporaries had never seriously questioned the authority of Parliament, American activists talked of the common law in the same terms as natural law. It promised individuals a set of fundamental rights, they maintained, and guaranteed their freedom. Rather than substantive rules handed down by the ruler, the law required the consent of the people.
These arguments took their place alongside claims that the settlers had purchased their lands from the Indigenous peoples and improved them with their labour, that the Crown could not revoke its charters, and that the colonialists provided valuable benefits to England in its defence against the French and their popery. These arguments successfully appealed to American people across religious and regional divides, helping to create a shared political and legal culture. Blackstone’s insistence on the importance of natural, inherent, and inalienable rights provided valuable support.49 By the mid-1770s, John Adams was declaring that the laws of New England derived not from Parliament, or even from the common law, but from the law of nature. ‘Our ancestors’, he maintained, ‘were entitled to the common law of England when they emigrated’, but just so much of it as they pleased. The Preamble to the Declaration of Independence, ratified in 1776, appealed to the principles of natural law, proclaiming the ‘self-evident’ truth that ‘all men are created equal’ and ‘endowed by their Creator with certain unalienable rights’, including ‘Life, Liberty, and the Pursuit of happiness’.
In practice, after Independence, American states continued to use and develop the common law they had inherited from their English forebears. By the time of the Declaration, the English common law was so well established in the American courts and their procedures, in the arguments made by lawyers, and in the maxims cited by judges that there was no question of trying to establish any other system.50 People could no longer take appeals to the Privy Council in London, but they continued to read Blackstone’s Commentaries and to cite English cases in their courts. Ideas about natural law and rights had come together with the practices and principles of the English common law to form the basis for what was to develop into one of the dominant legal systems of the modern world.
BUT ENGLISH COMMON law was not without its critics. In 1811, the English scholar and social reformer Jeremy Bentham wrote to James Madison, the fourth president of the United States, offering to create a new legal code for America. This, he claimed, would free the new country from ‘the yoke’ of the wordless, boundless, shapeless common law ‘which remains about your necks’.51 He was one of a number of reformers who believed passionately in the need for written legal codes on both sides of the Atlantic. Their arguments largely fell on deaf ears in England and America, but it was different in continental Europe. Here, powerful movements for codification were already coming to a head.
France’s descent into revolutionary chaos and the disintegration of the Holy Roman Empire in the late eighteenth century, along with the discovery and settlement of the Americas, seem to have inspired European writers and reformers to pursue new debates about the sovereignty of national parliaments and the authority of their laws. How, some wondered, was the idea of parliamentary sovereignty to be reconciled with the idea that natural law protected individual freedom against tyranny? Was the legislature supreme, or could judges disregard a statute that offended against principles of natural law? Could individuals rely on their inherent rights to avoid the tyranny of a ruler or government?
These debates built on theories about natural laws and rights that scholars had developed over the centuries, and that John Locke and other political reformers in England had now taken up. For their part, continental scholars formulated the idea of the ‘law of nations’, a body of general principles that were supposed to apply to all people wherever they lived. They built on the Roman concept of the ius gentium, the laws common to all nations, which were distinct from the legal privileges enjoyed by Roman citizens. In the sixteenth century, the French legal scholar Charles du Moulin had laid the groundwork for the new ideas by trying to synthesize the idea of customary law with Roman laws and principles. Then Hugo Grotius, in the early seventeenth century, argued that natural law could be discovered by observing rules common to the laws of all civilized people. The theories of Grotius and his colleagues soon commanded respect throughout Europe, and scholars began to look for principles of natural law in Roman texts. Some, like the German jurist Samuel von Pufendorf, sought to align the idea of natural law with Christian theology. God, he argued, had created natural law for man. But not all scholars were so theologically minded. The German mathematician and philosopher Gottfried Leibniz advocated a system of laws based on logic. And, in his work on the civil law published in 1689, the French scholar Jean Domat recast Roman law according to what he argued were the logical principles of natural law. As in England, continental scholars were developing powerful ideas about a form of law that transcended political authority and, in this case, political divides, whether it was rooted in ancient tradition, Christian theology, logic, or common humanity.
The turmoil of the Thirty Years’ War in the seventeenth century encouraged scholars to think more pragmatically about the purposes of the law and what it could achieve. Many became convinced that they needed a system of impartial law that could transcend the ‘human passions’ and antagonisms of their rulers, whose wars had done so much to devastate lives and livelihoods in northern Europe. On the other hand, the Corpus Iuris Civilis was the work of a Roman emperor, and Justinian had asserted exclusive lawmaking power. Roman maxims asserted that the prince was ‘absolved from the laws’ (‘legibus solutus’), and that ‘what pleases the prince has the force of law’ (‘quod principi placuit legis habet vigorem’). Although the Roman jurist Ulpian had originally been expressing somewhat different ideas, scholars in medieval and early modern Europe quoted these maxims as simple statements of royal authority.52 The rationalist natural law scholars, as they came to be known, advocated the creation of a complete set of laws, which could be stated simply and logically, based on the will of the ruler. In this way, they tried to align the notion of the ruler’s sovereign power with the idea of natural and impartial law. Not surprisingly, the leaders of the European states that emerged from the Peace of Westphalia, which ended the wars, were enthusiastic about the idea of developing national codes of law, viewing them as aids to unifying their territories and limiting the power of local lords and judges. The Coutume de Paris and the criminal code of the Holy Roman Emperors were hardly up to the task.
