Daniel defoe and the written constitution

Cornell Law Review

Volumn 94, Issue 1, 2008, Pages 73-132

  Meyler, Bernadette ^a  

^a MIT Sloan School of Management

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EID: 57649185093     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (418)

1. The United Kingdom's Human Rights Act of 1998, which incorporated the European Convention on Human Rights into domestic law, has generated something akin to a bill of rights; however, the Honorable Lord Goldsmith has recently argued that even this document is insufficient and that a written constitution is necessary. See Rt. Hon. Lord Goldsmith, Keynote Address: Global Constitutionalism, 59 STAN. L. REV. 1155 (2007).
2. Additionally, several Australian judges have recently contended that Australia should adopt a written bill of rights. See Stuart Rintoul, Judge Calls for Right to Quash Unjust Laws, AUSTRALIAN, Sept. 14, 2007, at 2, LexisNexis Academic.
3. Resistance to written constitutions does, however, remain in various quarters. For example, although many Native American tribes adopted such documents pursuant to the Indian Reorganization Act of 1934, some insist that they remain unnecessary. See, e.g., Deron Marquez, Chairman, San Manuel Band of Mission Indians, Address at the Executive Session on American Indian Constitutional Reform Hosted by the Harvard Project on American Indian Economic Development and the Mashantucket Pequot Tribal Nation: Why the San Manuel Band Doesn't Need a Constitution 2 (Oct. 18, 2002) (on file with author) (stating that, "Historically, San Manuel has never seen the need for a written constitution. Rather, our stability as a government has derived not from a written document but from a number of other factors directly related to our Tribe's unique characteristics," including the "strong kinship systems and long-term cultural identity" that derive from the tribe's small size);
4. see also, e.g., Angela R. Riley, Good (Native) Governance, 107 COLUM. L. REV. 1049, 1076-77 (2007) (referring to the ""'boilerplate' constitutions" adopted after the passage of the Indian Reorganization Act"). Even at the time of the Founding, one writer lauded the Native Americans who had inhabited Vermont for maintaining a successful government without a written constitution: A modern statesman would smile at this idea of Indian government: And because he could find no written constitution, or bill of rights, . . . pronounce it weak, foolish, and contemptible. But it was evidendy derived from the dictates of nature, and well adapted to the state and situation of the savage. . . . The individual had all the security, in the public sentiment, custom, and habit, that government can any where afford him.
5. SAMUEL WILLIAMS, THE NATURAL AND CIVIL HISTORY OF VERMONT 140-41 (Walpole, Thomas & Carlisle 1794).
6. See generally PAULA R. BACKSCHEIDER, DANIEL DEFOE: HIS LIFE (1989); MAXIMILLIAN E. NOVAK, DANIEL DEFOE: MASTER OF FICTIONS: HIS LIFE AND IDEAS (2001).
7. For an analysis of how the conception of judicial review was transformed from an exceptional and quasi-revolutionary activity into a regular practice of the U.S. federal judiciary during the period leading up to Marbury, see Gordon S. Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More Out of Less, 56 WASH. & LEE L. REV. 787 (1999).
8. For the contention that, at the time of Marbury, "judges could not expound fundamental law authoritatively," which entailed the idea that "judges could not rest the invalidity of legislation on their interpretation of the Constitution over a contending legitimate one embodied in that legislation," see Sylvia Snowiss, The Marbury of 1803 and the Modern Marbury, 20 CONST. COMMENT. 231, 237 (2003).
9. See generally SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION (1990).
10. See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
11. Gary D. Rowe, Constitutionalism in the Streets, 78 S. CAL. L. REV. 401 (2005) (elaborating on the dynamics of nonjudicial constitutionalism in the early Republic through a micro-historical study of the first Supreme Court case to strike down a state law).
12. See Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 502 (2006);
13. Maeva Marcus, Judicial Review in the Early Republic, in LAUNCHING THE "EXTENDED REPUBLIC": THE FEDERALIST ERA 25 (Ronald Hoffman & Peter J. Albert eds., 1996);
14. William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455 (2005)
15. (finding thirty-one cases preceding Marbury in which a statute was invalidated).
16. See MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2004);
17. Bilder, supra note 5; see also JOSEPH HENRY SMITH, APPEALS TO THE PRIVY COUNCIL FROM THE AMERICAN PLANTATIONS (Octagon Books 1965) (1950) (comprehensively detailing the procedures of and cases heard by the Privy Council).
18. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
19. Id. (emphasis added).
20. Id.
21. See J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY 48 (W.W. Norton 1967) (1957) (referring to "the building-up of a body of alleged rights and privileges that were supposed to be immemorial,. . . coupled with the general and vigorous belief that England was ruled by law and that this law was itself immemorial. . . result[ing] in turn in that most important and elusive of seventeenth-century [English] concepts, the fundamental law");
22. JOHN PHILLIP REID, THE ANCIENT CONSTITUTION AND THE ORIGINS OF ANGLO-AMERICAN LIBERTY (2005);
23. see also J. W. GOUGH, FUNDAMENTAL LAW IN ENGLISH CONSTITUTIONAL HISTORY 15 (Oxford Univ. Press 1961) (1955) (noting that early references to "fundamental law" do not necessarily refer to the "fundamental law" of today, but that some elements of the early modern usage of the phrase may have developed into the contemporary usage).
24. Gordon Wood has also observed that "The idea of fundamental law embodied in a written constitution by itself could never have accounted for the development of judicial review; indeed, emphasis on the fundamental character of the Constitution tended to inhibit the use of judicial review." Wood, supra note 3, at 799.
25. Marbury, 5 U.S. (1 Cranch) at 176 (emphasis added).
26. See THOMAS PAINE, FOUR LETTERS ON INTERESTING SUBJECTS, Letter III, at 15 (1776) ("All constitutions should be contained in some written Charter; but that Charter should be the act of all and not of one man.");
27. id., Letter IV, at 18 ("The truth is, the English have no fixed Constitution.").
28. See 3 THE OXFORD ENGLISH DICTIONARY 789-90 (2d ed. 1989) (defining "constitution");
29. see also supra note 10 and accompanying text.
30. I will use the term "myth" throughout this Article not to name a falsehood-as surely it is true that we have a written constitution-but rather to designate an especially compelling account of the genesis and reasons for a particular phenomenon.
31. One pamphlet intended to advertise the virtues of the Carolinas to potential settlers contained a narrative that seemed almost to provide a roadmap for a Defoe novel; the author of the pamphlet speculated about the fate of a younger son who might fall into "unlawful ways ... to maintain" himself were he to remain in England and fail to take advantage of the opportunities offered by the Carolinas. ROBERT HORNE, A BRIEF DESCRIPTION OF THE PROVINCE OF CAROLINA (London, 1666)
32. reprinted in ORIGINAL NARRATIVES OF EARLY AMERICAN HISTORY: NARRATIVES OF EARLY CAROLINA: 1650-1708, at 63, 72 (J. Franklin Jameson & Alexander S. Salley, Jr. eds., 1911). In Moll Flanders, Defoe analogously treats the question of the different possibilities available to an individual without resources in England and in the American colonies.
33. See DANIEL DEFOE, MOLL FLANDERS 321-24 (Paul Scanion ed., Broadview Ed. 2005) (1722) (describing Moll's attempt late in life, after serving time as a deported felon in Virginia, to go to Carolina with her husband and recounting how she eventually settled in Maryland).
34. For the claim that Robinson Crusoe was one of the first novels, see generally IAN WATT, THE RISE OF THE NOVEL: STUDIES IN DEFOE, RICHARDSON, AND FIELDING 21-25, 60-92 (1957) (describing the characteristics of the novel that separate it from other written forms, explaining how Defoe's work was the first to embody these characteristics, and discussing Robinson Crusoe, his first novel to do so). The question of what should be called the first novel and whether that designation even makes sense is, of course, disputed and is affected by critics' views about how the genre should be defined.
35. See MICHAEL MCKEON, THE ORIGINS OF THE ENGLISH NOVEL 1600-1740, at xix (15th anniversary ed. 2002) (1987) ("I conceive [the novel's] emergence not as embodied within a single text or two, whether Robinson Crusoe or Pamela or Shamela, but as an abstract field of narrative possibility shaped by the dialectical engagement of its component 'parts.'").
36. See WATT, supra note 16, at 35-60.
37. BACKSCHEIDER, supra note 2, at 3-16.
38. Id. at 7.
39. Id. at 28-30.
40. Id. at 30-34.
41. Id. at 35-40 (detailing Defoe's participation in the Monmouth Rebellion);
42. id. at 94-125 (describing Defoe's 1702 pamphlet The Shortest-Way with the Dissenters and the imprisonment and pillorying that resulted from it);
43. id. at 201-02 (analyzing Defoe's failed efforts to discharge his debts under the 1705 Act for Preventing Frauds Committed by Bankrupts);
44. id. at 159-60, 203-25 (explaining Defoe's evolving role as Robert Harley's emissary in Scotland).
