History of American Law PDF

History of American Law Teleology the idea that there is some set design in the unfolding of history. It is a form of historical inquiry that attempts to construct a narrative view of history as a progressive march in one direction; toward an inevitable endpoint. Exploiting the luxury of being in t...

History of American Law Teleology the idea that there is some set design in the unfolding of history. It is a form of historical inquiry that attempts to construct a narrative view of history as a progressive march in one direction; toward an inevitable endpoint. Exploiting the luxury of being in the future Contingency a future event or circumstance which is possible but cannot be predicted with certainty. There are multiple routes at a given moment Historiography the study of the ways in which histories have been written. The study of the conflicting ways that historians have approached their interpretations of events. The debates that historians have within themselves and the history of these debates England and the Virginia Colony Magna Carta “The Great Charter” (1215) - Charter is a written grant or guarantee of rights and privileges from the sovereign power of a state, country or empire - Peace treaty between King John and barons/lords - Original was written in Latin but translated into French and English - More about the rights of the barons instead of the ordinary English people - the king was not above the law, free men had a right to due process, had the right not to be taxed without retribution - began to apply to normal people as time went on - “common law” - Example of magna carta throughout history: American revolution, suffragettes/rights to vote, Gandi, Nelson Mandela, UDHR - The Pacific Appeal (1863): midst of the civil war, Black newspaper, people of color can testify in the court of law - right to have a fair trial - Grand Juror’s Handbook: getting called in for jury duty - Common Law: some of the legal rights that then become part of law are just things that happen in common - precedent - Clause 1: Liberties of religious institutions - Clause 12: No taxation without representation - Clause 13: Citizens retain some autonomy - Clause 35: Standardization of weights and measures - Clause 39: Due process, jury trials - Clause 40: No sale of justice - Clause 61: Right to petition Feudal England  - England is late to the game of conquering land in the Americas - spanish and portuguese had already been doing this - Moving into the early modern world 1400-1800 - English colonization of the Americas occurs at the end of the Feudal world - Feudal worlds farm to survive, not to sell - Villein: english legal term for peasants - Sir Francis Drake and other English “privateers” are interested in to spread their version of Christianity and brings a form of feudalism to the new world - England, Spain, and France are perpetually at odds/war and religion factors in heavily - England separates from the Catholic church - Closure of the commons: peasants had access to commonly used land but at the end of the feudal system, common land gets restricted and turns over to private owners - Also, there is a explosion in population so there becomes in increase in “wandering poor” called vagabonds - They get sent to Virginia - Main ideas: - England was late to colonizing - English has a feudal view for colonization at first - Colonization takes place during intense rivalry between English protestants and Spanish catholics - Colonization takes place during a closure of the commons and in increase in population Jamestown, Virginia - The English’s first successful permanent colony was in Jamestown Virginia in 1607 - Sir Walter Raleigh - wanted to establish a land north of Spanish Florida - Virginia (named after the “Virgin Queen” Elizabeth I - They imagined virginia as a massive american feudal land estate where feudal peasants would enrich them by paying feudal dues - additional “investors” would receive large grants - They would get rich for using the colony as a base for raiding Spanish bases and for mining - Not imagining the export of cash crops, the use of slavery, establishment of a new state - Duties of the sea dogs: plant Christian religion, traffike/trade, conquer - Roanoke Virginia: original colony that disappeared in the 1580s - King James I: Stuart line - Charters two branches of the Virginia Company: the Virginia Company of London and the Virginia Company of Plymouth - Plantation: the establishment of an institution or a colony and to plant in the soil  - The First Charter of Virginia (April 10, 1606) - Drew on principles from the magna carta - First ship brings the charter with them - gives access to all the land “from Sea to Sea” - When the American revolutionaries try to push westward and the king stops them, they bring this idea up again - 110 men and boys - All of these people “shall have and enjoy all Liberties, Franchise, and Immunities… as if they had been abiding and born, within our Realm of England” - Early jamestown has appointed rulers, not a democracy - By January 1608, only 38 people survived - Powhatan was a confederated group that surrounded Jamestown - They used similar legal arguments that compared to English legal arguments of the time to defend their ownership of the land - John smith wrote about their government, citing that although they were “barbarous”, they had an established system of government - John Smith: one of Jamestown's original settlers that tried to implement martial law and order and had a relationship with the Powhatan - life was spared as a part of a diplomatic ritual - The Jamestown people were really lazy and even resorted to cannibalism - Sir Thomas Dale: governor of 1611 - Showed up and nobody was doing what they were supposed to - Established a marshal law and established new ruthlessness in response to the Powhatan - Dale's Law: - War-like, marshal law, emphasis on maintaining ties with the King - 1617 - the settlers brought tobacco seeds - found a new reason to make Jamestown work - The Great Charter (1618) - Established the headright system: incentivizes people to come and farm land - for every labor you bring, you get 50 acres of land - They rely first on English indentured servants who sell their labor for 4/7 years in return for their own land - July 1619: Established their own representative government - Governor Yardley called for the election of 22 servants - August 1619: arrival of the first African slaves - 1619: Proceedings of the Virginia Assembly - The first body of formal government in Jamestown - 1622: massacre in Jamestown, causing the king to turn Virginia into a royal colony  Atlantic and the Plymouth Colony - Constitutionalism - how they put together and interpreted the first constitutions that they used to govern themselves - Constitutionalism: various methods of setting norms that create, structure, and define the limits of government power and authority in colonial/imperial, state, and national contexts - Constitution: - Writing something down to explain how a government is going to work - The structure of something/the mode of which something is organized - The founding fathers viewed a constitution more as the existing arrangement of government rather than a document - King James I: - The Virginia Company granted the Pilgrims (who called themselves the Separatists) the right to colonize the area above the Virgina - The Plymouth Company - Went to the america to have the freedom to worship their own sect of Christianity/protestantism - Henry VIII (House of Tutor) - (1509-1547): - Creates the Church of England - putting himself as the head of the church instead of the Pope - Personal: wanted to get divorced - Political: happening at the same time a lot of people were protesting what they saw as corrupt practices in the Catholic Church - protestant reformation - 1517 - Martin Luther and the 95 theses started this movement - Embraced a theology that emphasizes a reliance on scripture, only their actions could help them get into heaven - The Puritans and the Separatists were the most radical groups that broke from the Church of England - Puritans: wanted to purify the church and larger society - They don't like bishops, ecclesiastical courts, - Emphasis individual reading of the bible - Individuals having a direct relationship with God - Move away from Latin to English - move toward literacy - Thought they were superior to “ungodly” men - people who were appointed by the king - 1694: King James says that the Puritans either need to obey him or leave  - The pilgrims mostly hailed from mid-north parts of England - agricultural folk/farmers/artisans/craftsman - see vice and corruption everywhere - Puritans had a reputation for worshiping hard and working hard - NO fun - They meet in the home of William Brewster - William Bradford: wrote the Mayflower Compact - Puritan dress: no lavish clothing, much more somber, blacks and dark colors - 1608-1609: the Puritans go to Holland to Leiden - they do okay in Leiden, adapt to city life, but they worry about maintaining their English identity - they want to leave to find an “easier place to live”, “spread their religion”, and “prevent corruption of their children” - They send representatives to england and negotiate with the king to get the Virginia Colony charter - 1620 - 102 people boarded the Mayflower to go to America - 44 were true separatists, and the rest were “strangers” - much more families than before - They were granted the right to settle in New York but they actually land in Cape Cod - there are legal questions of whether they are allowed to settle here, there is tension - they decide to come together and discuss the Mayflower compact - The Mayflower Compact: “Civil Body Politick” - written by the Plymouth Combination - How they are going to govern themselves - Took seriously the idea of the Religious Covenant - mutually agreed upon agreements - 42 men, the heads of their households, signed the document - Compact vs. Charter: - Compact is people writing laws for themselves - Charter is handed down by some higher power - For the “general good” - much less strict laws than Dale's Law (Jamestown) - Is it a constitution? - Was not published broadly until 1793 - after the American Revolution - Late 1620 - they arrived in the winter, and more than half the colonists died, including the governor - William Bradford replaced him - Puritans are very community focused - the healthy people helped out - New England winters were bad, but the climate was good for killing mosquitoes and other diseases in the winter - Same time as the enclosure of the fields - The earliest settlers were primarily working