e. the declaration of independence (1776) -thomas …du+7+février+20… · e. the declaration of...
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E. THE DECLARATION OF INDEPENDENCE (1776) -THOMAS
JEFFERSON.
a) Only after getting unanimous approval from the
delegates from every assembly, after many local and
town assemblies, on 2th July, the Second Continental
Congress approved the decisive resolutions, previously
framed and presented by Richard Henry Lee, with a speech
written by John Adams:
That these colonies are, and of right ought to be,
free and independent States, that they are absolved
from all allegiance from the British Crown, and that
all political connection between them and the State of
Great Britain is, and ought to be, totally dissolved.
That it is expedient forthwith to take the most
effectual measures for forming foreign alliances.
That a plan of confederation be prepared and
transmitted to the respective Colonies for their
consideration and approbation.
b) Finally, on 4th July, an anniversary now
celebrated all over America (but some logically argue
that it should actually be 2nd July), the Second
Continental Congress voted the approval of Mr.
Jefferson’s document, hence, announcing the Birth of a
Nation, as it declared the formal independence of the
13 colonies now become “13 United States of America”.
• The Declaration of Independence as a landmark
It asserts the right of the new nation to abolish a
government that failed to secure the people’s
‘inalienable rights’ among which were “life, liberty
and the pursuit of happiness”. These ideals were
borrowed from text and notions of the 17th and 18th
centuries, in particular the theory of natural law. 56
members of the Continental Congress signed the
Declaration (including Jefferson, Adams and Franklin),
and it became a symbolic text throughout the world.
The Declaration of Independence claims that:
“We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
creator with certain inalienable Rights, that among
these are Life, Liberty and the Pursuit of Happiness.
That to secure these rights, Governments are instituted
among men, deriving their just powers from the consent
of the governed, That whenever any Form of Government
becomes destructive of these ends, it is the Right of
the People to alter or abolish it, and to institute new
Government, laying its foundation on such principles
and organizing its powers in such form, as to them shall
seem most likely to effect their Safety and Happiness…”
• The philosophical foundations:
John Locke (1632-1704), in his Treatise entitled Second
Treatise of Government (1689), contented that there
existed a social contract between members of the society
and the government, and that the main ends of a government
was to protect inalienable rights, life, liberty and
property. Locke believed in property as a fundamental
human right, a notion to which Jefferson substituted the
more general and philosophical notion of “the pursuit of
Happiness”.
The preamble clearly denies, in the name of the people,
that the strong may legitimately oppress the weak “that
all men and women, whatever their age, condition or
origins, shall not be cheated of their birthright into
misery; that this theme, of human freedom and dignity,
is what politics is about” (Brogan, 182).
• Structure of the document
The document is divided into 5 sections —
introduction, preamble, indictment, denunciation, and
conclusion, each of these terms being used in any legal
context for Acts passed in common law countries.
The introduction announces the intention to break
from Great Britain; the preamble offers the
philosophical basis for the right of revolution, and is
directly inspired by John Locke’s last chapter of the
Second Treatise of government entitled “on the
dissolution of government”, that deals obviously with
the right to overthrow any tyrannical government “when,
in the course of… it has become self-evident…”. The
indictment is meant to list the grievances or charges
against the king: this includes the violation of
constitutional rights perpetrated by Parliament and
which George III failed to veto or redress, the
denunciation condemns the British people for failing to
aid the Americans, and the conclusion finally declares
the 13 colonies as being “free and independent states”
that have effectively joined other nations.
A new nation was born. In the meanwhile, even if
the Declaration was drafted, the various states,
between 1776 and 1780, were busy drafting and ratifying
their constitutions. These texts were meant to make the
colonies preserve their rights and liberties, which
they thought they were entitled to detain as Englishmen,
but which the English had failed to uphold.
The next step would be for the new nation to form a new
regime, but the constitutional crisis could only be
solved by military force, because there was then no
supreme institution to deal with the constitutionality
of matters then: the war was to make the Revolution an
effective success.
III. The Independence War It lasted 6 years, but from the moment that war broke
out, “British Rule in the thirteen colonies was at an
end”.
