Christian G. Fritz

Popular Sovereignty, Vigilantism and the Constitutional Right of Revolution

The focus of this article is the interplay of an indigenous American idea – popular sovereignty – and two American traditions: vigilante justice and constitutional conventions during the nineteenth century. While the traditions may seem unconnected, they are linked by the doctrine of popular sovereignty, which was based on the notion that “the people” are the ultimate and only legitimate basis for government and that the “the people” possess the right to reform, alter, or abolish their government at any time. What emerged in the debates over both the proposed California constitution of 1849 and the San Francisco vigilante activities of the 1850s were conflicting views about both the scope and means whereby the people could exercise this sovereignty.It is a commonplace that the American legal and constitutional order rests on the idea of a government “of laws and not of men.” The phrase implies the primary role that law plays in ordering and maintaining order in American society as well as the close identification of lawyers with that process. It would seem anomalous today to identify members of the legal profession with a vigilante movement that expressly denies the validity of the existing legal system. This reaction is a measure of the distance between our contemporary legal culture and nineteenth-century America. While legal vigilantism seems oxymoronic today, that was not the case in the nineteenth-century assumptions common to lawyers and laymen and involves the evolution of how Americans perceived the doctrine of popular sovereignty.The American struggle over the role of “the people” in the context of “altering, reforming, or abolishing” government did not come to an end with the mechanism adopted for constitutional change in the Federal constitution or by judicial review. The debate instead shifted to the states and was largely conducted within state constitutional conventions during the nineteenth-century. However, as popular government, majoritarianism, and democracy developed political meaning in the course of the nineteenth-century, a natural connection emerged with vigilantism. Popular sovereignty, rather than being one of a number of rationales for vigilantism, was the principal rationale for extra legal activities. Thus, one of the reasons that nineteenth-century vigilantism found support from lawyers, ironically, stemmed from its linkage with a constitutional tradition accentuating the sovereignty of “the people.”

A Nineteenth Century 'Habeas Corpus Mill': The Chinese Before the Federal Courts in California

In preventing the landing of Chinese ship passengers arriving in San Francisco in the late nineteenth century, federal officials triggered a series of challenges that would preoccupy Californias federal courts for nearly a decade. This litigation produced overwhelming docket pressures, created an acrimonious breach within the Ninth Judicial Circuit, and brought the local federal judges under harsh public criticism for frustrating the demands of the anti-Chinese movement. Despite such pressures, San Franciscos federal judges sought to hear Chinese habeas corpus cases with judicial fairness and offered--for a time at least--protection from some of the most virulent opponents of the Chinese. A series of laws restricting Chinese immigration beginning in 1882, served as an immediate cause of disputes over the validity of detaining Chinese petitioners. Two Judges in particular, Ogden Hoffman of the Northern District of California, and Lorenzo Sawyer, the states presiding circuit judge, played prominent roles in this habeas corpus litigation.

An Entrenched Bill of Rights for the United Kingdom: The Constitutional Dilemma

In 1974 Sir Leslie Scarman, in delivering the twenty-second Hamlyn lecture, proposed a written Bill of Rights for the United Kingdom that would be “entrenched” and hence binding on Parliament even without a written constitution. (Entrenchment is sometimes used to describe a process whereby an Act of Parliament incorporates a Bill of Rights but provides that any subsequent legislation will be deemed to be in compliance with that Bill unless it clearly manifests a contrary intention.) The controversy and constitutional commentary surrounding Scarman’s proposal in the 1970s continues to have relevance for the nature of the British constitution. Historically and still today theoretically, the unwritten British constitution rests on the principle of parliamentary sovereignty and the implication that Acts of Parliament are not subject to judicial review and that judges must adhere to the last expression of Parliament.This article suggests that entrenchment is not possible because it creates fundamental law by an Act of Parliament, something that for all its authority Parliament cannot do. Entrenchment attempts to alter fundamentally the structure of government without a corresponding change in constitutional premises. Proponents of entrenchment seek to achieve constitutional change without discarding the traditional theory of parliamentary sovereignty. Obviously, constitutional reforms would fare better if they were compatible with the orthodoxy associated with A.V. Dicey’s view of the British constitution, that the last expression of Parliament is the supreme law of the land. Unfortunately the essence of fundamental law and the nature of entrenchment force a conflict between theory and reform. Proponents of entrenchment advanced numerous arguments and precedents supposedly offering constitutional justification, seeking to reconcile the theoretical demands and implications of parliamentary sovereignty with entrenchment. Entrenchment, however characterized, involves a fundamental alteration of the legal and political order. An entrenched provision would serve the same function as a written constitution: law that the legislature could not change save by specified amendment. As fundamental law it must derive its existence from the ultimate source of legitimate authority – those governed – and not simply by legislative fiat. For entrenchment to be effective requires some form of explicit consultation with the people.The passage of the Human Rights Act of 1998 and the creation of a Supreme Court for the United Kingdom that began operating in 2009 have raised the specter of judicial review and challenges Britain’s constitutional legacy of parliamentary sovereignty. The Human Rights Act was passed to rectify the oddity that a British subject whose rights under the European Convention of Human Rights were being violated could not get legal redress in a British court, but had to seek relief from the European Court of Human Rights in Strasbourg. The Act requires judges to interpret all legislation as compatible with the Convention to the extent possible. If the legislation cannot be interpreted consisted with the Convention then the courts may issue “a declaration of incompatibility,” but the statute remains in force until and unless Parliament decides to alter the statute. Thus, parliamentary sovereignty remains theoretically intact.The tensions and ongoing debate over the nature of the British constitution reflect the desire to place human rights and liberties beyond the control of Parliament while still acknowledging the sovereignty of parliament.

Federal Justice in California: The Court of Ogden Hoffman, 1851-1891@@@Practicing Law in Frontier California

For forty years Ogden Hoffman presided over the federal district court for the Northern District of California, disposing of more than nineteen thousand cases brought before him. Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 considers a career remarkable for longevity and productivity and at the same time examines the operation of a federal trial court in nineteenth-century America - the cases adjudicated, their significance, and the courts impact upon the community. Solidly researched, Christian G. Fritzs book is unique in attending to the law on the level at which it was most often encountered by participants in legal actions. During his four decades on the bench, from the time of the California gold rush to the anti-Chinese movement of the 1880s, Hoffman dealt one-on-one with a cross-section of humanity: through his court came sea captains, seamen seeking their wages, wealthy steamship owners and distraught and injured passengers, and Chinese immigrants. Fritz shows him adjudicating land grant conflicts and bankruptcy cases and presiding over the admiralty, criminal, and common law and equity dockets. The author has examined thousands of Hoffmans cases to gain insight into how nineteenth-century federal trial courts were used, by whom, and with what effect. The successful use that a broad range of plaintiffs made of Hoffmans court requires a re-examination of theories suggesting that law of the period primarily developed and courts largely operated in ways that promoted commercial and entrepreneurial interest. Just as important, Fritzs sensitive analysis of an institution never loses sight of the proud life-long bachelor, native New Yorker, and scion of a distinguished family who always identified himself with his court. Christian G. Fritz is a professor of law at the University of New Mexico.