families, with some indentured servants and African slaves - Charles I (on throne 1625-1649) - married a Catholic wife - Bully to parliament  - Petition of Right (1628) - Members of parliament are very mad, parliament reemphasizes Magna Carta and habeas corpus (questioning imprisonment), no taxation without an Act of Parliament - Charles dissolved parliament in 1629 - Made the church of England even less hospitable to the Puritans - At the same time, there are about 1500 settlers in Plymouth Plantation - The Great Migration - large Puritan immigration - John Winthrop (Mass. Bay Colony) - Puritans are NOT the same as the Pilgrims - Puritans did not want to separate from the Church of England - rather just wanted to purify it - Their original settlement was in Salem - Part of Mass. Bay colony but different than the Plymouth Colony - By 1640, 20,000 people were living in Mass. Bay colony - they establish a Republic where the puritan men elected their governor and their legislator (General Court) - very radical at the time - Freemen: part of the local church - General Court sets up the Massachusetts Bodies of Liberties: looks more like a constitution, - Were not religiously tolerant - between 1659-1661 they executed 4 Quakers - 1630s - Roger Williams said that the Puritans did not do enough to seperate, gets in trouble, and flees to Providence, RI - Anne Hutchenson in 1637 - slandered the church and fled to Rhode Island - she was a midwife - Bloudy Tenent of Persecution for Cause of Conscience (1644): It is a terrible principal to persecute because of beliefs - Religious intolerance creates war and destruction - if you want true Christianity to flourish, you can have diversity of conscience - 1652 - passed the first anti-slavery laws - Charles 1 causes Civil War in 1640s and is executed in 1649 - Rhode Island gets a charter that allows for self ruling - Model of Christian Charity - Written on the way to establish the Massachusetts Bay Colony - Puritan - Provides the reasoning for them to establish the colony to purify the residents in the eyes of God - Community based, “Justice and Mercy”, “mutual consent” to establish a place of cohabitation with a government that provides - The only way that we can survive, is if we work together and have a sense of community to establish a “city upon a hill” - Restoration Colonies: Charles II - Penn. Frame of Government: - New York Charter of Libertyes: named because Charles II’s brother was James, the Duke of York - James was Catholic - was pushed out of the throne by the protestant’s William and Mary - They were wary of drawing too strongly of a connection with James because they were separatists - The charter was passed by the General Assembly which guaranteed the rights and liberties of the colonists and was built upon principles in the magna carta - Fundamental Constitutions of Carolina: created a government of a slave colony owned by 8 men called proprietors - Founded by wealthy slave owning colonizers from the West Indies - Fundamental Orders of Connecticut: - Methods of governing a colony: - Self governing: Rhode Island - Proprietary: New York - Royal: Virginia Slavery - The English had been enslaving Africans but it was not prolific within England - They were treated more as indentured servants when they first arrived - had time limits on their work - The differences were more due to culture and religion than race - By the later half of the 1600s, Virginians truly began to enslave them - The term of their indenture was based on their age at the time of capture - If they ran away, their service time was doubled - Any mixed child would be free/enslaved based on who the mother was - By 1667, they stated that a change in religion (baptism) no longer allows them to be free - They could be killed without any retribution by their owner - Transportation Act (1717) - Transported English felons to the Americas to work as indentured servants - Elizabeth Key - Her father white but her mother was black - sold into slavery but told to be treated better than normal - Indentured Servants: a form of unfree labor for a period of time, “a term”  - Dependant status in law and society - Wives and children are dependants - U.S. constitution - “Whole number of free persons, including those bound to Service for a Term of Years” - Non-binary spectrum of free to unfree in colonial America - 1629 Massachusetts Bay Charter: “elected and chosen out of the Freemen of the saide Company” - Freeman: legal term, owns land, can be a villein/serf/peasant - Indentured men did not vote while indentured, but it was easy to move from servant to freemen and be able to vote - Virginia Colony - Idea 1: Racial ideologies change how labor changes on the ground - Idea 2: Racial ideologies were based on the changes that were happening in England - Idea 3: the law about whether a mixed child would be free/enslaved based on who the mother was is an example of how racial ideas were also based in gender - 1619: English privateers (pirates that are sponsored by the gov), captured a portuguese ship and were bringing the slaves to Mexico - The English take slaves and bring them to Jamestown - 20 slaves - traded for food - The Spanish and Portuguese had been doing this for a long time and had laws: recognized slaves and slavery - England: common law (internal English historical traditions and presidents) - Spain, Portugal, France: civil law derived from Roman law - also looked to the Catholic Church - Engladn had no legal laws about slavery because they did not really have slaves - Villein: a feudal tenant who was totally subject to a lord or manor whom he paid dues and services in return for land - Servants were also recognized in English law - Children did not inherit the condition of their parents - Prisoners/felons: 1717 Transportation act - Transported English felons to the Americas to work as indentured servants - White english people are the felons - James, Duke of York set uo Royal African Company in 1660 to catch up with the Spanish and Portuguese in terms of the slave trade - English monarchy gave the colonies lots of freedom to set up their own laws  - The first 20 slaves: - Anthony Johnson/Antonio the Negro - arrives in Virginia in 1621 - Originally kidnapped by an Iberian country - Arrived right before the Jamestown Massacre of 1622 - Worked on a plantation for the Bennets - Allowed to farm independently, marry another black woman, and baptize their child - At some point they gave him freedom - treated more like an indentured servant - 1651 - Johnson earned land through the headright system - gave land to his children, gave land to children, even owned African slaves himself - Dies in 1670 - not allowed to pass his property to his children so his land reverted to the crown - - Elizabeth Key - daughter of a white father and an enslaved mother - Sues for her freedom and gets her freedom - almost impossible a generation later - Queen Elizabeth I - 1563 there is a law passed called the Statute of Artificers - If you are a servant, you cannot depart unless there is a reasonable cause - Any person over 10 and under 18 can be put to work until 21 or 24 - If a master badly treats the servants, justices can let the servant be free early - 1662 Act Against Runaways - White and black servants get different punishments for running away  Law and Colonial Society - The interplay between people’s everyday lives and the law - A law must be understood within context - In colonial society, law regulated social behavior including intimate behavior - Adultery: punishable by death - Until the early 1990s, you could legally rape your spouse - Regulated how equal people could be as economic actors - womens wages were property of their husbands - Coverature: the legal status of a married woman, considered to be under her husband’s protection and authority - Femme covert: married women - Femme sole: unmarried women - had the right to own property and make contracts in her own name - In colonial America, they did not punish with imprisonment - What does justice look like? What does it mean to protect your community from God’s Wrath? - The Puritans who settled New Haven Colony wanted to make their legal system very different from England - They put aside some of English common law - The courtroom had no jury, just judges whose opinions were heavily informed by Puritan theology - The Puritans did not make witnesses swear that they would tell the truth - Their legal system was actually encouraging the participation of normal people, in the way that the more formal common law did not - Writ: a form of written command in the name of a court - key tool in English common law system - Elizabeth Peakin - New Haven Colony in the 1650s - 1658 she sued a fellow resident of New Haven Colony for wages that her husband had earned before he died - She showed up herself and presented her evidence - The judges ruled in her favor and allowed her to collect her debt - They said however, that she came in too quickly and did not give the indebter the proper time - They wanted to get at the truth, but they also wanted the two people to reconcile - In the early to mid 1600s, people who knew each other/neighbors lent each other money and also gave each other wiggle room for paying it back - Women had important roles to play - they were integral to the local economy - Indentured servants oftentimes had written contracts but sometimes they didn't - often not a lot of paperwork  - People would bring in their wives/daughters to tell the court what happened - As population’s grow, the role of women change in the legal system - Promissory note: written promise to pay a stated sum to a specified person by a fixed date - if he didn’t, he was charged interest - became a form of currency as communities grew - “Assign” = sell - The Glorious Revolution - Charles II who “restored” the monarchy (on throne 1660-1685) - 1684: revoked the Mass. Bay charter - His brother James II, the Duke of York became king in 1685 - He is autocratic, absolutist, and does not believe in representative lawmaking - Taxes the colonists - Catholic - He disallows the New York Charter of Libertyes - He decides to completely collapse all of the colonies and make one big Dominion of New England (1686) and installs one royal Governor, Edmund Andros - Andros introduced the Church of England and new taxes - They don't pay, he takes away their local government, and the colonists protest, appealing to Magna Carta - He replaced the Puritan legal system with the English common law system - He wanted to make peace with the Native Americans for trade agreements and for protections from war - At the same time, some of the