Friday, July 29, 2011

“But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment.  It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.  These are,”

“1. The constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.”

“2. The limitation of the king’s prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. …”

“3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries.  Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. …”

“4. If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. …”

“5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.  Which is also declared by the same statute 1 W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

Thursday, July 28, 2011

A Few Observations

At this point, I think it would be appropriate to make a few observations to draw together the materials that I have been posting at this site.  Some of them have had a direct and obvious relation to the Constitution, such as, for example, the posts concerning the right to keep and bear arms.  Others have been more tenuously related to it -- such as those posts which concern natural law and certain rights that were recognized and established (and which began, of course) before the United States Constitution was made and ratified.  For the first of these two, there probably is no need to add anything.  The second type, however, may need clarification: why have I posted this on a site for the intelligent study and conservation of the United States Constitution?

The content of these posts tends to establish, first, not only that there is such a thing as natural law, but that it was well-established in our legal and philosophical traditions when the Constitution was made; that while its rules were not agreed upon in great detail, its general principles and effects were much less controversial; that the establishment of the Constitution was founded in natural law (in the manner by which it superseded the Articles of Confederation and Perpetual Union); that, in many points, an understanding of natural law is as indispensable to properly understanding the Constitution as is an understanding of the English language; and that, in many points, the provisions of the Constitution either reinforce and complement the rules of natural law or else establish a certain view of aspects of natural law.

Secondly, the posts demonstrate what I think is more widely admitted, that a highly developed English/American legal system and tradition existed at the time of the making of the Constitution; that a knowledge of this system is needed in order to correctly understand much of the Constitution; that to some extent, the rules and principles of this system were considered immutable, and the Constitution was written with the expectation that they would remain in use and effect (which is not to say that the Constitution necessarily requires them to remain in use and effect, but when reason and justice clearly demand something that the Constitution, or a state constitution, does not -- that the right to self-defense be recognized, for example -- which, additionally, was established in that legal system and legal tradition, the fact that the Constitution does not expressly call for it may be an argument in favor of it, not against it, if it was left out because it was so obvious and well-established, rather than because it was unimportant); that more primary and secondary sources on this law than we could possibly use are available to us, and it is possible with scientific precision to ascertain to what the Ninth Amendment refers, at least in part; that natural law was an element of this system; and that the enumerated rights of the Constitution are better seen as the tips of icebergs than as lights from which any sort of penumbra might be thought to emanate.

These are not well-known, well-established ideas, but the evidence (and reason) suggests that they are true.  This is why I consider much of the information that I have been posting to be relevant to the topic of this blog, and to anyone who is interested in understanding and conserving the magnificent Constitution that Americans are so fortunate to have.

Blackstone on Liberty of the Person

II.  Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals.  This personal liberty consists in the power of loco-motion, of changing situation, or removing one’s person to whatever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.  Concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws.”

“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end to all other rights and immunities.  Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject.  To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.  But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.  And yet sometimes, when the state is in real danger, even this may be a necessary measure.  But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient.  For the parliament only, or legislative power, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing.”

“The confinement of the person, in any wise, is an imprisonment.  So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.”

“A natural and regular consequence of this personal liberty, is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law.”

Tuesday, July 26, 2011

Blackstone Concerning the British Constitution

Keep in mind that here, he refers to the British Constitution, which is not to say that the statement is not true of the American Constitution:

“But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest.  For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the two, there would soon be an end of our constitution.  The legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to Mr. Locke (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.”

Monday, July 25, 2011

Blackstone, Briefly, on the Authority of Natural Law

“This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.  It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”

Sunday, July 24, 2011

Blackstone, Briefly, on Natural Law

“This will of his maker is called the law of nature.  For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reasoning to discover the purport of those laws.”

Saturday, July 23, 2011

Blackstone: How To Think of the Study of the Law

“He should consider his course as a general map of the law, marking out the shape of the country, its connexions and boundaries, its greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet.  His attention should be engaged, like that of the readers in Fortescue’s inns of chancery, ‘in tracing out the originals and as it were the elements of the law.’  For if, as Justinian has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence.  These originals should be traced to their fountains, as well as our distance will permit; to the customs of the Britons and Germans, as recorded by Caesar and Tacitus; to the codes of the northern nations on the continent, and more especially to those of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian, or imported by Vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as Spelman has entitled it, the law of nations in our western orb.  These primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom.”

