Assignment 2: Magna Carta (Great Charter), 1215 & Bracton’s Laws, 1220s – EnglandIn this second assignment, you will move from the post-Roman world of the Mediterranean, specifically the Visigothic Kingdom of Spain, way up north into England. You will not only move geographically, but also chronologically and in significant ways legally. Although you will read another set of constitutional principles, they are based upon a different set of ideas and on the basis of quite other histories. The Visigothic Code is built off traditions of the late Roman world and its law, specifically as it encountered Christianity and Rabbinical Judaism (in the forms of the so-called Collation of the Laws of Moses and the Romans [4th century], the Mishnah [3rd century]) and the Talmud [5th century-]). The laws of medieval England that you will read are from a world 500 years later, one that is fully removed from that Mediterranean, Roman and Jewish context, and yet also very religious (Christian). It is a legal world in which trials by ordeal, juries of one’s peers, disputation by combat – the origins of which all can be seen in their seeds in versions of the Visigothic Code – are part of the general “feudal” existence of people in medieval England.The establishment in particular of the Magna Carta in 1215 and then shortly thereafter, in the 1220s- 1230s, the constitutional principles laid out by Bracton, or likely his followers, were products of an England eight-centuries removed from Roman authority, and even almost two centuries after the conquest of Anglo-Saxon England by the Norman (French) William the Conqueror. As with the formation of the Visigothic Code, and as you will see with the U.S. Constitution, this constitutional jurisprudence was a product of a world experiencing significant changes, including major historical wars. The formation of constitutional law emerged as a way to combat rebellions and to find ways to share power between its sites of origin. In this module, you will examine the constitutional response to the specific English situation and draw some comparisons with the Visigothic one.Readings: Magna Carta: https://sourcebooks.fordham.edu/source/mcarta.aspBracton, On the Laws and Customs of England, Introduction (pages 19-28) : http://amesfoundation.law.harvard.edu/Bracton/Unfr…Frederic W. Maitland, The Constitutional History of England (Oxford, 1908), 1-23. Frederick Pollock and Frederic Maitland, The History of English Law before the time ofEdward I, Vol. 1 (Cambridge: Cambridge University Press, 2010), 70-85 and 218- 223.Questions:1. What are the founding principles of English constitutionality as expressed in the MagnaCarta and Braction’s laws and customs of England?2. In comparison, how do the Visigothic Code, on the one hand, and Magna Carta and the English laws, on the other, relate to divine authority for legitimacy and guidance? In what ways do they differ or replicate an imagined relationship with God?Assignment 3: Declaration of the Rights of Man and Citizen, 1789 & 1793 – FranceIn the first two assignments you explored the developments of constitutionality in the Middle Ages, first in Spain and then in England. You looked at how law was transformed first at the end of the Roman world and then from a recreated Roman legal sphere in medieval England. You read also about the Anglo-Saxon and Norman (French) origins of English laws and customs, and you will see in this module and the next one how intricately tied the French, English and American history of constitutionality and jurisprudence is.For the final two modules, you will move forwarrd from the Middle Ages on to the eve of the Modern Western world, first with the French Declaration of the Rights of Man and of Citizen in 1789 and the emergent rights of Jews in the law, and then, from the same year, the United States Constitution. After reading these, you will examine how they are built off of medieval constitutional thinking and practice, and analyze the significant changes you see, particularly involving divine authority and religion. From this, a picture will emerge for you of the foundations of Modern constitutionality and the progress that developed on certain issues, such as the equality Jews within the constitutional framework of Western law and civil rights.Ultimately, this knowledge of medieval and early modern law will lay the basis for you to be able to think beyond this course on whether and in what ways the West is continuing this constitutional tradition or now moving away from it. Are we, for instance, returning to more medieval forms of consitutionality?Readings:Declaration of the Rights of Man and Citizen, 1789 Vindication of the Jews, 1789 (in Hunt): https://en.wikisource.org/wiki/Translation:Declara…Declaration of the Rights of Man and Citizen, 1793On Voting Rights for Actors and Jews, 1791 (in Zizek): http://www.columbia.edu/~iw6/docs/dec1793.htmlLynn Hunt, The French Revolution and Human Rights: A Brief Documentary History (Boston: Bedford / St. Martins, 1996), Chapters 1 and 2.Slavoj Zizek, Virtue and Terror: Maximilien Robespierre (New