colonists are pushing intro New Hampshire and Maine (Wabanaki territory) - They are getting into guerrilla warfare - He enforced the Navigation Acts: laws that forced the colonies to regulate their trade - mercantilism - James argued that he could nullify laws that parliament passed that he did not like - Mary of Modena (wife) gave birth to a boy who was Catholic - He had a daughter from his previous marriage Mary, who was married to William and they were protestant - kicked James off his throne - They agreed to protect parliament’s permanent, important, and independent place in the English constitutional space - Parliamentary sovereignty - They agree to a bill of rights  - Early 1689: the news of the Glorious revolution hit the colonies - people in Massachusetts revolted against Andros and the Dominion of New England collapsed - The crown permitted Mass. and other colonies to get some form of self governance back - Mass. and Plymouth combined into one colony - The crown appointed the Governor of Mass. and gave itself more power to disallow legislation - Voting was based on property ownership, not on religion - Connecticut and Rhode Island were able to continue to elect their own governor - 1708: Connecticut began to regulate professional lawyers by making them be admitted to the bar - A Horrible Case of Bestiality (1642) - He was found committing bestiality with a horse and confessed to other animals as well - The whole community had to see the public confession - to shame people from doing it again - Colonial Plymouth emphasized confession and repented to ask for God’s forgiveness - All of the animals were killed and so was he - They killed the animals first because that is what was said in the bible (Leviticus) - He heard about it from someone who said that they did it back in England - The author questions how such evil people came to be in this community - Says that the ship’s captains who took people over only cared about money - School Law reprinted in 1648 (Mass. Bay Colony) - It is a sin to keep people from reading the scriptures - If a town has more than 50 households, they need to have a teacher for children to read and write - If a town has more than 100 households, they should have a grammar school for further education - Salem Witch Trials - The Country Justice (1618) - Had a whole legal system of how to deal with witches - Many of the women had threatened the order of how things were to be - Abigail Hobbes: described the devil as black - said that the women were so scared by the Native American violence were terrified by these men lurking in the shadows - suffering from PTSD - Salem Witchcraft Papers - Records were mandatory - Complaint, warrant for apprehension, Examination by magistrate/preliminary hearing, summons for witness, Attorney General indictment, Grand jury trial - Billa Vera - A true bill. An indictment endorsed by a grand jury when they found it upheld by the evidence, requiring a trial on the charge in the indictment. - Cler - Abbreviation for clerk of the court. - Coram - In the presence of, before. - Habeas Corpus - The requirement that a person who is arrested and imprisoned for a crime be given a hearing before a court of law. - Ignoramus - “We are ignorant.” A trial jury’s finding of not guilty. - Jurat in Curia - Sworn in court. - Jury of Inquest - A jury appointed to hear evidence about a case. In the Salem records this term is often used to mean a grand jury. - Mittimus - A court document sent from one court to another. - Oyer and Terminer - Literally, “to hear and determine.” This designation was used for a temporary court established to render judgment about a certain crisis or sudden illegal outbreak that required legal action. The term was used for the temporary court set up in Salem to prosecute individuals accused of witchcraft.. - Warrant - An order written by a court to a public official - Nehemiah Abbott Jr. - Denied witchcraft - Ann Putnam said that he hurt her - They identified him by a protrusion on his eyes - Bridget Bishop - Hubbard, Ann Putman, Abigail Williams, and Mercy Lewes said that she hurt them - They were catching her up in her denial and the words that she used - They said she had strange fits and seemed blind and deaf - They gave her a physical examination - Abigail Hobbs - Said that she made a deal with the devil to become a witch - The Flushing Remonstrance (1657) - The religious Magna Carta of the New World - 1645 - Now Flushing Queens became part of New Netherland and was settled by English families - lots of Quakers came but they threaten to overwhelm the Dutch Reformed Church - William Blackstone  - A married woman has no legal personhood or independant standing - all contracts, wages, etc, go to their husbands - Can be “disciplined” by their husbands - without violence that is unreasonable - They expressed anxiety and dissatisfaction about this - Single women could make their own contracts and own property - “Of Husband and Wife” - The legal status of the wife is suspended - she is taken under the protection and influence of her husband - He cannot give his wife anything - all agreements are voided - He must provide for her all necessaries - nothing more than necessary is not his problem - The husband must pay for the debt - Feme sole: when the husband has been banished (dead in the law) - Penn act Concerning Female Solo Traders (1718) - Allowed married women to do something things if they were femme sole - Gave the government permission to not support needy women - Assisted men who were gone - Gave married women the burden of their husbands debt if he left - If an absent husband leaves his wife, the further needed things are null and void - If the husband leaves for too long, commits adultery, etc. the government can take his land to help support the family - South Carolina Act Concerning Femme Solo Traders (1712) Poverty and Law - In Puritan society, being put to work was not a punishment but a way to flourish spiritually because it oriented human desires around an admirable end goal and distracted humans from the temptation to sin - In Christian medieval England, poverty is seen as a sacred condition - In the 16th century, because of the protestant reformation, opinions of poverty changed - By the 17th century, it was widely accepted that the poor were poor because of their laziness and that the poor were a drain on the system - more poor because of the closure of the commons - Poverty was seen as a moral failing - Once colonial virginia discovers Tobacco, they wanted people to supply labor - 1618: William Larratt - a poor boy was arrested for vagrancy in London - he was put in jail, whipped, and was ordered to be transported to Virginia and bound as a servant likely until he was 21 - He could have been assigned from master to master - labor contracts being sold - Virginia Company promoted these labor migrations - 1620 they sent a ship with hundreds of vagrant children to Virginia - New England - The economy is becoming more sophisticated - There are new ways of exchanging currency and financing all of this - 1699: ministers abandoned the idea that usury (undue interest on debt) was a sin - Mass. Bodies of Liberties previously said that usury is “contrary to the law of God” - At the same time, the english are sending soldiers up to Maine to fight the Wabanaki - they issue bills of credit as payment - Bills of credit: an IOU from the government - another indication that there is a more complex economy - The poor laws are being written as the economy changes and becomes more complex - Poor laws are stressing people out - They are deliberate with borrowing laws from England - Legal Settlement is the overlying principle of poor relief - You are not eligible for poor relief unless you were born in or have lived/worked in a town for some years - A legal form of belonging - on the flip side a non-local person can be kicked out - Sources of Law - Common law: (Blackstone, kent) judges opinions, precedent, customs - Positive law: written acts/statutes passed by legislatures - What actually happens on the ground: archival sources can show us how both common law and positive law operate in practice - Germantown protest (1688): quaker meeting where they objected to slavery - They objected to being sold into slavery for “all the time of their lives’ - “Treat other people as you would like to be treated” - Europe is religiously unfree but Pennsylvania is religiously unfree - There is no plan for getting rid of it - Colonial emancipation proposals: - Getting rid of slavery by turning the children into indentured servants - Freed children and adults should remain under the inspection of the Overseers of the Poor - New York Poor Law (1683)  - Locally regulated - “If you come here and don't have a way of contributing, you have to promise that you will not be a burden” - They used interviews with the incoming people - If they couldn't corroborate their stories, they had the legal authority to send them back to where they came from - Allows for towns to elect a person to assess the taxation and collect the taxes - This person would also keep a record of the payments and the timeliness - The town members should make provisions for the poor - If someone comes without any estate or means, they have 2 years of support by the state - Act for...the Restraint of Vagrants (Va. 1744) - Vagrants: people who are able to work but chose to be idle - No wandering person should be hired without a certificate - They are brought before the court and if they are found to be a vagabond, they are whipped - They will not have legal authority until they pay - Between this time, they can go to the Church for help and all of the church goers have to support them or pay a fine - Act for Employing and Better Maintaining the Poor (Va. 1755) - Because the number of poor people have increased and to prevent them from stealing - The parish should let them live and give them work - They can rent them land - They should keep a register of people who are accepting help - The poor wear a badge of who is helping them and if they don't, they will be whipped - Act for the Relief of the Poor in the Counties of Ulster and Orange (N.Y. 1762) - Something needs to be done to prevent idleness but also help those who really need it - Elected Overseers of the Poor - Huntington, New York, Overseers of the Poor Records (1752-1819) Growing Tensions in the Empire - There is a growing sense of rebellion and a growing sense of republicanism versus the British empire - The colonists begin to think about republican possibilities away from an imperial monarchy and imperialism - speak of “commonwealths” but rarely “democracy” - Republican: