Our Legal Heritage Part 120

As of 1710, electees to the Commons had to have 600 pounds annual income for knights or 300 pounds annually for burgesses. This did not include the eldest son or heir apparent of any peer or lord of Parliament or any person with the above qualifications. The universities were exempted.

As of 1729, a person electing a member of the Commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. If he swore falsely, it was perjury and he was to forfeit 500 pounds and his right to vote. Later, voters for member of Parliament had to have residence for a year. Still later, voters were required to have been freemen of the city or town for one year or else forfeit 100 pounds, except if ent.i.tled to freedom by birth, marriage, or servitude according to the custom of such city or town.

Voters were still required to have a freehold of land of 40s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit 50 pounds.

In 1724, since unauthorized persons had intruded into a.s.semblies of citizens of London and presumed to vote therein, the presiding officer appointed clerks to take the poll and oath required for elections for Parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. The oath was that one was a freeman of London, a liveryman of a certain named company, had been so for 12 months, and had named his place of abode. The oath for alderman or common council elections was that the voter was a freeman of London and a householder in a named ward who had paid scot of at least a total of 30s. and bore lot. A list of the voters and of persons disallowed was given to candidates by the presiding officer.

Soldiers could not be quartered within 20 miles of a place of election so that the election was kept free.

Voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors.

Amba.s.sadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the Queen and the law of nations.

The Supporters of the Bill of Rights Society was founded and paid agents to give speeches throughout the country and used the press for its goals.

James Burgh demanded universal suffrage in his 1773 book: "Political Disquisitions".

In 1707 there was union with Scotland, in which their Parliaments were combined into one. The country was known as Great Britain. The last Scottish rebellion resulted in attainder of its leaders for levying war against the king. In 1746, they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. In 1747, anyone impeached by the Commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were a.s.signed for that purpose on the application of the person impeached. In 1748, counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing.

There was a steady flow of emigrants to the American colonies, including transported convicts and indentured servants. Delaware became a colony in 1703. In 1729, the king bought Carolina from its seven proprietors for 2,500 pounds apiece. Person having estates, rights, t.i.tles, or interest there, except officers, were allowed by Parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of 2,500 pounds per 1/8 of the property. Georgia was chartered in 1733 on request of James Oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. It established the Episcopal Church by law. In 1730 Carolina and 1735 Georgia were allowed to sell rice directly to certain lands instead of to England only. Later, sugar was allowed to be carried directly from America to European ports in English ships without first touching some English port. Foreigners who had lived in the American colonies for seven years, and later foreigners who served two years in the royal army in America as soldiers or as engineers, were allowed to become citizens of Great Britain on taking oaths of loyalty and Protestantism. This included Quakers and Jews. The Jews could omit the phrase "upon the true faith of a Christian."

In 1756, indentured servants in America were allowed to volunteer as soldiers in the British army serving in America. If his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining.

There was much compet.i.tion among countries for colonies. Quebec and then Montreal in 1760 in Canada were captured from the French. About 1768 James Cook discovered New Zealand and Australia; his maps greatly helped future voyages. The English East India Company took over India as its Mogul Empire broke up.

Manufacturing in the American colonies that would compete with British industry was suppressed by Great Britain. There were increasing duties on goods imported into the colonies and restrictions on exports. In 1763, Parliament imposed duties on foreign imports going to America via Britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. Foreign vessels at anchor or hovering on colonial coasts and not departing within 48 hours were made liable to be forfeited with their goods. Uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which 1/3 went to the king, 1/3 went to the colonial governor, and 1/3 went to the suer. Any officer making a collusive seizure or other fraud was to forfeit 500 pounds and his office. In 1765, there was imposed a duty on papers in the colonies to defray expenses of their defense by the British military. The duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was 3d.- 2 pounds. There were also duties on counselor or solicitor appointments of 10 pounds per sheet. Duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, pa.s.sports, pamphlets, newspapers (about 1s. per sheet), advertis.e.m.e.nts in papers (2s. each), cards, and dice. The papers taxed were to carry a stamp showing that the duties on them had been paid. Parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. But the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". All of the original thirteen American colonies had adopted Magna Carta principles directly or indirectly into their law. The stamp duties seemed to the colonists to violate these principles of liberty. Patrick Henry a.s.serted that only Virginia could impose taxes in Virginia.

Schoolmaster and lawyer John Adams in Ma.s.sachusetts a.s.serted that no freeman should be subject to any tax to which he had not a.s.sented. In theory, colonists had the same rights as Englishmen per their charters, but in fact, they were not represented in Parliament and Englishmen in Parliament made the laws which affected the colonists. They could not be members of the House of Lords because they did not have property in England. There were demonstrations and intimidation of stamp agents by the Sons of Liberty. Merchants agreed to buy no more goods from England.

The stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms".

To counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in 1766 to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. This angered the colonists, especially Boston.

Boston smuggling had become a common and respectable business. It was the port of entry for mola.s.ses from the West Indies from which New England rum was made and exported. The entire mola.s.ses trade that was essential to the New England economy had been built upon ma.s.sive customs evasions; royal customs officials had partic.i.p.ated in this by taking only token customs for the sake of appearance in London and thereby had become rich.

In 1766 Parliament imposed a duty of 3d. per pound weight on tea and duties on reams of paper, gla.s.s, and lead into the colonies. These import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. But these items were of common use and their duties raised the cost of living. The king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of a.s.sistance.