York: Verso, 2007), Introduction and Chapter 9.Questions:What are the core legal and civic principles laid out in the Declaration of the Rights of Manand Citizen?In what ways is the 1791 confirmation of the equality of Jews as equal citizens an expression of the Declaration? How has the place of Jews in constitutional thinking evolved since the Visigothic Code?To what extent does the French Declaration call on or engage with the God or religious principles and rights in relation to religion? How does this compare with the medieval codes? And, what do you think is the significance of the differences?Assignment 4: The United States Constitution, 1789 – United StatesThroughout the modules for this course you have been learning about the history of constititonal principles, from the start of the early middle ages (7th century) through the high middle ages (12th century) and into modernity on the eve of the 19th century. For this final module, you will elicit that broad knowledge of constititonal values, ideas and plans in Western law and examine how they now are applied, adjusted or entirely reinvented in the New World of the Americas, specifically in the former British colonies of America after the victorious American Revolutionary War (1775-1783). Upon conclusion of that war between American patriots and the British Empire, which had begun formally by proclamation of the American Declaration of Independence on July 4, 1776, a national government was operating under the Articles of Confederation (1777) that had been agreed to by the Second Continental Congress. Although there was a boom of prosperity across the American landscape immediately following the war, already by the mid-1780s the new nation faced significant debt and even internal rebellions. Faced with this pending crisis, a constitutional convention to create a permanent national framework was called by the Continental Congress. Within two years, the U.S. Constitution was created and ratified by most states.You are provided below with both the U.S. constitution and the earlier one of the Commonwealth of Massachusetts (which witnessed one of the most significant revolts after the war) as well as selections of The Federalist Papers which make the argument for constitutional authority.Readings:Constitution of the Commonwealth of Massachusetts, 1780 United States Constitution, 1789: https://en.wikisource.org/wiki/Constitution_of_the…https://en.wikipedia.org/wiki/Constitution_of_Mass…Alexander Hamilton, James Madison and John Jay, The Federalist Papers, No. 10 and 14.: https://www.congress.gov/resources/display/content… Questions:What are the founding principles of the U.S. Constitution? How does it establish theframework of the United States and what is that framework?How do the Constitution of Massachusetts and the U.S. Constitution compare with one another and in relation to the French Declaration of the Rights of Man and Citizen?In the U.S. Constitution, where does the power of society lay and what are the foundations for state legal authority? What is the role of God or religion in the U.S. Constitution, if there is any? How does this compare and contrast with the Spanish, English and French medieval and modern laws that you’ve read?The U.S. Constitution is signed entirely by men, a pattern you’ve seen throughout the laws and constitutions you have examined. What do you think is the significance of the fact that all of these calls for equality, rights and justice entirely exclude women in their creation and proclamation? How seriously can we take their universal claims?
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11IE BEDFORD SERIES IN IDSTORY AND CULTURE
Advisory Editors: Lynn Hunt, Unioersity of California, Los Angeles
David W. Blight, Yale University
Bonnie G. Smith, Rutgers University
Natalie Zemon Davis, Princeton University
Ernest R May, Haruard University
Louis XIV and Absolutism: A Brief History with Documents (forthcoming)
William Beik, Emory University
The Enlightenment Debate on Equality: Wollstonecraft versus Rousseau
Edited with an Introduction by Olwen Hufton, The European Institute
THE BEDFORD SERIES IN HISTORY AND CULTURE
The French Revolution and
A Brief Documentary History
The Dreyfus Affair: A Brief History with Documents (forthcoming)
Michael Burns, Mount Holyoke College
Edited, Translated, and with an Introduction by
+ N ew York
Defining Rights before 1789
NATURAL IAW AS DEFINED BY THE
The writers 01 the French Enlightenment made much 01 the concept 01
natural law or natural right (the French word droit covers both meanings). As this selection from the Encyclopedia demonstrates, natural law
provided the most basic foundation for all human society, that is, it defined what was naturally just for all humans, regardless 01country or time
periodo Enlightenment writers focused on naturallaw as a way 01criticizing particular French laws that they saw as incompatible with those more
fundamental human rights. Our modern notion 01human rights derives
from this earlier notion 01 natural law or right, that sense 01 justice
common to all peoptes.