45. Id. at 143-44.
46. The difficulty in identifying Defoe definitively as the author of some of the works within the canon emanates partly from the fact that many of his tracts and novels-even those that scholars unanimously consider to be his, such as Robinson Crusoe itself-were published anonymously or pseudonymously. For instance, the tide page of the first edition of Robinson Crusoe reads "Written by Himself," referring to Crusoe, not Defoe. THE LIFE AND STRANGE SURPRIZING ADVENTURES OF ROBINSON CRUSOE (Michael Shinagel ed., W.W. Norton & Co. 1994) (1719) [hereinafter DEFOE, ROBINSON CRUSOE]. This practice was not especially unusual in the early eighteenth century and remained familiar at the time of the American Founding. For questions about the authorship of particular texts
47. see infra notes 47, 195, 197.
48. See supra note 16 and accompanying text.
49. See PATRICK BRANTLINGER, THE READING LESSON: THE THREAT OF MASS LITERACY IN NINETEENTH-CENTURY BRITISH FICTION 1 (1998) (observing, following John Tinnon Taylor, that "between about 1750 and the 1830s many people objected to novel-reading as an abuse of literacy likely to do moral damage to the readers and, indeed, to the national culture").
50. See NOVAK, supra note 2, at 565
51. (quoting THE BATTLE OF THE AUTHORS LATELY FOUGHT IN COVENT-GARDEN, BETWEEN SIR JOHN EDGAR, GENERALISIMO ON ONE SIDE, AND HORATIUS TRUEWIT, ON THE OTHER (London, 1720)).
52. As Jay Fliegelman observed, Robinson Crusoe, printed in America in 1774, became one of "[t]he three 'bestsellers' of 1775." JAY FLIEGELMAN, PRODIGALS & PILGRIMS: THE AMERICAN REVOLUTION AGAINST PATRIARCHAL AUTHORITY, 1750-1800, at 39 (1982). Although an abridged American edition printed by Hugh Gaine was widely distributed, the full version "was popular under an English imprint in its own right throughout the Revolutionary period."
53. Id. at 69.
54. For the complicated history of the American editions of Robinson Crusoe, see generally Leanne B. Smith, Robinson Crusoe in America (May 1983) (unpublished Ph.D. dissertation, Yale University) (on file with audior);
55. CLARENCE S. BRIGHAM, BIBLIOGRAPHY OF AMERICAN EDITIONS OF ROBINSON CRUSOE TO 1830 (1958).
56. For discussion of the dynamics of book importation, see generally 1 A HISTORY OF THE BOOK IN AMERICA: THE COLONIAL BOOK IN THE ATLANTIC WORLD (Hugh Amory & David D. Hall eds., 1999).
57. See also E. JENNIFER MONAGHAN, LEARNING TO READ AND WRITE IN COLONIAL AMERICA 302 (2005) ("Even as the volume of American book production rose, so did that of importation, which outstripped domestic production for the entire [eighteenth] century.").
58. One early example of the sale of an unnamed edition of Defoe's oeuvre is provided by a notice in the South Carolina Gazette from March 24, 1733: "To be Sold by the Printer hereof. . . Bishop Tillotson's Works, Burchet's Naval History, Ogilby's America, . . . De Foe's Works, . . . Moliere's Plays, A Dutch Grammar, Plays &c." HENNIG COHEN, THE SOUTH CAROLINA GAZETTE, 1732-1775, at 127 (1953).
59. Charles Brockden Brown, Robinson Crusoe, LITERARY MAG. (n.p., 1804)
60. reprinted in THE ENGLISH LITERATURES OF AMERICA, 1500-1800, at 697, 698 (Myra Jehlen & Michael Warner eds., 1996).
61. FLIEGELMAN, supra note 28, at 36.
62. See id. at 67-83.
63. See infra note 152 and accompanying text.
64. See MONAGHAN, supra note 28, at 302-32.
65. CATHY N. DAVIDSON, REVOLUTION AND THE WORD: THE RISE OF THE NOVEL IN AMERICA 141 (expanded ed. 2004).
66. See MICHAEL WARNER, THE LETTERS OF THE REPUBLIC: PUBLICATION AND THE PUBLIC SPHERE IN EIGHTEENTH-CENTURY AMERICA, at xi (1990) ("The politics of printed texts in republican American lay as much in the cultural meaning of their printedness as in their objectified nature or the content of their arguments. The force of the technology and the act of reading performed by the individual citizen were redetermined in the course of this social transformation.");
67. id. at 110 ("The printedness of the constitution, in short, was understood as precluding any official hermeneutics, especially an intentionalist one that would accord privilege to the views of the delegates.").
68. Robert Ferguson's seminal Law and Letters in American Culture illuminates the intertwining of legal and literary figures and pursuits in late-eighteenth-century America. Although the literary interests of figures such as John Adams did probably help to render English writers like Defoe relevant in the public sphere, Ferguson focuses more on connections between American practitioners of law and literature.
69. See generally ROBERT A. FERGUSON, LAW AND LETTERS IN AMERICAN CULTURE (1984).
70. The 1765 catalogue of books from the Library Company of Philadelphia includes an entry for "Defoe's Works, consisting of his true Born Englishman &c. 2 vol. Octavo." A CATALOGUE OF BOOKS, BELONGING TO THE ASSOCIATION LIBRARY COMPANY OF PHILADELPHIA 30 (Philadelphia, William Bradford 1765).
71. Likewise, according to its 1793 catalogue, the Rhode Island College Library possessed Defoe's Jure Divino. CATALOGUE OF BOOKS BELONGING TO THE LIBRARY OF RHODE ISLAND COLLEGE (Providence, J. Carter 1793).
72. A bookseller in New York and Philadelphia boasted copies of Defoe's Plan of the English Trade and Commerce. A CATALOGUE OF BOOKS, SOLD BY RIVINGTON AND BROWN, BOOKSELLERS AND STATIONERS FROM LONDON, AT THEIR STORES, OVER AGAINST THE GOLDEN KEY, IN HANOVER-SQUARE, NEW YORK, AND OVER AGAINST THE LONDON COFFEE-HOLISE, IN PHILADELPHIA 65 (n.p., 1762).
73. Likewise, Ben Franklin sold a copy of Defoe's Family Instructor. A CATALOGUE OF CHOICE AND VALUABLE BOOKS, CONSISTING OF NEAR 600 VOLUMES, IN MOST FACULTIES AND SCIENCES 12 (Philadelphia, 1744).
74. Examples of American editions of Defoe's other works include selections from his Journal of the Plague Year, Moll Flanders, and The Family Instructor.
75. See THE DREADFUL VISITATION, IN A SHORT ACCOUNT OF THE PROGRESS AND EFFECTS OF THE PLAGUE (Philadelphia, Joseph Cruikshank 1774);
76. THE LIFE, DEATH & MISFORTUNES OF THE FAMOUS MOLL FLANDERS (Boston, William M'Alpine 1773);
77. DANIEL DEFOE, THE FAMILY- INSTRUCTOR (Philadelphia, 1795).
78. An edition of Thomas DeLaune's A Plea for the. Nonconformists published in Saratoga County in 1800 suggests the continuing influence of Defoe's religious writings as well. Defoe's preface, which addresses issues of religious dissent and toleration, was republished in this volume as the work of "the Author of the Review." THOMAS DE LAUNE, A PLEA FOR THE NON-CONFORMISTS, at xxiii-xxxix (1800).
79. BENJAMIN FRANKLIN, THE AUTOBIOGRAPHY OF BENJAMIN FRANKLIN 58 (Leonard W. Larabee et al. eds., 2d ed. Yale Univ. Press 2003) (1771).
80. David McCullough observes Adams' cognizance of Defoe's work several times in his biography. In a letter to her husband, Abigail Adams quoted Defoe's Kentish Petition, using the phrase "all men would be tyrants if they could." DAVID MCCULLOUGH, JOHN ADAMS 104 (2001).
81. Adams himself cited Defoe's satirical pamphlet The Shortest-Way with the Dissenters in a 1786 letter to John Jay. Letter from John Adams to John Jay, in 8 JOHN ADAMS, THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 391 (Boston, Little, Brown & Co. 1850) ("Like Daniel Defoe's game cock among the horses feet....");
82. see also DANIEL DEFOE, THE SHORTEST-WAY WITH THE DISSENTERS (London, 1702). More generally, as McCullough observes, "Mason, Wilson, and John Adams, no less than Jefferson, were . . . drawing on long familiarity with the seminal works of the English and Scottish writers John Locke, David Hume, Francis Hutcheson, and Henry St. John Bolingbroke, or such English poets as Defoe . . . ."
83. Id. at 121.
84. Adams' library contained: The History of the Union Between England and Scotland, with an Appendix of Original Papers, to which Is Now Added a Life of the Celebrated Author, and a Copious Index (1786);
85. Histoire des Principales Découvertes Faites dans les Arts et les Sciences: Sur-tout dans les Branches Importantes du Commerce . . . , Traduit de L'anglais (1767);
86. and a 1775 French adaptation of Robinson Crusoe by Feutry, which was inscribed "The Imitator to Mr. Adams for the benefit of his son John Quincy Adams."
