 The highest honor that a university can bestow upon a professor is without a chair. And here we're at the gate to recognize and to honor our college vice-commands and becoming a Chancellor's professor of law. In putting together our senior faculty, our goal was to hire stars from around the country. And often said, what we wanted to do was hire wowed faculty. And so it was so gratified after we made the offer to Chris and he accepted so many people on the country that hold their Chris Tomlons because wow, you're getting Chris Tomlons. So he clearly meets the criteria of being a wow faculty. By every measure, he's a star in this field. He has redistinguished academic credentials as a bachelor's and a master's from Oxford University, a master's from University of Sussex and also a master's from the KHD from Johns Hopkins University. He's taught at a number of universities throughout the world. He taught for a time at La Trobe University in Melbourne. He's taught in England. He's taught at law schools in Israel. He's taught at a number of law schools in the United States, including a special in Northwestern. He's also been a visitor at William & Mary Law School. So in 18 years, a very prestigious position as a research fellow, a research professor at the American Bar Foundation, he's the author of six books, credited history of American law and co-authored. And just this last year, a book that received wonderful reviews and awards, Freedom Bound. Now, one of the great traditions in our law school is you actually get a chair when you become famed out. That's a good enough chair. And so, this is the type of chair that comes from a factory, which is, of course, based on the wonderful rocking chairs we have in the library. So please join me in congratulating Chris. It would be handmade. Hello, friends, colleagues. It's really a great honor to be elected to a Chancellor's chair here at UCI. It's a very elegant name, a very simple name. Chancellor's professor. It's very spare, unadorned. I find that extraordinary appealing aesthetically. It's so precise. And deeply grateful for the law school and to the university for sitting fit with this girl and this distinction on this. And so, now, as is the nature of these things, that you all have to listen to me for a while. I invite you to lead the 21st century with all its trials and tribulations, lead it to its own devices for a little while, just for about an hour, and to come with me, if you will, to the early republic, where together we can examine republican law. As is so often the case in American history, rather too often in my view, but justifiably in this particular instance, we begin with the American Revolution. The American Revolution was deeply conditioned by law. It was undertaken by low-minded people in vindication of a form of government by the rule of law. The Republic of the American Revolution began with shape, just as decisively by law, specifically by a revolution in the law. Republican law was conceived during that first revolution, and it was loaded by the second. So, all of the marks and quote, this meant that republican law expressed a latent and at times explicit tension between a revolutionary people in view of the sense of law as possibility and a constituted polity in which law placed limits on possibility. Each of these two revolutions had an elevated surface, but earth here underpins. The first was a creature of the 18th century. It began as a crisis within a polycentric Anglican legal culture that in the absence of constitutional consensus degenerated into a transatlantic civil war. The second revolution was a departure from the 18th century. We remember it as the painstaking transformation of plural provincial sensibilities into a distinctively American rule of law angered by the first written constitution in the world and by a judiciary whose ultimate authority to expand the meaning of that constitution served the Republic as a process of high political education. In the 1830s, perhaps believing he would bear witness to lessons successfully taught, Alexis de Tocqueville identified the spirit of the law abroad in the Republic as an outward and more importantly, a downward emanation. Born he would within schools and courts. It infiltrates through society down to the lowest ranks till finally the whole people have contracted the ways and tastes of a magistrate. Tocqueville, of course, is writing in some relief. In a democratic republic, the absolute sovereignty of the will of the majority was at once the essence of government at its greatest danger. Laws identified capacities to neutralize the vices inherent in popular government and insensibly mold the whole of society to its desire for us to be welcome. But to be identifiable in the 1830s as a counter-majoritarian instrumentality, law had necessarily become something very different from that which it had been 50 years earlier. Americans of the Revolutionary epoch had not in the least imagined laws of visitation from above. But the heart of their revolution had been their own law-talk, what the legal historian Stephen Wolf has described as an explosion of expressive legalism that in no sense began in the subtle jurisprudence of courts. Sure enough, the Patriot wave law of the pre-revolutionary 1760s had made many appearances in formal legal discourse. It had been expressed in courtrooms by impassioned Patriot practitioners like James Verdes and John Adams. It had been implemented by duly constituted governmental institutions in their offices, by legislatures and town meetings, by magistrates and jurors. It had also been enforced by mobs. Who's to say which had imaginative priority, particularly when mobs became meeting and then mob again simply at the turn of an adjournment? No more important was the Revolutionary era's expressive legalism confined to matters of government and politics, whether perceived by polite elites or unruly masses. Law talks ruled everywhere, a late 18th century American lingua franca, simultaneously used to communicate legal decision making to ignite political mobilization and to mock both the powerful and the powerless. We should therefore retook from not as identifying the origins of American legal culture, but rather what it had become. The revolution in American law turned the expressive legalism of the American Revolution into a legal culture that to an important degree no longer stood in solidarity with the people themselves. Hence the tension between laws two formative revolutions. As the Republic matured, that tension became even more apparent. Eventually indeed the tensions in the Republican law would contribute to the great unraveling that would end in another civil war. Now the dominant law of the American Revolution was, as I said, the Whig law. Whig law was the next loci of the colonies. Plural, fluid, diffuse, decentralized and communal. An internal police undertaken by diverse local publics through local institutions, notably jurors. A such Whig law created conditions for the confrontations of the 1760s and for the American Revolution itself, but accorded patriots a decisive advantage. American weeks to go about the business of making a