Locating Liberties

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Title:
Locating Liberties Barron v. Baltimore and the Role of Rights in the Early American Republic
Physical Description:
1 online resource (328 p.)
Language:
english
Creator:
Mercer,William,Jr
Publisher:
University of Florida
Place of Publication:
Gainesville, Fla.
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Thesis/Dissertation Information

Degree:
Doctorate ( Ph.D.)
Degree Grantor:
University of Florida
Degree Disciplines:
History
Committee Chair:
Dale, Elizabeth
Committee Members:
Adams, Sean
Wright, Danaya
Link, William A
Wolf, Michael

Subjects

Subjects / Keywords:
baltimore -- barron -- constitution -- constitutionalism -- craig -- history -- hoffman -- law -- marshall -- police -- positivist -- power -- rights -- sovereignty -- tiernan
History -- Dissertations, Academic -- UF
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History thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract:
This dissertation revisits the 1833 U.S. Supreme Court case Barron v. Baltimore wherein two Baltimore wharf owners alleged that the city of Baltimore violated the Fifth Amendment by taking their property without compensation. Chief Justice John Marshall used the case as an opportunity to declare that the Fifth Amendment and indeed the entire Bill of Rights did not apply to the states by employing a strict textual interpretation of the Constitution. However, by contextualizing the decision, it becomes apparent that Marshall?s positivist view of rights was not a universally accepted position at the time. Rather, the case tracked a larger ideological clash over where rights obtained their force and authority. There were at least three general views revealed during the course of the litigation: rights as protected by the common law; rights as fundamental liberties which were simply recognized by written constitutions; and written constitutions as the source of rights. By denying remedy to Barron based upon his view that the Fifth Amendment did not apply to the states, Marshall simply endorsed one ideological strain of thought envisioning a positivist concept of rights. This study argues that this rights debate occurred in the early republic era as a result of the transformations in the concept of sovereignty necessitated in actually implementing a federal system of government expressly predicated on the idea of popular sovereignty. As notions of sovereignty evolved, the concept of limitations on the sovereign - rights - likewise required redefinition.
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In the series University of Florida Digital Collections.
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Includes vita.
Bibliography:
Includes bibliographical references.
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Description based on online resource; title from PDF title page.
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This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility:
by William Mercer.
Thesis:
Thesis (Ph.D.)--University of Florida, 2011.
Local:
Adviser: Dale, Elizabeth.

Record Information

Source Institution:
UFRGP
Rights Management:
Applicable rights reserved.
Classification:
lcc - LD1780 2011
System ID:
UFE0043136:00001


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1 L OCATING LIBERTIES: BARRON V. BALTIMORE AND THE ROLE OF RIGHTS IN THE EARLY AMERICAN REPUBLIC By WILLIAM DAVENPORT MERCER A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2011

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2 2011 William Davenport Mercer

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3 To Sally

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4 ACKNOWLEDGMENTS I would like to thank my dissertation adviso r, Elizabeth Dale N one of this this would have been possible without her guid ance and assistance I am extremely grateful for the opportunity to study at her direction. I would also like to thank the other members of my dissertation committee, Sean Adams, William Link, Paul Ortiz, Michael Wolf, and Danaya Wright, for their time and advice in helping shape this project. Thanks are also in order for the organizers and attendees at the various academic conferences I attended (Law and Society Association, San Francisco Stat e Right s Conference, the Association for the Study of Law, Culture and the Humanities) that allowed me to work through many of the ideas presented in this dissertation. In addition, everyone at the Maryland Historical Society in Baltimore and the Maryland State Archives in Annapolis was very helpful. I would like to thank my f riends and fellow students at the University of Florida who helped me immeasurably. I w ant to thank my director Daintry Cleary for her continuous support of this endeavor I als o want to take this opport unity to thank my family for everything. I am eternally grateful to m y parents who have always made incredible sacrifices for me and my sister. Finally, I would like to thank my wife, Sally Morris, for everything else especiall y in light of the countless lost evenings and weekends since this all began I dedicate this most of all to her.

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ ............... 4 ABSTRACT ................................ ................................ ................................ ................................ ..... 8 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .................. 1 0 Historiography ................................ ................................ ................................ ........................ 18 Methodology ................................ ................................ ................................ ........................... 27 2 BALTIMORE AND BARRON ................................ ................................ .............................. 38 Maryland and Baltimore ................................ ................................ ................................ ......... 39 Barron Craig, and Tiernan ................................ ................................ ................................ ..... 56 3 TRIAL AND APPEAL ................................ ................................ ................................ ........... 86 Trial ................................ ................................ ................................ ................................ ......... 87 Appeal ................................ ................................ ................................ ................................ ..... 98 Supreme Court ................................ ................................ ................................ ...................... 117 4 RIGHTS AND THE FRAMERS OF THE CONSTITUTION ................................ ............ 126 Rights as English Liberties ................................ ................................ ................................ ... 140 Rights as Provided by Nature ................................ ................................ ............................... 145 Blending of Concepts ................................ ................................ ................................ ........... 151 5 RIGHTS IN THE EARLY REPUBLIC ................................ ................................ ............... 159 Rights as Provided by the Common Law ................................ ................................ ............. 159 Rights as Provided by Nature ................................ ................................ ............................... 166 Rights as Enactments of Positive Law ................................ ................................ .................. 171 Blending of Concepts ................................ ................................ ................................ ........... 176 6 THE BILL OF RIGHTS ................................ ................................ ................................ ....... 187 7 SOVEREIGNTY ................................ ................................ ................................ .................. 235 Transformation s of Sovereignty Federalism ................................ ................................ ..... 237 Transformations of Sovereignty Enacting Popular Sovereignty ................................ ....... 249 Police Power ................................ ................................ ................................ .................. 252 Popular Constitutionalism ................................ ................................ ............................. 265

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6 8 POPULAR SOVEREIGNTY AND POSITIVIST RIGHTS ................................ ................ 281 9 CONCLUSION ................................ ................................ ................................ ..................... 299 LIST OF REFERENCES ................................ ................................ ................................ ............. 305 BIOGRAPHICAL SKETCH ................................ ................................ ................................ ....... 328

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7 LIST OF FIGURES Figure page 3 1 ........................ 85

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8 A bstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy LOCATING LIBERTIES: BARRON V. BALTIMORE AND THE ROLE OF RIGHTS IN THE EARLY AMERICAN REPUBLIC By William Davenport Mercer August 2011 Chair: Elizabeth Dale Major: History This dissertation revisits the 1833 U.S. Supreme Court case Barron v. Baltimore where in two Baltimore wharf owners alleged that the c ity of Baltimore violated the Fifth Amendment by taking their property without compensation. Chief Justice John Marshall used the case as an opportunity to declare that the Fifth Amendment and indeed the entire Bill of Rights did not app ly to the states by employing a strict textual interpretation of the Constitution However, by contextualizing the decision, not a universally accepted position at the time Rather, the ca se tracked a larger ideological clash over where rights obtained their force and authority. T here were at least three general views revealed during the course of the litigation: rights as pr otected by the common law ; rights as fundamental liberties which were simply recognized by written constitutions ; and written constitutions as the source of rights. By denying remedy to Barron based upon his view that the Fifth Amendment did not apply to the states, Marshall simply e ndorsed one ideological strain of th ought envisioning a positivist concept of rights. This study argues that this rights d ebate occurred in the early r epublic era as a result of the transformations in the concept of sovereignty necessitated in actually implementing a federal system of government expressly predicated on

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9 the idea of popular sovereignty. As notions of sovereignty evolved, the concept of limitations on the sovereign rights likewise required redefinition.

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10 CHAPTER 1 INTRODUCTION In 1976, a s a result of a long history of violence, the District of Columbia City Council passed an ordinance regulating the ownership of firearms. 1 The city down primarily on handguns, which they believed were a particular source of the problem. When discussing the need for a strict handgun ordinance, the c ity cited evidence showing the danger presented to municipalities by handguns an d their effect on the skyrock eting crime rates in D.C. The c ity 2 However, dur 3 Frighteningly, the c ity noted that in 1974, 155 of the 285 homicides were committed with a handgun and every single rape which involved a firearm was ai ded by the use of a handgun. 4 As further evidence for the need for such an ordinance the city cited statistics showing that a crime committed while using a handgun was seven times as likely to have fatal consequences as compared to a crime committed with any other type of weapon. 5 T he ordinance prohibited the possessi o n of unregistered firearms within the District of Columbia but also specifically disallowed the registration of handguns. The ordinance also required the owners of the remaining lawfully registered firearms to keep those weapons 1 District of Columbia et al v. Heller 554 U.S. 570, 128 S.Ct 2783 (2008), Petitioners 4, See http://www.abanet.org/publiced/preview/briefs/pdfs/07 08/07 290_Petitioner.pdf and Washington Post.com, http://www.washingtonpost.com/wp dyn/content/article/2008/03/16/AR2008031602129_pf.html accessed October 12, 2008. 2 Heller 4. 3 Heller 4. 4 Heller , 4 5. 5 Heller , 4.

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11 unloaded and unassembled or to use a trigger lock. 6 This ordinance remained in effect until it was overturned by the U.S. Supreme Court in 2008. In District of Columbia et al v. Heller (2008) a D.C. resident successfully challenged the ordinance on the grounds that it violated the Second Amendment to the Constitution which guarantees the right to bear arms. The Court, in a 5 4 decision by Justice Antonin Scalia viewed the right to bear arms as one belonging to an individual, as opposed to a collective right as argued by the District of Columbia, and hel d the ordinance unconstitutional as it violated the Second Amendment. 7 While Heller was considered a victory for pro gun advocates, the end of municipal gun restri ctions wa s still uncertain. Heller could not act as the definitive statement case on th e Second Amendment as the decision struck down restrictions enacted by the District of Columbia, a political district governed by Federal law. H ad this been an ordinance enacted by a have been different as the Second Amendment had never been held applicable to the states. Emboldened by the Heller decision challenges were filed against similar municipal gun restriction ordinances in Chicago, as well against the nearby towns of Evansto n and Oak Park. 8 Other local Illinois communities, such as Wilmette and Morton Grove, were spared the expense of defending a Federal lawsuit by 6 Hell er 128 S.Ct. at 2783 7 Heller 128 S.Ct. at 2821 2822. The significance of the individual/collective right distinction is found in the emphasis the parties placed on the different clauses of the Second Amendment. Those in favor of the restrictions argu that the Amendment was an ind 8 American Bar Association Journal (October 2008), John Gibeaut, http://www.abajournal.com/magazine/article/bringing_lawyers_guns_and_money/ accessed October 5, 2008; Chicago Tribune July 24, 2008, Susan Kuczka and Hal Dardick www.chicagotribune.com/news/local/chi wilmette gun ban web jul25,0,1046608.story accessed October 6, 2008.

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12 voluntarily modifying their gun restrictions. 9 While this distinction was appreciated by some, many journalist s covering the Chicago challenge failed to recognize that the Bill of Rights did not au tomatically apply to the states unless the Supreme Court had specifically incorporated the subject amendment through the Fourteenth Amendment to the Constitution 10 Howe ver, the Second Amendment had never been incorporated as binding the states. M any journalists erroneously chalked up Heller to the stubbornness of Mayor Daley by failing to explain his basis for not following the ruling. 11 By 2010 the challenges to the Chicago gun laws finally reached the U.S. Supreme Court. In McDonald v. City of Chicago Justice Samuel Alito held that the right to bear arms set forth in the Second Amendment was finally applicable against the states. 12 In making the decision that recognized by the states, Alito had to apply the rights contained in the Second Amendment to the states. Why did the Heller decisio n not suffice? Why was it necessary for a 2010 Supreme Court decision in order for the Second Amendment to bind Illinois? The answer can be found in the 1833 Supreme Court case Barron v. Baltimore In Barron Chief Justice John Marshall held that the B ill of Rights only 9 Chicago Tribune July 24, 2008, Susan Kuczka and Hal Dardick www.chicagotribune.com/news/local/chi wilmette gun ban web jul25,0,1046608.story accessed October 6, 2008; Chicago Tribune July 29 2008, Robert Channick, http://articles.chicagotribune.com/2008 07 29/news/0807280686_1_repeal illinois supreme court morton grove a ccessed October 6, 2008. 10 American Bar Association Journal (October 2008 ) ChiTown Daily News July 25, 2008, Jennifer Slosar, www.chitowndailynews.org/Chicago_news/Chicago_lays_out_handgun_legal_strategy,15284 accessed October 6, 2008. 11 Chicago Tribune July 25, 2008, Deanese Williams Harris and Melissa Patterson, http ://articles.chicagotribune.com/2008 07 26/news/0807250727_1_illegal guns handgun ban buyback program accessed October 6, 2008. 12 McDonald v. City of Chicago, Ill. 130 S.Ct 3020 (2010). Alito held the Second Amendment applicable as incorporated through the due process clause (clause 4) of the Fourteenth Amendment, rejecting the primary argument by the petitioners that the right to bear arms was one of the fundamen tal privileges and immunities of citizenship (clause 3). McDonald v. City of Chicago, Ill. 130 S.Ct at 3030 3031.

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13 applied to the Federal government. T hus, before McDonald t he states did not have to recognize the Second Amendment unless a similar provision s own constitution. Shortly after their purchase of a profitable Baltimore wharf in 1815, John Craig and John Barron discovered that their investment was gradually becoming worthless as the harbor floor surrounding the wharf filled with sand. Because of dra inage issues in Baltimore, the city diverted the wat accompanying sediment, to empty at a single location in the eastern harbor, just north of C raig the debris ultimately rendered the wharf unsuitable for unloading large sh ips, Craig and Barron sued the Mayor and City C ouncil seeking reimbursement for damage to their property. While the trial court agreed with Craig and Barron, by 1830 the c ity won a reversal in the appellate court. Craig and Barron app ea led to the U.S. Supreme Court and argu ed that the damage constituted a taking of their property without just compensation, a vi olation of the Fifth Amendment. At the Supreme Court Chief Justice John Marshall ruled in favor of the c ity and disallowed any remedy to Craig and Barron. The Court could have reached the same result by simply ruling that the damages to the wharf did not constitute a physical taking, as prior state co urts had done. However, Marshall went further and held that the Fifth Amendment and indeed the entire Bill of Rights did not apply. The Bill of Rights, he declared, were only intended to bind the Federal government and not the states, a decision seemingly Federal jurisprudence A s a result of this de cision the Bill of Rights did not apply to the majority of citizens for much of American history We currently accept that a court, and ultimately the Supreme Court, has the final word on issues brought before the tribunal. The vindication of our rights depends

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14 not only upon a favorable ruling by the court, but also by the proper citation of the existence of the right and textual evidenc e that it applies to the case. For example, a defendant in a criminal prosecution has the right to a jury trial; this i s a right guaranteed by the Sixth Amendment to the instance this r ight only applied to the extent a similar right was also found in the Louisiana c onstitution. For crimes that did not result in capital punishment or hard labor imprisonment, the right did not apply because the state constitution allowed for such an exemption 13 How could this be? The right to trial by jury was a centerpiece of the English common law and was even included in the Magna Cha rta (1215) without the significant qualifications placed upon it by the Louisiana constitution. By the in the United States were considered as granted by the various state and the Federal Constitutions A s a result of Barron whic h h eld that the Bill of Rights only applied to the Federal government, the Sixth Amendment did not apply to Louisiana. By 1968, the U.S. Supreme Court finally ruled in Duncan v. Louisiana that the right to a jury trial in the Sixth Amendment was a fundame ntal right that would now universally apply as it was incorporated against the states through the due process clause of the Fourteenth Amendment. 14 There is, however, another way to look at Duncan This case is also emblematic of a more contemporary unde rstanding of rights as grounded in and provided by written constitutions. Instead of holding that the Louisiana constitution violated fundamental liberties, such as the right to a jury trial the Court had to locate the right in the Constitution and then seek to use the language of the Fourteenth Amendment to find that it now applied to the states. However, in the English common law or natural law tradition s rights considered as fundamental were included in 13 The Oxford Companion to the Supreme Court of the United States ed. K ermit Hall (New York: O xf ord University Press, 1992), 239. Article I, Section 9, Louisiana Constitution (1921). 14 Sheldon, The Oxford Companion to the Supreme Court 239 240; Duncan v. Louisiana 391 U.S. 145 (1968).