87. MANUEL SCHONHORN, DEFOE'S POLITICS: PARLIAMENT, POWER, KINGSHIP AND " ROBINSON CRUSOE" (1st paperback ed. 2006).
88. GEORGE MACAULAY TREVELYAN, THE ENGLISH REVOLUTION 1688-1689, at 133-34 (1965) ("Apart from the dynastic change, which coloured everything in the new era, there were only two new principles of any importance introduced in 1689. One was that the Crown could not remove Judges; the other was that Protestant Dissenters were to enjoy toleration for their religious worship. Almost everything else was, nominally at least, only restoration, to repair the breaches in the constitutional fabric made by the illegalities of James II. But in fact the struggle between King and Parliament had been for ever decided.").
89. Philip A. Hamburger, Revolution and Judicial Review: Chief Justice Holt's Opinion in City of London v. Wood, 94 COLUM. L. REV. 2091, 2106 (1994)
90. (quoting DANIEL DEFOE, THE ORIGINAL POWER OF THE COLLECTIVE BODY OF THE PEOPLE 14 (1702)).
91. See id. at 2097-114.
92. See id. at 2105-07.
93. DANIEL DEFOE, A SERIOUS INQUIRY INTO THIS GRAND QUESTION: WHETHER A LAW TO PREVENT THE OCCASIONAL CONFORMITY OF DISSENTERS, WOULD NOT BE INCONSISTENT WITH THE ACT OF TOLERATION, AND A BREACH OF THE QUEEN'S PROMISE (London, 1704) [hereinafter DEFOE, A SERIOUS INQUIRY].
94. DANIEL DEFOE, PARTY-TYRANNY, OR, AN OCCASIONAL BILL IN MINIATURE; As NOW PRACTISED IN CAROLINA, HUMBLY OFFERED TO THE CONSIDERATION OF BOTH HOUSES OF PARLIAMENT (London, 1705), reprinted in NARRATIVES OF EARLY CAROLINA, supra note 15, at 220 [hereinafter DEFOE, PARTY-TYRANNY].
95. DANIEL DEFOE, THE CASE OF PROTESTANT DISSENTERS IN CAROLINA, SHEWING HOW A LAW TO PREVENT OCCASIONAL CONFORMITY THERE, HAS ENDED IN THE TOTAL SUBVERSION OF THE CONSTITUTION IN CHURCH AND STATE (London, 1706) [hereinafter DEFOE, THE CASE OF PROTESTANT DISSENTERS]. This work was published anonymously, but has been attributed to Defoe by many, although not all, critics.
96. See, e.g., HENRY CLINTON HUTCHINS, DANIEL DEFOE, 1660-1731: A BIBLIOGRAPHY (1936) (attributing the work to Defoe);
97. JOHN ROBERT MOORE, A CHECKLIST OF THE WRITINGS OF DANIEL DEFOE 45-46 (2d ed., Archon Books 1971) (same);
98. NOVAK, supra note 2, at 276-78 (same);
99. see also, e.g., P.N. FURBANK & W.R. OWENS, DEFOE DE-ATTRIBUTIONS: A CRITIQUE OF J.R. MOORE'S CHECKLIST 23-24 (1994) (criticizing those who attribute the work to Defoe).
100. The Toleration Act, 1689: An Act for Exempting Their Majesties' Protestant Subjects Dissenting from the Church of England from the Penalties of Certain Laws, I Gul. & Mary cap., 18, reprinted in 1 PROTESTANT NONCONFORMIST TEXTS 1550 TO 1700, at 397 (R. Tudur Jones et al. eds., Ashgate Pub. 2007).
101. Defoe composed his 1704 pamphlet in response to the introduction of a proposal in Parliament to prohibit occasional conformity that had already been debated in 1702. Although Parliament did not pass such a law in 1704, it ultimately did so in 1711. See An Act for Preserving the Protestant Religion, 1711, 10 Ann., c. 6 (Gr. Brit).
102. Defoe's personal stance on occasional conformity was complex. He had deplored the activity as a religious matter in a 1698 pamphlet called An Enquiry Into the Occasional Conformity of Dissenters, in Cases of Preferments, but he nevertheless fought against legislation prohibiting it.
103. See BACKSCHEIDER, supra note 2, at 84, 94.
104. 3 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS FROM THE RESTORATION TO THE PRESENT TIME 203 (London, Chandler 1742) [hereinafter HISTORY AND PROCEEDINGS].
105. In one letter to Harley, Defoe claimed that the dissenters' resistance to Queen Anne's government arose out of another sentence of her address at the dissolution of the first Parliament of her reign, the statement that "My own principles must always keep me entirely firm to the interests and religion of the Church of England, and will incline me to countenance those who have the truest zeal to support it." Letter from Daniel Defoe to Robert Harley (Letter 14), July-August 1704(?), in THE LETTERS OF DANIEL DEFOE 51 n.1 (George Harris Healey ed., 1955);
106. see also 3 HISTORY AND PROCEEDINGS, supra note 50, at 203.
107. Defoe also claimed, however, that the rift could be healed by "[t]wo words at the Opening the Next session" or "[s]hould her Majtie Declare That as she had Often given her word to Maintain the Tolleration, So She should Never Consent to any Act that Seem'd to Restrain The present Liberty of the Dissenters." Letter from Daniel Defoe to Robert Harley (Letter 15), August-September 1704(?), in THE LETTERS OF DANIEL DEFOE, supra, at 53, 55.
108. DEFOE, A SERIOUS INQUIRY, supra note 45, at 28.
109. Id. at 13-14.
110. Id. at 14.
111. See generally Bernadette Meyler, Theaters of Pardoning: Tragicomedy and the Gunpowder Plot, 25 STUD. L., POL. & SOC'Y 37 (2002).
112. JEAN BODIN, ON SOVEREIGNTY 11-15 (Julian H. Franklin ed. & trans., Cambridge Univ. Press 1992) (1576).
113. Id. at 13.
114. Id.; see also id. at 15 ("Law depends on him who has the sovereignty and he can obligate all his subjects . . . but cannot obligate himself [by laws]. A contract between a prince and his subjects is mutual; it obligates the two parties reciprocally and one party cannot contravene it to the prejudice of the other and without the other's consent.").
115. Id. at 14.
116. The sovereign can, however, be relieved under certain circumstances of the obliga tion he has incurred, just as subjects can be relieved of the obligations entailed by unrea sonable or unjust contracts. Id.
117. DEFOE, A SERIOUS INQUIRY, supra note 45, at 15.
118. Id. at 14, 19.
119. Id. at 15-16.
120. Id. at 16.
121. Id. at 20.
122. Id. at 21.
123. For substantial discussions of Defoe's involvement in this controversy, see 3 JAMES LOWELL UNDERWOOD, THE CONSTITUTION OF SOUTH CAROLINA: CHURCH AND STATE, MORALITY AND FREE EXPRESSION 30-35 (1992);
124. James Lowell Underwood, The Dawn of Religious Freedom in South Carolina: The Journey from Limited Tolerance to Constitutional Right, in THE DAWN OF RELIGIOUS FREEDOM IN SOUTH CAROLINA 1 Games Lowell Underwood & W. Lewis Burke eds., 2006).
125. UNDERWOOD, supra note 67, at 3-18.
126. Id. The Fundamental Constitutions, which were never approved generally by the people (although everyone who joined the assembly or received land was obliged to swear to uphold them), were of contested applicability during the late seventeenth century.
127. See ROBERT M. WEIR, COLONIAL SOUTH CAROLINA: A HISTORY 48-73 (1st paperback ed., Univ. of South Carolina Press 1997) (1983).
128. See HORNE, supra note 15, at 72.
129. Id. at 71.
130. Id. at 66.
131. Id. at 71.
132. SAMUEL WILSON, AN ACCOUNT OF THE PROVINCE OF CAROLINA (London, 1682)
133. reprinted in NARRATIVES OF EARLY CAROLINA, supra note 15, at 164.
134. Later in the document, Wilson seems a little less certain of the veracity of his own words. As he writes towards the end, "I think I have written nothing but truth, sure I am I have inserted no wilful falsehood." Id. at 174.
135. Id. at 166.
136. Similar pamphlets continued to appear into the 1700s and persisted in emphasizing the benefits of the religious toleration to be enjoyed in the colony. See THOMAS NAIRNE & JOHN NORRIS, SELLING A NEW WORLD: TWO COLONIAL SOUTH CAROLINA PROMOTIONAL PAMPHLETS 20 (Jack P. Greene ed., 1989) ("[W]hat [pamphleteers] Nairne and Norris . . . emphasized were the provisions that people of all Protestant religious persuasions were to 'have free Toleration to exercise and enjoy the same without Interruption' and that 'All foreign Protestants, of what Denomination soever,' were to be 'made Denizens within three Months after their Arrival.'").
137. Robert Weir thusly explains the late-seventeendi-century migrations and their impetus: Beginning about 1680 [the proprietors] launched a recruiting drive aimed especially at Huguenots and English dissenters, and their efforts met with considerable success. Augmented by refugees who left France after 1685, when Louis XIV revoked the protection hitherto afforded by the Edict of Nantes, the influx of Huguenots brought nearly 500 individuals to South Carolina by the end of the century. And before the pressure on dissenters in England relaxed during the latter half of the decade, perhaps an equal number of English Presbyterians and Baptists arrived, led by members of several prominent families. WEIR, supra note 69, at 64.