revolution without fear of arrest or attack by imperial authority because it was they who controlled the effective legal institutions of colonial society. And a polycentric legal universe, local memories of what counted everywhere. Lacking it, imperial law, the law of parliamentary statutes, the law of crown officials, was simply anemic. Whig law's pervasive localism supported a conception of the relationship between colonists and metropolis in the pre-revolutionary years of odds with metropolitan cities of sovereign imperial rights. Metropolitan arguments represented the empire as a unified state under the direction of an omnipotent parliament. To the colonists in contrast, the empire was a decentralized aggregation of relatively autonomous qualities. These distinct perspectives were informed by distinct conceptions of the constitution of the empire. From the perspective of the metropolis, the imperial constitution was paternalist with the 18th century British constitution of parliamentary supremacy. Colonists, to the extent that they had constitutional standing at all, were simply subordinate municipal entities encompassed by parliamentary authority. From the perspective of the colonists in contrast, the imperial constitution was not a constitution of supremacy at all, but of accommodation and restraint. Its substance was to be found in custom. The actual practices and institutional arrangements that have characterized the relationship between metropolis and colony over time. These disclosed a steady growth of local autonomy and self-government. Ancient liberties of the subject explicitly claimed and recognized, legislative assemblies granted and established, actual administrative capacities exercised and acknowledged. In each colony, the accumulation of a time that will legitimize rights and practices amounted to a local unwritten constitution. Understood this way, the imperial constitution stood for a web of jurisdictional accommodations between plural, customary colonial constitutions, each enjoying far more than a million municipal starting and the metropolis. Its guiding principle derived from English and British constitutional law since time immemorial was consent. Americans were willing to concede that parliament enjoyed a superintending authority over the empire as a whole, and hence that it might legislate in such wholly external and mutually advantageous areas as the regulation of commerce to promote the general good of all. But they rejected any possible implication, but superintendents of the empire as a whole granted parliament a sovereign authority to intervene in the affairs of any particular colony. They imagined the imperial constitution, in other words, as a federalism of function. Through invocations of ancient English liberties and constitutional idioms provided much of the terminology in which American revolutionary legal thought was expressed, this language did not comprise the sum and extent of the era's exuberant legalism. The argument that Americans appealed to an old constitutionalism follows from a close examination of colonial constitutional and legal rhetoric, like the political scientist Shannon Stimson. But it pays little attention, she continues, to the actual dynamics of colonial political and legal debate. And part Stimson's critique is ideological. A renewed resort to a particular discourse cannot of itself tell us whether the user means to convey the same ideas as a predecessor. In larger part though she invites us to look beyond language to institutional practice, in particular to the demarcation of dual space, the space of legal decision. In revolutionary settings she observes contests over the locus and legitimacy of law determining power are eminently political. The question of who controls the legal ground, who gives content and meaning to the law in such situations transcends the boundaries of legal technicalities. The courtroom becomes an active center for resolving contested claims of legitimacy within the state. As Stimson's profit focus of the courtroom is itself somewhat limiting, the era's law talk traveled a long way beyond courtroom doors. It was Wright's will for an intoxicating mix of gossip, politics, sensationalism, tales of murder, not just astute attention to the procedural norms that make law matter, but a vernacular culture of imaginary punishments, mock executions, still born reform proposals, the fibular criminal narratives that departed the traditional conception of law as a hegemonic power of the state. In that departure vernacular legal culture mouths its rejection of law as any sovereign's command and thereby became itself an imaginative maker of law. So the questions of the era's exuberant legalism posed were ultimately questions of power, for they challenged insipid faith and professional monopolies in precisely the fashion Stimson suggests would occur in a revolutionary situation. And though they could and did arise outside courtrooms, the courtroom focused them with particular clarity. It should not be surprising, therefore, that it was the courtroom that gave Republican law its initial shape. So what is this Republican law? In its most basic articulation, Republican law means the law of equality, his institutions derive all their powers directly or indirectly from the great body of the people. Law dedicated to the realization of liberty as a public or collective, rather than simply a private or individual good. Law that cultivated the disinterested participation of freeing man in the community or politics of the processes, active involvement in making and executing decisions, sharing in the power of the state. Liberty in this sense was necessarily Republican in the late 18th century. It could not exist in a monarchy. For an admirably pithy desolation of the Republican rule of law, one could not ask for better than Thomas Paine's memorable remark that in America the law is king. As long as one does not forget the coda that Paine added, which held it no less essential that the fragments of law's crown is scattered among the people whose right it is. Both ideologically and institutionally Republican law could and did blend with and build upon the common law constitutionalism that it armored the patriot cause in years before the revolution. At least in its weak incarnation, the common law was zealous in defense of liberties. Common law constitutionalism tended to emphasize the liberty of the subject from arbitrary governors rather than define liberty as the participation of citizens in government. But in practice, it encompassed both by cataloging as civil rights of free-born Englishmen, not simply rights to be secure in life, liberty and property, but also rights of engagement and exercise. To be meaningful, rights to representation, to government by consent, to good government entailed action. They entailed the right to elect representatives, to petition in redress of grievances the right to resist arbitrary rule. The common law too was local and particularly in its claim to instantiate custom, it was communal. Both characteristics translated into Republican law's emphasis on active civic engagement. For in the colonies at least, the