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15 written documents over the ages to declare no t grant these pre existing rights. If rights are considered granted by written constitutions, the courts can enforce or withhold the right as a matter of legal construction, similar to what occurred in Duncan v. Louisiana or in Barron If rights are co nceptualized as extra constitutional and only declared by constitutions, the courts lose their primacy and other traditional remedies for rights violation exist, such as formal political action like voting, or less formal popular remedies like exercising t he right of petition and assembly up to the rights of violent resistance and revolution. While a narrow doctrinal interpretation of the Constitution can plausibly support the Court motives, for example, in even addressing the Bill of Right s. This dissertation seeks to explore the Barron anomaly by contextualizing the case within the early decades of the Republic This study has two objectives. First, it will explore the shift in t he conceptual location of rights W hat we see in the colonial, founding and early republic eras is a spectrum of thought regarding where rights obtained their authority. The concept that constitutions provide d the b asis for rights, which Marshall espous ed in Barron wa s only one of many views. There exist ed a spectrum of thought on this question, from rights as an inherent possession of mankind pursuant to natural law theories, to rights as the birthright of Englishmen and protected by the common law, t o positivist interpretations of rights emanating from written constitutions, and finally to an inchoate blend of multiple theories. I f the first question studies this shift the second question explores why the debate occurred. T o answer that, his study considers sovereignty and rights as connected concepts. As sovereignty evolved, rights required as similar transformation. In the new United States, the d as the sovereign. However, in shifting sovereignty from a k ing or Par liament to a system of popular sovereignty, two practical problems arose which in turn

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16 affected the rights debate. The first concerned the creation of the federal system of dual sovereignty that is emblematic of the American federal system. In removing t he royal sovereign and finding the confederation o f states insufficient, the new c onstitutional structure provided for dual governments over many of the same persons and geographic territories. While the Constitution attempted to enunciate the jurisdictional boundaries of each, practical necessity left most of the decisions to later generations Which government was sovereign over which areas? How much latitude did a state have to exert its polic e power before its actions could be considered a s infringing on the sovereignty of the Federal government? What role did rights play in limiting state action? The creation of a Federal government that would have concurrent jurisdiction with the states raised questions of sovereignty that, in turn, imp acted the notion of rights. While the first transformation of sovereignty concerned the balance of power between state actors, the second transformation of sovereignty arose in the actual implementation of popular sovereignty itself. Who exactly was con s idered the sovereign, the state or the people? This struggle affected the question of where rights obtained their authority as rights are, at their base, a limit on the powers of the sovereign. If the people are the sovereign, how can they limit themsel ves? If rights are perceived as emanating from written documents, the courts have the power to grant or withhold rights, a perception which had tremendous implications. If a right is considered fundamental and inured to the individual as a possession tha t could not be modified by the sovereign, what would be the remedy if the right was violated? Before the shift in perception, the question of infringement of rights was largely a political question. If the government took private property without compens ation or placed a person in prison to languish without charges, the objection would be raised against the government I n England, the

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17 Courts or could seek a writ of h ab eas c orpus, as both had been enunciated as rights of Englishmen since the Magna Charta destroying his printing press for his pro abolitionist sentiments, where did the remedy lie? In the individual rights, such as the freedom of speech and the press, to counter the actions of their local communities who often silenced them under the basis of commo n law rights to abate nuisances. 15 What about the rights of the community who destroyed the press due to their concerns for the general health, safety, and welfare of the community in wishing to preclude riots and agitation from radi cals in their midst? T his issue leads to a fundamental point. Are courts and jurists grounding rights in written constitutions in order to contain non state actors from exercising sovereign power ? This study posits that changes in sovereignty necessitated a corresponding chan ge in the conceptual location of where rights obtained their authority. The study will explore how notions of the location of rights are intertwined with these other questions that are simultaneously occu rring in the early r epublic. Many law students k now the holding of Barron v. Baltimore as it is often quickly passed over in Constitutional Law courses for the concise rule that the Federal Bill of Rights did not originally apply to the states. This case neatly sets up the later discussion of the Fourt eenth Amendment, the post Civil War decisions that limited the breadth of that Amendment and, incorporation of the Bill of Rights protections through the Fourteenth Amendment which gives Americans today the full protection of these rights. Told as a story of eventual judicial triumph, 15 For examples of this type of mob action, see Richard B. Kie Slavery Newspapers, 1833 Law and History Review Vol. 24, Issue 3 (2006): 559, 568, 574.

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18 with the judiciary and the Supreme Court as protectors and guarantors of our liberties, it underscores a modern historical theme: whil e the courts may not have always acted to protect relationship with the government, the courts will eventually get it right. Thus, the courts are to be celebrated as th e true protectors of our civil rights and liberties. That for much of American history the Bill of Rights had virtually no practical application to its citizens, except to the extent that similar protections existed in their various state constitutions, i s quite surprising for most. B y telling the story of our civil liberties as they exist today, it is very convenient to start with a brief reference to Barron, as its negative ruling regarding the Bill of Rights provides a neat bookend to this triumphant n arrative. However, this is a teleological view that fails to appreciate the contingency of events that occurred during the era that Barron was decided. Historiography Much of the recent scholarship addressing Barron follows narrow doctrinal interpretation s cision that can be grouped into several categories. First, some scholars view Barron system. Second, others explain Barr on by explorin particular ideas regarding the role of the judiciary in determining the constitutionality of legislative acts. Finally, many look Barron by placing it within an historical context. The first category of Barron scholarship sees particular view of federalism a s the key to unlock Barron Brendan Doherty argues that Marshall should more aptly be called a federalist instead of a nationalist as Barron evidences that he soug ht to enforce the rights of both

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19 the federal government as well as those of the states within the balance of the federal system. 16 Doherty argues that Barron was decided in order to keep the question of individual rights as a matter of state concern and aw ay from the Federal government. 17 While it was important to assert the primacy of the Federal government in many ways, the question of the role of individual rights was properly left to the states. wered questions. For example, he argues that Barron brought the issues of property rights and state and Federal sovereignty before the Supreme Court. 18 According to Doherty, Marshall not only firmly believed in the balance of the Federal system, but was a staunch supporter of property rights, equating liberty with the right to property. 19 Doherty then proceeds to explain how the decision made sense with rights eclaration of the inapplicability of the Bill of Rights to the states no longer holds, Barron v. Baltimore has never been overruled, and is still a ringing declaration that the intent of the framers was that the Constitution was principally designed to lim it the actions of the federal government, and not the 20 This interpretation is not uncommon but is also part of the problem with the Barron 16 Barron v. City of Baltimor e Journal of Supreme Court History Vol. 32, Issue 3 (November 2007): 211, 223. 17 18 19 20

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20 position. As we know from Barron Marshall endorsed the view that rights emanat ed from written constitutions which was only one of several interpretation s present during this era Interpreting Barron sses the point. Jason Mazzone also explains Barron is much more specific in his analysis than Doherty. 21 Mazzone argues that Barron was not decided in order to enact a blanket prohibition against hold the Bill of Rights applicable to the Barron simply affirmed the unremarkable proposition that the federal courts would not apply the Bill of Rights to constrain state g overnment. Both before and after Barron even with the decision in place as binding precedent, state courts were free to apply the Bill of 22 To understand Barron Mazzone argues that we must understand the nature of the relationship between state courts and the Supreme Court that was partially codified in the Judiciary Act of 1789. Under this Act, the Supreme Court had jurisdiction to review state court decisions where in the state court had denied relief alleging a violation of the Federal Constitution; however, the Supreme Court could not review the state court decision if that court had granted relief based upon a violation of the Federal Constitution. As a result, Mazzone argues, state courts believed that they were not bound by Supreme Court Constitutional law precedent on matters that would not be subject to Supreme Court review, such as cases where the state court granted relief under the Federal Constitution. 23 Essentially, a state court could freely apply Federal Constitution al pr otections without the possibility of Supreme Court review but could face scrutiny it denied relief claimed pursuant to the Constitution 21 Minnesota Law Review 1 (November 2007). 22 23

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21 sets forth a system of Constitutional interpretation based upon the recognition of both stat e and f ederal jurisdiction, arguing that each level had its own sphere of autonomy based on the particular jurisdiction, which counters the common perception of absolute Supreme Court supremacy. As a result of this more equal system of Constitutional inte rpretation, Mazzone argues that it was well acce pted prior to the Civil War and the Fourteen th Amendment that state courts could, and did, apply the Bill of Rights against the states. 24 The end of this tradition resulted in a consolidation of constitutiona l rights interpretation exc lusively with the Supreme Court whereas, previously, state courts and f ederal court s sitting in diversity cases had latitude to expand the jurisprudence in certain circumstances. 25 For Mazzone, this type of consolidation is wholl y inconsistent with the concept of federalis m which should allow for a plurality of protections. 26 respect to his nuanced appreciation of how the federal system should free all levels of courts to exp and individual rights instead of compartmentalizing rights as a matter of jurisdiction. At its base, however, Mazzone also views rights as limitations on government that exist by virtue of their inclusion in a written constitution. Although Mazzone prese nts a very good argument that jurisprudenc e that located finality in the Supreme Court has operated to restrict rights, he is still operating within the same framework enunciated by Marshall that rights come from constitutions. Mazzone is n ot taking an in correct position; he is just enunciating one view of the origin of rights without incorporating alternate views. Barron ular concept of judicial review. Fred 24 25 6, 75 76. 26

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22 Friendly and Martha Elliott contextualize Barron by recounting the debate over the necessity of a written bill of rights during the framing of the Constitution. 27 Like Marshall, Friendly and Elliott explain the basis for the Barron intent when he drafted the Bill of Rights Amendments. 28 Looking at Barron through a purely textual lens, Friendly and Elliot ultimately interpret the decision as a kind of bookend to position of equal power within the new government. Thus, Barron operated much in the same Marbury v. Madison (1803). 29 However, the relationship of Barron and Marbury is more complicated than Friendly and Elliott conclu Barron that the Bill of Rights Marbury language wher e in he used the to void unconstitutional laws. In both cases Marshall could have disposed of the issue before the court without the larger holding. Outside of this similarity, there is a great deal of difference in these two cases. In Marbury is emphatically the Barron suc h soaring rhetoric is long gone. 30 In Marbury Marshall held the principles contained 27 Fred Friendly and Martha Elliott, The Constitution: That Delicate Balance (New York: Random House, 1984), 12 15. 28 Friendly and Elliott, The Constitution: That Delicate Balance 13 14. 29 Friendly and Elliott, The Constitution: That Delicate Balance 7 8. 30 Marbury v. Madison 1 Cranch 137, 176 177 (1803).

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23 in the Constitution so fundamental to the people that it was imperative to give the Court the power to hold acts impairing these rights unconstitutional. However, by the time of Barron Marshall interpreted the Constitution more as ordinary law, and the rights contained in the Constitution applied only to the extent that the courts believe they fit into the larger federal system, thus jettisoning the prior concept of the rights in the Constitution as so fundamental they required the rise of judicial review. Thus, Barron represents both a significant evolution in affect pol icy outside of the four corners of a particular case. Scott Douglas Gerber also views Barron through a judicial review analysis. 31 However, Gerber seeks to explain the decision by examining the role of the courts in revi ewing legislation. Ge rber posits th at judicial review arose from the need to protect individual rights. Further, he finds that courts routinely invoked natural rights concepts when they believed that individual rights had been infringed. Historically, Gerber connects the genesis of judic ial review in the U.S. to the failure of the early state legislatures to properly safeguard individual rights. 32 For Gerber, protecting individual liberties in the vacuum left by the failure of the legislatures to secure these rights was the impetus for th e rise of judicial review. Gerber finds that Americans in the founding era expected the legislatures to act as the protectors of personal liberties, as would be expected of persons who, until recently, were British subjects. As such, they were familiar w ith the idea that proper representation in Parliament was the method to ensure the security of their rights. The belief in the legislature as the body that protected rights was eroded when the actions of the early state legislatures began to infringe righ ts, especially those 31 Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York U niversity Press, 1995). 32 Gerber, To Secure These Rights 104.

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24 concerning private property. 33 While the Constitution was drafted during this era, the framers nonetheless did not explicitly resort to a model of judicial review. 34 Rather, Ge rber argues it was commonly expected that the Supreme Court would act to strike down laws that infringed rights as it was clear that the legislatures could no longer be relied upon for such protection. 35 According to Ge rber, the framers believed that courts would decide rights cases in light of natural law princip that courts did just that. 36 Ge rber finds that the Supreme Court in particular routin ely used a natural law argument, but only in cases where individual rights were concerned. In cases where natural rights concepts were not used, like McCulloch v. Maryland (1819) or Gibbons v. Ogden of cases where natural rights played no role as these concerned the location and extent of political power in the federal system. 37 However, in cases where individual rights were at issue, like Calder v. Bull (1789), Justice Van (C.C.E.D.Penn. 1795), Fletcher v. Peck (1810), Terrett v. Taylor (1815), and Ogden v. Saunders (1827), the Court routinely used natural rights vernacular to decide the matter. 38 33 Gerber, To Secure These Rights 99. 34 Gerber, To Secure These Rights 100. 35 Gerber, To Secure These Rights 102 103. 36 Gerber, To Secure These Rights 104. 37 Gerber, To Secure These Rights 122. 38 Gerber, To Secure These Rights 117 122.

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25 Thus, Ge rber argues that the existence of natural rights as a basis for judicial review is not the 39 Rather, the question of individual rights determined whether the court would rely on concepts of natural rights. The outlier to G e Barron v. Baltimore. Barron does not foll ow the same pattern as it raised the issue of the infringement of right of private property, yet Marshall very clearly avoided any reliance on natural rights. G e rber finds that Marshall could ha ve very easily invoked the analysis used by Justice Paterson in 40 There, the c ourt was faced with an argument by the state of Pennsylvania that the Fifth Amendment did not apply to mandate comp ensation to a landowner whose title to his property was taken and vested in another by the state legislature to settle a land dispute. Justice Paterson held that the principle of just compensation declared in the Fifth Amendment was binding on the states. Indeed it was 41 Instead, in Barron Marshall did not rely on any natural rights type arguments when denying relief, although the case concerned individual rights. Ultimately, G e rber is forced to contextualize Barron in order to explain this exception to his rule. In a cursory fashion, Ge rber attempts to explain the Barron exception by arguing that that the political direction of Jacksonian America caused a decline in the reliance on natural law. 42 For Ge rber, the idea of Jacksonian 39 Gerber, To Secure These Rights 104. 40 Gerber, To Secure These Rights 123. 41 Gerber, To Secure These Rights 1117 118. 42 Gerber, To Secure These Rights 123.

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26 rms the basis for natural rights jurisprudence. 43 Ge rber is not alone in trying to reconcile Barron Barron ] has been a diffic 44 Peter Irons is likewise puzzled by Barron 45 Irons notes the consensus among most constitutional scholars is that Marshall arrived at the r ight decision. expansive reading to the Constitution. It would have been more in character for him to force the 46 Irons tries to explain the case by arguing that Marshall simply abandoned his nationalist beliefs when faced with a choice between individual the governmen 47 While it is tempting to explain Barron in such a concise way, this conclusion is unsatisfying. Most historians are ultimately forced to look ou tside the jurisprudence of the C ourt and s eek external factors to explain Barron. The last category of scholarship concerning Barron focuses on scholars who also look outside of legal doctrines like federalism and judicial review and attempt to explain the decision by relocating it within its historical context. For example, Michael Kent Curtis places Barron within the social upheaval of the antebellum era. Curtis 43 Gerber, To Secure These Rights 123. 44 W. All John Marshall: A Life in La w The American Journal of Legal History (April 1976): 155, 157. 45 Peter Irons, (New York: Penguin Books, 1999). 46 Irons, 136. 47 Irons, 136.

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27 approaches Barron when addressing the question of whether the Fourteenth Amendment was intended by its Civil War era framers to apply the Bill of Rights against the states. There, Curtis viewed the Fourteenth Amendment incorporation argument by approaching it in context of the pre Civil War abolition conflicts, where he discusses the effect of the Barron decision. Curtis ndicate that Barron Barron avoided troubling questions. It promoted stability at the expense of liberty. It left southern states f ree to suppress speech and press on the question of slavery and left them free to ignored a tradition by antebellum jurists to hold the Bill of Rights applicable to the states. 48 The argument presented by Curtis is sound and compelling. While this study will most closely follow a contextualist interpretation similar to that used by Curtis, this dissertation argues that Barron must be examined more closely on its own, rather than in context of the Fourteenth Amendment incorporation debate I largely agree with Curtis but intend to connect Barron not only to the abolition crisis but to the larger re conceptualization of rights necessitated by the struggles over the enactment of po pular sovereignty in the early r epublic. Methodology This dissertation is envisioned of course as legal history. In a broad sense, though, this is also an intellectual history or, more precisely, a history of the transformation of ideas. It places Barron in the context of its era. Gi ven the wide range of views regarding the origins of rights that existed, Barron could have been decided in a number of ways positivist view of rights only one possible outcome and not a foregone conclusion. Additionally, 48 Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986), 23 25.

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28 t his project explore s the large r tensions between popular sovereignty and law to ascertain why these rights debates were occurri ng. To answer these questions, t his study uses a fo rm of contextual interpretation. This methodology presumes that one can only discover larger meanings about a document by placing it within the context of its era. 49 As was argued by William Fisher, this contextualist approach is particularly suitable when researching questions of causation particularly to help ascertain why events transpired in a certain way. 50 Historians like J. G.A. Pocock and Quentin Skinner or legal historians such as William Novak h ave all employed this methodology to great effect. 51 Much of the methodological inspiration for the legal history aspect of this study was taken from Harry Scheiber and his admonition to legal historians to pay more attention to constitutional history. 52 S cheiber originally lamented that because of stagnation in the field of constitutional history, such as the primary foc us on doctrinal Supreme Court decisions, the history of the Court as an institution, and judicial biographies, the field was ripe for crit icism and marginalization as out of touch with social realities. 53 Scheiber noted that this narrow view of constitutional history became an easy target for the legal realists such as Karl Llewellyn who characterized this history as formalistic. This criti cism wa s followed up by Willard Hurst and the followers of his groundbreaking 49 pplication of American Legal History of the Stanford Law Review 1065 (May 1997): 1068. 50 51 52 and the New Legal History: Complementary Themes in Two Journal of American History 68 (Sept. 1981): 337. 53 339 340.

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29 history in a completely opposite fashion viewing law as a tool of the middle class through which they could negotiate prim arily economic goals. 54 something created exclusively in courtrooms or legislatures. Hurst countered this notion by denying this form of law any autonomy at all and emphas theme, such as Lawrence Friedman and Morton Horwitz. 55 It is within this academic argument with those who practice what he that constitutional history matter ed and wa s not hypocritical verbiage, as was charged. 56 According to Scheiber, the existing trend which dismissed the importance of constitutional history to legal history because the two approaches in fact complemented one another. 57 Interestingly, while Scheiber was arguing that constitutional law, as the use of both approaches made for a richer legal history, subsequent f the Critical Legal Studies (CLS) movement changed the debate as it viewed both approaches as erroneous ly subscrib ing to an evolutionary functionalist view of the law. 58 According to Robert 54 Journal of Social History 25 (1991): 191. 55 For example, Horwitz continued the Hurst paradigm by arguing that the law and the legal system in the Horwitz, however, presented a much darker, non consensual version which argued that these antebellum judges instrumentally used the legal system to redistribute wealth and power. Morton Horwitz, The Transformation of American Law 1780 1860 (Cambridge: Harvard University Press, 1977). 56 Scheiber, 342. 57 343 344. 58 Stanford Law Review 36 (1984): 57, 59, 66.