138. Reverend John Blair, Reverend John Blair's Mission to North Carolina (1704)
139. in NARRATIVES OF EARLY CAROLINA, supra note 15, at 214. This document was written, in part, to justify Blair's own failure in the Carolinas to his supporters, the Society for the Propagation of the Gospel in Foreign Parts - a failure that may have distorted Blair's description of the colony.
140. Id. at 214, 218.
141. Id. at 216. Apparently, many French Protestants had also settled in the colony, as well as some Jews.
142. See DEFOE, A SERIOUS INQUIRY, supra note 45, at 245-46.
143. See supra notes 18-20 and accompanying text.
144. See An Act for the More Effectual Preservation of the Government of This Province (1704)
145. reprinted in 2 THOMAS COOPER, THE STATUTES AT LARGE OF SOUTH CAROLINA; EDITED, UNDER AUTHORITY OF THE LEGISLATURE 232-35 (1837) [hereinafter STATUTES AT LARGE];
146. see also An Act for the More Effectual Preservation of the Government
147. quoted in DEFOE, PARTY-TYRANNY, supra note 46, at 253-54.
148. See NARRATIVES OF EARLY CAROLINA, supra note 15, at 267.
149. See id.; John Ash, The Present State of Affairs in Carolina (n.p., 1706)
150. in NARRATIVES OF EARLY CAROLINA, supra note 15, at 269.
151. Ash, supra note 83, at 269;
152. see also DEFOE, PARTY-TYRANNY, supra note 46, at 237.
153. Ash, supra note 83, at 269;
154. see also DEFOE, PARTY-TYRANNY, supra note 46, at 237.
155. Ash, supra note 83, at 272-73.
156. See id. at 273;
157. NARRATIVES OF EARLY CAROLINA, supra note 15, at 222.
158. Ash, supra note 83, at 273-74.
159. See DEFOE, PARTY-TYRANNY, supra note 46, at 247.
160. See id.
161. Id.;
162. see also Ash, supra note 83 (containing this litany of complaints).
163. DEFOE, PARTY-TYRANNY, supra note 46, at 247.
164. An Act for the More Effectual Preservation of the Government of This Province (1704)
165. reprinted in STATUTES AT LARGE, supra note 81, at 233.
166. See DEFOE, PARTY-TYRANNY, supra note 46, at 260.
167. See COMMONS HOUSE JOURNAL, May 4, 1704, at 239 (John S. Green transcript; microfilm on file widi the South Carolina Department of Archives and Records) ("Ordered. That the Grand Charter be laid before this House, which was accordingly.").
168. Id. at 240.
169. Id.
170. See 1 DICTIONARY OF NORTH CAROLINA BIOGRAPHY: A-C 38-39 (William S. Powell ed., 1979) (entry on "John Archdale").
171. See Letter from John Archdale to a Friend Relative to Religious Toleration in Carolina (Nov. 12, 1705/1706), in NORTH CAROLINA, GOV. JOHN ARCHDALE'S PAPERS item 7 (microfilm on file with the South Carolina Department of Archives and Records);
172. Letter from John Archdale to Nathan Johnson (n.d.), in Gov. JOHN ARCHDALE'S PAPERS, supra, at item 8;
173. Letter from Job. Howe to John Archdale (Jan. 30, 1705/1706)
174. in Gov. JOHN ARCHDALE'S PAPERS, supra, at item 12;
175. Letter from Nathan Johnson to John Archdale (Jan. 10, 1705/ 1706)
176. in Gov. JOHN ARCHDALE'S PAPERS, supra, at item 31.
177. For the rumor about Johnson's possible replacement, see Letter from Nathan Johnson to John Archdale (Jan. 10, 1705/1706), supra ("[H]e has advice thatYo[ur] Hon[our] designed either to come in person, or to send mr. Boon over for governor: give me leave to assure Yo[ur] Hon[our], that you shall be heartily welcome to me, . . . either in [the] capacity of a private person or proprietor or gov. as shall likewise be any, who are fitting for such a station in this time of our eminent and present dangers.").
178. See Letter from Job. Howe to John Archdale (Jan. 30, 1705/1706), supra note 99 ("The churchmen gave [the] Dissenters opportunity Last Election to chuse what Assembly men they pleas'd, & in [the] Beginning of this Month they satt, but in Two days every man went to his own home, & [deserted] their Trust resolveing to heighten our differances, so [the] Governor was forc'd to call another to sitt in March. . . .").
179. See JOURNAL OF THE COMMONS HOUSE OF ASSEMBLY OF SOUTH CAROLINA, MARCH 6, 1705/1706-APRIL 9, 1706 (A. S. Salley ed., 1937), at 6-18 (1705/1706).
180. Robert Weir's account suggests that Defoe's conclusion is not entirely far-fetched. As he observes, That the colonial act was modeled on the English bill does not of course prove that it was instigated in London, but there are other reasons for believing that this was the case. One of the new Tory peers created at the beginning of Queen Anne's reign was Lord Granville, who was not only a proponent of the bill against occasional conformity, but also at this time the proprietary palatine.
181. WEIR, supra note 69, at 78.
182. DEFOE, PARTY-TYRANNY, supra note 46, at 225. This interpretation was encouraged by the language of the Carolina act itself, because the law premised its exclusion of dissenters in part on the false representation that individuals with similar religious beliefs were also prohibited from sitting in Parliament.
183. See An Act for the More Effectual Preservation of the Government of This Province (1704)
184. reprinted in STATUTES AT LARGE, supra note 81, at 232 ("As nothing is more contrary to the profession of the Christian Religion, and particularly to the doctrine of the Church of England, than persecution for conscience only; nevertheless, whereas it hath been found by experience that the admitting of persons of different persuasions and interest in matters of religion to sitt and vote in the Commons House of Assembly, hath often caused great contentions and animosities in this Province, and hath very much obstructed the publick business; and whereas by the laws and usage of England, all members of Parliament are obliged to conforme to the Church of England, by receiving the sacrament of the Lord's Supper accor[ding] to the rites of the said church ....").
185. DEFOE, PARTY-TYRANNY, supra note 46, at 225.
186. Id. at 261.
187. Id.
188. A reference to the situation in the Carolinas in one of Defoe's contemporaneous satires indicates how significant the conflict in the colony was to him. At the end of The Consolidator, a work purporting to reflect the narrator's experiences on the moon, the narrator appends a description of the lunar libraries, which (to his surprise) contain a number of texts "[t]ranslated from our Tongue, into the Lunar Dialect, and stor'd up in their Libraries with the Remarks, Notes and Observations of the Learned Men of that Climate upon the Subject." See DANIEL DEFOE, THE CONSOLIDATOR: OR, MEMOIRS OF SUNDRY TRANSACTIONS FROM THE WORLD IN THE MOON. TRANSLATED FROM THE LUNAR LANGUAGE, BY THE AUTHOR OF THE TRUE-BORN ENGLISH MAN 349 (London, Bragg 1705).
189. Included among these volumes was "Ignis Fatuus, or the Occasional Bill in Minature, a Farce, as it was acted by his Excellency the Lord Gr . . . il's [Granville] Servants in Carolina." Id. at 358. As an idiom, "ignis fatuus" translates as "something misleading"; thus, the presence of this work in the lunar library, accompanied by commentary in hieroglyphics, further substantiates Defoe's belief that other polities could learn valuable lessons from the events that took place in the Carolinas.
190. DEFOE, PARTY-TYRANNY, supra note 46, at 225-26.
191. Id. at 225.
192. Id. at 225-26.
193. Id. at 226.
194. See supra note 44 and accompanying text.
195. DEFOE, PARTY-TYRANNY, supra note 46, at 227-32. The extent of Locke's involvement in authoring the Fundamental Constitutions is notoriously contested.
196. See generally David Armitage, John Locke, Carolina, and the "Two Treatises of Government, " 32 POL. THEORY 602 (2004) (arguing for Locke's participation in the creation of the 1682 revision of the Fundamental Constitutions, as well as the initial 1669 draft).
197. DEFOE, PARTY-TYRANNY, supra note 46, at 233.
198. See supra note 6 and accompanying text. In this particular instance, Parliament, upon receiving Boon's petition, heard legal arguments "in Defence of the said Acts."
199. See THE HUMBLE ADDRESS OF THE RIGHT HONOURABLE THE LORDS SPIRITUAL AND TEMPORAL, IN PARLIAMENT ASSEMBLED, PRESENTED TO HER MAJESTY, WITH HER MAJESTIES MOST GRACIOUS ANSWER THEREUNTO (1705/1706) [hereinafter THE HUMBLE ADDRESS]. The proprietors' lawyer appears to have prepared himself for this episode by consulting the laws of other colonies.
