Letter: On Legal Theory: Reconsidering the Social Matrix 11&12 William III ch12 (2006)
Bill Tulley, Good Health!
You have encouraged me for years to complete research on the prosecution of governors. When all seemed lost, you gently stoked this passion with leads and referrals. When I finally return from Massachusetts I hope to entertain you with an proper account of all the strange spaces this quest has taken me.
As you suggested, I have made some reference to the ‘Marxist theory of law’ (more a shambolic economic argument than the legal realism I favor), but think that I could have applied the same treatment to any other economic or legal theory.
As for what purpose the body of work might be used for, I cannot tell. The study of Government illegality is a high risk occupation: in any jurisdiction, in any era. Perhaps some good may come of it one day.
Here I attach a summary of my arguments, and I look forward to your critique in due course
Vale
Synopsis: Purpose of this essay is to examine a
constitutional issue in detail and contrast a legal realist approach with two
contemporary legal philosophies (rule of law and Marxist dialectic).
English and derivative law would appear to have little in the way of
example of suits against the crown or crown representatives. There is one exception to this general rule –
and it remains of relevance today in a number of jurisdictions including
The history of this branch of law will be outlined, and then considered
from the perspective of legal realism, the rule of law and the Marxist
dialectic.
[*DISCUSS set out background to the crown prerogative
against suit.]
[*DISCUSS European and American immunities from
prosecution during term.]
Overseas colonies after
Initially colonial development had been left to the landed aristocracy
and monopoly trading companies.[ii] However, towards the end of the Seventeenth
Century, these old interests became increasingly under attack, and with the
Glorious Revolution, the emerging commercial interests were able to exert
pressure on William’s parliaments to effectively destroy old colonial monopoly
rights granted under the Stuarts.
The development of the new commercial interests in the economic
potential of the colonies depended on stability in those colonies. Hill states that, after 1688 “[a]n essential
prerequisite for industrial revolution was large and sable colonial monopoly
markets.” Central to the stability of
the colonial monopoly markets was effective political administration - and this
depended on one specific office: the office of the governor.
After the Glorious Revolution, the colonial governors established by the
Stuarts were overthrown by colonials.[iii] Capable administrators such as Governor
Andros (
As a result the colonies entered into a period of instability, and trade
was severely disrupted. The new
governors, it seems, pursued a policy of enlightened self-aggrandisement
characterised by an open disregard of the law.[iv]
Petitions to Commons with respect to the situation were received by
every Parliament[v]
until William III dismissed the old Privy Council Committee of Trade, and
appointed the Board of Trade in 1696.[vi] The petitions ceased soon afterwards.
The Board of Trade was controlled by the commercial interests - many of
the members of the first Board such as John Locke and Pollexfen had personal
interests in the colonial trade. The
Board’s commission was wide, giving it virtual control over all aspects of
colonial administration. It became the
office through which all colonial grievances were to be aired for the next 20
years.
Despite this, the Board of Trade did not concern itself with the
establishment of proper government in the colonies:
The most important duty of the Board was to make the
colonies commercially profitable to the mother country. (Dickerson, O, 1912, 24)
The legal responsibilities of governors to individuals were considered
to be of slight economic importance to the Board of Trade, which could appoint
and dismiss errant governors at will.
The King’s Bench did not make things better. The decisions of the Rowel v. Dyon[vii] and
Groenvelt v. Burwell[viii]
effectively put the governors outside the jurisdiction of English Courts for
wrongs and criminal offences committee overseas.[ix] In fact the only way to seek redress for such
actions lay in the risky[x]
procedure of petitioning the King or Commons in
It is within this context that 11&12 William III
ch12 was promulgated.
[*DISCUSS Explain Name of Act – should I use a simple
name?]
