FIDUCIARY LAW AND THE LAW OF PUBLIC OFFICE.

• Author: Leib, Ethan J.

TABLE OF CONTENTS INTRODUCTION 1300 I. THE CO-EVOLUTION OF FIDUCIARY LAW, THE LAW OF PUBLIC OFFICE, AND REPUBLICAN POLITICAL THEORY 1305 A. The Emergence of a Law of Public Office 1306 B. The Emergence of Private Fiduciary Law in England 1310 C. The Crucial Seventeenth Century: The Law of Public Office and Republican Political Thought 1316 1. The Contested Idea of Monarchy 1316 2. Seventeenth Century Battles over the Nature of Officeholding Before the Civil Wars 1319 3. Kingship and Officeholding During the Interregnum 1321 4. Restoration of the Monarchy and the Continuation of Fiduciary Theories of Kingship and Officeholding 1327 D. Modern Fiduciary Law's Awakening--and Some of Its 1337 II. IMPLICATIONS 1343 CONCLUSION 1347 INTRODUCTION

Public law theorists who want to draw on fiduciary law to learn more about their subjects employ a conventional narrative: fiduciary law is private law but can be analogized or translated to illuminate relationships in public law. (1) However, the relationship between private and public fiduciary law may be more complex--historically, causally, and conceptually--than one of analogy or translation. (2) We aim here to begin making the case that the public-private distinction in fiduciary law is more porous than has been understood thus far and to explore some of the potential consequences of that finding, if it is correct.

Our contribution begins with describing a distinctive law of public office that emerged over centuries in England--a body of rules, oaths, practices, and norms defining what it meant to carry out the duties of public executive office properly. This law of public office crystallized in important ways in the seventeenth century. (3) In anachronistically modern terms, we can say that some of this law's prominent features look similar to the fiduciary duties of care and loyalty, as we see them today. (4) The law of public office often drew upon the language of trust, trusteeship, guardianship, and account to describe its claims that government officials needed to serve the public good, not their own private interests; could not act ultra vires; could be required to account to the public for their conduct in office; needed to act with impartiality, honesty, and diligence; and could be removed from office for misdeeds. (5) Imposing these norms on officeholders was not merely ethical or rhetorical, nor was this emergent ideology mere political theory; hard law controlled officers' conduct and motives. (6) Parliament legislated to impose oaths, requirements to account, and rules of correct official behavior. (7) Parliament used its investigatory powers to correct wrongdoing by public officials. (8) And both the Crown and, at times, private litigants could invoke the courts when officers failed in performance, rendering the law of public office oftentimes plainly juridical. (9)

Seventeenth century political theory also drew upon the trust, account, and guardianship language (while providing a framework supporting fiduciary development of the law of public office), especially the republican thought of John Locke, John Milton, James Harrington, Marchamont Nedham, and the Levellers, among others. (10) Arguing against divine rights monarchists, and drawing on Calvinist and Lutheran thinking on resistance to tyranny, these theorists claimed that government is created through a delegation of power with the people's consent; power must be exercised under the law solely for the people's benefit; and rulers can be opposed and deposed when the rules governing the monarch or other ruler are violated and the people's rights endangered. (11) As we hope to show, while these developments in political theory took inspiration from a discourse that sounded in fiduciary government, the positive law of office similarly drew upon developing conceptions of loyalty, care, and account. (12)

Although Cromwellian repression and then the restoration of the monarchy in 1660 meant that the most radical of these ideas would lay dormant for a time, these concepts continued to influence English thought and governance, including in the North American colonies. (13) Putting aside the violent and revolutionary implications of some of the claims in this body of political thought, the views advanced by those thinkers about the ultimate source of political authority (popular sovereignty) and the proper view of public office (created and bounded by standing laws that constrained authorizations; aimed at the public good, not private gain; and properly marked by honesty and impartial execution) are conventional wisdom today in Anglo-American law and political culture. (14)

