Posted by John Tripp on August 17, 2012
If we are to discuss the hows and whys of how the Framers of our Constitution came to their conclusions, we must look to the three decades leading up to the Declaration of Independence as a major reference guide. We talk about the British Common Law system as the enemy of our values and principles, but the truth is exactly the opposite, as I will try to convince all who are interested in a series of specific incidents and truths about the British Empire and her colonies.
The first union in the colonies - The need for a social compact between the new colonies was made very apparent by the daily Indian attacks and the French and Spanish desires upon this new land. The New England Confederation, established in 1643 was the first union of it's kind in the new world. This model was used in all the other attempts to organize a cohesive compact between the 13 colonies. It lasted for 40 years, and was mostly ineffective in accomplishing it's goals.
After the peace of Aix-la-Chapelle, which was actually only a truce, the coming problem of the French was made clear. Possibly the most important action during the later years is the Albany Act. In 1753, the Board of Trade ( the Crown's administrators for trade ) ordered all colonies north of the Carolina s, directing them to to see that commissioners were sent to treat with the six nations and to renew the " Covenant Chain " with them. The formation of some kind of union appears to have had the sanction of the British authorities. In 1754, after the Indian threat was dealt with, the commissioners entered upon consideration of the need for union and cooperation between the colonies which surpassed the limits accepted by the Board of Trade dramatically. Ben Franklin's first real influence on our history starts here. It was he who is believed to put forth the proposal to unite the colonies in a social compact which included their own central government, the separation of powers, their own quasi-sovereign nation for all intent. The colonies would all have equal representation, a general treasurer was appointed to make loans and collect debts. The colonies voted down this offer, with major threats coming from the Crown, in it's entirety, but it foreshadowed the anxieties, aspirations, disputes, and achievements of the years ahead.
The Writs of Assistance and the Revenue Act - In 1761, an event took place that John Adams declared marked the birth of the American Nation. " Then and there, he declared, the child of independence was born. " The event was a speech in front of the Privy Council by James Otis against the new writs of assistance. This speech contains sentences and phrases that Jefferson used verbatim in the Declaration of Independence.
Before the death of King George II in 1760, the colonies were allowed to pretty much disregard the regulations and red tape from the Crown. England had much too many problems then to deal with the overt smuggling of goods by the colonies without tariffs. British Law commanded that new writs of assistance be written within 6 months of a new King's ascendance to the Thrown.
A writ of assistance is a document allowing British troops to enter a colonists home without reason and search for illegal contraband. Otis was the lawyer arguing for the colonies in front of the Privy Council, the British Supreme Court. His argument talked of the taking away of the natural rights granted by God, which was a cornerstone of the British constitution, threatening the sanctuary of one's dwelling and property. He claimed all the citizens of the colonies had the same rights as British residents. It was this argument, which stated among other things, that Parliament did not have the power to change Natural Law. Man gave Parliament it's power, and only man could take the power away. Neither had power to challenge the rights granted man by God. He quoted Locke and Burke.
So here we find within the sacred rights of Englishmen, we find American doctrines. He told the court it was their duty to void any law that went against the natural rights of man. The logical conclusion from his statement is that an unconstitutional law is not necessarily a bad law, or an inappropriate law, or even a law running counter to endeared traditions; an unconstitutional law is not law at all; it is void; and a court must so declare. The statement declares there is indeed a limit to power, constitutional limits to power. This was to become the main plank in the foundation of America. " Natural equity " were Otis's exact words. Otis was successful in his efforts to stop the British troops from ransacking the colonists homes, but King George III was not done with us yet.
It is of special importance that we recognize the significance of the English called their ruling document their constitution, and it contained separation of powers, natural law, and limits of government. In fact, there is little difference between our system and theirs. A State run religion, which by law protected the freedoms of other religions to practice openly, but in reality, was no more accepting of any other than Americans were of our differences. Freedom of religion only means more than words if persecution of others is not tolerated. In the colonies, the lines between the Lutherans in the South and the Calvinists in the North did not cross until need of safety for all was mandated. Tiny Rhode Island was the only truly non preferential colony, and the only one for more than a century that did not have a state sponsored religion. Maryland and Pennsylvania being the most tolerant after that. Their Senate, the House of Lords are appointed for life and had to be land owners ( large land owners ). Like our House of representatives, their House of Commons is much larger and has more power over the everyday lives of their citizens. Granted, these two things are not small differences, but the similarities are very eye opening. In fact, their judicial branch has upheld far more cases dealing with natural law than ours, even today.
* This information taken from " A Constitutional History of The United States ", Andrew C. McLaughlan - published by D. Appleton - Century Company inc. 1936. I recommend this very well foot-noted text to any who love American history. It is as comprehensive as any I have read. His other American history texts are also excellent.
See part 2 - The Sugar Act, Molasses Act and the Stamp Act.
Join in the discussion on this article at http://www.912communique.com/forum/topics/pre-american-history-1740-1775#ixzz246sbmFAi