[*DISCUSS Set out terms of the Act and summarize. Discuss whether procedural or
substantive. Discuss contemporary
meaning of oppression]
There seems to be three distinct phases in the life of the Act. In the initial period, the Act was used by
the Board of Trade, which represented the dominant economic class of the
time. In the period 1725-60, a foreign
element of the dominant class, represented by the colonial Assemblies, was able
to subvert this control, using the Act to extend their own interests. In the last period, to present, the Act
gradually faded into the background.
The reasons for the promulgation of 11&12 William III ch12 are unsatisfactory. [ADD – Is this really the case – surely just
a reaction to Groenvelt – check whether Northey was the justice involved in
that case]
Commercial interests did not require the criminal sanctions provided for
by the Act, indeed the existence of the Act constituted a threat to the
management of colonial affairs through the Board of Trade.
It may be that the Act was part of a plan conceived by Attorney-General
Northey and William III to further destroy the old proprietal stranglehold on
the southern colonies, (there is some evidence supportive of this)[xi]. However, of the acts passed previously and
those to be passed concerning governor liability[xii], this
act is the most lethal, making governors responsible to the people of the
colonies for oppressions they were responsible for.
Prepared by Solicitor-General Hawles, when the initial Bill was placed
before the Commons, it was not particularly debated, and it received no recorded
criticism, despite the fact that the economic interests it was to usurp had
successfully bought there was into William’s parliaments.[xiii] Even later, when the Act was placed before
the Lords Commissioners of Trade, they did not object to the act even thought,
as early as 1704 with the attempted prosecution of Governor Granville, their
monopoly over control of the colonies and plantations was to be eroded.[xiv]
However, after the Act was passed, there were no restriction on who
might commence proceedings under the Act.[xv] Any person might institute proceedings before
the King’s Bench by either an indictment before a grand jury, or through the
Attorney-General or Solicitor-General, or a direct appeal to the court by a
person who had been wronged.[xvi] Until after 1720, there is no evidence to
suggest that the first or the latter courses were employed with regard to this
Act: Governor Norton, Nanfan, Parke, Cary, Douglass and Lowther were all
prosecuted by way of an information laid by the Attorney-General of the
day. In all of these cases the Lords Commissioners
directed the prosecutions to take place, and, again, in all cases, all of the
governors prosecuted had a history of unstable economic handling of their
respective colonies.
The Gentlemen [who had been suspended from the Bermuda
Council for their attempts to deadlock it] who were displaced, finding now they
could not play their game no longer at home, resolve to carry on their malice
by sending over petitioners to H M, against the Governour, and to spare no
cost, as some of them have bragg’d to gett him removed, in the hopes of being
able to manage his successor. (SP/CS, 1705, a106)
With the decline of the influence and power of the Board of Trade after
1720, the colonial economic interests became a predominant factor in the
control of the governors. The governors’
position was effectively subverted by these elements when they, the governors,
became dependant on the local Assemblies for finance. Governor Shute and Governor Belcher both
complained bitterly of this, but the Board of Trade, increasing stacked with
position men after 1714[xviii] did nothing.
Governors and other people interested in colonial
affairs found little heed paid to their communications addressed to the
board. (Dickerson, 1912, p.36)
With the colonial control of the governors secure in the hands of
commercial interests of those colonies, there were no more prosecutions until
that of Governor Mostyn in the 1770’. The
colonial class sought, and achieved control over the nomination and dismissal
of governors by way of an informal arrangement with the Secretary of State’s
Office[xix], and consequently the act was not employed.
The loss of the American colonies and Mostyn’s Case mark a change in the
use to which the Act was put. From that
stage onwards, the Act was used against the dominant class interests. The most obvious factor in the prosecution of
Governors Mostyn, Wall, Picton, Eyre and Governor-General Hastings, is that the
complainants did not belong to, or have any connection with the dominant economic
class[xx]:
in
The position of the governor from the late Eighteenth Century onwards
was different from that of preceding time.