200. See 18 B.P.R.O. JOURNALS B.T. 240 (March 7, 1705/1706) ("A gentleman from the Lord Granville attending and desiring Leave to inspect the Virginia and Maryland Laws, in order to prepare himself for a hearing that is to be on Saturday next before the House of Lords upon two Acts past in Carolina: Leave was given him accordingly: And then desiring Copies of two Acts past in Virginia in March 1661/2 Entituled Vestries appointed and Ministers to be inducted, Copies of the said Acts were given him."). Once it had resolved in favor of the dissenters, Parliament then addressed the Queen in March of 1705/1706, insisting that the "Act for the more effectual Preservation of the Government of this Province" was "Founded upon falsity in matter of Fact," "Repugnant to the Laws of England," "contrary to the Charter granted to the Proprietors," and "Tends to the Depopulating and Ruining the said Province."
201. See THE HUMBLE ADDRESS, supra. After Queen Anne then sent the case to the Board of Trade for its consideration, this body, upon consultation with the Attorney General and Solicitor General, not only declared the laws "repugnant to the Laws of England" and "not warranted by the said Charters," but even suggested that, "as the making of such Laws is an abuse of the Power granted the said Proprietors of making Laws, and will be a forfeiture of such Power; . . . your Majesty be pleased, to give Directions for the reassuming the same into your Majestys hands by Scire Facias in the Chancery or by Quo Warranto in your Majesty's Court of Queen's Bench."
202. B.P.R.O. Propties B.T. 381 (May 24, 1705/1706).
203. As Weir summarizes these transactions, "They [the dissenters] were successful, and the House of Lords addressed the crown, asking it 'to deliver the said Province from the arbitrary Oppressions under which it now lies'; the crown referred the matter to the Board of Trade and its legal advisors . . . ." Weir, supra note 69, at 79.
204. Following notice of the disallowance of the two acts, the colonists proceeded to repeal them and to enact an establishment of religion that Governor Johnson claimed would serve the same function. JOURNAL OF THE COMMONS HOUSE OF ASSEMBLY OF SOUTH CAROLINA, NOVEMBER 20, 1706-FEBRUARY8, 1706/7, at 5 (Nov. 20, 1706) (A. S. Salley ed., 1939). According to Johnson's address to the assembly
205. When the Church is thus Settled [through a new act] I hope we Shall all be happy by it, and as the Main end of passing the Act against the dissenters was to Enable us the better to provide ffor the Safety of the Church of England, so when the Church of England is Settled upon a ffirm and lasting ffoundation as is now proposed I Supose the Repealing the Act against the dissenters can be no prejudice to us of the Church of England. Id. Interestingly, Johnson had, in his earlier letter to Archdale, expressed a certain investment in allowing the colonists to repeal the bills themselves. As he had written, alluding to the possibility of disallowance of the acts, and referring to a law that Archdale himself had passed, which "our people here think . . . gave them a great advantage in being judges of repealing of their own acts," the question of whether the colonists themselves would be given control over such a repeal "must be nicely managed."
206. Letter from John Archdale to Nathan Johnson (n.d.), supra note 99.
207. Although no contemporaneous record exists of the final text of the repeal bill, a subsequent version was included in Nicholas Trott's later compilation of the colony's laws. An Act to Repeal the Several Acts within Mentioned (1706), reprinted in STATUTES AT LARGE, supra note 81, at 281. This text may, however, represent an expurgated copy of the original, because an undated draft included in the Archdale Papers contains language that much more explicidy condemns the laws being revoked and insists upon the "rights" of the dissenters.
208. See A Bill to Repeal an Act Made at Charleston (May 6, 1704/1705)
209. in NORTH CAROLINA, GOV. JOHN ARCHDALE'S PAPERS, supra note 99, at item 25 ("[This] Act . . . very much infringes upon the native right and undoubted privileges of sundry the good [ ] inhabitants of this Province[,] Dissenters from the Church of England[, w]ho on the terms contained in the Charter granted by our late Gracious Sovereign King Charles the Second of blessed memory to the . . . Lords and Proprietors of this province of enjoying freedom of opinion and practice in religious affairs Transported themselves and familys into this Colony, here to settle and inhabit").
210. THE PRIVY COUNCIL, ACTS OF THE PRIVY COUNCIL OF ENGLAND: COLONIAL SERIES 506-07 (W.L. Grant et al. eds., 1910).
211. See BILDER, supra note 6, at 2;
212. SMITH, supra note 6, at 465.
213. JOHN LOCKE, TWO TREATISES OF GOVERNMENT passim (Peter Laslett ed., Cambridge Univ. Press 1960) (1690).
214. Peter C. Myers, Locke on the Social Compact: An Overview, in THE AMERICAN FOUNDING AND THE SOCIAL COMPACT 1, 18-19, 22-23 (Ronald J. Pestritto & Thomas C. West eds., 2003).
215. Martyn P. Thompson, Locke's Contract in Context, in THE SOCIAL CONTRACT FROM HOBBES TO RAWLS 73 (David Boucher & Paul Kelly eds., 1994);
216. see also WILLIAM ATWOOD, THE FUNDAMENTAL CONSTITUTION OF THE ENGLISH GOVERNMENT (London, 1690);
217. ROBERT FERGUSON, A BRIEF JUSTIFICATION OF THE PRINCE OF ORANGE'S DESCENT INTO ENGLAND (London, Baldwin 1689).
218. ROBERT FERGUSON, A LETTER TO MR. SECRETARY TRENCHARD, DISCOVERING A CONSPIRACY AGAINST THE LAWS AND CONSTITUTION OF ENGLAND: WITH REFLECTIONS ON THE PRESENT PRETENDED PLOT 4 (n.p., 1694).
219. DEFOE, THE CASE OF PROTESTANT DISSENTERS, supra note 47, at 3.
220. Id.
221. Id.
222. Id. at 4. Defoe's assertions can, in this respect, be fruitfully compared with Locke's statements in the Second Treatise. Locke there insists that "whoever has the Legislative or Supream Power of any Common-wealth, is bound to govern by established standing Laws, promulgated and known to the People."
223. LOCKE, supra note 118, §131, at 371. He also provides, however, for the exercise of a prerogative power in certain exceptional circumstances, such as in the case of fire, "wherein a strict and rigid observation of the Laws may do harm; (as not to pull down an innocent Man's House to stop the Fire, when the next to it is burning)."
224. Id. § 159, at 393.
225. Defoe picks up the metaphor of fire, deploying it to justify his interest in religious liberty in the Carolinas and maintaining that he must put out the fires of persecution before they reach his own home, England. DEFOE, THE CASE OF PROTESTANT DISSENTERS, supra note 47, at 6.
226. DEFOE, THE CASE OF PROTESTANT DISSENTERS, supra note 47, at 11.
227. Id. at 30.
228. Defoe does not mention the Statute of Frauds, 1677, 29 Car. 2, c. 3 (Gr. Brit), which required that certain kinds of contracts-including those that could not be performed within a year and those made in consideration of marriage-be in writing in order to be enforced. The Statute of Frauds may, however, have formed another subterranean influence on Defoe's conception of the written constitution.
229. DEFOE, THE CASE OF PROTESTANT DISSENTERS, supra note 47, at 30.
230. Id.
231. While the inauguration of third-party beneficiary theory in contract law has often been attributed to the 1680 English case Dutton v. Poole, similar decisions had, in fact, been rendered throughout the seventeenth century; Dutton actually seemed to mark the decline of the doctrine, in part because the 1677 Statute of Frauds required a writing in several kinds of cases that had previously furnished the bulk of third-party beneficiary actions. VERNON VALENTINE PALMER, THE PATHS TO PRIVITY: A HISTORY OF THIRD PARTY BENEFICIARY CONTRACTS AT ENGLISH LAW 74-83 (1992). Despite the waning of third-party beneficiary theory in the context of conventional legal contracts, it appears to have provided a compelling source for Defoe's understanding of constitutional obligations.
232. DEFOE, THE CASE OF PROTESTANT DISSENTERS, supra note 47, at 33 (emphasis removed).
233. Id.
234. Id. at 34.
235. Id. at 30.
236. Id. at 30-31. The form of this contention resembled some of the colonists' earlier strategies for resisting imposition of the later, 1682 version, of the Fundamental Constitutions.
237. See WEIR, supra note 69, at 66 ("The Goose Creek men refused to accept a revised new draft. ... In qualifying for earlier assemblies they had sworn, they said, to uphold the Constitutions of 1669 and they could not possibly swear to the version of 1682.").
238. Id. at 36-37.
239. Id. at 31.
240. A BRIEF SURVEY OF THE LEGAL LIBERTIES OF THE DISSENTERS: AND HOW FAR THE BILL Now DEPENDING CONSISTS WITH PRESERVING THE TOLERATION INVIOLABLY: WHEREIN THE PRESENT BILL IS PUBLISHED; AND ALSO THE TOLERATION ACT AT LARGE, THAT THEY MAY BE COMPAR'D WITH ONE ANOTHER (Edinburgh, re-prtg. 1714).
241. Id. at 5.
242. Id. at 8.
243. Id.
244. DEFOE, ROBINSON CRUSOE, supra note 24.
245. See generally IAN WATT, MYTHS OF MODERN INDIVIDUALISM: FAUST, DON QUIXOTE, DON JUAN, ROBINSON CRUSOE (1996).
246. DANIEL DEFOE, THE FARTHER ADVENTURES OF ROBINSON CRUSOE (Tyndale House 1999) (1719) [hereinafter DEFOE, THE FARTHER ADVENTURES].