Some writers objected to the idea that law could be fixed in a single code, notably the judge and philosopher Montesquieu. In his De l’esprit des lois (The spirit of laws), published in 1748, he argued that any law must relate to its own society, with its particular climate, economy, traditions, manners, and religion. Looking for universal ideas in the principles of natural law or theology was a mistake. But most rulers pushed ahead with plans for comprehensive legal codes. The first, published by the Duchy of Bavaria in 1756, presented a German-language version of the civil law. This was followed by an immense code commissioned by Frederick the Great of Prussia and completed under his son in 1794. It ran to some nineteen thousand articles. In Austria, the Holy Roman Empress Maria Theresa ordered a code of private law in 1753. The Codex Theresiana had over eight thousand articles but was extensively revised by her successors. It was eventually published in 1812, after the Holy Roman Empire had already collapsed.53
By this time, momentum for a comprehensive codification had already built in France, supported by the revolutionaries who were keen to implement their radical schemes for a new world order. When he seized power as First Consul in 1799, Napoleon Bonaparte lost no time in appointing a small panel of commissioners to create a civil code.54 This text, he declared, was to bring law and order to his people alongside a new calendar, a system of metric measurements, and educational reforms. He presided over the commission’s discussions himself. The code, Napoleon maintained, would abolish feudalism and make all Roman laws obsolete in a new spirit of unity, uniformity, and simplicity. In practice, Roman precedents substantially shaped the structure and content of the new code. The committee followed the structure of Justinian’s Institutes, and critical laws on private property were based on Roman ideas. Napoleon also emphasized the ‘reason’ on which his legal structure was based, a concept firmly associated with Roman law.
And Napoleon was nothing if not imperial in his ambitions. Looking to Rome for inspiration, he incorporated a toga and sword into his wardrobe and established a Senate and Tribunate in his government. He enthusiastically adopted Justinian’s view that the will of the ruler should constitute the law. As one scholar has commented, he was, like Justinian, obsessed by a belief in his mission to master and reorder the world and to rule, godlike, over his creation.55 Napoleon insisted that the law itself was not to be changed: legal experts would apply his laws, but judicial interpretation was forbidden. And, like the Roman emperor thirteen centuries earlier, he was quick to brush aside academic arguments that any law could transcend the authority of the ruler, arguing instead for absolute imperial power. But the French jurists were not remotely impressed. Following Napoleon’s defeat at Waterloo and the reestablishment of the monarchy in 1815, they reviewed and revised the law to suit the new constitution. In exile on St. Helena, Napoleon was appalled by their changes, but the revised code endured and still forms the basis for French law today.
Elsewhere, the ideas promoted by Montesquieu, that any law must be rooted in the context of its own society, had powerful advocates. Fierce debates arose in universities across Europe between those who advocated codification, on the one hand, and, on the other, members of the German Historical School, led by Friedrich Carl von Savigny, who argued against codification, saying that law emerged, and should be allowed to emerge, from its social and historical context. But it was the former group who eventually triumphed, persuading the rulers of the new German Reich to create a comprehensive code, which they published in 1900. This followed another wave of European codifications, many of them explicitly based on the French Code Civil. The French Code Civil also shaped the laws of Louisiana, not to mention the many colonial territories to which it was exported over the following decades.
BY THE BEGINNING of the twentieth century, the Mughals had been vanquished, the Ottomans were teetering, and the Chinese Qing dynasty was in its dying days. In Europe, the system of states was more or less established, and the common and civil laws were being transplanted around the world. The United States, meanwhile, was gathering economic and military strength. It was barely two centuries since European laws had been a disorganized mass of rules, customs, principles, and institutions. But ambitious governments had developed laws that would help them administer large territories, transforming them into tools of discipline by creating an array of crimes and punishments. The chaos of civil war had also encouraged many to look to law as an instrument that would help strong rulers impose order on restive populations. As these ideas worked themselves out, many people experienced legal processes as oppressive and unjust. But judges and lawyers still held idealistic visions of what law was and could do. Legal scholars aspired to the rationality and intellectual sophistication of the Roman civil law; natural lawyers appealed to Christian theology and ideas of a common humanity; and English judges claimed they were upholding the ancient traditions of the common law. Influential theorists argued that law should be rational and reasonable, that it could protect individuals, define property, and promote commerce. It was a source of rights as much as an instrument of control. These were the ideas developed by Blackstone and taken up so enthusiastically in America. They were also the ideas that colonial governments relied upon when they maintained that their laws would bring order and civilization to the people they regarded as the unenlightened inhabitants of the rest of the world.