Blackstone on the Study of Law

“If therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial Rome; if he has done this or any part of it (though all may be easily done under as able instructors as ever graced any seats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation.”

Blackstone: To Truly Understand The Law

“Making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors, will find he has begun at the wrong end.  If practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded; the least variation from established precedents will totally distract and bewilder him: ita lex scripta est is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice.”

Friday, July 22, 2011

Blackstone On The Common Law

“That antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest.  This had endeared it to the people in general, as well because its decisions were universally known, as because it was found to be excellently adapted to the genius of the English nation.”

Blackstone, Discussing Competent Legislation

“The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament...”

“[I]gnorance of the laws of the land hath ever been esteemed dishonourable, in those who are entrusted by their country to maintain, to administer, and to amend them.”

Tuesday, July 19, 2011

Blackstone's Conclusion

I just completed my examination of William Blackstone's Commentaries on the Laws of England, and near the end, I found some remarks of his concerning the principles of the English laws and constitution (which were inherited by the original states, subject to their modifications), and they work very well in reference to the American Constitution, ignoring the reference to nobles (and, of course, where he refers to England instead of the United States):

“Of a constitution, so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is justly and severely its due … To sustain, to repair, to beautify this noble pile, is a charge intrusted principally to the nobility, and such gentlemen of the kingdom, as are delegated by their country to parliament. The protection of the Liberty of Britain is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and noblest inheritance of mankind.”

Sunday, July 17, 2011

The Soundness of Criminal Law Affects Everyone

Blackstone, Commentaries on the Laws of England, Book IV:

“The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown law has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude, that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events, which the compass of a day may bring forth, will teach us (upon a moment’s reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.”

Wednesday, July 13, 2011

Blackstone on Property, Part I

“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few that will give themselves the trouble to consider the original and foundation of this right. … But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.”

“In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man ‘dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.’ This is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose, that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.”

“These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them, had it been possible for mankind to have remained in a state of primaeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the antient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein ‘erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset. Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing; nor could be extended to the use of it. For, by the law of nature and reason, he who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular: yet whoever was in the occupation of any determinate spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force; but the instant that he quitted the use or occupation of it, another might seise it without injustice...”

“But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession; ---if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nests, nad the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man’s house and home-stall; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into an established right; but principally because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant: which bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein. …”

Saturday, July 9, 2011

Edward Coke on Confirmationes Chartarum

Upon discussing a statute confirming Magna Charta (in the second part of his Institutes in 1628), Edward Coke wrote,

“But here may be observed, that when any ancient Law or Custom of Parliament is broken, and the Crown possessed of a precedent, how difficult a thing it is to restore the Subject again to his former freedom and safety.”

Edward Coke on Due Process of Law, Part 1 of Many

It has been long and firmly established that "without the judgment of his peers or by the law of the land" and "due process of law" have exactly the same meaning (for nearly 400 years, anyway), the former having appeared in Magna Charta (chapter 39 in the original and chapter 29 in each subsequent version) and many of our state constitutions, and the latter having been written into the Fifth and Fourteenth Amendments to the United States Constitution. In the following, from 1628, the celebrated jurist Edward Coke discusses an aspect of the rights protected by such clauses:

De libertatibus. This word, libertates, liberties, hath these significations: 1. First, As it hath been said, it signifieth the Laws of the Realm, in which respect this Charter is called, Charta libertatum. 2. It signifieth the freedoms that the Subjects of England have; for example, the Company of the Merchant Tailors of England, having power by their Charter to make Ordinances, made an Ordinance, that every brother of the same Society should put the one half of his clothes to be dressed by some Clothsworker free of the same Company, upon pain to forfeit r s. & c. and it was adjudged that this Ordinance was against Law, because it was against the Liberty of the Subject, for every Subject hath freedom to put his clothes to be dressed by whom he will, & sic de similibus: And so it is, if such or the like grant had been made by his Letters Patents.”