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30 Gordon, this view holds that the proper evolution of a society is toward a form of liberal capitalism and that the role of a functioning legal system is to assist in that goal. 59 In that regard, the legal system in how it fun 60 CLS, however, treats the use of these categories as artificial labels that constrain our thinking and, thus, limit our options. n of an inevitable evolution of society, in accord with a liberal capital model, while hiding the fact that most occurrences in society are manufactured by those with the power to enact change. 61 Thus, the debate over the proper role of constitut ional law in legal history evolved to an argument over whether this method of legal history was even viable any longer. In 1991, Michael Grossberg set forth an excellent summary of this newer debate, this time pitting the Kermit Hall, against those of the CLS movement, like Robert Gordon and Christopher Tomlins. 62 Grossberg identified The Magic Mirror as an example of the neo Wisconsin approach. 63 Hall retained the Wisconsin view of law as an instrument which is used by society to reflect consensual goals. Hall updated the Wisconsin 59 Gordon, 59. 60 Gordon, 61. 61 Gordon, 70. Gordon sets forth a good example of the difference between the evolutionary functionalist view and CLS. Gordon assumes the existence of a nineteenth century law that gives loggers priority lien rights on wages from the sale of the lumber they cut. Gordon argues that a functionalist would likely find that the lumber industry must have been experiencing a labor shortage, thus the law was enacted in order to attract more workers by p roviding them more security for payment. CLS, however, would argue that the lien law this separate realm, the government could attempt only some small regulation. However, because of this conception of business enterprises as private, and thus only subject to limited government regulation, certain possibilities, such as elevating laborers to an equal partnership level, cannot even be imagined For CLS, the use of legal forms limits what we can even envisi 111. 62 194. 63 G 193; Kermit Hall, The Magic Mirror: Law in American Hi story (New York: Oxford Univ. Press, 1989).

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31 approach by expanding the analysis to include not only the structure (the courts, legislatures, administrative agencies) and the substance (the rules and laws produced by the many levels of courts and sources of law) of the American law, but also included the importance of what he referred to as legal culture. 64 To a large extent, Hall was restating the Wisconsin School orthodoxy, as critics such as Tomlins charge d but did expand the paradigm to include more actors and groups in the use of the law. Instead of trying to fin d a place within the Wisconsin S chool for constitu tional history, Grossberg argued that the newer debate questioned the way legal history should be done in li ght of the CLS critique of 65 Regardless, Grossberg argued that this debate o ffer ed legal historians an opportunity to redefine the discipline believ ing t hat this debate w ould open legal history more to the ideas of socia l history. 66 possibilities of fusing social history methods into legal history would enrich the field, for 64 Hall, The Magic Mirror 4 7. H all defined legal c ulture as an ideology which evolved in response to individual or group interests. While Christopher Tomlins has rightly taken Hall to task for his view of lega l culture, arguing that Hall is really describing a culture of the formal lega l system and lawyers, Tomlins societal acceptance of the notion of the rule of law is less persuasive Tomlins notes that Hall, on one hand, a rgued for a better appreciation of the autonomy of the law while, on the other hand, he contradicted himself by noting that vocation of the belief in the rule of law as a device to overcome this contradiction, or what appears too black and white of a conclusion. Similar t o Hurst, the rule of law notion myth or not is one so i ngrained that it can also serve as a basis to enact or resist change to less powerful groups, as has been stressed by critical race scholars. Harvard C ivil Rights Civil Liberties Law Review 301 (1987): 304 William & Mary Law Review 353 (1990 1991): 362 363. 65 G 191. 66 G 195.

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32 shaping th e law. 67 Grossberg identified the study of rights as a topic which was pro ving useful in forging connection between legal history scholars W hile CLS views rights as nothing more than obiter dictum or window dressing to cover inequalities of power and to placate the less powerful, those s pecializing in gender or minority affairs such as cri tical race scholars, argue that rights can provide a powerful ideologi cal motivation to enact or resist change by these groups. 68 Grossberg noted a rise in studies of p opular rights consciousness movements which resulted in onstitutional history which did not just study ca se law, but also identified 69 By v r, justice, autonomy, 70 Any study of rights and rights consciousness must include a rich view of constitutional law. This view should not simply restate a formal, court centered interpretation which sees law as edicts handed down to the pop ulace any more than a view which believes that rights have no power, or cannot evolve to gain meaning and force. Since this debate occurred, many scholars seem to have exampl Brown 67 Gr 195 196. 68 Gr 196 197. 69 70 Gr to Us Al Journal of American History Vol. 74, No. 3 (December 1987): 1013 1034.

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33 v. Board of Education (1954). 71 Tushnet melded the study of the individual litigants, the NAACP as an organization, the lawyers, and the schools along with the traditional story of the cases as they existed within the Supreme Court. Tushnet argues that the litigation was a social proc ess which depended on practical and organization al concerns and realities that cannot be appreciated by simply reading the Supreme and Federal C ourt decisions alone. 72 However, Brown and its predecessors is one that naturally approach recognizes that the story of the campaign to desegregate education cannot be told with out an appreciation of both the social and constit utional contexts. W hile legal history s tudies on rights as they relate to race and racial discrimination have kept constitutional history within their narratives, other recent works have also incorporated constitutional history in innovative ways. For exa mple, Larry Kramer in The People Themselves: Popular Constitutionalism and Judicial Review squarely engages the Constitution and attempts to contextualize its purpose at the time of framing as well as its interpretation during the years of the early r epub lic. 73 However, instead of engaging in a doctrinal recounting of original intent, Kramer seeks to show that our modern concept of judicial review has not always existed. According to Kramer, while we currently all accept the rulings of the Supreme Court a s the final arbiter of the Constitution, the people in early r epublic showed no such deference. Rather, the simple inclusion the fundamental liberties of the people in the U.S. Constitution did not mean that the Supreme Court then had any greater right to limit those 71 Mark Tushnet, 1950 (Chapel Hill: University of North Carolina Press, 1987, 2004), xi. 72 Tushnet, Strategy xi xii. 73 Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).

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34 rights. 74 Rather, those rights inured to the benefit of the people and could not be limited by a court as if they were ordinary law. Kramer argues that the move toward judicial review, or more appropriately, judicial supremacy, where the Supr eme Court had the authorit y to interpret the Constitution to the exclusion of all others was the product of deliberate steps by those who feared the excesses of majority rule. 75 Thus, Kramer has also produced an excellent synthesis of legal, social, an d constitutional history, but has approached it in a way that places the constitutional history first and uses broader legal and social history methods to give an entirely new interpretation to the idea of judicial review, a topic previously isolated to do ctrinal history alone. Other scholars have adapted a broader view of constitutional history to other fields, such as labor history. For example, Carl Swidorski links free attempts to organize and strike between World War I and II. 76 Swidorski take s a subject, labor history, which has often been approached through social history methods, 77 and links it not to the development of the New Deal but to the expansion of First Amendment rights, a subject usually interpreted th rough the lens of rights litigation and the formal edicts of the Supreme Court. For example, Swidorski aptly notes the connection to labor in numerous post World War I cases such as in Gitlow v. N.Y (1925) where the Court famously incorporated the freedo m of speech and press provision s of the First Amendment against the states. 78 What is less well known, and 74 Kramer, The People Themselves 40 43. 75 Kramer, The People Themselves 143 144. 76 rts, the Labor Movement and the Struggle for Freedom of Expression and Association, 1919 Labor History 45 (Feb. 2004): 61. 77 For example, see Lizabeth Cohen Making a New Deal: Industrial Workers in Chicago 1919 1939 (New York: Cambridge University Press, 1990). 78 Gitlow v. N.Y. 268 U.S. 652 (1925).

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35 which Swidorski points out, is that the Gitlow decision also upheld the New York law which allowed the state to determine whether certain speech coul restraint holdover again in the World War I cases. 79 Swidorski argues that the reason the Court upheld the law was that the publication that Gitlow ha d distributed called for, among other things, a call for a general strike of the workers. 80 By incorporating a constitutional history approach into his labor history research on interwar strife, Swidorski has enriched both fields. Additionally, constitut ional history can and is being incorporated in ways that are not always obvious. For example, it is easy to see a constitutional history nexus in narratives which explicitly include a Supreme Court decision. However, an even richer version of constitutio nal A Fabric of Defeat: The Politics of South Carolina Millhands, 1910 1948 81 In the context of the Great D epression, Simon notes how mill workers responded to such as the NRA, in a language that, for the first time, emphasized their national citizenship. In a state which had produced the nullification crisis, not to mention full blown secession and Civil War, the turn by workers t o emphasize national citizenship which gave them the right to strike was remarkable. 82 This embrace of citizenship by the mill workers can be seen as a link to a broader constitutional history, a history that views the Constitution not simply as the work o f the 79 65, 68. Frohwerk v. U.S. (1919) saw the Court revisit the bad tendency test when it upheld the conviction 80 d the Struggle for Freedom of Expression and Association, 1919 81 Bryant Simon, A Fabric of Defeat: The Politics of South Carolina Millhands, 1910 1948 (Chapel Hill, Univ. of North Carolina Press, 1998). 82 Simon, A Fabric of Defeat 98.

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36 ability to enact or resist change, similar to the notion of rights argued by critical race scholars. This study likewise seeks to heed blending a constitutional history of the case with social, legal, and intellectual history methods and evidence. This study blend s a constitutional history of the case as it ma de its way to the Supreme Court, a social history focus on external factors wh ich may have influenced the decision, and a legal history focus on the na ture of antebellum police power takings, and municipal government. Of course, there are still many constitutional histories that treat the Supreme Court as a largely autonomous inst itution just as numerous legal histories who fail to attempt any connection to a constitution issue because of a notion of irrelevance. However, as Scheiber has argued, and the above authors have shown, a combination of these approaches will strengthen th em both. Chapter 2 discusses the background of the case and explores the early history of Baltimore which set the stage for the purchase of the whar f and introduces the major players in the case. Chapter 3 follows the case from the trial court, through appeal, and ultimately to the Supreme Court. Chapter 4 explores the range of opinion s regarding where rights obtained their authority during the colonial and founding eras. Chapter 5 discusses how these ideas were transformed during the early r epublic er a. Chapter 6 analyzes the modern criticism leveled e law view of rights. Chapter 7 discusses the transformations in the conceptual location of rights caused by changes in sovereignty nece ssitated by the creation of t he new Federal union and the implementation of popular sovereignty. Chapter 8 explores the relationship between sovereignty and rights and argues that changes in sovereignty caused the reconceptualization of rights that occurr ed during

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37 the early nineteenth century Finally, Chapter 9 tracks what happened to Barron, Craig and the rest of the players who were involved in the litigation and discusses the legacy of the case

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3 8 CHAPTER 2 BALTIMORE AND BARRON The wharves (for there is no quai in Baltimore) are always constructed for the convenience of their owners; because these piers jut out in the water there are, in the direction of the town, marshes dented with wide inlets, while neighboring wharves are jus t so many breakwaters. All this gives an air of disorder to a place that strict alinement would not only correct but add one charm more. Mederic Louis Elie Moreau de Saint Mery 1 Barron v. Baltimore has achieved a certain amount of notoriety in Constitutional law circles for its ruling that the Bill of Rights did not apply to the state governments. Barron is often cited in Constitutional law courses as it sets the stage to explore the Fourteenth Amendment which was enacte d following the Civil War to extend the rights of national citizenship to those enslave d in th e southern states. F rom there the discussion usually then centers on the evolution of the Fourteenth Amendment, from the betrayal of its promise in the late nine teenth century to its ultimate triumph as the vehicle through which the Bill of Rights Amendments were incorporated against the intransigent state governments of the twentieth century. Th is dissertation will confront this traditional narrative By resitu ating the case within the debates of the era regarding the location of rights and the struggle over the actual contours of popular sovereignty, we see Barron as a moment where the Supreme Court came out on one side of these then live controversies. This d issertation views Barron on its own terms and in its own era without the prism of a Fourteenth Amendment to color its outcome. L egal cases arise out of particular needs, desires, and conflicts between actual people seeking some resolution. The vast majority of litigants do not expect their names to end up as shorthand for legal principles: William Marbury wanted his commission delivered, Dred Scott 1 Maryland Historical Magazine Vol. 35, No. 3 (September 1940): 221, 229.

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39 wanted his freedom, and Clarence Earl Gideon wanted a new trial wit h the assistance of an decision ha d on the direction of American c onstitutional law and history we must first examine the particular circumstances which gave rise to the case. Maryland and Baltimore Barron arose largely because of geography and the particular environmental conditions that exist in coastal Maryland. English explorer John Smith is credited with the first European exploration of the Chesapeake Bay and its contiguous rivers in 1608. Because Smith was on a mission northward from Jamestown to scout for food and provisions, he did not initiate any settlement. Rather that distinction belongs to George Calvert, a favorite of English King James I. failure to achieve financial success. Calvert began his overseas plans by obtaining a patent to land in modern day Newfoundland, Canada in 1620. However, the bitte r cold he encountered during a personal visit to his potential colony convinced him that his colony must be planted elsewhere and he began to search for a more temperate location to the south. His visits to Virginia, however, were met with suspicion and o ften open hostility due to his 1625 conversion to Catholicism. Upon conversion, Calvert was named by James I the first Lord Baltimore, an Irish peerage title. His warm relations with the Stuarts paid dividends as Calvert succeeded in obtaining a charter Cecilius Calvert, to establish a proprietary colony named Maryland, in honor of the English stock Virginia Company, Mar yland was initially created as a proprietary colony which the Calverts hoped would grant them more control over the colony to help avoid many of the problems encountered in Virginia. The first settlers began arriving in Maryland in 1634. By 1650, the lor d proprietor Cecilius Calvert had

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40 granted numerous parcels of land, which averaged one thousand acres per grant. The grantees of these rural parcels also gained the rights to further subdivide the land, all subject to the control of the original grantee t o tax and to dispense justice, thus attempting to replicate a more feudal type arrangement in the new world. 2 In the seventeenth century, Virginia and Maryland attracted between 100,000 and 150,000 European immigrants who sought economic opportunities presented by the flat, fertile soil and accessible waterways. However, the flat plain that drew immigrants to Virginia and Maryland stopped at the Patapsco River, the southernmost boundary of Baltimore County. 3 North of the Patapsco, the desirable plain gave way to the more rugged, mountainous piedmont terrain unsuitable for traditional farming. As a result, for much of its early history, Baltimore County was the least populated county in Maryland. 4 Geography was likewise a majo r factor in the failure of the c ity of Baltimore to grow quickly and presented an impediment to later growth. For example, Baltimore was laid out between the low lying tidewater abutting the Patapsco River which rose sharply to the piedmont. 5 Baltimore is ringed by a line of hi gher ground approximately thirty miles away, beginning at the Susquehanna River in the north and ending at the Potomac River in the south, which allows for natural drainage to the Patapsco and Chesapeake Bay often though Baltimore itself. 6 To cause 2 Sherry H. Olson, Baltimore: The Building of an American City (Baltimore: Johns Hopki ns University Press, 1980), 2, 5. Aubrey C. Land, Colonial Maryland: A History (New York: Millwood Press, 1 981), 4 9. Charles G. Steffen, From Gentlemen to Townsmen: The Gentry of Baltimore County, Maryland, 1660 1776 (Lexington: Universi ty Press of Kentucky, 1993), 8. 3 Steffen, From Gentlemen to Townsmen 8. 4 Steffen, From Gentlemen to Townsmen 8. 5 Olson, Baltimore 5. 6 Report of Isaac Trimble, the Engineer appointed by the Commissioners of the Mayor and City Council of Balt imore on the Subject of the Maryland Canal (Balti more: Lucas & Deaver, 1837), 4.

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41 furth er problems, much of the shoreline of the Patapsco itself was an ill defined marsh which bred mosquitoes. 7 Jones Falls, which ran though the town, frequently caused damage as a result of its tendency to frequently overflow its banks. 8 Importantly, Jones Falls also made growth difficult for early Baltimore as it dumped silt into the basin, making the Patapsco much too shallow for larger ships. 9 For much of its early existence, Baltimore was faced with the task of trying to mitigate the natural difficultie s presented by its physical location. While it was approved and marked off as a settlement around 1729, Baltimore was not transformed into a major urban city overnight. Owing to the larger pattern of settlement in Maryland and its historical emphasis on agriculture, the necessity for an urban location was not Leonard Calvert, authorized the laying out of a town on a designated sixty acre parcel north of the Patap sco, to be called Baltimore Town His a ct appointed seven commissioners, all residents of Baltimore County, to survey and divide the area into lots and allowed these commissioners first choice of the purchase of particular lots. 10 Soon thereafter, in 1732, the colonial governor authorized the surveying and parceling of lots east of Baltimore, which became known as Jones Town (also known as Old Town) and which was incorporated into Baltimore in 1745. 11 Baltimore continued to expand and incorporate more of the surrounding area, but historians generally consider the nucleus of Baltimore to originate from 7 Charles G. Steffen, The Mechanics of Baltimore: Workers and Politics in the Age of Revolution, 1763 1812 (Chicago: Univers ity of Illinois Press, 1984), 4. 8 Steffen, The M echanics of Baltimore 4. 9 Steffen, The Mechanics of Baltimore 4. 10 Col. J. Thomas Scharf, The Chronicles of Baltimore (Baltimore : Turnbull Brothers, 1874), 20 21. 11 Scharf, The Chronicles of Baltimore 32.

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42 the combination of Baltimore Town, Jones Town, and the 1773 addition of Fells Point. 12 From its inception and through its early growth, Baltimore continued to suffer from its geography and location, however. 13 Nineteenth century Maryland historian Thomas Scharf described the initial problems facing Baltimore: From the small quantity of gro und originally taken for the town, and from the difficulty of extending the town in any direction, as it was surrounded by hills, water courses or marshes, it is evident that the commissioners did not anticipate either its present commerce or population. The expense of extending streets, of building bridges, and of leveling hills and filling marshes, to which their successors have been subjected, and which unfortunately increases that of preserving the harbor as improvements increase and soil is loosened, have been obstacles scarcely felt in other American cities . 14 Historian Charles Steffen also noted the disappointment many early English settlers had with the piedmont area that later became Baltimore County. For example, the uneven terrai n made traditional farming difficult in a way that did not exist to the south. Steffen notes that the terrain in Baltimore County drops dramatically toward Chesapeake Bay in a series of terraces, some of which reach five hundred feet and which are located only ten miles north of downtown Baltimore. Steffen contrasts this by noting that a similar decrease in elevation takes over one hundred miles further south along the Potomac. This terrain caused most early English settlers to cede the piedmont to fur t raders and hunters in favor of more favorable land to the south. For Steff en 15 12 Olson, Baltimore 7. A good discussion of the early piecemeal additions to Baltimore was written by Garrett Maryland Historical Magazine Vol. 88, No. 2 (Summer 1993): 151. 13 Scharf, The Chronicles of Baltimore 33, 45. 14 Scharf, The Chronicles of Baltimore 23. 15 Steffen, From Gentlemen to Townsmen 10 11.