A. MAIN EVENTS
- 1776: General Washington captured a thousand
Hessians on Christmas night, but retreated and spent
the winter at Valley Forge.
- Benjamin Franklin went to France in 1776 to seek aid;
he was highly successful and warmly welcome there, for
instance by Voltaire. He was admired for his simplicity
and dress, nicknamed “le bon Quacker” (even if he was
nothing of the kind), and became fashionable.
- 17th Octobre 1777: disaster for the English at
Saratoga followed by dark years.
- In 1777, Lafayette, a nineteen-year-old officer,
sailed from France to help young America. He persuaded
the French government to send ships and supplies,
officers and soldiers.
End of the war: Yorktown surrendered in 1781.
1782 - The peace treaty signed in 1782, with King George
III, recognized the independence of the US.
- A new Peace Treaty, signed on 3 September 1783, gave
the US excellent terms: “Not only did the British
recognize American independence and make peace, and
grant valuable concessions to American fishermen in
Canadian waters, but they conceded most generous
boundaries to the new republic” (Brogan, 191),
gradually letting off the Great Lakes and the
Mississippi territories”.
Hence America “became the legally undisputed mistress
of an immense, rich, peopled territory”.
This was how the young republic came to be formed, and
then it was to be extended.
Other events:
-1803 Jefferson bought the territory of Louisiana from
the French.
-1812 President Madison declared war upon England in
1812 as he meant to acquire Canada. But this was a
failure.
- 1819 Florida was bought from Spain.
- 1823 President Monroe, proclaimed the famous
doctrine: “America for Americans”.
Now fate pointed westward, to the conquest of the West….
B. THE FIRST STEPS OF THE REPUBLIC
After the colonies had won the Revolution, there was the
need to create a government. Each state wanted to guard
its sovereignty while forming a union, some wanted a
strong union with a national, centralized government,
whereas others feared a new British-like tyranny.
This was the beginning of discussions, internal
dissensions and battles between Federalists and Anti-
Federalists. The Founding Fathers, mainly Federalists,
would want a strong federal government with a strong
executive and judiciary, to maintain order and
stability. Anti Federalists (some former patriots like
Henry Lee) on the contrary, believed in state
sovereignty, the liberties of the individuals, and
guarantees against tyranny. The first government was a
Confederation.
As soon as the Revolution had begun, the colonies had
indeed joined in a loose confederation, and after the
end of the war in 1781, the 13 colonies had become
States, with their own complete systems of public and
private law, experimented with a form of union under
the Articles of Confederation, an instrument drawn up
by Congress to act as an instrument of Government for
the new Union of States.
One of the main issues was to know how to structure
a new republican form of government
It was time for states to coin their constitutions
C. MAIN OBJECTIVES AND DECISIONS - STATES’
CONSTITUTIONS AND LEGISLATURES
• The alliance of the states in Congress was
confirmed as a government, and empowered to appoint
ministers to execute its policies.
• 8 of the new states proclaimed new constitutions
for themselves.
2 visions were opposed from the start, on the one hand
a) some of which were “extravagantly democratic,
with supreme States legislatures, the people they
represented were to be consulted as often as possible
and executive power and the judiciary kept deliberately
weak to provide for strong local legislatures.
Therefore, none of these constitutions had an
independently - elected governor. Each governor was
appointed by the legislature, and his/her power rather
weak, with no power of veto or to appoint judges.
• The legislatures were to be made accountable to
the electorate as there were to be frequent elections
(to be responsible for something, to somebody, general
term; to be accountable for something – to somebody; to
be liable – liability - very important legal term, which
means financial and legal responsibility, for instance
a debtor to his creditor);
The most radical constitution to this extent was
that of Pennsylvania adopted in 1776, as it replaced
the governor with an executive council with 12 members,
a unicameral legislature with one-year terms, and very
low requirements of voting. This shows the conception
of a republican government controlled by popular
majority.
• Provisions expressly outlawed class privileges
and hereditary public offices. Churches were stripped
of their privileges; bills of rights, securing the
liberties of citizens, were passed into law; these
bills of rights included provisions to “protect the
freedom of the press, religion, and assembly, as well
as guarantee the right to a jury trial” (Brunon et al,.
p. 27).