When they initiated the project 01 compiling a French Encyc1opedia,
Denis Diderot and [ean d’Alembert had various aims. They took on as
collaborators all the well-known writers 01 the day, many 01 whom had
been in trouble with the authorities in the pasto Their proclaimed purpose
was to present all the knowledge available to humankind in a form that
Source: Denis Diderot and Iean Le Rond d’A1embert, eds., Encyclopédie ou Dictionnaire
raisonné des sciences, arls, et des métiers, 17 vols. (1751-80), vol. 5 (Paris: Chez Briasson,
DEFINING RlGHTS BEFORE 1789
could be readily passed on to future generations. But they also intended to
use that knowledge as a means 01 challenging and reshaping the status
quo. They believed that knowledge would lead inevitably to “enlightenment, ” that is, action based on reason rather than on superstition, bigotry,
or religious fanaticism.
Diderot himself wrote this brief article, thereby underlining the importance 01the concepto The article does not have the satirical bite 01some
01 the others in the Encyclopedia, yet careful reading uncovers a frontal
challenge to the Frenen legal order 01 the mid-eighteenth century. When
grounding universal justice and the good society, natural law or right
requires no reference to kings, aristocracy, or deference to one’s social
betters – indeed, to special privilege 01any kind. The philosophy 01naturallaw – and here its deuelopmeni into the eighteenth-century idea 01the
“general will” – implied legally equal individuals joining together in a
society based only on universal human characteristics. Articles such as
these immediately drew the attention 01 censors and police. The gouernment and the Catholic Church both banned the Encyclopedia and persecuted its editors, but the commotion only attracted more readers to
clandestine and pirated editions.
NATURAL LAW. The use of this term is so familiar that there is almost
no one who would not be convinced inside himself that the thing is
obviously known to him. This interior feeling is common both to the
philosopher and to the man who has not reflected at a11…. [The article
then advances a series of propositions.]
2. Our existence is impoverished, contentious, and anxious. We have
passions and needs. We want to be happy; and every moment unjust and
passion-driven man feels himself driven to do to another what he would
not wish to have done to himself. It is a judgment that he pronounces at
the bottom ofhis soul and from which he cannot escape. He sees his own
meanness and he has to confess it to himself or accord to everyone else
the same authority that he arrogates to himself ….
4. I see first of all one thing that seems to me to be acknowledged both
by good and evil persons: that we must reason in everything because man
is not simply an animal but an animal who reasons. There are consequently
in the question at hand means for discovering the truth. Whoever refuses to
lookfor the truth renounces human status and must be treated by the rest
ofhis species like a ferocious beast; once the truth is discovered, whoever
refuses to conform to it is either mad or bad in a moral sense ….
NATURAL LAW AS DEFINED BY THE ENCYCLOPEDlA
7. It is to the general will that the individual must address himself to
learn howto be aman, citizen, subject, father, child, and when itis suitable
to live or to die. It fixes the limits on a11duties. You have the most sacred
natural right to everything that is not disputed by the rest of the species.
The general will enlightens you on the nature of your thoughts and your
desires. Everything that you conceive, everything that you meditate upon
will be good, grand, elevated, sublime, if it is in the general and common
interest. … Te11yourself often: I am aman, and I have no other true,
inalienable natural rights than those of humanity.
