by J. R. Pole. University of Virginia Press, 2010. 280pp. Cloth $49.50. ISBN: 9780813928616.
Reviewed by Lauren Havens, In-the-Know Research, LLC. Email: lauren [at] itk-research.com.
CONTRACT AND CONSENT: REPRESENTATION AND THE JURY IN ANGLO-AMERICAN LEGAL HISTORY is the last work published by the late British historian J. R. Pole. In it, Pole argues that to better understand the development of American law, one should forget the idea of the separation of powers that we so often believe to be critical in law and the American government. While today we may take a separation of powers for granted, that separation did not come about easily or naturally. The concept of a separation of powers did not emerge in American government until after much of the law governing the colonies was already in place, and Pole wants the reader to understand how American law came into being through the intermingling of English common law with colonists’ experience. In the first part of the book, Pole focuses on the interaction between contracts, as between the governing ruler and those being governed, and the consent required to sustain that mode of government. The second part of the book comprises independent essays in which Pole discusses other legal themes important in the transition of the American colonies from being subjects of Britain to being a self-governing nation.
Pole’s experience as a professor shines throughout this work as he presents and discusses topics in the style of a lecture rather than an argument; instead of trying to clearly argue a point in the hopes of converting the reader, he presents the topic and invites us to consider it from another angle, a perspective perhaps not considered before or at least not considered in awhile. Ensuring the book will appeal to more than just the academic concerned with history or the law, Pole examines literature, by Shakespeare and Ben Jonson among others, to demonstrate the extent to which the common person was expected to understand legal terminology or the impact of current cases. By drawing on several disciplines, he broadens the audience of the book, but the text is still dense enough to discourage a more popular audience.
In order to explain why he examines the relationship between contracts and the government, Pole begins with recent history in which court decisions returned to the principles of the Constitution, itself a contract between the American people and their government. For instance, in Reynolds v. Sims Supreme Court Chief Justice Warren noted the importance of a contract being binding only if the parties had come to an understanding. In regards to the Constitution, the people freely gave their consent to create the government and so are governed by a government they created free from coercion or deceit. [*681] This emphasis on the consent of a party to be governed by another is the focus of the first portion of the book. Pole argues that without consent, there can be no recognized contract among a people, and so there can be no legitimate governing body. While acknowledging that contracts among individuals are certainly important within a nation, Pole draws a connection between the contracts of private exchange between individuals and larger contracts that order society. The contracts, or covenants, associated with theology shaped the social and legal development in Europe, and when the colonies were established, the Puritans developed the metaphor of a covenant with God as justification for their very existence.
Pole attempts to demonstrate how even before American independence, the concept of a contract between the people and the government was woven with common law, though perhaps unacknowledged by those in power. Pole guides the reader through the development of common law in England, beginning with the lowest level of law, custom. Tailored to particular regions and the individuals living there, customs led to laws that governed people across multiple regions. Laws sanctioned customs, and despite the laws being shared, differences needed to be mediated by courts. Where the common law was lacking, the courts amended these defects rather than relying on Parliament. In this way, a substantial amount of English law flowed from the courts rather than from Parliament.
Colonial law borrowed heavily from English common law, but it was formed to the needs of a society very different from that in England. The aristocracy in England resulted in the House of Lords, and for a long time, the government was ruled by the aristocracy whereas in America, every man participated in the government regardless of his social position, excepting slaves.
Pole argues that it was critical for the development of the American legal system for there to have been no aristocracy within the colonies, though there were class divisions particularly defined by race. In the colonies, law was formed in the South to accommodate the needs of a slave-holding and class-structured society. While slavery was less common in the North, the law still developed to accommodate a racial hierarchy.
In the absence of aristocracy, the common person is considered to have a contract with the government for certain rights in exchange for allegiance. Still, the commoner does not have access to the law, which was written in Latinized French and was inaccessible to the common people. While the average citizen could not be the king, in Parliament, or even a judge, he could participate in the government, such as by serving on the jury. Legal themes and court cases of the time would often be known by the commoners and even make their way into popular media, as Shakespeare’s plays evidence, but the interaction with the legal system except as a plaintiff or defendant was limited. Pole shows the development of the jury system in England and examines how the an individual’s participation in the jury and the role of the jury changed over time as well as how the colonies used the jury system differently even among themselves. [*682]
Just as the jury system gradually developed to better reflect the people and the rights of the people to participate in the legal system, Pole shows how legal institutions, formed by habit and customs of the people, slowly developed to become more reflective of the democratic needs of the people. Despite a long time without a House of Commons, the common people were gradually able to include more representation of their needs within the English government, against the balking of the House of Lords and others who had become accustomed to holding authority. The bicameralism in England influenced the colonies, as demonstrated by only two of the colonies having unicameralism. After the colonies became independent, those two colonies, Georgia and Pennsylvania, maintained unicameralism rather than revert to bicameralism for the sake on conformity. Habit was comfortable, and it was more comfortable for the people living within those colonies to maintain a system that had been working well for them. This unicameralism also did not diminish their representation in the government, as the existence of only the House of Lords in England had excluded a part of the population. First with common law in England and then with the development of law in the colonies, Pole shows how law can be the result of habit or what is comfortable as well as more lofty ideals such as justice, representation, and equality for all. Law and judgment are more than the perfect aspirations of a people – they are the result of communities trying to find balance and their own forms of justice.
At the heart of the colonies’ separation from England, Pole argues, was the idea that the individual was sovereign over himself. This self-sovereignty allowed the individual to enter into a compact of government, as the colonists did by creating a new government and the Constitution. Pole’s concern is primarily in the founding of the government, not on the current functioning of individuals within the established government except to the extent of how individuals have the ability to argue and fight within any system. Pole shows how the law changed from custom to common law to legislated law in America. While no one system may be perfect, there appears to be an evolution towards something more perfect, more agreed upon by the citizens who adhere to that law. Never before had a government defined citizenship in terms of the law of contract, a pact entered into willingly by all parties, and this differentiated American law from all others. Pole discusses the Magna Carta and how it greatly differed from the contract that established the American government. Just as a contract brought the government into being, however, it had to uphold its end of the contract in order to continue to govern the people. Once in place, it could not be ignored.
Throughout the book Pole illustrates the particular point at hand by focusing on a particular court case that highlights the topic, and he uses this style for each main topic. Pole supplements court records with additional evidence (e.g. census records and an individual’s personal notes) to provide a more detailed analysis. He cites other cases and notes important legal figures of the times, but the main focus at any given point tends to be embodied in the sample case. While this allows Pole to get his own point across, it is difficult to consider alternative perspectives by [*683] considering case law unless the reader is already versed in the subject. Argumentation and debate is not what this book is really about; it is more to encourage consideration of a topic that many of us have studied before but perhaps in a different way. This is a guided tour through the development of common law and the law in the colonies, ultimately to the Constitution and its influence today, and this tour is led by an expert whose love of the material is clear throughout his final work.
© Copyright 2010 by the author, Lauren Havens.