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43 As the geography of Baltimore Town did not fit the ideal model for settlement, the city did not spring up overnight. Thomas Scharf, in his 1874 history o f Baltimore, relied upon a 1752 16 In this drawing, Moale indicated that by 1752, after its first twenty two years of existence, Baltimore had only two hundred residents. 17 Further, M five houses, one church, and two taverns. 18 In his review of the Moale drawing, Charles Steffen [i] n short, Baltimore was a typical eighteenth century hamlet, whose social life alternated bet 19 By mid century, this began to change. disruptions from the French and Indian War which temporarily ha lted westward expansion and forced further growth within Baltimore. 20 expansion came from the growth of the wheat market. 21 While geographically unsuited for large scale agriculture, Baltimore County is nonetheless strategically situated between the fertile growing regions of southern and central Maryland and Pennsylvania. For example, German immigrants settled southeastern Pennsylvania in the early eighteenth century and began to plant wheat, their t raditional crop. For the rest of the century, these German immigrants spread 16 Scharf, The Chronicles of Baltimore 47. 17 Scharf, The Chronicles of Baltimore 48. 18 Scharf, The Chronicles of Baltimore 48; Steffen, The Mechanics of Baltimore 4. 19 Steffen, The Mechanics of Baltimore support their view of early Baltimore, including Cha rles Steffen, Sherry Olsen ( Baltimore 1 0, 387) and Garrett Power ( 151, 157). 20 For example, Sherry Olson notes that between 1752 and 1774, the number of houses in Bal timore increased from 25 to 564; Scharf, The Chronicles of Baltimore 51. 21 Steffen, The Mechanics of Baltimore 6.

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44 primarily southward into central Maryland and transformed Frederick County into the agricultural center of the state. 22 Maryland planters from the s e astern s hore of the Ch esapeake also began switching their farms from tobacco to wheat, due to poor sales and soil damage due to overproduction. 23 Unlike tobacco that was grown primarily on plantations closer to the water, wheat flourished in the Maryland and Pennsylvania interi or. While tobacco planters could easily sell their crop without the need for transportation or middlemen given their waterfront location, upstate wheat farmers could not realistically engage the market without the services of merchants in a deepwater port 24 Thus, while Baltimore was initially stymied by its poor geographic qualities, its location later made it the perfect candidate to capitalize on its position between the wheat growing interior and the larger Atlantic market. Supplementing the contri butions made by German immigrants, Baltimore also benefited from the arrival of several other immigrant groups, including French Acadians fleeing Nova Scotia in 1756, and the Scots Irish. 25 The arrival of these groups, the rise of the wheat trade, and the Sterretts, Spears, and Buchanans. These families had originally emigr ated from Scotland to began trading wheat with Baltimore during 22 Steffen, The Mechanics of Balt imore 6. 23 Steffen, The Mechanics of Baltimore 7. 24 Stuart Weems Bruchey, Robert Oliver, Merchant of Baltimore, 1783 1819 (Baltimore: Johns Hopkins University Press, 1956 ), 30 31. 25 Olson, Baltimore 1 1; Steffen, The Mechanics of Baltimore 6; Scharf, Th e Chronicles of Baltimore 51.

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45 Ultimately, as a result of warfare on the western frontier from the French and Indian War, these families all moved to Baltimore. With the considerable wealth they had accumulated by this time they invested in maritime trade, including the purchase of slaves to help extend the wharves on their newly purchased waterfront property, and used the wharves to ship wheat to markets in the West Indies and Europe. 26 The expanded trade likewi se drew immigrants to Baltimore and helped to connect Baltimore to markets in southern Europe, the other Atlantic seaboard colonies, and Great Britain. 27 In addition to these markets, Baltimore became an essential port for the European colonies in the Cari bbean. Baltimore found particular success in exporting wheat, lumber, and iron goods to the West Indies which required a nearby trading partner, as the Caribbean planters had long since decided to funnel most agricultural production into maximizing their output of sugar, their main cash crop. 28 growth, it also ti ed its growth and economic well being to larger world events. Baltimore thrived during periods of war and unrest, such as its in itial growth caused by the French and Indian War, the American Revolution, the various wars occurring during the French Revolution and its aftermath, the Napoleonic Wars, and the War of 1812. These international disruptions permitted to step in to the vacuum and allowed Baltimore less than one century from its founding to become the third largest city in the United States 29 26 Olson, Baltimore 11. 27 Steffen, The Mechanics of Baltimore 7. 28 Steffen, The Mechanics of Baltimore p. 7; Jerome Garitee, Privateering Business as Practiced by Baltimore During the War of 1812 (Middletown, Conn.: Wesl eyan University Press, 1977), 12. 29 See Olson, Baltimore of Urban Planning in Baltimore 1730 Maryland Historical Magazine Vol. 81, No. 1 (Spring 1986) : 8, 9.

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46 Due to its location between steep surrounding elevations and the marshy banks of the Patapsco River, Baltimore had to contend with numerous streams in and around the city. While many of these streams provided the water power necessary to operate mills upstream that supported the wheat trade, the flowing water caused many problems for early Baltimore. 30 Most notably, Jones Falls ran down to the Patapsco on the east side of Baltimore Town separating it from Jones Town. The Falls required residents to construct bridges in order to carry on trade with Jones Town, thereby effectively bisecting the c ity aft er these towns were formally consolidated in 1745. Silently, the Falls also continued to dump significant amounts of sediment into Baltimore In 1726, the Fell brothers obtained land east of Baltimore and Jones Town which jutted into the Patapsco east of Baltimore. 31 Baltimore had to contend with Jones Falls and the marshes it produced at its intersection with Baltimore Basin, not to mention its often clouded land titles which discouraged capital investment. In alternative. 32 Edward and William Fell were Quakers who emigrated from Lancashire, England and who engaged in land speculation in and around Baltimore during its early years. In 1738, Edward Fell d Edward Fell. In 1746, William Fell died, which left all the Fell property to Edward Fell, Jr. In 1761, Edward Fell, Jr., consolidated the four parcels he inherited into one 343 acre parcel and two years later began selling parcels. 33 While Edward Fell, Jr., died in 1766, his wife and 30 Olson, Baltimore 5. 31 Olson, Baltimore 8. 32 151, 157. 33 Po 160 161.

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47 which later became known as Fell s Point. 34 Fell s Point grew quickly as a result of several factors. As is commonly the case with realty, location drove much of the settlement. Jutting into the Baltimore Basin east of Baltimore, the Fell s Point peninsula could naturally reach farther into the d eeper water of the Patapsco. It was ideal for shipyards and for arriving and departing ships while the shallower Baltimore Basin was choked with sediment and debris. 35 Similarly, the surrounding forests provided ample ship building materials and Baltimor 36 Finally, the Fells offered attractive financing that lured laborers, shop owners, and artisans by offering lots payable in ground rents. 37 This form of financing was especially attractive to persons w ho could not afford the full or even partial purchase price, especially during this time when both specie and available credit were not readily available. Ground rent financing provided that a seller would lease property to a purchaser on a renewable basi s. It differed from a traditional landlord/tenant arrangement in that the leases were usually for ninety nine year terms that were renewable, essentially forever, at a fixed annual sum. Ground rent financing was an effective mechanism to stimulate growt h in the absence of credit or specie. Often through ground rent financing the subject land was leased to speculators who subdivided the land and who built row houses for further sublease. 38 Ann Fell made sure that the land she sold increased its value by 34 P 161. 35 In Maryland Historical Magazine Volume 97, No. 2 (Summer 2002) : 153, 155 156. 36 37 P 155. 38 P 165.

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48 control. 39 By the eve of the American Revolution, Fell s Point legally absorbed into Baltimore in 1773, though still geographically separated from Baltimore by approximately one mile. 40 Following the disruptions of the Americ again profited from the warring European powers. This time, they benefitted from the war between Great Britain and France in the aftermath of the Fre nch Revolution by supplying Spanish and French colonies in the West I ndies, in defiance of the British and later the French. 41 Despite risking capture by both the British and French, the financial incentives proved too lucrative for approxima tely $1.7 million in 1792 to over $10 million by 1800. 42 While Baltimore had experienced exponential growth in commerce and population, its method of governance did not keep pace. From its founding in 1729, Baltimore had operated under a structure of gov ernment more fitting for a rural hamlet than an emerging center of international commerce. 43 For example, the c ity was run by commissioners appointed by the state government located in Annapolis instead of by elected representatives. 44 Not only was this 39 162; Olson, Baltimore 23; Scharf, The Chronicles of Baltimore 242. 40 156; P 162; Scharf, The Chronicles of Baltimore 72. 41 Steffen, The Mechanics of Baltimore 7; Gary L. Browne, Baltimore in the Natio n, 1789 1861 (Chapel Hill: University of North Carolina Press, 1980) 25 26. 42 Browne, Baltimore in the Nation 28. 43 Steffen, The Mechanics of Baltimore 122. 44 Steffen, The Mechanics of Baltimore 122. In 1786, Baltimore residents were allowed to elect the offices of street commissioners and port wardens while the 1776 Maryland Constitution gave Baltimore two representatives in the state Legislature. On the whole, however, Baltimore was woefully underrepresente d in the Legislature. T he

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49 ar rangement frustrating from a political standpoint, but as a matter of actually ru nning an ever growing port city the local government was wholly ill equipped to deal with practical municipal concerns like sanitation, transportation, and security. 45 Howeve r inadequate this arrangement, it persisted until 1796 when the Maryland legislature finally incorporated Baltimore as a city pursuant to Maryland State law. Previous at tempts to incorporate had been defeated by Fell s Point residents, mechanics, and carp enters. 46 Attempts to petition the Maryland Legislature consistently failed to gain a consensus. Charles Steffen posits that this failure was as a result of struggles over the attempt of more elite Baltimoreans to pattern the proposed c ity charter on the conservative Maryland Constitution, complete with a bicameral assembly with an unelected upper house and mayor. 47 Ultimately, after years of dissent and debate, the conse rvative plan succeeded and the c ity government was divided between the mayor and a bic ameral city council meant to replicate the division of powers found in the newly ratified Federal Constitution, complete with an unelected upper house and mayor. 48 According to historian Gary Browne, while this arrangement evidenced the popular distrust of the executive in favor of the primacy of a r epresentative legislature, the c ity government, as a corporate body, still maintained significant Legislature exe rted an enormous amount of control over the City it self until incorporation. Steffen, The Mechanics of Baltimore p. 126. 45 Steffen, The Mechanics of Baltimore 122. 46 Scharf, The Chronicles of Baltimore 267, 280. Scharf places the first attempt to petit ion the Legislature for municipal incorporation in 1783, while S teffen places it in 1782. Steffen notes that the first petition of 1782, which caused an enormous outcry among the citizenry, was lost and but that Scharf, a nineteenth century historian writ ing The Chronicles of Baltimore 267; Steffen, The Mechanics of Baltimore 123. 47 Steffen, The Mechanics of Baltimore 127. 48 Browne, Baltimore in the Nation 38; Steffen, The Mechanics of Ba ltimore 139 140.

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50 power. This was primarily due to the 1796 Charter granted by the Maryland Legislatu re which gave the c ity broad powers to provide for the safety, health, and welfare of the town. 49 Seemingly overnight, Baltimore had emerged as a major port city and a prime engine of ec onomic development for the new r epublic. However, as the new century arrived, the young n ation was forced to navigate European power struggles played out in the upheaval of the various Napoleonic Wars. For much of his administration, President Jefferson attempted to chart a course of neutrality, aided in part by Napoleon crowning himself Empe ror and thus finally severing the republican ideological ties between the former French Republic and the Jeffersonians. 50 However, maintainin g neutrality while the major European powers battled proved to have disastrous results for both the Jefferson admin istration and the United States. The British naval victory over the French and Spanish fleets at Trafalgar in October of 1805 and over the European continent while the British established supremacy over the Atlantic. 51 Napoleon applied his Continental System, forbidding any trade between the French controlled Continent and Britain. In return, Britain dictated in 1806 that all neutral countries were prohibite d from trading with France or any of her colonies. 52 Further, the British sent the Royal Navy to all French controlled harbors to blockade French ships in port. 53 While the British maintained naval superiority, such an extensive and ambitious blockade sign ificantly taxed the 49 Browne, Baltimore in the Nation Incorporate the inhabitants thereof 1796, Ch. 68, The General Public and Statutory and Public Local Law of the State of Mar yland, 1692 1839 V ol. II, ed. Clement Dorsey, 1396. 50 Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (W .W. Norton: New York, 2005), 108. 51 Wilentz, The Rise of American Democracy 130. 52 Wilentz, The Rise of American Democracy 130. 53 David Gates, The Napoleonic Wars, 1803 1815 (New York: Arnold, 1997), 38 39.

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51 fleet both in wear and tear to the vessels themselves and more importantly in terms of manpower. 54 Given the harsh duty and low pay, many sailors deserted the fleet, especially those who could make their way to the United States. 55 In s hort order, the Royal Navy found itself often without full crews. 56 As a result, the Royal Navy began to stop and board U.S. warships looking for British deserters, including the well known incident in which one of its warships fired on the U.S.S. Chesapea ke after it refused to submit to a search. The American public was outraged upon learning of this incident which killed three U.S. sailors and wounded eighteen others. 57 The combination of the British trade prohibition, coupled with incidents similar to that involving the Chesapeake, pushed Jefferson to take action. In 1807, Jefferson proposed the first in a series of embargo acts designed to punish the British economically by outlawing the U.S. shipping trade with all foreign nations. 58 As Baltimore pro fited handsomely from foreign trade, the withdrawal of the U.S. from intern ational markets devastated the c ity. For a town so dependent on international trade, the embargo truly seemed an overreaction. 59 Certainly, the embargo did have some unforeseen lon g term results, the most significant of which was the turn toward industry necessitated by the closure of foreign markets. By the end of the War of 1812, 54 Gates, The Napoleonic Wars 39 40. 55 Gates, The Napoleonic Wars 41 42. With respect to the low wages, Gates notes that sailors serving as merchantmen could make up to five times as much as sailors in the Royal Navy. 56 Gates, The Napoleonic Wars 41. 57 Wilentz, The Rise of American Democracy 130. 58 Wilentz, The Rise of American Democracy 131. 59 Browne, Baltimore in the Nation 52.

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52 Baltimore had begun to diversif y its economy, evidenced by the establishment of three large textile m ills between the 1807 embargo and 1812. 60 Following the end of the War in 1815, Baltimore attracted record numbers of new residents seeking to take part in the anticipated post w ar prosperity. 61 It was during this era that John Barron and John Craig purch ased their wharf. The end of the War of 1812 was expected to finally return Baltimore to the prosperity it had earlier enjoyed. Peace with Britain w ould allow for a full resumption of commerce and Barron and Craig likely sought to profit from this increa sed trade. Their timing could not have been worse. This anticipated prosperity did not materialize as the maritime trade upon which Baltimore had become dependent had wth slowed considerably and it began a slow decline both measured against its own prior growth, as well as against that of other U.S. port cities. 62 Indeed the entire nation faced economic problems as a result of the end of the War. Gary Browne argues tha t these problems occurred as the U.S. economy in general faced three major obstacles at this time: the exclusion of U.S. goods and shipping from the expansive British colonial trade; increased competition from European competitors no longer distracted by w ar; and the flooding of the U.S. market with European manufactured products that had been stockpiled during the war. 63 Compounding the national economic crisis, Baltimore was hit with other unique crises which together spelled economic disaster. First, Baltimore in particular suffered greatly from the 60 Browne, Baltimore in the Nation 55. 61 Browne, Baltimore in the Nation 91. 62 Gary L. Law, Society, and Politics in Early Maryland ed. A. Land, L.G. Car r, and E. Papenfuse (Baltimore: Johns Hopkins University P ress, 1977): 212. 63 Browne, Baltimore in the Nation 70.

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53 significant reduction in trade from the Caribbean. After the War of 18 12, this trade did not again reach its pre economy. 64 Baltimore was particularly affected by these conditions because its trade with the West Indies, which had provided the impetus for much of its growth, never recovered following the war. 65 Second, the post war years exposed the inadequacy of the currency used in transactions between upcountry farmers and Baltimore merchants. Following the war, these timore banks stopped accepting payment in notes issued by western Maryland banks. Baltimore merchants did continue to accept these notes until 1819 when merchants refused to transact further business until all outstanding debts were settled. 66 This proved quite impossible, and with the merchants themselves falling in debt to their overseas suppliers, the merchants allowed their buyers to pay on credit payable in exchangeable goods or commodities instead of upcountry bank notes. This situation was untenabl e for both the farmers and the merchants. Both were victims of an inadequate currency medium. 67 Third, the local banking system proved unable to cope with these problems and could not extend credit to assist merchants suffering with the loss of markets c aused by the end of the war. The requisite specie reserves simply were not available. 68 These problems continued until the banks began their collapse, which culminated in the Panic of 1819. This collapse was accelerated in Baltimore by fraud committed by a number of Baltimore bankers and merchants. The most notorious was the embezzlement of funds from the Baltimore branch of the S econd 64 Browne, Baltimore in the Nation 71. 65 Browne, Baltimore in the Nation 70 71. 66 Browne, Baltimore in the Nation 71. 67 Browne, Baltimore in the Nation 72. 68 Browne, Baltimore in the Nation 72.

