EMPIRE AND ENLIGHTENMENT 101 Keeping control over slaves and A 19th-century woodcut shows Nat Turner’s rebellion their personal relationships also African American slaves picking helped maintain racial purity. cotton. Huge demand for the fiber The bloodiest American slave Male owners often took sexual from textile manufacturers fueled rebellion took place in 1831. It advantage of their female slaves, the high number of plantation slaves. was led by Nat Turner, born a but the codes made it plain that the slave in 1800 in Southampton, responsibility for any resulting or even the slave codes. As the Virginia. By his twenties, he offspring rested not with the father, external slave trade dried up, had become a spiritual leader as established in English common the slave market within the US among his fellow slaves and law, but with the mother. A Virginia intensified, alongside a boom in the was persuaded by a series of slave code of 1662 stated that “all growing of cotton. Slave women visions that God was preparing children born in this country shall were encouraged to “breed,” with him for a great battle. A solar be held bond or free only according girls as young as 13 being cajoled eclipse early in 1831 was, to the condition of the mother.” This into motherhood to provide more for Turner, the sign that he committed any child of a slave slave children. should plan a rebellion, and mother, including one born mixed on August 21, he set out with race, to a life of slavery. By the time the Civil War broke six other slaves to attack out in 1861, there were still 15 slave plantations. As they moved Slave codes also stamped out all states in the US, all of which had from farm to farm, killing at prospects of settled relationships slave codes. Even when the war least 55 white people, the between races. In 1664, Maryland officially ended slavery in 1865, rebels grew to around 75 passed the first “anti-amalgamation” “black codes” were developed in strong. Their goal was to law to prevent marriage between Southern states to limit the reach the town of Jerusalem, races, and other American colonies freedoms of former slaves and keep but they were soon broken soon followed suit. them on low wages. It took another up by 3,000 state militia. century, and the passing of the 1964 Internal slavery Civil Rights Act, for the descendants Turner went on the run In 1807, President Thomas Jefferson of African American slaves to but was captured and hanged, signed the legislation that officially finally begin to enjoy the same and 55 of his fellow rebels ended the US slave trade. But that legal rights as the descendants were executed. White mobs did not mean an end to slavery of white slave owners. ■ soon went on a killing spree among slaves but received no punishment. Afterward, both Virginia and neighboring North Carolina imposed even harsher slave codes. After hiding in woods for 6 weeks, slave leader Nat Turner was captured on October 30, 1831, by farmer Benjamin Phipps and executed on November 11.
102 OTAHNFEDTHRLEIIGBSHEURTBSTJIEESCT THE GLORIOUS REVOLUTION AND THE ENGLISH BILL OF RIGHTS (1688–1689) IN CONTEXT B y the time James II was questions still remained about the crowned in 1685, England balance of power between monarch FOCUS had long been split by and Parliament and about the Constitutional monarchy religious and political tensions. religious direction of the country. During the English Civil War of James II was openly Catholic and, BEFORE 1642–1651, James’s father, Charles I, for a largely Protestant country such 1215 England’s Magna Carta had been executed in 1649, when as England, this was problematic. limits the monarchy’s power. Parliament had declared itself the supreme governing power. Although The strain began to show when 1649 Parliament establishes the monarchy had been restored in in 1687, James issued a Declaration the High Court of Justice to 1660 under James’s older brother, of Indulgence—a royal proclamation try Charles I for treason. Charles II, in an uneasy compromise, giving religious freedom both to Catholics and to Protestants who 1681–1685 Protestant Charles did not conform to the Church of II dispenses with Parliament to England. Incensed by protests at his rule as an absolute monarch. perceived attack on the established Church, James dissolved Parliament 1685 Catholic James II in July. In June 1688, while the king succeeds Charles II. prosecuted seven defiant bishops, his Catholic wife, Mary of Modena, AFTER gave birth to a son and heir to the 1701 The Act of Settlement throne—fueling fears of a long line ensures that only a Protestant of Catholic monarchs and an end to can sit on the English throne. England being a Protestant country. 1789 The French National The Glorious Revolution Assembly approves the As civil war now seemed imminent, Declaration of the Rights a group of politicians wrote to Dutch of Man and of the Citizen. Protestant ruler William of Orange, 1791 The US Bill of Rights William III and Mary II, shown in is passed; partly inspired by an engraving, after ascending to the the English Bill of Rights, English throne as joint monarchs—titles it guarantees the rights of granted by agreement with Parliament individuals and of US states. rather than by the divine right of kings.
EMPIRE AND ENLIGHTENMENT 103 See also: Magna Carta 66–71 ■ The trial of Charles I 96–97 ■ The US Constitution Natural rights and Bill of Rights 110–117 ■ The Universal Declaration of Human Rights 222–229 The politicians who drafted the In an absolute monarchy, In a constitutional Bill of Rights were greatly the king or queen has monarchy, the power of influenced by the embryonic complete control of Enlightenment movement, the nation. the king or queen is most notably by English limited by and shared philosopher and scholar John with an elected parliament. Locke (1632–1704), and by the concept of natural rights. The Bill of Rights effectively took England from an absolute monarchy Since ancient times, thinkers such as the Greek to a constitutional monarchy. philosopher Aristotle had advocated that natural law, who was already married to James’s Parliament convened in January a universal code of behavior daughter, Mary. They asked him 1689 and offered the crown jointly and rights, could not be to come to England to defend to William and Mary. The new denied by any legal system. the faith. monarchs signed a Declaration of Locke took up the baton. He Rights in Parliament, which was believed in natural rights: that When William of Orange landed formally passed as the Bill of Rights. all men are naturally free and in England in November 1688 and equal and have a right to life, began marching his army toward The Bill of Rights liberty, and property. London, support for King James fell By ensuring the power of an elected away. James soon realized that his Parliament under a constitutional Locke rejected the idea of position was untenable and within monarchy, the Bill of Rights protected the divine right of kings and a month fled to France. He had, in the freedoms of English citizens. absolute monarchy. He argued effect, abdicated his throne and It condemned James’s misdeeds; that a parliament should hold handed it to William and Mary in ordered that sessions of Parliament be a central role in governing a a bloodless revolution—known as held frequently; required Parliament’s country as part of a social the Glorious Revolution. consent for a monarch to rule, raise contract with its people. This taxes, or suspend laws; guaranteed implied that, if the people For redress of all grievances, freedom of speech in parliamentary believed that a government and for the amending, debates; and barred Catholics from failed to represent their strengthening, and the throne. It also banned the interests adequately, it should preserving of the laws, raising of an army in peacetime be replaced—an idea that Parliaments ought to be without the consent of Parliament. would soon support revolution. held frequently. The English Bill Together with the 1701 Act of John Locke inspired thinkers in of Rights Settlement, the Bill of Rights gave Europe’s Enlightenment and the Parliament absolute sovereignty Founding Fathers who drafted the over all and any other government US Declaration of Independence. institutions and over succession to the throne, separating Parliament’s powers from those of the Crown. In so doing, the Bill paved the way for the constitutional monarchy and parliamentary democracy that Britain has today. ■
104 NWTHOIOTTCUSHUSFHTFOAELLRTIVAE THE SALEM WITCH TRIALS (1692) IN CONTEXT Mass hysteria Trials begin in May 1692 with leads to the the use of spectral evidence FOCUS Due process imprisonment of (from dreams or visions), more than 200 resulting in 19 people BEFORE suspected witches being found guilty and 1486 The German treatise Malleus Maleficarum (The in Salem. put to death. Hammer of Witches) advises using torture to get confessions Only three further After local governor and advocates the death people are found William Phips’s wife is penalty for those convicted. guilty, and by May questioned over witchcraft, 1693, all remaining he instigates a court that does 1581–1593 The Trier Witch prisoners are not allow spectral evidence. Trials in Germany, one of the largest witch trials in Europe, released. sees some 368 people executed. In January 1697, Judge Samuel Sewall 1662 At a witch trial in Bury makes a public apology for the trials. St. Edmunds, England, spectral evidence is ruled as admissible. T he Devil and his recruitment witch panic had swept Europe, of witches had long been the trials in Salem, Massachusetts, AFTER perceived as a threat across in 1692 saw 19 people hanged and 1697 Massachusetts governor Europe. Between 1300 and the end more than 200 accused in a case of William Stoughton calls for a of the 1600s, tens of thousands of mass hysteria. The trials rested on day of prayer and atonement people (mostly women) were put to similar issues to those of the past: for events in Salem. death as witches across the region, scapegoating vulnerable people. often confessing to their “crime” 1711 Massachusetts reverses after sustained torture. Although When a local minister’s 22 verdicts of the convicted. they began many years after the daughters began having fainting (The remaining nine are fits and acting strangely, it seemed exonerated in 1957, and the state officially apologizes for the trials.)
EMPIRE AND ENLIGHTENMENT 105 See also: The origins of canon law 42–47 ■ Trial by ordeal and combat 52–53 Evidence at the ■ The trial of Galileo Galilei 93 ■ Miranda v. Arizona 254–255 Salem witch trials clear to the highly religious A somewhat fanciful engraving The key evidence used in community in Salem that it must from c. 1892, depicting the Salem witch most of the cases at Salem be the work of the Devil. The girls trials taking place in a courtroom, with was spectral evidence— accused three local women of a woman conjuring power and a man testimony from victims who witchcraft: a slave named Tituba; a passed out on the floor. told of seeing an apparition of poor elderly woman, Sarah Osborne; the accused witch while they and a homeless beggar, Sarah court was criticized for allowing were suffering a fit. After Good. The women were arrested spectral evidence (see box, right), some debate, it was decided and Tituba, perhaps hoping to save but the trials continued, and over that this constituted valid herself, confessed to meeting with the next few months, a further 12 evidence because a person the Devil. This set off a chain of women and six men were found must give the Devil permission accusations over the coming months guilty and put to death. to take their form, indicating and increasing numbers of arrests. that the accused had entered One of the accused, 81-year-old into a pact with the Devil. The trials Giles Corey, refused to enter a plea, With the jails filling up, local so he could not be tried. In a The judges in Salem used governor William Phips set up a medieval practice known as peine the precedent of a witch trial in special court of Oyer and Terminer forte et dure (French for “hard and Bury St. Edmunds, England, (meaning “to hear” and “to decide”) forceful punishment”), he was laid in 1662, during which spectral to start hearing cases. The judges under a wooden board that was evidence was ruled admissible had no formal legal training. On weighted down with stones until by judge Sir Matthew Hale. May 27, 1692, the first of the trials he could not breathe, in an attempt Further evidence used to went ahead, and local gossip to extract a plea or a confession. convict witches included Bridget Bishop was found guilty After 2 days, Corey died. finding ointments or books of of witchcraft and was later hanged. the occult in their homes; the Preacher Cotton Mather commented, Recognition of injustice fits of the victims ceasing when “There was little occasion to prove When Phips’s own wife was touched by the accused; or the witchcraft, it being evident and questioned over witchcraft, he the discovery of a “witches’ notorious to all beholders.” The scrapped the court of Oyer and teat”—a mark on the body. Terminer and instigated a Superior Court of Judicature, which did not allow spectral evidence. Only three of the 56 people subsequently accused were found guilty. This seemed to stem the flow of accusations and, by May 1693, all those still in prison were released. In January 1697, the General Court instigated a day of fasting and reflection to atone for the mistakes made, and a key judge, Samuel Sewall, publicly apologized. This marked a growing recognition of the injustice of these trials and of the disproportionate punishments employed. A dark episode in American history, the Salem witch trials are a reminder of the importance of due process in protecting innocent people. ■
106 HOTHAFVEPERATUINHTTEHIONSRGOLSEHRALIGLHT THE STATUTE OF ANNE (1710) IN CONTEXT I n the Middle Ages, when England in 1476. Printers realized trained scribes painstakingly they would suffer if other printers FOCUS hand-copied manuscripts for sold copies of the same book and Copyright law monasteries, universities, and the sought to establish copyright to wealthy elite, the right to copy was protect their commercial interests. BEFORE not an issue. All changed in around 1545 The Venetian Republic’s 1440, when German goldsmith The royal hand Council of Ten forbids the Johannes Gutenberg invented the In England, King Henry VIII printing of a book without printing press. Using movable metal decreed in 1538 that the Court of the author’s permission. type, presses could produce Star Chamber must approve all new multiple copies of a text cheaply books before publication—a bid to 1557 Queen Mary I gives and quickly for a new readership. prevent any considered subversive the Stationers’ Company or heretical. His daughter Queen exclusive rights to print By 1500, 1,000 presses had Mary went further by assigning books in England. produced about 8 million books in the right to print books solely to the Western Europe. William Caxton Stationers’ Company, a publishing AFTER brought the first printing press to trade guild. Each book had to be 1790 The US Copyright Act entered by a guild member in the gives authors copyright for Stationers’ register, giving them 14 years. exclusive printing rights—the author simply received a small fee. 1842 The UK Copyright Act gives authors copyright for life The rebel parliament that would plus 7 years (now 70 years eventually overthrow King Charles I after an author’s death). abolished the Star Chamber in 1640, but its restrictive monopoly 1886 Signatory nations of the persisted through the Stationers. Berne Convention agree to It provoked the poet John Milton to respect international copyright. pen his angry polemic Areopagitica 2019 The EU Directive on William Caxton reads a page from Copyright puts the onus on his printing press in Westminster, internet service providers to London. The first book known to have stop copyright infringement. been printed on it was The Canterbury Tales by Geoffrey Chaucer.
