Independence Day

On the Fourth of July we celebrate the day upon which the members of the Continental Congress signed The Declaration of Independence. In fact, independence in New Hampshire began six months earlier January 5, 1776, when our Legislature issued our first Constitution, thus creating the first independent State, established by a written Constitution, and without a king, in which the people ruled through their elected Representatives.

Contemplating these events, it is important to know what drove Americans to this point; it was not what they wanted. It is also important to know that this is not the first such document in the world. Not a hundred years earlier, Parliament had separated itself from King James II, in issuing The English Bill of Rights. There was no great statement principle, but like The Declaration of Independence, there is a list of indictments against the King. Then there is an enumeration of Rights generally addressing the indictments:

1. That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
2. That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
3. That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and
   pernicious;
4. That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or
   shall be granted, is illegal;
5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
7. That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
8. That election of members of Parliament ought to be free;
9. That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
10. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
12. That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

Note the prohibition against standing armies, the basic right to keep and bear arms, and the protection against cruel and unusual punishment. The right of debate in the Parliament is nearly identical to our Bill of Rights, Article 22. Most memorable is that only Parliament can levy taxes.

Now we must look to the complaint made in our Constitution of 1776. After a brief indictment of King George, they wrote the following:

“The sudden and abrupt departure of his Excellency John Wentworth, Esq., our late Governor, and several of the Council, leaving us destitute of legislation, and no executive courts being open to punish criminal offenders; whereby the lives and properties of the honest people of this colony are liable to the machinations and evil designs of wicked men, Therefore, for the preservation of peace and good order, and for the security of the lives and properties of the inhabitants of this colony, we conceive ourselves reduced to the necessity of establishing A FORM OF GOVERNMENT to continue during the present unhappy and unnatural contest with Great Britain; PROTESTING and DECLARING that we neaver sought to throw off our dependence upon Great Britain, but felt ourselves happy under her protection, while we could enjoy our constitutional rights and privileges.”

Their chief complaint was that the were being denied their constitutional rights and privileges. They believed that as British citizens they had the rights of all Englishmen. That those rights were enumerated in the English Bill of rights and in the rights enumerated in the Magna Carta. The Magna Carta includes rights against illegal search and seizure. However, it was not the opinion of England that they enjoyed these right.

In the decade before The Declaration of Independence, William Blackstone wrote extensively on the laws of England. He had been commissioned to head a school of law, so accordingly he wrote a text book. His chief complaint was that being ignorant of the common law, legislators often wrote statutes destructive of that common law. The common law, he explained, is a body of judicial opinion accumulated over the previous 1500 years with its beginning in Roman times, and written and compiled since about 1100 AD They are the legal custom of western civilization. Having read a compilation of the maxims of the common law, they have nothing to do with crime and punishment, except that the punishment must be proportional to the crime, and everything to do with due process.

It amazes me how pervasive the common law is in our society, just to name a few:

1. Innocent unless proven guilty. The proof lies upon him who affirms, not on him who denies;
2. No one can be punished twice for the same crime or misdemeanor;
3. Possession is nine tenths of the law; Possession is a good title, where no better title appears;
4. Every man’s house is his castle.

Common law, due process, is the beginning of law. It is called unwritten law because it is the stuff of judicial opinions, and not written by a Legislature. Blackstone further writes that statutory law declares (describes in detail), and amends the common law. For example, unlike the common law of the 18th century, a women’s property does not convert to her husband upon marriage, and women can hold public office.

Now comes the wrinkle. Blackstone, the foremost authority on English law, declared unequivocally, that because America was taken by conquest and treaty, American do not enjoy English common law. Instead, they were subject to the common law of the native Americans. Furthermore, they were subject only subject to those Acts of Parliament that specifically refer to them. As such, they were not protected by the Magna Carta, nor the English Bill of Rights.

Now you see the problem; the English did not believe that the Americans had the constitutional rights and privileges that the Americans believed they had. The purpose of the War for Independence was fundamentally to establish English common law, and then some, in America.

In 1776, the Constitutions, declaring and amending common law and form of government, were written by the Legislatures in the English tradition. By 1779, first in New Hampshire and then in Massachusetts,  Constitutions were being proposed in Conventions and ratified directly. Though I have not found it written expressly, in American tradition, common law is only amended by Constitution. Which makes sense only that the society as a whole can change the customs of society. Constitutions and statutes are both used to declare the common law.

For example, man’s home is his castle. Constitutions tell us that warrants are required for search or seizure. Statutes tell us who applies for a warrant, who issues a warrant, and who enforces a warrant.

Today the common law is under assault. Locally, we see it in venues like the Family Court and other special courts, like Drug Court. We see it in cases like child protection, and domestic violence, where the State bypasses the protections of criminal law, by prosecuting these offenses as civil cases. Finally, we are seeing in the prosecution of President Trump. If the deprivation of common law by Great Britain caused the founding of the United States of America, what will the deprivation of the common law by the United States of America cause?

Dan Itse is a former NH State Representative and considered by many to be an expert in Constitutions, their history, and their practical applications today.