A super long post worth reading

[Uriel999]

Constitutional Legal History to 1877:

What is the “American” Constitution? What makes it unique? What are its basic principles and parts? [numerous constitutions in our history]
Is the Constitution a living document? Is it dynamic or static?
Is the Constitution “offensive” and positive? ?(I.e. does it provide or allow?)
Is the Constitution “defensive” and negative? (i.e. does it protect and deny?)
Is the Constitution a check upon power or does it empower? Does it grant or reserve?

Delegated powers are in article 1, section 8. The reserve powers are everything the government didn’t grant.

Should it be strictly construed, or should it be liberally interpreted?
Are there time-honored and unalterable principles? Structures?
Should the Constitution establish a basic structure of government, or should it guarantee rights? Or should it do both?
Is the Constitution still relevant or has it been dead and buried decades ago?
Do we need another Constitution? Is the current amendment process acceptable?

English Constitution composed of hundreds or years of acts, charters , pronouncements, and judicial decisions= custom, precedent, usage, tradition. Custom was the foundation of English law. Usage means practicality.

Henry I (1100-1135) in order to secure throne, made promises not to abuse royal prerogatives=monarch not above the law, duty to uphold the law.

Rule of Law:

Henry 2 ?(1154-1189): innovations to regularize the administration of law and justice= precursor of modern jury trial, roots of grand jury, sent judges around country, established centralized system of courts and laws

Magna Carta (1215): nobles forced king John 1 to sign: king and nobles both equal in the duty of bringing good governance to the realm, get out of rights and obligations of the king and his nobles; established root principle of English and American constitutionalism= a fundamental law exists beyond which no man may trespass: rule of law

Great Council of Magnates [Parliament] (1258): forced Henry 3 (1216-1272) to accept the Provisions of Oxford, reorganizing the machinery of state.
Parliament’s alterations to Magna Carta:
1346:expands Magna Carta to protect “everyman” and not just “freemen” (I.e. nobility) to sue for and defend his rights in court
1354: due process of law

Parliament’s check on Henry 7 (1485): king cannot levy taxes without assent of Parliament, and that no law had any authority unless approved by Parliament.
Division of Parliament into two houses + its role to discuss matters freely=right of the people, via their representatives to participate as equal members of government
Expansion of the English courts, from Curia Regis to Exchequer, Court of Common Pleas, King’s Bench, and Chancery
Inns of Court and the role of common lawyers: critical in developing Parliament and the common law (helped preserve and mold parliamentary government and rule of law as essential elements of the English Constitution)
Expansion of Parliament’s Authority and strength:
1399: forced the tyrannical king Richard 3 to abdicate (for breaking the law of the English land_
Began to strengthen gradually its power over the purse (assent to new levies + supervision of expenditatures)
Makes audits
1376: use of impeachment to remove and punish abuses of Royal ministers significant growth of power and maturation of Parliament during the reigns of Henry 8 and Elizabeth 1 (1558-1603)
Sir Edward Coke (1552-1634): The institutes of the Laws of England= rule of law is supreme, role in the English Civil War.

Colonial Constitutional Development:

1607-1763 this century and a half was far more important that the next century to the end of the course. These two issues are this: British Constitution vs. Imperial Constitution

English Constitution: custom, consent, the 17th century version (1600s) custom, consent, and limitation on power. Limitations on arbitrary power, they wanted rule of law.

The rise of the Colonial Assemblies

English Foundations:

One of the first issues to deal with is authority. Somewhere somebody has to have authority. Who has authority? State, federal government, etc.

Authority:
Center (Metropolitan Authority)-think London.
Peripheries (Local Authority)-Within the English nation, nobles for instance. These people are away from the center. That was the nature of most European states from the Renaissance. They had ongoing negotiations between the center and peripheries over who had power. The king could not maintain his power if he did not allow the nobles some power to have his back. It was an agreement over the proper distribution of authority. The peripheries held unbelievable power.
Negotiated Authority: considerable authority in the hands of the peripheries. This was the only way that the English nation could function adequately and efficiently. Over time those negotiations became custom and thus part of the Constitution. This was way before people came to America.

The companies that went out to colonize and later proprietors, and even royal colonies taken over by the government. When these earlier colonies were established the crown now had new peripheries. The crown granted these colonizers considerable authority because they had to. The Center had a very tenuous control over such a large empire, especially because of how large America was. The colonies were massive tracts of land, a bunch of Indians, and many natural resources. The crown had to allocate considerable authority to the elite in the colonies. The crown had very little control over the peripheries so they had to empower the local authorities. Local authorities had considerable powers.

Those in the colonies gradually demanded rights that their equals had back in England. They wanted secured property and the equal rights of Englishmen.

Once these centers of local power are established in the colonies agents of the metropolitan authority found it exceedingly difficult to overcome. It became more and more difficult to institute regulations and controls over the peripheries. The argument for and against will be constitutional discrepancies.

The agencies of colonial administration where infiltrated and run by local power elites. Not only that, when the crown sent people from England such as royal officials or custom officials, over time 5, 10 years, etc became attached to local authority. This further empowered the peripheries. If things stay as they are, and the government doesn’t intervene it becomes custom, and if you break the custom that is unconstitutional.

Every colony in the British empire was its own distinct entity. Each colony was its own corporate entity. Its own laws, institutions, and customs. Colonists emphasized their individual rights and corporate rights (example, Virginian rights, Carolinian rights). For colonists, decentralized power/local authority and control, that was it, that was their whole world.

Local Control

Rights of Englishmen- Colonists demanded all the rights of Englishmen. They got it. One of the reasons was because they where inherited. Wherever you go in the world, you carried the rights of Englishmen. They were inherited and transported.