EMPIRE AND ENLIGHTENMENT 107 See also: The Lex Mercatoria 74–77 ■ The Venetian Patent Statute 82–85 ■ The Madame Bovary trial 150 ■ The Federal Trade Commission 184–185 ■ The WIPO Copyright Treaty 286–287 If a book can be copied by anyone, But if no one else can ever make why would an author or a bookseller a copy of a book, the spread of make the effort to write or publish it? knowledge is blocked. So the author and bookseller must be protected by copyright, but for a limited period. in 1644, one of the most forthright being copied—their “copy right.” In 21 years, until 1731. For new works, defenses of the right to freedom 1710, Parliament passed the Statute the same right ran for 14 years from of expression ever written. of Anne (named after the British publication, with another 14 years queen of the time). if the author was still living. The In the 17th century, as scientists Stationers had to buy the rights to including Isaac Newton made new The right to copy publish a new book from the author. discoveries and figures such as The Statute of Anne gave exclusive English philosopher John Locke rights to the Stationers’ Company Booksellers or authors had to challenged old ways of thinking, for all the books they published, but send a copy of the book to a few the Stationers’ stranglehold began only for a number of years. Most recognized libraries, known as to look outdated. When its exclusive significantly, it was the first Act to “legal deposit libraries.” This license lapsed in 1694, strenuous protect authors by granting them, practice, which began in 1610, efforts by the Company to persuade and those to whom they had when diplomat and scholar Sir Parliament to restore the license assigned rights, exclusive right of Thomas Bodley created the failed—until they cited authors’ publication of existing works for Bodleian Library in Oxford, right to protect their work from England, continues today. ■ The battle of the booksellers Hold! You crafty ones, Despite the Statute of Anne, the matter came to a head in the strangers to work, and pilferers Stationers’ Company insisted House of Lords in the case of that they still had exclusive Donaldson v. Becket. of other men’s brains! Think rights on books. In particular, not rashly to lay your thievish they did not accept that, under Alexander Donaldson, a natural law as applied on the printer and bookseller, sold hands upon my works. European continent, their rights cheap reprints of books after Albrecht Dürer on new books should expire. their copyright expired. The Stationers claimed that under German painter and engraver For more than half a century, common law they had perpetual (1471–1528) in the “battle of the booksellers,” copyright to the books. The the Stationers mounted legal Lords ruled that the issue of challenges against booksellers copyright was one of statute, who were printing what the not common law, and upheld the Stationers claimed were pirate Statute of Anne’s provision that copies. Finally, in 1774, the copyright had a limited term.
108 OAFGNRAATNIDONSSOCIETY VATTEL’S THE LAW OF NATIONS (1758) IN CONTEXT S wiss diplomat Emmerich and able to enjoy that liberty de Vattel (1714–1767) wrote without interference from a foreign FOCUS the first widely accessible power. Nations must also accept, International law treatise on international law. He however, that they are underpinned was inspired by Enlightenment by a common concern for each other BEFORE philosophers, such as Germans and are obliged to work together, 1625 Dutch statesman Hugo Gottfried Wilhelm Leibniz and particularly through the free flow Grotius’s On the Law of War Christian Wolff, and their work of commerce. and Peace is published. It is on natural law and international regarded as the first book politics. Wolff’s 1749 publication American colonists fighting on international law. Jus Gentium (The Law of Nations) taxes imposed from Britain were contained key ideas, but its Latin drawn to Vattel’s theories. They 1648 The Peace of Westphalia text and complex arguments made proved a major influence on the ends the Thirty Years’ War it impenetrable to a wider audience. 1776 Declaration of Independence between Protestant and Vattel decided to take Wolff’s ideas and the US Constitution (1787). ■ Catholic Europe and on what duties nations owe to each establishes state sovereignty other and create his own work as as a fundamental cornerstone a practical guide for statesmen. of international relations. A national blueprint The natural society of nations 1749 Christian Wolff publishes With its mixture of philosophical cannot subsist, unless The Law of Nations. arguments and practical politics, Vattel’s The Law of Nations, or the natural rights of each AFTER Principles of the Law of Nature, be duly respected. 1776 The US Declaration of Applied to the Conduct and Affairs Independence, partly inspired of Nations and Sovereigns was well Emmerich de Vattel by Vattel’s The Law of Nations, received following its publication is signed. in French in 1758. Vattel argued The Law of Nations that like individual people, nations 1920 The League of Nations should be free and independent is established in the aftermath of World War I, with the aim of See also: Grotius’s On the Law of War and Peace 92 ■ The US Constitution and maintaining global peace. Bill of Rights 110–117 ■ The United Nations and International Court of Justice 212–219
EMPIRE AND ENLIGHTENMENT 109 BOTHOFEOCKMOMIONSMTTOHNIEMLHPAOIWSRTTOARNYT BLACKSTONE’S COMMENTARIES (1765–1769) IN CONTEXT W illiam Blackstone’s Sir William Blackstone (1723–1780), an Commentaries on the English barrister, judge, and politician, FOCUS Laws of England, a gave practical, logical, and accessible Common law systematic work describing every guidance to English common law. aspect of English common law, BEFORE was pivotal in fostering a wider resources to check legal precedents. 1166 King Henry II issues the understanding of law. Blackstone Now they could refer to Blackstone’s Assize of Clarendon, a series of began to lecture on common law succinct Commentaries. His legal reforms that lay the basis at the University of Oxford in 1753, promotion of the idea that the of English common law. the first time this had occurred in law should protect people, their Britain. His lectures were popular property, and their liberty resonated 1215 The seminal document due to his clear explanations of in revolutionary America and in the of English common law, complex legal issues. Between drafting of the US Constitution. ■ Magna Carta, is signed. 1765 and 1769, he published these lectures in four volumes: Of the 1689 The English Bill of Rights Rights of Persons; Of the Rights is passed by Parliament. of Things; Of Private Wrongs; and Of Public Wrongs. AFTER 1771–1772 An American Blackstone’s book made English edition of Blackstone’s common law, with its huge body of Commentaries is published in statutes and judgments, much more Philadelphia to great interest. accessible. It was used well into the 19th century as a foundation text at 1787 The US Constitution— law schools in Britain, the US, and the founding legal document throughout the Commonwealth. of the United States—is signed. Revolutionary impact 1871 A Selection of Cases The book’s portable format was on the Law of Contracts, by especially useful in America, where American jurist Christopher frontier lawyers often lacked the Columbus Langdell, supplants the Commentaries as the key See also: Magna Carta 66–71 ■ The Glorious Revolution and the English Bill of US law textbook. Rights 102–103 ■ The US Constitution and Bill of Rights 110–117
SUPREMESTHHISACLOLNSBTEITUTTHIOEN LAW OF THE LAND THE US CONSTITUTION AND BILL OF RIGHTS (1787, 1791)
112 THE US CONSTITUTION AND BILL OF RIGHTS IN CONTEXT The process began in 1786, when The first page of the US Constitution New York lawyer and politician famously begins with the words “We FOCUS Alexander Hamilton wrote a report the People of the United States, in Constitutional government calling for a convention (later known order to form a more perfect Union, and citizens’ rights as the Constitutional Convention) establish Justice … .” to address the inadequacies of BEFORE the Articles of Confederation—the Among the Declaration’s provisions 1215 Magna Carta promises agreement between the 13 colonies, were that the united colonies “ought rights and protections for all ratified in 1781, that served as an to be Free and Independent States.” “free men” in England. early constitution. The Articles had reflected this, creating a confederation of 13 1689 England’s Bill of Rights From war to independence sovereign states. By 1786, however, limits the monarchy’s power The Articles had been drafted in 3 years after the Treaty of Paris and sets out individuals’ rights. 1776–1777 during the Revolutionary confirmed America’s independence, War, waged by the colonies to Hamilton and several other 1776 The Second Continental fight off British rule. At this time, Founding Fathers recognized that Congress of 13 American the Continental Congress was the the sovereignty of each state was colonies adopts the Declaration governing body of the colonies. The weakening the power of the national of Independence, cutting all Delegates to the First Continental government, leaving it unable, for political ties with Britain. Congress initially met in 1774 to instance, to tax the population or organize a response to the Coercive enforce requests for troops. To AFTER Acts that Britain had imposed to replace the Articles, they wanted 1789 The Declaration of the punish those who resisted taxation. a constitution that could bind the Rights of Man and of the Citizen The colonists’ resentment of confederation of states together. sets out civil rights in France. “taxation without representation” became a call to arms. In 1775, Fierce debate 1791 Poland creates the first when the Second Continental The Constitutional Convention took modern national constitution Congress convened, the war was place in Philadelphia between May in Europe. underway. On July 4, 1776, the and September of 1787. The 55 Congress adopted the Declaration delegates represented all states 1803 Marbury v. Madison of Independence, drafted by except Rhode Island, which opposed establishes the principle of Thomas Jefferson (its main author), a stronger central government. judicial review, giving the US John Adams, and Benjamin George Washington, who had Supreme Court the power to Franklin—three of the Founding led the Continental Army in the interpret the Constitution. Fathers who had united the colonies Revolutionary War, was elected and led the revolt against Britain. convention president. 1948 The UN’s Universal Declaration of Human Rights (UDHR) affirms individual rights worldwide. W ritten in the summer of 1787, the Constitution of the United States is the oldest national constitution. Ancient Greek city-states had their own written constitutions, but the US Constitution was the first to set out a framework for governing modern nations, and has inspired national constitutions ever since.