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54 largest mercantile companie s, Smith and Buchanan. 69 Buchanan, along with the bank cashier, James McCulloh, and numerous associates including bankers at the Baltimore City Bank and the Union Bank of Maryland all drained their banks by making numerous unsecured loans for themselves an d their friends. Most commonly, they used this money to buy stock in the Bank of the United States in their own names. 70 Word of these activities spread and by early 1819 many Baltimoreans had begun demanding payment of their accounts in specie. However, it was too late for most as the banks began to collapse in March. 71 By July of 1819 approximately one employment. 72 Parenthetically, it appears that both John Craig and hi s friend, Luke Tiernan, were the beneficiaries of at least one of these improper loans. On June 12, 1818, the bank discounted a note drawn by a prime conspirator, local merchant Lemuel Taylor, in favor of Luke Tiernan and John Craig in the amount of $2,33 3.34. This note was discovered during the subsequent criminal investigation as one of many that were personally discounted and approved by the branch directors without the approval of the Board of Directors. 73 While the Panic of 1819 was a nationwide phen omenon, the malfeasance in the Baltimore banking community 69 Browne, Baltimore in the Nation 74. 70 Browne, Baltimore in the Nation 74; Robert E. Shalhope, The Baltimore Bank Riot: Political Upheaval in Antebellum Maryland (Urbana, Ill.: Universi ty of Illinois Press, 2009), 14. 71 Browne, Baltimore in the Nation 74. 72 Maryland Historical Magazine Vol. 102, No. 1 (Spring 2007): 596 97; See also North American Review V ol. 20, Issue 46 (January 1825): 118, which discussed the overextension of th e bank and losses to stockholders which began in 1818 and ruined Baltimore for years; Gary Brown, Baltimore in the Nation 76. 73 An Exhibit of the Losses Sustained at the Office of Discount and Deposit Baltimore, under the Administration of James A. Bucha Office at Baltimore, in Pursuance of an Order from the President and Directors of the Bank of the United States, to which is appended a Report of the Conspiracy Cases, tried at Hartford County Court in Maryland (Balt imore: Thomas Murphy, 1823), 14 (Schedule H); Browne, Baltimore in the Nation 75.

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55 ensured that it hit Baltimore earlier. 74 Finally, to add to the economic catastrophe, in August of 1819, yellow fever broke out in Fell s Point and over the next two months 350 people died of the d isease. 75 In respo nse, on February 10, 1820, the c ity passed an Ordinance forming a board of health, including other measures, to deal with a quarantine at the port of Baltimore. 76 Wealthier Baltimoreans relocated to the Maryland countryside, leaving the rest of the population behind to suffer through the epidemic. 77 comprised the wharf. 78 Howeve r, as alleged in the Court record ultimately compiled and sent to the Supreme Court, while the deed was executed and recorded in 1815, Barron and Craig alleged in the trial court that they jointly had e said deed, and been in possession thereof from the time of said purchase, continually, until the 79 While it is unclear exactly when Barron and Craig purchased the wharf, it is clear is that they quickly encountered problems By September of 1817 their wharf was advertised for sale by auction. 80 By 1828, both Baron and Craig were dead, leaving only their creditors disappointed by the time th e Supreme Court disposed of the claim in 1833 74 Browne, Baltimore in the Nation 74. 75 Rockma 597. 76 February 11, 1820 Baltimore Patr iot 77 Rockma 597. 78 MDLandrec.net, 1815, Baltimore County Court (Land Records) [MSA CE 66 184] WG Book No. 134: 474 ( accessed 2/4/08 ) 79 Barron v. Mayor of Baltimore 32 U.S. 243 (1833) Transcript of Record, File Date: July 1, 1831, 31 pp., U.S. Supreme Court Records and Briefs, 1832 1978, Thompson Gale, p. 11 and Maryland State Archives SC 2221 4 20, 182 1833 (hereinafter referred to as Barron Transcript) 80 Baltimore Patriot September 26, 1817, Volume X, Issue 225, Page 3

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56 Barron, Craig, and Tiernan While the holding of Barron is known to many students of U.S. Constitutional History, little is known of Barron himself and the exact circumstances which gave rise to the claim. In fact, upon closer examination, it becomes apparent that John Barron w as likely t he junior partner. John Craig was actually of much higher standing in the community both in terms of possession of property and connections Further, neither Barron nor Craig appears to be the catalyst for the decisions that ultimately led to the famous Sup reme Court decision that distinction belong ing t o successful Baltimore merchant Luke Tiernan. In fact, the actual name of the case that went before the Supreme Court was not Barron v. Baltimore but John Barron, Survivor of John Craig, for the use of Luk e Tiernan, Executor of John Craig v. The Mayor and City Council of Baltimore 81 Tiernan, incidentally, outlived both Craig and Barron and was the only one still alive when the case finally reached the Supreme Court in 1833. As we will see, Tiernan was muc Barron began to lose money on the wharf, they looked to Tiernan for help and ultimately became hopelessly indebted to him. Who, then, was Luke Tiernan? Luke Tiernan immigrated to Maryland from Ireland, arriving originally in Hagerstown Maryland in 1783 and later moving to Baltimore in 1795. 82 Once there, Tiernan distinguished himself as a successful merchant and became a well respected member of the business and civic 81 John Barron, Survivor of John Craig, for the use of Luke Tiernan, Executor of John Craig v. The Mayor and City Council of Baltimore 32 U.S. 243 (1833). 82 Maryland Historical Magazine Volume 51 (1956) : 341, 343; Garitee, 67; Thomas Spalding, The Premier See: A History of the Archdiocese of Baltimore, 1789 1989 (Baltimore: Johns Hopk ins University Press, 1989), 29; Whitman H. Ridgway, Community Leadership in Maryland, 1790 1840: A Comparative Analysis of Power in Society (Chapel Hill: University of North Carolina Press, 1979), The American Catholic Historical Researches Vol. 12 (Oct. 1895), 189, 192. There is a discrepancy regarding the date Tiernan moved to Baltimore from Hagerstown. Garitee places it during 1790 while Spalding, Ridgway, and C.B. Tiernan all contend that the move occurred in 1795.

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57 community. 83 Tiernan is credited as the first person to connect Baltimore with Liverpool as a commission merchant. 84 being named a director of the Union Bank of Maryland (along with future U.S. Su preme Court Chief Justice Roger Taney), the Athenian Society, and the Chesapeake Insurance Company He was also a manager of the Baltimore and Frederick Town Turnpike Company, treasurer of the Maryland Auxiliary Society for the Colonization of Free People s of Color of the U.S., and, ironically, a member of the Baltimore city council. 85 Tiernan quickly rose to elite status in Baltimore and took advantage of the many responsibil ities and benefits afforded to a man of his standing For example, Tiernan serve d as a primary contributor for building of the Cathedral of the Assumption, the first Catholic Cathedral in the United States, dedicated in 1821. 86 Similarly, Tiernan had earned political influence. Tiernan, along with a group of six other prominent Balti moreans including his attorney David Hoffman, convinced then President John Quincy Adams to accept an invitation to Baltimore. They had enough clout to convince Adams to remain an extra day in Baltimore due to the intervening funeral of Revolutionary War veteran, 83 Maryland Historical Magazine Vol. 71 (Fall 1976) : 334, 346. 84 Spalding, The Premier See 29; Tierna 189, 192. 85 (Baltimore: B.W. Sower & Co., 1812), 19, 23 24, 29 30, and 31; Baltimore Directory for 1824 (Baltimor e: Richard Matchett, 1824), 363, 365; Baltimore American and Daily Advertiser Maryland Hi storical Magazine Vol. 102, No. 1 (Spring 2007): 572, 593. However, it appears that Tiernan was not on the City Council when the drainage decisions were made as he is listed in the 1812 City Directory as a member of the First Branch of the City Council r epresenting the Third Ward, but does not appear thereafter. Directory for 1812 19 The Athenian Society was formally incorporated in 1811 as a result of the turn toward domestic manufacturing necessitated by the 1807 Embargo. The Society encouraged the manufacture of domestic textiles by building a warehouse which was used as a clearing house for the commission based sale of textiles. Browne, Baltimore in the Nation p. 55. 86 Spalding, The Premier See 86.

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58 John Eager Howard. 87 who used to sta y at his home whenever Clay visited Baltimore Clay reportedly re ferred to Tiernan 88 John Craig ma de his first appearance in the historical record with his marriage to Peggy 89 A John Craig wa s also naturalized as a U.S. citizen three years later i n the Baltimore County Court on June 13, 1804, although it cannot be confirmed that it is the same person as Baltimore had two residents by that name at the time. 90 Before purchasing the wharf, Craig, and to some extent Barron, had achieved some degree of success and had invested in real property in the Fell s Point district, aided by the ground rent lease financing plan pioneered by Ann Fell which had made obtaining land in the district possible without the investment of significant capital. 91 Craig obtain ed two contiguous parcels at the corner of Ann and George Streets, a prime location ap proximately two blocks west of his future wharf, one block north of the harbor, and one block east of the main thoroughfare of Market Street. Craig had obtained one parc el by way of deed in 1808 and one by way of a more traditional assignment in 1805. 92 There, Craig established 87 John Quincy Adams, Memoirs of John Quincy Adams, Comprising Portions of his Diary from 1795 to 1848 ed. Charles Fran c is (Philad elphia, 1875), 329, 333. 88 C.B. Tiernan, 191. 89 Maryland Marriages, 1801 1820 compiled by Robert Barnes (Baltimore, Maryland: Genealo gical Publishing Co., 1993), 39. 90 Maryland Naturalization Abstracts Vol. 1: Baltimore Count y and Baltimore City, 1784 1851, Compiled by Robert Oszakiewski (Family Line Publications, 1995). 91 P 162. 92 The southernmost parcel, at the corner of Ann and George, was deeded to Craig by John Lee on March 26, 1808 for $1,200.00. See MdLandRec.net, WG Book No. 97, p. 151 (1808). The parcel directly north of this was assigned by David Fisher to Craig on Octobe r 5, 1808, but was not originally recorded until 1829, following the lawsuit by Tiernan to foreclose a mortgage given to him by Craig and secured by the property. See Tiernan v. David and John Fisher, John Craig, and John H. Staples MSA S512 14 11311, Ac c. No.: 17,898 11483, location: 1/39/3/.

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59 himself as a grocer and storekeeper and apparently also resided at the same address, presumably upstairs or next door. 93 Within a few years, Craig seemed to prosper. Craig was active in the defense of Baltimore during the War of 1812, serving as a second corporal in the Fifth Regiment of the Maryland Cavalry Militia. In addition to his military service, Craig had the financial resources to supply material for the war effort. 94 In addition to his other contributions, Craig was part owner of a vessel that was sunk at the mouth of the harbor to thwart an expected British naval advance. 95 On June 2, 1807, John Barron, Jr., an Irish immigrant, was natu ralized as a U.S. citizen in Baltimore although evidence regarding the date of his arrival has not been discovered. 96 There is a discrepancy, however, as there appears to be two Baltimore residents named John Barron during this time period. For example, there is a John Barron who first appears in the historical in the local trade papers as an importer of foreign goods. 97 The Baltimore Price Current lists severa l entries between 1803 04 showing imports entered through the custom house and the name of the person as the consignee of the goods. Barron appears nine times individually as the consignee of goods from Havana, Guadeloupe, and Sisal, a seaport in the Yuca tan Peninsula. 93 Baltimore Directory and Citizens Register, for 1807 Warner and Hanna 1807). Craig is also listed as a grocer or shopkeeper at this address in the directories for 1808, 1810, 1816, 1 822 23, and 1824. 94 Baltimore City Archives, RG 22 (War of 1812 Records), MSA SC5458 45 20 1042 (RG 22, S1, Box 1) and MSA SC5458 45 20 0140 (RG 22, S1, Box 1). Interestingly, while other Baltimoreans are listed as supplying items like muskets, pikes, and large bolts, or services like performing iron work or carpentry, Craig is noted as supplying had with a value of $220.99. 95 Tiernan v. Resca 10 G. & J. 253 (Md. Ct. of App. 1838). 96 U.S. Naturalization Records Indexes, 1794 1995, District of Maryland, www.Ancestry.com (last accessed April 16, 2010). 97 Baltimore Directory for 1803 ed. Co rnelius William Stafford (Baltimore: Butler, 1803), 17. The Directory lists

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60 98 However, after a December 6, 1804 notation in the Baltimore Price Current there is no further record of Barron importing goods. 99 Beginning in 1807, Ba rron listed his occupation alternatively as a lumber merchant or cordwainer and for the next several years, between 1807 and 1816, changed his residence at least four times. 100 For example, the 1807 and 1808 Baltimore Directories list ed John Barron as a lum ed Th e 1810 Directory, however, listed en the similarity between the occupations and residences in the previous directories, the question arises as to whether this is John Barron listed in any Direct ory reference; however, there are two persons named John Barron who are naturalized as citizens in Baltimore: John Barron in August 26, 1797 and John Barron, Jr. in June 2, 1807. 101 The 1814 15 Directory list ed only John Barron as a cordwainer living at 56 18 Directory list ed only John Barron Jr. 102 In 1822 23, John Barron is listed as a 98 Baltimore Price Current (Baltimore, Maryland), 5 21 1803, 5 28 1 803, 6 25 1803, 7 30 1803, 10 29 1803, 11 12 1803, 7 19 18048 30 1804, and 12 6 1804 editions. 99 Baltimore Price Current 12 6 1804 editions. 100 ore: Warner and Hanna, 1807), 16. 101 U.S. Naturalization Records Indexes, 1794 1995 District of Maryland, www.Ancestry.com (last accessed April 16, 2010). Maryland Naturalization Abstracts, Vol. 1: Baltimore County and Baltimore City, 1784 1851, Compiled by Robert Oszakiewski (Fami ly Line Publications, 1995), 19. 102 16; (Baltimore, 1808), 16; The Baltimore Directory for 1810 William Fry (Bal timore: G. Dobin and Murphy, 1810), 29; The Baltimore Directory and Register for 1814 15 The Baltimore Directory for 1817 18 (Balt imore: James Kennedy, 1817), 12; See also (Bal timore: B.W. Sower & Co., 1812), 9.

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61 Further, it listed 103 The next year, in th e 1824 Directory, John Barron, J the same address. 104 However the 1810 Maryland Census listed both a John Barron and John Barron Jr. as residents of Baltimore County. 105 What is certain, however, is that John Barron, Jr is the indi vidual who partnered with John Craig and who wa s the subject of the famous case bearing his name. Barron, like Craig, also managed to invest in real property in Fells Point, purchasing an assignment, on July 18, 1807, of property at the corner of Ann and Fleet Streets (the same property Barron assigns t o Craig in 1809), at a term of ninety nine years, renewable forever from John Boardley for $275.00 plus $5.00 per year rent. 106 One year later, on June 18, 1808, Barron also received a deed from Jacob Giles f or property located on the southeast corner of Wilkes and Washington Streets for $835.00. 107 Where Craig and Barron met, h ow long they knew each other, and the circumstances of their relationship are unknown. What is evident from the historical record is that in 1809, John Barron Jr. executed and recorded an assignment of real property at the corner of Ann and Fleet Streets in Fells Point to John Craig, which evidences the first record of their interaction. 108 103 The Baltimore Directory, for 1822 23 Compiled by C. Keenan (Baltimo re: Richard Matchett, 1822), 20. 104 (Baltimo re: Richard Matchett, 1824), 19. 105 Maryland 1810 Census, Computer Index, Compiled by Ronald V. Jackson (Accelerated Indexing Systems, Utah, 1973 ), 5. 106 Boardley to Barron Assignment, July 18, 1807, MdLandRe c.net, MSA WG Book No. 95: 108. 107 Giles to Barron Deed, June 18, 1808, MdL andRec.net MSA WG, Book 99: 299. 108 MDLandrec.net, 1809, Baltimore County Court (Land Records) [MSA CE 66 154] WG Book 104: 349 ( accessed 2/10/08 )

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62 Because Barron and very possibly Craig both cam e to the United States as immigrants, presumably without much financial backing, the question of how they ever came to purchase a deep water wharf arises. A possible explanation may be had by looking at the example of Robert Oliver who immigrated penniles s to Baltimore in 1783 from Ireland at the age of twenty six. Within twenty five years, Oliver had prospered as a merchant and had become a millionaire and one of the richest and most successful men in Baltimore. 109 Oliver biographer Stuart Weems Bruchey e ncountered a similar question when he investigated how a poor immigrant obtained the initial capital to begin his successful career. Bruchey set forth three possible explanations for 783 1785 and which contribute labor to the partnership if Simm would provide the capital. 110 If we consider this first scenario, Barron would likely have been the junior partner as he seems to have access to less capital than Craig at the time they purchased the wharf The second scenario, Bruchey argued, had Oliver and Simm having access to foreign credit that would have allowed them to trade under their own names and accounts. Bruchey argues this was merchants to argues that Oliver and Simm could have accumulated capital from commissions until such time as they saved enough to import goods on their own account. 111 While either of these scenarios may have been possible immediately post Independence, it appears unlikely that British 109 Bruchey, Robert Oliver 19, 52. 110 Bruchey, Robert Oliver 52. 111 Bruchey, Robert Oliver 52 53.

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63 merchants would have been so generous when Barron and Craig began business, in the immediate aftermath of the War of 1812. 112 It appe ars most likely that Craig was the partner with access to greater capital and that Barron likely entered the partnership with either a smaller infusion of funds or an agreement to provide labor. In 1815, Craig would have had access to capital not only fro m the ownership of during the War, especially in Baltimore. Historically privateering, or the act of legally sanctioned piracy, arose as a result of the desir e of private merchants to seek redress for piracy. While the sovereign was not concerned with matters of individual redress, the seas turned chaotic as these private wars multiplied. In an attempt to give the state a degree of control over these actions, licenses were issued by Mediterranean city states beginning in the twelfth century to give legal sanction to those acts of redress deemed permissible and to attempt to draw a line between legal redress, or privateering, and extralegal revenge, or piracy. 113 This model was extended into the new world with particular vigor by the English, who found licensing private ships to raid the Spanish a quicker and more profitable enterprise than government sponsored colonies. 114 Privateering also allowed the English to maintain an Atlantic presence during the early exploration of the Americas. The American colonies continued this tradition into the Revolution and following Independence during the 1798 1800 undeclared naval war with France. 115 At the same time, the U.S. also suffered from privateering during the lull in warfare 112 While Barron and Cr aig negotiated a deed to the wharf property in 1814 15, they alleged in the trial court record re the date noted in the deed. See Barron Transcript, 338 ( 11). 113 Gar itee, 3. 114 Garitee, 5. 115 Garitee, 17, 25 26.