Local economic interests had captured the governor’s independent
standing. Henceforth, governors, like
Bligh, who attempted to meddle with the dominant classes’ economic interests
could be removed, often forcibly, and returned to
Yet the successful prosecution of these later governors did not only
effect the actors involved. All the
cases were widely publisised and all continued, on and off, for more than four
years. Hence the use of the Act may have
successfully projected a new set of parameters to the type of governor
behaviour which would be tolerated.
[DISCUSS – include
here the research on the prosecutions and attempted prosecutions of
Governors. mss 1979 – 15 pp - research needs to be re-examined – and
greater biographical detail provided to the reader]
Analysis
Legal Realism
[*DISCUSS – include here legal realism analysis – make
point that this represents the best fit
mss 1979 – 3 pp – review and add to essay]
Rule of Law
[*DISCUSS – include here rule of law analysis – make point
that this represents the worst fit mss
1979 – needs to be rewritten from scratch]
Marxist Analysis
[*DISCUSS – include here Marxist analysis– make point that
the dialectic is poorly articulated, and is capable of wrapping itself around
examples to come up with the right answers.
Conclude inherently weak analytic tool mss 1979]
Marx died before he definitively mapped out the dialectical relationship
which he had postulated to exist between law and economics.[xxii] We are left with a number of disjoint
statements, and that these statements neither sufficiently expound the
dialectic nor presented an approach free from ambiguity is made clear fro the
multiplicity of accounts which purport to be representative of the Marxist
approach to law. However, a number of
commentators have attempted to resolve the difficulties presented by Marx’s
legacy in order to establish the basis of Marx’ and Engels’ approach to
law. Indeed, Cain has gone so far as to
establish a sociological account of the dialectical relationship involved in this
process. In the following discussion, I
will deal with Marx’ and Engels’ approach to law, as it is expounded by Cain
and O’Malley.
Briefly, Marx and Engels regarded law as being a primary factor of what
could be conveniently described as a ‘social matrix’.[xxiii] Other less important factors in this matrix
would be such fields as religion, philosophy and the social sciences in
general. The overall effect of this
social matrix is to create an attitudinal or ideological unity between the
members of a this matrix: which are isomorphic to the members of a specific
society. The outward manifestations of
this social matrix are, amongst other things, state institutions: parliament,
the judiciary, the military, etc. The
members of the social matrix can be arranged hierarchically according to their
relative importance within this matrix.
These members would assume a different hierarchical order if such were
relative to different factors, such as the mode and means of production. For convenience, the term ‘economic matrix’
will be used to describe this relationship, the most striking feature of which
is the obvious differentiation of society into classes of people who hold
similar economic interests.
The “glorious” revolution of 1688-9 represents the culmination of a
gradual change in the status of the English economic matrix. Marx claimed that it saw:
“...the old landed aristocracy having been defeated
and the bourgeoisie not being able to take its place except under the banner of
moneyocracy, or the “haute finance”.” (Marx, 1968, 45)
In Marxist terminology, the ‘big land owners’ and the ‘upper strata of
the commercial bourgeoisie” replaced the old “reactionary feudals” [xxiv] in
the hierarchical structure of the economic matrix. The English social matrix mirrored these
changes. Parliament declared in 1702
that “[t]rade ought to be free and not restricted…”[xxv],
whilst in 1701, a Chief Justice claimed that Stuart attempts to restrain trade
were void because they were “…contrary to the liberty of the subject” [xxvi].
Basic to Marxist theory is the proposition that the social matrix is
subordinate to the economic matrix, or as in the above example, that the
Between the two matrices there is a great deal of interdependence, Engels
claiming that the social matrix would not exist without the economic matrix,
and that if state power were to run against the interests of the economic
matrix “... it [state power] will go to pieces in the long run.”[xxvii] Marx was stating the same thing when he said
that the essential “…character and direction [of law] are determined by the
economic conditions of …class.” [xxviii] Conversely, the social matrix has importance
to the economic matrix because although:
“The modern state [the manifestation of the social
matrix]… is only the organisation which bourgeois society provides for itself
in order to support the general conditions of the capitalist mode of production
against encroachments of the workers as well as of individual capitalists…” (Engels,
cited in Cain, 1974, 140)
The social matrix is also a means whereby the economic matrix can
establish such legitimising and coercive forces as to maintain the status of
the hierarchy in the economic matrix. As
it is not in the economic matrix’s interests to have to resort to the type of direct
coercion, as in the 1688-9 revolution, when ever its status is threatened, it
is necessary to give the social matrix the semblance of independence fro the
dominating class in the economic matrix.