EMPIRE AND ENLIGHTENMENT 113 See also: Magna Carta 66–71 ■ The Glorious Revolution and the English Bill of Rights 102–103 ■ The Declaration of the Rights of Man 118–119 ■ The US Supreme Court and judicial review 124–129 ■ The Universal Declaration of Human Rights 222–229 In the Revolutionary Following the A national War (1775–1783), Revolution, America government would consists of 13 sovereign provide stability, but many the American colonies Americans fear too react against the states, but this much centralized causes conflict excessive tax claims and weakness. power. of the British king and Parliament. The lawmaking, enacting, The Constitutional Convention and judging branches of government are aims to prevent a national government separated, and a system of checks and overreaching its powers. balances is established. Like Rhode Island, other states outlined a wholly new structure of equal voice in Congress. After a feared that a federal government government based on a bicameral heated debate, delegates adopted might overstep its powers and (two chamber) legislature, limited a proposal from Roger Sherman worried, too, about how they would terms, and rotation of office, along of Connecticut to create two be represented in Congress, the with other bodies to act as checks chambers—the Senate, where each national legislature. Delegates from and balances. The number of state has equal representation, and larger states wanted the number of representatives from each state the House of Representatives, in representatives to reflect the size would depend on their economic which representation is based on of their population; those from smaller power or their population. a state’s population. This solution states wanted equal representation. was dubbed the Great Compromise. While larger states agreed to the Under the plan, each state would The slavery question also came idea, small states did not. William be able to appoint two senators to to the fore. Northern states, some Paterson of New Jersey countered serve 6-year terms in the Senate. In of whom had already abolished with a plan to give each state an the House of Representatives, seats slavery, strongly favored complete would be held for 2 years, and the abolition, but states in the South Liberty, when it begins number each state had would be were determined to ensure that to take root, is a plant based on its population and slavery remained legal. So divisive reassessed every 10 years. was the issue that it was excluded of rapid growth. from the Constitution and left to George Washington In a further debate, conference individual states to decide. delegate James Wilson proposed 1st US president (1789–1797) that the president should be elected The Great Compromise directly by the people. However, the On the question of representation, majority of delegates decided that the delegation from Virginia, which the general populace knew little included Edmund Randolph and about politicians outside their own James Madison, set the agenda. The states and would therefore be too 15 resolutions of their Virginia Plan, ill-informed to make a valid choice. which Randolph put to delegates, They agreed instead that the ❯❯
114 THE US CONSTITUTION AND BILL OF RIGHTS The three branches of the US government CONSTITUTION legislature executive judiciary (makes laws) (carries out laws) (interprets laws) Congress President Vice President Supreme Other federal Court courts Senate House of Cabinet Representatives The US Constitution separated the powers of government them; and the judiciary interprets them and punishes into three branches: the legislature, the executive, and the lawbreakers. The divisions prevent any one branch from judiciary. The legislature makes laws; the executive enacts gaining too much power, as the other two can act as a brake. president should be elected millions of people. Much of its As a result of these concerns, indirectly by “electors” chosen by complexity stems from the desire of the US government is divided each state—the Electoral College. those early delegates to separate the horizontally between lawmakers States have the same number of branches of government, limiting (the legislative body: Congress), electors as they do members in the authority of each with a system law enacters (the executive: the two chambers of Congress. of checks and balances designed to the office of the president), and avoid the abuse of power. They had law interpreters (the judiciary: With all issues resolved and set fought the Revolutionary War to the Supreme Court) and also down, the Committee of Style, led challenge the tyranny of centralized vertically between federal, by James Madison, finally produced power, so they were naturally state, and local governments. the first draft of the Constitution. nervous about a new central government. In fact, many states Signed and ratified Separation of powers only agreed to ratify the Constitution The draft Constitution (written out The Constitution is concise—just if they could be sure they would by clerk Jacob Shallus for a fee of over 4,000 words long. Yet it provided have some guarantee of protection $30) was finally presented to the the basis for a complex machinery of against the new government’s power. delegates in September 1787. government that now employs
EMPIRE AND ENLIGHTENMENT 115 At the Pennsylvania State House to guarantee the protection of Let our government be (now Independence Hall), 39 delegates fundamental rights. Gradually, like that of the solar system. signed the Constitution in September however, Madison warmed to the Let the general government 1787. The Declaration of Independence idea of a Bill of Rights, partly for be like the sun and the states had been signed there 11 years earlier. pragmatic reasons and partly because he could see its merits. the planets, repelled Washington was the first to sign, yet attracted … followed by 38 other delegates. The In 1789, as a member of the new next step was for at least nine of House of Representatives, Madison John Dickinson the 13 states to ratify the draft. proposed 19 amendments. Twelve After much haggling, the ninth were approved and 10 were added Delaware representative state, New Hampshire, ratified in to the Constitution as the Bill of (1732–1808) June the following year, and it was Rights, adopted in 1791. agreed that the Constitution would balance of power achieved by come into effect in March 1789. Since then, remarkably few English legislation to protect other amendments to the Bill have the rights of Parliament against the At the end of April 1789, George been added. Thousands have been threat of royal tyranny. The US Washington was elected the first proposed, but only 17 accepted, replaced monarchy with a president US president. In February 1790, partly because of the system of elected for fixed terms, but in other the Supreme Court sat, and the checks and balances. Changes to respects, the Constitution had first US Congress met a month the Constitution not only have a lot in common with the British later. The government was finally to pass through both houses of system that the US had rebelled fully functional. At the end of May, Congress, at least three-quarters against a decade earlier. At first, Rhode Island—the last of the 13 of the states must also ratify them. it was even proposed that the states to ratify—came on board. president should be addressed English roots as “Your Highness.” ❯❯ Protecting rights The new Constitution of the United Ratifying the Constitution had States was a groundbreaking and to be imprisoned without due proved difficult. Many delegates historic document. The framers, process of law and not to be had argued that it failed to protect however, were not trying to create tried twice for the same offense political rights, such as freedom of something wholly revolutionary. In (double jeopardy). As axioms of religion and speech, and demanded their determination to fashion a government, the amendments that a Bill of Rights be added before system that could curb the power have a binding legal force. they agreed to sign. In a 1788 letter of an overambitious government, Congress cannot pass laws that to Thomas Jefferson, Madison many saw a parallel with the conflict with them; states could suggested that the Constitution initially, but now cannot legislate alone, by creating a just and proper The Bill of Rights against most of their guarantees. government, should be enough Influenced by forerunners such More citizens were covered as England’s Magna Carta in 1215 by the Bill’s protection when and Bill of Rights in 1689, the US slavery was abolished in 1865, Bill of Rights is a collection of and in 1868 when, under the individual rights reinforced by Fourteenth Amendment, those limitations on federal and state born or naturalized in the US governments. It comprises the became American citizens. first 10 amendments to the Constitution, enshrining rights such as freedom of speech and religion, the right to remain silent, and the right to keep and bear arms. Also included are protections for those accused of crimes, such as the right not
116 THE US CONSTITUTION AND BILL OF RIGHTS Central to the machinery of Whenever any Form of rights, while Montesquieu proposed government laid down by the Government becomes a separation of legislative, judicial, Constitution was the concept of destructive … it is the and executive powers to prevent the parliament that had evolved over Right of the People to alter despotism he abhorred in the French centuries in England. With the or to abolish it, and to monarchy. Locke had maintained development of the cloth industry institute new Government. there must be a “social contract,” and emergence of a new merchant whereby people, who are by nature class in the 15th century, widening US Declaration free and equal, agree to be ruled and prosperity had meant more people of Independence have some of their choices limited in had a stake in how kings and lords order to live harmoniously with operated, especially in the way down the rights and liberties of others. Those who rule, however, they raised money from taxation. British subjects and was a model must protect the people’s rights for the later US Bill of Rights. and promote the public good. The population’s demands for a say in government had reached a Enlightened thinking Locke’s ideas were echoed pinnacle in the English Civil War in The leading framers of the in the opening words of the US the 1640s, when Charles I, accused Constitution were highly educated Declaration of Independence and of waging war on his people, was men. They were deeply aware of its “self-evident” truths that all men executed by the will of Parliament. new currents in philosophical and are created equal and endowed The subsequent republic of the political thought that had developed with certain unalienable rights, Commonwealth under Oliver in Europe during the Enlightenment, including “Life, Liberty and the Cromwell soon collapsed, and the particularly the ideas of John Locke pursuit of Happiness”; and that to monarchy was restored in 1660, in England and Jean-Jacques secure these rights, governments but the turbulent period had sowed Rousseau and Charles Montesquieu should derive their powers from the seeds of democracy and the in France. Both Locke and Rousseau the “consent of the governed.” shift of power from the king argued strongly for people’s natural toward Parliament. This was Locke also believed in majority reinforced in 1689, after the rule. This and the consent of the Glorious Revolution, when the governed would become the central Catholic king James II was planks of democracy, while both compelled to abdicate and William Locke’s and Montesquieu’s thoughts and Mary from Holland were on the separation of powers were key invited to rule on condition that to shaping the US Congress. they accepted a Declaration of Rights. Translated by Parliament Republic vs. democracy into a Bill of Rights, it formally set The Constitution is sometimes seen as the starting point of modern democracy. It begins with the words, “We the People … ,” but this was not a ringing endorsement of the democratic ideals expressed so stirringly by President Abraham Lincoln in 1865, when he spoke of “government of the people, by the people, for the people.” The Founding Fathers framed the Constitution to be the “supreme Law of the Land” and the basis of George Washington—the first person to sign the Constitution—is inaugurated as the first US president at Federal Hall, New York City, on April 30, 1789.
EMPIRE AND ENLIGHTENMENT 117 19th century was, however, perhaps less for its perceived benefits than because other systems had failed. Don’t interfere A work in progress James Madison with anything in the The delegates at the Constitutional Constitution. That must Convention knew the document Born in 1751, on Belle be maintained, for it is they had agreed to was a historic Grove Plantation in Virginia, the only safeguard of achievement but not perfect. At Madison was the oldest of the Convention’s close, Benjamin 12 children. He graduated our liberties. Franklin, aged 81, looked at the from Princeton and was soon Abraham Lincoln half-sun symbol on Washington’s involved in the politics of the chair and declared it was “a rising Revolutionary War, becoming 16th US president (1861–1865) and not a setting sun,” adding that a member of both the Virginia the Constitution with all its faults House of Delegates and the a republic that primarily championed was the very best they could obtain. Second Continental Congress. its people’s liberty and rights. Many He was one of the more considered elections only as a The 1787 Constitution could not prominent Founding Fathers means to an end, a way of keeping produce a government that truly of the United States. government in check rather than represented the entire nation. It did part of some great democratic ideal. not set out voting rights; at first, only After the war, Madison led male property owners could vote at the work on the creation of the Madison, the chief architect of all. The Fifteenth Amendment gave Constitution. He sponsored the Constitution, argued that it was African American men the right the amendments that make a republic they were creating, not a to vote only in 1870. In 1920, the up the Bill of Rights and was democracy. Here, Madison was Nineteenth Amendment gave women one of the first leaders of the talking of a democracy such as that the right to vote; the first states to give House of Representatives. of ancient Athens, where all adult American Indians the vote did so in Madison was elected fourth citizens had to play an active role 1924. Yet, by defining a government president of the United States, in government, which was plainly system empowered by the people, serving from 1809 to 1817, at impractical for a nation such as while limiting its powers in order the very peak of the political the US. For him, the key difference to protect citizens’ basic rights, the edifice he had helped create. was that a republic works by the Constitution set a pattern for modern When he left office in 1817, delegation of government to a small democratic government that is now he retired to his Virginia number of people elected by the rest. the norm across much of the world. ■ tobacco plantation, and died In 1820, Scottish philosopher James there in 1836. Mill proclaimed such a system of To live under the representation to be “the grand American Constitution is Key works discovery of modern times.” His son the greatest political privilege John Stuart Mill declared it to be the that was ever accorded 1787 Speeches at the “ideal type of a perfect government.” Constitutional Convention to the human race. 1787–1788 Articles in What the three men were all Calvin Coolidge The Federalist describing is now the standard model of democracy, where the 30th US president (1923–1929) people elect representatives to govern and create laws. The gradual shift of Western governments toward this model during the
118 REMQEEMUNAAALIRNIENFBRROEIGERHNATNASDND THE DECLARATION OF THE RIGHTS OF MAN (1789) IN CONTEXT T he Declaration of the Rights would be governed. A fundamental of Man and of the Citizen principle was that, for “the good of FOCUS was a landmark statement all,” the Assembly would govern Human rights of human rights. It emerged at the only with the consent of the people. start of the French Revolution and BEFORE laid down the principle that by law For this reason, it was necessary c. 1750 bce In Mesopotamia, all men are equal, with equal rights to define the rights of every citizen, the Code of Hammurabi lists to liberty, private property, safety, and so the Declaration was drafted basic rights and punishments. and freedom from oppression. This initially by the Marquis de Lafayette, idea has shaped the modern world. in consultation with American 539 bce Cyrus the Great decrees religious tolerance The events that gave rise to the All men are equal and no for his conquered subjects Declaration started in May 1789, man has a right to rule in Babylon. when King Louis XVI was compelled by financial crisis and widespread over any other. 1215 England’s Magna Carta agitation to reconvene the Estates is signed by King John. General, the legislative assembly, But men may choose to after a gap of 175 years. The Estates give the power to rule 1776 The Virginia Declaration General comprised three groups, of Rights influences the US or estates—the clergy, the nobility, to the monarch and Declaration of Independence. and the people—and Louis insisted the government. that each group had a single vote. AFTER This meant that the two elite 1948 In the wake of the estates, the clergy and the nobility, atrocities of World War II, the would always outvote the people. United Nations’ Universal Declaration of Human Rights The National Assembly So the monarch and (UDHR) defines rights On June 17, 1789, the enraged the government rule on worldwide. “Third Estate,” the people, declared behalf of the nation and a separate National Assembly to 1950 The European Convention make laws themselves. Locked out only by the consent on Human Rights (ECHR) of the official assembly hall, they of the people. draws on the UDHR, enforcing convened on the Royal Tennis Court individual rights across Europe. instead. Here, they resolved to set out the principles by which France
EMPIRE AND ENLIGHTENMENT 119 See also: The Glorious Revolution and the English Bill of Rights 102–103 ■ The US Constitution and Bill of Rights 110–117 ■ The Napoleonic Code 130–131 ■ The Universal Declaration of Human Rights 222–229 statesman Thomas Jefferson. The good.” The second article asserts A woman has the right draft was presented to the Assembly that the primary duty of government to mount the scaffold. She on July 11, 1789, and after revision, is to look after the rights of man— must possess equally the it was accepted 6 weeks later. his rights to liberty, property, safety, and resistance to oppression. The right to mount the The document was inspired third states that the government’s speaker’s platform. by the ideas of the Enlightenment authority depends on the consent of Olympe de Gouges developed in France in the previous all. Article Four explains that liberty half-century. The new philosophy means the freedom to do anything The Declaration of the of Montesquieu, Rousseau, and that does no harm to others, while Rights of Woman, 1791 Voltaire challenged the idea of the Article Five says the government rule of a monarch by divine right, can ban only those actions that are “active” citizens. These were French asserting a law of the rights of men harmful to society. Article Six states free men over the age of 25 who derived not from religious authority that laws are the expression of the paid a certain level of tax (in effect, but by rational thought. general will of the people. property owners). Women, poor men, and slaves were “passive” citizens. Articles of the Declaration The rest of the text goes on to But as the Revolution progressed, In 17 articles and a preamble, the define many rights that we now take they, too, demanded to be included. Declaration describes individual for granted, including the principle In 1790, Nicolas de Condorcet and and collective rights for all men. The that people are innocent until proven Etta Palm d’Aelders called for the preamble emphasizes the principle guilty. Indeed, these ideas, which National Assembly to recognize that rights are “natural, inalienable, seemed so radical at the time, are women’s rights. Their appeal was and sacred.” It also guarantees now so much a part of the fabric of rejected, prompting playwright freedom of speech, freedom of the the democratic world that to us they Olympe de Gouges to write her press, and freedom of religion. seem to be plain common sense. Declaration of the Rights of Woman and of the Female Citizen. “Woman is The first article contains the Active and passive citizens born free and remains equal to man heart of the Declaration, stating that Despite the moral authority of the in rights,” she claimed. “Men are born and remain free and Declaration and its championing of equal in rights. Social distinctions equality, it conferred rights only on The original Declaration also can be founded only on the common inspired the first successful slave uprising by slaves in the French colony of Saint-Domingue, now Haiti. Slavery was abolished in France and its colonies in 1794. ■ The Tennis Court Oath was sworn by the National Assembly of the Third Estate on June 20, 1789. They vowed “not to separate” until a written constitution had been established for France.