8. But, you will say to me, where is this general wi11kept? Where can
I consult it? In the principles of written law of a11the organized nations;
in the social actions of savage and barbarous peoples; in the tacit conventions held in common by the enemies of humankind; and even in indignation and resentment, those two passions that nature seems to have
placed in a11creatures including animals to make up for the shortcomings
in sociallaws and in public vengeance.
9. If you meditate attentively therefore on everything said in the
preceding, you will remain convinced 1) that the man who only listens to
his private will is the enemy of the human race; 2) that in every individual
the general will is apure act of understanding that reasons in the silence
of the passions about what man can demand of his fellow man and about
what his fellow man has the right to demand of him; 3) that this attention
to the general will of the species and to shared wants is the rule of conduct
of one individual relative to another in the same society, of an individual
toward the society of which he is a member, and of the society of which
he is a member toward other societies; 4) that submission to the general
will is the basis of a11societies, without excepting those formed for crime.
Indeed, virtue is so attractive that thieves respect its image even inside
their dens! 5) that the laws should be made for everyone, and not for one
DEFINING RIGHTS BEFORE 1789
Treatise on Toleration
Voltaire was the pen name 01Francois Marie Arouet 0694-1778), perhaps the single best-known writer 01the Enlightenment. As early as 1723,
he made a name for himself as a proponent 01 religious toleration when
he published a long poem about French King Henry IV and the sixteenthcentury wars 01religion between Catholics and Calvinists (La Henriade).
Visits to England and the Dutch Republic in the 1720s impressed on him
the political benefits that could be reaped from religious pluralismo His
involvement in the Calas Affair in the 1760s turned it into a European
scandal. He wrote his treatise on toleration to link the Calas case to more
general issues 01religious freedom. He did not argue for granting political
rights to members 01 every religion, but he did insist on the virtues 01 the
freedom to practice one’s chosen religion without persecution. He
grounded this freedom on naturallaw. Even this was too much for French
authorities, who promptly banned the work.
Short Account of the Death of Jean Calas
The murder of Calas, which was perpetrated with the sword of justice at
Toulouse on March 9, 1762, is one of the most singular events that
deserve the attention of our own and of later ages. We quickly forget the
long list of the dead who have perished in our battles. It is the inevitable
fate of war; those who die by the sword might themselves have inflicted
death on their enemies, and did not die without the means of defending
themselves. When the risk and the advantage are equal astonishment
ceases, and even pity is enfeebled. But when an innocent father is given
TREATISE ON TOLERATION
into the hands of error, of passion, or of fanaticism; when the accused has
no defence but his virtue; when those who dispose of his Me ron no risk
but that of making a mistake; when they can slay with impunity by a legal
decree – then the voice of the general public is heard, and each fears for
himself. They see that no man’s life is safe before a court that has been
set up to guard the welfare of citizens, and every voice is raised in a
demand of vengeance ….
How Toleration May Be Admitted
1 venture to think that some enlightened and magnanimous minister,
some humane and wise prelate, some prince who puts his interest in the
number ofhis subjects and his glory in their welfare, may deign to glance
at this inartistic and defective paper. …
We have Jews at Bordeaux and Metz and in Alsace; we have Lutherans,
Molinists, and Jansenists; can we not suffer and control Calvinists on
much the same terms as those on which Catholics are tolerated at London
[who did not enjoy political rights but could practice their religión]? The
more sects there are, the less danger in each. Multiplicity enfeebles them.
They are all restrained by just laws which forbid disorderly meeting s,
insults, and sedition, and are ever enforced by the community.
We know that many fathers of families, who have made large fortunes
in foreign lands, are ready to return to their country [the Calvinist
refugees l.They ask only the protection of naturallaw, the validity of their
marriages, security as to the condition of their children, the right to
inherit from their fathers, and the enfranchisement of their persons. They
ask not for public chapels, or the right to municipal offices and dignities.