to serve the common good - Early tensions in the empire do NOT mean that colonists are yet thinking of declaring independence - 7 years war (1756–1763) - How a more coherent, cross-colony American identity took place - how the colonists are linked to each other in a political dimension, rather than just linked individually to Britain - The english colonists thought that they were on equal footing with the British across the sea - parliament did not see it like that - There is a continuous violence between colonists, the indians, and the french - The indians saw the english of occupiers of their land - saw their sovereignty threatened - Sovereignty: a political and legal concept that refers to dominant power or supreme authority - Behind this sovereignty was the growing British empire - Laid the foundation for a revolutionary conscience in the colonies - 1707: Acts of Union - Agreement leading to the union of the Kingdom of England and Kingdom of Scotland - creating Great Britain - Combined the parliaments of Scotland and England - Formally united the two thrones - Queen Anne is now the Queen of Great Britain - After 1707, Scots outnumbered the england as immigrants to the colonies - started to dominant the financing of the colonies - The metropole (center of the empire) is parliament - The British empire begins to become a vast empire - often comes in conflict with the French empire both in Europe and the Americas - New France: Canada, Midwest, Louisiana - French and Indian war was actually the FOURTH war between these people - Indian Ideas of Property Law (July 7, 1742) - Especially in Pennsylvania and NY, there was an effort to broker agreements between the Native Americans and the colonists - There were 5 nations: Mohawk, Oneida, Onondaca, Cayuca, Seneca - called themselves the Haudenosaunee - !!!: They were on the edge of the border between the French and the English - the English wanted to keep them as their friends and took these diplomatic relationships seriously - !!!: They also keep the other tribes at bay - particularly the Lenape/Delaware  - The Haudenosaunee view land ownership through conquering but the English view land ownership through land deeds - The English claim that the increase in value is because they have cultivated the land - The English claim that the transaction is one and done - !!!: Their two conceptions of property differ - Indigenous nations believe that land is owned commonly by the nation - Native nations use different parts of land in different seasons - They did not own land as a commodity - giving up the land was a form of diplomacy - through that there was a symbiotic relationship - There were also issues of squatting: colonists settling on land that had not been sold to them - imperial officials would come and kick them out - cause tensions - Native American leader received goods in exchange for land - Referenced William Penn’s commitment to friendship with the Native Americans - They are doing their part to uphold the treaty of friendship - Fire? - Exchange of information between the two parties - They gave them goods for the exchange of land but the leader said that there should have been more - Land lasts forever but goods are only there for a short period of time - They are upset that some people are still settling on the land - They would give animal skin in exchange but their hunting has been spoiled by the settlers - Governor Thomas says that they cannot give more goods because the traders have left - Hudson river valley - Robert Livingston the Elder set up a feudal system - Marry into the Schylullers - Owned land farmed by tenant farmers - 1740s and 50s - they tried to raise the rents and the tenants rioted and revolted - 7 Years War (1756-1763) - French are building up land in the Ohio River Valley - The English keep moving west - into native american land - The French build Fort Duquesne (now Pittsburgh) - Young George Washington is sent to kick the French out of the Ohio River Valley - He murders a French soldier - starting the war  - Young Ben Franklin publishes the first ever political cartoon - telling the colonies to join together and get organized - 1754: He hoped that they would agree to a plan of union at the Albany conference - Would found a continental government with a royally appointed executive - The other colonies say no - The english begin to pour money into the war - the kick out the french and get British Canada, the Midwest, and Louisiana (given to the spanish) - This is very bad for indigenous nations - all of their power came from protection from the French - The Royal Proclamation (October 7th, 1763) - After the 7 years war, talks about the land acquisition - Created new colonies of Quebec, East and West Florida, and Grenada - Mandated that they can't cross the appalachian mountains - The colonists said that because of the charters that said “from sea to sea”, they can settle on these lands - Commanded that the Native Americans that lived there should not be disturbed - Cannot grant pattons beyond their jurisdiction - All of the land outside of this area is given to the Native Americans - If the indians want to give up their land, we can borrow it - The Sugar Act (1764) - The Stamp Act (1765) - First real attempt at governmental authority to help with debt - Taxation on different forms of writing - depends on what the writing is - Claims it is to be used for defending the colonies - Responses: - Mob action/riots - The Stamp Act New York Congress (1765) - The colonies get together to proclaims the rights that the colonists have - Claims that the stamp act is not right because it is taxation without representation, magna carta, etc. - The fines are egregious - It forces them to purchase things outside of Great Britain - Declaratory Act (1766) - Takes back the stamp act - They have every right to bind the colonies and people of America in all cases whatsoever - they have the power to do whatever they want - Somerset vs Stewart Case (1772)  - Freedom suit launched in London for a man (Somerset) that previously lived in Boston - He escaped in England, was captured, and sued under Habeas Corpus - Common Law and medieval labor law - The question is not whether slavery is legal in the colonies, but whether it is in England - Slavery is defined as service for life with only the bare necessities - No passing down of property - “Slavery is incompatible with the natural rights of mankind and the principles of good government” - Slavery as a consequence for civil crimes is different - Slavery had grown out of fashion - Habeas corpus: a legal procedure through which a person can report unlawful detention or imprisonment - James Kent “the american blackstone” - wrote a lot about common law - Marriages can sometimes be legal even if they do not have a legal doctrine - common law marriage - Where do different laws apply in an empire with different zones of law? - 1772: Privy council in London says that virginia CANNOT outlaw the slave trade - 1774: Massachusetts towns instruct their representatives to end the slave trade - Bill passes but is vetoed by the royal governor - The differences between whether the Empire is being pro and anti slavery is frustrating the colonists From Resistance to Revolution - Revolution: going back to the way things once were - They are initially arguing to going back to the way things used to be - getting parliament to back off - John Dickinson - urging protest but not independence - Revolution does not necessarily mean independence - Peaceably assemble for lawful purposes - existed long before the adoption of the constitution (1st amendment) - Declaratory Act (1766) - Takes back the stamp act - They have every right to bind the colonies and people of America in all cases whatsoever - they have the power to do whatever they want - Introduction to the English Bill of Rights (1689) - An act for DECLARING the rights and liberties of the subject and settling the succession of the crown  - Glorious Revolution - put conditions on the new long and queen called the Declaration of Right - Cited that King james subverted and went against the protestant revolution - This declaration became what we now know as the English Bill of Rights - Limits the power of monarchy - creates a constitutional monarchy - Basic civil rights of individuals, Habeas Corpus, free speech, Magna carta, no taxation without representation - Right of all subjects to petition the king: appeal to a legislative, judiciary or sovereign body for redress of grievances - Influential source for legislation in early America - Petitions are uniform in style: “I your humble petitioner” - John Locke, Two Treatises on Government (1689) - Starts writing it before the glorious revolution - speaking out against autocratic monarchy - In response to the Glorious Revolution - said that individuals have the right to overthrow the government - right to life liberty and property - Importance of checks and balances - First - Locke is writing against Robert Filmer who is not a fan of democracy and representative rule - The king is not more important than the law - Other parts of society should have a say in justice and government - Political slavery: where the political system is allowed to do things to you without your consent - Political power is derived from our natural rights (equality of men by nature) and is dependant on the will of other men - everyone has the same power - No men can harm another or go against their rights - everyone should have the right to prosecute people who go against their liberties - No unreasonable punishment - Civil government is the best way to go about - make one civil body politic - Although there are inequalities in every day life - there should be no inequalities above the law - They must abide by the social contract to be a part of government - Second - The legislative power is the only true power and people have the right to dispose of this power when need be - The difference between war and revolution is force with and without authority  - They not only have a right to escape tyranny, but to prevent it with changes in the government - There should not be a revolution about minor issues - The people re the true judges if something be wrong - Dickinson Letters from a Farmer in Pennsylvania (1767) - Lawyer, elected to the Assembly of Pennsylvania - Dickinson took a stand against Franklin and Galloway who wanted to turn Pennsylvania back into a royal charter - He said that, as bad as proprietors were, the king could be worse - Letter 2: urged the people to stand up to the british government following the stamp act and further laws that enforced control over the colonies - He says that parliament can tax the colonies to regulate trade (essential relationship between colony and a mother) - if one part of trade hurt another part - Not simply to raise revenue - because the Townshend act mandates that they buy from England (no competition), they are unjust - He says that the colonies are a part of the whole empire - Massachusetts Circular Letter (1768) - Passed by the Mass. Assembly in response to the Townshend act - says that the colonies should have the same rights as the British - Ones property could only be taken with ones consent - no taxation without representation - United the colonies - england got mad and disbanded the government - encited a mob - The constitution is only as powerful as the people who obey it - hat in all free states the constitution is fixed, and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it without destroying its own foundation; - Because there is an ocean separating them, they cannot be represented in parliament - Sam Adams, Boston Gazette (1769) - One of the first political thinkers to call for an united fight - Declaration and Resolves of the First Continental Congress (1774) - The rights of the colonists or they will boycott economically - Protested the laws that were enacted after the Boston Tea party - Articles of Association - boycott all british oofs - Entitled to Life, Liberty and Property - Entitled to the same rights as the English - They cannot be taxed because they are no represented - They are entitled to common law - to be tried by their peers - Right to assemble and petition the king  - Cannot keep a standing army - Petition for freedom to Massachusetts Governor Thomas Gage, His Majesty's Council, and the House of Representatives, 25 May 1774 - There were five petitions and multiple individual freedom suits - There is a publicity campaign - How can they perform the duties of a husband and wife or parent if they are a slave - They cannot fulfill the duties of the church - They use some of the ideas in Locke’s Two Treatises  QUIZ 3 - Revolution: going back to the way things once were - They are initially arguing to going back to the way things used to be - getting parliament to back off - John Dickinson - urging protest but not independence - Revolution does not necessarily mean independence - Peaceably assemble for lawful purposes - existed long before the adoption of the constitution (1st amendment) - What Sparked Revolution - Some historians emphasize Lockean contract theory/liberalism as a key to American revolutionary thought - Others emphasize republican ideology: thought based on the notions of civic virtue and the need to guard against tyranny (not relying on lock but rather Whig thinkers) - Others emphasize that this is a constitutional crisis and taxation was a sin about tyranny - Others emphasize that it is about land - they want to reclaim the enormous profits of the pre-Proclamation days that Virginia land brokers rebelled against Britain - Quartering Act of 1765: forced the colonists to house and feed a standing army (army that is not at war) - Townshend Acts of 1767: forbade the NY assembly from passing any bills until they obeyed with the Quartering act, added taxes to significant goods - Dickinson was very angry - Tea Act of 1773: regulated the price of tea in the colonies - caused the Boston Tea party - Intolerable/Coercive Acts 1774: Boston port act - shuts down the Boston harbor until the tea was paid for, Massachusetts Government Act, Administration of Justice Act, new Quartering Act - Quebec Act (1774) - was tolerant to catholics and gave some of the Ohio river valley land to the Quebec settlers - Declaration and Resolves of the First Continental Congress (1774) - Held at the city tavern in Philadelphia - They do not want independence from the crown - go back to the way things were - The rights of the colonists or they will boycott economically - Protested the laws that were enacted after the Boston Tea party - Articles of Association - boycott all british oofs - Entitled to Life, Liberty and Property  - Entitled to the same rights as the English - They cannot be taxed because they are no representation - They are entitled to common law - to be tried by their peers - Right to assemble and petition the king - Cannot keep a standing army - Doctrine of Settlement - In response to the declaratory act - The colonists took full English rights and liberties with them when they settled - Saw their charters as protections - The imperial view was that colonies were outposts of economic power - The Rebellion in Law - Boston Port Act reactions - meeting of the first continental congress - ordinary people were hardest hit because they would lose their job and were at risk for feeding their children - Local town meeting appointed 26 men to create a committee of donations to help the ordinary people so they wouldn’t starve - called on all the colonies - tons of people from all around sent goods to boston - Lots of ordinary people who were not reading Locke thought that the ideals of revolution were important - Revolutionary lawyers based their arguments on the legal standing of Englishmen - Most lawyers were torreys - loyal to the British empire - Ordered Thomas Gage to seize arms - they march to Lexington and Concord in April of 1775 - The second continental congress - Spring 1775 - Olive branch Petition - see if they can work it out with parliament and the king - John Dickinson - Declaration of the Causes and Necessities of Taking up Arms - John Dickinson and Thomas Jefferson - They do not want to dissolve the union - want to restore it - Neither documents make the English back off - December of 1775 - all colonist ships are liable to be seized - Fall 1775 - Invasion of Canada, followed by death of Gen. Montgomery at the Battle of Quebec - Joseph Louis Cook - son of a Wabanaki mother and African father - Captured and adopted by the Mohawk during the French-Indian war - Becomes a leader among the six nations  - Officer during the American revolution - some of the 6 nations supported the British, some supported the Americans - Dunmore’s Proclamation, November 1775 - Royal Governor of Virginia - Any indentured servants or slaves are declared free if they are willing to join the British side - Common Sense by Thomas Paine, January 1776 - Makes the case for independence due to unfair trade policies and involvement in foreign wars - Advocated that america is like a child that has grown up and must leave their family - American farms will always have a place to trade in Europe - Because of our connection with Britain, wars that they are involved in prevent trade - Paine wanted reconciliation before the battle of Lexington and Concord - Law is the king of america - Widely read - Cited Dunmore’s proclamation - There are 90 declaration of independences within the state and local levels - Declaration of Independence - Takes inspiration from John Locke - Government gets its power from the consent of the governed - The people have the right to change government if they need - should not take this lightly - GB has continuously violated the rights of the colonists - refused to consent to the public good and has been failing to provide representation, literally creating barriers to their engagement and participation - They say that they petitioned for redress, and they were only answered by repeated injuries - Appeal to the supreme judge of the world and declare themselves to be free and independent states - The rights of Great Britain by James McPherson - Scottish writer and politician - In response to the Declaration of the Causes and Necessity of Taking Up Arms - Jefferson - goal was not independence but was more of a threat - Claims that the authority is rightfully vested in the King, Lords, and Commons - says they are misrepresenting facts and logic  - Taxation without representation doesn't matter because taxation require the consent of all three government branches, not just the Commons, who represent the people directly - Said that most english people don't have representation so why should the colonists - Says that the british are protecting them from the French through war - Says they are misrepresenting important moments like the Boston Tea Party - Says they are using fear and misinformation to promote their cause - Frame of Government Dickinson - Also wrote Letters from a Farmer in Pennsylvania - Political celebrity - known around the Atlantic for his writings - Active member throughout the revolution - abolitionist - Dickinson’s view of Pennsylvania’s constitution - different than what actually happened - Assembly, senate and council (governor, lieutenant governor, etc) - elected every year - Maintain the laws that are currently in place - Abolishes slavery State Constitutions Under the Articles of the Confederacy - What motivated the patriots? - Lockean contract theory/liberalism - “Republican ideology” - notions of civic virtue to guard against tyranny (radical Whig thinkers of the 1720s - Republican: intellectual idea, form of government, political party - Republican form of government: where supreme party resides in a body of citizens entitled to vote and is exercised by elected officials and representatives responsible to them and governing according to law - Radical Whigs: political tradition “classical republicanism” - grew in England out of the english civil war - Political thought that opposed excessive luxury - individual liberty - Republics are fragile and need the most virtuous people who would not indulge in bribery - land owning, wealthy men that did not need money from other people - - Constitutional crisis - Land (1763 line)  - Dunmore’s Proclamation (slavery) - Confederacy - A league or compact for mutual support or common action - The body formed by persons, states, or nations united by a league - Unlike the british constitution, these were written down in specific documents - They wanted to maintain their legal traditions - the declaratory act made them want to write everything down - They wanted documents that outlined the powers of government and specified everything - Fundamental law: - The organic or basic law of a political unit as distinguished from legislative acts - Some provision upon which the rest of a part of the legal system is based and which accordingly either cannot be changed ir can be changed only by the following special provisions - In general, the constitutions: - Feared tyrannical power - gave less power to the governors - Promised that voters could elect a new assembly every year or two - Pennsylvania - In the colonial era, 2/3s of men were able to vote - now over 90% - Any act was provisional until