Rights of Englishmen

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Rights
Theoretical distinctions
Human rights
Rights by beneficiary
Other groups of rights

The rights of Englishmen are the perceived traditional rights of British subjects. The notion refers to various constitutional documents that were created throughout various stages of English history, such as Magna Carta, the Declaration of Right (the text of which was recognised by Parliament in the Bill of Rights 1689), and others. Many Patriots in the Thirteen colonies argued that their rights as Englishmen were being violated, which subsequently became one of the original primary justifications for the American Revolution and the resulting separation from the British Empire.[1]

Development

Judge William Blackstone called them "The absolute rights of every Englishman" , and explained how they had been established slowly over centuries of English history, in his book on Fundamental Laws of England, which was the first part of his influential Commentaries on the Laws of England.[2]

They were certain basic rights that all subjects of the English monarch were understood to be entitled.[2][3]

History

17th century

Main article: Calvin's Case

In Calvin's Case, [1572] Eng.R. 64, (1572–1616) 7 Co.Rep. 1a, 77 E.R. 377, the Law Lords decided in 1608 that a Scotsman born after King James I united Scotland and England (the postnati) had all the rights of Englishmen.

Calvin's Case contributed to the concept of the Rights of Englishmen.[4][5][6] Some scholars believed that the case did not fit America's situation, and thus reasoned that the 18th century colonists could "claim all the rights and protections of English citizenship."[7] In fact, the legal apologists for the American Revolution claimed they had "improved on the rights of Englishmen" by creating additional, purely American rights.[7]

Owing to its inclusion in the standard legal treatises of the 19th century (compiled by Edward Coke, William Blackstone, and James Kent), Calvin's Case was well known in the early judicial history of the United States.[5] Consideration of the case by the United States Supreme Court and by state courts transformed it into a rule regarding American citizenship and solidified the concept of jus soli as the primary determining factor controlling the acquisition of citizenship by birth.[8]

18th and 19th centuries

At least since the late 19th century, it has been considered the consensus of both scholars and popular writers that the "Rights of Englishmen" was a theoretical basis of the American revolution,[9] or what one teacher education writer called the "substantial organizing idea."[10]

In the famous Slaughter-House Cases, Justice Bradley dissented with a rationale based on his assumption that the "rights of Englishmen" were a foundation of American law:

In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted by express or implied limitations, cannot take away or impair ... and these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States.

The people of this country brought with them to its shores the rights of Englishmen, the rights which had been wrested from English sovereigns at various periods of the nation's history. One of these fundamental rights was expressed in these words, found in Magna Carta:

"No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn him but by lawful judgment of his peers or by the law of the land."

English constitutional writers expound this article as rendering life, liberty, and property inviolable except by due process of law. This is the very right which the plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to-wit: the right of personal security, the right of personal liberty, and the right of private property....

The privileges and immunities of Englishmen were established and secured by long usage and by various acts of Parliament.... England has no written constitution, it is true, but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution.

This, it is true, was the violation of a political right, but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country ....

— Justice Bradley, dissenting in Slaughterhouse Cases, 83 U.S. 36, 114–115 (1873). (Italics added to show the quote from the Magna Charta (sic).)

In the long run, Bradley's dissent became United States law; Harvard law professor Laurence Tribe and Yale law professor Akhil Amar have criticized the majority opinion and supported Bradley's reading of the Fourteenth Amendment.[11]

Influence in Canada

The first Canadian constitution of 1867, deliberatly does not include a list of individual rights, in the French or American style. Instead its preamble states that Canada has a [...]Constitution similar in Principle to that of the United Kingdom [...]. This has been taken to mean by the courts that Canada must maintain a parliamentary democracy with freedom of speech, assembly, and so on, in the British style. This doctrine, known as the "Implied Bill of Rights", was used especially to overturn provincial laws, if they were though to intrude in the federal government's power over criminal law.

In the 1982 amendments to this constitution, Canada gained an enumerated Charter of Rights and Freedoms and the Implied Bill of Rights is no longer relevant.

Modern viewpoints

According to one major current textbook, "The American revolution was mainly about Rights."[12] The American colonists' position depended "not on natural law, but on traditional notions of the rights of Englishmen, the royal charters of the separate colonies and especially on 'long standing constitutional custom'."[12] The only historical controversy is not if rights were important to the Revolutionaries, but what rights were significant.[12]

The consensus has been that this thesis changed as the ratification of the Declaration of Independence approached:[10]

The great strength of the revolutionary movement up to 1775 was the conviction of Americans that they were engaged in a struggle to attain the rights of Englishmen. "We claim nothing but the liberty and privileges of Englishmen, said George Mason, "in the same degree, as if we had continued among our brethren in Great Britain." ... As long as the rights of Englishmen remained the goal, most Americans warmly supported the patriot leaders; when the rights of Americans and independence Great Britain were put forward, the colonists began to divide into hostile camps.

— John Chester Miller, Origins of the American Revolution, p. 168 [3]

At least one scholar states that how the colonists discussed these rights was what was new:

It is true that the colonists had insisted that they were seeking "the rights of Englishmen", but insisting upon this in the face of rulers who declare that colonists do not have such rights is revolutionary, though the rights themselves might not be new.