Catholics have not these things in England and other countries. It is not
a question of giving immense privileges and secure positions to a faction,
but of allowing a peaceful people to live, and of moderating the laws once,
but no longer, necessary. It is not our place to tell the ministry what is to
be done; we do but ask consideration for the unfortunate ….
The great means to reduce the number of fanatics, if any remain, is to
submit that disease of the mind to the treatment of reason, which slowly,
but infallibly, enlightens men. Reason is gentle and humane. It inspires
liberality, suppresses discord, and strengthens virtue; it has more power
to make obedience to the laws attractive than force has to compel. …
Whether Intolerance Is of Natural and Human Law
Source: Voltaire, Toleration and Other Essays, trans. Ioseph McCabe (New York: G. P.
Putnam’s Sons, 1912), 1-2,26-28,30-31.
Naturallaw is that indicated to men by nature …. Human law must in
every case be based on naturallaw. AlI over the earth the great principle
DEFINING RIGHTS BEFORE 1789
of both is: Do not unto others what you would that they do not unto you.
Now, in virtue of this principIe, one man cannot say to another: “Believe
what I believe, and what thou canst not believe, or thou shalt perish.”
Thus do men speak in Portugal, Spain, and Goa. In some other countries
they are now content to say: “Believe, or I detest thee; believe, or I will
do thee all the harm I can. Monster, thou sharest not my religion, and
therefore hast no religion; thou shalt be a thing of horror to thy neighbours, thy city, and thy province.”
If it were a point of human law to behave thus, the ]apanese should
detest the Chinese, who should abhor the Siamese; the Siamese, in turn,
should persecute the Tibetans, who should fall upon the Hindus. A
Mogul should tear out the heart of the first Malabarian he met; the
Malabarian should slay the Persian, who might massacre the Turk;
and all of them should fling themselves against the Christian s, who have
so long devoured each other.
The supposed right of intolerance is absurd and barbarie. It is the right
ofthe tiger; nay, itisfarworse, fortigers do buttear in orderto havefood,
while we rend each other for paragraphs.
Edict 01 Tolera tio n
Calvinists had a long and tumultuous history in France. They first gained
the right to worship according to their creed in 1598 when King Henry IV
issued the Edict 01Nantes to end the wars 01religion between Catholics
and Calvinists. Louis XIV revoked that edict in 1685 and initiated a
massive campaign to forcibly convert all 01the Calvinists in France. For
more than a century, public worship by Calvinists remained illegal, although many uiorshiped in prívate and some became leading merchants
or businessmen in their local communities. Finally, in 1787, Louis XVI’s
gouernment proposed a new edict 01toleration (the decision became official in january 1788). It granted Calvinists civil rights, including the
Source: Edit concernant ceux qui ne font pas profession de la religion catholique (Nov. 28,
1787), Recueil général des anciennes lois francaises, depuis l’an 420 jusqu’á la Révolution de
1789, ed. Francois André Isambert, 29 vols. (paris: Belin-le-Prieur, 1821-33), vol. 28, Du 1er
janvier 1785 au 5 mai 1789 (paris, 1827),472-82.
EDICT OF TOLERATIO
right to practice their religion, but no political ríghts. Although the reference to non-Catholics might seem to promise a broader toleration including other groups as well, the edict applied only to Calvinists, for jewish
and Lutheran communities were covered by separate legislation. The preamble to the edict, with its evasive and tormented logic, shows the many
pressures felt by the government as it tried to navigate between the demands 01a pouertul Catholic Church and a long-oppressedminority that
had the support 01many influential writers and jurists.