English Colonists Inherit the Rights of Englishmen:

(Queen Elizabeth’s letters Patent to Sir Humphrey Gilbert (1578):
Colonists would retain all privileges enjoyed by persons who were natives of England “as if they were borne and personally residente in our saide realme.”
Second clause: recognized that some laws would be necessary for governance of her Majesties’ overseas domain, and that these should be “as near…
Rights of Englishmen:
Inherited and Transported
Colonial Charters-These contracts (colonial charters) allowed for different forms of government in the colonies. These provided for varying forms of government but all where representative governments. They will confirm entitlement for colonists to all the traditional rights, privileges and immunities of Englishmen. Due Process, representation confirmed. As well the crown gave consent for this.
Self-government/Representative Government



English Constitution:
Custom
Limitation (via Consent and Rule of Law)

A tradition of limitations of power, and the crown legitimized this in the royal charters.

From 1607 to 1763, long-established colonial constitutional tradition of:

Representative government via popularly elected assemblies
Written charters (confirmed by Royal authority)
Guarantees of the Rights of Englishmen
Nearly a century and a half of customary local control and decentralized authority.

Restoration (1660): Monarchy was restored in England. When the crown came back to power:

Royal authorities commence a concerted campaign to restructure colonial administration and policy
Crown initiates policies to centralize, systemize, and tighten control over American colonies.
Until this campaign by Royal authorities colonies generally left to govern themselves, colonies unaware of this plan until 1675. Because of custom it was constitutional what the colonies were doing.

Round 1:

Between 1650-1673 the crown enacts the Navigation acts to subordinate the colonies to the center. Navigation Acts (1651, 1660, 1663, 1673). But the enforcement was spotty.

Round one goes to the colonies because of custom becoming constitutional.

Round 2:

Lords of Trade (1675) This was a bureaucracy composed by the crown. This Lords of Trade had 3 overwhelming objectives: they intended to bring the royal governors in the peripheries under stricter controls to the center. At the same time the second objective was to curtail the powers of the colonial assemblies. The third objective was all new colonies would be royal colonies.

Had the voice in the appointments of colonial governors. Any royal governor had a voice.
Prepared instructions for colonial governors. This damned the governors in the colonies.
Drafted laws affecting colonies and submitted them to Parliament.
Supervised financial, military, and naval affairs of colonies
Enforced the Navigation Acts via admiralty courts, these don’t have trial by jury which is unconstitutional under the English Constitution.
Placed suspending clauses on colonial legislation, every piece of legislation had this at the end. Once the law was passed legislation would have to go back to England and come back. This was time consuming and the center just didn’t get why the colonial assemblies needed to do things swiftly. They couldn’t wait for a few years to get laws passed.
Reviewed all colonial legislation and annulled laws which it disagreed. Nobody but the royal governor could veto this. This was unconstitutional.
Established custom collectors in the colonies

Dominion of New England (1684):

Colonial visit and Report of Edward Randolph (1676) saw everybody said screw the Lords of Trade, He was appalled so
Rule of Sir Edmund Andros was sent over to MA, CT, RI, NY, and NJ. He destroyed their local charters. They formed one dominion under the control of Andros. Many of these colonial charters were in the process of being revoked by the crown, but it was illegal because it was signed by the crown before and a violation of the rights of Englishmen
Strict rule and rising resentment in the colonies
Taxation levied without consent of General Court
Stricter Enforcement of trade laws
Imprisonment and fines for violations. Due process was denied

Round 2 fails and goes to the colonies because in 1688 in England there was the Glorious Revolution.

Glorious Revolution (1689)

Events in England, William and Mary take the throne.
Sovereignty: King-in-Parliament, from this time on, the king could not do anything without approval from Parliament
Parliamentary Supremacy

The Glorious Revolution enshrined forever Parliamentary supremacy. From this point on there was a British Constitution and it was whatever Parliament said it was. Custom was now left out.

Effects in the Colonies

There were several rebellions, one happened in New York, another in Maryland. Mass. Had a rebellion as well.

Local Authority/Diffusion of Authority

Power was distributed to the local authorities.

Round 2 went to the colonies. Colonists equate the colonial assemblies to the House of Commons. To the colonies, their colonial assemblies are equal to that of Parliament.

Legislative Supremacy-This alone limit’s the power of the center.

To the colonists and those in England they had no idea there would be some spousal abuse. Those in England considered the colonists more like children. Colonists heard Parliamentary supremacy but Americans heard legislative supremacy. The colonists thought their assemblies had supremacy, but the English government meant specifically Parliament.

Round 3:

Navigation Act of 1696+ Board of Trade(1696)+ Use Parliamentary Statute to enforce Royal authority over Colonies. The Board of Trade was essentially a renamed Lords of Trade with the same powers, but this time it was more severe. Now the king and Parliament was coming after the colonies. The center wanted to use Parliament to enforce crown rules.

1721 Report- called for major changes in the administrations in the colonies. The British started using the metaphor of the peripheries as children. Before it was like a marriage, but not now. The colonies were starting to get it.

The center now believes Parliament is supreme. The English Constitution was gone. Parliament could now do whatever it wants. The Constitution was no longer defensive but offensive.

The Parliament and Crown became preoccupied with war with France, thus continued colonial challenge to Royal authority in America as well as continued violations of the Navigation Acts.

Round 3 went to the colonies. Those in the colonies never see this part. They still believed the English Constitution was in place.

September 3, 2008:

Round 4:

After the end of war in 1713, Royal authorities reloaded. Board of Trade reinvigorated, and Parliamentary Supremacy again requested…(Queen Ann’s War)

After 1689 the Glorious revolution is to the center…whatever Parliament says the constitution was. The colonies still felt the custom usage was in place. The main component of round for was the Report of 1721. This more than anything epitomized Parliamentary supremacy. Parliament took over on behalf of the Board of Trade and the crown the control over the periphery.