247. See generally Maximillian E. Novak, Crusoe the King and the Political Evolution of His Island, 2 STUD. ENG. LITERATURE, 1500-1900, at 337 (1962).
248. See generally VICTORIA KAHN, WAYWARD CONTRACTS: THE CRISIS OF POLITICAL OBLIGATION IN ENGLAND, 1640-1674 (2004).
249. See DEFOE, ROBINSON CRUSOE, supra note 24, at 76 ("A little after this my Ink began to fail me, and so I contented my self to use it more sparingly, and to write down only the most remarkable Events of my Life, without continuing a daily Memorandum of other Things.");
250. id. at 97 ("My Ink, as I observed, had been gone some time, all but a very little, which I eek'd out with Water a little and a little, till it was so pale it scarce left any Appearance of black upon the Paper . . . .").
251. Id. at 83.
252. Id. at 99.
253. Id. at 97.
254. it is well known that Rousseau at least explicitly places priority upon speech over writing, viewing the latter as inferior to the immediacy of a hypothetically perfect form of speech; at the same time, he values writing as potentially capable of capturing that which inadequate speech was ineffectual at conveying. See JACQUES DERRIDA, OF GRAMMATOLOGY 141-42 (Gayatri Chakravorty Spivak trans., corrected ed., Johns Hopkins Univ. Press 1998) (1967) ("[Rousseau], straining toward the reconstruction of presence, . . . valorizes and disqualifies writing at the same time. At the same time; that is to say, in one divided but coherent movement .... Rousseau condemns writing as destruction of presence and as disease of speech. He rehabilitates it to the extent that it promises the reappropriation of that of which speech allowed itself to be dispossessed.").
255. For Rousseau's reception of Defoe, see JEAN-JACQUES ROUSSEAU, EMILE: OR ON EDUCATION 77-79 (Allan Bloom trans., Basic Books 1979) (1762).
256. Denise Schaeffer, The Utility of Ink: Rousseau and Robinson Crusoe, 64 REV. POL. 121 (2002).
257. ,54 JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT, bk. 1, ch. 6 (1762).
258. Id. ch. 7.
259. Id.
260. Derrida describes Rousseau as criticizing representation by placing priority on the act of the general will; just as Rousseau was suspicious of writing because it deferred the presence of its author, Rousseau prefers the voice of the sovereign people to any act of their representative. DERRIDA, supra note 152, at 296. As Derrrida sees it, Writing is the origin of inequality. It is the moment when the general will which cannot err by itself, gives way to judgment, which can draw it into "the seductive influences of individual wills. ..." It is therefore absolutely necessary that the general will express itself through voices without proxy. It "makes law" when it declares itself in the voice of the "body of the people" where it is indivisible.
261. Id. at 297. As Jed Rubenfeld further elaborates on this problem, [H]aving posited that "the general will that should direct the State is not that of a past time but of the present moment," Rousseau is obliged to idealize the popular voice and the public tongue that would express this will (the general will of the present moment could not be expressed in a writing).
262. JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT 47 (2001). Bruce Ackerman's theory of constitutional moments most powerfully articulates how something like Rousseau's notion of the general will could be reconciled with the written quality of the Constitution.
263. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
264. See ROUSSEAU, supra note 152, at 77.
265. Schaffer, supra note 153, at 121.
266. Id. at 130-37.
267. Id. at 145, 147.
268. Id. at 146-47.
269. See NOVAK, supra note 2, at 562 (stating that "[t]he first two parts [of the Crusoe story] were often printed together; [the] third volume was ignored from the start").
270. See infra notes 171-91, 212-17 and accompanying text.
271. [I]n seventeendi-century England, as on the continent, the political relationship of subject and sovereign was regularly compared with marriage. This model of contract preserved an older sense of status and natural hierarchy while simultaneously addressing contemporary arguments for the voluntary nature of political obligation. . . .
272. - [W] ell before Hobbes elaborated his version of the original political contract the language of the marriage contract was appropriated by both royalists and parliamentarians in their debate over the conditions of legitimate sovereignty.
273. KAHN, supra note 147, at 174-75;
274. see also CAROLE PATEMAN, THE SEXUAL CONTRACT (1988).
275. Nor did Defoe represent the end-point of the tradition. One can find invocations of the analogy as late as John Quincy Adams' 1842 lecture, The Social Compact, Exemplified in the Constitution of the Commonwealth of Massachusetts. JOHN QUINCY ADAMS, THE SOCIAL COMPACT, EXEMPLIFIED IN THE CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS: A LECTURE DELIVERED BEFORE THE FRANKLIN LYCEUM (Providence, Knowles & Vose 1842). According to Adams, "the social compact, or body politic, founded upon the laws of Nature and of God, physical, moral, and intellectual, necessarily pre-supposes a permanent family compact formed by the will of the man, and the consent of the woman." Letter from John Quincy Adams to Thomas L. Dunnell and William M. Rodman, Committee on Lectures of the Franklin Lyceum, in ADAMS, supra, at 4. Elaborating upon the nature of this marital compact, Adams insists that "[t]he nuptial tie of nature then must be formed by mutual consent, but its permanency must be by the mutual pledge of faith, that is by covenant or compact."
276. ADAMS, supra, at 24.
277. As both Holly Brewer and Jay Fliegelman have shown, other aspects of the familial relation-in particular, changing conceptions of paternity and childhood-provided powerful analogies with and sources for reflection on the political situation in America around the time of the revolution. See generally HOLLY BREWER, BY BIRTH OR CONSENT: CHILDREN, LAW, AND THE ANGLO- AMERICAN REVOLUTION IN AUTHORITY (2005);
278. FLIEGELMAN, supra note 28.
279. The notion of the island would assume significance in James Otis's 1764 attempt to reconcile social contract theory with the colonial situation. See James Otis, The Rights of the British Colonies Asserted and Proved, in 3 THE RECEPTION OF LOCKE'S POLITICS 1 (Mark Goldie ed., 1999). While Otis tries to disaggregate the individual's natural freedom from the fact that he is born into society, he is obliged to acknowledge that "The truth is, as has been shewn, men come into the world and into society at the same instant."
280. Id. at 24. Because the individual is born into society, he must first be isolated from it-like Crusoe-in order to re-enter the state of nature before engaging in a new social contract. As Otis writes, If in such case, there is a real interval between the separation [of an individual from "a society of which they have formerly been members"] and the new conjunction, during such interval the individuals are as much detached, and under the law of nature only, as would be two men who should chance to meet on a desolate island.
281. Id. (emphasis added).
282. Jeremy Waldron, John Locke: Social Contract Versus Political Anthropology, in THE SOCIAL CONTRACT FROM HOBBES TO RAWLS, supra note 120, at 51.
283. Id. at 56.
284. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 152.
285. See supra notes 148-51 and accompanying text.
286. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 134. Defoe had foreshadowed this development in the brief summary of his hero's future life provided at the end of Robinson Crusoe; as Crusoe recounts, "I shar'd the Island into Parts with 'em, reserv'd to my self the Property of the whole, but gave them such Parts respectively as they agreed on; and having settled all things with them, and engaged them not to leave the Place, I left them there."
287. DEFOE, ROBINSON CRUSOE, supra note 24, at 220.
288. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 136.
289. Id. at 105. Defoe adopts a notably more tolerant attitude towards Cadiolics in this work than elsewhere in his oeuvre. As Maximillian Novak has remarked, "For the most part, Defoe's anti-Catholic attitudes remained a consistent element in his thinking throughout his life, but during the brief interval during which the Crusoe volumes were written, Defoe seemed to favour even the hated Cadiolic Church as an antidote to atheism and paganism."
290. NOVAK, supra note 2, at 561.
291. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 58.
292. Id. at 63.
293. KAHN, supra note 147, at 206 (citing Carole Pateman's argument in The Sexual Contract for the proposition that the marriage covenant is "a covenant between men" and discerning such a stance in John Milton's Doctrine and Discipline of Divorce).
294. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 105.
295. Id. at 105.
296. As Crusoe recounts,
297. I was astonished at the sincerity and temper of this pious Papist . . . and it presentiy occurred to my thoughts, that if such a temper was universal, we might be all Catholic Christians, whatever Church or particular profession we joined in; that a spirit of charity would soon work us all up into right principles; and as he thought that the like charity would make us all Catholics, so I told him I believed, had all the members of his Church the like moderation, they would soon all be Protestants. Id. at 122.
298. Id. at 106.
299. Id. at 107.
300. Id. at 107.
301. The religious eclecticism of the Robinson Crusoe story and its ecumenical quality were emphasized by an early parody. In this tract, which consists of an imagined dialogue between Defoe himself and his characters Crusoe and Friday, Crusoe complains to the author about the lack of uniformity in his own religious position throughout the novels and his seeming tolerance of Catholics: Thus, all the English Seamen laugh'd me out of Religion, but the Spanish and Portuguese Sailors were honest religious Fellows; you make me a Protestant in London, and a Papist in Brasil; and then again, a Protestant in my own Island, and when I get thence, the only Thing that deters me from returning to Brasil, is meerly, because I did not like to the a Papist; for you say, that Popery may be a good Religion to live in, but not to the in; as if that Religion could be good to live in, which was not good to the in ... . But tho' you keep me thus by Force a Sort of Protestant, yet, you all along make me very fond of Popish Priests and the Popish Religion ....