• Virginia, New Hampshire and New Jersey included
explicitly the right to revolution, “in the language of
Locke”; land (Loyalists’) was to be redistributed; the
trans-Alleghany West, superseding the 1763 British
proclamation, was opened to legal settlement (Brunon-
Ernst et al., 28). As the authors put it, “these
constitutions prefigured the constitutional thinking
that would dominate a decade later…, represented a
return to the constitutional principles of liberty
through balanced and limited government…” Such
principles that “had, precisely, “motivated the schism
with Britain in the first place”.
However, some prominent lawyers and constitutionalists,
among whom John Adams, were actually concerned about
the excessive power granted to state legislatures.
Adams, for the state of Massachusetts as well as the
state of New York had therefore established more
elitist constitutions:
• with independently elected governors (for terms
of 3 years for New York) with the power to appoint
judges and veto acts of the legislature.
• Imposed higher property requirements for voting;
senates with longer terms of voting”
On the whole, a common document was necessary to tackle
the question of the union so to speak, and the relations
between the sates, left open by the creation of all
these constitutions. The Declaration of Independence
had indeed provided for the creation of 13 independent
states, but had not considered the question of their
internal relations.
Would they unite to form a single nation? Which form
would this union take? At that stage, all states were
anxious to preserve their independence, and did not
particularly wish for a centralized strong state but
the main reason for union was common defense, against
any attempt from Britain for example.
This is first why the Continental Congress drafted the
Articles of Confederation, giving shape to the
structure of the first “United States of America”,
(Article I), in the form of a loose and weak
confederation of 13 independent, sovereign states. The
authority of the Confederation government rested
entirely on that of the government and legislatures of
the various states, and they delegated only limited
power to the union government.
IV. Articles of Confederation - 1787
Document - (Brunon et al., 29-30) The Articles of
Confederation
written 1777, ratified 1781
Articles of Confederation and perpetual Union between
the states of New Hampshire, Massachusetts, Rhode
Island, Connecticut, New York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia.
I. The Stile of this Confederacy shall be “The United
States of America”.
II. Each state retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and right,
which is not by this Confederation expressly delegated
to the United States, in Congress assembled.
III. The said States thereby severally enter into a firm
league of mutual friendship with each other…
[…] Second part of number IV: justice
“ If any person guilty of, or charged with treason,
felony, or other high misdemeanor in any state, shall
flee from justice, and be found in any of the United
States, he shall, upon demand of the Governor or
executive power of the State from which he fled, be
delivered up and removed to the State having
jurisdiction in his offense.
Full faith and credit shall be given in each of
these States to the records, acts, and judicial
proceedings of the courts and magistrates of every
other State.”
This means the right of access to
justice goes beyond the principle of the independence
of the state.
• Article XIII or ‘The standard of unanimity’:
“…, nor shall any alteration at any time hereafter be
made in any of them, unless such alteration be agreed
to in a Congress of the United States, and be afterwards
confirmed by the legislatures of every State.”
Explain why the standard of unanimity might be a
hindrance made it practically impossible to raise an
army or take a collective decision or give real power
to the national government.
By 1787, however it had become obvious that this
original concept did not work. Indeed, as of the early
days of the Confederation, there was so much growing
interstate bickering and quarrelling as regards trade
and taxation that made some fear that an interstate war
might break up soon.
According to the basic constitutional principles, only
the state governments had the power of taxation as the
people were represented in state legislatures only. The
Confederation could only request funds from the states.
There was therefore an acknowledged need for a more
powerful national government.
V. slavery.
• Slavery as a hindrance
In addition to this, slavery also became a real
political issue as early as 1773; slave-owners harshly
attacked by such people as Jefferson himself (a
paradox), or Reverend John Allen of Massachusetts who
pointed the contradiction of the so called Sons of
Liberty: “trifling patriots…continuing this lawless,
cruel, inhuman, and abominable practice of enslaving
your fellow creatures” (Brogan, 184).