The Report of 1721 called for a major renovation of control of the colonies.

Metropolitan assumptions. This was Parliaments relationship of the colonies and the empire. This came under 2 major premises. 1 was the colonies were subordinate to the center. The colonies rejected this. As well Parliament was supreme. Not legislative supremacy, but Parliaments control over the colonies. This is the same as round 1-3.
Colonial Perspective: They argued there was a breach of original contract. The dominion of trade had gotten rid of the original charters. The colonies realized you couldn’t abolish the charters and remove the representative government. By revoking those charters, it radically reduced the power of the colonial assemblies. They said the Parliament was breaking their charters. With economic independence came some political independence. This was all explicit in papers, and the crown backed it up. It was a breach of the original contract. As well the colonists believed the 17th century constitution was in place. Custom and rights of Englishmen were still the assumption of colonialists. To the colonists the House of Commons/Parliament was equal with the colonial assemblies.
Legislative Supremacy
Colonial Assemblies=House of Commons
Colonists=Englishmen (Bills of Rights) “Rights imply equality.” Colonists after the Glorious Revolution enacted their own bill of rights similar to the English Bill of Rights. If the colonists has the same rights of Englishmen they had equality. How could they be equal and subordinate at the same time.

Age of Walpole and Salutary Neglect-

New Ministry comes to power in Parliament headed by Sir Robert Walpole (1721-1748), and conciliation in the name of commercial expansion and enormous economic prosperity for the British Empire takes precedence over conflicting theories of how the empire operates. He could not see the colonial perspective. The reason for this policy was chaos was never good for the economy. Wars and conflict never found themselves the most economic powers in the world. The British wanted to build the empire, and the colonies were the backbone of the empire. One of the things that came out of the 1721 report was a new metaphor and it shocked the colonies. “The colonies were children to the parent” was literally said by the British government. At no instance did Parliament try to back away from what the Board of Trade wanted to do. They just didn’t push the issue because they had more pressing matters. Walpole and those in charge didn’t know they had conflicting theories.

Colonial Response: They interpreted the Age of Salutary Neglect as Parliaments assent of no interference into colonial affairs. To the colonists they believed the Parliament was going to stay out of colonial affairs. Parliament just controls England was what they felt.

By England not doing this stuff, and Walpole sucking, things went on as usual. The majority of the colonists didn’t even know about the Report of 1721. But the colonialists had interests in the empire and they had lobbyists more or less to say make sure the interests of tobacco in Virginia were taken care of. If Parliament was giving assent it became custom and constitutional.

Custom still was favored. Because nothing had really changed, except the spouses in this instance had absolutely no communication. They both viewed the situation in 2 completely different ways. The Age of Walpole actually helped the center consolidate power over the colonies but this actually came to hinder them because royal governors where mostly born in the colonies.

Royal Governors: The royal governors realized the center had no idea what was going on in America. Because of salutary neglect the Royal governors found themselves working with the colonial assemblies and they actually gave power to the colonial assemblies. The royal governors became fully integrated into the colonial system and became more tied to the colonies rather than the center. Round 4 to the colonies

[Uriel999]

Round 5:

Walpole Ministry ends, and in 1748. Board of Trade tries again!

King Georges War (1744-48) and colonial political upheaval.
Rapid decay of respective for royal governors
Board of Trade strengthened, and thus embarked on vigorous campaign to enforce metropolitan perspective and reduce power of colonial assemblies
Colonial assemblies adamantly oppose this campaign

The colonists opposed the war and only bargained with the center for more power. They got it, and because of custom became constitutional.

Round 5 fails as well.

French Indian War (1754-1763)

Again a war between England and France erupts and the board of trade went to the backburner. This war was fought for control of North America. The colonies were now the center of attention. Now the British military’s might, the cream of the crop was sent to north America, Royal Navy, Royal Marines, infantry, etc. Those with connections finally saw what the colonies where. Nearly no taxes, wealthy, and most colonies refused to come to the aid of the British soldiers. The colonial assemblies would only help if they got something out of it. The American Revolutionary period begins in 1763.

This war more than anything teaches the British the colonists needed to be put in their place. Parliament could not tax the colonies. The colonial assemblies did, and some helped.

By 1763, two competing views of Anglo American relationship

Crown and Parliament based on theory only

British Constitution

Parliament is Supreme
Colonies subordinate

Colonies based on practice

Imperial Constitution

Custom and rights of Englishmen
Colonial assemblies=Parliament
Internal vs. External spheres of government (most practical form of government in an extended policy)

The British policies were only in theory because they couldn’t apply them. Parliament and the crown denied in theory everything that was happening in reality. Reality was custom and everything happening. England could not understand the Imperial Constitution like the colonies could.

Colonists: 17th Century constitution of customary restraints on arbitrary power

Vs.

Center: Postrevolutionary Constitution of parliamentary supremacy

“Might makes right.” The winners write history.

Colonial profound mistrust of central authority

Americans despised central authority. States rights meant the states gave some powers to the federal government but where limited to keep it weak. Essentially states where their own sovereigns.

Increasing limitations on executive prerogative/ parliament was not in the sites of the colonialists, the crown was. Because of the colonial experience. The Articles of Confederation had no executive branch. People didn’t want it.
Rights protected by strong legislature. These were the defense against the central authority. When we did get a president, the people felt the president was subject to Congress.
Pursuit of legal defenses against the center. The colonists had bills of rights but decided to go further.

