On this day in 1787

August 22, 1787:

Mr. GERRY & Mr. McHENRY moved to insert after the second section, article 7, the clause following, to wit: -- "The Legislature shall pass no bill of attainder nor any ex post facto law."

Mr. GERRY urged the necessity of this prohibition, which he said was greater in the national than the state legislature, because the number of members in the former being fewer were on that account the more to be feared.

Mr. Govr. MORRIS thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder.

Mr. ELLSWORTH contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It can not then be necessary to prohibit them.

Mr. WILSON was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution and proclaim that we are ignorant of the first principles of legislation, or are constituting a Government which will be so.

The question being divided, the first part of the motion relating to bills of attainder was agreed to nem. contradicente.

On the second part, relating to ex post facto laws, --

Mr. CARROLL remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the state legislatures had passed them, and they had taken effect.

Mr. WILSON. If these prohibitions in the state Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle, & will differ as to its application.

Mr. WILLIAMSON. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the judges can take hold of it.

Docr. JOHNSON thought the clause unnecessary, and implying an improper suspicion of the national legislature.

Mr. RUTLEDGE was in favor of the clause.

On the question for inserting the prohibition of ex post facto laws.

N.H. ay. Mas. ay. Cont. no. N.J. no. Pa. no. Del. ay. Md. ay. Virga. ay N.C. divd. S.C. ay. Geo. ay.

Plan B

I'd may as well point out that a state's presidential electors do not necessarily have to be elected by the voters of the state through a general election. Article II, Section 1 of the United States Constitution provides, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." A state's legislature can choose to have that state's electors selected in a different way (though the selection still must take place on the day after the first Monday of November).

However, because the legislatures of many states would no doubt be reluctant to take advantage of this option, I should also point out that it is not necessary for states controlling a majority of the total number of electors to choose a different method in order to affect who is ultimately elected President. If enough states choose a different method that they succeed in preventing any candidate from winning a majority of electoral votes, the choice of a new President will be given to the U.S. House of Representatives, where each state's delegation would be able to cast a single vote, choosing between the top three recipients of electoral votes. 

"Aut" and "Vel"

When I was looking at the famous chapters 39 and 40 of Magna Charta, last year, once I had resolved my confusion of the Latin word "ut" with the early 13th century Norman-English court hand abbreviation of the Latin word "vel" (vl, which looked like "ul"), I noticed a discrepancy that I do not think I pointed out at the time.

Again, it seems unlikely to me that I would be the first person to notice a difference between the known, surviving copies of Magna Charta, so I assume that someone has noticed and pointed it out before.  Also, I can't entirely rule out the possibility that I am somehow mistaken, even once I believe I have considered every possible explanation for what I believe I have found.  However, for any readers who might find it interesting, I have decided nevertheless to post something about it.

The discrepancy is in what has come to be known as chapter 40 of the original, 1215 edition of Magna Charta: "Nulli vendemus, nulli negabimus aut differemus rectum aut iustitiam," meaning approximately "We will never sell, never deny or delay right or justice."  That is how the still legible one of the two Cotton copies and the Lincoln copy read, anyway.  However, I noticed that the Salisbury copy uses "vel" in place of the second "aut".  Subsequent editions of Magna Charta also use "vel" (though I found "aut" in a 1216 edition).  This difference does not affect the meaning of the sentence, and I do not know enough about the subject to draw any other conclusions from it ... so I won't.

Update (July 14, 2017):  I wrote above that I did not believe I had mentioned the discrepancy in 2015, when I first noticed it.  As it turns out, I did point out in 2015 that the Salisbury copy of Magna Charta uses slightly different wording in chapter 40 than the other extant original copies do.

The Bill of Rights of the United States

Earlier this year, I wrote that I had digitally cleaned up and enhanced an image of one of the original copies of the Bill of Rights of the United States, before now, I haven't posted it online.  I have decided to do so right now.

Though I intended in the beginning to digitally create a cleaner, restored version of the scanned copy of the original held and displayed by the National Archives, it would be more accurate to say of the final product that I traced the writing in the original image to create a faithful representation of that writing than that what I have created is the same document that I started with, but cleaner.  Considering that the document that I started with is itself really only a scanned, digital representation of the solid, original copy, it is debatable what language would be best for expressing what I actually did, but I can at least make sure that people who look at this know what they're getting.

