This volume addresses the political traditions that flourished in regions traditionally neglected by Atlantic history, but which are nevertheless indispensable for a comprehensive interpretation of political modernity. The history of political liberty simply cannot be reconstructed without taking into account the role of the Atlantic as a space for the circulation of ideas.
The different chapters trace the origins of the Atlantic notions of liberty in the crisis of the colonial world, in the diverse processes that led to independence from the metropolis, and in the subsequent efforts to build a constitutional order. The book takes an innovative approach by putting together experiences of the English, Portuguese, and Spanish Atlantic and by dealing with political ideas as discursive and socially embedded practices.
Prices from excl. VAT :. View PDF Flyer. Again, it is of the last Consequence to the Publick, that the bounds of Jurisdiction, and the Checks upon Power, should be inviolably preserved; and if less than an Act of Legislature should be permitted to remove, alter or change those ancient Establishments, then the strength of the Constitution would be broken; and the Law it self, in Consequence of such Permission, might be given up into the Hands of an Arbitrary Power.
Again, If the King by an Ordinance can alter the Terms, without the concurrence of the other Branches of the Legislature, then it would be in his Power to appoint the sitting of the Courts so often as to prove burthensome to the Subject, or so seldom as to obstruct the due Execution of the Laws; for if the King may appoint what Law Days he pleases, independent of the other Branches of the Legislature, he may keep his Courts always sitting, and oblige his Subjects to a constant Attendance, to the great Obstruction of Husbandry and Commerce, and the Ruin of Persons and Families, or he may appoint the Terms but once in the ten Years, and so in Effect deprive his Subjects of the Benefit of the Law.
From these Considerations it appears, that our Ancestors, with great Reason, have always been concerned in the Regulation of the Powers and appointing the Times of the sitting of their Supream-Courts; and there seems to be the like Necessity why our Supream-Court should be subject to the Order and Direction of the Legislature here. I have taken the more pains to set forth this Necessity, and to expose the insufficiency of the Arguments, that I thought might be offered against it, because I have heard the like started before this Time, and great Stress laid on them by some Gentlemen among us, whose Persons and Opinions I Esteem and Honour, who seem to think an Act of the Legislature not wanting, and that our Courts stand upon a much better Foundation without it; and that to suppose our Supream-Court to require an Act, strikes at the Root of all our Priviledges, as Englishmen.
This Construction does preserve our Liberty to choose Edition: current; Page: [ ] such Courts, as we like, but the other destroys it, in that if the Law extends Courts by likeness, then Courts must exist here meerly because there are like Courts in England, without any Liberty to us to reject or refuse them.
The Prosperity of this Colony is greatly concerned in this matter, and the secure Enjoyment of all our Priviledges depends very much upon it. We are happy under the Administration of the best of Kings, who is as tender of the Liberties of his People, as of his own just Prerogatives. This assures us, that every thing that is proposed by this Assembly for our Common safety, will meet with the Royal Approbation. His Excellency our Governor has amply declared his readiness to concur with you, in every thing that may advance the publick Good. The publick Tranquility, as well as Safety, seem to require it: Much is expected from this Assembly, the Eyes of the People are fixed upon you, and wait with Impatience: The Issue of your Determinations: And the Care which you have taken to inform your selves of what is most for the publick Good, is a plain Indication, that you intend to do your utmost to Promote and advance it.
I think, Mr.
The Title of Liberty and Ancient Prophecy
Speaker One Court of Equity is absolutely necessary in this Colony. I think no Court of Equity within this Colony, can be beneficial and safe unless under these two Checks. The first of these will preserve the Dignity and Authority of the Common-Law; and both will go a good way towards preventing an abuse of Power; a Power without these Checks will be exceeding dangerous in any Hands, but Edition: current; Page: [ ] most of all in the Hands of a Governor.
I have said nothing with a Design to offend any Man, nor have I omitted saying any thing, that I thought might tend to the publick Good. Liberavi animam meam.