Other Colonial Foundations of “Federalism”

New England Confederation (1643)
Albany Congress (1754)

Rise of the Colonial Assemblies

Powers of the Colonial Governors: A royal governor had absolute veto over colonial legislation. In 1707 the crown forever lost that ability to Parliament. The king didn’t have that power over Parliament that royal governors had over colonial legislation. The royal governor could determine where and when they could meet. Parliament could prorogue at will. Which means dissolve. It meant to dismiss an assembly, but when called would come back. Some colonial governors had the power to create courts, name and dismiss judges, appoint judges. They had the power of appointment and removal of officials (not legislatives). Command the militia and naval forces. They could grant pardons.
Powers of the Colonial Assemblies: elected bodies, property qualifications, power of the purse, power to initiate legislation, powers of colonial assemblies extended to most areas of government. They had few restrictions against them, most restrictions were placed on governors. They had much legislative authority.
Colonial Assemblies Gain Power: They gradually gained more power via way of routine business. There was never any dramatic conflict. They didn’t have great debates, it was routine business. They did this over a long period of time. Because this was naturally occurring nobody really noticed. Primarily concerning themselves at issues at hand, practical issues. They were unaware of any long term consequences. This was also a means for the colonial elite to make sure they stayed in power and held power.

The people started realizing the royal governors where not their problem, but the crown in London. Few governors proved to be a match to the colonial assemblies. Most governors had a counsel, and it too proved to be an ineffective check on the assemblies. The assemblies were the elites as well as the counsel. Many times they didn’t want to check them, they where friends. The biggest issue of the assemblies gaining powers was the crown issuing instructions. The reason why was the instructions didn’t meet the needs of the localities. The colonies preferred innovation because they didn’t feel they where constrained. Through that they gained power, because they operated differently than previous bodies in the old world. Instructions also violated the rights of Englishmen. The assemblies consistently threw away instructions. Once this was set it became precedent and custom. Royal authorities remained lethargic at following instructions. Assemblies had more power than the commons by the end of the period. Nobody ever checked them. They gained the most in the area of finance (paying officials, audits, auditing accounts of officials, power of the purse, distribution of funds, allocation of money). By 1763 the colonial assemblies where more powerful than the royal officials by custom and usage and it was therefore constitutional. The most powerful assemblies where in Mass, and Penn. The lower houses of Rhode Island and Connecticut where very powerful. South Carolina and New York followed next, the 3 colonies with lower houses the Virginia, North Carolina, and____ developed more slowly. New Hampshire and Maryland last.

General Structure of Colonial Governance and Authority

Governor (elected by colony or appointed by Royal Official)
Council
Assembly (popularly elected and eventually bicameral)
Suffrage
County (justice of the peace, sheriff)
Courts (Based on English common law system, local)
Colonial assemblies: and counties where all people knew for law

Local control and authority prevailed, your entire world was your county. That was where men paid taxes, and mustered for the militia. That was where you went to court. Americans in this time viewed law making and judging as the same thing. There was no separation of powers until you got to the higher levels. The importance of county court day was where men mustered and drank beer. This was the day the people left the plantation to go to the town. The greatest thing about it was their were no lawyers. The county was your whole world. Beyond that there was nothing.

September 10, 2008:

Colonial Law and Society

1607-1763

Keep in mind in this period there were 13 colonies with 13 different legal systems constantly changing over a 150+ year period.

When each of these 13 colonies becomes established it began with an English common law system. From that point on it evolved into an American system from the very beginning. What you really see is the evolution of American law with just a hint of English common law. In some areas it would become Americanized, the same, or gotten rid of.

The evolution of American law was due to the aspect of the needs and conditions of the new world. The instructions sent to America from Europe didn’t work. The English legal system was also too complex and useless for American needs. The American legal system was very innovative. One of the biggest reasons the colonies were so different was because it had no feudal past. In Europe for centuries the law developed out of feudal society and structure. Common law on many occasions was simply useless.

Colonial law wanted a more open society in that their would be less restrictions in expanding economic development. The legal systems required this. The colonists wanted a constitution to be defensive against the legal system, while law would be offensive.

Variations in geography effected the constitutions of the colonies, determining the economy of the area, and that determined the legal system: codes and laws. Law would also come from the type of people who settled in a region. The 13 colonies were dynamic, and went through dramatic change. American law began from the beginning to evolve.