common law was participatory. The common law right that patriots emphasized above all was trial by jury. In the Anglophone world, a large trial by jury was an essential element in the definition of restrained government. Juries limited the capacity of official power to the arbitrary. In the American Communist Party, the description of the jury granted it an additional valence that heightened its substantive authority beyond that of procedural restraint on judicial authority to become by the late 18th century an embodiment of localized democracy in action. Just as the popular branch of the legislature should enjoy an absolute check in every act of the government John Adams wrote in 1771, so the jury enabled the common people to exercise juridical sovereignty as decisive a negative he wrote in every judgment of a court of judicature. This blur of traditional common law jury right with a crazy Republican emphasis on jury as the embodiment of virtuous participation in the local determination of legal outcomes is on display in the definition of jury right that the Continental Congress offered the inhabitants of Quebec in October 1774. Trial by jury, said the Congress, meant that neither life, liberty nor property could be taken from their possessor until 12 unexceptionable countrymen and peers. The character of the accused of the witnesses should in open court pass their sentence upon oath a sentence that could not injure the accused without injuring their own reputation and perhaps their interests also given that the question may turn on points that concern the general welfare or the very least by furnish a precedent that on a similar trial of their own may imitate against themselves. Such revolutionary era sentiments summarized a long history of juries routinely exercising expansive authority in particular authority to determine law itself rather than simply assess whether evidence presented proved the case of one or other party. As one looks generally over the various rules regulating the division between the functions of judge and jury writes the legal historian William Nelson of pre-revolution in Massachusetts it becomes clear that although the jury's power to find facts was limited by rules excluding relevant evidence and keeping the jury from weighing probability and credibility its power to find law was virtually unlimited. Resort to English common law was attended by rejection of whatever parts of that law were deemed inconsistent with the jury's views whether of justice and morality or more pragmatically of local needs and circumstance. Such behavior represented a radical expansion of the space accorded to juries in English common law practice. 17th and 18th century English patterns flatly condemned as erroneous the possibility that juries might be judges of the law as well as a fact. Such according to Mr. Justice German in the 1649 trial of John Loeber in the Treason enough to destroy all the law in the land there was never such a downloadable heresy broached in this nation before. In 1670 jurors who acquitted William Penn and William Meade in a prosecution brought for their violation of the Conventional Act of 1664 were fined and imprisoned for their verdict because it was against the direction of the court in matter of law openly given and declared through them. The penalties were omitted by Lord Chief Justice Vaughan in Bushall's case in 1670 but they were omitted on grounds that the trial judge had impermissibly included upon the jurors determination of fact not in the indication that the jurors right to ignore judicial direction on a matter of law. A century later jurors invited by defendants to judge law and judicious libel prosecutions brought against Wilkite radicals were told by Lord Mansfield to be very sure that you determine according to law for you act at your term. When the newly appointed United States Supreme Court Justice James Wilson summarized the record of English opinion on the matter in his 1791 law lectures in Philadelphia he held the division between the provinces of jury and judge well known, long recognized and established. Wilson's lectures marked his election as a share of law at the College of Philadelphia they are justifiably famous. His inaugural lecture was a social event of considerable note a gathering of the New Republic's governing elites that included the president the first lady, the vice president members of Congress as well as members of the Pennsylvania legislature. One might be forgiven for expecting that Justice Wilson would take the province of the judge as his text but he did not. Though it might be of the greatest consequence to the law of England he wrote that the powers of the judges and jury would be kept distinct such was not the case in the New Republic. Suppose the law and the fact to be so closely interwoven that the determination of one must at the same time embrace the determination of the other what must the jury do? The jury must do as they had in years past they must decide the law as well as the fact. Wilson allowed that it might seem sovereign extraordinary to render 12 men untutored in the study of jurisprudence the ultimate interpreters of our law with the power to overrule the direction of the judges who have made it the subject of long and elaborate researches. Yet he continued, in a free country every citizen forms a part of the sovereign power he possesses a vote which is the still more active part in the business of the commonwealth. By voting he takes a personal share in the executive and judicial departments of the nation and as a matter of immense consequence to individual litigants and to the public at large he exercises the dignified function of a juror. He was of course entitled to seek the assistance of the judges but Wilson was willing to leave the initiative in the province of the juror for though jurors might make mistakes even gross ones their mistakes could not grow into a judicial system then native uprightness would not permit it. The esprit de corps will not be introduced among them nor will society experience from them those mischiefs of which the esprit de corps unchecked is sometimes productive. Had Wilson cast about for others with equal faith in the common sense of jurors he would have never been hard put to find them at all. He would have found for example that article 41 of the Georgia constitution of 1777 provided bluntly the jury should be judges of law as well as a fact and forbade the bench from offering its opinion on points of law except when jurors expressly invited it to do so. Close to the helm he would have found that New Jersey's act for regulating and shortening the procedures in the courts of law of 1784 prohibited any state court from setting aside any judgment obtained by verdict of the jury and allowed reversals only by the court of errors. Throughout the 1780s courts from New England to Pennsylvania to the Chesapeake could be found according jurors full recognition of as judges of law as well as fact nowhere was the idea normal. But Wilson did not need others to buttress his faith in jurors he had an expensive experience of his own to draw upon. Years before 13 years before to be precise