When Louis XIV solemnly prohibited in all of the lands and territories
under his authority the public exercise of any religion other than the
Catholic religion, the hope ofbringing around his people to the desirable
unity of the same worship, supported by the deceptive appearances of
conversions, kept this great king from following the plan that he had
formed in his councils for legally registering the births, deaths, and
marriages of those of his subjects who could not be admitted to the
sacraments of the church. Following the example of our august predecessors, we will always favor with all our power the means of instruction
and persuasion that will tend to link all our subjects by the common
profession of our kingdom’s ancient faith [Catholicism], and we will
proscribe, with the most severe attention, all those violent routes [of
forced conversion] whieh are as contrary to the principIes of reason and
humanity as they are to the true spirit of Christianity.
But, while waiting for divine Providence to bless our efforts and effect
this happy revolution [the conversion of all non-Catholics], justice and
the interest of our kingdom do not permit us to exclude any longer from
the rights of civil status those of our subjects or resident foreigners in our
empire who do not profess the Catholic religion. A rather long experience
has shown that harsh ordeaIs are insufficient to convert them: we should
therefore no longer suffer that our laws punish them unnecessarily for
the misfortune of their birth by depriving them of the rights that nature
constantly claims for them.
We have considered that the Protestants, thus deprived of alllegal
existence, were faced with an impossible choiee between profaning the
sacraments by simulated conversions or compromising the status of their
children by contracting marriages that were inherently null and void
according to the legislation of our kingdom. The regulations have even
assumed that there were only Catholics in our states; and this fiction,
today inadmissible, has served as a motive for the silence of the law whieh
would not have been able to legally recognize followers of another belief
DEFINING RIGHTS BEFORE 1789
in France without either banishing them from the lands of our authority
or providing right away for their civil status. Principles so contrary to the
prosperity and tranquility of our kingdom would have multiplied the
emigrations and would have excited continual troubles within families, if
we had not provisionally profited from the jurisprudence of our courts to
thrust aside greedy relatives who contested the children’s rights to the
inheritance of their fathers [relying on the laws against Calvinists l. Such
a situation has for a long time demanded our intervention to put an end
to these dangerous contradictions between the rights of nature and the
dispositions of the law.
We wanted to proceed in this matter under consideration with all
the maturity required by the importance of the decision. Our resolution
had already been fixed in our councils, and we proposed to meditate
for some time still about the legal form it should take; but the circumstances appeared to us propitious for multiplying the advantages that
we hoped to gain from our new law, and we have determined to hasten
the moment of publishing it. It may not be in our power to put a stop
to the different sects in our states, but we will never suffer them to be
a source of discord between our subjects. We have taken the most
efficacious measures to prevent the formation of harrnful organizations.
The Catholic religion that we have the good fortune to profess will
alone enjoy in our kingdom the rights and honors of public worship,
while our other, non-Catholic subjects, deprived of all influence on the
established order in our state, declared in advance and forever ineligible
for forming a separate body within our kingdom, and subject to the
ordinary police [and not their own clergy 1 for the observation of religious
festival days, will only get from the law what natural right does not
permit us to refuse them, to register their births, their marriages, and
their deaths, in order to enjoy, like all our other subjects, the civil
effects that result from this.
Article 1. The Catholic, Apostolic, and Roman religion will continue to
enjoy alone, in our kingdom, the right to public worship, and the birth,
marriage, and death of those of our subjects who profess it will only be
registered, in all cases, according to the rites and practices of the said
religion as authorized by our regulations.
We will permit nonetheless to those of our subjects who profess
another religion than the Catholic, Apostolic, and Roman religion,
whether they are currently resident in our state or establish themselves
there afterwards, to enjoy all the goods and rights that currently can or
will in the future belong to them as a property title or title of successor-
ship, and to pursue their commerce, arts, crafts, and professions without
being troubled or disturbed on the pretext of their religion.
We except nevertheless from these professions all the offices of the
judiciary, controlled either by the crown or the seigneurs [nobles controlling local judicial offices l, municipalities having regular offices and judicial functions, and all those place s that include public teaching.
As a consequence those of our subjects or foreigners resident
in our kingdom who are not of the Catholic religion will be able to contract
marriages in the form hereafter prescribed; we wish these marriages and
their children, in the case of those who contr …
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