In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER ONE CULTURE OF CONSTITUTIONALISM Before taking up the main topic of this book, the constitutionality of direct parliamentary legislation for the North American colonies, there are two preliminary points that deserve attention if we are to understand the issue of the authority to legislate as it was understood in the eighteenth century. The first, mentioned but not explained in the introduction , is that a distinction was clearly drawn in the eighteenth century between law and politics, a distinction that students of the American Revolution would do well to heed. The second is that eighteenth-century political rhetoric was, to a remarkable extent, phrased in the vocabulary of law, a fact students of the American Revolution can ignore at the risk of misunderstanding what was said. These points, the political culture of constitutionalism and the constitutional language of politics, are the subjects of this chapter. E. P. Thompson has reminded scholars of the extent to which events in the eighteenth century were guided by constitutionalism. "I am insisting only upon the obvious point, which some modern Marxists have overlooked ," he wrote of eighteenth-century common law, "that there is a difference between arbitrary power and the rule of law." Everything was not will, choice, policy, or result. The "rule of law," Thompson believed, meant "the imposing of effective inhibitions upon power and the defence 18 CULTURE OF CONSTITUTIONALISM of the citizen from power's all-intrusive claims."l As a measure of what Thompson meant-that constitutional values and legal fears helped determine the course of events-consider that constitutional values and fear of military power restrained the British from locating barracks in England and Wales until the last decade of the eighteenth century, constitutional values and fear of governmental power delayed the creation of a uniformed, professional police force until well into the nineteenth century , and constitutional values and fear of executive power was responsible for retaining the archaic process of private felony prosecutions until the twentieth century. 2 There are two clues to the eighteenth-century constitutional mind that too often have been overlooked: methodology and language. The methodology can be summed up in two words, precedent and custom: adherence to precedent and conformity to custom. "[A]ll judgments derive their obligatory quality from a supposed conformity with pre-existing laws," an anonymous pamphleteer reminded the duke of Grafton in 1770.3 He was, of course, describing the methodology of the judiciary, marking a distinction between judicial power and legislative power that would belong even more to the nineteenth century than to the age of the American Revolution. The legislature, Edmund Burke explained, "has no reference to any rule." It was as likely to be guided by interest, will, power, party, or result as by doctrine, analogy, precedent, principle, or custom. A judge, by contrast, should not arrive at a judgment by making a policy choice between interests, but "upon a fixed Rule, of which he has not the making, but singly and solely the application to the Case. The very Idea of Law [is] to exclude discretion in the judge."4 Today we think the principle that Burke was defending is primarily judicial. Fear of discretionary power had a wider reach in the eighteenth century. The freeholders of England's Middlesex County were speaking as eighteenth-century constitutionalists who wanted executive authority restrained when they complained to George III that evil advisors came between him and the people. Then, in two sentences, they summed up the constitutional principle that would guide American whigs in their opposition to the authority of Parliament to bind them by legislation. For this wicked purpose they have introduced in every part of the administration of our once happy and legal constitution a certain unlimitted and indefinite discretionary power, the prevention of which is the sole aim of all our laws, and was the sole cause of all those disturbances and revolutions, which formerly distracted this unhappy country. For our ancestors by their own fatal experience CULTURE OF CONSTITUTIONALISM well knew that in a state, where discretion begins, law, liberty and safety end. That statement concisely summarizes the essential elements of eighteenthcentury constitutionalism. If the argument does not make sense today, we should remember that discretion in the context of the Middlesex petition meant policy choices by executive will and pleasure. "Law, liberty and safety" meant the rule of law, which was then, unlike now, as much the opposite of legislative discretion as it was of executive or judicial discretion. It is a...

Share