“Liberties signifieth the franchises, and priviledges, which the Subjects have of the gift of the King, as the goods, and Chattels of felons, outlaws, and the like, or which the Subject claims by prescription, as wreck, waif, stray, and the like. So likewise, and for the same reason, if a grant be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that grant is against the liberty, and freedom of the Subject, that beore did, or lawfully might have used that trade, and consequently against this great Charter. Generally all monopolies are against this great Charter, because they are against the liberty and freedom of the Subject, and against the Law of the Land.”

Thursday, July 7, 2011

Nathaniel Chipman, on Blackstone, 1793

I consider Vermont's Nathaniel Chipman, who was active in law during the formative years of the federal legal system under the Constitution, to be one of the most perspicacious of the writers who I have found on the topics of Natural Law and principles of government.  I think that this will eventually become clear to you, the readers, as I post more of his work at this site.  The following was written by him, discussing William Blackstone's definition of a law:

“If laws command or prohibit that, which is absolutely indifferent to the state, they deviate from the true spirit and principles of legislation in a free government. They are arbitrary. They agree not with the definition, which is a good one, of ‘commanding what is right, and prohibiting what is wrong.’ If they go farther, and command the violation, or forbid the performance of any moral duty, they become tyrannically unjust. In the former instance, instead of feeling an obligation, we feel ourselves insulted; in the latter we are filled with the utmost abhorrence of the laws. When the laws coincide with the principles above laid down, when they fully agree with the above definition, they are strictly binding on the consciences of men. They ought not to allow themselves an alternative.”

Monday, July 4, 2011

The Six Statutes

I believe I now know all six of the Six Statutes, which were made to reinforce the protections of Magna Charta:

The Six Statutes

1331: 5 Edward III 9: “Item, it is enacted, that no man from henceforth shall be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seised into the King’s hands, against the form of the Great Charter, and the law of the land.”

1351: 25 Edward III 4 (of Statute V): “Item, whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is accorded, assented, and stablished, that from henceforth none shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; and if any thing be done against the same, it shall be redressed and holden for none.”

1354: 28 Edward III 3: “Item, that no man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.”

1362: 36 Edward III, Roll of Parliament no. 9, 22: “First, that the Great Charter, and the Charter of the Forest, and other Statutes made in his time, and the time of his progenitors, for the profit of him, and his commonalty, be well and firmly kept; and put in due execution, without putting disturbance, or making arrest contrary to them by special command, or in other manner.” / “Our lord the king, by the assent of the prelates, dukes, earls, barons, and the commonalty, hath ordained and established, that the said Charters and Statutes be held, and put in execution, according to the said petition.” … “Whereas it is contained in the Grand Charter and other Statutes, that no man be taken or imprisoned by special command without Indictment, or other due process to be made by the law, and oftentimes it hath been, and yet is, many are hindered, taken and imprisoned without Indictment, or other process made by the law upon them, as well of things done out of the Forest of the king, as for other things; that it would therefore please our said lord to command those to be delivered, which are so taken by special command against the form of the Charter and Statutes as aforesaid.” / “The king is pleased, that if any man find himself grieved, that he come and make his complaint, and right shall be done unto him.”

1363: 37 Edward III 18: “Although it be contained in the Great Charter, that no man be taken or imprisoned, or put out of his freehold, without due process of the law, nevertheless divers persons make false suggestions to the King himself, as well for malice as otherwise, whereof the King is often grieved, and divers of the realm put in great damages, contrary to the form of the same statute: Whereof it is ordained, that all they that make such suggestions be sent, with their suggestions, to the chancellor or treasurer, and they and ever of them find sureties to pursue their suggestions; and endure the same pain that the other should have had, in case that his suggestion be found untrue; and that then process of the law be made against them: without being taken or imprisoned, against the form of the same charter, and other statutes.”