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I have endeavoured to discharge the Trust, and support the Character, with which this House has honoured Me. You have my sincere and real Sentiments. I am heartily a Friend to this Colony, and earnestly wish its Prosperity. I have no Interest in the Points in Question, but what are common to all the Freemen, of this Province.
I profess the greatest Veneration for the Laws of my Country, and am glad of every Opportunity to do them publick Honour. They place our Liberties upon the firmest Basis, and put our Properties under the surest Protection. I rejoyce in the Security that we have of a long Enjoyment of them, by the Settlement of the Succession in the House of Hanover. We have received our Liberties and our Laws, as an Inheritance transmitted to us in the Blood of our Fathers. How highly therefore should we prize and value them! And what Care should we take, that we and our Posterity may enjoy them in their full Extent?
If this be our happy Case, we shall sit under our own Vines and our own Figg-trees, and none will make us afraid. We shall see our Country flourish, and our selves an happy People. Speaking to the New York Assembly five days after William Smith in the selection immediately above, Joseph Murray, an immigrant from Ireland and the son-in-law of Governor Cosby, took a different tack. By the Desire of this Honourable House, I appear here this Day, humbly to deliver my Thoughts upon the subject Matter of three Petitions, exhibited to this House one from several of the Inhabitants of the City and County of New-York, another from several of the Inhabitants of the County of Westchester, and the third from several of the Inhabitants of Queens-County, relating to the Courts of Justice in this Province; A Matter not only of great Expectation, but really of very great Concernment to the good People of this Colony; a subject which deserves to be handled by Persons of far superior Abilities than what I can pretend to.
However, Mr. But I must beg leave to acquaint you, that being often interrupted while I was writing this I have not been able to contract it in a narrower Campass, for want of more Time, which I hope will apologize for the Length of it. These three Petitions, Mr. Speaker, being pretty near of one Tenor may therefore be considered together, the principal and material Parts of which I conceive may be reduced to three general Heads.
And 3 dly. As to the second general Head, to wit, The Suggestions in the said Petitions, I conceive may be divided into four Particulars,. As to the first Particular, viz.
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And so I proceed to the second Particular, under the second general Head proposed, viz. If this be true, and that they are not erected by Act, It must necessarily and absolutely follow. That there is not, nor has there been, for many Years past, any Supreme Court, or any other Court, legally established within this Colony, from whence must also follow, that all that has been done in the Supreme Court, or any other Court in this Colony, for many Years past, must be null and void; for if the Courts ought by the Laws of England to be established by Act of Assembly, and they are not, then they are not legally established; and if not legally established, whatever is done by a Court that has no legal Establishment, must unquestionably be void.
And what an Inundation of unhappy Consequences must flow from thence, I shall leave to this honourable House to consider; they are too obvious to need enlarging upon. I have heard but one Objection to this Consequence, which is this, That as to all those Cases, where the Parties have not pleaded to the Jurisdiction of the Court, they by omitting to plead to the Jurisdiction, have admitted it, and now must be bound thereby.
To which I beg leave to answer, If there was a Court legally established, which had a legal Power to try and judge of Matters arising within their Jurisdiction, and a Suit is brought for Matters arising out of their Jurisdiction; if the Party does not plead in such a Case, that the Matters did arise out of the Jurisdiction, but pleads other Matter, he shall thereby be said to have admitted the Jurisdiction, and be bound by it. But the Cases are not alike, for there, in the Instance put, there was a legal Court that had Power to try Things, within their Jurisdiction and the Plaintiffs generally alledge the Matters sued for to have arisen within and if the Defendant will not gain-say that, but plead other Matters, he thereby tacitly owns that they did arise within, and shall be estopped afterwards from saying otherwise, Edition: current; Page: [ ] because, by pleading other Matters, he has admitted and allowed the Jurisdiction; now there, there was a legal Court, whose Jurisdiction was admitted.