As Cain shows[xxix], this
independence can take ideological or political forms which seem to indicate
that the repository of effective power is to be found within the structural
manifestations of the social matrix.
Indeed, it is then inevitable that this ‘false’ independence leads the
social matrix to the position where it can exercise some ‘real’ power over and
against the economic matrix. However the
extent to which elements in the social matrix can adversely affect the ordering
of the economic matrix is strictly limited by the dialectical relationship
between law and economics. Cain states
that:
“The legal conception shapes the external reality,
develops with it, and is developed by change within the new external world thus
created… The conception becomes the material world as the material world gives
rise to the conception.” (Cain, 1974, 145)
The parameters of this reciprocal effect are delineated by the economic
matrix; in its own interests, it might choose to lose a battle than to lose the
war.[xxx]
At first blush it would appear that the promulgation of 11&12
William III ch12 offers a significant challenge to the Marxist analysis. Not only does this act appear to subject the
interests of the dominant class to crucial restrictions, but this act was also
generically operative against people, the Colonial Governors, who, in the
historical context, were important elements of a social matrix structure which
protected the economic matrix’ status.
The act was and remains a doubled edged weapon. Not only could it be used by the dominant
economic class to further their interests in critical areas, but it could be
used to defeat such interests by non-dominant classes in the economic
matrix.
The Act then, from the start indicates a cleavage of interests within
the dominant economic class. The
commercial bourgeoisie’ and the landowners’ interests were already satisfied by
the existence of the Board of Trade and the Lords Commissioners of Trade. The Act. Prepared by Solicitor-General
Hawles, actually was not in the primary interests of these classes as it left
the way open for other non-dominant classes in the economic matrix to effect
changes in what had become a critical economic area. The Marxist approach to law would deny the
possibility of the Act actually being used to defeat these critical interests,
and if fact the Act was not used in this way.
By the time the Act was used to defeat the governor, his office was no
longer of critical importance to the dominant economic class.
The equality to commence proceedings was only such “on paper”.[xxxi]
It is possible to construct hypothetical cases within the framework of
the Act wherein the Marxist account of law would be sufficiently contraverted
as to be disproved.[xxxii] Had the Act
been used against British influence in the June 1976 disorders in
The subordination of the governor of the colonies and plantations after
the Glorious Revolution firstly to the Board of Trade and then the local
Assemblies or ‘planters’ reflects the use of the Act through this period. It
shows a subordination of the legally irresponsible and independent position of
governors in their own local social matrix to the interests of the dominant
economic class. The latter use of the
Act, whilst also altering the position of the governor in this matrix [by
altering the definition of what was legally and morally acceptable], did not
subvert the critical interests of the economic matrix, and, hence, in Marxist
terms, was not effective.
[DISCUSS need to then discuss the difference between the law being in place
and actions taken under the law.
Conclude that the Marxist analysis does not assist in predicting
outcomes, simple provides a lexicon for describing the outcome. Eg no more significant than the winner was
the winner.]
[i] for an account see Hill, C., Reformation to Industrial
Revolution,
[ii] Guttridge, G., The Colonial Policy of William III,
[iii] Exceptions being the proprietal colonies:
[iv] see letter from Randolph to the Lord Commissions of
Trade in 1699, in Calendar of State Papers, Colonial Series, America and West
Indies, 1699, Public Records Office, G.B., 1860+, [hereafter cited as SP/CS]
a.326
[v] Commons Journal, vol.10: pp 493, 546 ,457 ,493… vol.11: petitions on
[vi] Commons forced the King’s hand.