1368: 42 Edward III 3: “Item, at the request of the commons by their petitions put forth in this Parliament, to eschew the mischiefs and damages done to divers of his commons by false accusers, which oftentimes have made their accusations more for revenge and singular benefit, than for the profit of the King, or of his people, which accused persons, some have been taken, and sometime caused to come before the King’s council by writ, and otherwise upon grievous pain against the law: It is assented and accorded, for the good governance of the commons, that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: And if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.”

Sunday, July 3, 2011

Were the Founders Right?

If you have ever wondered whether the Founders correctly stated the rights of the English and principles of the English Constitution, which they had been trying to vindicate throughout the conflict leading up to the time of Independence, the answer is, "Yes, absolutely."  Here is a little of the evidence of that, from the Parliamentary Debates of 1627 and 1628, when the English sought to vindicate the same thing for themselves, against King Charles I:

“Resolved upon the Question, Nemine contradicente.

“I. That no Freeman ought to be detained or kept in prison, or otherwise restrained by the command of the King or Privy-Council, or any other, unless some cause of the commitment, detainer or restraint be expressed, for which by Law he ought to be committed, detained, or restrained.

“II. That the Writ of Habeas Corpus may not be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained though it be by the command of the King, the Privy-Council, or any other, he praying the same.

III. That if a Freeman be committed or detained in prison, or otherwise detained in prison, or otherwise restrained, by the command of the King, the Privy-Council, or any other, no cause of such Commitment, Detainer, or Restraint being expressed, for which by Law he ought to be committed, detained, or restrained, and the same be returned upon Habeas Corpus, granted for the said Party, then he ought to be delivered or bailed.”

And then taking into consideration the Property of the Subject in his Goods, they came to this Resolution, to which there was not a Negative; viz. That it is the ancient and indubitable right of every Freeman, that he hath a full and absolute property in his Goods and Estate; that no Tax, Tallage, Loan, Benevolence, or any other like Charge ought to be commanded, or levied by the King, or any of his Ministers, without common consent by act of Parliament.”

Saturday, July 2, 2011

October 14, 1774

Our rights are not limited to those that are declared by the Bill of Rights or that were written into the main body of the Constitution.  Up until the time of Independence (and after that point in time, more abstractly, in its principles) the Americans were fighting for the British Constitution and the rights and rules which formed it.  Are these not also ours?  If not, when did we surrender them?  They are summarized in the previous post, and immediately below.

From the Declaration of Rights and Grievances, by the First Continental Congress:

"The good people people of the several Colonies of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceeding of parliament and administration, have severally elected, constituted, and appointed deputies to meet and sit in general congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties may not be subverted:

"Whereupon the deputies so appointed being now assembled, in a full and free representation of these Colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare,

"That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights:

"Resolved, N. C. D. 1. That they are entitled to life, liberty, & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.

"Resolved, N. C. D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.

"Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

"Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed.  But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent.

"Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

"Resolved, 6. That they are entituled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

"Resolved, N. C. D. 7. That those, his majesty's colonies, are likewise entitled to all the immunities and privileges granted & confirmed to them by royal charters, or secured by their several codes of provincial laws.

"Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.

"Resolved, N. C. D. 9. That the keeping a Standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law. 

"Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation."

October 19, 1765

From the colonial congress which assembled to address the Stamp Act:

"The members of this Congress, sincerely devoted, with the warmest sentiments of affection and duty to His Majesty's Person and Government, inviolably attached to the present happy establishment of the Protestant succession, and with minds deeply impressed by a sense of the present and impending misfortunes of the British colonies on this continent; having considered as maturely as time will permit the circumstances of the said colonies, esteem it our indispensable duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties of the colonists, and of the grievances under which they labour, by reason of several late Acts of Parliament.

