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.

A Clean Copy of the Bill of Rights, Finally

For the past several months, I have been working on cleaning and enhancing an image of a copy of the "Bill of Rights" of the United States.  The original image, which I found on the website of the Library of Congress, is itself a fairly high-resolution image.  Unfortunately, the original document -- the hard copy that was created over 220 years ago and which was scanned in order to create the digital image now found on the Library of Congress website -- is faded, stained, and barely legible.  It looks as though it had spent many of its years folded and stored in somebody's glove compartment (taken out only whenever the owner was eating lunch in the car and needed to use it as a napkin).
 
I noticed this late last year when I decided to compose a cleaner-looking version of the background image for this website.  In order to create that new background image, I returned to the sources of the phrases seen in the background in order to make higher-quality versions of those phrases to take place of the rough and difficult-to-read versions that I had used in earlier versions of the background. Since many of those phrases were taken from the Bill of Rights, I thought (incorrectly) that I could save myself time and effort by cleaning up that entire document at once instead of working on the areas that I needed one-at-a-time. I quickly realized that cleaning up the entire document would take longer than I had initially thought, but by that time, I had a new reason to finish the work: We deserve to have a presentable reproduction of that early, engrossed copy of the Bill of Rights, and (unless I simply overlooked it when I was searching for one) no one had yet created one.

I am writing all of this now because my work on this enhanced copy of the Bill of Rights is finally finished. There is room for improvement, of course, but I have realized that this kind of project can never really reach a point at which it would be objectively correct and complete (particularly considering that my project involved altering a digital copy, not cleaning or restoring a hard copy). However, I am satisfied with the way that it looks at this point; I consider it complete.

Indiana's 1816 Constitution

Indiana became a state and was admitted to the union (the United States of America) 198 years ago today, so I enhanced (marginally) some images of the preamble and bill of rights from Indiana's original, 1816 constitution in order to post them on this site.

Here they are:

The British Parliament As The Default Form Of Government In America

The vote taking place tomorrow in Scotland to decide whether that country will claim (and receive) its independence of the United Kingdom of Great Britain and Northern Ireland deserves the attention that the world has given it.  Many of the reasons for that are pretty obvious, considering that the United Kingdom is one of the world's most influential states and that the independence of Scotland would most likely reduce that influence (or at least change the effect that the combined influence of those countries has).  The independence of Scotland would have a significant practical impact on the world and, of course, on the countries of which the United Kingdom is now composed.

However, the vote has also made me think about what we can learn about the nature and extent of the powers of the UK Parliament (and its predecessors, the Parliaments of Great Britain and of England), the Constitution of those countries, and the implications of the theory of government behind them, from the chain of legal authority for the vote and for the potential for all of it to actually result the independence of Scotland.  I am particularly interested in the lessons to be learned from it because of what those lessons ought to mean for certain doctrines of law and theories about government in the United States -- doctrines and theories which define legislative power in America as inherited from or analogous to that of the former Parliament of Great Britain.

For now, the prevailing creed in the American legal system in relation to the scope and extent of the legislative power in the abstract is that while the government of the United States has no authorized powers other than those which are authorized by the Constitution, the legislative power of each state is limited only by its own constitution and by the United States Constitution (or laws made pursuant to the Constitution, under its authority).  With those exceptions alone, the legislative power of a state is said to be "plenary", or complete, and "complete" is made to refer either to the legislative powers belonging to Parliament or else to the complete set of all legislative power conceivable.  On this site, I have often pointed out that that idea of what "plenary" legislative power includes is flawed (at least if it is limited to legitimate legislative power -- it does not make sense to me that a legal system might choose to make no distinction between what is legitimate and what is illegitimate, but when a legal system has chosen that, it will undoubtedly regard the power of a legislature as incomplete if it has legitimate power but not illegitimate power).  The problem with that idea is usually in one way or another that it depends upon the false and unfounded assumption that the natural or logical baseline or default for legislative power is "omnipotence" like that which has for centuries been attributed to Parliament.