302. CHARLES GILDON, THE LIFE AND STRANGE SURPRIZING ADVENTURES OF MR. D- DE F-(London, 1719), excerpted in DEFOE, ROBINSON CRUSOE, supra note 24, at 257, 259.
303. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 105-06.
304. Id. at 105.
305. Id. at 116. Defoe's other writings do not give any encouragement to the notion that equality will miraculously follow the marriage either. In his novel Roxana, the title character attempts to dissuade a suitor from the desire to marry her by expressing the notion that this arrangement will inevitably render her a subject to him, the sovereign.
306. See DANIEL DEFOE, ROXANA, OR, THE FORTUNATE MISTRESS (John Mullan ed., Oxford Univ. Press 1996) (1724) [hereinafter DEFOE, ROXANA]. Although Roxana represents herself as resisting the suitor for other reasons, her proto-feminist objections to the institution of marriage are persuasively phrased: I told him, I had, perhaps, differing Notions of Matrimony, from what the receiv'd Custom had given us of it; that I thought a Woman was a free Agent, as well as a Man, and was born free, and cou'd she manage herself suitably, might enjoy that Liberty to as much Purpose as the Men do; that the Laws of Matrimony were indeed, otherwise, and Mankind at this time, acted quite upon other Principles; and those such, that a Woman gave herself entirely away from herself, in Marriage, and capitulated only to be, at best, but an Upper-Servant.... -[W] hile a Woman was single, she was a Masculine in her politick Capacity; that she had then the full Command of what she had, and the full Direction of what she did ....
307. Id. at 147-48. According to this account, marriage divests a woman of her "politick capacity" and renders her a mere servant; Roxana even refers at one point to a woman's husband as her "monarch."
308. Id. at 150.
309. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 125. A work Defoe published in 1727, entitled A Treatise Concerning the Use and Abuse of the Marriage Bed, similarly insists on the permanence of the marriage contract as well as other features that render it less like an ordinary contract and more akin to a constitution. According to Defoe, the marriage contract creates a new unity out of parts that were previously disparate: "Matrimony is not a single Act, but it is a Condition of Life, and therefore when People are new-married, they are said to have altered their Condition; it is a Series of Unity contracted . . . ."
310. DANIEL DEFOE, A TREATISE CONCERNING THE USE AND ABUSE OF THE MARRIAGE BED 44 (London, Warner 1727). Rather than being a temporary condition, it is, for him "not a Branch of Life only, but ... a State, ... a settled Establishment of Life, and an Establishment for a continuance at least of the Life of one of the two."
311. Id. at 30. Finally, like a constitution, the marriage contract does not merely mark the moment of the parties' transition between conditions but more importandy structures the relation in which they continue to exist.
312. See id. at 29, 44, 54. Failing to abide by the limitations implicit in the marriage contract "dishonour[s]" the contract itself, even if no one is capable of enforcing these limitations from outside the confines of the couple itself.
313. Id. at 44.
314. DEFOE, THE FARTHER ADVENTURES, supra note 145, at 129.
315. Id. at 129, 137.
316. The cultural context of the native women whom the English colonists "marry" is not, however, incorporated and is instead effaced by their conversion to Christianity. This aspect of the plot shows the significant limitations of Defoe's inclusiveness and, by implication, of his conception of written constitutionalism. Many scholars have performed postcolonial readings of Defoe's work-in particular, Robinson Crusoe-that develop critiques of his representation of native populations; but the most compelling such reading may be J.M. Coetzee's novel Foe.
317. See generally J.M. COETZEE, FOE (1987).
318. Defoe's novelistic and "historical" work overlaps more than a contemporary reader might expect-indeed, some of his fictions employed the designation "histories" and were only retrospectively classified as novels. This is perhaps because, as Lennard Davis has written, "When Robinson Crusoe was written in 1719, there was no clear distinction between news and fiction, and Defoe's work rests uneasily in that world of a discourse which is more and more inclining to separate into two subdiscourses but which still has not broken apart." LENNARD J. DAVIS, FACTUAL FICTIONS: THE ORIGINS OF THE ENGLISH NOVEL 155 (1983). Be that as it may, the close relationship between what we would designate as Defoe's novels and his historical writings justify treating them together.
319. As Maximillian Novak and others have observed, Defoe tends to romanticize the pirates' polity, removing reference to some of the more bloody exploits in which they may have been engaged. See NOVAK, supra note 2, at 582 (explaining that "Defoe tends toward building his own mythology of piracy," one that verged on the Utopian);
320. Manuel Schonhorn, Defoe's Captain Singleton: A Reassessment with Observations, 7 PAPERS ON LANGUAGE AND LITERATURE 38 (1971) (discussing how Defoe softened the violence of piracy in his narratives).
321. For the most thorough extant account of Defoe's description of this constitutional scheme, see Lee A. Casey, Pirate Constitutionalism: An Essay in Self-Govemment, 8 J.L. & POL. 477 (1992).
322. DANIEL DEFOE, THE KING OF PIRATES 7 (Peter Ackroyd ed., Hesperus Press 2002) (1719) [hereinafter DEFOE, KING OF PIRATES]. In particular, Defoe undermines the notion that Captain Avery had raped and murdered the Mogul's daughter and become King of Madagascar.
323. Id. at 5-6.
324. The King of Pirates has generally been attributed to Defoe, but some skeptics remain. In Daniel Defoe, Maximillian Novak treats the text as definitely derived from Defoe and as providing a template for the subsequent novel Captain Singleton. See NOVAK, supra note 2, at 580-83. Furbank and Owens, however, remain unconvinced.
325. See FURBANK & OWENS, supra note 47, at 122.
326. DEFOE, KING OF PIRATES, supra note 195, at 6.
327. DANIEL DEFOE, A GENERAL HISTORY OF THE PYRATES 665-95 (Manuel Schonhorn ed., Dover Publications 1999) (1724) [hereinafter DEFOE, A GENERAL HISTORY OF THE PYRATES]. The origins of this work, the original edition of which listed "Captain Charles Johnson" as the author, have been the subject of much scholarly speculation. The evidence of Defoe's authorship derives largely from parallels with his other writings.
328. See John Robert Moore, Defoe in the Pillory and Other Studies (1939), in IND. U. PUBLICATIONS HUMAN. SERIES (1939-1941), No. 1.
329. But cf. FURBANK & OWENS, supra note 47, at 133-34.
330. In his forward to the Hesperus edition, Peter Ackroyd comments that "The world of The King of Pirates is a desperate one .... It is the world of Hobbes' Leviathan transported to the high seas." DEFOE, KING OF PIRATES, supra note 195, at ix.
331. Id. at 8.
332. Id.
333. Id. at 10.
334. Id. at 30.
335. Id.
336. As Avery, disguised as one of his own minions, informs a group of Englishmen whom he captures and holds for a few days before sending them off again, If any gang of pirates or buccaneers would go upon their adventures, and when they had made themselves rich would come and settle with us, we would take them into our protection and give them land to build towns and habitations for themselves-and so in time we might become a great nation, and inhabit the whole island. I told them the Romans themselves were, at first, no better than such a gang of rovers as we were, and who knew but our General, Captain Avery, might lay the foundation of as great an empire as they.
337. Id. at 75.
338. Defoe confirms in A General History of the Pyrates that the captain, although endowed with unquestioned authority in times of emergency, generally remains a representative of the community rather than an individual placed above it, like a king. As Defoe writes of the selection of a new captain, paraphrasing one of the crewmembers, "it was not of any great Signification who was dignify'd with Title; for really and in Truth, all good Governments had (like theirs) the supream Power lodged with the Community, who might doubtless depute and revoke as suited Interest or Humour."
339. DEFOE, A GENERAL HISTORY OF THE PYRATES, supra note 197, at 194. As the man continues, recalling Defoe's own statements about the location of the original power in disparate political settings, " We are the Original of this claim. . . and should a Captain be so sawcy as to exceed Prescription at any time, why down with him!"
340. Id. at 194-95.
341. DEFOE, KING OF PIRATES, supra note 195, at 25.
342. Id. at 26.
343. See id. at 12 (" [T] hey all approved it with a general consent, and I had the honour of being the contriver of the voyage.");
344. id. at 78 ("When this was agreed, they resolved to take no money out of the grand stock, but to take such men's money as were gone and had left their money behind, and this being consented to truly, my friends took the occasion and took all their own money, and mine . . . and carried it on board . . . .");
345. id. at 80 ("They did not leave us without our consent. . . .").
346. Id. at 26 ("Accordingly we did so, and gave them that ship with all her guns and ammunition, but made one of our own men captain, which they consented to, and so we became all one body.").