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64 between the English and French, which ultimately contributed to the outbreak of the War of 1812 when U.S. privateering resumed in earnest in order to compete with the mighty British Navy. 116 Balti more ship owners, merchants, and craftsmen quickly received privateering commissions and outfitted their ships for raids. Whether for profit, a sense of republican patriotism, or an opportunity to get even with the British for their losses due to their ra iding of Baltimorean shipping, the Baltimore maritime community quickly delivered a flotilla of ships for the fight. 117 While many of the ships were owned by t he Baltimore elite, for example Luke Tiernan f inanced a ship with three other investors, many vess els were outfitted by a larger collection of men of more modest means, like John Craig. 118 Craig invested in several privateering vessels during the war, including the Sarah Ann the Saranac and the Chasseur 119 Like many ships engaged in privateering durin g the war, Craig invested in these endeavors with numerous other partners. His most successful venture, the Chasseur had upwards of eighteen owners at any one time. 120 invested in his first ship, the Sarah Ann, along with three others. The Sarah Ann received her commission on July 27, 1812 but was soon captured by the British only a few months later on September 13, 1812. 121 Undeterred, and whether of financial necessity or acumen, Craig then inve sted in the Chasseur with upwards of seventeen other partners, receiving the commission on 116 Garitee, 47 48. 117 Garitee, 48 49. 118 Garitee, Private Navy 67; J.P Cranwell and W.B. Crane, Men of Marque: A History of Private Armed Vessels out of Baltimore During the War of 1812 (N ew York: W.W. Norton, 1940), 381. 119 Cranwell and Crane, Men of Marque 408. 120 Cranwell and Crane, Men of Marque 376. 121 Cranwell and Crane, Men of Marque 393.

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65 December 24, 1813. 122 The decision to reinvest in the privateering business was a gamble, but Chasseur was one of the most successful and storied privateering vessels of the war. Captained by Thomas Boyle, the Chasseur valiantly battled the British and brought in an estimated total haul of approximately $221,000.00 for her many owners. 123 Craig reinvested some of his pro fits in the less successful Saranac which was commissioned on January 3, 1815. 124 In addition to these three vessels, Craig also purchased an ownership interest in the privateering vessel, the Swallow, along with three others on January 15, 1813 which was later ordered by the U.S. Government to be sunk to protect Baltimore Harbor from the British advance. 125 Clearly, Craig had enough financial resources to purchase shares of at least four vessels between 1812 and 1815. While not all his ventures were succes sful, his investment in the Chasseur alone would have been sufficient to fund his purchase of the wharf. between the British and the Americans in 1815. While most b elieved that the end of the war would bring a return of prosperity, it would be years before Baltimore recovered. British goods resumed their flow into the American market and the Maryland industry that had begun out of necessity from the Jeffersonian emb argo and recent war found itself struggling with unwelcome competition. 126 To compound these problems, the end of the Napoleonic W ars after 1815 also 122 Cranwell and Crane, Men of Marque 376. 123 Garitee, 273. 124 Cranwell and Crane, Men of Marque 393 394. 125 10 G. & J. 217 (MD 1838). The other o wners of the Swallow were John Hanna, Charles Malloy, and Dutton Williams. Hanna had also invested in the privateer, Daedalus, while Baltimore merchant Williams invested in the Sarah Ann, along with Craig. See Garitee, 257, 2 59. 126 Robert J. Brugger, Maryland: A Middle Temperament (Baltim ore: Johns Hopkins Press, 1988) p. 196.

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66 meant that Maryland farmers had to reckon with falling prices due to European competitors. 127 The Baltimore maritime economy was also hurt by the full resumption of French and British trade in the Caribbean. 128 While peace on the continent caused economic problems for the United States, it also presented opportunities for many aggressive Baltimoreans. After dri ving Napoleonic forces from Spain, the crown sought to reassert its control over its South American possessions that had used the turmoil to grasp for independence. 129 Seeking to supplement the navy much in the same way the United States had during the War of 1812, these former colonies turned to privateering. Along with New Orleans, Baltimore proved well equipped to meet the need. 130 Although privateering against a country with which the United States was at peace was against U.S. neutrality laws, the chanc e for wealth proved too great for many Baltimoreans to resist, especially in such precarious economic times. 131 Historians have estimated that it cost approximately $40,000.00 on average to fully outfit a privateering vessel during the War of 1812. 132 Historian David Head notes that this figure would place privateering out of reach for most lower or working class Baltimoreans, except to the extent that they served on such a vessel. Rather, such an endeavor was necessarily restricted to the upper clas s or to merchants and others of the middle classes who could pool resources. Head notes that two of these merchants were 127 Brugger, 196. 128 Brugger, 196. 129 1820 Maryland Historical Ma gazine Vol. 103, No. 3 (Fall 2008): 269. 130 Head, 1820 269. 131 1820 270. 132 eafarers, Privateering, and the South American Revolutions, 1816 1820 271. For this proposition, Head is citing Jerome Garitee, 111 112.

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67 John Craig and John Barron Jr. who invested in the privateer Paz which was also known as the Patriota, along with a third investor wh 133 during the war were likely used to help acquire the wharf Craig, and now Barron, continued t he privateering endeavors after the war probably to help make the required installment payments as they c ould not buy the wharf for a single lump sum Barron and Craig purchased the three lots which comprised the wharf property on December 1, 1815 from Frederick Mackubin of Ann Arundel County, Maryland, receiving owners hip as tenants in common for payment of $15,000.00. 134 Barron and Craig agreed to make three payments of $5,000.00, the first due in nine months, the second due in twelve months, and the third due in eighteen months. 135 Mackubin and his wife Mary deeded the property to Barron and Craig on December 8, 1815. In order to secure payment, on December 14, 1815, Barron and Craig gave Mackubin a mortgage on the wharf property. 136 While Barron and Craig were able to make the first payment due on or about September of 1816, they quickly fell in arrears on the second note due on or about December of 1816, and looked to Tiernan for assistance. 137 On January 7, 1817, Craig and Barron borrowed $15,000.00 from Tiernan and his partner Kennedy Owen, then trading under the firm name of Luke Tiernan and Company. To secure the loan Craig and Barron gave Tiernan a mortgage on the wharf property. 138 In an attempt to try to save 133 Head, 1820 273. 134 Mackubin Deed, December 1, 1815 MdLandRec.net, MSA W G, Book 134: 474. 135 James Mackubin, Administrator of Frederick Mackubin v. John Craig and John Barron Jr. (Baltimore County Court, 1818), Maryland State Archives, MSA S512 4 3602, Acc. No. 17,898 3495 1/2, Location: 1/36/3/, (September 16, 1818 Bill of Complaint), 1. 136 Mackubin v. Craig and Barron Jr. (December 14, 1815 Mortgage). 137 Mackubin v. Craig and Barron Jr. (September 16, 1818 Bill of Complaint), 2. 138 Mackubin v. Craig and Barron (Januar y 7, 1817 Tiernan Mortgage), 1.

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68 the wharf, Craig beg an to receive regular advances from Tiernan and, according to a ledger filed in the Mac kubin litigation, by the eve of the lawsuit filed against the Mayor and City Council five years later, Craig was indebted to Tiernan the amount of $7,126.74. 139 Two months after this loan from Tiernan, on March 2, 1817, the Mackubins agreed to extend the ti me for the second payment, with Barron and Craig executing a new note to James Mackubin, restating the original obligation of $5,000.00 plus $225.00 and interest to be paid in six months, on or about September, 1817. 140 While Barron and Craig were att empting to satisfy the notes given to purchase the wharf, the actions of the c ity in trying to remedy the drainage situation in Fell s Point were exacerbating an already dire situation. When Barron and Craig purchased the commercial wharf in the Fell s Po int district extending into the Patapsco River, it was noted by many to have the deepest water and one of the best locations in the city. 141 However, not only did Barron and Craig purchase the wharf during bleak economic times for the maritime trade in Balt imore, they also had to c ontend with the actions of the c ity which finally began to take measures to address the serious water and drainage issues that had plagued Baltimore since its founding. As previously mentioned, Baltimore, as a city on the water, had to continually contend with water and the accompanying sediment and debris that flowed to the harbor from its neighboring hills, often right through the center of the city. Much of this water drained either through streams that ran directly into the h arbor or was diverted through man made canals, albeit with limited capacity. The biggest 139 Mackubin v. Craig and Barron (February 1822 Ledger). 140 Mackubin v. Craig and Barron (September 16, 1818 Bill of Complaint), 2. The note was between Barron and Craig and James Mackubin, the administrator of the estate of Frederick Mackubin following his death on December 13, 1816. 141 pleadings a s Plaintiffs in the trial court. See Barron Transcript, 340 ( 15).

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69 problem with this drainage plan was that many of the streams did not extend cleanly to the harbor, thus dumping water and sediment into the streets which would eventu ally flow unevenly to the harbor. Further, those streams that did connect with the harbor were little better as they ran haphazardly through private lots and over public streets, as can be seen in the plat map (Figure 3 1) of this section of Baltimore, en tered into evidence at the Barron lower court trial. 142 Prior to the War of 1812, most of these channels ran through the c ity according to their natural course. For example, as can be seen from the map, a large stream ran through the district from the north east, bisecting the district and flowing in to the harbor in the southeast section, noted on the m ity c ouncil attempted to lessen the flow of water through the c ity and diverted this stream at Pratt Street to an unimproved lot bounded by Gough Street to the south, Pratt Street to the North, Caroline Street to the west, and Bond Street to the nd was nearly overflowing, the c ity extended Pratt Street which caused the water which used to run into Brick Pond to simply cascade down Market Street, apparently a large thoroughfare, and into the 143 As a result of drainage issues, which were not limited to the Brick Pond pr oblem, the c ity began to build street dams to stem the flow of water, startin g in 1813. Interestingly, the c ity relied on building more dams exclusively and ignored advice from its own hired surveyors, one of whom later became a witness for Craig and Barr on, who advised that the water could be diverted to existing stable creeks by digging canals. From planning beginning in 1813 to the final d am in 1822, the c ity built dams and dug trenches to addr ess the drainage problem. The 142 BALTIMORE COUNTY COURT (Plats) 1822 1833 Plat of Fells Point from Barron v. Baltimore MSA C2042 168, MdHR 19,957 244, B5/9/2 143 Barron Transcript, 14; Plat of Fells Point.

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70 c er from the west side of Market Street completely and redirected in first down Ann Street. While this redirection would have sent most of the flow into the harbor Craig an d ity continued to build more dams. These dams resulted in a funneling of the water that previously flowed separately through the entire Fell s Point district directly into s wharf. 144 Since its founding, Baltimore had sought ways to keep the harbor clear of sediment. Indeed, in 1783, before Baltimore was even incorporated as a separate municipality with any semblance of local government, the State of Maryland created a five m ember Board of Wardens for the upkeep of Baltimore Harbor. 145 Looking to the engineering feats of the Dutch in keeping the Amsterdam harbor cl ear, the c from the harbor floor. 146 The c ity hired Captain Stephen Colver and his mud machine design he patented in 1798. Similar to Dutch models, this machine was powered by two or three horses which would provide the power to operate a large scoop capable of raising twenty five cubic feet of sediment on each lift. 147 Likely recognizing that the dredging was an inesca pable routine expenditure, the c ity ultimately purchased the machine from Co l ver in 1806. 148 In 1811, the c ity purchased a second mud machine, slightly smaller than the first. The first machin e was too large 144 Barron Transcript, 11 16; Plat of Fells Point. 145 Seth Rockman, Scraping By: Wage Labor, Slavery, and Survival in Early Baltimore (Baltimore: Johns Hopkins University Press, 2009), 81. 146 Rockman, Scraping By 82. 147 Rockman, Scraping By 83; Joseph Gary Norman, Eighteenth Century Wharf Construction in Baltimore, Maryland (M.A. Thesis, An thropology, William and Mary, 1987), 93. 148 Rockman, Scraping By 83.

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71 to work in between the many private wharfs that extended into the harbor and by 1814, the first mud machine was out of commission. 149 Initially, Barron and Craig appear to have sought to mitigate the damages caused by the sediment There i s no evidence that Barron and Craig used the mud machine to try to deepen the harbor floor near the wharf. However, t hey did attempt to lengthen the wharf deeper into the harbor and in April of 1816 received permission by the c ity to do so 150 However, the c ity kept paving and grading the streets in Fell s Point which had the desired effect, as far as the c ity was concerned, of funneling all the water in one main direction. For example, in April of 1817, the c ity passed an Ordinance for paving Dulaney St. from Bond St. eastward. 151 At the same time, it passed an Ordinance to pave Wilkes Street, Washington Street, Castle Alley, and County Street, also requiring the placement of an embankment on Gough Street to convey water through County Street into the cove, and mandated the placement of other banks and abutments to preserve navigation. 152 although the wharf apparently was not ultimately successfully auctioned until several years later. 153 In the meantime, Barron and Craig sought to mitigate their damages by renting out the space between the two piers to James Beacham in 1820 for $300.00 to use as a shipyard. Later, in 1825, the entire wharf property, with the exception of tw o buildings, was rented for $700.00 149 Norman, Eighteenth Century Wharf Construction in Baltimore, Maryland 94 95. 150 Baltimore Patriot April 6, 1816, Volume VII, Issue 84, Page 2. 151 Baltimore Patriot April 12, 1817 152 Baltimore Patriot April 12, 1817. 153 Baltimore Patriot September 26, 1817, Volume X, Issue 225, Page 3.

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72 for the year. 154 Adding to the sediment problem, Mackubin had finally refused to forbear any longer for payment, despite the January, 1817 loan Craig and Barron received from Tiernan, and filed suit in Baltimore County Co urt on September 16, 1818. 155 The Mackubin lawsuit reveals interesting facts about the parties. For example, two days after the filing of the Mackubin suit, Barron deeded the property he owned at the corner of Wilkes and Washington Streets to the firm of S chley and Schroeder to satisfy existing debt of $880.00, indicating that Barron had trouble meeting the demands of numerous creditors. 156 Similarly, Craig was also facing mounting pressure from his own creditors. On May 24, 1817, a James Colston filed suit against him for non payment for boat ordered built by Craig on June 2, 1815, presumably placed during a sunnier financial outlook. Interestingly, three of the attorneys who appeared for Barron and Craig in the Barron v. Baltimore litigation, David Hoffma n, Charles Mayer, and Peter Cruse, also appeared for Craig in the Colston suit. To defend against the lawsuit brought by Mackubin, attorney David Hoffman appeared on behalf of Craig and Barron. This choice was very likely made by Luke Tiernan as Hoffman knew Tiernan for some time and was a very successful and well recognized practitioner. After overruling his initial demurrer filed on behalf of Craig and Barron, Hoffman filed an Answer to 154 Barron Transcript, 26. It should be noted that by 1823, Barron and Craig no longer owned the wharf as Luke Tiernan had already purchased it at auct ion on January 17, 1822. 155 Mackubin v. Craig and Barron (September 16, 1818 Bill of Complaint). 156 1818 Barron/Schley Deed MdLandRec.net, WG Book 150: 236. This Deed provided that Barron could redeem the property if he repaid the $880.00 with interes t by September 5, 1819; however, there is no evidence that this ever happened. Parenthetically, co the Riot of 1812 on the offices of the Federal Republican which earned ictim of the attack. See Scharf, The Chronicles of Baltimore 313.

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73 the Bill of Complaint. 157 There, Hoffman did not attempt to raise d efenses that could somehow evade or defeat the claim. Rather, Hoffman echoed the economic problems facing Baltimore unprecedented difficulties and pecuniary embarrassm ents of the [commercial world the performance of which] is particularly oppressive in the c ity of Baltimore, these respondents 158 Hoffman did not contest a decree ordering a sale of the wharf property, but simply asked the court for as much time as possible before such a sale, possibly to allow for redemption by his clients or simply to allow time for the market to recover so that the property w ould draw a higher price. 159 Two weeks la ter, on February 23, 1820, Chancellor William Kilty of the Chancery Court issued a decree ordering Craig and Barron to pay Mackubin $10,225.00 (with interest on the $5,000.00 due from December 1, 1815, and $5,225.00 due from March 2, 1817) by April 25, 182 0 or the possible before a court ordered auction of the property. 160 Accordingly, in order to stave off the auction, on April 25, 1820, Craig, Barron, and Tiernan exe cuted a Bond in the amount of $2,111.00, which Hoffman filed and who also attested to the character and the large estate of Luke Tiernan. 161 157 Mackubin v. Craig and Barron (Hoffman Demurrer, undated). While the Demurr er is undated, we can place it in the litigation after the September 16, 1818 Bill of Complaint and the December 16, 1819 Order by the Chancellor Kilty which overruled the Demurrer and order the Defendants to answer the Bill of Complaint. 158 Mackubin v. Cra ig and Barron (February 7, 1820 Hoffman Answer). 159 Mackubin v. Craig and Barron (February 7, 1820 Hoffman Answer). 160 Mackubin v. Craig and Barron (February 23, 1820 Decree). 161 Mackubin v. Craig and Barron (April 25, 1820 Bond, filed May 2, 1820).

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74 As the debt to Tiernan mounted, Tiernan demanded further security in addition to the mortgage he al ready had on the wharf. O n December 4, 1820, in consideration of a $3,000.00 advance, Craig gave Tiernan a mortgage on the parcel at the corner of Ann and George Streets, which was also the location of his grocery business. 162 Meanwhile, Tiernan began to recover these debt wharf. On January 3, 1822, Tiernan wrote a letter to James Mackubin where he recognized that Craig owed in excess of $30,000.00 for the purchase and improvements to the w harf. 163 Tiernan was doubtful whether the wharf was worth anywhere near that amount. Tiernan further excused e has experienced heavy losses the last three years by Mercantile Insolvency and other transactions to a much greater amount than would pay all that well. With respec t to Barron, Tiernan quickly dismissed him and offered his own solution, suggested to Mr. Craig that if you make a sale of the wharf under the decree, that I would become the purchaser. . 164 Tiernan also possibly forecasts the Barron v. Baltimore litigation, stating that Craig has claims against the government for boats sunk during the war which he 162 Tie rnan v. Margaret Craig, Margaret Staples, John Craig, and Robert Craig MSA S512 14 11237; Craig Mortgage, MdLandRec.net, WG book 159: 713. This parcel appears to be the southern parcel directly on Ann and George, not the one to the north deeded to Craig in law John Staples. 163 Mackubin v. Craig and Barron (January 3, 1822 Letter from Tiernan to Mackubin). 164 Mackubin v. Craig and Barron (January 3, 1822 Letter from Tiernan to Mackubin).