the next years legislature also approved it - Very democratic - Very unworkable - had to rework it in 1790 - Massachusetts - Written mostly by John Adams and approved in 1780 - Racial disenfranchisement - Vermont specifically - Constitution of Pennsylvania (1776) - Government is meant to support the community to enjoy their natural rights - “Author of existence” - not God - The king has employed an unjust war - It is their duty to establish a just government that serves for the whole people, not an individual - Born equally free and independent - Religious tolerance, regular elections, taxation with representation - consent of the people, due process and trial by jury, no unlawful search and seizure, freedom of speech, right to bear arms, immigration and free trade, assembly - Governed by a house of representatives, president, and council - Established a court  - Voting rights go to all free men of 21 who have lived in the state for a year and paid taxes - Elected officials have to have lived in the state for 2 years and cannot serve more than 4 years - Annual elections - Sny vote needs 2/3s majority - Council of 12 men - Supreme court: Fixed salaries, 7 year term, and can be removed - Sheriffs and coroners are elected, free printing - Taxation needs to be for a specific purpose that is clear - They can hold another constitutional convention within 2 years to make necessary changes - Virginia Declaration of Rights 1776 - The power is derived from the people and government should be for the people - if it is no longer for - Separation of branches of government - Militias are different than standing armies - Constitution of New York 1777 - Assembly and senate which both form the legislature - ⅔ vote to pass - Present laws to the council which votes with a majority - The delegates to the national congress are appointed by the state congress - The common law from England should be continued - All men should be prepared to form a militia except for the Quakers - they have to pay - Constitution of South Carolina 1776 - More focus on what the leaders can and can't do - vacating seats, etc. - Articles of the Confederation 1777 - After the declaration of Independence, the committee was made to create an agreement between the colonies - Went through congress - sent to the state legislatures - Everything not mentioned in the document is left up to the states - For the safety and welfare of the states - Movement between states and trade - No fleeing from one state to another - No treaties or foreign policy without consent by the congress - No war without allowance by the colonies - Regulating the treasury, post office, army - The methods that people do history  - Legal history, social history, economic history, intellectual history, military history, religious history, political history, gender history, cultural history Constitutional Moment Articles of Confederation (1777) - First constitution - Unicameral congress that could wage war, conduct diplomacy - each state cast 1 vote - No independant national judiciary - Congress could not regulate trade or commerce - They could only serve 3 years - They all needed to ratify - Maryland was last in 1781 - 1781: Americans started to win the war - Yorktown, Virginia: Lafyaette kept the British at sea with the help of Rochambeau and trapped the British and forced them to surrender - Surrender of Cornwallis - end of the Revolutionary War - Hercules Mulligan - works with an enslaved man named Cato and helped save George Washington’s life - Prince Hall - black petitioner in Mass. who fought for abolition - Took diplomatic work to make sure that Britain did not push American around - Make sure France and Spain were happy - Make other European countries recognize them - Treaty of Paris: To negotiate peace, Ben Franklin, John Jay, and John Adams went to Europe - they negotiated VERY well and got basically everything they wanted - US now reaches the Mississippi river and the border with now Canada - Spain got Florida - Mid-1780s: Articles of Confederation was not working too well - state legislatures were too powerful - They put a lot of power in the legislatures - What was going to be done with loyalists and their property - Taxes - Regulation of the economy - Farmers: wanted low taxes, stop courts from collecting taxes, wanted to print paper money - Artisans: they wanted more tariffs - James Madison: observed that there were more laws passed in the states in the decades following the war than all of the colonial era  - The legislators were also the judiciary systems - Some states began to revise their constitutions - Articles of Confederation: weak and ineffective - lack of institutional wisdom, states ignored requests for congress, nation could not afford to pay back the money it borrowed during the war - Continental army was angry that congress was not paying their salaries - Newburg - port town on the west side of the Hudson River - group of army officers rose up to demand their wages and threatened a coup - American ships are getting bullied by the British Navy - The British shops are still in the midwest - they accused the Americans of not upholding their end of the treaty - The Americans treated loyalists badly - American southerners were upset because the British took a lot of escaped slaves back - Spain closed the Mississippi river - farmers in the western frontier were upset - Each state passed its own navigation acts - Connecticut taxed goods at a higher rate than goods from Britain - 1787: Meet in Philadelphia to fix the articles - 1786: Shay’s rebellion: Western Mass. - 2,000 farmers in debt rebelled after their farms were threatened with foreclosure - would call themselves regulators - they closed the ports and threaten to take over a arsenal - 1787: Mass. citizens elected a legislature that were sympathetic to rebellion - A new central government could save congress from the states, and the states from congress - 55 delegates attend the Constitutional Congress - 35 served in congress, 8 worked on state constitution - Madison Problem: in 1787 he is on the nationalizing side, but then switches - He wanted a true national government, not a confederation of states, a bicameral legislature, a judiciary - Most delegates agree that the federal government should be able to: tax, regulate commerce, impose and enforce laws Randoph/Virginia Plan: Proposed that the national government should be able to review and veto state laws - more centralizing - something kinda similar to parliament - Need for a stronger federal government - Government should protect against foreign invasion, prevent conflicts between states, provide various benefits to states, defend against state encroachments, and be superior to state constitutions. - Shortcomings of the Articles of Confederation: is not good at managing threats, preventing arguments between states, managing trade, preventing pressure from the states - New plan:  - The Articles of Confederation should be expanded to meet the objectives of common defense, liberty, and welfare. - Voting rights in the National Legislature should be proportional to population. - Two branches of government - The first branch should be elected by the people. - The second branch should be elected by the first from nominees by state legislatures. - The National Legislature should have broad legislative powers - ability to nullify state laws that conflict with federal laws. - A National Executive (president) should be established, chosen by the National Legislature, and granted powers to enforce laws and enjoy executive rights under the Confederation. - The Executive and Judiciary should form a Council of Revision to review legislation. - A National Judiciary should be created, including one or more supreme tribunals with jurisdiction over a variety of cases, including those involving foreign powers, national peace, and national revenue. Patterson/NJ Plan - Weaker federal government - Single chamber legislature - equal representation Connecticut compromise: 2 senators for each state, proportional representation in the House - Created the electoral college Constitution - Preamble (written by Gov. Morris) - changed it from We the States to We the States - creates the idea of ratification where people elected Ratification Convention to ratify the constitution (9/13) needed to ratify - Federalist papers are written to convince people to ratify - Article 1: Legislative Branch - No state should enter into any treaty, coin money, enter bills of credit, pass laws impairing the obligation of contracts, grant titles of nobility, impose duties on imports/exports - Nationals wanted proportional representation in both house and senate - apportioning of taxes was based on population - 3/5ths Clause - For the purpose of representation, the slave states wanted them counted fully - Gives slave states a LARGE boost  - Article 2: Executive Branch - Established a president who would choose their own council (cabinet), - Article 3: Judicial Branch - Article 4: States - Article 5: Amendment - Article 6: Debts, Supremacy, Oaths - Clause 2 (Supremacy Clause): national law is the supreme law of the land - did not give the power of judicial review - Article 7: Ratification - Congress has the power to collect taxes, borrow money, regulate commerce with foreign nations, establish a uniform rule of naturalization, regulate interstate commerce, raise an army, create currency - We have no comprehensive notes of what they talked about Slave Trade - Northerners argued that only free people should be counted - southerners wanted slaves counted as well - 3/5ths clause was the compromise: - Articles of Confederation: Dickinson said that taxes should be levied and apportioned based on population - In congress, they said that they should be counting slaves based on age - was soon changed to a ratio - Also included a clause that prohibited the ban of the slave trade before 1808 - ended up being shot down - They argued that abolition was already happening so the states would just do it anyways - Mass. and Penn. have already abolished slavery - Conn. - Gouverneur Morris - 3/5ths clause was a “gift to those who broke the most sacred laws of humanity” - Luther Martin (delegate from Maryland) - refused to sign the constitution because of slavery - New York Times reprinted his speech to advocate - Because they had more representation, they were supposed to pay more taxes, but once they got into the legislature, they decided not to pass direct taxes Northwest Ordinance - No slavery in the new territory north west of the Ohio River (now Ohio, Michigan, Indiana, Illinois) - Gave the settlers voting rights - When there were more than 