RTUHLEEROISFE 1800–1945
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122 INTRODUCTION The US Supreme The Abolition Under the The first of the Court is given the of the Slave Trade Metropolitan Geneva Conventions power of judicial Police Act, a is adopted by European review, allowing it to Act abolishes the state-run police rule on any breach of slave trade in British force is established powers, establishing the Constitution. in London, UK. a set of rules to colonies and on prevent suffering British ships. during war. 1803 1807 1829 1864 1804 1822 1863 1871 Napoleon Bonaparte The UK is the first The Republic of The Trade Union commissions an country to pass a law Venezuela Act secures the preventing cruelty to overhaul of France’s farm animals, which becomes the first legal status of trade legal system, resulting is extended in 1849 to nation to abolish unions in the UK and in a new civil code, the all domestic animals. the death penalty protects their funds from embezzlement. Napoleonic Code. for all crimes. T he spirit of the Age of industries held the economic reins. The principle of citizens’ rights was Reason of the 18th century The rural peasant class shrank, to be written into the US Constitution, led to fundamental changes replaced with a class of city-dwelling but further legislation was needed in how society was organized: the factory workers, no longer in thrall to protect the people from abuses French and American revolutions to landowners but instead reliant of power. A major step was to grant overthrew the old established order, on industrialists for their livelihood. the Supreme Court the power of and new nation-states were created, judicial review so it could exercise with laws and constitutions that Changing societies the necessary checks and balances upheld the values of democracy, The governments and laws of the on other branches of government. liberty, and human rights. Through new era’s nation-states had to evolve At much the same time, France the 19th century, more and more to reflect the changing nature of the began to draw up its new civil countries adopted similar models societies within them, recognizing code, which became a model for of government, espousing the same the rights of all their citizens. There many other nations’ civil codes. values. But a key factor involved in was a gradual move toward more the changes within society was the liberal legislation, protecting the British parliamentary and legal Industrial Revolution, which started interests of workers and consumers, systems were well established and in 18th-century Britain and went on as well as ensuring that businesses evolved more slowly to the demands to shape the modern world. could continue to bring prosperity of industrialized society. But with in a fair market economy. the formation of the Metropolitan With industrialization came Police Force by an Act of Parliament, capitalism, and while political Fresh from revolution, the US the UK created a policing model fit power had been transferred from and France were among the first to for modern cities, with uniformed monarchies and aristocracies to rise to the challenge of creating legal officers under a central command parliaments, the owners of the new systems fit for the modern world. given powers to enforce the law.
THE RISE OF THE RULE OF LAW 123 German chancellor Women in New US president Woodrow In the Treaty of Otto von Bismarck Zealand are the first to Wilson creates the Versailles following proposes a compulsory win the right to vote; Federal Trade insurance program elsewhere, they do not Commission to World War I, the to protect workers win suffrage until well victorious Allies injured in industry. into the 20th century. regulate businesses and impose punitive protect consumers. measures on Germany. 1881 1893 1914 1919 1890 1899 1918 1935 The Sherman The first Hague Following the 1917 The Nuremberg Antitrust Act is Convention proposes Revolution, Vladimir Laws lay down the passed by the US an international set Lenin delivers a new Nazi policy of German Senate, banning of rules of war and Russian constitution, citizenship, effectively anti-competitive founds international establishing a state cartels and monopolies. ruled by the workers. defining Jews as humanitarian law. “nonpersons.” The UK also led the way in creating trade in its colonies and on its ships, Meanwhile, in Russia, the world’s laws to protect the rights of workers but the complete abolition of slavery first socialist state was founded, and trade unions in the latter part was slow in being achieved. Despite with its leader Vladimir Lenin of the 19th century, while in the US, the good intentions of documents promising a fairer and more equal regulation of large corporations was such as France’s Declaration of the society. This became the model introduced in the Sherman Antitrust Rights of Man, all men were not for other communist states, which Act to protect customers from yet seen as equals, even by the at one point in the 20th century unscrupulous businesses. As mass law—and women were certainly accounted for about a third of the production and consumerism grew, not regarded as deserving of equal world’s population, and stood in it became clear that legislation was rights, the majority of countries stark opposition to the liberal needed to ensure businesses met denying them the vote until after capitalism of the Western world. certain production standards, and World War I. the “snail in the bottle” case brought At an international level, the against ginger-beer manufacturer While the “Jim Crow” laws effects of industrialization were also David Stevenson in 1932 became a sanctioning segregation in the US felt in the nature of modern warfare, landmark in the law of negligence. were blatantly discriminatory, an with unprecedented levels of even more flagrant form of racism casualties prompting a series of Human rights was made law in Nazi Germany. Geneva Conventions on the conduct By the 19th century, the rights The humiliating terms imposed on of war. These were complemented of citizens were a core principle of Germany in the Treaty of Versailles, by the Hague Conventions, agreeing most legal systems, but recognition and the consequent economic on the rules of warfare, limiting the of basic human rights took far longer. depression, triggered a backlash use of certain weapons, and laying The UK was first to ban the slave that made the Jews scapegoats, the foundations for international stripped of their rights as citizens. humanitarian law. ■
JUSTICE UNDER THE CONSTITUTION THE US SUPREME COURT AND JUDICIAL REVIEW (1803)
126 THE US SUPREME COURT AND JUDICIAL REVIEW IN CONTEXT T he Supreme Court is the of checks and balances, ensuring highest federal court in the limitations on the powers of FOCUS US. It was specified by the each of the three branches of US federal law Constitution and signed into force government. The Supreme Court, by President George Washington therefore, has the final word on any BEFORE with the Judiciary Act of 1789. This constitutional conflict—a unique 1787 The text of the new decreed that the Court would have role in US government. US Constitution is adopted, six judges (also known as justices). making the judiciary a “third Nominated by the president and Marbury v. Madison branch” of government. confirmed by the Senate, they The appointment of the fourth usually hold office for life (until chief justice, John Marshall, in 1801, 1789 Congress passes the they retire or die), and their salary was pivotal for the Supreme Court. Judiciary Act, which sets cannot be decreased during their More robust than previous chief out some of the Supreme term. In this way, the justices are justices, Marshall was eager to Court’s powers. kept independent of government. assert the Court’s power and political autonomy. His opportunity AFTER Although the US Constitution came in 1803, when a case was 1857 In Dred Scott v. Sandford, provided for the Supreme Court to brought by William Marbury. Chief Justice Roger Taney rules exist, it did not codify (write down that the word “citizens” in the in law) its powers and prerogatives. In 1801, outgoing Federalist Constitution does not refer to Rather, the Court’s powers have, president John Adams had passed black people. This much-vilified over time, been defined by its own an act that allowed him to nominate decision is later overturned by rulings. One such power is that of a number of new judges, including the Fourteenth Amendment. judicial review. Marbury. (The Federalists and the Democratic-Republicans were 1973 In Roe v. Wade, the Judicial review allows the Court the first US political parties.) The Supreme Court rules that the to decide whether a legislative act government of the new president, Constitution protects the right (produced by Congress), executive Democratic-Republican Thomas of a woman to seek an abortion. act (produced by the president), Jefferson, was unhappy with so or judicial act (produced by a lower many Federalist appointees, who court) violates the Constitution. would advance a nationalistic This provides an essential system The Supreme Court has an The single star represents The eagle’s head represents The shield resembles the official seal, which is kept in the the creation of “one the president. Its nine tail flag of the United States. custody of the Clerk of the Court. Supreme Court” by the feathers symbolize the nine Its 13 stripes represent the It contains a number of symbols, US Constitution in 1789. judges of the Supreme Court. 13 original states. each representing different and important elements of the Court’s authority. The seal differs from the coat of arms of the United States in only one respect: the single star at the base, beneath the tail of the eagle. The motto on the scroll A constellation of The olive branch in the A sheaf of arrows held in in the eagle’s beak reads 13 stars symbolizes the eagle’s right talon represents the eagle’s left talon symbolizes E pluribus unum: “Out of emergence of the US as peace. The eagle’s gaze is war, showing that the nation many, one.” an independent nation. turned toward this side. is always in readiness for war.