Here we have ingrained the future arguments in the
future civil war between North and South.
Finally, Puritan New England Quaker Pennsylvania and
Delaware ended up outlawing slave-trade. But in April
1776, Congress directed that, as a war-measure, slaves
were to be imported into any of the 13 states.
• Next, the conquest of the West was beginning and there
was a need to achieve legal organization
The North-West Ordinance passed by Congress in 1787,
when settlement of the Ohio Valley was about to begin,
was meant to provide for the political organization of
the new lands. It was the pattern by which all future
territorial acquisitions were to be regulated. But the
diplomatic and military strength of the Confederation
Congress was nil, its financial affairs were hopeless.
Congress, under the Articles, had as little power to
tax American citizens as George III after the repeal of
the Stamp Act, but simply had to ask the state
governments for money (and it must be said it never got
all that it needed).
• There was indeed a debt problem after the costly war,
and the ensuing increasing taxation led to rebellion
within, hence, Farmer Daniel Shay’s in Massachusetts
(1786). Farmers resented taxation as they operated on
barter (explain). This was felt as a threat to order.
A strong national union was needed.
• This is when the group of Federalists formed and
gathered, including John Adams, James Madison,
Alexander Hamilton, John Jay, and George Washington,
(see below) convinced that the Union could only survive
with a much more powerful national government and met
to rethink the principles of the republican government.
They were learned in public law and constitutional
matters.
Adams asked to summon a Convention, first to
‘revise’ the Articles and correct their obvious
defects, among which, the absence of a real national
executive power, the all too limited power granted to
the Congress to enact laws, and the effects of the
unanimity rule that gave virtually no power to a
national government. Thus, would the “Virginia Men”
coin a plan for a national, federal government.
VI. TOWARDS THE BUILDING UP of a National Government
The Philadelphia Constitutional Convention, held in May
1787, gathered 55 delegates representing 12 states
(with the exception of Rhode Island which argued that
the meeting was illegal), and was presided over by George
Washington (1732-1799), Commander in Chief of the
continental Army, son of the landed gentry, who was then
to be unanimously voted the First President of the new
nation (which included 4 million inhabitants then). He
was President from 30/4/1789 to 4 March 1797.
THE FOUNDING FATHERS Who were they? / Who they were
•1789: General George Washington became the first
President of the US and Chief of the Army.
More other Federalists and other essential figures:
• Alexander Hamilton (1755-1804): A New York lawyer.
He played an essential role in the army and to get the
Constitution ratified
• John Jay (1745-1829) A wealthy New York lawyer who had
written the Constitution for his state and one of the
negotiators of the Peace Treaty of 1783 that gave the
country independence from Great Britain. Later Jay
became Chief Justice.
• John Adams (1735- 1826) 2nd President of the US from
4/3/1797- 4 /3/1801, also involved in the drafting of
the Constitution
• Thomas Jefferson Declaration of Independence - 3rd
President (1801-1809)
• James Madison (1751-1836) A Virginian lawyer and
learned in public law and constitutional theory, a
driving force of the Constitutional Convention of 1787,
often referred to as the “Father of the Constitution”.
He became 4th president of the US (1809- 1817).
• The 5th President was James Monroe (1817-1825).
• Towards a national Constitution
- So, originally, many states had only thought of
revising the Articles on the question of trade and
commerce. It was obvious that the new nation had to
prove it was fit for self-government. However,
interstate jealousies and demagogy resulted in a period
of chaos and anarchy, and soon the need for order led
to the idea that a Federal Constitution was to be
drafted.
- So, the ‘Virginian Men’ caucused and drafted the
Virginia plan, de facto the ancestor of the
Constitution: the problem set to the delegates was to
“devise a permanent framework for the government of the
American nation”. This had been in fact in the air ever
since the foundation of Jamestown. With time, the
Americans had grown confident that their future must
lie together, ‘as one confederated body politic’.
Explain this expression in your own terms
The purpose of this meeting was indeed to “take into
consideration the situation of the US, to devise such
further provisions as shall appear… necessary to render
the constitution of the Federal Government adequate to
the exigencies of the Union, and to report an act for
that purpose to the US in Congress assembled as, when
agreed to by them and afterwards conformed by the
Legislatures of every State, will effectually provide
for the same frame…”.