American courts might not have found that theory so persuasive or appealing if it weren't for the extent to which American constitutions reject it and limit the damage it could otherwise have done.  After all, while it is only the legislative power of Parliament which is used as the measure of plenary legislative powers, all governmental power in Great Britain had been either directly or indirectly under the control of Parliament long before American Independence.  In general, the executive and judicial powers were not directly administered by Parliament, but the executive officers and members of the judiciary were not only not guaranteed any amount of independence of Parliament by the Constitution of Great Britain -- they held their offices and powers subject to the absolute power of Parliament to alter, transfer, or annihilate those offices and powers and to annul or reverse any act of law which they had taken (or to take any such act which had not been taken), and to the absolute power which Parliament possessed over every subject -- including bills of attainder.  (Parliament ultimately proved to have power to alter its own composition, though that had not been established at the time of American Independence.)  Most of this was done by passing bills into law in a way which Americans might not think qualifies as legislation but which did follow legislative forms and seems as eligible to define "plenary" power in America as would be anything else Parliament did under those same forms.  Because higher American positive law (either the state or U.S. Constitution or valid, constitutional federal law) would regulate and restrain that power as it exists in each of the states, it would not necessarily make a practical difference in America whether the plenary power of a U.S. state would in the absence of any higher law extend to everything which Parliament might have done.  However, though this limits the potential injustice and damage which imagining a U.S. state's legislature's plenary power to be equal to the vaunted powers of Parliament can actually cause, it also protects that notion's adherents ever being under any serious pressure to think it through or to explain to the rest of us why we should agree with them that such an absurd, unjust conception of rightful state power is the proper measure of the power of each of the U.S. states (other than to the extent to which we have succeeded in expressly repudiating that conception and forbidding our governments to operate that way) simply because Parliament wielded such power and claimed that it did so by right.

The significance of the vote in Scotland is that it provides us with another illustration of how the theory of governmental power whose advocates attributed "omnipotence" to the imperial Parliament is irrational and, as a result of the theory's own defects, could not be made to comply with reason even if it could be made to comply with justice.  Though efforts have always been made to dignify and reinforce the powers claimed or actually wielded by Parliament, as its powers grew and developed over the past eight hundred years, those powers and the changes in them over time have in truth been defined by and have depended (as is generally true of the acknowledged, established sovereign powers anywhere) prospectively on the powers asserted by it and all of the factors which affect whether the behavior of the people in its jurisdiction would become consistent with that which its lawful use of those powers could have been expected to bring about and then retrospectively on whether people would later look at what followed the assertion of the power and then agree, "Yes, it did have that power," even if no one could have been able to say that for certain until Parliament had managed to make that power "stick".  Before the last years of the 17th century, though Parliament had already become very powerful in theory (and to a lesser extent in practice), this power was not infrequently challenged by the king.  The kings' challenges to that power did not come in the form of arguments in front of a judge but instead in that of a denial of Parliament's power and of conduct in disregard of Parliament's claims of power and right.  The kings' success in all of this was variable, but the controversy was settled not when a court decided in Parliament's favor but rather when a revolution took place, Parliament made its claims of rightful power "stick", and the king fled the country.  Within two decades, Parliament proved that it had authority to 1) enact into being its own legitimate identity as the English Parliament, 2) conclusively establish that the throne of the kingdom had become vacant, 3) invite its choice of royalty from outside the kingdom to ascend to that throne, 4) establish and define the bloodline along which the crown would descend (from the new king and queen), 5) impose a permanent limit on the length of time which may be allowed to pass between the beginnings of successive parliaments, 6) replace that permanent limit with a different, higher permanent limit, 7) unite the kingdoms of England and Scotland (with the concurrence of the parliament of Scotland), and 8) make further changes to the future descent of the crown.