THE RISE OF THE RULE OF LAW 127 See also: The US Constitution and Bill of Rights 110–117 ■ The exclusionary rule 186–187 ■ Miranda v. Arizona 254–255 ■ Roe v. Wade 260–263 The judicial Power of Marshall has been praised by John Marshall the United States shall commentators for his deft handling be vested in one supreme of the case. His strategic decision Born in Virginia in 1755, John Court, and in such inferior built on the existing concept of Marshall was the eldest of Courts as the Congress judicial review—which, while not 15 children. He served during may from time to time written into law, had been accepted the Revolutionary War, then ordain and establish. by most framers of the Constitution left the army in 1780 to study as necessary. (Founding Father law. He quickly gained US Constitution Alexander Hamilton wrote in 1788 a reputation for measured that “the Constitution ought to be decisions, and soon became Article III, Section 1 preferred to the statute, the intention involved in government. He of the people to the intention of their was a strong advocate for agenda and shift the balance of agents.”) Marshall, in his ruling, the ratification of the new power toward the judiciary. As explained that by creating a written US Constitution—this replaced a result, Marbury did not receive constitution, the US had defined the Articles of Confederation, his commission. He took secretary the limits of powers for the different which had lacked provision of state James Madison to court, departments of government, and for a judicial or an executive asking that the Supreme Court that the Constitution would mean branch of government. issue a writ of mandamus (an nothing “if these limits may, at any order to a lower court or official to time, be passed by those intended In 1800, Marshall became fulfill their public duty) to compel to be restrained.” secretary of state under John Madison to grant the commission. Adams. A year later, he was The impact of this fairly obscure appointed chief justice of the Chief Justice Marshall delivered case was immense. While ensuring Supreme Court—a position he his verdict against Marbury. He that the original jurisdiction of the held until his death in 1835. agreed that Marbury was legally Supreme Court was not expanded, In this role, he presided over entitled to his commission but Marshall had, as a result, centered numerous key cases that, over declared that the Supreme Court its focus on appellate jurisdiction: time, defined the powers of did not have the power to issue the the power of the Court to review, the Court. These included writ of mandamus—because, in amend, or overrule the decision of a McCulloch v. Maryland (1819), requiring the Supreme Court to do lower court. This asserted the power in which Marshall ruled that so, Congress had expanded the of the Supreme Court as a co-equal the federal government had the original jurisdiction of the Court, branch of government. ❯❯ right to open a national bank, and this was in violation of the and Cohens v. Virginia (1821), Constitution. This ruling positioned It is emphatically the which established that the the Constitution as the supreme law province and duty of Supreme Court had jurisdiction of the land and the Supreme Court the judicial department to rule on all state court as the body that interpreted it. It to say what the law is. judgments that challenged defined the power of judicial review, the Constitution. setting a precedent that has stood John Marshall the test of time. Marbury v. Madison, 1803
128 THE US SUPREME COURT AND JUDICIAL REVIEW The US Constitution The Constitution balances power is the supreme law across the legislative, executive, and judicial branches of government. of the land. Judicial review is the power The Supreme Court represents of the Supreme Court to interpret the judicial branch of government. and uphold the Constitution. Marshall may be best known for held office from 1829 to 1837, was allowing the forced relocation of the this ruling, but during his tenure as a proponent of the departmental Cherokee people from their lands chief justice, he also presided over theory of government, which argued to continue. (This chapter in US other important innovations. One that each branch of government history, in which more than 60,000 example was the shift to an Opinion possessed the right to interpret the American Indians were compelled of the Court presented as a majority Constitution. Jackson put a number to leave their ancestral lands and decision, in contrast to the former of cases to the Supreme Court that walk thousands of miles to method of seriatim decisions, in served to challenge John Marshall’s designated “Indian territory,” is which each judge delivered their perception of the Court’s role. In 1832, known as the Trail of Tears.) own separate opinion. he even defied the decision of the Court in Worcester v. Georgia, a Judicial review was also put Put to the test ruling that laid the foundations for to the test in Lochner v. New York Although Marbury v. Madison the principle of tribal sovereignty. (1905). The state of New York had, was the watershed case that Jackson circumvented the ruling, in 1895, passed the Bakeshop Act, established the Supreme Court’s which ruled that bakers, who often power of judicial review, it was worked in poorly ventilated spaces just the start of a long process of and as a result suffered from lung clarification. During its early years, problems, should not be forced to the Court heard numerous cases work more than 10 hours a day or 60 that served to define more clearly hours a week. Bakery owner Joseph the parameters of this power. Each Lochner, after being prosecuted for ruling gave greater legitimacy contravening this law, challenged to the Supreme Court as arbiter the Act. The Supreme Court ruled of the Constitution and confirmed by a majority of 5-4 that the Act the right of the Court to review the was indeed a violation of the due constitutionality of laws passed by process clause of the Fourteenth lower courts and by the legislative Amendment. This clause effectively branch or the executive branch of government. President Andrew Jackson famously disregarded the Supreme Court’s ruling However, the principle was not in Worcester v. Georgia (1832). He is said without its opponents. President to have declared, “Marshall has made Andrew Jackson, for example, who his decision; now let him enforce it!”
THE RISE OF THE RULE OF LAW 129 The opinion of the judges unconstitutional. Judicial opinion laws that it believes violate the rights has no more authority was divided on whether the decision of an individual. For example, in over Congress than the represented the Court defending Brown v. Board of Education of opinion of Congress has the Constitution or promoting Topeka (1954), the Supreme Court economic and business interests. overturned state laws that allowed over the judges, and on that the existence of racially segregated point the President is Detractors of judicial review schools. And in 2015, the Court ruled independent of both. argue that it is a role the Supreme that the Fourteenth Amendment Andrew Jackson Court has taken upon itself and that requires that all states must legalize nowhere has this power of legislative same-sex marriage. While these 7th US president (1829–1837) supremacy been overtly described. progressive rulings have been For this reason, its legitimacy has held up as examples of the value states that the government should often been called into question. In of judicial review, many scholars not interfere unduly with the rights many countries (Canada, Australia, point out that, should a president of an individual. The ruling argued and the UK, for example), legislation on nominate a number of conservative that bakers should have a “right” to contentious issues, such as same-sex judges to the Supreme Court (as negotiate working contracts without marriage or abortion, is decided after President Trump has done), the the interference of the state and parliamentary debate by elected balance of power could swing to that the Bakeshop Act was therefore representatives. In the US, issues can a more conservative agenda, with be debated in Congress, but the the effect that landmark rulings— decision of Congress may ultimately such as Roe v. Wade, which legalized be upheld only by the judges. The idea abortion—could be challenged. ■ that elected legislatures are to be held to account by unelected judges is, to The present Supreme Court some, an affront to democracy itself. building, in Washington, DC, opened in 1935. Until then, the Court had no More recently, judicial review has permanent home, meeting in various been seen as increasingly important locations over the previous 146 years. in the protection of civil rights, since the Supreme Court can strike down
130 ESCVHIVEAIRLLYLRFEIGRNHEJTNOSCYHMAN THE NAPOLEONIC CODE (1804) IN CONTEXT T he leaders of the French 1800, he quickly took control of Revolution (1789–1799) the special commission charged FOCUS recognized the urgent with overhauling France’s laws. Law codes, civil rights need for an overarching legal code The commission met more than for France. Historically, differing 80 times over the next 4 years BEFORE customary laws had developed to formulate the Napoleonic Code, 6th century ce The Corpus across the French regions. To with Napoleon frequently overseeing juris civilis of Roman law complicate matters, marriage and the discussions. provides a foundation for civil family life came under separate law across much of Europe. canon law (laws made by the Roman The Revolution had paved the Catholic Church), and other laws had way for the new Code by abolishing 1215 England’s Magna Carta been created by royal decree. This the monarchy, suppressing the includes a number of civil and had resulted in a confusing array power of the Church and medieval human rights. of conflicting legislation, and many trade guilds, and creating a new feudal lords had secured exemptions. French national identity. The Code 1791 The first 10 amendments To consolidate its power, the new to the US Constitution of 1787 National Assembly set up a special form the Bill of Rights. commission to overhaul the legal system and establish a civil code AFTER for the whole nation based on the 1881–1883 Egyptian politician Revolution’s key principles. Youssef Wahba translates the Napoleonic Code into Arabic. Napoleon takes charge When the Revolution descended 1896 Germany promulgates into the murderous chaos known its own Civil Code, which as the Reign of Terror, General also influences those of Japan Napoleon Bonaparte seized power (1896), Switzerland (1907), in 1799. Elected as First Consul in Turkey (1926), and others. The Napoleonic Code is based on the 2012 The Commission French Revolution’s ideals of liberty, supérieure de codification equality, and fraternity in a united recommends that French legal France, spelled out on the banners and codes are no longer updated. shield of this 1792 Revolutionary poster.
THE RISE OF THE RULE OF LAW 131 See also: The origins of canon law 42–47 ■ Magna Carta 66–71 ■ The US Constitution and Bill of Rights 110–117 ■ The Declaration of the Rights of Man 118–119 French laws—based The Revolution on canon or customary abolishes the monarchy laws—differ across and curtails the power the nation. of the Church. The Revolutionary ideals Napoleon seizes Napoleon Bonaparte of liberty and equality the chance to reform Born in 1769 in Corsica, inspire the new laws. the legal system. Napoleon was educated in France from the age of 9, The Napoleonic Code is based on civil rights, later attending a military equality, and a secular state. academy in Paris. He forged a successful military career, was built around key Revolutionary Germany and Italy—all introduced it, rising through the ranks and, in ideas—the principles of civil liberty as did a number of Latin American 1795, he played a major role (basic human rights and freedoms countries. Its influence is also in suppressing rebels opposed under the law), equality, and a evident in the law codes of some to the National Convention, secular state where people had the Middle Eastern nations. In many the first government of the right to religious dissent. By making countries that adopted it, the Code, French Revolution. In 1799, all (male) citizens equal before the although updated and revised, is still however, he took advantage law, it sought to end primogeniture the cornerstone of civil laws today. ■ of the power vacuum to seize (the eldest son’s right to inherit control in a coup d’état. property), hereditary nobility, and My real glory is not the class privilege. It protected men’s forty battles I won … Napoleon crowned himself property rights, but women were emperor in 1804 and launched legally subordinate to fathers or What nothing will a series of military campaigns husbands. The Code divided civil destroy, what will live to expand the French Empire, law into property and family law and forever, is my Civil Code. conquering swathes of codified criminal and commercial Napoleon Bonaparte continental Europe and law. A new freedom to form ousting Spain as a colonial contracts without government power in much of Latin interference was also included. America. In 1812, he was forced to abdicate after a An enduring influence disastrous invasion of Russia The Napoleonic Code was highly but returned to power in 1815. influential. Countries under the After defeat by the British control of France in 1804—including at the Battle of Waterloo, Belgium, Luxembourg, and parts of Napoleon was exiled to the island of St. Helena, off the western coast of Africa, where he died in 1821. He left behind numerous letters, speeches, addresses, and proclamations to his troops, some of which were collected and published.