This document isn't perfect, but I think it meets a need that otherwise is not yet served on the Internet (unless I overlooked similar documents online when I searched for them).

"Rectum vel Judiciam"

I do still wonder why the Salisbury Cathedral copy of Magna Charta reads "rectum vel iudiciam" in Chapter 40, unlike the other two surviving (and still-legible) copies of that original, 1215 edition.  Those other two copies read, "rectum aut iudiciam".

I assume that it is nothing more than an error made by someone who was responsible for writing out the words on each copy, but I am still curious.  I have not yet looked into whether anyone else has investigated it.  Once I have done that, I will report on what I find.  (Also, if anyone reading this knows what, if anything, those who may have already investigated this have discovered, please let me know.  Thank you.)

The Virginia Declaration of Rights

I have already quoted quite a bit of language from some of the early American state constitutions, but as a number of those constitutions themselves happen to point out, there is something to be gained from a frequent recurrence to fundamental principles.  Since today is the 239th anniversary of the Virginia Declaration of Rights, this is an appropriate time to make a point of re-familiarizing ourselves with it.

A Time When "Vel" Looked Like "Ut"

About a week ago, I wrote that I had noticed something unexpected in the surviving copies of the original, 1215 version of Magna Charta -- that at a couple of important points in the document, the word "ut" appears where "vel" has always been thought to have been used.  I found it difficult to believe that the world had failed to notice this in the nearly eight hundred years since Magna Charta was negotiated, approved, and first published, but every source that I had checked (other than the originals -- or so it appeared -- and with the additional exception of two nineteenth century German-language books on law) used "vel" where those original copies appeared (to me) unmistakably to read "ut".  As a result, even though I continued to feel as though I must somehow have overlooked or misunderstood something, I published the post about all of this.

I continued to look over the documents for the several days that followed, looking into everything I noticed along the way that I thought might make sense of this.  Then, a few days ago, I noticed that what I had read as "ut" appeared at many other points throughout Magna Charta.  Comparing again the surviving original copies of Magna Charta (using scanned, high-quality images of those copies) with what has traditionally been regarded as the true wording of its 1215 edition, I found that what I had believed to be the word "ut" appears in the original copies at each of the nearly one hundred points where "vel" is supposed to be.  Up to that point, I had been nearly certain that the word in question is "ut", even though I realized how unlikely it is for something like this to be overlooked by the entire world for such a long time.  The word happens to look exactly like a "u" followed by a "t", which one would ordinarily be justified in assuming is the Latin word "ut".  However, once I saw that the word appears in the original copies in all of the nearly one hundred places where "vel" should be, it became obvious that the word (even though it looks like a "u" immediately followed by a "t") was almost certainly "vel".  Additionally, though I had previously noticed that "Chapter 39" would have made more sense if the word had been "ut" instead of "vel", when I read * other sentences throughout Magna Charta with "ut" in place of "vel", those sentences no longer made sense at all.  The word is "vel", not "ut".

I have thought about why "vel" looks so much like "ut" in the surviving copies of the 1215 Magna Charta, and it now appears as though it is nothing more than a coincidence.  In all of its appearances throughout the charter, "vel" is abbreviated as "vl".  As written in Magna Charta (and in many other old documents), the letters "u" and "v" are difficult to distinguish from one another, so the abbreviation for "vel" looks like "ul", which can easily be confused with "ut".


* I know very little Latin, but I knew enough to understand how the substitution would affect the relationship between certain words.

Nisi Per Legale Judicium Parium Suorum Ut Per Legem Terrae

Update: I have now confirmed that the word (discussed throughout this post) that I initially read as "ut" is, in fact, "vel", just as it has almost always been given when the transcribed, Latin wording of the 1215 version of Magna Charta has been published.  The word certainly does resemble "ut", but I now know that as represented using the system of abbreviation used in Magna Charta and other documents in the early thirteenth century, "vel" is difficult to distinguish from "ut".  I have decided to leave this post as it was (other than in that this update has, of course, been inserted at the beginning of the post), but those who read it should keep in mind that I was writing about something that I now know to be false.