when the outcome of the Revolutionary War had still been very much in doubt Wilson had been one with a small group of lawyers deeply involved in the defense of 23 Philadelphia citizens found by a grand jury that evaded the British occupation of the city and indicted for treason. Two of the first street trials resulted in convictions and both defendants Abraham Carlile and John Roberts were hung. Thereafter 18 of the remaining 20 defendants were acquitted. Analysis of this fascinating cluster of jury trials suggests that jurors were reluctant to see defendants convicted for acts that might have been morally even legally blame worthy but did not warrant execution. Both early convictions were accompanied by currency petitions from the jurors themselves. They went unrequited. Having no means to avoid the death penalty by convicting the defendants of lesser offenses, jurors now often chose overwhelmingly to acquit. So during, jurors risked the passions of the moment for although there is clear evidence of community sympathy for convicted defendants there is just as clear evidence of rising anger amongst jurors at the parade of acquittals. The anger culminated indeed in the famous Fort Wilson riot of October 1779 in which James Wilson's home was besieged to Philadelphia mobs. Himself the primary target of the riot, Wilson may well have had it in mind years later when complimented jurors for their native uprightness and resistance to a mischievous esprit de corps. Most fill it up with treason trials providing unparalleled cash and data on revolutionary era jurors and rather more besides analysis of the record of jurors recovered from 22 of the trials indicates that the trial jurors were indeed for the most part of the Continental Congress have remarked unexceptionable countrymen and peers of the defendants and jurors who were on average substantially wealthier. More interesting the record indicates that in all only 58 men served on the treason trial jurors and the 245 of the 264 juror positions of the 22 trials were filled by an even smaller group of 39 men accounting on average for more than 6 juror positions apiece. One juror John Drinker served on 20 of the 22 jurors Isaac Powell and Thomas Palmer each served on 17 Kavala de Dickinson served on 15. The pattern of repeat service was accounted for by the skillful exercise by defendants counsel of their common law right to 35 parentery challenges that is to object without cause to up to three complete jurors. The 19 one-time jurors mostly appear in early trials on jurors that convicted defendants. As the trials were on and familiarity with the juror pool increased challenges winnowed out hostile jurors improving defendants chances of acquittal. But challenges reduced the pool that was small to begin with. In all the county sheriff had found a panel of 76 jurors 13 of them failed to appear at all. The treason trials small jury pool and high incidents of repeat service both repeated the dynamics of criminal justice within a rebounded community. Other aspects of the trials carry the same connotation. Witness lists for the trials had their own pattern of repeat service for both prosecution and particularly for defendants. Witnesses included both grand jurors and members of the trial jury pool. And otherwise exclusively masculine proceedings, witness lists included large numbers of women heavily skewed toward defendants. Rebs of connection both social link witnesses, grand jurors, trial jurors and defendants. Jurors not only testified for and against defendants and signed pregnancy petitions for those they convicted they also stood surety in several cases for those acquitted but nevertheless bound to good behavior. Now the city population of 30,000 such connections are not a lot surprising. Still they suggest a pattern in late age and century legal culture in much greater depth in recent research on North and South Carolina that tells us much about the nature of Republican law. In her recent book The People and Their Peace Laura Edwards describes post-revolutionary legal culture as profoundly decentralized, rooted in localities and their institutions of governance in magistrates' hearings inquests and other ad hoc forums. Where local custom politics and law mingle freely while local knowledge and local decisions constitute in law. This is no simple rural remnant of times gone by. Legal localism was produced by the revolutionaries radical decentralization of government. A blend of new and old that brought revolutionary ideals of participatory government and local control to bear unestablished legal practices notably the venerable and widespread tradition of the peace a tradition with obvious English common law resonance. Patriarchal and hierarchical in appearance the peace of its preservation granted everyone situated within the compass of the locality some quantum of perpetuity of relevant opinion and influence irrespective of whether they could be considered bears of civic rights as is the case of course of white men or not as is the case of the poor, women even the enslaved. Each local jurisdiction produced its own inconsistent rulings aimed at restoring the peace Juris deciding law as well as fact and legal proceedings throughout the settled extent of the new republic was simply one facet of legal localism in action. This legal localism is the hidden underbelly of republican law. It has as much evidence in northern cities as in the southern counters that Edwin inspected. In the Philadelphia the treason trials for example long into the 19th century the vast bulk of criminal prosecutions occurred before disaggregated all the men and courts directly servicing mostly poor victims of minor offenses. In city and country both the measure of local law was its ability to craft acceptable outcomes in the endless disputes and petty regulations that defined daily life. It gave concrete incarnation to a long established anglophone discourse of peace, welfare and good government. Localism is the hidden underbelly of republican law because although it persisted deep into the 19th century localism was rendered largely invisible by its very lack of system. Localized law did not represent or even aimed to represent a coherent or uniform view of the law based on outcomes. Its records and decisions were authored by a wide range of people with direct interest in particular local conflicts not in the concept of laws of systematic or abstract body of knowledge. Legal localism and professional juridical legality represented distinct state forms of bifurcation of revolutionary republican legality into two 19th century streams. Where the streams coincided the workings of legal localism were easily overshadowed and effaced by the activities of juridical elites for whom the law was precisely a systematic abstract body of knowledge. Conceiving themselves members of a national political and legal culture juridical elites pursued the creation of a learned legal order of appellate decisions, statutes and legal treatises a pyramidical order with a hierarchical institutional structure that located authority at the top where trained professionals might ensure the spread of uniformity. For