LGOPEOPTRFETRSSHEEEED THE ABOLITION OF THE SLAVE TRADE ACT (1807)
134 THE ABOLITION OF THE SLAVE TRADE ACT IN CONTEXT How does the slave differ included MPs, who incited fears from his master, but that restricting the trade would FOCUS by chance? aid Britain’s rivals, such as France. Human rights Thomas Clarkson By the 17th century, Britain, the BEFORE An Essay on the Slavery Netherlands, France, and Denmark 1772 The case of an escaped and Commerce of the had become major players in the slave in Somerset v. Stewart Human Species, 1786 transatlantic slave trade to furnish sets a precedent for the their respective colonies with illegality of slavery in England. Arabia. Portuguese and Spanish labor. Britain controlled two-thirds navigators discovered the African of the trade, supporting slavers 1787 British campaigners form slave markets in the mid-15th with laws such as a series of the Society for Effecting the century, and a slave trade triangle Trade and Navigation Acts. Abolition of the Slave Trade. began to emerge in the 16th century. European ships took goods Slaves as property AFTER to Africa’s west coast to exchange In 1677, the solicitor-general’s 1865 The US abolishes slavery. for slaves. The ships crossed the ruling that “negroes” be classified Atlantic, on the Middle Passage, to as property under the Trade and 1888 Brazil’s Lei Áurea (Golden sell their human cargoes in South Navigation Acts was confirmed by Law) makes it the last country America (especially Brazil) or the the Butts v. Penny case of the same in the West to ban slavery. Caribbean, mostly to plantations. year. Slave owners could now use Then tobacco, sugar, molasses, and property law to claim for lost or 1926 The League of Nations’ rum (and later cotton) filled the “damaged” slaves, reducing them Slavery Convention requires ships for the homeward voyages. to mere commodities. member states to eliminate slavery from their territories. Conditions during the 5,000- Many plantation owners brought mile (8,000-km) Middle Passage slaves back to Britain to work as 1948 The Universal were horrific. Sickness was rife due servants. Over the years, a number Declaration of Human Rights to brutal treatment, scarce food and of slaves had escaped from their states that “no one shall be water, and acute overcrowding. By masters and appealed to the courts held in slavery or servitude.” 1867, about 2.5 million of 10–12 for their freedom, most notably in million Africans had died on the case of Somerset v. Stewart. S lavery is a system that treats ships during the Middle Passage. James Somerset was a slave who people as property to be had been brought to England by his owned and controlled, with White European slavers (slave owner, Charles Stewart, and had no regard for their rights as human traders) portrayed slaves as savages beings. It existed in some form in to dehumanize them. They even I cannot say this case is almost every ancient civilization, painted themselves as saviors allowed or approved by the from Egypt and India to China and and Africans as lucky to be taken law of England; and therefore Rome, and has persisted through to better lives in the New World. [the slave] must be discharged. medieval to modern times. Slavery Slavers made huge profits, and those was a major industry in Europe involved became rich and powerful. William Murray, from the 16th to the 18th centuries, In Britain, the West India Lobby 1st Earl of Mansfield until protests against the trade’s of slavers and plantation owners atrocities became widespread. Somerset v. Stewart ruling, 1772 The trade triangle In medieval Africa, slaves had been traded between countries or tribes and to supply Islamic countries in
THE RISE OF THE RULE OF LAW 135 See also: Slave codes 98–101 ■ The US Constitution and Bill of Rights 110–117 ■ The US Supreme Court and judicial review 124–129 ■ The Universal Declaration of Human Rights 222–229 ■ The Civil Rights Act 248–253 escaped. He was recaptured and was subject to English law. As no The slave ship Brookes became put on a boat bound for Jamaica English law permitted Somerset’s notorious in 1788, when abolitionists to be resold. Abolitionist Granville recapture and forcible shipping published an engraving of the appalling Sharp took up his case and Lord to Jamaica, he had to be freed. yet legal conditions onboard, including Mansfield, the lord chief justice, The judge tried to make a ruling its crammed lower deck. issued a writ of habeas corpus (an that freed Somerset without order to bring a person under arrest setting a precedent, but the case as a disputed insurance claim before a judge or court to decide was a watershed moment in the rather than as mass murder. Such whether the detention is lawful). abolitionist movement. It was rank injustice brought many more Somerset duly appeared before widely seen as outlawing slavery people to the abolitionist cause. the Court of King’s Bench. in Britain, allowing other slaves to plead for their own freedom. Abolitionist campaigns Lord Mansfield ruled in 1772 In 1787, 12 activists founded the that, although slavery was allowed In Britain, growing opposition Society for Effecting the Abolition in the colonies, a slave in England to the slave trade was fueled in of the Slave Trade at a printing part by atrocities such as the Zong shop in London. They included massacre. In 1781, due to severe Thomas Clarkson, who had recently overcrowding on the slave ship published an influential essay Zong, Captain Luke Collingwood condemning slavery. The society’s commanded 132 sick slaves be many women supporters—10 thrown overboard. (If any slaves percent of its subscribers in the died of sickness, insurers would first year were women—included not pay compensation, but would prominent abolitionists Quaker do so if the slaves had been killed poet Mary Birkett Card, evangelist to safeguard the ship.) In law, Hannah More, and feminist slaves were viewed as commodities philosopher Mary Wollstonecraft. rather than people, so it was treated To inform popular opinion on A replica of Zong, the ship from the arguments against slavery, the which slaves were thrown to ease society’s network of campaigners overcrowding, took part in events in produced pamphlets, hosted London in 2007 to mark 200 years since talks, and secured signatures on the Abolition of the Slave Trade Act. petitions. The goal was abolition ❯❯
136 THE ABOLITION OF THE SLAVE TRADE ACT Olaudah Equiano of the slave trade because it seemed Is one half of the more achievable than the outright human species, like the Kidnapped as a child of about outlawing of slavery. The campaign poor African slaves, to 11 from his Nigerian home, quickly gained momentum. In 1788, be subject to prejudices Olaudah Equiano was shipped in just 3 months, more than 100 that brutalize them …? across the Atlantic, ending up anti-slavery petitions were delivered Mary Wollstonecraft in the plantations of Virginia. to Parliament. He was sold to a Royal Navy A Vindication of the Rights officer, Lieutenant Michael One of the campaigners’ key of Woman, 1792 Henry Pascal, who renamed concerns was to give a voice to the him Gustavus Vassa (after a Africans themselves by providing as “radical.” This frustrated early 16th-century Swedish king). evidence and testimonies from efforts in Parliament to end slavery; escaped slaves and from sailors anti-slavery bills were repeatedly Equiano spent 8 years at of slave ships, as well as accounts blocked by the vested interests of sea and, while with Pascal, from freed slaves such as Olaudah those who profited from slavery and learned to read and write and Equiano (see left). He was literate, feared a collapse of the old order. was baptized in 1759. He was charming, and a Christian convert later sold on to Philadelphia (which mattered in a fervently Unable to vote, let alone stand merchant Robert King, who Christian society). Such stories for election, women were largely allowed Equiano to trade a helped rehumanize Africans in the barred from taking an active role in little for himself. Within 3 eyes of the public and forced it to politics at this time, but activists years, in 1766, he was able to face the brutal reality of slavery. such as Hannah More and Mary buy his freedom. He worked Wollstonecraft used their influence on ships for the next 20 years, The idea of human rights and writings to effect change. then settled in London in 1786, Revolutions in the US (1775–1783) The burgeoning women’s rights where he became involved in and France (1789–1799) made the movement saw the oppression the abolitionist movement. late 18th century a period of political of women reflected in the plight of turmoil. Such popular movements African slaves and often equated In 1789, Equiano published highlighted the concept of human the two issues in their campaigns. his autobiography, one of the rights and inspired people to first books by a black African engage with activism. However, writer. It was hugely popular, the threat of revolution made the and Equiano toured around British Parliament cautious. As the country to tell his story. the abolitionist movement grew in He died in London in 1797. strength, it began to be portrayed Key work Slave revolts While abolitionists were lobbying 1789 The Interesting Narrative the British Parliament, slaves in the of the Life of Olaudah Equiano, Caribbean were taking matters into or Gustavus Vassa, the African their own hands. In Jamaica, the Maroons—escaped slaves and their descendants—had fought British colonialists for years and, in 1739, Emotive designs, such as this by British potter Josiah Wedgwood in 1787, were used on medallions and other items to support the abolitionist cause.
THE RISE OF THE RULE OF LAW 137 In the Haitian Revolution, slaves fought in a series of battles with French troops (shown here), as well as with British and Spanish colonialists, between 1791 and 1804. won a settlement of land. In the In 1806, abolitionist James Stephen Despite widespread public support French colony of Saint-Domingue advised Wilberforce to change tack for abolition, Parliament did not on the western end of the island of and introduce a bill to stop Britons allow an outright ban on slavery Hispaniola, slaves began an armed from trading slaves with foreign until the 1830s. The economic revolt in 1791. Toussaint L’Ouverture, territories. As Britain was at war climate had changed: British-run a freed slave and skillful soldier, with France, the bill was presented Caribbean sugar plantations were played a leading role in the struggle as a patriotic effort to harm French now much less profitable than for control of Saint-Domingue and interests and was passed. However, those in Brazil and Cuba. So British its neighbor, Santo Domingo (later as Wilberforce hoped, it caused a merchants pressed for free trade and the Dominican Republic). collapse in the British slave trade an end to the Caribbean monopoly and paved the way for the 1807 of the British sugar market. The uprisings eventually won Abolition of the Slave Trade Act. Saint-Domingue, now called Haiti, Passed with a majority of 114 to 15 The 1833 Slavery Abolition its independence from France in in the House of Commons, the 1807 Act freed only those aged under 1804, making it the first country Act made it illegal to engage in slave 6 years; older slaves became to be governed by former slaves. trading in the British Empire or to “apprentices,” compelled to work These early slave revolts inspired carry slaves in any British ship, but for their former owners for a number other slaves in the Caribbean to did not compel the freeing of all of years. The territories controlled take agency in the fight for freedom. slaves. That became the goal of the by the British East India Company— next phase of the abolition campaign. for example, Ceylon (now Sri Parliament’s ban Lanka)—were also exempt, but From 1787, British parliamentarian The Royal Navy patrolled the slavery was otherwise outlawed William Wilberforce became a coast of Africa to enforce the ban across the British Empire. leading abolitionist and strove for on trading slaves. Between 1807 20 years to bring anti-slavery bills and 1860, it stopped many British America and slavery before Parliament. Despite great vessels and liberated over 150,000 Slavery was key to the economy public support, politicians were slaves, but enforcing the Act was a of the Southern colonies of the US, unwilling to vote for an outright ban huge task. Rogue British merchants where slaves were used to do the on slavery, fearing it would harm often evaded it by operating under grueling work on plantations of British business interests. other countries’ flags. cotton and other cash crops that ❯❯ A trade founded in iniquity, and carried on as this was, must be abolished … William Wilberforce Speech to Parliament, 1789
138 THE ABOLITION OF THE SLAVE TRADE ACT thrived in the warm, humid climate. any “person held to service or labor,” the Africans were not property, but In the North, where different crops effectively acknowledging the free persons who had been illegally were grown, fewer slaves were used institution of slavery across the kidnapped and brought to Cuba. to work the land. US, which would continue for eight more decades. Dred Scott v. Sandford Many in the North favored Since 1643, various Acts had abolition and, during the In 1839, the case of the slave compelled the return of escaped Revolutionary War (1775–1783), ship, La Amistad, galvanized slaves to their masters. The 1850 they equated British rule with the opinion. Two Spanish plantation Fugitive Slave Act included fines practice of slavery. The North–South owners had sailed from Cuba for anyone interfering in rendition divide on slavery became so intense with 53 slaves, who broke free and of slaves and forced citizens to aid that the two sides could only adopt ordered the owners to sail to Africa. in their recapture. Some Northern the US Constitution in 1787 by After sailing off course, the ship states issued their own laws to try omitting the slave trade issue from and slaves were impounded as to nullify its impact. its articles. Yet, in 1788, the ratified salvage in Connecticut. A 2-year Constitution had clauses that legal battle involving Spain ended In 1856, the US Supreme Court guaranteed the rights to repossess with the US Supreme Court ruling heard the Dred Scott v. Sandford case. Dred Scott was born a slave, Testaments from escaped or freed but his owners had lived for a time slaves raise public awareness of brutalities in Wisconsin and Illinois, where slavery was outlawed, before they and serve to rehumanize slaves. returned to Missouri, a slave state. So Scott applied to the court to be Revolutionary The women’s set free, with his wife Harriet. movements rights movement equates oppression In 1857, Chief Justice Roger B. in the US and France Taney ruled against Scott, stating introduce the concept of of women that all people of African descent, with slavery. slaves or not, were “beings of an human rights. inferior order,” not US citizens, so they could not bring a suit in a federal court. This controversial ruling was a factor in igniting the Civil War (1861–1865) between the North and the slave-owning South. Public opinion turns against the horrors Neither slavery nor of the slave trade. involuntary servitude … The UK parliament overwhelmingly supports the 1807 shall exist within the Abolition of the Slave Trade Act, which takes effect in all United States, or any its territories. The US government follows suit in 1865. place subject to their jurisdiction. US Constitution, Thirteenth Amendment
THE RISE OF THE RULE OF LAW 139 1 2 3 23 Key: 23. New Hampshire 6 9 22 24 1. Washington Territory 24. Maine 11 2. Nebraska Territory 25. Delaware 43 5 4 15 17 21 3. Dakota Territory 26. Maryland 7 42 10 16 20 4. Colorado 27. Virginia 12 13 14 5. Utah 28. North Carolina 34 27 19 6. Oregon 29. South Carolina 8 35 28 18 7. California 30. Georgia 33 29 25 8. Kansas 31. Florida 32 30 26 9. Minnesota 32. Alabama 10. Iowa 33. Tennessee 41 40 36 11. Wisconsin 34. Kentucky 39 37 12. Illinois 35. Missouri 1861 13. Indiana 36. Arkansas 38 14. Ohio 37. Mississippi Slave states 15. Michigan 38. Louisiana Free states 31 16. Pennsylvania 39. Texas 17. New York 40. Indian Territory Slave territories* 18. New Jersey 41. Neutral strip 19. Connecticut 42. New Mexico 20. Rhode Island 21. Massachusetts Territory 22. Vermont 43. Nevada Territory Free territories* * Territory: region directly ruled by federal government Slave states numbered 15 in 1861 at Slave states 1789 1800 1821 1837 1846 1858 1861 the start of the Civil War, up from 8 in Free states 8 9 12 13 15 15 15 1789, but were now outnumbered by 19 5 8 12 13 14 17 19 Free states. At the war’s end, slavery was banned in all US states and territories. President Abraham Lincoln’s laws, called “black codes,” that false charges) were sent to work advocacy of abolition strengthened restricted the rights of freed slaves, in dangerous workplaces, such as the more the Southern Confederacy many in the North were outraged. brick factories, plantations, and threatened the Union (Northern mines, to “pay off” their fines. States of America). In 1863, his In 1866, Congress passed the This trapped workers in a cycle of Emancipation Proclamation declared Civil Rights Act: anyone born in unpaid work and mounting debt. free all slaves in rebellious states. the United States had the right to The 1964 Civil Rights Act banned It did not apply to slave states loyal citizenship and equality before the racial segregation and employment to the Union, but did allow black law. Congress then took control of discrimination, which had been men to enlist. After the Union’s reconstruction in the South and used in the South to stop black victory, the Thirteenth Amendment took care to enforce the Fourteenth people exercising their freedoms. was ratified in 1865, abolishing Amendment, which granted equal slavery across the US and setting protections under the Constitution Slavery today more than 4 million slaves free. to former slaves. In 1870, Congress Debt slavery continues in the 21st adopted the Fifteenth Amendment, century. Britain passed the Modern Limited rights which guaranteed that a citizen’s Slavery Act in 2015 to outlaw such After the Civil War, President right to vote could not be denied practices as compelling migrant Andrew Johnson was eager to allow “on account of race, color, or workers to work to pay off human Southern states to set their own previous condition of servitude.” traffickers. However, despite a raft laws, provided that they recognized of similar legislation, vulnerable the Thirteenth Amendment and Although slavery was officially people continue to be exploited repaid their war debts. When the abolished, in the Deep South, a across the world, with up to 45 Southern states began passing practice called “peonage” persisted million people effectively enslaved. ■ into the 1920s. African Americans who had been convicted (often on
140 IN CONTEXT DPVUIISGRCIILTRAYEN,TCAIOEC,NTAIVNIDTY, FOCUS Law enforcement THE METROPOLITAN POLICE ACT (1829) BEFORE 1666 King Louis XIV of France creates the first system of policing in Paris. 1749 London’s first salaried police, the Bow Street Runners, form to tackle high crime rates. 1786 The Dublin Police Act creates a uniformed, metropolitan police force in Dublin, Ireland. AFTER 1835 The Municipal Corporations Act requires each British local council to appoint a paid constable to keep the peace. 1878 The UK’s Criminal Investigation Department (CID) starts up, with more emphasis on solving crimes. 1919 Sofia Stanley is the Metropolitan Police’s first female recruit. T he ancient Egyptians, Greeks, and Romans all had a loose form of policing for maintaining public order and keeping watch at night. In medieval England, the Anglo- Saxons took this idea further with the Statute of Winchester in 1285, which directed all citizens to keep the king’s peace, making policing a collective responsibility. These and other early forms of policing did not extend to investigating or prosecuting crimes, such as theft or assault, which were considered to be private matters between individuals.