Just for now, I'll skip about three centuries (including that time when Parliament attempted to exercise powers over America which were relatively plausible compared with the rest of what it supposedly had the legitimate power to do but which Americans determined were instead arbitrary and illegal -- and which Americans slowly and carefully but firmly began to treat as such -- leading to Parliament escalating the conflict again and again with more severe, more unreasonable measures, which Americans resisted as arbitrary and illegal, with American Independence ultimately resulting from it all) to the present.  One of the reasons why it seems so strange to me that the vote in Scotland is even taking place is that as a general rule, though there have been exceptions (which often would only have been possible to identify in retrospect), the power of Parliament does have one limit: it cannot take away the powers of later Parliaments. Parliaments have often attempted (by enacting laws) to bind future Parliaments.  What exactly resulted from those attempts varied in the specifics from instance to instance, but in most matters, I do not think an earlier Parliament has ever prevailed against a later Parliament which chose to defy the earlier one.  However independence of one of the component kingdoms of the United Kingdom is not an ordinary matter.  Now, if Parliament itself had simply granted independence to Scotland, that would have presented an issue interesting enough: an attempt by Parliament to retract independence that it had granted (Canada's, for example) could very easily fail, even if Parliament were to enact that retraction.  It would discover that it isn't quite that omnipotent.  The independence of Scotland, however, would deprive future Parliaments of power in another way: it would prevent the existence of any future Parliaments of the United Kingdom.  Scotland and the remainder of the United Kingdom could always vote in the future to reunite, but otherwise, no future United Kingdom Parliament would have the power to undo what the last United Kingdom Parliament had done because no future United Kingdom Parliament would exist.

Even though the issue of independence for Scotland is about to be decided by a vote of Scotland's electors rather than by an act of Parliament itself, the issue just discussed will still be present if Scotland ultimately does choose independence, but there will be an additional issue as well: Parliament gave to another body authority which that body used to authorize Scotland to vote on assuming its independence.  Parliament could presumably retract the authority of that body or retract that body's decision to authorize Scotland to grant itself independence, but it could not retract independence (probably) after Scotland opts for it (if it were to do so).  Considering only this, Parliament still ultimately seems to have all the power.  However, authority which it has already given to that body may soon be seen to have been enough to allow that body to set into motion the dissolution of the United Kingdom and the abolition of the Parliament of the United Kingdom of Great Britain and Northern Ireland.

I do not deny that it is possible to maintain a functioning system of government with parliamentary "omnipotence" as its supposed first-principle, but I do think that participating in that system makes it necessary to make peace with the reality that the theory of the system often will not make any sense.

Nobody will be able to argue with the Indiana Supreme Court about this one

If there can be a ratio decidendi for something like this, it was, "We will have to do this sooner or later, so let's just do it now."

The Sunday Alcohol Sale Prohibition in Indiana

Indiana law still prohibits the sale of alcohol on Sundays, with a few exceptions.  I do not know what the Indiana General Assembly's excuse is supposed to be for its failure to change that, but regardless of what that excuse is supposed to be, the General Assembly evidently did decide (at some point) that the excuse is not so compelling that it could be allowed to interfere with the Indianapolis 500 or the festivities connected with it.  Indiana law includes several exceptions to the Sunday alcohol sale prohibition, and one of these (as seen below) appears to have been designed specifically to accommodate the Indy 500 and other races at the Indianapolis Motor Speedway:

From the Indiana Code, IC 7.1-3-1-14:

(c) It is lawful for the holder of a permit under this article to sell alcoholic beverages at athletic or sports events held on Sunday upon premises that:

(1) are described in section 25 (a) of this chapter;

(2) are a facility used in connection with the operation of a paved track more than two (2) miles in length that is used primarily in the sport of auto racing; or 

(3) are being used for a professional or an amateur tournament;

beginning one (1) hour before the scheduled starting time of the event or, if the scheduled starting time of the event is 1 p.m. or later, beginning at noon.