The Bar and the Movement toward Revolution

The arguments of Blackstone and the Whig opposition infected American thinking just as the colonial bar gained greater professional competence. The growing economic vitality of the colonies in the mid-eighteenth century sparked this transformation in the bar. It became more numerous, more prestigious, and more jealous of its prerogatives. This escalation in the importance of lawyers, moreover, occurred throughout the colonies. Thus, twenty-five of the fifty-six signers of the Declaration of Independence, and thirty-one of the fifty-five delegates to the Constitutional Convention in 1787 were lawyers.

American lawyers were hardly of one mind about the British constitution; some were loyalists and others patriots. But the patriot lawyers were important because of their tutoring in the British constitution and the common law. ⁹ They were the natural leaders of a highly legal revolution. Their knowledge provided an intellectual basis for unity until they could manufacture their own nationalism to take its place. Arguments about the nature of property and liberty under the British constitution gave colonies as disparate as New York, the Carolinas, Virginia, and Pennsylvania a basis for common action and thought. These colonies might well have revolted in any case, although it is doubtful that they would have without the presence of the bar. Until independence generated its own revolutionary substitute, British law and constitutional thought remained the only common denominator among Americans, who in other respects differed from each other far more radically than they differed from Great Britain. ¹⁰

The patriot lawyers applied their Whig beliefs in America not England. They took the opposition arguments about the nature of rights and property from the mother country and tailored them to fit colonial expectations of the British constitution. Lawyers did not cause the American Revolution, but they did define its intellectual boundaries and its essentially conservative cast. This was so primarily because they were essentially attempting to define the nature of the rule of law as it applied under colonial circumstances.

Lawyers figured prominently on both sides in the revolutionary struggle that extended from 1761 to 1776. Each initiative taken in London, such as the infamous Stamp Act, provoked a colonial legal response and resulted in violence. Popular action paralleled legal argument. Two of these episodes provide insight into the unique role played by the patriot bar in seeking to adjust the received constitutional tradition of England to the colonies. The first was the Writs of Assistance Case begun in 1761; the other was the standing-army controversy and the Boston Massacre. Neither, by itself, propelled a break with England; but both, in the flow of developments within the colonies, pressed American patriots to measure the future of the rule of law as they understood it under the British constitution.

Date: 2015-01-29; view: 1031