THE RISE OF THE RULE OF LAW 141 See also: Trial by ordeal and combat 52–53 ■ The Assize of Clarendon 64–65 ■ The abolition of the death penalty 151 ■ INTERPOL 220–221 ■ The Federal Witness Protection Program 259 ■ Megan’s Law 285 It is much better to 17th century, and even minor pursue criminals on behalf of the prevent even one man misdemeanors such as stealing could court. The initial six constables from being a rogue than be punished by death. Because this were paid by central government apprehending and bringing brutal form of justice had the and used organized methods most impact on the poor, social of dealing with crime. However, forty to justice. campaigners began to call for reform. they were not a preventative force John Fielding because they could only act after The Bow Street Runners a crime had been committed. An Account of the Origin and Effects In the 18th century, the long-running Despite being limited to a small of a Police Set on Foot etc., 1758 British system of constables began area of London, the idea of the Bow to fail as many of the better-off Street Runners as a professional In 1361, the Justice of the Peace people selected to serve pro bono police force proved influential. Act created a network of justices (without payment) bought their of the peace (JPs, or magistrates) way out of the responsibility, Calls for reform across England to enforce order complaining that it took them away By the late 18th century, London with the aid of part-time, unpaid from their own affairs. As a result, was booming, crime levels were constables and watchmen who the position often went to those soaring, and the military were often were elected and later appointed without a job—the old, the sick, or called in to quell rioting. Magistrate by the local JP. They were also to the poor—who struggled to carry Patrick Colquhoun pushed for police be supported by the public. For out their duties. reforms in his A Treatise on the example, if someone shouted “Stop, Police of the Metropolis (1796) and thief!” the public were expected to In 1749, magistrate and author later called for efficient and highly pursue and apprehend the accused Henry Fielding, along with his motivated policemen with strong person until a constable or brother John, established the Bow moral values. Colquhoun’s theories watchman arrived to arrest them. Street Runners, a small team of were tested in 1798, when he took salaried police working from charge of the newly created Marine From the 16th century, wealthy London’s Bow Street Magistrate Police (which later became the merchants began to group together Courts. They did not patrol the Thames River Police). This salaried ❯❯ to pay for private “thief-takers,” streets but could serve writs or known as stipendiary police, who would recover stolen items for a fee—but this system benefited only the rich and was open to corruption. Deterrents were the main method of enforcing law and order in the The Bow Street Runners, London’s first salaried police force, are shown in their blue coats apprehending two men identified by a third as muggers who had made a career of robbing travelers.
142 THE METROPOLITAN POLICE ACT Policing begins as Privately paid, Capital punishment a social obligation or stipendiary, police for even minor crimes receive fees for making of all citizens. arrests and are open is widely used in an effort to to corruption. deter crime. Robert Peel establishes Reformers promote Unpaid local constables the Metropolitan Police the idea of preventative are ineffectual in in 1829 as a professional the face of soaring policing. population and force focusing on crime in London. crime prevention. force was groundbreaking in that odds with an organized police force soldiers, resulting in 18 deaths they took part in regular patrols— run by the state. It was likewise and many injuries. The public were this visible deterrent proved feared that a standing police force outraged and Parliament, fearing successful, as crime on the river would be open to corruption or more violence, knew it had to act. dropped notably. misuse for political ends. Creating a new police force The government resisted The weaknesses in allowing the Politician Robert Peel led the call growing calls for a similar model to army to handle law and order were for police reform in London, which by be rolled out across Britain’s cities, laid bare in the excessive use of the 1820s had a booming population as the cost would likely require force that resulted in the Peterloo and a crime rate to match. While a rise in taxes—never a popular Massacre of 1819 in Manchester. chief secretary in Ireland, Peel had move. Also, the dominant political Huge but peaceful crowds of been inspired by the success of ideology of the time argued for light protestors calling for parliamentary Dublin’s police force. As home state intervention, which seemed at reform were charged by armed secretary, he focused on pushing through legislation to create a similar police force for London, arguing that lack of law and order in the capital was creating instability. By 1829, he had gained enough support for the Metropolitan Police Act to be passed. The Metropolitan Police Act created a full-time professional police force for the London area that answered to the home secretary. Constables wore uniforms to make them easily identifiable, in blue Use of heavy-handed armed forces led to the 1819 Peterloo Massacre in Manchester, where peaceful demonstrators were calling for parliamentary reform.
THE RISE OF THE RULE OF LAW 143 The primary object of Parliament. The County and Borough Robert Peel an efficient police is the Police Act of 1856 then required all prevention of crime: the next … British towns and counties to establish Father of modern policing and detection and punishment their own police forces. By 1900, there son of a wealthy industrialist were 181 police forces across Britain, and baronet, Sir Robert Peel of offenders … but communication between them was was born in 1788 and educated Richard Mayne scant, so many country forces were at Harrow and Oxford amalgamated into regional police University. He entered the UK British justice of the peace forces to foster greater cooperation Parliament as a Conservative (1796–1868) in policing across the nation. MP in 1809 and held a number of important roles, including rather than the army’s red, and Adopting the British model chief secretary for Ireland were unarmed. Police constables Many Commonwealth countries from 1812 to 1818. But it was (known as “bobbies” or “peelers” and the US based their police forces on as home secretary from 1822 after Robert Peel) were paid more the British model, which focused that Peel was to leave his than a laborer but less than a skilled on crime prevention and community mark, instigating prison worker and, to stem corruption, they ties and was viewed as less open reform and establishing were no longer allowed to take fees to corruption than municipal police the Metropolitan Police. for recovering stolen goods. Until forces in continental Europe. The 1897, constables were banned from first centralized municipal US Peel later served twice as voting in elections to show that police force was formed in 1838 in prime minister, in 1834–1835 they had no political allegiance. Boston, with New York following and 1841–1846. In 1846, he soon after in 1845. However, the US successfully repealed the Corn The new police force was the police system soon diverged, as it Laws (trade restrictions and first to prioritize crime prevention, became decentralized and based on tariffs designed to protect patrolling streets and keeping order by local communities—often with domestic grain producers) to working with the local community. At strong ties to local politics, making free up grain to send to Ireland first, people were hostile; they felt that some forces open to corruption. and relieve the potato famine uniformed officers telling them what there. He also introduced the to do was too much state interference Today, Britain’s police service has Factory Act of 1844, restricting in their daily lives. However, as crime expanded its remit to include crime the number of hours women levels across London began to fall, detection, undercover policing, anti- and children could be made to public opinion started to shift. terrorism, and fighting cybercrime. work in factories. This, coupled Yet, at its root, it is still based on the with the Mines Act of 1842— Going nationwide 1829 principle that the police and which banned women and By 1835, many newly formed local the public are synonymous. ■ children from working in the councils were appointing paid mines—was significant in the constables. The Rural Constabulary The police are the reform of Victorian working Act of 1839 allowed counties to public and the public practices. He died in 1850, establish their own police forces. after a fatal fall from his horse. Professional forces slowly spread are the police. across Britain, each overseen by a Metropolitan centralized command with power Police’s General derived from the law itself— Instructions, 1829
144 BSAAYLNHLDAWLCVALOOYBNIDOETFRNAGUCALTMLSING THE GAMING ACT (1845) IN CONTEXT Gaming and betting grow in popularity in the 18th century. FOCUS Increasing numbers of legal cases are brought Gambling regulation to recover gambling debts. BEFORE The 1845 Gaming Act makes gaming 1254 King Louis IX bans contracts null and void. gambling in France, in the first of many such edicts. Gambling debts are no longer legally recoverable in the courts. 1541 In England, the Unlawful G aming (playing games of ruin and negative social effects it Games Act outlaws pastimes chance, such as dice) and often brings—or legalized in order deemed distracting to the wagering (placing a bet on to regulate it, protect participants, public, such as dicing tables, an expected outcome) have long and tax it to boost state funds. card tables, bowls, and tennis. presented a dilemma to legislators. Often decried as a moral scourge Although certain new games AFTER by politicians and religious leaders, were, in theory, outlawed in 1541 in 1853 The Betting Act makes gambling has been variously England, with the aim of preventing it illegal to use any premises prohibited—due to the financial the public from neglecting their for betting in the UK. archery practice, the prohibition was 1910 The state of Nevada is one of the last in the US to ban casino gambling. 1931 The first casino opens in Las Vegas after the Nevada authorities legalize gambling due to its economic benefits. 2005 The UK Gambling Act makes wagers legally enforceable, ushering in an era of liberalized gambling.