Benjamin Franklin and Alexander Hamilton and others
hence set to work to plan a political system according
to which no branch of the government could exercise
despotic authority.
The Constitution was said to reflect the art of
compromise.
THE CONSTITUTION, or the art of compromise
It was generally admitted that the states needed a
stronger government, but there were fears due to the
obvious inequalities between large and small states,
states with slaves and slaves without. So, a series of
compromises were required.
a) The formation of a national government
First, the delegates agreed very quickly on the
principle that the main defects of the Articles were
that the confederate Congress represented states only
and because of the unanimity rule there could be inner
contradictions and general lack of uniformity.
Thus, it was agreed that should be established a
“national government…. consisting of a supreme
Legislature, Judiciary and Executive” that could
operate directly on individuals and not just on states.
But it was hard to decide the respective powers at the
start.
It was also decided the legislative would be formed of
2 chambers.
Debates would last until end of August between
Federalists and Anti Federalists about the new form of
government and then for ratification of the model
proposed mainly by the Federalists.
b) First principles - Compromise about the structure
The first debates and resistance of many Anti-
Federalists, advocating the sovereignty and independence
of states before all, liberty of the individuals and
guarantees against centralized tyranny, concerned the
Convention: they said this Convention was
unconstitutional and made a counter-proposal known as
the “Connecticut Compromise”, with which a bicameral
legislature was proposed with a lower house and an upper
house. So, the principle of 2 chambers of different power
was admitted.
The Federalists had proposed the possibility of a
federal veto of state legislation but as the Anti-
Federalists argued that it was an infringement on the
sovereignty of states, so the Federalists had to accept
the compromise.
But the problem was the obvious discrepancies and
inequalities between small states and large states in
terms of representation. Finally, the larger states
accepted a compromise:
The lower house would be elected on a population basis,
with at least one representative per state, whereas the
upper house, the Senate, would have an equal vote there.
This was what has been referred to as the Great
Compromise, adopted on 16 July.
Then details were discussed:
- each state would have 2 representatives in the Senate
who would vote as individuals, not as a unitary state
delegation;
- the new constitution was to be the supreme law of the
land
- executive officers might be impeached for high crimes
and misdemeanors (= petty offences).
c) The second crisis, which occurred in August,
concerned the issues of slave trade and slavery, which
clearly presented key constitutional issues.
Indeed, if proportional representation was introduced,
the southern states, that had a much smaller proportion
of the free population than the north, feared they might
lose influence in the federal government. So, the south
insisted to count the slaves in the population, which
obviously the North found unacceptable.
• A compromise was then struck: each slave would indeed
be counted, but not as one person but as three-fifths
of a person. This became to be known as the “Three-
Fifths Compromise”.
Then a second compromise was needed on the issue of the
slave trade, which was clearly to be regulated by the
federal government even if “it was a matter for each
state to determine the legality of slavery itself”.
As slave owners were worried about the future of the
institution and feared the abolition of the slave trade
altogether, a clause was introduced (Article I, section
9) to prohibit its abolition for 20 years.
So, to sum up, after 4 months of debate, at the
end of the summer, a short document of about 8,000
words, radically different from the Articles, had
finally been produced. This was to be the new
Constitution, made up of 7 Articles, each defining the
powers at stake, executive, legislative, judiciary…
The durability of the Constitution, it has been said,
lies precisely in the fact that the text had been
thoroughly tested in argument by sincere and
trustworthy men.
d) Ratification
Then began the long battle for ratification which
lasted one full year, with speeches, petitions,
letters, pamphlets, articles, that opposed Federalists
and Anti Federalists (Robert Yates, Richard Henry Lee,
a loyal Independence patriot) and George Clinton….