The 800th anniversary of Magna Charta is one month and one day from today, so I think I was reasonable (along with nearly everyone else, apparently) in assuming that we'd had enough time to correctly transcribe the Latin text from any or all of the three known surviving (and still-legible) original copies of the 1215 (and first issued) version of Magna Charta.  In a strict sense, our assumption was true, but everywhere I have looked (so far) for the original, Latin text of that 1215 version, I have found text which, though largely consistent with the wording of the 1215 Magna Charta, included at least one mistake.  That mistake would have been easy to make and difficult to catch, but it may have significantly affected the apparent meaning of what later came to be known as "Chapter 39" of the 1215 Magna Charta.

As I see them, these are the words of Chapter 39, "Nullus liber homo capiatur ut imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum ut per legem terræ."

In every publication (covering a variety of formats)*, however, in which I have found a version of the text of the 1215 Magna Charta or of its "Chapter 39", both of the places where I found the word "ut" (and placed it in the sentence above) were filled instead with "vel".  In later editions of Magna Charta, including the version which is regarded as a statute and was subsequently confirmed several dozen times, "vel" actually does stand in place of "ut", which I suspect either resulted in or resulted from the misreading of the original, 1215 version of the charter.  However, I am confident that I am correct in seeing "ut" (rather than "vel") in the three known surviving, legible copies of the 1215 Magna Charta.

When I first noticed this, I was looking at a high-quality, scanned image of one of the two "Cotton" copies of the 1215 charter.

The more interesting "ut" of the two is the one which precedes "per legem terræ," but the "ut" which appears earlier in the sentence did turn out to be more important than I had initially thought.

In this copy, the word used is clearly "ut", not "vel".  At that point, however, I wasn't sure whether to conclude that the wording of the 1215 charter is not what it has been believed to be or that the discrepancy was reason to doubt the identity or authenticity of that copy of the charter.  I wanted to know which was right, of course, and since I was already aware that there were two other known, surviving, and legible original copies of the 1215 Magna Charta, I found images of them online in order to see and decide for myself (though admittedly not in person) which words they used.

First, I looked at the image of the "Lincoln" copy.

The word preceding "per legem terræ" looks more like "ut" than like "vel" in the Lincoln copy, but it is not nearly as easy to read in this copy (or in the "Salisbury" copy, as it turned out) as in the still-legible Cotton copy.  As a result, the "ut" which links "capiatur" with "imprisonetur" near the beginning of the sentence is even more important than I had first thought:

Even if the "ut" preceding "per legem terræ" had become impossible to recognize as either "ut" or "vel" in the Lincoln and Salisbury copies, the clarity in both copies of the "ut" between "capiatur" and "imprisonetur" would have allowed us to conclusively confirm that which initially seemed so implausible: that at least one "ut" in these three copies of the 1215 Magna Charta somehow came to be recorded elsewhere as "vel", and we did not notice it until a month and a day before the charter's 800th anniversary.

In the Salisbury copy, the "ut" which is followed with "per legem terræ" looks a little distorted, but it still appears to be the letters "u" and "t", and I do not think it looks at all like "vel".

The other "ut" is easily identifiable as "ut".

The Articles of the Barons and the 1216 and 1217 versions of Magna Charta also appear to use "ut", not "vel", in Chapter 39.

For all of these reasons, I am certain that the word is "ut".  I am a bit less confident in my impression that what I have noticed is unknown to other people (including those who care which Latin words actually do appear in "Chapter 39" of the 1215 version of Magna Charta), but I expect to learn a little more about that from their reactions as I share this information with them.

* My Google searches for this did turn up two results (which Google seems to have rounded down to zero, though I do not know what the purpose of that was:

 ...), though both of those books were (apart from the Latin, of course) written in German.  Being written in German would have tended to prevent people from reading them who were already familiar with the Latin text of the 1215 Magna Charta as it had been represented in English-language books, and that would have reduced the probability that someone would notice the difference between the two versions of the Latin text.