THE RISE OF THE RULE OF LAW 145 See also: The Cruelty to Animals Act 146–147 ■ Hadley v. Baxendale 148–149 ■ The International Convention Against Doping in Sport 304 ■ The Match-Fixing Task Force 306–307 ■ The Open Internet Order 310–313 Aristocrats play dice at Crockford’s gentlemen’s club in London, 1843. William Crockford, a former fishmonger, made a vast fortune from the gambling losses of his club’s members. not practical to enforce. Gambling the law courts. The legislation was gangs. In 1949, a Royal Commission was ever popular in many countries criticized as overly paternalistic was tasked with investigating and cultures. In Britain, by the dawn and at odds with the principles of betting, lotteries, and gaming. Its of the Georgian era in the early 18th free choice. Why, libertarians asked, conclusions resulted in the 1960 century—a time of rapid social and should people be discouraged from Betting and Gaming Act, which economic change—it was booming. placing a wager of £10 on a sporting permitted licensed betting places Wagers were legal and enforceable event, when they could just as easily on Britain’s high streets, making under common law. Placing bets on lose a stake of £10 by investing it in gambling more widely accessible. boxing matches, bear-baiting, and the stock market? cockfighting was popular with the In the 21st century, the UK working class, while the aristocracy One effect of the new Act was government decided that gambling favored dice or card tables. to deter professional bookmakers should no longer be seen as morally (whose rising numbers had stoked dubious, but encouraged in the Legislation was introduced not the growth of problem gambling same way as other leisure sectors as a response to the moral concerns in the late 18th century) from allowing due to its economic potential. The of social reformers, but due to the bettors to make wagers on credit. 2005 Gambling Act boosted the increase in gambling disputes A bettor who had lost a bet could industry by regulating online being handled by the overstretched no longer be forced by law to pay gambling and removing planning courts. The Gaming Act of 1845 money owed. So bookmakers began obstacles to opening new betting ruled that gaming contracts were to take cash bets, spurring a growth places. It also restored the legal “null and void,” making gambling in cash-betting houses. The 1853 enforceability of wagers that had debts legally unenforceable. Betting Act suppressed betting been removed by the 1845 Act and houses and forced bookmakers to created the Gambling Commission Changing the rules take their business onto the streets, to regulate commercial gambling. ■ The 1845 Act did not make wagers a practice that was later outlawed illegal. However, it stated that court by a further Act in 1906. No Suit shall be actions seeking to recover “any brought or maintained in sum of money or valuable thing” Liberalizing legislation any Court of Law or Equity related to wagers would no longer In the early part of the 20th century, for recovering any Sum be permitted—effectively removing gambling went underground in the gambling from the jurisdiction of UK and was controlled by criminal of Money or valuable Thing alleged to be won upon any Wager … Gaming Act, 1845
146 NFBEOOLUILNNOJDWUTR-OCYRDTEOOATURES THE CRUELTY TO ANIMALS ACT (1849) IN CONTEXT H istorically, people had practices of attaching a plow to a viewed animals either horse’s tail and tearing wool from FOCUS as wild forces of nature, a sheep’s back. In New England, Animal welfare law imbued with magical or even too, the Massachusetts Body of demonic powers, or as property. By Liberties (1641), one of the first legal BEFORE the 17th century, some people had codes in America to set out people’s 1764 In “Bêtes” (“Beasts”), begun to recognize that animals rights and responsibilities, included an entry in his Dictionnaire needed legal protection from rules against “Tirranny or Crueltie” Philosophique, Voltaire argues unnecessary suffering. In 1635, the toward domestic animals—any that animals are sentient. Parliament of Ireland passed an specifically kept “for man’s use.” “Act against Plowing by the Tayle, 1822 The first national law and Pulling the Wooll off Living In the 18th century, as the ideas against animal cruelty is Sheep” to prevent the Gaelic Irish of the Enlightenment gathered pace passed, in the UK. in Europe, there was a growing 1835 Revised British animal The Enlightenment Christians feel a cruelty laws ban cockfighting promotes the idea growing moral duty to and bull- and badger-baiting. prevent the suffering that animals feel and AFTER therefore suffer. of animals. 1911 The Protection of Animals Act extends cruelty Legal protection is initially extended only laws to cover all animals. to economically important farm animals. Lobbying by the Society for the Prevention of Cruelty to 2006 The UK Animal Welfare Animals increases public awareness of animal suffering, Act makes owners responsible for ensuring their animals have and the Cruelty to Animals Act passes. a suitable environment and diet and protection from injury, disease, and suffering. 2019 In the US, extreme animal cruelty becomes a federal crime.
THE RISE OF THE RULE OF LAW 147 See also: The “Vivisection Act” 163 ■ The Endangered Species Act 264–265 ■ The World Network of Biosphere Reserves 270–271 ■ The Kyoto Protocol 305 Our treatment of animals— as Martin’s Act, after the MP and Animals Act was passed, which of creatures wholly animal rights campaigner Richard banned all animal baiting and Martin, it legislated against cruelty fighting and prevented the beating subject to our control, to farm animals such as cattle, or overworking of domestic animals may be regarded as an sheep, mules, and horses. Heyrick’s and any transportation of animals accurate criterion of our campaign continued with the that caused them harm. Anyone publication of Cursory Remarks on breaking the law—or causing or humanity toward the Evil Tendency of Unrestrained procuring someone else to break our own species. Cruelty in 1823, which targeted the animal cruelty laws—could be fined. Elizabeth Heyrick cruel goading of animals before slaughter at Smithfield, London, A wider debate philosophical debate about whether the UK’s largest meat market. It was not until 1911 that the animals were sentient (able to feel). Protection of Animals Act granted Philosophers Voltaire and Jean- The Society for the Prevention protection to “all animals,” although Jacques Rousseau in France and of Cruelty to Animals was set up this still excluded wild animals, Jeremy Bentham in England all wrote in 1824 and became a powerful animals eaten as food, and those about animals’ capacity to suffer lobbying force, attracting greater used in scientific experiments. Once physical pain or even have feelings. public support to the cause. In it was widely accepted that animals Gradually, thinking about the 1835, animal cruelty laws were could suffer, those excluded areas mistreatment of animals in terms updated to ban cockfighting and also began to be discussed. of economic loss for an animal’s bull- and badger-baiting and to owner shifted to the idea of treating include protection for animals such In the UK, the Hunting Act of animals kindly for their own sake. as dogs and cats. 2004 banned the hunting of wild animals (such as foxes) with dogs, By the 1840s, public opinion and the Animal Welfare Act of 2006 had swung firmly in favor of greater made owners responsible for their protection for animals. Animal pets’ welfare. In the US, for the first cruelty prosecutions increased, time, the PACT (Preventing Animal especially those involving knackers’ Cruelty and Torture) Act of 2019 yards, where horses awaiting made extreme animal cruelty a slaughter were often denied food federal (national) crime. ■ or water. In 1849, the Cruelty to A duty to protect As consensus grew that people had a duty to protect animals, British Quaker philanthropist Elizabeth Heyrick launched a campaign in 1809 against bull-baiting and later battled for the protection of all farm animals. In 1822, the UK became the first country in the world to pass an animal welfare law. Known Bull-baiting, setting dogs on a tethered bull, had been popular at fairs until the 1840s. Those who opposed it were also concerned about the gambling and fighting that accompanied such events.
148 FSTAHHIEORULDYLADMCOBANEGSESIDERED HADLEY V. BAXENDALE (1854) IN CONTEXT According to the Hadley v. Baxendale ruling, damages for breach of contract can be FOCUS Contract law recovered in either of these two circumstances: BEFORE Where the loss Where the loss could 531 ce The duplum (“double”) could reasonably reasonably have been rule in Roman law under be considered to contemplated by both Byzantine emperor Justinian I arise naturally from parties when the contract states that the amount of damages should be limited to the breach. was made. twice the contract obligation. T he ruling of an English grain. The crankshaft of the mill’s 1839 In the Blanchard v. Ely court of appeal in the 1854 steam engine had broken and had case, a US court cites French case of Hadley v. Baxendale to be replaced. While it was out of civil law as a precedent for proved to be influential in the action, the mill had to shut, losing the rule of foreseeability in development of modern contract the brothers business, so they awarding damages in breach law. The case hinged on whether urgently required a replacement. of contract cases. a defendant in breach of contract can be held liable for damages The Hadleys ordered a new AFTER arising from a loss of earnings crankshaft from engineers W. Joyce 1949 An English court rules incurred as a result of the breach & Co. in Greenwich, London, and that “reasonably foreseeable” if the defendant was not made contracted the carriers Pickford & means “ordinary” but not aware of such a possibility when Co. (owned by Joseph Baxendale) “extraordinary” loss of profits, the contract was signed. to take the broken crankshaft to the in Victoria Laundry (Windsor) manufacturers the next day so that Ltd. v. Newman Industries Ltd. Joseph and Jonah Hadley were a new one could be cast. Although a proprietors of the City Steam-Mills clerk at Pickford & Co. assured the 1980 The United Nations in Gloucester, which processed brothers’ servant that, if sent by Convention on Contracts for the International Sale of Goods sets out an internationally adopted rule of foreseeability.
THE RISE OF THE RULE OF LAW 149 See also: The Lex Aquilia 34 ■ The Lex Mercatoria 74–77 ■ The Napoleonic Code 130–131 ■ The Workers’ Accident Insurance System 164–167 ■ Salomon v. Salomon & Co. Ltd. 178–179 ■ Donoghue v. Stevenson 194–195 noon, the broken crankshaft would Sir Edward Hall Alderson, the judge Hadley v. Baxendale be delivered the next day, the in the Hadley v. Baxendale case, was a is still, and presumably carriers did not send it for 7 days. Baron of the Exchequer, an appeals always will be, a fixed star This delayed the completion of the court that dealt with matters of equity. in the jurisprudential new crankshaft by 5 days, forcing His many rulings helped shape the closure of the mill for 5 days commercial law in the 19th century. firmament. longer than anticipated. Grant Gilmore Baxendale could only be liable As well as losing business for losses that were reasonably American law professor (1910–1982) during the additional 5 days, the foreseeable. He added that the Hadleys had to buy in flour for some Hadleys’ case would have had message about buying petroleum of their customers and pay wages some merit only if, when the was delayed. The judgment hinged to employees who were unable to contract was made, they had on whether the damages claimed work until the crankshaft was mentioned to Baxendale the special for were foreseeable. The court repaired. To recover their losses, circumstances—that the mill could concluded that they were not and they took Baxendale to court. not operate without a crankshaft awarded Hall only the cost of and, to secure the new one, the transmitting the delayed message. The rule of foreseeability broken one had to be delivered Initially, the jury at Gloucester urgently to W. Joyce & Co. Lasting impact Assizes found in favor of the Later cases have refined the rule of Hadleys and ordered Baxendale to It was a landmark ruling because foreseeability. In Victoria Laundry pay them £25. Baxendale appealed it created the first defined rule for (Windsor) Ltd. v. Newman Industries to the Court of Exchequer, arguing the limitations on damages for a Ltd. in 1949, the Court of Appeal that he had not known the Hadleys breach of contract. It was swiftly awarded the laundry damages for would suffer profit losses if the taken up as a principle by British Newman Industries’ failure to delivery of the crankshaft was and US courts and forms the basis deliver a boiler on time, ruling that delayed. Appeal judge Baron Sir of the US law of contract damages. losses as a result of having no boiler Edward Hall Alderson agreed and In 1888, for instance, the US were “reasonably foreseeable.” It ordered a new trial of the case. Supreme Court ruled that the excluded a higher level of damages Western Union Telegraph Company for the laundry’s loss of “particularly In his ruling, Alderson made was not liable for losses suffered by lucrative dyeing contracts,” as these two points which have become key George F. Hall of Iowa when his could not have been foreseen. precedents in contract law in the UK and the US. He stated that These special The principle of foreseeability circumstances were established in Hadley v. Baxendale never communicated remains significant. Parties to a by the plaintiffs to business contract now routinely include a simple limitation of the defendants. liability clause so that they can Baron Alderson avoid a legal dispute over what losses each ought to have foreseen. ■ Hadley v. Baxendale ruling
150 IWTNHHTEOHWICSOABMNOACONOKN?DEMN THE MADAME BOVARY TRIAL (1857) IN CONTEXT F rance in the 1850s was the censors to build a compelling under the authoritarian rule case. As a result, the trial only lasted FOCUS of Napoleon III, who had a day, and Flaubert was acquitted. Censorship seized power in 1851. He was the nephew of Napoleon Bonaparte Obscenity laws across the globe BEFORE and, like his uncle before him, have since been used to restrict the 1571 In France, the Edict of he restricted press freedom and public’s access to books that are Gaillon is issued to prevent exerted censorship over literary deemed morally reprehensible, such undesirable works from being works. This was in an effort to curb as Ulysses by James Joyce, which published. the individualism that had sprung was banned in both the UK and up during the French Revolution the US. Ironically, the main impact 1803 Napoleon decrees that (1789–1799) and was thought of such trials is that the works they every book must be submitted harmful to the unity of the French intended to suppress went on to to the Commission of Revision. Republic. In 1857, when Gustave become bestsellers. ■ Flaubert published his first novel— 1852 Napoleon III introduces Madame Bovary—about a bored Emma Bovary is shown here on her strict press censorship. housewife who embarks on a series deathbed, having committed suicide of affairs, he was indicted on by swallowing poison after her former AFTER charges of “outraging public and lovers refuse to help her pay her debts. 1857 French poet Charles religious morals and good manners.” Baudelaire goes on trial for obscenity in his collection The literary realism of the novel, Les Fleurs du Mal; the court in which Emma Bovary’s desires, bans six poems. extravagance, and adulterous actions receive no moral censure 1921 Ulysses, by Irish novelist from the narrator, led to concerns James Joyce, is banned in the that male readers might be aroused US after it is judged obscene. and female readers led astray. However, the way in which Flaubert 1960 In the UK, the publisher implied impropriety without overtly of Lady Chatterley’s Lover describing it made it difficult for by D. H. Lawrence is tried under a new obscenity law See also: The trial of Galileo Galilei 93 ■ The Statute of Anne 106–107 and acquitted. ■ The WIPO Copyright Treaty 286–287 ■ The Open Internet Order 310–313
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