60,000 people there they would become free states  - Put people into forced labor if they were convicted of a crime - Congress is given the power to abolish slavery James Wilson 1787 House Speech - Defending the constitution and the absence of the bill of rights - At the state level, a bill of rights is necessary, but not at the federal level - there is no need to protect rights that the government cant infringe upon - supremacy clause - Does not agree with holding a standing army in times of peace - It is not right to say that a stronger federal system because the existence of the federal government depends on the states - Defends the raising of taxes - says that they will come mostly from tariffs - Emphasizes that it can be amended Letter from Federal Farmer 1787 - Anti-federalist: opposed the creation of a strong federal government - feared anarchy - persuade state to oppose ratification - Necessary to have full and equal representation - need more representatives - Single supreme court would make it too difficult for people to access justice - Impossible to govern thousands of miles away - Need for a bill of rights - They would need military to exercise these powers (too much military leads to anarchy or despotism) Madison Federalist 10 - Written to persuade New York’s electorate to approve the document - Government is to control the effects of faction (majority or minority groups that go against the common good) - often caused by differences in social, political, and economic differences (ex. Property owners versus not) - Faction can either be eliminated through anarchy, or controlled - Pure democracy can be at risk of faction because the will of the majority entirely overwhelms that of the minority - Republics: enlarges the public view and makes it harder for factions to unite and dominate - Unions of many states prevent faction North Carolina Ratifying Convention Declaration of Rights - More debates over ratification than in other states - They ultimately failed to ratify unless there was a bill of rights - “the great refusal” - Lockean theory - natural rights, power comes from the consent of the governed, nobody is above the law - Separation of power - elections should be free and frequent - Rule of law - Man has the right to know what he is being arrested/charged with and the cause and nature of his accusation, No illegal seizure of property, No excessive bail or fines - Universal rights - Right to assembly and to free speech and publishing, Right to keep and bear arms, Do not have to quarter soldiers in times of peace, Freedom of religion Slavery and Abolition in the New Republic - New York actually had more slaves than Georgia in 1770 - The Quakers were very anti slavery - They used to go door to door and free slaves - if other quakers did not, they would get kicked out of the religion - 1774: New York yearly meeting - “friends could not keep slaves past the age of 18 or 21 years according to their sex” - apprenticed the children - At the start of the revolution - Quakers petitioned states to abolish slavery - They also petitioned the AOC to end the slave trade - but they cant regulate trade so they cant really do much - They pass the northwest ordinance - 1774 - Connecticut and Rhode Island passed gradual abolition of slavery acts that were similar to Pennsylvania - 1785 New York Council of Revision Veto - A bill that tried to gradually eliminate slavery BUT also had a clause that prevented black people from voting - New York Council of Revision: governor, chancellor, and supreme court - empowered by the constitution that reviews laws before they pass - Basically judicial review but before the law is passed - There is nothing in the constitution that bars black men from voting - this new law would prevent them from voting so it was constitutional so the Council sends it back to the legislature - The legislature does not get the 2/3rds to pass it, so they end up passing nothing at all - They didn’t want to let them vote because that would give them a lot of power - New York FINALLY passes a gradual abolition act in 1799 with no limits on voting, marriage, or office holding - All of the northern states either pass abolition or gradual abolition laws by 1804 (New Jersey is the last) - Constitution - 3/5ths clause  - Slave importation clause - congress cannot abolish the International slave trade until 1808 - Fugitive slaves - if there are slaves that escape into other states, they need to be returned to where they came from - Were worried about another somerset case - they still use a lot of English common law - 1790 - Quakers petition to end the slave trade - Although it was clear that congress protected the existence of slavery, it was unclear what they could do to regulate slavery - Anti-federalists - They were scared that the constitution would be used for abolition - Anti slavery forces will “search that paper and see if they have the power of manumission” - Federalist - Madison: pro-slavery - fugitive slave clause was the best they had so far so they should be happy - Wilson: makes the argument similar to the quaker petitioners - constitution gives the “power to exterminate slavery from within our borders” - General William Heath (Mass.): states will regulate their own internal affairs - new englanders can avoid “other men’s sins” - Petitions - Pennsylvania Quakers - They are excited that congress has the power to “promote the general welfare” - New York Quakers - Pennsylvania Abolition Society - Asking for abolition - There was a debate to see whether they could abolish slavery - created a committee to see what the constitution could do - Foster Committee - Includes a bunch of anti-slavery people Foster Committee 1. They agree that congress cant interfere with slave importation until 1808 2. Congress cany interfere with the emancipation of slavery until 1808 3. Congress cant interfere with internal regulations of the states relative to slavery including “separation of children from their parents”... and hope that state legislatures can act 4. Congress can tax imported slaves 5. Congress can regulate the slave trade to “make provisions for humane treatment” 6. Congress can prohibit foreigners from using american ports for slave trade 7. Congress will do its best to “exercise humane objectives of the memorialists”  - Madison does not like this report - has them strike out every clause except the 5th and 6th Federal Consensus - Slavery is “local” - let the states decide PA Act for Abolishing Slavery 1780 - We have been given by God are rights and it is our duty to make sure that these rights are extended - They were not only denied their natural rights, but the right to family and children - Everyone born after this act is should not be a slave for life - Every child should work from 21-28 as indentured servants - limit of 7 years so if they begin earlier, they end earlier - The owners should provide information to the state - Offenses by slaves will be tried as normal people though they cannot testify against white people - All runaway slaves have the same penalties as before - Runaway slaves from other states should be returned to their previous states NY Council of Revision Veto - Gradual abolition followed the same format as Pennsylvania - They proposed guardrails such as: fines for interracial marriage, laws against holding office, serving in juries, and testifying against whites, and laws against voting - They used the voting section to justify vetoing the entire thing - denounced the use of color and descent of people - Veto by the council of revision highlighted the tension between ideals of liberty and the realities of systemic racism Slave Trade Debates in Congress 1790 - Pennsylvanians including Ben Franklin submitted two petitions, one to end the importation of slaves, and the other for abolition - Religious appeal from the Quakers - Anti Emancipation: - Southern states thought it was an attach on their character - Says that the Quakers believe in not petitioning the Government - Says that states have the right to abolish slavery, not Congress - If they did this, who knows what would come next - anarchy from congress - Southern states would not accept without resistance - questions of property, racial mixing, intermarriage  - Says that gradual emancipation would create a phenomenon that encourages “debasement” - Slavery was not new - Pro Emancipation: - Congress needs to at least entertain the idea to prevent a rebellion - Congress could just buy the slaves and free them 1793 Fugitive Slave Act - Anyone who has committed a crime and fled to a different state can be returned - Appoints agents to find and transport slaves - anyone who gets in the way of the process will be fined - Escaped slaves can be taken before the courts to prove their ownership - Anyone who obstructs the arrest of a fugitive should be fined William Hamilton to John Jay - Hamilton was a free black New Yorker - He thought that Jay would be sympathetic - Americans are contradictory “land, liberty, and equality” when there is still slavery - Blames God for the condition of slavery - Slaveholders are stealing labor and liberty 1798 Alien Sedition Acts - Passed by Federal-controlled congress - US was on the brink of war with France - Increase in immigration led to fears about loyalty - There were issues around free press and criticisms of the government - Gives the president the authority to deport anyone who he deems suspicious - If they do not leave, they will be imprisoned for 3 years and not be admitted as a citizen ever - The president can give a license for the alien to stay if they take an oath - Any ships that bring aliens need to register them with the customs officer - If people conspire against the government, prevent operation of the law, or prevent elected officials from doing their job, they are guilty of a high demeanor - If anyone publishes something bad against the government or something that stirs up something bad they should be punished 1811 NY election fraud law - If the election officials think that someone cannot rightfully vote, they make them take an oath that says they were qualified  - If a black or mixed person wants to vote, they need to present a certificate of their freedom - They need to go to a judge or official to prove that they are free to get a certification - have a lot of information and proof - Once they have this information, they also need to take an oath - People who paid highway taxes were able to vote - The quakers made an allegiance instead of an oath 1818 Connecticut Constitution - Declaration of rights, three branches of government, religious freedom, public education and higher education - People with 20 pounds could vote for representatives, people with 100 pounds could vote for senators and governer - Voter qualifications: - Everyone who could vote before - White, male citizens over 21 - Property ownership and 6 months residency - Financial requirements: owning an estate, serving in the military, paying taxes - If someone is found liable of fraud, bribery, etc. they cannot vote - Empowers the selectmen and town clerks of various towns to decide on the qualifications of electors as prescribed by law - People who can vote can also run for office 1821 Black Petition NY Convention - Black petitioners gathered at the rewriting of the NY constitution to protect their right to vote - White men over 21, living in the state for 6 month, and having specific jobs can vote - People who have committed infamous crimes cannot vote - People should be registered to vote at least 20 days before an election Voting Clause in 1821 NY Constitution - Extended Residency: Must have been a citizen of New York State for three years preceding the election and must have resided in the town or county where the vote is offered for the last year. - Property Ownership: hold an estate valued at two hundred and fifty dollars, clear of debts and encumbrances. Must have paid a tax on the real estate. - Taxation: Men of color are only subject to direct taxation if they own the specified real estate. - Many more white men can vote, there are higher barriers to black men voting North Carolina Constitution 1835  - No black or brown man can vote even if they have some white ancestry - free black men had been able to vote before if they met property requirements - There was a very close vote - White people only had to pay taxes to vote for house representatives, and own 50 acres to vote for senators - Jacksonian democracy - political movement that emphasized participation from normal people - They called the constitutional convention over land representation issues Petition for Women’s Rights from Jefferson County - Presented by six women from Jefferson Country articulated a powerful argument for women’s suffrage highlighting key democratic principles - Foundation of government - Consent of the governed - Departure from democratic principles - Burden of taxation without representation - Petition calls for a reevaluation of the state’s practices to ensure that all citizens, regardless of gender, have a voice in the laws and government - Early plea for women’s suffrage - 2 years before the Seneca falls convention 1809 Jacob Henry Pleads for Political Equality in North Carolina - The 1776 NC Constitution included a clause that anyone who was not protestant could hold state office - Included people who were atheist, non-protestant, non-christian, and broad other religious categories - very unclear - This was present until 1835 during a second Constitutional convention - the new constitution barred everyone who isn't christian - Likely deterred people from seeking state positions - Henry was Jewish and got elected but then was tried to be ousted - He delivered a speech defending his right to hold office: - Declaration of Rights guaranteed all men the right to worship as they believe - His jewish religion does not impede the freedom and safety of the state - Are you prepared to plunge at one from the sublime heights of moral legislation into the dark and gloomy caverns of superstitious ignorance? - Says that he does not pry into others peoples religions - expects the same thing to be done to him - If they are just and good people, it should not matter their religion - He was allowed to keep his position Political Parties and Partisanship - The founding fathers did not want political parties - would rather have had individual people - They assumed that people would have similar interests but not form political parties - They assumed that wealthier men would work in the national government and more normal people would work in state governments - During ratification: - Federalists: Jay, Hamilton, Madison, James Wilson, George Washinton - Anti-Federalists: “A Federal Farmer”, George Mason, Patrick Henry - The constitution was a guide but was not the answer - people were scared about how it was going to be used - 1791 Whiskey Tax: excise tax - tax on a specific good - Farmers in places like rural Pennsylvania and appalachia used their overflow wheat and barley to make whiskey - Affected rural people more than city people - Written by Hamilton to get money to pay back war debts - Rural people did not like being taxed by people from far away - the farmers vote - Farmers in western Pennsylvania rebelled - used violence and intimidation to prevent the collection of the taxes - 1794: Federal Marshall, David Lenox served writs to whiskey producers who did not pay the taxes - They fought, killing one, and burned down Neville’s houses - Washington send peacekeepers and a militia to quash the rebellion - Whiskey Rebellion - new national government had the will and capability to suppress violent rebellion to laws - Resistance to a policy that you didn't like moved away from crowd violence into a party system - changing sense of what is politically legitimate - When Washington stepped down as president 1796 he warned against the factions of party - warns against polarization and partisan fighting - He knows that Jefferson (disagrees with) is going to run against Adams (his VP) - First party system - late 1790s - Federalists - pro-washington - Jeffersonian Republicans - anti-Washington - 1798 - Quasi War (1798-1800) between France and US - Under Adams - US refused to continue to repay its large debt to France after its monarchy was overthrown in the early 1790s - French privateers are attacking American ships - France and Britain are also at war - Alien Sedition acts are passed under adams - Federalist laws  - Sedition act - Jeffersonians said that they were trying to suppress the votes of people who disagreed with Adams - Kentucky and Virginia Resolves - Jefferson and Madison (1798/99) - Wrote these protests and handed them to the representatives from these two states - The controversy surrounding the Alien sedition acts caused Adams to lose to Jefferson in the election of 1800s - They had to amend the constitution because of a tie - 3 trends in early 1800s - Rising/cementing political parties - More men allowed to vote - Abolition unfolding in the North - possibility of more back male voters - Usually black men preferred the Federalists - Jefferson's Embargo (1808) - hurt port economies and angered black men - Republican party starts figuring out that they could suppress black voters so they could not vote - Federalists protested the voter suppression laws Judicial Review Judicial review: the idea that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary - allows the supreme court to take an active role in ensuring that the other branches of government abide by the constitution - historical development NOT AUTOMATIC - Judges in individual states are looking at the legislatures that are passing tons of laws and start implementing their own forms of judicial review - They felt they had a role to play in curbing laws - they were worried it was unconstitutional Fundamental law: the organic or basic law of a political unit as distinguished from legislative acts - Some provision upon which the rest of the part of the legal system is based and which accordingly either cannot be changed only by following special elections - Found in written constitutions 1788 New US constitution is ratified with Supremacy clause and sets up a judiciary system - Original jurisdiction: reviews the facts immediately in trial - Appellate jurisdiction: reviewing a decision that has already been made from lower courts - Cases affecting ambassadors, public diplomats, and where the states are a party can go straight to the supreme court Jurisdiction: - Power of a court to adjudicate (decide) cases and issue orders - Territory within which a court or government agency may properly exercise its power Judiciary Act of 1789 - Says that the supreme court should have 6 justices - Establishes smaller federal courts - Set up the office of the attorney general, US attorney and marshall - Section 13: supreme court should have appellate jurisdiction from the circuit courts and courts of the other states - given the power to review and perhaps overturn rulings - Gives them the power to issue a writs of mandamus: order from a court to a government official to properly fulfill their official duties Rutgers v Waddington 1784 - NY state laws that took away property and rights from loyalists - Rutgers (patriot) had a brewery that Waddington (loyalist) took over during the war - she sued for rent - Alexander Hamilton represented Waddington was worried that loyalists would flee - affect the economy - The mayor of NYC is the judge - no separation of branches - Rutgers defended the NY Trespass Act (allowed people to sue people who took over property) but Waddington said that the Treaty of Paris made the law nullified - Paris treaty said that they could not take loyalists land - New York had to obey common law through their constitution, this includes the law of nations and treaties - The trespass act went directly against the constitution - Hamilton argues for the supremacy of national law (the constitution) - The judge ruled that they had to pay some rent but not all - Judge said that treaties were supreme over local law, but it's up to the states to interpret the national laws - Under the Articles of Confederation - in the constitution, treaties are the supreme law of the land - James Kent - Laws of nations is to regulate the relationships between states - Built on mutual intercorse and dependance - moral and political obligation - Somewhat like the social contract - Charter of US has relieved them from foreign domination - confirmed independence and sovereignty Hamilton Federalist 78  - Talks about the structure of the judicial branch - mode of appointing judges, tenure, and relationships between the courts - Judges can be ousted by good behavior - encroachments and oppressions of the representative body - When government is separated, the judiciary cannot hurt the people - does not hold the sword or the purse - Says that they are reactive, not proactive - Argues for the importance of maintaining a clear separation between the judicial, legislative and executive branches to protect liberty- judiciary acts as a check on the other branches - Defends the principle of judicial review which allows courts to declare legislative acts void if they conflict with the constitution - The independence of the judges is meant to fost