347. Id. at 26-27.
348. While we were eating, it came into my thoughts that while we worked at this rate in a thing of such nicety and consequence, it was ten to one if the gold, which was the make-bait of the world, did not, first or last, set us together by the ears, to break our good articles and our understanding one among another, and perhaps cause us to part companies, or worse; I therefore told them that I was indeed the youngest man in the company, but as they had always allowed me to give my opinion in things, and had sometimes been pleased to follow my advice, so I had something to propose now, which I thought would be for all our advantages, and I believed they would all like it very well. I told them we were in a country where we all knew there was a great deal of gold, and that all the world sent ships thither to get it; that we did not indeed know where it was, and so we might get a great deal, or a little, we did not know whether; but I offered it to them to consider whether it would not be the best way for us, and to preserve the good harmony and friendship that had been always kept among us, and which was so absolutely necessary to our safety, that what we found should be brought together to one common stock, and be equally divided at last, rather than to run the hazard of any difference which might happen among us from any one's having found more or less than another. I told them, that if we were all upon one bottom we should all apply ourselves heartily to the work; and, besides that, we might then set our negroes all to work for us, and receive equally the fruit of their labour and of our own, and being all exacdy alike sharers, there could be no just cause of quarrel or disgust among us. They all approved the proposal, and every one jointiy swore, and gave their hands to one another, that they would not conceal the least grain of gold from the rest; and consented that if any one or more should be found to conceal any, all that he had should be taken from him and divided among the rest; and one thing more was added to it by our gunner, from considerations equally good and just, that if any one of us, by any play, bet, game, or wager, won any money or gold, or the value of any, from another, during our whole voyage, till our return quite to Portugal, he should be obliged by us all to restore it again on the penalty of being disarmed and turned out of the company, and of having no relief from us on any account whatever. This was to prevent wagering and playing for money, which our men were apt to do by several means and at several games, though they had neither cards nor dice.
349. DANIEL DEFOE, CAPTAIN SINGLETON 79-80 (Dodo Press 2005) (1720)
350. DEFOE, A GENERAL HISTORY OF THE PYRATES, supra note 197, at 213. Defoe refers to similar articles, although widi much less elaboration, elsewhere in A General History of the Pyrates. In talking about Captain Howel Davis, he writes that, "As soon as he was possess'd of his Command, he drew up Articles, which were signed and sworn to by himself and the rest, then he made a short Speech, the sum of which was a Declaration of War against the whole World."
351. Id. at 167-68. The reader subsequendy discovers at least part of the content of the articles, which specify that "he who first espies a Sail, if she proves a Prize, is entitled to the best Pair of Pistols on board, over and above his Dividend, in which they take a singular Pride."
352. Id. at 191.
353. Id. at 211.
354. 2i4 Id. at 213.
355. Id. at 210.
356. Id. at 213.
357. Id. at 210.
358. Id. at 211.
359. Id.
360. Marooning or death was the fate of those who had defrauded the company as a whole or who had attempted to desert the company. Id. at 211-12.
361. Id. at 212.
362. Id.
363. Id.
364. Id. at 213.
365. The novel Roxana also includes a scene suggesting the extrajudicial enforcement of certain written agreements. Having been deserted by her first husband, Roxana-still technically married-is romantically approached by her landlord, whose wife has also left him. DEFOE, ROXANA, supra note 187, at 41. The man proposes to contract a quasi-marriage with Roxana and, as she recounts, [S]hew'd me a Contract in Writing, wherein he engag'd himself to me; to cohabit constantly with me; to provide for me in all Respects as a Wife; and repeating in the Preamble, a long Account of the Nature and Reason of our living together, and an Obligation in the Penalty of 7000 1. never to abandon me; and at last, shew'd me a Bond for 500 1. to be paid to me, or to my Assigns, within three Months after his death.
366. Id. at 42. Roxana accepts, announcing that she will depend upon his promise.
367. Id. at 43. After the man meets an untimely death at the hands of highway robbers, Roxana does not invoke die terms of the contract but instead engages in self-help based upon her private agreement with him, claiming to have been married to him in France without knowing that he already possessed an English wife.
368. Id. at 55-57. The written contract, despite being arranged only between the parties and never introduced in a court of law, thereby retains significance because it legitimates Roxana's own efforts to recover money from the man's estate.
369. DEFOE, A GENERAL HISTORY OF THE PYRATES, supra note 197, at 222.
370. Id. at 250.
371. Id. at 249.
372. Id. at 248.
373. Id. at 292.
374. Id. at 222.
375. As Ian Watt has shown, Robinson Crusoe was, from the eighteenth century onward, "appropriat[ed] ... for different, and indeed often contradictory, ideological purposes,"
376. WATT, supra note 144, at 180,
377. by thinkers ranging from Jean-Jacques Rousseau to Karl Marx, id at 172-80.
378. See supra note 139 and accompanying text.
379. See supra note 140 and accompanying text.
380. See supra notes 51-53 and accompanying text.
381. See supra notes 70-75 and accompanying text.
382. See supra notes 129-37 and accompanying text.
383. See RUBENFELD, supra note 157;
384. Jed Rubenfeld, Reading the Constitution as Spoken, 104 YALE L.J. 1119 (1995).
385. Rubenfeld, supra note 238, at 1144.
386. See supra note 138 and accompanying text.
387. See KRAMER, supra note 4, at 39-41.
388. Matthew P. Harrington, Judicial Review Before John Marshall, 72 GEO. WASH. L. REV. 51, 69 (2003).
389. In his article, Harrington relies on Justice William Patterson's statements about the written constitution in Van Horne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304 (Pa. 1795), maintaining that "Paterson's formulation of the role of a written constitution is significant.... [I]t confirms the view that American constitutions are different from the English in that they are explicit social compacts, agreed to by 'the people themselves' at a definite and fixed time."
390. Id. at 71;
391. see also GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 282-91 (1969) (explaining the transition in American thought to the notion of a social compact entered into by a people who had been thrust into the state of nature).
392. See WOOD, supra note 242, at 288.
393. See id. at 269, 268-73 (describing the "contract between rulers and people" between the English King and American subjects under which "protection and allegiance became die considerations");
394. id. at 282-91 (explaining the new version of contract theory that supervened).
395. Id. at 284 (quoting Thomas Paine, Candid and Critical Remarks on a Letter Signed Ludlow (1777)).
396. See Jack N. Rakove, Once More into the Judicial Breach, 72 GEO. WASH. L. REV. 381, 383 (2003) ("Why, after all, did Americans come to think of a written constitution in such exalted terms? There are multiple answers one could give to this question. But high on any historically grounded explanation of this process must lie the recognition that American constitutionalism, in its formative period, was shaped by an adverse reaction to the received doctrine of legislative supremacy that was part of the legacy of English constitutionalism. That reaction, however, was driven less by an intellectual repudiation of the pre-1776 assertion of parliamentary authority over America than by a new consideration of the uses to which legislative power could be put. That consideration became evident only after independence, as American legislatures converted this general principle into a working description of how republican governments would actually operate.");
397. see also Leslie Friedman Goldstein, Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law, 48 J. POL. 51 (1986) (describing a movement during this period away from the idea that the legislature can be considered equivalent to the people) ;
398. Wood, supra note 3 (noting the decline in faith in the legislature and increasing faith in the judiciary during the 1780s).
399. See WOOD, supra note 242, at 280-82;
400. Goldstein, supra note 246, at 61-62, 64.
401. PHILODEMUS (THOMAS TUDOR TUCKER), CONCILIATORY HINTS, ATTEMPTING, BY A FAIR STATE OF MATTERS, TO REMOVE PARTY PREJUDICE (Charleston, 1784), reprinted in 1 AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA 1760-1805, at 606, 612-13 (Charles S. Hyneman & Donald S. Lutz eds., 1983).
402. Id. at 613.
403. Id. at 614.
404. See SNOWISS, supra note 3;
405. Wood, supra note 3, at 796-99.
406. See supra notes 115-38 and accompanying text.
407. See supra notes 212-25 and accompanying text.
408. See supra note 205 and accompanying text.
409. See supra notes 120-21 and accompanying text.
410. Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706, 2725 (2003).
411. Id. at 2739 (emphasis omitted).
412. Id. at 2740.
413. See supra notes 140-42 and accompanying text.
414. See supra note 142 and accompanying text.
415. For a contemporary argument for judicial review based, in part, upon the written nature of the U.S. Constitution, see Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887, 914-21 (2003).
416. Jeremy Waldron has, by contrast, contended that the institution of judicial review is separable from the presence of a written constitution. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1366 (2006) ("[T] here is a distinction both at the cultural and at the institutional level between a commitment to rights (even a written commitment to rights) and any particular institutional form (e.g., judicial review of legislation) that such a commitment may take.").
417. As Michael Warner has argued, Marshall's views on this point may not even have accorded with those prevalent at the time of ratification. According to Warner, The republican ideology of print eroded, and an official hermeneutics emerged. . . . Between the legitimating drama of sovereignty that gave rise to the Constitution and the official hermeneutics that resulted from it, the meaning of the document's writtenness had been transformed. The transformation was not recognized as such, but was regarded as a restatement of republican principles. A good example is John Marshall's decision in Marbury v. Madison, where he appeals to the Constitution's writtenness in order to argue that hermeneutics gives the law exactly in the act of receiving the law. WARNER, supra note 35, at 114.
418. See supra note 225.