In 1773 John Adams observed that one source of tension in the debate between England and the colonies could be traced to the different conceptions each side had of the terms "legally" and "constitutionally"--different conceptions that were, as Shannon Stimson here demonstrates, symptomatic of deeper jurisprudential, political, and even epistemological differences between the two governmental outlooks. This study of the political and legal thought of the American revolution and founding period explores the differences between late eighteenth-century British and American perceptions of the judicial and jural power. In Stimson's book, which will interest both historians and theorists of law and politics, the study of colonial juries provides an incisive tool for organizing, interpreting, and evaluating various strands of American political theory, and for challenging the common assumption of a basic unity of vision of the roots of Anglo-American jurisprudence. The author introduces an original concept, that of "judicial space," to account for the development of the highly political role of the Supreme Court, a judicial body that has no clear counterpart in English jurisprudence. Originally published in 1990. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. "A stimulating book and an authoritative one." ― Political Studies The American Revolution in the Law Anglo-American Jurisprudence before John Marshall By Shannon C. Stimson PRINCETON UNIVERSITY PRESS Copyright © 1990 Shannon C. Stimson All rights reserved. ISBN: 978-0-691-07874-8 Contents Preface, ix, Acknowledgements, xi, PART I REVOLUTIONS AND CONCEPTUAL CHANGE, 1 Political Thought and Historical Problematics, 3, 2 Historical Transformations and Legal Legacies, 10, 3 Juries and American Revolutionary Jurisprudence, 34, PART II FROM JUDICIAL SPACE TO JUDICIAL REVIEW: FOUR PERSPECTIVES ON THE POWER OF JUDGMENT IN AMERICAN POLITICS, 4 Locating the 'Voice of the People', 69, 5 Law in the Context of Continuous Revolution, 86, 6 The Politics of Judicial Space, 106, 7 Government by Discussion: Continuing Debate over Judicial Space, 137, Notes, 149, Bibliography, 197, Index, 221, CHAPTER 1 Political Thought and Historical Problematics For the mind having in most cases, as is evident in Experience, a power to suspend the execution and satisfaction of any of its desires, and so all, one after another, is at liberty to consider the objects of them; examine them on all sides, and weigh them with others ... This seems to me the source of all liberty. (John Locke, An Essay Concerning Human Understanding ) The aim of this essay is to challenge the assumption of a basic unity of vision and purpose at the roots of Anglo-American jurisprudence through a study of the role of juries and judgment in revolutions. Through a comparative look at the relationship between English and American conceptions of law and judgment in the seventeenth and eighteenth centuries, the conclusion can be reached that British and American jurisprudence are separated not only historically by differing court practices which commentators have frequently observed, but correlatively by essentially different theoretical conceptions of sovereignty, the nature of law, and the extent of ordinary citizens' power to judge the legitimacy of law. This last factor has been far less frequently observed, if not implicitly denied, by legal commentators. From a theoretical perspective, this comparative analysis helps to explain why the question of the scope and limits of the judicial function in a democratic state is the overarching question of American jurisprudence, whereas in English jurisprudence it remains a question of little significance. At the same time, this study aims to contribute to the contemporary debate among legal and philosophical analysts of the American judicial system, by adding to these typically limited and abstract discussions of competing theories of law and adjudication a theoretical and historically informed discussion of the evolution of judicial institutions whose nature these theories are intended to elucidate. The aim is to reconstruct an intellectual and historical problematic that provoked both significant constitutional debate and innovative legal and jurisprudential responses in eighteenth-century American jurisprudence. That problematic is one of determining the proper locus of judgment about the content and 'constitutionality' of law. ORIGINS OF JUDICIAL