all his apparent sympathy for that potent symbol of localised law of the jury Justice James Wilson provides us with an early measure both at the extent of the input for public professionalised legal culture and of its accompanying tendency to efface localism. We've seen that in his law lectures Wilson was entirely willing to affirm that jurists possessed the power of determining legal questions but he continued they must determine those questions as judges must determine them according to law. Jurists could not make it up. Law, particularly the common law is governed by presidents of customs and authorities and maxims all alike obligatory upon jurists and upon judges in deciding questions of law. As citizens, jurists had a responsibility to acquire as far as they possibly could for the laws of their country. Should they require further instruction jurors might turn to judges whose peculiar province Wilson wrote it is to answer questions of law. Having received advice upon the law they have the right of judging for themselves but to this rate corresponded the duty of judging properly. Should they fail to equip themselves properly the court if dissatisfied with their verdict will exercise the power in a new trial and soft man spell the end tones what he had appeared to give the jury with one hand Wilson took back with the other. Throughout his colloquy on the provinces of jury and judge Wilson was not particularly complimentary toward the new republic's judges. His deprecation was gentle. They filled their offices usefully, honorably. The problem was that in many respectable courts within the states the judges are not gentlemen of professional requirements. Lacking the necessary acquaintance with the law how might judges assist jurors how direct others who themselves know not the road. The answer was obvious those who expect to fill the offices of judges in court or to make the strongest efforts in order to obtain a respectable degree of knowledge in the law. So should the legislature indeed the science of law should be the study of every free citizen and of every free man. By measured degree then Wilson's lectures wrapped the exercise of governance, juridical and legislative national and local in the science of law. The law Wilson imagined was indubitably a republic where he made due obeisance to the common law's English luminaries to Fortescue, to Cook, to Blackstone to get influence by stressing the sovereign power of the citizenry the revolution principle affirmed in the constitution of the United States and of every state in the Union that the great and redoubtable sovereign when traced to his ultimate and genuine source has been found in the free and independent man. Though neglected or despised by the English this was the first and fundamental principle in the science of governance. It followed then that an American legal education ought not to be constructed upon a foundation of the constitution of and government and laws of England but from our own. Yet once Wilson had begun his exposition of the science of the law in detail he would identify the mode for the promulgation of human laws that he considered the best evidence of law introduced by common consent looked as one might expect given his desire to expand the science of the law on the basis of our constitutions in governments and law not as legislation but surprisingly as custom. The essence of law, so Wilson was a rule prescribed but a rule unknown to those whose conduct it was intended to shape could never be termed law. There were many ways in which laws might be made known they may be printed and published written copies of them may be deposited in public libraries or other places where everyone interested may have an opportunity to produce them they may be proclaimed in general meetings of the people but just as written laws bind us for no other reason than because they are received by the judgment of the people so also those laws that the people have approved without writing were just as obligatory on all. For where is the difference whether the people declare their will by the stop bridge or by their conduct custom long and universal practice the superior to legislation certainly to the legislation of princes and despotic parliaments but also it seemed to that of our own constituted governments for custom pointed to consent upon the most solid basis experience as well as opinion appointed to consent practically given thus given in the freest and most unbiased manner so described custom could well seem an accommodation and not an effacement of the legal localism that I've described as the underbelly of republican rule but that was also the experience of the community set over against the opinion of political elites but Wilson was not quite finished in his explanation of custom how was a custom introduced by voluntary adoption how did it become general by the incidences of voluntary adoption being increased how did it become lasting by voluntary and satisfactory experience which ratified and confirmed what voluntary adoption had introduced in the introduction in the expansion in the continuance of customary law refined the operations of consent universally predominant generality continuity universality custom as consent rather than localized law particularized discontinuous unsystematic what we are encountering here is a professionalized common law the law of precedents and authorities and maxims the law that should be known by the judge and it was obligatory upon the locality and its jurors alike it had a noble heritage it was animated by the spirit of liberty worked pure by rules by the fountain of justice it had been savior of the states of America from the claims of the British parliament as it turned out the common law and common law constitutionalism were, after all, the principles of our constitution and government and law the law upon which Wilson's science of law was founded the law that American judges and citizens alike had a responsibility to learn June Wilson's invocation of custom as the acne of consent enabled him to appropriate for common law he venerated as foundation to the Republican science of government he professed the foundational importance Wilson accorded the common law as quite plain in the plan of his lectures which introduced custom early amid general principles of law and obligation amongst which it is ranked the highest while delaying discussion of the constitution and government of the United States of Pennsylvania and her sister common laws until he turned to examine municipal law ruled by which a state formation is governed arriving at that examination refined further strictures upon legislation favorably contrasting the union and at several common laws with the legislative despotism of parliament enunciated by Blackstone as he put it Blackstone put it supreme, irresistible absolute, uncontrolled Wilson noted that in American legislative authority legislative authority had been placed as it ought to be under just and strict control the statement followed entirely genuinely from the vital principle Wilson had embraced at the outset that the supreme or sovereign power of the society resides in the