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75 165 Finally, Tiernan asked for the sale to be postponed until March or April. 166 George Mackubin regarding the sale of the wharf. Hoffman advised Mackubin that Tiernan w ould purchase the wharf for the benefit of Craig and w ould pay off Mackubin in six months. your debt and vastly more that it will bring. Mr. Tiernan has always been a great friend of Craig, 167 response to these letters is unknown, the desired effect was achieved as two weeks later, on January 17, 1822, the wharf property was sold by auction to Luke Tiernan as the highest bidder for $16,000.00. 168 Additionally, as the debt owed to Mackubin did not exceed this amount, on February 15, 1822, Tiernan sought the approval of the court for an accounting to recover the difference. 169 suit against the Mayor and City Council of Baltimore for the damage to the wharf. On February 19, 1822, Walter Dorsey, Chief Judge of Baltimore County Court signed the Summons to the 165 With respect to the sunken vessels, Tiernan is apparently referring to the boats sunk in the harbor as a defensive maneuver to slow the British advance in the War of 1812. The lawsuit for reimbursement was eventually filed years later by Tiernan, as Crai 10 G. & J. 253 (Md. Ct. of App. 1838) and is discussed more fully in the Conclusion. 166 Mackubin v. Craig and Barron (January 3, 1822 Letter from Tiernan to Mackubin). 167 Mackubin v. Craig and Barron (J anuary 3, 1822 Letter from Hoffman to Mackubin). 168 Mackubin v. Craig and Barron (January 17, 1822 notation in file from R. Lemmon & Co., auctioneer). 169 Mackubin v. Craig and Barron (February 15, 1822 Petition by Tiernan).

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76 start of the famous case that would ultimately appear in the U.S. Supreme Court eleven years later. 170 As of the filing of the lawsuit against the Mayor and City Council for damage to the wharf, Tiernan was clearly in control of the litigation since Barron and Craig had sold or mortgaged all of their significant real property. For example, on November 15, 1822, Barron placed an advertisement in the Baltimore Patriot for his new rope store. Barron advertised that he had just received a quantity of Russian hemp, and he would take orders for cordage, under the supervision of a Mr. Chapman. Clearly, a craftsm an making rope under the supervision of another is a long way from his position as the co owner of a successful wharf and strongly suggests that Barron wa s forced to return to a trade that he likely practiced before his fleeting success. 171 Additionally, Ba rron wa s noted as having moved his residence from 10 George Street (near the wharf) in 1818 north to a row of apartments on Caroline Street by in 1824. 172 Meanwhile, Craig fared little better than his former partner and continued to rely on Tiernan for fina ncial support. For example, the decree in the suit brought against Craig in 1817 for non 1825, Chancellor Bland ordered Craig to pay Colston $3,664.45 with interes t from the date of the decree. 173 170 Barron Transcript, 4. 171 November 15, 1822 Baltimore Patriot 172 The Baltimore Directory for 1817 18 (Baltimore: James Kennedy, 1817), p. 12; for 1824 (Baltimo re: Richard Matchett, 1824), 19. 173 James Colston v. John Craig (Baltimore County Court, 1 817), MSA S512 9 7151, Acc. No. 17,898 7118 1/3, Location: 1/37/4/.

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77 executed a note where he acknowledg ed that as of that date he owed Tiernan $8,846.76. 174 Likely seeking to call in any debts owed to him that could help offset these losses, Craig filed suit against Thomas Cowart on February 13, 1826 seeking his share of profits from the sale of a schooner that he and Cowart had purchased together in 1823. While Craig obtained a judgment Craig v. Cowart in December of 1829 and succeeded in having t he court issue the appropriate writ in order to collect the judgment from Cowart 175 Clearly, by 1822, Tiernan was the only party who would have had the financial means to hire the legal team to bring this case. Given further his financial interest in want ing Barron and Craig to recover damages against the c ity, as he was properly secured and would recover any potential damages granted in the case, it is obvious that Tiernan was the person driving the litigation. The conclusion that Tiernan was the driving force behind the Barron litigation is also supported by his business dealings with persons other than Craig. For example, Tiernan did not make his money simply from his role as a dry goods merchant in Luke Tiernan & Company. 176 As a successful merchant, T iernan engaged in numerous business endeavors outside the import and export business. As always, Tiernan seemed to come out on top. 174 Luke Tiernan v. Margaret, John, and Robert Craig, Margaret Staples and the Estate of John Craig Baltimore City, Chancery Court, Recorded in Liber No. 114 12, Maryland State Archives, Ac cession No.: 17,898 11412 1/2, MSA S512 14 11237, Location 1/39/3/ (February 21, 1826 Note executed by Craig). 175 John Craig v. Thomas Cowart Baltimore County Court (Chancery), February 13, 1826. Maryland State Archives, Location: 02/15/11/061, MdHR No.: 40,200 645, MSA Citation: MSA C295 attorney, John Scott, sought (December 10, 1829) and was granted (January 6, 1830) a writ of Scire Facias which orders a judgment debtor to show cause as to why an unsatisfied judgment shoul d not be collected. The writ was used when a judgment was dormant for a period of time or, as was the case here, a new party like Tiernan as the executor of the estate was added. Sixth Edition (St. Paul, Minnesota: West Publishing Co., 1990), 1346. 176 The Baltimore Directory for 1810 William Fry (Baltimore: G. Dobin and Murphy, 1810), 177.

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78 Tiernan apparently supplemented his income by loaning money. He took numerous mortgages from Craig and Barron to secure th e various loans; however, these were not the only persons to which Tiernan loaned money. In the aptly titled case Tiernan v. Poor Tiernan filed suit in chancery court in 1822 to foreclose on a mortgage given to him by Dudley Poor, and his wife Deborah, t o secure repayment of a $600.00 debt. 177 Tiernan rented a house to Poor who had apparently fallen significantly in arrears. Tiernan placed a lien on personal property owned by Mr. Poor. In order to convince Tiernan to lift this lien, the Poors agreed to g ive Tiernan the subject mortgage on a lot of real property owned by Ms. Poor but deeded in trust and not 178 When the Poors failed to make payment within one year as agreed, Tiernan sued to foreclose in chancery court. Howev er, the chancery court held that the property could not be foreclosed as Ms. Poor had transferred the subject property into a trust with no power to alienate. 179 Court of Appeals. There, the co urt found it within its equitable powers to treat the transfer as a mortgage, even if it legally could not be considered as such, especially considering that Tiernan had given up his personal property lien to obtain the mortgage. 180 Very interestingly, the court considered Ms. Poor a femme sole for purposes of the property held in trust. Thus, she was 177 Tiernan v. Poor 1 G. & J. 216 (Md. Ct. of App., 1829). 178 Tiernan v. Poor 1 G. & J. at 218. 179 Tiernan v. Poor 1 G. & J. at 219. Deborah Poor received this property out of the estate of her father, John John Poor who were presumably their siblings or other close relations. The proper ty was to be held for the separate use of Deborah alone and was not to be subject to any debts incurred by Dudley Poor, apparently an early attempt at asset protection. 180 Tiernan v. Poor 1 G. & J. at 219.

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79 legally competent to give Tiernan a mortgage on the property, despite her status as a married woman and a femme covert 181 In another instance, Tiernan and his business partner and son in law, David Williamson acted as trustees for a woman seeking to keep personal assets out of the hands of her future husband. 182 woman would lose titl e to all her separate property upon marriage, with her husband gaining full control of her assets. 183 More importantly, these assets could be used to satisfy debts incurred by her husband. 184 In order to provide a degree of protection, Lawrence Friedman note s that many courts of equity had relaxed these rules by recognizing the validity of mechanisms like the establishment of trusts to shelter these assets. In Lowry v. Tiernan & Williamson this is exactly what occurred. 185 There, Sally Ann Dooris transferred U.S. Government stock worth $8,200.00 to Tiernan and Williamson before her marriage. The assignment provided that Tiernan would der to any future children following her death. In no circumstances was Tiernan to give any part of the proceeds or the principal to her husband. This Tiernan v. Poor. T he lawsuit was filed three years later when Sally Ann Lowry, now using surname, sought to use the funds that had recently matured to help her husband purchase a farm. 181 Tiernan v. Poor 1 G. & J. at 223. 182 David Willi 189. 183 Lawrence M. Friedman, A History of American Law 2nd Edition (New York: Simon and Schuster, 1985), 208 210. Friedman notes that the first of the marrie d until 1839 in Mississippi. 184 Friedman, A History of American Law 210. 185 Lowry v. Tiernan & Williamson 2 H. & G. 34 (Md. 1827).

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80 Taking their role to be akin to trustees of an irrevocable trust, Tiernan refused to return the proceeds. 186 Judge Archer, the same judge who would decide the Barron case in the trial court one year later and who ruled in favor of Tiernan in the Tiernan v. Poor case, ruled in favor of Tiernan and refused her plea, holding strictl y to the terms of the assignment, regardless of the 187 wharf, Tiernan assembled a prestigious legal team as the attorneys he hired, David Hoffman, Peter H. Cruse, Upton S. Heath, and Charles F. Mayer represented an elite sectio n of the Baltimore b ar. It should be noted, however, that these attorneys appeared at various times and at various points in the eleven year litigation and did not necessarily constitute a cohesive group that made legal decisions as a group, as is often s een in modern high profile litigation. David Hoffman, who had handled cases for Tiernan and Craig in the past, was not only well known in Baltimore, but was also considered a national legal figure Hoffman was best known as a professor who established hi s own law institute near Market Street in Fells Point in 1822 after teaching for several years under the authority of the University of Maryland. 188 institute trained many promine nt Baltimore attorneys and wa s unique as it relied upon a more forma l course of study as opposed to the attorney/apprentice model which was the usual 186 Lowry v. Tiernan & Williamson 2 H. & G. at 34. 187 Lowry v. Tiernan & Williamson 2 H. & G. at 39. This was not the only time Tiernan acted as a trustee. For example, in Pierce v. Tiernan, 10 G. & J. 253 (MD 1838), Tiernan acted as a trustee for the creditors of a William associates. 188 Journal of Legal Education (1982): 127, 130 31. Schaffer notes that, while Hoffman established his own independent institute, he technically remained under the umbrella of the University of Maryland for his entire teaching career from 1814 1843. There is a slight discrepancy as to the date his connection with the University as other accounts place Hoffman as a Professor at the University from 1817 1836. See J. Thomas S charf, History of Baltimore City and County from the Earliest Period to the Present Day (Philadelphia: J.B. Lippencott & Co., 1881), 714.

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81 custom 189 H offman was a proponent of the study of law as a natural science which required a more expansive and vigorous study than an apprentice in a law office would normall y receive. Hi s most famous work, A Course of Legal Study evidenced his belief that one must engage the great works of western thought and philosophy, including the Bible, in order to arrive at certain universal truths that all just legal systems would on e day share. 190 This work is credited as the first outline of law in the United States and was praised by Supreme Court Justice Joseph Story, university format a s other disciplines. 191 As we will see in the next chapter, Hoffman c ontested Given the composition of the lawyers assembled to handle the case, it is likely that David Hoffman was the significant ly involved in the selection of the other attorneys and in designing the strategy. 189 Maryland Historical Magazine Vo l. 89, No. 2 (Summer 1994): 133, 139; Friedman, A History of American Law 318 321. Friedman sought to establish law as a science co equal with other disciplines (Friedman, p. 321). While the Harvard experience is certainly true, I believe Friedman is erroneous in his he wanted to set forth a specific program which a student could follow a specific program of readings, from classics to case law, which woul d prepare him to practice. See David Hoffman, A Course of Legal Study; Respectfully Addressed to the Students of L aw in the United States (Baltimore: Coale and Maxwell, 1817). 190 H oward Schweber, "The Science of Legal Science: The Model N atural Sciences in Nineteenth Century American E ducation," Law and History Review Volume 17 Number 3 ( Fall 1999 ), at http://www.historycooperative.org/journals/lhr/17.3/schweber.html ( accessed July 9, 2011). See also Bill Sleeman, http://www.law.umaryland.edu/Marshall/Hoffman/influence.asp (accessed March 10, 2008 ) Additionally, trace the history of common law jurisprudence as it had developed in England. While it was recognized as trying to correct this deficiency, some were slightly critical of the work as impractical. Specifically, one review held that instruction for students embarking on legal study should of the First Part of the Institutes of the Law of England, or a Commentary upon Littl The North American Review Vol. 13, No. 33 (Oct., 1821): 255, 284, at http://www.jstor.org/stable/25109086 (accessed August 11, 2010). 191 Shaffer, Lectures, 1822 William Wiecek, and Paul Fink e l man, American Legal History: Cases and Materials (New York: Oxford University Press, 1991), 334.

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82 Princeton and studied law, ultimately spent less time in his legal practice and gained notoriety as a writer and journalist. Cruse served as editor of the Baltimore American from 1822 1832 as well as the Baltimore Patriot. Additionally, beginning in 1818 1819, Cruse became co publisher ore native John Pendleton Kennedy who, like Cruse, was also an attorney in addition to his literary pursuits. 192 The Red Book was a literary periodical that published the works of the Baltimore Delphian Club a group of prominent men, including the likes of Francis Scott Key and Attorney General William Wirt, who formed a literary society following the W ar of 1812. 193 While Cruse practiced law as his occupation, he largely shunned the drudgery of law and his fir st love was of literature and poetry. Cruse was replaced after the initial filing of the lawsuit and appears to have little influence afterwards. He passed away in 1832 from the effects of an epidemic of cholera that had broken out in Baltimore. 194 While the case was filed in 1822 by Peter H. Cruse, by the time it reached trial in 1828, Cruse had quickly been replaced with two additional attorneys, Upton S. Heath and Hugh D. Evans, with Heath appearing with Barron at the initial hearings. 195 Upton S. Heath was later appointed by President Van Buren to serve as a judge at the Federal District Court level, a position he held for fifteen years. Finally, Charles Mayer was a highly regarded Baltimore attorney who practiced for forty years in Baltimore and serve d one term as a Maryland State 192 Brantz Mayer, Baltimore: Past and Present (Baltimore: Richardson and Bennett, 1871), 295; Cyclopaedia of America Biography Vol. II, James Grant Wilson and John Fiske, Editors (New York: D. Appleton and Company, 1888) 23; Francis F. Beirne, The Amiable Baltimoreans 1st ed. (New York: Dutton, 1951), 357. 193 Kevin J. Hayes, Poe a nd the Printed Word (Cambrid ge University Press, 2000), 35 36. 194 Charles H. Bohner, John Pendleton Kennedy: Gentleman from Baltimore (Baltimore: Johns Hopkins Press, 1961), 36 37 195 Barron Transcript, 9 ( 334). See Rough Transcript, Mayor and City Council of Baltimore v. John Barron MSA SC 5458 58 13989.

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83 Senator 196 Charles Mayer and U.S. Heath also apparently became linked to the case through co counsel in other cases besides Barron v. Baltimore 197 Similarly, Heath was likely also brought into the case through his connections with Hoffman as a faculty member of the law school over which Hoffman presided. 198 Interestingly, and indicative of the close knit and collegial nature of the profe ssional bar in the early decades of the nineteenth century, their legal opponent Roger Taney also served on the faculty for a short time. 199 One interesting facet of legal representation in this era is the apparent lack of professional rules regarding confl icts. While it may still be acceptable in certain limited circumstances to act as a private counsel while also retained as a government attorney, as Taney does during the latter phases of Barron litigation, there were instances of representation that woul d clearly violate moder n conflict rules. For example, during the Barron litigation, Tiernan hired the c Craig v. Cowart attorney Charles Maye r brought suit during the Barron litigation against Craig and several others, later to include Luke Tiernan, to recover monies allegedly owed as the result of a brig sold by Craig shortly after the War of 1812. 200 196 Scharf, History of Baltimore City and County from the Earliest Period to the Present Day (1881), 714. 197 (2005), All Faculty Publications, Paper 43, page 12, found at http://digitalcommons.law.umaryland.edu/fac_pubs/43 last accessed April 6, 2009. 198 Slee 9 10. 199 Sle 10. 200 Peter Rescaniere v. John Hanna, Charles Malloy, Richard Williams, John Craig, and Luke Tiernan Baltimore County Court (Chancery), filed September 21, 1827, Maryland State Archives, Location: 1/39/2/, Accession No.: 17,898 10670 1/4, MSA Citation: MSA S512 13 10519. This case is discussed in more detail in the Conclusion.

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84 As these attorneys, especially Hoffman, w ere certainly well known, there is little question of who was actually driving this case. For example, although Craig and Barron were not paupers, they had recently fallen on difficult economic times. To cope with the losses, they had been forced to liqu idate most of their realty and still needed to borrow money from Luke Tiernan. Tiernan evidenced a pattern of aggressively using the courts to settle his accounts, rnan may have seen the difficulty encountered by Craig and Barron and essentially financed the litigation as a speculative venture. Not only did Craig give a mortgage to Tiernan, but Tiernan and two others, Charles Tiernan and David Williamson, continued the litigation by posting the $500.00 bond following the loss at the Maryland Court of Appeals in order to take the case to the Supreme Court. 201 If Tiernan financed the litigation, it is not unreasonable to conclude that he as David Hoffman became involved with the matter, at least initially. There are questions as to why Barron and Craig decided to file suit in court, instead of taking remedial measures into their own hands to stop the sediment, such as ripping up the dams and embankments that were destroying their livelihood more each day; ho wever, we will address those questions later in this study. 201 Barron Transcript, 2.

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85 Figure 3 1. BALTIMORE COUNTY COURT (Plats) 1822 1833 Plat of Fells Point from Barron v. Baltimore MSA C2042 168, MdHR 19,957 244, B5/9/2

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86 CHAPTER 3 TRIAL AND APPEAL While the suc cinct holding of Barron that the Bill of Rights Amendments only operate to bind the Federal Government, is well known to generations of first year law students, there is much to overlook by failing to appreciate the progress of the litigation from its inc eption at the pleading stage, through trial, appeal and ultimately, at the Supreme Court. By doing so, it becomes apparent that this action was not initially thought of as a Fifth Amendment test case. Rather, the course of the litigation evidences a larg er ideological clash over the nature of rights themselves regarding where they obtained their force and authority. In Barron the parties set forth at least three general views of rights which existed simultaneously in the early r epublic and were all evid ent in this litigation: rights as protected by the common law (as set forth by the trial court); rights as fundamental liberties which were simply recognized by written constitutions (as ce of rights (as held by the Supreme Court ). Ultimately, by denying remedy to Barron because the Fifth Amendment did not apply to the states, the Court endorsed just one ideological strain of thought which envisioned a positivist concept of rights. Ba rron locating the source of a right through a constitution, case, or statute is a n expected method of analysis for a modern attorney However, as evidenced by the entire Barron litigation, there were many different ideas regarding the proper foundation of rights which complicates the often teleological appreciation of Barron and how it provides a convenient highlight to the familiar narrative of the evolution of rights from the ratification of Constitution, to Barron to the Fourteenth Amendment, and finally to the incorporation processes of the twentieth century. By situating Barron in the early decades of the nineteenth century, we get a richer appreciation of how rights were contested in this era.

