Contract and Consent: Representation and the Jury in Anglo-American Legal History

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

199 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; and an informal, temporary completeness might be discerned in certain very distinct events. It was symbolized, and in part e≠ected, by the passage of the British Reform Act of 1867; by the establishment of the Third French Republic; by the American Civil War and preservation of the Union and the passage of the Reconstruction Amendments to the Constitution; and in Germany by the creation of national unity under Prussian hegemony. Italy had regained national identity under a constitutional monarchy. The perspective is Western. It is arguable that the process of consolidation advanced the cause of European imperialism. The American Revolution, which split the British Empire along the seam joining sovereignty with legitimacy, gave an original impulse to these events. Although the rending noise was heard around the world, the principle of representation remained comparatively unscathed. Parliament remained notoriously unreformed until 1832; and many of the institutions of representation not only in Britain but in e≠ect throughout most of the early American states retained the “virtual” character which had been ascribed to them, and to the British people themselves, before the Revolution. But notwithstanding these and similar evidences of institutional continuity , an earthquake of such proportions was bound to have seismographic consequences. Before 1776 the popular principle in government, despite 10 The Performance of Representative Institutions, 1776–1876 Ideology, Estates, and Interests Contract & Consent 200 occasional rumbles, was confined principally to the realm of theory. But during the next half century many states, including Britain, France, and the United States, found themselves in their di≠erent ways struggling with the problem of redefining political legitimacy in language and institutions which in some way, however obscurely, recognized the claims of the mass of the population—at least the male population. Some of the most important reforms of the period, however, could be achieved, not from expansive claims to democracy, but largely for the opposite reason, because they claimed to set restraints on those claims; any claim for “completeness” is paradoxical, at the best unresolved. In the United States formal democracy, though institutionally hedged and qualified, became fact as well as creed; but in Europe, regimes reflecting a wide assortment of estates gradually broke down into political systems representing much more multifarious and less clearly defined or historically derived clusters of interests. Yet government by representatives not only survived these changes but in some ways proved instrumental to them. While legislative chambers retained their historic style, they were e≠ectively transformed from representatives of estates to representatives of interests. And during a further half-century they functioned in this character. The century under review acquires more coherence when we see it as encompassing certain definitive phases of movements toward national uni- fication. These involved both the constitutional structure and the economic character of the modern state. In the United States, the Union created in 1787–88 was challenged four score and seven years later by the attempted secession of the Southern states, and saved by the Grand Army of the Republic; to which it is important to add, not only the Union’s superiority in resources, but its superior ability to apply and deploy those resources. The industrial character of the modern American state made an indispensable contribution to its survival against the South’s largely agrarian challenge and looked for its inspiration in another historic direction. Abraham Lincoln received the news of his election in the telegraph o∞ce in Spring- field, Illinois; it is doubtful whether the South possessed a telegraphic system of communications. Even in its preserved condition, however, the powers ascribed to the Union in civil government were subject to restraint by rulings of the Supreme Court. However, the United States had undoubtedly emerged as a nation capable of doing things that other nations expected to be able to do. The unification of Germany was achieved on the other hand The Performance of Representative Institutions 201 by unsteady steps. If the Zollverein was a successful indication of the possibilities of unity, the Frankfurt Parliament of 1848 was a striking example of the practical...