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Contract and Consent

Representation and the Jury in Anglo-American Legal History

J. R. Pole

Publication Year: 2010

In Contract 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.

Published by: University of Virginia Press

Title Page, Copyright

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Contents

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pp. ix-x

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Preface

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pp. xi-xii

For a comparatively short book, this one has been a long time in the making. And for a book that has been long in the making, it leaves much remaining to be said. Its beginnings are difficult to locate, but its deeper roots might be traced to the legal and constitutional issues involved in my studies of the theme of equality, ...

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Acknowledgments

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pp. xiii-xiv

The author wishes here to acknowledge the support of the Leverhulme Fund and the law firms of Slaughter and May (London) and generous personal support from Mr. Tim Clark; also of Getty, Meyer and Mayo (Lexington, Kentucky), for grants which have supported this research. I am also most grateful to Joyce Appleby, ...

Part I Contract and Consent

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Introduction: Reason and Custom

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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. ...

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1. Where the Law Comes From: The Courts and the Making of Society

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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, ...

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2. John Slade’s Other Harvest: Common Law, Contract, and the American Republic

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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 on condition that you give me that thing or do something for me, ...

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3. Sedition and the Jury in London and New York

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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 ...

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4. American Independence and the Crisis of Sovereignty

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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. ...

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5. Inferences and Continuities

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pp. 121-134

Ever since Alexis de Tocqueville published Democracy 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 ...

Part II Occasional Essays

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6. Some Problems of a Colonial Attorney General in a Multicultural Society

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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, ...

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7. Bicameralism and Republican Government in the British American Colonies and in the United States

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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. ...

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8. The Individual, the Region, the Nation: Where Three Roads Meet

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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, ...

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9. Nation-Making and the American Constitutional Process

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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 create a nation of shared principles. ...

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10. The Performance of Representative Institutions, 1776– 1876: Ideology, Estates, and Interests

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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; ...

Notes

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pp. 219-246

Index

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pp. 247-264


E-ISBN-13: 9780813928920
E-ISBN-10: 0813928923
Print-ISBN-13: 9780813928616
Print-ISBN-10: 0813928613

Page Count: 280
Publication Year: 2010

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Subject Headings

  • Law -- England -- History.
  • Law -- United States -- History.
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