citizens at large who should therefore exercise a superintending power over the extravagances of their legislatures but how concrete he was how he would exercise sometimes by the executive the answer sometimes by the judicial authority of the governments sometimes even by a private citizen for the republics executive and judicial authorities well Wilson emphasized no less than the legislature the child of the people old prejudices that identified legislatures alone as the people's representatives had no place in the republic and represented the people in managing their affairs with promptitude, activity, firmness, consistency, energy the judicial authority represented the people by applying according to the principles of right and justice the constitution and laws to facts and transactions in cases among the three powers of government there should exist both independence and a mutual dependency thus in exercising the legislative power of the united states congress should enjoy a complete independency in preparing bills and debating them and passing them and refusing to pass them but after legislative proceedings where at an end the product was to be examined and subjected to a given degree of control by the executive here is the dependency said Wilson of the legislative power likewise legislation was subject to another given degree of control by the judiciary department whenever the laws are in fact passed are found to be contradictory to the constitution Wilson expanded on the matter in a second lecture suppose that the legislature passed and act manifestly repugnant to some part of the constitution and that the matter should come into course before a court forming a portion of the judicial department whose business it was to administer justice according to the law of the land one of them must of necessity give place to the other it was the right and duty of the court to decide which a decision Wilson contended that was very simple the supreme power of the united states has given one rule a subordinate power in the united states has given a contradictory rule the former is the law of the land as of a necessary consequence the latter is void and has no operation the legislative power would thereby distinctly mark an effectual and permanent provision made against every transgression Wilson did not expound directly upon the super intending role of the private citizen we might suppose he had juries in mind although we have seen that Wilson did not allow juries the independence in matters of law of the same order of independence he accorded courts with the possibility as if Wilson had in mind the private citizen's right to litigate to litigate of course when he did a court which necessary rented the citizen's super intending power subject to the higher super intendance of the science of the law but Wilson would demonstrate that he thought the law should super intendent citizens' right to litigate expansively in chism against Georgia in 1793 he would join Chief Justice John Jay Justice's Blair and Cushing George's claim of sovereign immunity had affirmed the right of individual citizens of one state to sue another it was he said a case of uncommon magnitude the furious reaction to the decision bore him out the Georgia House of Representatives adopted legislation making any attempt to act on the decision a capital crime within two years 12 states have ratified the amendment withdrawing from the judiciary department power to hear any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state whatever it asks you to say Act 3 James Wilson died in 1798 in a debtor's prison in Edmonton, North Carolina caught up in the backwash of the same speculative collapse that snared Robert Morris the mighty Morris the prison is full of the most reputable merchants Thomas Jefferson wrote for Madison it is understood that the scene is not yet got to its height by the time the scene had reached its height Jefferson and Madison had more on their minds than bankruptcy found in progress 1798 was the year of the XYZ affair of the Federalist Reign of Terror of the Alien and Sedition Acts and of the Kentucky and Virginia Resolves a year that congealed into the worst crisis in the short history of the American Republic it is also the year that William Manning of Villa Ricky in Massachusetts completed his the key of liberty an extraordinary grassroots defense of free republican governments of the American nations of their judicial and executive offices who in favor of the interests of the few had distorted the true sense and meaning of the constitutions and laws in order to raise themselves above the legislative power and take the whole administration of government into their own hands Confronted by what appeared to him almost an elite coup d'etat against popular democracy and any salvation lay in nationwide political association to engender an alternative politics Now, William Manning was no revived anti-Federalist any more than Jefferson or Madison he had supported the adoption of the Federal Constitution that he quickly became disenchanted of the manner of its implementation disgusted in particular by the firm grasp on government of lawyers whom he called the leading allies of the few in conniving to keep the laws numerous intricate and as inexplicit as possible Manning was rather a plebeian democratic republican whose critical assaults on the decades Federalist elites had anticipated by some years the more polite and disquiet of dinner party agitators like Thomas Jefferson Still, 1798 both both Jefferson and Madison into the fray that year the alliance of high and low of national and local interests in league against Federalist policies solidified The flashpoint was provided by the Adams administration's Alien and Sedition Acts and by the answer in Kentucky and Virginia results The Alien Act authorized the president to deport any alien considered dangerous to the peace and safety of the United States The Sedition Act revived the old English tactic of using seditious libel prosecutions to silence political opponents of the government Madison's Virginia Resolves Elegant and menacing warmed with deep regret that the federal government was engaging in forced constructions of the constitution that threatened to consolidate the states by degree into one sovereignty and to transform the present republican system of the United States into an absolute or at best a mixed monarchy underlining that the powers of the federal government resulted from the compact to which the states are parted and were limited by the plain sense and intention of the instrument constituting the compact The Virginia Resolves reserved to the states a right to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them Jefferson's Kentucky Resolves by comparison verbose and flamboyant made the same general case against administration but proposed a distinct remedy In case of an abuse of the delegated powers the members of the general government being chosen by the people a change by the people would be the constitutional remedy but where powers are assumed which have not been delegated a nullification of the act is the rightful remedy Every state, Jefferson argued