These writs of a.s.sistance had been authorized before and had angered Bostonians because they had been issued without probable cause. In Paxton's case of 1761, the Ma.s.sachusetts Superior Court had declared legal the issuance of general writs of a.s.sistance to customs officers to search any house for specific goods for which customs had not been paid.

The authority for this was based on the Parliamentary statutes of 1660 and 1662 authorizing warrants to be given to any person to enter, with the a.s.sistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. They were called "writs of a.s.sistance" because the bearer could command the a.s.sistance of a local public official in making entry and seizure. A "general" writ of a.s.sistance differed from a "special" writ of a.s.sistance in that the latter was issued on a one-time basis. The general writ of a.s.sistance in Boston was good for six months after the death of the issuing sovereign. Authority relied on for such writs was a 1696 statute giving customs officers in the colonies the same powers as those in England, a 1699 act by the Ma.s.sachusetts Provincial Legislature giving the Superior Court of Ma.s.sachusetts the same such power as that of the Exchequer, and the Ma.s.sachusetts'

Governor's direction about 1757 to the Ma.s.sachusetts Superior Court of Judicature to perform the function of issuing such warrants. The Ma.s.sachusetts court issued them in the nature of the writs of a.s.sistance issued from the Exchequer court in England, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the Exchequer court required. Few judges in the other American colonies granted the writ.

Seditious libel trials in England and the colonies were followed closely and their defendants broadly supported. John Wilkes, a member of the House of Commons, published a criticism of a new minister in 1763.

He called King George's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind".

After being found guilty of seditious libel, he again ran for the House of Commons, and was repeatedly elected and expelled. He was subsequently elected alderman, sheriff, and mayor of London. In 1770, Alexander MacDougall was voted guilty of seditious libel by the New York Colonial a.s.sembly for authoring a handbill which denounced a collusive agreement by which the a.s.sembly voted to furnish supplies for the British troops in New York in exchange for the royal governor's signature to a paper-money bill. When he was arrested, the Sons of Liberty rallied to his support, demanding freedom of the press. Benjamin Franklin's brother had been imprisoned for a month by the Ma.s.sachusetts a.s.sembly for printing in his newspaper criticisms of the a.s.sembly. He was forbidden to print the paper. Benjamin supported him by publishing extracts from other papers, such as "Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors."

By statute of 1766, the New York house of representatives was prohibited from meeting or voting until they provisioned the King's troops as required by law.

In 1769, Harvard College seated its students in cla.s.s in alphabetical order instead of by social rank according to birth.

By 1769, the colonies' boycott of British goods in protest of the new duties cause these imports to decline so much that British merchants protested. So the duties were dropped, except for that on tea, which was retained as a matter of principle to a.s.sert the power of the crown to tax the colonies. Then in 1773 the East India Company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. The effect of this was to lower the cost of tea in the colonies by avoiding the English middleman, and the American middleman, but also to give the East India Company a monopoly. The colonies felt threatened by this power of Britain to give monopolies to traders. When the tea ships arrived in Boston in late 1773, Bostonians held a town meeting and decided not to let the tea be landed. They threw this cargo of tea, worth about 18,000 pounds, overboard. This Boston Tea Party was a direct challenge to British authority. In response, Parliament closed the port of Boston until compensation was made to the East India Company. By statute of 1774, no one was to enter or exit the port of Boston or else forfeit goods, arms, stores, and boats that carried goods to ships.

Every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. Ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. This statute was pa.s.sed because of dangerous commotions and insurrections in Boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. Later, the Governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to England or another colony for trial when he opined that an impartial trial could not be had in Ma.s.sachusetts Bay. A later statute that year altered the charter of Ma.s.sachusetts Bay province so that the choice of its council was transferred from the people to the King to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the Governor to be made without the consent of the council. This was due to the open resistance to the execution of the laws in Boston. Further, no meeting of freeholders or inhabitants of townships was to be held without consent of the Governor after expressing the special business of such meeting because there had been too many meetings that had pa.s.sed dangerous and unwarranted resolutions.

Also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants.

The commander of the British troops in North America was made Governor of Ma.s.sachuseetts. King George thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. The people of Ma.s.sachusetts were incensed. They were all familiar with the rights of Magna Carta since mandatory education taught them all to read and write. Mandatory education every township of fifty households had to appoint one person to teach all children to read and write. Every one hundred families had to set up a grammar school.) The example in Ma.s.sachusetts showed other colonies what England was prepared to do to them. Also disliked was the policy of restricting settlement west of the Allegheny mountains; the take over of Indian affairs by royal appointees; the maintenance of a standing army of about 6,000 men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies.

The Virginia House of Burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. Whereupon its members called a convention of delegates from the colonies to consider the "united interests of America". This congress met and decided to actively resist British policy. As opposition to British rule spread in the colonies, a statute was pa.s.sed stating that because of the combinations and disorders in Ma.s.sachusetts, New Hampshire, and Connecticut, and Rhode Island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from Great Britain were restricted, on pain of forfeiting the goods and the ship on which they were laden.

There vessels were restricted from fishing off Newfoundland. These conditions were to be in force until the Governors were convinced that peace and obedience to laws was restored. Later in 1775, these trade restrictions were extended to New Jersey, Pennsylvania, Maryland, Virginia, and South Carolina. In 1776, since all the thirteen colonies had a.s.sembled an armed force and attacked British forces, these trade restrictions were extended to Delaware, New York, Georgia, and North Carolina and expanded to prohibit all trade during the present rebellion to prevent a.s.sistance to them. War had started; the new rifle was used instead of the musket.