Running parallel and occasionally overlapping with important developments in the law of public office, the private law of trusts started taking its modern form in the period running from the late 1600s into the early 1800s. (15) While the common law of account was ancient and the figurative use of trusteeships for conceiving of public offices can trace back to Roman law ideas, (16) it is hard to ignore a fertile period of apparent codevelopment that occurred in this period we study. Just as public law developed parameters for holding public officers accountable through judicial, political, and moral frameworks, the common law and equity also concretized their approaches to constraining private fiduciaries--doctrines and remedies that remain with us to this day. (17)

During the time period we investigate, modern distinctions between public and private office did not yet fully exist; that fact supports our effort to problematize those distinctions. (18) For instance, corporations were created by statute or royal charter, and corporate directors were viewed in many ways as public officials. (19) What are today quintessential private fiduciary offices, such as guardian, executor, or administrator, could sometimes be created and filled with a specific named person by statute. (20)

The history we relate here tells us something important about the possibility of mutual learning between the fiduciary aspects of the law of public offices and private fiduciary law and suggests caution about treating these bodies of law as if they come from entirely different sources. (21) We are not the first to notice fiduciary language and concepts in the work of some seventeenth century English thinkers. (22) Our contribution here, and suggestion for future research, is to note the striking coincidences of timing, language, and conceptual apparatus in the development of private fiduciary duties, this body of political theory, and the law of public office--coincidences that may suggest direct influence and borrowing.

Obviously, the historical connections between the duties that constrain public and private offices--and their manifestations in public and private law (23)--do not entail a need for full harmonization in the respective rules that control different kinds of fiduciaries. (24) Even within the private law areas that are part of modern private fiduciary law--for instance, agency, partnership, trust law, corporate law, and the law governing lawyers--we do not see or expect to see perfect harmonization. Different institutions, political economies, and local design problems generate differences in applications of the duties of loyalty and care. We do not claim that public offices were understood to be literally the same thing as what today we call private law fiduciary offices. For instance, a tax collector neither was nor is literally a trustee, subject to every precise duty, legal relationship, and remedy imposed by Chancery. (25) But there were undoubtedly similarities in how the duties of the officeholders were discussed. Understanding those similarities should not be ignored by an approach, seen in a recent article by Samuel Bray and Paul Miller, that in effect argues that either there is shown to be an exact identity between private fiduciary law and the law of public office--and all their pertinent remedies--or else scholars exploring linkages are engaged in "failings," "misreading[s]," and "mistakes." (26)

In this Article, we can do no more than sketch support for the suggestion that it may no longer be appropriate for public law scholars working with fiduciary concepts to think they are misappropriating ideas wholly extrinsic to public law. We want to plant and grow the idea that we very well might not have the fiduciary law we know today in the private law without some cross-pollination from the law of public office and republican political theory in the seventeenth century and to tentatively explore some of the implications for this new perspective on the public-private distinction in fiduciary law.

The remainder of this Article proceeds in two main parts. Part I contains historical description and analysis, tracing the genesis and evolution of private fiduciary law, the law of public office, and related political theory, which rejected royal absolutism and viewed government office, including the monarchy, as conditionally granted for the good of the people. As noted, we argue that there may have been not only coincidental timing but also codevelopment and borrowing. Part II sketches some implications of viewing the public law office and private fiduciary law as having common roots.

1. THE CO-EVOLUTION OF FIDUCIARY LAW, THE LAW OF PUBLIC OFFICE, AND REPUBLICAN POLITICAL THEORY

   In this Part, we take a first cut at setting out evidence of the striking linguistic and conceptual similarity, as well as apparent contemporaneity of development--mostly centered in a fertile period of a little over a century starting in the early 1600s--of fiduciary law, the law of public office, and seventeenth- and eighteenth-century English political theory of the republican variety.

   Let us also say a word about method before we lay out the evidence. During the time period we examine, words such as "trust" and "account" (and their variants) had and still...