  1. "That His Majesty's subjects in these colonies, owe the same allegiance to the Crown of Great-Britain, that is owing from his subjects born within the realm, and all due subordination to that august body the Parliament of Great Britain.
  2. "That His Majesty's liege subjects in these colonies, are entitled to all the inherent rights and liberties of his natural born subjects within the kingdom of Great-Britain.
  3. "That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.
  4. "That the people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great-Britain.
  5. "That the only representatives of the people of these colonies, are persons chosen therein by themselves, and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.
  6. "That all supplies to the Crown, being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British Constitution, for the people of Great-Britain to grant to His Majesty the property of the colonists.
  7. "That trial by jury is the inherent and invaluable right of every British subject in these colonies.
  8. "That the late Act of Parliament, entitled, An Act for granting and applying certain Stamp Duties, and other Duties, in the British colonies and plantations in America, etc., by imposing taxes on the inhabitants of these colonies, and the said Act, and several other Acts, by extending the jurisdiction of the courts of Admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.
  9. "That the duties imposed by several late Acts of Parliament, from the peculiar circumstances of these colonies, will be extremely burthensome and grievous; and from the scarcity of specie, the payment of them absolutely impracticable.
  10. "That as the profits of the trade of these colonies ultimately center in Great-Britain, to pay for the manufactures which they are obliged to take from thence, they eventually contribute very largely to all supplies granted there to the Crown.
  11. "That the restrictions imposed by several late Acts of Parliament, on the trade of these colonies, will render them unable to purchase the manufactures of Great-Britain.
  12. "That the increase, prosperity, and happiness of these colonies, depend on the full and free enjoyment of their rights and liberties, and an intercourse with Great-Britain mutually affectionate and advantageous.
  13. "That it is the right of the British subjects in these colonies, to petition the King, or either House of Parliament.
"Lastly, That it is the indispensable duty of these colonies, to the best of sovereigns, to the mother country, and to themselves, to endeavour by a loyal and dutiful address to his Majesty, and humble applications to both Houses of Parliament, to procure the repeal of the Act for granting and applying certain stamp duties, of all clauses of any other Acts of Parliament, whereby the jurisdiction of the Admiralty is extended as aforesaid, and of the other late Acts for the restriction of American commerce."

Friday, July 1, 2011

September 17, 1774

"Whereas the power but not the justice, the vengeance but not the wisdom of Great-Britain, which of old persecuted, scourged, and exiled our fugitive parents from their native shores, now pursues us, their guiltless children, with unrelenting severity:  And whereas, this, then savage and uncultivated desert, was purchased by the toil and treasure, or acquired by the blood and valor of those our venerable progenitors; to us they bequeathed the dear-bought inheritance, to our care and protection they consigned it, and the most sacred obligations are upon us to transmit the glorious purchase, unfettered by power, unclogged with shackles, to our innocent and beloved offspring.  On the fortitude, on the wisdom and on the exertions of this important day, is suspended the fate of this new world, and of unborn millions.  If a boundless extent of continent, swarming with millions, will tamely submit to live, move and have their being at the arbitrary will of a licentious minister, they basely yield to voluntary slavery, and future generations shall load their memories with incessant execrations. -- On the other hand, if we arrest the hand which would ransack our pockets, if we disarm the parricide which points the dagger to our bosoms, if we nobly defeat that fatal edict which proclaims a power to frame laws for us in all cases whatsoever, thereby entailing the endless and numberless curses of slavery upon us, our heirs and their heirs forever; if we successfully resist that unparalleled usurpation of unconstitutional power, whereby our capital is robbed of the means of life; whereby the streets of Boston are thronged with military executioners; whereby our coasts are lined and harbours crouded with ships of war; whereby the charter of the colony, that sacred barrier against the encroachments of tyranny, is mutilated and, in effect, annihilated; whereby a murderous law is framed to shelter villains from the hands of justice; whereby the unalienable and inestimable inheritance, which we derived from nature, the constitution of Britain, and the privileges warranted to us in the charter of the province, is totally wrecked, annulled, and vacated, posterity will acknowledge that virtue which preserved them free and happy; and while we enjoy the rewards and blessings of the faithful, the torrent of panegyrists will roll our reputations to that latest period, when the streams of time shall be absorbed in the abyss of eternity. -- Therefore, we have resolved, and do resolve....

"2. That it is an indispensable duty which we owe to God, our country, ourselves and posterity, by all lawful ways and means in our power to maintain, defend and preserve those civil and religious rights and liberties, for which many of our fathers fought, bled and died, and to hand them down entire to future generations...."