Property Law: This was a major economic opportunity thing, one thing that made American property law different from England was the abundance of land. The British had a tenurial system and the Americans a allodial system. Allodial essentially means freehold. The freehold was alien to England because usually a Lord rented out property. In America there was so much land anybody could have it therefore the law system had to change. As a result, the English land law was useless. As a result the colonies had much more simple land laws. Under the tenurial system people had quitrents (more or less renters had to farm). In the colonies if somebody billed you for land you just picked up and moved to another colony. Because of the expanse of lands available, quitrents was already unliked it was simply gotten rid of. Other things of the tenurial system, the primojeniture (first born man gets it all) was common law but didn’t work in America because if the first born got all the land, the second son would just go move and get more land. It just didn’t work because their was so much land. Another tenurial aspect was entail that was quickly gotten rid of. Entails restricted property. By restricting property it restricted the economy and the colonies wanted improvement. Colonies started writing last wills and testaments. The probate (if parents didn’t leave a will a judge distributed) system was simple. By the time the Americans had a allodial system they had “plea of land.” Plea of land was a simple action that pretty much no matter how a person was to lose land they could say plea of land. In England, land was a form of wealth and simple of status. Land became a commodity in the colonies, a contractual, open market item. It wasn’t based on status because there was no social class in the colonies. Inheritance of land just wasn’t an issue in the colonies. Virginia had a headright system where anybody who came to the states got 50 acres of land, bring friends you and your friend get 50 extra acres. In New York the Dutch had the patrune system. Some colonies had mixtures of these, there where other systems as well. Squatting was the most prevalent way people acquired land. The colonies had widespread landownership something that didn’t exist at all in England. American was overwhelmingly middle class. Most Americans were farmers and American was overwhelmingly agrarian and the land laws came to fit that. England was not any longer mostly agrarian. In America there was widespread ownership and they were saying their land should be protected as rights of Englishmen. There were restrictions on property rights, and it was a very regulatory system. The colonies were in it for the community and when an individual went against what was good for the community they would see regulation, ie a guy claiming 20k acres of land and doing nothing with it. There were urban restrictions for public safety, and health. Imminent Domain was a major tool in all colonial legal systems. Property rights could not be used to the detriment of society.
Economic Regulation: a majority of cases in the colonies were civil, there were few instances of criminal law. The vast majority of civil cases dealt with economic issues. Economic regulation was massive. There were very limited resources in the colonies as there was no police force. Many of those regulations were not actually enforced. The best way and ways to enforce regulations were at the county level. Examples of economic regulation (economic regulation promoted economic expansion). They also stimulated new technologies, new forms of milling, clearing rivers, etc. The number one regulation of the economy was patents. Promote the general welfare of the community was a big regulation. They also regulated to improve roads, build harbors, dockyards, damns, essentially build entire transportation infrastructure. Public markets were regulated, regulation of services such as taverns. Usury laws, were enacted, they tried to fix wages but that never worked because of scarcity of labor. Many colonies regulated the export of goods. There was a myriad of economic regulation. Colonists did prefer the emerging doctrine of free trade. Navigation laws stifled the economies of the colonies.
Negotiable instruments: a part of economic regulation, the colonies started using negotiable instruments paper money more or less. Americans didn’t have gold and silver so commerce could not happen without bank drafts, bills of exchange, securities, etc, tobacco was a good traded in Virginia a lot. Money became a note based on “hogs heads” of tobacco as payment for debt. It was a credit society. This facilitated trade and commerce, and was all they could have, but the problem was it wasn’t good in England.
Women and the Law: Generally during this time period of 1607-1763 achieved a great expansion of legal rights because of economic, social, and religious forces that do not exist in England or anywhere else in the world. After 1763, woman last many legal rights until the 20th century, this was a golden age for women. Religious forces such as the Protestant Reformation the church treated marriage as a civil contract. So because of this, contracts could be broken and ended (thus women could get divorced) and because they were a contract, they were mutual, and mutuality meant equality. English common law laughed at this. Colonies came up with laws requiring husbands to pay to help the family, and there were many other gains but where mostly in abstract rather than reality. Women made far greater legal gains outside of marriage. The reason was in America there was an abundance of land, and a lack of labor. The labor shortage meant that women participated more in business, commerce, etc, they had to, and they had to have legal rights. Women gained much in economic matters, for instance death of a husband, the woman had to do what men did. Business goes on and the wife had to do it. The colonies backed and supported that. However, the common law didn’t allow that so it had to be ridden of. Women could get property, sell property, gain debt, lose debt, be plaintiffs, even without laws in place colonies recognized women. They could sue in their own names as well as file claims and enter contracts. Economic development had to give women rights. Women had extremely limited legal powers, it was due to custom, there where no laws limiting women’s political ability. It was just assumed. Politics was almost a club, a man’s club.
Law and Labor: Because of the chronic labor shortages it resulted in dramatic differences from the English legal system which had way too many people. People signed contracts to become indentured servants and there was no indentured servants in England. Laws recognized indentured servants because people were needed. Another form of relieving labor scarcity was slave labor, common law in England forbade slave labor. This was a colonial tradition only. Since common law couldn’t deal with it, it had to be ignored. From the very beginning slavery did not imply black, and black did not imply slavery. Virginia led in the aspect of slavery, in the 1640s and 50s records existed of people trading blacks as slaves for life. The problem was well into the 1670s Virginian courts gave freedom to blacks who where indentured. The color line wasn’t drawn yet. During the 1660s one of the biggest hints was what wasn’t there. Time was being added to runaway indentured servants. There has never been found an instance where a black indentured servant had time added. 3 acts passed by Virginia in the 1660s went against blacks, children of black women would follow the status of the mother not the father which was a violation of common law which was patriarchal. The children of the mother, followed the status of the mother which kept the children enslaved. Baptism meant you gained your freedom, in 1660 Virginia made a law saying baptism didn’t save you from slavery any more. A third law exempted the master from any sanctions while punishing or subduing a slave while resisting bondage. Slave codes regulated both white and black slaves/indentured servants. Slave codes developed in all colonies by the early 1700s and effected all aspects of slave life and even effected white life. Harsh punishments were established, and were more harsh than those for indentured servants, interracial marriage was outlawed. Whites had to go on slave hunts.
Law and Religion: English settlers didn’t believe in toleration of religion but those without majority had to shut up. There was a lot of toleration for trade. It was a pluralistic society. Even those who fled religious persecution came to the colonies to establish their own tyrannies. Laws of different colonies put in laws of some moral precepts. New England was best at legislating morality. It was agreed by most colonists that it should happen. Laws should embody the prevailing morality and conformity. Most colonial statute books could fine you for failure to go to church but that was only in New England. By the end of the revolution there were no established churches.
Criminal law: By the 18th century very little criminal law was based on common law principals. Written codes replaced common law. There was no systematic codes other than slave codes. Codes had a strong moral flavor and social deviance was a crime. Tort law was damages caused by one against another and it didn’t exist at the time. Adultery and phornication were the biggest offenses that went through the courts. Constant humiliation was a part of us justice. Low rates of acquittal. Attorneys were nonexistent in that time more or less. Many colonists distrusted lawyers. Juries were very powerful then and could determine fact and law.

Constitutional Legal History Notes for Second Exam:

[Uriel999]

September 17, 2008:

Salem Wichcraft Trials (1691)

Zenger’s Trial (1732)-has to do with libel.