[vii] 2 Lutwyche 944
[viii] 1 Salk. 396
[ix] The only other case of the pre-Act operation period is
Dutton v. Howell Show. 24, a reserved decision similar to the cited two.
[x] Colonel Bayard found out how risky when he was tried
for high treason for attempting to petition these bodies: The Case of Colonel
Nicholas Bayard, 14 How S.T. 471
[xi] SP/CS, 1700, a.566
[xii] 6 Anne, ch 41; 7&8 Will III, ch 22; 13 Geo 2, ch 63; 24 Geo 3, ch 85; 42
Geo 3, ch 83
[xiii] Hill, op cit, 1861, p. 285
[xiv] SP/CS, 1700, Feb 2nd
[xv] As in later Acts such as 42 Geo 3,
ch.85… or under most Constitution Acts.
[xvi] Ogg, D.,
[xvii] 17 How.S.T. 707; also cited in
Greene, E., The Provincial Governor in the English Colonies,
[xviii] Dickerson, O., American Colonial
Government, 1912, p.34.
[xix] Greene, op cit, p51ff and p202 gives
a brief account of this.
[xx] Much of the evidence in Mostyn’s Case
was concerned with the low origins of the complainant Fabrigas, and justice
Gould’s summation reflects this evidence.
An Analysis of the witness brought forward in R. v Picton 30 How. S.T.
225 emphasises this – the only notable prosecution witness was a local priest.
[xxi] Note that Governors Wall and Picton
were not sued under the Act but under the similar 42 Geo 3, ch.85 and 33 hen 8,
ch 23. The language of the prosecutor in
the Wall case, the Attorney General, Sir Edward Law was ermeated with the language
of the Act; a circumstance to be repeated by him as Lord Ellenborough, in
Picton’s Case.
[xxii] Cain, M., “The Main Themes of Marx’ and Engels’
Sociology of Law”, British Journal of Law and Society, v.1, 1974, p.136
[xxiii] The term “social matrix” corresponds with the
“traditional” Marxist “superstructure”.
Likewise, “economic matrix” corresponds to economic “substructure”. Both substructure and superstructure, as
terms, are archaic and misleading.
[xxiv] Marx, K., On Colonialism,
[xxv] Hill, C., A Century of Revolution 1603-1714,
[xxvi] Ibid: This statement is probably more significant in
indicating change, as law is a most conservative profession.
[xxvii] O’Malley, P., Theoretic Idealisation and the
Interpretation and Development of Marx’s Theory of Law, unpublished paper,
cited Engels at p.9
[xxviii]
ibid, p.1
[xxix] Cain, op cit, p.140ff
[xxx] Cain, op cit, p.141
[xxxi] Engels claimed that such equality is
not real: Cain, op cit, 1974, p.142.
[xxxii] This is implicit in O’Malley, Theoretical
Implications…, pp 13-4
[xxxiii] esp Keith, Wade & Bradley
Notes:
This is one of a series of letters (2000-2020) that explores issues from slavery, law reform, deontic logic, plague and legal theory. Some were originally included in a legal text "Lessons" (2019) prepared for teaching legal theory to legal students. Others simply address or reflect on issues of the moment.
I have left the practice of law well behind. but occasionally i am asked to republish some of my lectures or extracts from my essays on contemporary law, many of which are included in a set of opinions I published a while back as 'Lessons'. This is an earlier version of the argument, replete with error and absent proofing. If i find a more complete version i will replace.
This is one of those pieces. I had jotted out this short piece many years ago and developed within it a simple critique of Marx's theory of law (if such a thing can be thought to exist) - only to come to an inconclusive outcome.
I publish the original notes here as I am unaware of any similar consideration of the prosecution of Governors of the Colonies or Plantations. Note that, it has long been my practice to ad lib basic elements of a lecture - these are indicated by the notation DISCUSS.
Return to Letters
Comments