had a natural right in cases not within the compact to nullify of their own authority all assumptions of powers like others within their limits The both Madison and Jefferson adopt the same theory of the federal union as a compact of the states but both condemn the alien and sedition act to the violation of the constitutional principle of limited government and there it was Madison who wrote ominously of the threat of federal consolidation it is Jefferson's natural right of state nullification granted it would appear on a natural law claim of revolution that attracts attention and indeed there was an important distinction between the positions adopted by Madison and Jefferson as an implication of natural law in cases not within the compact Jefferson's claim of a natural right of nullification was extra constitutional Madison's theory of interposition in contrast is the theory of state guardianship exercised within the existing constitutional framework in fact the Kentucky legislature did not adopt Jefferson's remedy when it was first presented in October 1999 and so failed to embrace state powers to nullify only 15 months later when the crisis had passed Kentucky in particular had been isolated by attacks upon the resolutions from other states claiming that the general government was the exclusive judge at the extent of the powers delegated to it that the legislature finally followed Jefferson's lead interestingly enough Jefferson himself did not take a direct part in drafting Kentucky's response which gave nullification a distinctly Madisonian twist to leave the question to the judgment it stated would be nothing short of despotism since the discretion of those who administer the government and not the constitution would be the measure of their powers the several states who formed that instrument being sovereign and independent had the unquestionable right to judge of its infraction the rightful remedy of acts unauthorized by the constitution then Kentucky continued was a nullification by the sovereign in the controversy over the alienance edition acts Jefferson had furnished indignant verbiage but it was Madison's spare language of a constitutional right to state interposition that constituted the real response embracing Madison's theory of state guardianship the Virginia resolves did not indicate how it would be exercised elements of the resolves appeared to identify interposition of state legislatures they spoke of the duty of the state's general assembly to watch over and oppose violations of the federal constitution however the results also made specific mention of the state convention that have ratified the federal constitution in the first place an explicitly conditioned opposition the sedition act upon that conventions express declaration but among other essential rights the conscience of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States this implied that while declarations of unconstitutionality might be made by watchful legislatures remedial action that is the active interposition itself was a matter like ratification for the people themselves in convention assembly Madison would make this point explicitly both in correspondence with Jefferson and in his own detail rebuttal the federalist criticism of the Virginia results interposition Christian Fritz has concluded meant that the states considered as the people in their highest sovereign capacity remained the rightful judges in the last resort of the constitutionality of acts of the federal government in this crucial sense interposition rested directly on the constitutional basis of popular sovereignty until 1798 arguments about the constitutional meaning of the people's sovereignty were untested even federalists could argue that a form of popular sovereignty underlay their claims that the general government had exclusive jurisdiction to judge infractions of the constitution we've seen after all that James Wilson conceived of the judicial power of the United States as in the service of the dread and redoubtable sovereign such have been the tenor of the ratification debates there in Federalist 78 Hamilton had identified interpretation of the constitution as the proper and peculiar province of the courts he had also identified the courts exercise of interpretation as protection of the intention of the people which in cases of conflict should always be preferred to the intention of their agents in Federalist 39 Madison too had winningly assigned a decisive constitutional law to the Supreme Court conformable to the Republican standard judicial offices of the union would be the choice though a remote choice of the people themselves Hamilton's judges though were to be effectively insulated from popular oversight unelected, appointed during good behavior independent and as Wilson's lectures suggest the law to which they would have resort in executing their role would be the polite juristic common law inflicted discourse of the profession untouched by the local knowledge of ordinary people hence the significance of the Kentucky in particular and in particular the Virginia Resolves they identified a significantly expanded range of participants in constitutional interpretation they identified a polycentric constitutionalism for the Republic expanded polycentric constitutionalism of the late 1790s would resurface periodically in the Republican law however claims to a final popular authority beyond the jurisdiction of actually existing governmental institutions which nevertheless remained within the ambit of the Constitution or unavailing Kentucky and Virginia were both shouted down in the Alien and Sedition Act crisis though the election of 1800 largely launched the boil of discontent the Marshall Court would entrench a distinctly legalistic style of Federalist ideology suspicious of localist democracy in a Republican constitutional discourse Marshall himself was no consolidationist Federal courts did not penetrate deeply into the early Republic's local life but where they did penetrate they implanted decidedly nationalist views so in Fletcher against Peck for example the Marshall Court set aside a 1796 Georgia statute rescinding the fraudulent Yazoo land sale engineered the previous year by widespread bribery of state legislatures not only on grounds that the statute violated the Federal Constitution's prohibition of laws impairing the obligation of contracts but also that it was in any case for courts to exercise review of the legislature's prior activities that the decision had resulted from a statewide political movement to replace the corrupt legislature culminating in a constitutional convention called to enable and approve the decision which treated as utterly irrelevant the real party it is said are the people and when the agents are unfaithful the acts of those agents are obligatory it is however Marshall continued to be recollected that the people can act only by those agents and that while within the powers conferred on them their acts must be considered as the acts of the people 20 years later notifiers would mobilize in precisely the same fashion and to the same effect in another southern state South Carolina this time behind