— Herbert Aptheker [13]

Criticism of concept

Critics of the notion regard it as a nebulous concept of various common law traditions that, as much as it can be defined, is not especially unique to England or Britain, or that the British of the 18th century had no legal rights, or such rights could not be defined with any clarity, or that it is merely an ideology used to further propaganda.[citation needed]

English author and polemicist Christopher Hitchens argued that in fact British subjects technically don't have any rights, as there is no Bill of Rights enshrined constitutionally: "Britain being a country that doesn't have any rights, only traditions."[14]

One writer has said that "The paradox of the American revolution" is that the first colonists came over in the 1630s, but "not until the Glorious Revolution of 1688–89 could the rights of Englishmen be defined with much confidence."[15] In other words, these so-called rights were an anachronism and the "Patriots" of 1775 had no basis to make this claim.[15]

Some scholars have attempted to rehabilitate The Slaughter-House Cases, in contradiction of the "rights" that people have had.[16] In that view, rights have nothing to do with the "narrow definition of national citizenship...."[16]

In popular culture and politics

Whatever its criticisms, the so-called "Rights of Englishmen" have appeared in popular culture for almost 200 years, and that people believe they exist are well-documented.

"The notion of English liberties was personified in the fictitious character John Bull, created by John Arbuthnot in his pamphlet Law is a Bottomless Pit (1912)."[17] John Bull became "an heroic archetype of the freeborn Englishman."[17]

The Artful Dodger, a character in the Charles Dickens 1838 novel Oliver Twist is a skilled and cunning pickpocket, who becomes the leader of the gang of child criminals, and Oliver's closest friend. Ultimately the Dodger is caught with a stolen silver snuff box and presumably sent to a penal colony in Australia (only alluded to in the novel). The Dodger chooses to consider himself a "victim of society," roaring in the courtroom "I am an Englishman; where are my rights?" The judge has little patience with the Dodger's posturing, and orders him out of the courtroom immediately after the jury convicts him of the theft.

See also

References

  1. ^ Swindler, William F. "Rights of Englishmen" Since 1776: Some Anglo-American Notes. University of Pennsylvania Law Review, Vol. 124, No. 5 (May 1976), pp. 1083–1103 (article consists of 21 pages) The University of Pennsylvania Law Review. [1]
  2. ^ a b Blackstone, Fundamental Laws of England, the first part of Commentaries on the Laws of England, pp. 123–124. Scanned in text available at Yale Law School Libraries online. Accessed August 26, 2010.
  3. ^ a b John Chester Miller, Origins of the American Revolution, p. 168, 2nd ed., (Stanford University Press, 1959) ISBN 978-0-8047-0593-6. Found at Google Books. Accessed August 2, 2010.
  4. ^ Price, Polly J. (1997). "Natural Law and Birthright Citizenship in Calvin's Case (1608)". Yale Journal of Law & the Humanities. 9: 73. {{cite journal}}: Cite has empty unknown parameter: |isuse= (help)
  5. ^ a b Hulsebosch, Daniel J., The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence. Law and History Review 21.3 (2003): para. 28-33. Found at History Cooperative website; accessed May 21, 2012.
  6. ^ Arthur J. Slavin, Craw v. Ramsey: New Light on an Old Debate, in Stephen Bartow Baxter, ed., England's Rise to Greatness, 1660-1763 (University of California Press ), pp. 31-32. Found at Google Books; accessed May 21, 2012.
  7. ^ a b Ellen Holmes Pearson, Revising Custom, Embracing Choice: Early American Legal Scholars and the Republicanization of Common Law, in Eliga H. Gould, Peter S. Onuf, ed., Empire And Nation: The American Revolution In The Atlantic World, (Baltimore: Johns Hopkins University Press), ISBN 0-8018-7912-4, p. 102, n. 33; found at Google books, accessed May 21, 2012.
  8. ^ Price (1997), p. 138–139.
  9. ^ "Ancestry of Mrs. Eliza P. Otis Crocker," Daughters of the American Revolution magazine, Volume 4, p. 21, cite at p. 25. (National Society of the Daughters of the American Revolution, 1894). Original from the New York Public Library. Digitized March 12, 2008. Found at Google Books. Accessed August 2, 2010.
  10. ^ a b William Harrison Mace, Method, in history, for teachers and students, p. 113. (Ginn & company, 1897). Original from Harvard University. Digitized February 23, 2007. Found at Google books. Accessed August 2, 2010.
  11. ^ Levy, Robert A. Cato Policy Report: How Gun Litigation Can Restore Economic Liberties (October 2009) Cato Institute.
  12. ^ a b c Michael Zuckert, Chapter 88, "Rights", in Jack P. Greene, J. R. Pole, A Companion to the American Revolution (Volume 1 of Blackwell companions to American history), p. 691 (Wiley–Blackwell, 2003) ISBN 978-1-4051-1674-9. Found at Google books. Accessed August 2, 2010.
  13. ^ Herbert Aptheker, The American Revolution, 1763–1783: a history of the American people: an interpretation (Volume 2 of History of the American people, Volume 5 of New World paperbacks), p. 107 (International Publishers Co, 1960) ISBN 978-0-7178-0005-6. Found at Google Books. Accessed August 2, 2010.
  14. ^ Identity theory website.
  15. ^ a b M. J. Heale, The American Revolution, p. 16. (Lancaster pamphlets) (Taylor & Francis, 1986). ISBN 978-0-416-38910-4. Found at Google books. Accessed August 2, 2010.
  16. ^ a b Pamela Brandwein, "Review: Ronald M. Labbe, Jonathan Lurie. The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment. (Lawrence: University Press of Kansas, 2003), ISBN 978-0-7006-1290-1. Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era. (Baton Rouge: Louisiana State University Press, 2003), ISBN 978-0-8071-2868-8; ISBN 978-0-8071-2924-1." H-Law (May, 2004). Found at h-Nert website. Accessed August 2, 2010.
  17. ^ a b "AngloMania: Tradition and Transgression in British Fashion," Metropolitan Museum of Art (2006), exhibition brochure, p. 2.

Sources

  • We The People: The Citizen and the Constitution, 27 (1997).
  • Magna Carta, 1215

External links

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