American Legal History
Some of my thoughts/comments on the reading (pre-class) - please jump in on a discussion/comments/etc.

1. I found it a bit puzzling that in the Proclamation of 1763 the king purported to reserve certain lands “under our sovereignty, protection, and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new governments…as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest as aforesaid…” etc. The next sections, regarding penalties for those who might encroach on those lands and discussing how “great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests…” were also unexpected. I wonder how enforcement was envisioned, and how this squares with any expansion of empire or with the powerful position the lands/rivers in question could be for trade expansion and control of the continent. Do others have a similar reaction? Perhaps this is something that can be expanded on a bit contextually?

I spoke about this briefly on Friday, and I will touch on it at greater length next Thursday. After that, we should consider what reading you might find useful if you want to go further.

2. Reading from James Otis’ 1764 “Rights of the Colonies” (at page 47) I wonder where the author’s confidence in the willingness of Parliament to repeal Acts that were made contrary to what he calls a violation of G-d’s natural laws (interestingly not historically accepted laws of England) comes from – and why he believes that if they were to be repealed, that they would be done in any form of timely manner (i.e. as soon as the “mistake” was realized). The text suggests that it is a reflection of the overall argument/sentiment of the colonist’s rights as Englishmen and their trust and esteem for that system, but is there some measure of perhaps blind trust in the system? Recognizing that those who sit in legislatures or act in politics have their own interests and projects (at the time of his writing, before then, and after that time through the present), how could that confidence remain so strong? Would some measure of skepticism not have set in? I think of this particularly in light of the distance of England from the on-the-ground issues (seemingly implied in the 1764 “A Remonstrance From the Pennsylvania Frontier”) as well as the colonists’ emphasis on local government for matters that the crown did not expressly speak to and matters of local concern such as criminal trials in the area, etc? If there was such political skepticism, was it the norm, wrapped in some way into the overall mindset of the federal view with subordinate colonies and the governing rights of Englishmen, or the outlier?

I fear that James Otis' style—which some of his contemporaries thought was somehow closely related to the "madness" which later disablingly seized him—has deceived you here. Sometimes when he is being hyperbolic he is perhaps a little manic, but here he is being merely ironic.

3. Soame Jenyns notes in his 1765 “Objections Consider’d” that the term “liberty of an Englishman” is one used in many senses and has been batted about constantly over the several years prior to his writing. It does appear that the phrase, its variant “rights of Englishmen,” and “consent” is floated throughout the documents provided here and in earlier sections by people on all sides of the disputed issues. It might be interesting to do a sort of tracking of the evolution of terms, seeing how they were used, by whom, and with what rhetoric/spin from, perhaps, 1710 through 1774. The same terms were used with very different sentiments and prompted different actions just over the 20 years before 1774, and then different again before that time. (Given the change in politics in England over the period, what they experienced as “rights of Englishmen” might also have shifted, creating greater incongruence while a more traditional view remained in the colonies? Just tossing that thought out there as an aside.) Does anyone know if such a project has been done and if so where it might be found? I’m stewing over what I might expect to be (broadly speaking) the results…

You want to consult the quite extraordinary first volume, on rights, in John Phillip Reid's even more extraordinary multi-volume Constitutional History of the American Revolution, which is built around exactly this inquiry.

-- RitaTrivedi - 30 Sep 2011



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r2 - 02 Oct 2011 - 00:43:14 - EbenMoglen
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