Writs of Assistance (1760-1767)

Two Penny Act (1755-1767)

Ideological Foundations of American Constitutionalism/Law

1607-1763 imagine if we looked over everything from first test from a practical perspective, now its ideologically time. People gotta have ideology before they start shooting people.

During this whole period more and more colonists were reading certain tracts. As time progressed these pamphlets wrote that things not only can happen but were happening. English colonists thought they had never been more truer to their heritage. It was almost a conservative revolt. The colonists thought they were the true inheritors of the English Constitution, Britain was corrupt.

Classical Sources (Roman)- people started thinking back to classical writers such as Cato, Plibious
Covenant Theology of New England/Biblical- this reinforced social contract. Deuteronomy and Leviticus got used a lot.
Montesquie-stood alone, he was strong on political processes, but not political theory. He talked about checks and powers, etc. His Spirits of the Law was influential. He said Republics can only exist in small areas.
Common Law Jurists (Coke and Blackstone)
Scottish Enlightenment (Hume)
Natural Rights Theory of Enlightenment-John Locke, natural rights, social contract, property rights
English Libertarian Heritage

These were the foundations of American ideology that became a tool

Natural Laws

John Lcoke, Second Treatise on Government (1689)

Certain inherent/eternal principles in the universe predating poltical authority
Life, liberty, and property

Social Contract

Agreement between ruler and ruled, governed and the governors
Consent
Right of Rebellion

To secure those rights, life liberty and property, governments were instituted among men deriving there just powers from the consent of the governed, that when any form of government becomes destructive, overthrow it and make a better one. That is paraphrased from the declaration of independence. If representatives break the social contract, the government must be abolished and replaced with those who will respect social contract.

Republican Ideology is the same as English Libertarian Heritage. This goes back as far as the 1600s from Harrington and Sydney who inspired the English Civil War. It goes all the way back to Trenchard and Gordon which was Cato.

English Country Opposition

Classical Republicans, or Commonwealthmen, or Honest Whigs

These are all the same damn people. What did these people believe in?

Cato’s Letters (Trenchard and Gordon) People read these people all over the place. This instilled an ideology that went along with the constitutional practice. Like the rise of colonial assemblies, custom, limits of arbitrary power. However, the Parliament disagreed with all of this. This is essentially all what people read. Court and country- court was people who were in politics, country was the people far away from power.

Lord Bolingbroke and the Country vs. the Court- The court was the corrupt politicians who just wanted to stay in power. The opposition couldn’t become the power. They would oppose anything the government did more or less. The country wanted to check power despite never coming to power. Bolingbroke said “we must return many times to original principles.”

Reaction to the English Financial Revolution of the early 18th century
Policies of Walpole promoting commercial expansion and credit systems

Basic Assumptions: everybody against the court, all the literature people were reading was anti-court.
Preoccupation with the expansion of power at expense of liberty. Power vs. liberty was the great struggle of making. Power was always on the offensive and liberty on the defensive. Walpole vs. Bolingbroke is like Jefferson vs. Hamilton.
Conspiracies against liberty. Not only was power expanding at all costs, there are always conspiracies working against liberty. At one time this worked to our advantage. If people believed there was a conspiracy to go against your liberty anything a politician said or something that was enacted, worked to guard against tyranny.
Power corrupts vs. civic virtue (disinterested citizen ]this meant you were above petty interests], public good)
Independence vs. dependence = property vs. paper, or agrarian vs. commerce, debt is bad.
Opposed exclusive privilege (e.g. monopolies) No man should have a head start over any other man.
Critical to balance check powers; limited government (the most consistent theme) [Balanced Constitution]
Standing armies destroy liberty
Judicial independence (an executive could remove judges at his will at this time, people wanted an independent judicial branch)
Attack executive patronage and corrupt ministers

Civic Humanist Tradition vs. Lockean Liberalism

Classical Republicanism vs. Capitalistic Liberalism

The Revolution overthrew classical republicanism for capitalistic liberalism.

Forward looking, or looking Backward…

Returning to original principles or Changing with the times…

Foundations of American Law

Custom
Natural Law
Popular Sovereignty
Stay tuned, more to come…

Did America go from republicanism to capitalism? Or vice versa?
Were the constitutional reformers (I.e. federalists) antidemocratic and counterrevolutionary?
Were the Anti-federalists democratic?
Were the anti-federalists for or against something?
Was the 1780s a “critical period”?
Was American federalism new? Is so, how did it change?
How was the creation of the US Constitution and act of compromise?
To what extent was the Constitution influenced by ideas/ideology
To what extent was the Constitution influenced by practical politics and experience?
Did Federalists or anti-federalists foreshadow Jacksonian capitalism?
Did Anti-federalism continue after 1788?
How did the Constitution develop within the framework of republicanism vs. liberalism?
How does the Constitution address the growth and development of a Liberal Democracy, and the Market Revolution
How does state vs. federal power and authority theme/struggle fir within the republicanism vs. capitalism paradigm?
Failure of Metropolitan authorities to reign in Colonial Assemblies: Why?

1607 and onward! Rounds 6-8 to go. The colonists now realized the Parliament wanted supremacy so the colonists came up with pamphlets wanting a divorce from what it was doing. The colonists had to defend their view while the center defended its.

British Constitution:
Parliament and Colonial Assemblies control internal affairs and equal bodies
Parliament governs imperial matters (e.g. commerce/trade)
Locus of Sovereignty in the Crown, yet limited by the rights of Englishmen and custom.

Well-established Traditions in the American Colonies by 1763:

Federalism (Imperial Constitution)




1763 the French were now out of America. This was an English realm that had more than doubled.