But here, if what is said be true, there is no Legal Court at all. So much of this Case as relates to the present Purpose, are in these Words, And no act of the Party gives Jurisdiction to the Court, by elapsing his time to plead to the Jurisdiction, if it appears by the Record, the Court hath no Jurisdiction, as in this case it did.
So that, notwithstanding this Objection, the Consequences I before mentioned, must unavoidably follow, viz. That all the Acts of the Supreme Court, and other Courts in this Colony, for many years past, must be void. Wherefore it may be proper to enquire, how this Allegation is proved or appears to be True; and the greatest part of what I conceive has been said for it, will amount at last, only to this, That by the Laws of England, the King by Grant, cannot erect a Court of Equity in England.
And to prove this, many Authorities were shewn, and many more might be shewn to prove the same thing, and I do own, and agree them all, as I said last Friday, to be good Law, and shall likewise agree, That in England the King cannot, by Grant, erect a New Court of Kings Bench, Common Pleas, or Exchequer, or any other Court with general Jurisdiction. And I shall beg leave to add, and am perswaded I shall be able to prove, by and by, That they are not only by the common Custom and Laws of England, without an Act, but are Fundamental Courts, and incident to the Constitution of England; and if so, surely if the Laws of England extend here, and we are under the same Constitution with that of England what is by Law in England, must be by Law here; and the Courts which have their Originals from, and are by that Law, are Fundamental Courts, and incident to that Constitution, must by the same Law and Constitution extend here.
To say, that the Laws of England extend here, and yet, that the Courts, which are by that Law, and by which the Laws are to be administred, do not, is, in the main, denying the Laws of England to Extend: For how can the Laws be put in Execution, or administred without Courts?
To say, that we have a Right, and deny that we have the Means or Remedy to come at, or obtain that Right, is certainly Denying the Right; for, Want of Right and Want of Remedy, are Termini Convertibiles, 1 and the same thing. To say, that the Laws and Constitution of England extend here, and deny that the Courts which are by and part of those Laws and that Constitution do extend, is to say, that the Whole does, but part of that Whole does not extend.
How can any Man say, he is secure in his Privileges of an English-man, if the Courts which by the Laws of England are to secure the Subject in those Privileges, do not extend?
Smith last Friday, and allowed by him to be a very good Description of it. I shall therefore beg Leave to read a few Paragraphs thereof, which are in these Words, viz. The Common Law of England is nothing else but the Common Custom of the Realm, and a Custom which hath obtained the Force of a Law, is always said to be Jus non Scriptum; 2 for it cannot be made or created, either by Charter, or by Parliament, which are Acts reduced to writing, and are always Matter of Record, but being only Matter of Fact, and consisting in Use and Practice; it can be recorded and registred no where but in the Memory of the People.
For a Custom taketh Beginning, and groweth to Perfection in this Manner: When a reasonable Act once done is found to be good and beneficial to the People, and agreeable to their Nature and Disposition, then do they use it, and practise it again, and again, and so by often Iteration and Multiplication of the Act, it becometh a Custom, and being continued, without Interruption, time out of Mind, it obtaineth the Force of a Law.
And this Customary Law is the most perfect, and most excellent, and without Comparison, the best to make and preserve a Common-wealth; for the written Laws, which are made either by the Edicts of Princes, or by Council of Estate, are imposed upon the Subject before any Tryal or Probation made, Whether the same be fit and agreeable to the Nature and Disposition of the People, or whether they will breed any Inconvenience or no?
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But a Custom doth never become a Law to bind the People, until it hath been tryed and approved Time out of Mind, during all which Time, there did thereby arise no Inconvenience, for if it had been found inconvenient at any Time, it had been used no longer, but had been interrupted, and consequently it had lost the Virtue and Force of a Law.