See for example The New York articles in the Federalist
Papers, often quoted, even today, in US Supreme Court
or by scholars, to interpret the Constitution. These
papers deal with constitutional issues, the
independence of the judiciary…
Reading Comprehension the Federalist n° 48 1
February 1788
This paper written by James Madison deals with the key
question of the Separation of powers - This is how he
argues in favor of this principle
Federalist n°48
“These Departments Should Not Be So Far Separated as to
Have No Constitutional Control Over Each Other” New
York Packet Friday, February 1, 1788 (James Madison)
To the People of the State of New York
“It was shown in the last paper that the political
apothegm [of the separation of powers] does not require
that the legislative, executive, and judiciary
departments should be wholly unconnected with each
other. I shall undertake, in the next place, to show
that unless these departments be so far connected and
blended as to give to each a constitutional control
over the others, the degree of separation which the
maxim requires, as essential to a free government in
practice be duly maintained.
It is agreed on all sides, that the powers properly
belonging to one of the departments ought not to be
directly and completely administered by either of the
other departments. It is equally evident, that none of
them ought to possess, directly or indirectly, an
overruling influence over the others, in the
administration of their respective powers. It will not
be denied, that power is of an encroaching nature, and
that it ought to be effectually restrained from passing
the limits assigned to it. After discriminating,
therefore, in theory, the several classes of power, as
they may in their nature be legislative, executive, or
for each, against the invasion of others. What this
security ought to be is the great problem to be solved.
Will it be sufficient to mark, with precision, the
boundaries of these departments, in the constitution of
the government, and to trust to these parchment
barriers against the encroaching spirit of power? […]
”
Here, are clearly ingrained the key principle of checks
and balances between the different branches that would
be an essential feature of the Constitution.
Progressively however, Anti-Federalists were losing
ground, and as it seemed obvious, they would lose the
battle of ratification, they put their energies into
securing a federal bill of rights, to check the power
of this new federal government.
- The Constitution was ratified in 1788-1789
The states ratified the Constitution one after the
other: Delaware first, on 7 December 1788, Pennsylvania
second on 12 December (by 46 votes to 23 in the state
conventions); next came New Jersey, Georgia, then New
York, drawn reluctantly in. Only 2 states actually held
out: North Carolina and Rhode Island. This was no
landslide victory, but a ‘touch and go’ one.
• New elections were held; the electoral college voting
for the first time after the dying Congress in February
1789, unanimously chose George Washington as the first
President of the US, and on 30 April, he took the oath
of office in New York.
Changes in other areas a) In private law, colonists adopted the general
features of the English legal system. The desire during
the Revolution, at this stage, was not so much to change
rules as to know who would apply them. However, we have
seen how law of property developed differently in the
US from the UK as a result of different circumstances
at the origin. Many states passed “reception statutes”
to mention which part of English law would be
enforceable. Legislation then was often complex and
difficult to construe. The substantive common law
needed to be adapted to circumstances, but some
revolutionaries like Thomas Paine advocated getting rid
of common law altogether as they thought UK common law
was an instrument of imperialism.
In matters of procedures, the jury, both in civil and
criminal matters, was enthroned by the Constitution. As
of the 19th century, the judges and lawyers thought more
in substantive term in ‘tort’, ‘contract’ rather than
refer to old procedural categories like ‘trespass’ or
‘assumpsit’. Common law pleading was generally
simplified.
b) Evolution in legal philosophy
The American Revolution, much less revolutionary than
the French one, had its main impact in a general
rethinking of the nature of law, with a view to
accepting changes and mutability. Common law was
considered in its social regulating role long with
legislation, and in the 19th century there was a general
movement towards codification See New York lawyer David
Dudley Field’s code of civil procedure adopted by 30
states and his penal code and code of penal procedure
adopted by 16 states (codes were then series of rules).
With the west conquest and the expansion of the
territory, were introduced new elements of civil law
sometimes borrowed from other countries, (Louisiana,
from French and Spanish (civil) law; Spanish/Mexican
law in Texas, New Mexico, Arizona, and California. Many
similarities were the result of parallel evolution in
parallel circumstances:“ American law became closer to
English law after the independence than in the colonial
period.” (Harvey et al., 76)
CONCLUSION: From the Constitution to a federal republic
– Bridging the Gap from the Past to Today-