British face three significant problems in 1763 re: territory acquired from France

How to govern and administer it?
How to protect and maintain order and peace?
How to pay for all this government and protection?

Thus, 6th major attempt by Metropolitan authorities to centralize and reform imperial administration and to extend authority over colonies. They were preparing like 1-5 to come but now England decided that the colonies should pay for their own government and protection. They saw wealthy middle class with little to no taxes and then the colonies claimed only their own legislatures could tax them. Greenville had a goal to make the colonies pay for their own protection and government. The colonies was fine with paying their own expenses but not in the way the center was trying to make them pay it.

Proclamation of 1763
Sugar Act (1764)
Currecncy Act (1764)
Quartering Act (1765)
Stamp Act (1765)
Declaratory Act (1766)
Townshend Acts (1767-1770)
Tea Act (1773)
Coercive Acts (1774)

This was the first time the parliament was trying to make revenue from trade. The colonists agreed they could tax trade, but not make revenue from trade. By the 2 penny act, the center broke the rules because they couldn’t legislate the internal affairs of the colonies. The quartering act brought a standing army to the colonies. The colonists realized the soldiers were not there to protect them against French cause they were gone, the Spanish were weak, and the colonists could kill the Indians on their own, they realized the army was there to fight the colonists.

Round 6:

Stamp Act Crisis (1765)

Round 7:

Townshend Program (1767-1770)

Round 8:

Coercive Acts (1774)

The stamp act meant stamps would be placed on every single piece of paper in existence in the colonies. The problem meant to use paper you had to buy the paper with the stamp and thus was a tax. It went effective November 1, 1765. The problem was it effected the most articulate members of society (lawyers, merchants, and newspaper editors). The newspaper editors were pissed and reiterated colonial perspective. As a result as soon as word of the stamp act reached the colonies, they sent agents (lobbyists) that this act would not fly. There were mass meetings and bonfires across the colonies. Liberty trees were established, or liberty poles would be put up. As a result, you didn’t want to be the stamp collector. Stamp offices were opened and burned in the first hour. Many instances the colonial governors had to seize the shipments of paper so the colonists couldn’t get to it. The colonists never saw the stamped paper. The colonies adopted non-importation agreements. They didn’t stop selling goods though. The Virginia Stamp Act Resolves…
And 9 colonies were at the stamp act Congress. This was the first time the colonies stood united.

Grenville was replaced with Rockingham as the new prime minister. What worked? The non-importation. The English were pissed and ignored the colonists statements, but got rid of the stamp act because it was hurting their pocketbooks.
In 1766 the Declaratory act by Parliament meant Parliament was supreme and could essentially command to do the colonies to do whatever they wanted to.

The colonists argued that Parliament could not tax without their consent. This was not done because Parliament enacted this tax, not the colonies. The colonies were not adverse to paying their part to the empire, but they wanted to do it constitutionally, not the way Parliament wanted. England would say the colonies were represented by Parliament, but the colonies had not elected any members of congress and they believed in actual representation. This was virtual representation. Parliament thought they ruled for the good of the empire, not just locally.

Out of the stamp act came the idea that Parliament had no authority over taxing the colonies. The colonies evolved their constitutional thought because of the stamp act.

Round 7 happens in 1767 with the Townshend Program. They passed a revenue tax, levied taxes on tea, lead, glass, etc. England was now looking over trade more closely. 4 vice admiralty courts were established. They also suspended the New York Assembly because they refused the Quartering Act.

The greatest danger was the use of the revenue would pay the governors. The assemblies had been paying the governors already though, this violated custom. There was another protest by Samuel Adams and the Sons of Liberty. This was when people started claiming that Parliament had NO authority over the colonies, only the crown did. Colonists now argued their views of the constitution.

The Townshend Program was proof to the colonists of the corruption of the Parliament. It was a threat to colonial assemblies. This led to the Boston Massacre. The British sent thousands more troops to Boston and New York over the Townshend Act.

September 24, 2008:

Stamp Act Crisis was round 6, the Townshend Acts round 7, and Coercive Acts was round 8

People were pissed about having to go to trial in England with no jury of there peers. The Quartering act pissed people off too.

First Continental Congress (1774)- Direct response to the coercive acts. The Continental Congress was the first form of union for the colonies.

Selection of Delegates (Colonial Assemblies/Conventions)- the assembly men had been dissolved, but still met and had convention. They elected delegates to represent the states. The voting process was one state one vote.
Voting Process-voting by colonies. They voted as corporate bodies, not individuals.
Attorneyship Representation Confirmed (Actual Representation), these delegates could do nothing without the approval of the colonies from which they came. These men strictly did what their colonies told them to do.
Any proposals or Mandate must have the approval of colonies.

[What is the nature of representation in the American constitutional tradition? They had actual representation at first (did that change?)]

[What political factions/parties argue on behalf of the actual or virtual doctrines?
How do the civic virtue/republican and liberal capitalistic schools argue?]

[Which came first, the States or the Union?]

Suffolk Resolves
Declaration of American Rights

Second Continental Congress (1775)
Olive Branch Petition
Declaration of the Causes and Necessity for Taking Up Arms
Payne’s Common Sense
Instructions from colonial assemblies to delegates, the states break off and then tell the delegates to do the same
Declaration of Independence
May 10 Resolutions (1776) All states not yet provided a permanent constitution should get one.

State Constitution Making

What did states draw upon to make the constitutions

Some turned to their colonial charters, some to experiences they had in the colonies, some they just kept things the same as how they operated already. It varied from state to state, some constitutions only lasted the duration of the war, some well into the 1800s, some never made a constitution at all and just ratified their colonial charters.

Common Features: popularly elected assemblies, all bicameral except Penn. All had governors. Property requirements for land owning for voting or being put in office. Every state but NY and VA had a religious test for holding office.