By this Mr. Speaker, it may be observed, that the Custom of the Realm or common Law, is that which has been tryed and approved Time out of Mind, and that it doth far excel Acts of Parliament, and that when the Parliaments have altered, or changed any fundamental Points of the common Law, those Alterations have been found by Experience, to be inconvenient to the Common-wealth. And will not the same Argument hold against the common Law it self, viz. Again, 2 dly, As to the Liberties and Privileges of the People of England, they are entitled to those Liberties and Privileges, by immemorial Custom used there.
But 4 thly, This Objection may be made use of, even against Assemblies, which are our Parliaments here The Parliaments at home are by the Constitution and Law of the Kingdom, Time out of Mind, and we say the same Constitution, and Law being here, we ought thereby to have the same here. In short, if this Objection is to carry Weight against the Courts, for want of their being by immemorial Custom here, the same may be used against the Constitution, Laws, Assemblies, and all the Liberties and Privileges that English-men boast to have a Right to by immemorial Custom in England; for the Inhabitants of this Colony cannot claim any of them by immemorial Custom here.
As to what is said, That the Inhabitants have not a Right to those Courts here, for want of immemorial Usage, but have a Right to have them established by a Law, the same may, with equal Reason, be applied to the Laws, Constitutions, Liberties and Privileges of English-men for want of immemorial Usage here; we have not a Right to them, but have a Right to have them established by a Law; so with respect to Assemblies, for want of immemorial Usage here, we have not a Right to them, but have a Right to have them established by Act of Assembly, which I conceive carries in it a very great Absurdity.
But, Mr. Speaker, give me leave to speak my Sentiments freely. To put them upon any other footing, might be attended with more Inconveniencies than may at present be fore-seen. And now, Mr. What I mean, is, That as Courts of common Law and Courts of Equity are generally made use of in contra-distinction one to the other, it seems a Contradiction to say, that a Court of Equity is or can be by the common Law.
And yet in pag. Another instance is, the common Law is used by way of contra-distinction to particular Customary Laws, as in the same Book, pag. And yet in p.
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And those particular Customs are always in themselves contrary to the common Law, as by the Custom of Gavel-kind, all the Issue Male, inherit equally; and by Burrough English, the Youngest Son shall inherit all; both which are contrary to the common Law; for by that, the Eldest Son shall inherit all; and many more might be mentioned. Again, by a Tryal at the common Law, is generally understood to be a Tryal by Jury; but yet there are several other sorts of Tryals allowed by the common Law as 1 Inst. And in Tryals per pais, Page 7.
Also, 9th Coke, Customs and Usages of every Court shall be tryed by the Judges of the same Court, if they be pleaded in the same Court. And many other sorts of Tryals that are called Tryals allowed by the common Law, may be seen in the said Book. And there is a Difference between a Court of common Law, and a Court by the common Law: When we say, a Court of common Law, by that is understood, a Court which is contra-distinguished from a Court of Equity; but notwithstanding this, they may be both Courts by the common Law. Again, what the Common Law is in its usual and proper Acceptation, may be seen in Page And indeed I take it, that these two Expressions when made use of in Contra-distinction one to the other, is only, or generally, to signify the two different Courts, or the different Methods of Practice or Proceedings in the two different Courts; but when we speak in general, of the common Custom of the Realm, we may well and truly say, That it is the very ground of both these Courts.
But to proceed, and shew, all these Courts are by the common Custom and Laws of England, a Book called Doctor and Student, in pages 22, Also, by the Old Custom of the Realm, no Man shall be taken, imprisoned, disseized, nor otherwise destroyed, but he be put to answer by the Law of the Land: and this Custom is confirmed by the Statute of Magna Charta, Cap. Also, by the old Custom of the Realm, all Men, great and small, shall do and receive Justice in the Kings Courts; and this Custom is confirmed by the Stat.
And in the two very next Paragraphs, it gives an Account, That the Custom of the Realm guards every Man from being imprisoned, disseised, or destroyed, otherwise than by the Law, and also, that every Man shall do and receive Justice in the Kings Courts.
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