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Albert W. Alschuler
“A masterwork of intellectual and political history.”
M. Yorke tells me that a foreigner could not understand a single word in milord Cook and in Littleton; I tell him that I have observed that, with regard to the feudal laws and ancient laws of England, they do not seem to me very difficult to understand, no more than those of all the other nations, because, all the laws of Europe are gothic, they all have the same origin and are of the same nature; that on the contrary modern laws and jurisprudence are difficult to understand, because the times and circumstances of things have changed the gothic law in each country, and because that law everywhere takes the measure of one country and has changed like the political laws. He agrees with this.38Montesquieu's extensive examination of the origins and evolutions of Franco-German law in the final books of The Spirit of the Laws confirms this private notation on the Gothic root shared by English common law and French law. Nonetheless, his published references to the feudal laws and ancient laws of England are rare. He does cite Coke's predecessor Littleton (d. 1481) in the penultimate chapter of The Spirit of the Laws (31.33, 993 n. b). However, the reference is to a lesser-known work, not to Littleton's treatise on feudal tenures, the basic work of the English common law of property, known as the Tenures nouelli; Coke's commentary on this, known even to the American founders as "Coke-Littleton," begins Coke's own classic work, the Institutes. In two other unpublished notations, Montesquieu records his intention to purchase classic common-law treatises by Bracton (d. 1268) and Fortescue, including In Praise of the Laws of England. A fuller understandingof why Montesquieu's jurisprudence seemingly approximates but largely ignores the common law requires examination of his treatment of Franco-Germanic laws and of a juridical prudence in the closingbooks of The Spirit of the Laws, but a brief comparison with Hobbes and Locke prompts some conjectures by itself. In his conversation with Yorke, he characteristically suggests that Gothic law transforms itself in each particular country, takingon a new, ever-developingspirit and bewilderingvariety amongeach people. This hardly seems justification for overlooking English common law, since Montesquieu seems to makes good on his announcement in the Preface of the work's "infinite" scope, given his citations to peoples and laws spanningthe available literature on diverse continents and centuries. The suitability of common-law judging to Montesquieu's purposes, his private recognition of a shared Gothic root, and his earlier travels to England and friendship with a future Lord Chancellor suggest a silence more deliberate than accidental. The provenance of the common law is, after all, partly Scholastic and Aristotelian. Beyond Fortescue's In Praise of the Laws of England, this is evident in the text targeted by Hobbes, Saint Germain's Doctor and Student, which opens by paraphrasingAquinas's fourfold classification of divine, eternal, natural, and positive law. The "artificial reason," the developed prudence or judgment, exercised by the common-law mind ultimately understands itself both as customary and as rooted in natural truth or justice, even though English common law distinguishes itself from Scholastic natural law. Common law seeks right reason and natural justice through the common-law mode of refiningcustoms and precedents and by discerningright in particular cases. Its attention to particulars and precedents, so different from the code of Roman or civil law, suits Montesquieu. However, neither a root in natural law nor a prudence understood as the legal perfection of nature's right reason fits the spirit of his modern, liberal science.
Excerpted from The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism by Paul Carrese Copyright © 2003 by Paul Carrese. Excerpted by permission.
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|Note on Texts|
|Introduction: The Subtle Judge and Moderate Liberalism||1|
|Pt. 1||Montesquieu's Jurisprudence and New Judical Power||11|
|1||Moderating Liberalism and Common Law: Spirit and Juridical Liberty||15|
|2||Moderate and Juridical Government: The Spirit of Constitutional Liberty||35|
|3||Projects for Reform: Due Process, National Spirit, and Liberal Toleration||60|
|4||The New Aristocracy of the Robe: History, Reason, and Judical Prudence||82|
|Pt. 2||Blackstone and the Montesquieuan Constitution||105|
|5||Blackstone's Liberal Education for Law and Politics||109|
|6||A Gothic and Liberal Constitution: Blackstone's Tempering of Sovereignty||124|
|7||Blackstone, Lord Mansfield, and Common-Law Liberalism||150|
|Pt. 3||Montesquieu's Judical Legacy in America||179|
|8||Hamilton's Common-Law Constitutionalism and Judicial Prudence||185|
|9||Tocqueville's Judicial Statesmanship and Common-Law Spirit||211|
|10||Holmes and Judicialized Liberalism||231|
|Conclusion: The Cloaking of Power and the Perpetuation of Constitutionalism||257|