Precedents set for American Constitutionalism: realized the constitution had to be written, fundamental laws, the assemblies originally came up with constitutions, and the people quickly turned against it. That has been done ever since.

Written fundamental law (to create a republican structure of government, to mark out the boundaries of government, and to guarantee and protect abstract rights)
Conventions to create constitution (separating a government from ordinary legislation)
Direct representation (e.g. use of instructions)
Separation of Powers-checks and balances (balanced government over a mixed government)
Legislative Preference (weak executive)
Popular sovereignty
Limited government
Bills of Rights

Confederation Period (1781-1789)

Question of a national government: was there going to be a national government?
Radicals vs. conservatives (anti-federalists vs. federalists)
The “Critical Period” of American History? This wasn’t necessarily true, some states after the war were very well off, granted some had problems as well.

Articles of Confederation (started in 1776, but not all 13 got on board until 1781, but Maryland held out until then to sign). The Articles lasted until 1789 when the US Constitution superseded it.

Ideology-wanted blessings of a nation, but wanted full sovereignty and independence of the states. People felt a Republic had to be small, everybody had to know everybody. States were the perfect size for a republic. A republic could not exist in a large territory in the views of the people at this time. Decentralization and local authority was a huge part of their ideology. They did not want another Parliament, and they did not want an executive.
Powers- For the time the Articles were actually very powerful for their time. It had the power to declare war, and provide for the common defense, declare peace through treaties. They had the right to regulate coinage and a postal system, regulate affairs with Indians, and even the powers to admit new states. The Articles prohibited the states from doing many things they had been used to doing. They had numerous prohibitions on the states.
Weaknesses- “it was exactly what they wanted.” “The congress had no powers to tax or any powers to regulate commerce. The federal government could not lay direct taxes. To pass a bill they had to have ¾ majorities. They didn’t want the federal government doing much legislation. To Amend the articles of Confederation had to have 100% support, had to be unanimous. You could not change structure of government without 100% support. Other weaknesses, no executive and no judicial. The equal basis of the states meant large states could be hampered by small states. And Small states didn’t want to be screwed by big states.

The people of the 1780s created a government incapable of making decisions operating in a complex world. The federalists claimed it lacked energy. The revolutionaries who wrote this were so concerned with avoiding tyranny. They didn’t want an American monarch. People were attached to their local governments.

Successes: it won the fricking war! It secured American independence including one hell of a peace treaty including independence recognized by Britain. Several executive departments for finance, wars, and foreign affairs made. They sent diplomats, Adams, Jefferson, etc. It’s greatest accomplishment was getting rid of the dept from the war, but there was so much land it was riches. With the winning of the war the colonies more than doubled in land. So they sold the land and paid the debt.

Confederation Period

Land Policy: England gave the US all the land east of the Mississippi

State land Claim: the states had overlapping claims. The big issue was getting states to relinquish land claims. Land=money so why would the states give them up? The states did give them up though. The states gave up claim to the “People of the United States.” At the national level they created an unseen federal jurisdiction. They believed a higher form of government should solve the issue and they solved it that way.

State Land Claims/Indian Treaties
Land Ordinance of 1785- An example of the strengths of the articles of confederation. The land from states was given to the people. They wanted to sell the land. This document created a system of surveying all the land, creating townships and selling it at a minimum price.
Northwest Ordinance (1787): created a system of government and a way to take territories and turn them into new states. These new states would be treated equally. Territories went through 3 stages to become a state.

Stage 1: Territory less than 5k people: Governor, secretary, and judges, 4 people making laws more or less. They could not pass any law that was not already on the books of another state. They could only enact laws that already existed in other states. The people in power appointed by Congress.

Stage 2: Territory greater than 5k could have elected assemblies and a Council. They also would get a delegate to congress. The delegate could participate in debates but could not vote.

Stage 3: Once a territory got to 60k, they got congress to pass an Enabling Bill and they would hold a constitution convention, and state government.

The prohibition of slavery was not very strong. The land policy was resolved under the Articles of Confederation.

“Democratic Tyranny”

Paper Money Legislation: Paper money legislation coming from the states. The vast majority of Americans were debtors. They elected people who followed their debtor beliefs. States started printing more and more money causing inflation and the banks had to take rag money.
Debtor-Relief Legislation: stay laws came out of this. Closing courts to debtors (you couldn’t have suit filed against you). Property was not being respected.
Shay’s Rebellion (1787): Western Mass rose in rebellion and marched to Boston. All the courts to creditors were closed because of this. Most were debtors and they were not getting help so they rebelled.

Were the weaknesses of the Articles of Confederation the reason conservatives pushed for constitutional reform?

It was what was going on in the states

Vices of the Political System of the United States James Madison. This work was against the states. He wanted a government to impose its will over the states. He wanted to open courts to British creditors. He believed there was too much legislation and power in the states. He feared individuals setting up political parties and factions. He proposed a new system similar to the one London had over the colonies.

National Movement:

Mt. Vernon Convention (1785): Only 2 states showed up, Virginia and Maryland. It was over an “oyster war.” They were having conflicts over harvesting oysters. They decided to sit down and discuss the matter, but they wanted to make a model and in the next year have another convention and invite all the states and discuss this critical period and reform the Articles of Confederation
Annapolis Convention (1786), 5 states went, but Maryland didn’t go and it was in their state. NY, Penn, Delaware, Virginia and New Jersey there. They didn’t quit with this one. They said lets do this again in Philly next year.
Philadelphia Convention (1787)

Were the ant federalists democratic?
Were the anti-federalists for or against something?
Was the 1780s a “Critical Period.”

[Uriel999]

Welcome to my world and enjoy the free education you just received on constitutional history.

[Uriel999]

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