the claim that a single state might rule law by act of a constitutional convention they met the same response defenders of the Supreme Court's exclusive jurisdiction as the constitution required that the illogic of multiple constitutional interpreters instead of one supreme judicial tribunal with power to decide for all Daniel Webster asked rhetorically shall constitutional questions be left to four and twenty popular bodies each at liberty to decide for itself and none bound to respect the decision of others and that's just Tocqueville's American tour where we began coincided with the later stages of the South Carolina unification crisis Webster's indignation perhaps helps explain the observation for which Tocqueville is most famous that there was hardly a political precedent in the United States which does not sooner or later turn into a judicial one it confirmed that at least in matters of great constitutional moment there was no jurisdictional space for popular action between the court's exercise of judicial review and the right to revolution the delicious irony of the nullification crisis is that nullifiers so at odds with the single sovereignty of the federal government had as earnestly reconstructed their state government in South Carolina as the altogether abstract entity the one supreme power they so despised when in Washington creating a political environment in South Carolina at odds with the plural decentralized structures in which localized law had flourished by the 1830s both nationally and locally the people were being squeezed out of republican law but their sovereignty and their sales were more and more an abstraction while the result was not spaces local law did not cease to be but it did become more detached more invisible more merely local nationally meanwhile Webster's one tribunal became the site for a polycentric constitutionalism all of its very own as Mark Graba has recently reminded us the republic had been founded by governments which required through all the constitutional decisions on slavery issues acceptable to elites in both free and slave states free in the 1840s the Dred Scott in the 1850s confirmed it on the court constitutional bi-sectionalism gay slave holding elites and affected veto when bi-sectionalism finally broke down in 1860 the result was the comprehensive born in 1789 of its constitutional law and of its one tribunal just as in 1775 the collapse of polycentric constitutionalism whether located in jurisdictional claims made by the people themselves or in the general spaces dominated by those who claimed to speak for them meant that Americans had no alternative to fight another revolutionary civil war thank you those people opposed the reconstruction at least ideologically sound I feel over and over again the majority of the peers against the previous bureau in position of dissentualized power so I'm just wondering of the extent to which you want to push because it seems to me to be able to be manipulated for so many reasons for instance I'll give another treason trial not quite treason trial but in Thomas Dixon's book the third the trilogy of the Plansmen we can start with the trilogy he has a former Plansmen being tried under the conspiracy act of 1870 which is a key down-to-coop and which causes a federal imposition suspension of heinous corpus all sorts of things which anyone who's a localist would be always through a massive resistance and his appeal was how could I this is a trial by peers so there was a whole appeal back to the British tradition of liberty so I'm just wondering it seems to me it seems to me that you had a sort of almost a utopian ideal of this localism which would be still much more complicated I could give some other examples but I'll just speak with that I don't think I don't talk about it as a utopian ideal I talk about it as a phenomenon that exists and therefore is appropriate for historical examination I think it would be just crazy to deny particularly given its longevity and it does last I did not mean facetiously when I said all the way through massive resistance in the 1950s because massive resistance was to desegregation of Brown of the implementation of Brown was in large part pose as a defense of locality and custom against an imposition sorry I mean I guess it's interesting it's a very interesting question it's what you raise because it pulls at the edges of a sort of niggling dissatisfaction I've had with American history as a as a load of inquiry that is, you know, I don't have a normative axis to grind here I don't have a utopian localism to to hold up I simply have a phenomenon that I think is interesting and if we didn't you frame it sort of a narrative of declension or it may be that it may be I mean from the point of view of the actress it is a narrative of declension so it would be kind of inappropriate of attention I think we have to be faithful to the phenomena we discover and to understand them and to be wary of, also to be wary of judging women to sort of it is you know one of the privileges and perils of history to be put in the position of judging phenomena no, I wasn't, I was just it sounded to me, I might just I'll fight, but it sounded to me that you were judging what was replacing the localism and I would make a case that we shouldn't judge that too much that's very well Grace? I want to kind of go back even further to like Henry II and the reforms to the British Commonwealth system the creation of it the jury had control over every bit of the agitation at that time and it was only through a period of time that there were reforms in order to have a formal structure and to sort of take some things away from the jury so in a sense what was happening I think what you're saying is that it was actually a reaction to those reforms and really going back to the very early system that was the British Commonwealth or the English Commonwealth is that correct? I haven't studied you know, the jury I said I haven't studied the early history of the jury from what I know of it I would not I totally disagree with your observations it is it seems clear that by the 17th century and I would not know when this trend began but certainly it seems clear to me by the 17th century but at least in matters of note courts were very much were most decidedly moving to control juries particularly and to define the sphere of the jury of course in 17th century England or in 16th century England you will find the same kind of decentralized pattern of local determination of the peace that I've described this afternoon that Laura Edwards describes in her wonderful book on First Revolution of South Carolina so it's not the phenomena repeat but it does seem to me that the early by the 17th century when you look at trials like Lowell Burns when you look at the conventical trials and so on into the 18th century the jury is very clearly being represented as limited in its functions and is being warned I mean when Mansfield says judge by the law do you do so at your peril he is telling the jury that he can further enjoy and he can't we have a reception out here that I hope you'll join us yet please again join me and congratulations thank you