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87 Trial In 1822, Barron and Craig brought suit against the Mayor and City Council in Baltimore County Court seeking damages of $20,000.00 for lost profits. While many attorneys would appear on behalf of Barron and Craig throughout th e litigation, the case was initially filed solely c ity as one of trespass on the case, an omnibus cause of action similar to the modern tort action of negligence. The plea of tresp ass on the case was an accepted and routine common law remedy to recover 1 Cruse alleged damages without a ny larger Constitutional issue as to the applicability of the takings clause of the Fifth Amendment. Rat her, he argued simply that the c ch the c ity owed reimbursement. 2 Interestingly, at the trial court, Cruse did not even plead reliance upon a similar, while broader, clause in the Maryland Constitution (1776) which prohibited the deprivation of life, liberty, property without due process 3 In response, the Mayor and City Council did not deny that their actions damaged Barron ey relied upon the police power granted to them by the Maryland Legislature to pass ordinances authorizing these actions, such as stree t paving, and that all steps 1 Sixth Ed. (St. Paul, Minnesota: West Publishing Co., 1990), 1503. 2 Barron v. Mayor of Baltimore 32 U. S. 243, Transcript of Record, File Date: July 1, 1831, 31 pp., U.S. Supreme Court Records and Briefs, 1832 1978. Thompson Gale; and Maryland State Archives SC 2221 4 20, 182 1833 (hereinafter referred to as Barron Transcript), 8. 3 Maryland Constitution (1 disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment exiled or in any way destroyed, nor will we go upon him nor send upon him except by the lawful judgment of his

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88 taken by the Mayor and City Council were done without malice and in accord with those ordinances and within the scope of their authority as public agents. 4 The c ity was initially represented solely by Baltimore attorney Joh n S cott, who characterized the c attempt to abate a nuisance. Abatement of a nuisance could not give rise to a private right of action, as opposed to an impairment of private property, which would. Scott further expanded on the abatement of nuisance defense and argued that the damages sought by Barron and Craig were not recoverable as any damages done to the harbor by the grading and paving projects constituted a public rather than a private, nuisance for which damages were not recoverabl e. 5 The general legal scheme under which the c ity operated requires us to conceptualize a distinction between the types of governmental actions which impair private property. To a great extent, the legal category under which we classify the impairment i s instrumental in determining whether the action is considered permissible. For example, there is a world of difference it is considered a taking, the law co nsiders it to fall under the rubric of eminent domain and the presumption is more in favor of the property owner, since the government has to allege the necessity of the taking and must show that the property is being taken for a public purpose. Conversel y, if the impairment is conceived of as an abatement of a nuisance, the act falls under the inherent police power attributable to the government. In this case, the presumption shifts to the property owner to show that his damages were unique from the publ ic and that the government acted in excess of the law under which it proceeded. The natural question then becomes what makes an impairment of property a taking or the abatement of a nuisance? 4 Barron Transcript, 19 20. 5 Barron Transcript, 25.

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89 Scholars admit that this is an unsettled distinction that is e ven difficult to resolve today. 6 Thus, answering the question in the appropriate fashion matters, as a taking will usually require compensation while an abatement of nuisance largely will not. If an impairment is classified as an abatement of nuisance, t he aggrieved party could not recover damages unless he was able to show special damages that he uniquely suffered as opposed to damages suffered by the community as a whole The c by arguing that Barron and C raig suffered public instead of private damages. E ven if the aggrieved party could show special damages, the government could often escape liability if they and their agents could prove that they acted lawfully within the scope of their legislative mandat e and did not exceed their authority or carry out that authority wantonly or oppressively, a s Scott also characterized the c The suit was filed in 1822 and the court granted seven continuances until March of 1825 before Craig and Barron entered their plea. While the c ity was ordered to answer the plea at the next session of court, the case was then continued three more time s until March of 1827 when the c ity answered and denied the charges. Interestingly, while John Scott had represente d the c ity since the inception of the suit, by the time of the March 26, 1827 hearing to fo rmally answer the charges, the c ity had added to its defense team future Supreme Court Chief J ustice and John 7 Taney was appoi nted later that summer to the post of Maryland Attorney General, a position he maintained throughout the majority of the Barron litigation. It appears that this appointment caused Taney little conflict as the position of Maryland Attorney General resembled more a n honorary office at the time. The pay was low, 6 Michal Allen Wolf, The Zoning of America: Euclid v. Ambler (Lawrence, Kansas: University Press of K ansas, 2008), 91. 7 Barron Transcript, 9.

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90 but the position had previously been held by lawyers of great esteem, including Luther Martin and William Pinkney. 8 Indeed, Taney continued to represent the c ity all the way to the conclusio n of the case in the U.S. Supreme Court in February of 1833, even after he had been appointed the U.S. Attorney General in June of 1831. 9 Taney did not limit his representation of private clients to the c ity of Baltimore after he was appointed as U.S. Att orney General. For the 1833 Supreme Court term, Taney appeared before the C ourt as a p rivate attorney for three cases in addition to Barron v. Baltimore and his many appearances in his official capacity 10 Following the c went to jury trial in March of 1828 before Judge Stevenson Archer. In the interim, Craig died before the trial while Barron passed away shortly thereafter on June 11, 1828, three months after the trial. 11 By this time Baltimore merchant Luke Tiernan and h is attorneys had taken over the case and long ago claimed any possible recovery. 12 attorneys introduced numerous c ity r esolutions which evidenced the c nor 13 surveyor previously hired by the city who argued that the majority of the water now flowing into creek for no more than 8 Carl Brent Swisher, Roger B. Taney (Hamden, Conn.: Archon Books, 1961), 114 115; Samuel Tyler, Memoir of Roger Brooke Taney, L.L.D. (Baltimore: John Murphy and Co., 1872), 67, 163 164; Rev. William Pinkney, D.D., The Life of William Pinkn ey (New York: D. Appleton and Co., 1853), 49. 9 Swisher, Roger B. Taney 141. 10 The cases were Nicholas v. Fearson 32 U.S. 99 (1833), Lessee of Livingston v. Moore 32 U.S. 469 (1833), and Scholefield v. Eichelberger 32 U.S. 586 (1833). 11 Baltimore Patriot March 8, 1828, Volume XXXI, Issue 59, Page 3 and Death Notice for John Barron, Baltimore Patriot June 12, 1828, Volume XXXI, Issue 141, Page 3. 12 For more discussion of Luke Tiernan and his role in the litigation, see Chapter 2 13 Barron Transcript, 11 14.

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91 $10,000.00, but that the c ity had disregarded this plan. 14 Barron also called Colonel Thomas Shepard, a former member of a committee empanelled by the c ity to study the drainage problem, who testified that the committee recommended the waters flowing down the streets could easily be redirected to their natural streams which deposited in the western part of the harbor. Shepard ity did not do so mented on the ineptness of the c ity in taking this course as apparently the western part of the harbor was actually in need of sediment and debris and the c ity was currently filling up that portion at great expense to its residents. 15 In response, the c ity cited legislation by the s tate of Maryland directing and empowering it to take these measures and that all remedial measures complaine d of by Barron were done in accord with those acts. 16 The c ity calle d six witnesses, mostly former c ity commissioners and port wardens who testified that following the original paving of Pratt Street in 1813, which diverted water away from Brick Po nd and d own Market Street, the c ity had to take some action 17 The testimony of former city c ommissioner Nathaniel Hynson seems to indicate the final decisions on where to divert the water were the result of a political battle between factions of residents. For example, Hynson 14 Barron Transcript, 16. 15 Barron Transcript, 16. 16 Barron Transcript, 19 20. 17 Barron Transcript, 21.

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92 an easterly direction because the westerly direction faced a more uphill grade. 18 At the close of the trial, the c ity sought to have Jud ge Archer instruct the jury on four points: first, that the city acted as mere public agents in the discharge of a duty required of them by law; second, that because the city was a corporation comprised of Baltimore residents, the city was not liable for d amages resulting from acts done by its agents; third, that since the harbor and underlying soil was the property of the state of Maryland, and the c ity was an agent of the state charged with the responsibility to preserve th e navigation of the water, the c ity was not liable; and fourth, that any damages suffered because of the filling up of the harbor was a non compensable public nuisance that did not give rise to a private cause of action. In addition to these points, the c ity argued if the jury found tha t that by grading and paving the streets that its agents acted impartially, without malice, and exercised their best judgment acting within the scope of their lawful authority, the c ity could not be held liable for the damages to the wharf. 19 Archer refus ed to give these instructions and instead gave instructions which revealed his view of the case, telling the jury that they should decide in favor of Barron if th ey believed the actions of the c ity in diverting the waters from their westerly direction into the eastern harbor caused injury to Barron regardl ess whether the actions of the c ity were: neither malicious, negligent, or careless, but was even beneficial to the general interests of the city, made with the best advice, and with due circumspection, c onsulting the general prosperity of the city and its inhabitants, either for securing the health of the city, or of preserving more effectually its navigation, still, notwithstanding the jury should believe these facts, the plaintiff is entitled to damages for the injury the jury shall find the plaintiff may have sustained, in as much as this general improvement would, in such case, be made for the benefit and advantage of the inhabitants of Baltimore, and it would be unjust that the property 18 Barron Transcript, 22. 19 Opinion of Judge Stephenson Archer, reprinted in The American Jurist and Law Magazine No. 2, Vol. 4, (October 1829) : 203

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93 of the plainti ff should be deteriorated, (and to the extent of such injury,) deprived of his property without remuneration 20 favor of Barron in the amount of $4,500.00. 21 Judge Archer viewed certain rights, including non deprivation of property without due process or proper reimbursement, as paramount liberties that could not be infringed regardless of intent or motive. nces his view. While Barron and Craig pled the matter as a trespass on the case and set forth evidence to support what is essentially a forerunner of a modern negligence action, the ci ty ar gued its delegated police power allowed it to abate nuisance, rega rdless of incidental damage. Judge Archer, however, bypassed a reliance on a strict determination of whether the damage to the wharf constituted a taking or whether it was a permissible exer Rather, Archer relied upon comm on law principles concerning damage to property generally to reach his result. Archer cited instances of damage to property where the damage was often a matter between individuals, instead of conceiving as the dispute between a governmental entity and an individual. Archer per ceived the dispute between the c ity and Barron as one which required an evaluation of the rights and responsibilities of equal property owners, and not as a matter of the circumstances under which the government could take or regulat resulting equation looks much differ ent than that set forth by the c ity. Archer cited the ex jure naturae its natural flow to protect him from injury. However, this principle carried with it a consistent obligation to indemnify those who were injured by the diversion, regardless of whether the 20 Barron Transcript, 26. 21 Barron Transcript, 10.

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94 damages suffered were a direct result of the diversion or were merely consequential. He further cited the common law principle that every man must use his property with caution so as to not affect the property rights of others, referring to the prevailing common law property maxim sic utere tuo ut alienum non laedas 22 Pursuant to the maxi m sic current et debent currere this common law principle applied to watercourses. 23 Archer conceded that the common law rule of damnum abs e que injuria (those injuries that have no remedy) can limit losses when the lawful use of your property causes damag e to that of your neighbor; however, Archer considered this rule as limited. 24 For example, Archer applied it to situations such as when a farmer tills his soil, property owner erects a mill which injures the mill of an owner downriver by virtue of the decrease in the speed of the water. In both such situations, the damnum abs e que injuria exception would apply as both property owners used their property in a lawful manner and the injury. 25 Accordingly, Archer held that an individual who caused these damages to the wharf would clearly be liable. Archer was thus incredulous that because the party that caused the damage was the c ity, the outcom e would be any different. The c ity unquestionably had the legal authority to take action to abate nuisances s However, this authority or the question of whether this authority was exercised properly or done 22 Archer, T he American Jurist and Law Magazine 21 Cornell Law Quarterly (1935 36) : 276. 23 Archer, The American Jurist and Law Magazine 205. 24 Archer, The American Jurist and Law Magazine 205. 25 Archer, The American Jurist and Law Magazine 206. Later in his opinion, Archer cited Palmer v. Mulligan 3 Caines. 307 (N.Y. 1805 ) for the proposition that a causes of action against a municipality for acts of municipal improvement would not lie unless the damage from such acts rose to a serious and permanent level; otherwise, damnum abseque injuria will a ppl y to bar such suits.

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95 with malice was absolutely immaterial. To Archer, it made no difference that the diversion was allegedly done without malice, or whether the water could have been directed elsewhere. If the water was diverted to benefit the residents of Baltimore, and the effect of the benefit was to ose property 26 Next, Archer clarified his opinion to overcome a main conceptual problem with the case, namely that the wharf itself was not physically damaged or injured. To a ddress this, Archer had Archer conceded that the soil in the Patapsco River as well as the water covering the soil belonged not to Barron and Craig, but to the stat only the wharf itself. 27 Nonetheless, Archer held that this property interest was sufficient to bring suit by expanding the property interest of the wharf to include an implied easement. Archer noted that 28 Moreover, itself, if the liberties and privileges appurtenant to it were not also the subject of constitutional 29 easement that required the wharf be clear of obstructions; an easement of which Barron and 30 26 Archer, The American Jurist and Law Magazine 206. 27 Archer, The American Jurist and Law Magazine 207. 28 Archer, The American Jurist and Law Magazine 207. 29 Archer, The American Jurist and Law Magazine 207. 30 Archer, The American Jurist and Law Magazine 207.

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96 Parenthetically, for most of the litigation no one, except for a brief reference by Taney in his appellate argument, addressed the ob vious question of whether the run off which damaged the wharf actually constituted a physical taking. That this analysis was never raised is instructional, in that it shows for much of the case, the dispositive question concerned liability for more routin e clause. Archer then addressed the c compensable since the c ity was simply exercising this power and duty. As such, their damages were not specific but were shared by all members of the public and therefore Barron and Craig lacked standing to bring a claim. To refute this, Archer held that Barron and Craig did suffer unique damage, namely the right to collect wharf age which was destroyed by the c 31 of the c ity and the destruction of the easement also decimated their profits. These damages were spe cial as not all residents of Baltimore suffered similarly; rather, these damages were only borne by wharf owners in the vicinity. 32 As Barron and Craig had a property interest that was uniquely damaged by the acts of the c ity, the c ity owed reimbursement r egardless of its inherent powers allowing for such actions. Ultimately for Archer the case implicated larger concerns regarding infringement of fundamental rights which were recognized and protected by generations of wisdom expressed in the common law. Archer set forth his belief in the existence of certain fundamental rights, such 31 Archer, The American Jurist and Law Magazine 207. 32 Archer, The American Jurist and Law Magazine 208.

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97 judgment of his peers or by the law of the land, which was largely codified verbatim into the 1776 Maryland Constitution. Archer actually conceded in his written opinion that there was a deeper foundation in all free governments than constitutions or laws; it rests upon the universal sense which all mankind feel 33 To Archer the critical point was not the applicability of the state or Federal constitution which contained provisions protecting private property. Rather, these rights de 34 Archer agreed that while some of the Amendments to the U.S. Constitution were only intended to apply to the Federal government, many of the Amendments were created to protect the people of the United States to ens ure that all were guaranteed certain freedoms regardless of which state they resided. Particularly, Archer cited the Second, Third, Fourth, Fifth, and Eighth Amendments as applying to both the Federal government as well as those of the states. 35 Archer re lied not only on his own view of the extra contemporary treatise, A View of the Constitution of the United States of America 36 As we will explore more fully in Chapter 6 Ra wle also maintained that the Amendments to the Constitution simply 33 Archer, The American Jurist and Law Magazine 206 207, 210 211. 34 Archer, The American Jurist and Law Magazine 211. 35 Archer, The American Jurist and Law Magazine 211. 36 Archer, The American Jurist and Law Magazine, 211. William Rawle, A View of the Constitution of the United States of America Chapter X (Philadelphia, 1829), www.constitution.org/wr/rawle_10.htm last accessed February

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98 declared pre existing rights of the people and thus bound both the Federal and state governments. 37 Appeal Following the verdict in December o f 1830, the c ity appealed the decision to the C ourt of Appeals for the Western Shore of the State of Maryland located in the state capital in Annapolis, Maryland. 38 discussion of fundamental rights. Whether Barron and larger rights based constitutional argument during the initial trial, or whether the y were simply constrained by the rules of pleading to fit the case into an accepted cause of action and purposefully chose not to engage the larger constitutional argument is unclear. What is clear is issues of the role of the Maryland and U.S. Constitutions in the litigation. Travelin g thirty miles from Baltimore to the Maryland coast, the parties arrived in Annapolis, home of the state legislature and the Court of Appeals. While Barron and Craig had been represented at various points in the litigation by several different attorneys, only Charles Mayer and David Hoffman traveled to Annapolis for the hearing. Likewise, John Scott and Roger Taney made the trip on behalf of the c ity. Before a five judge appellate panel, on December 17, 1830, John Scott began the oral arguments. 39 First, Scott cited nine separate state laws, local ordinances, and resolutions which collectively, he argued, constituted a grant of power from th e s tate of Mary land to the 37 Rawle, Chapter X, 124 125. 38 Barron Transcript, 30. 39 The five judges who heard the appeal were Buchanan, Earle, Dors ey, Martin, and Stephenson. Edward C. Papenfuse, O utline, Notes and Documents Concerning Barron v. Baltimore 32 U.S. 243, http://mdhistory.net/msaref06/barron/index.html (last accessed on 4/ 5/08), 0047 (131).

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99 corporation of the c ity of Baltimore to take all actions necessary to ensure the he alth and welfare of the residents of the c ity. Scott linked the c power to pave and grade streets. Second, in addition to the statutory authority, Scott relied on a line of cases which held that officers and directors of a corporation and, indeed, the corporation itself could not be held liable for damages incurred in following legislative directives unless their actions exceeded the scope of the law. Given the case law that existed during this era, Scott cou ld and did rely on a wealth of cases that supported his position, as there was ample case law that specified the non liability of agents as long as they acted pursuant to the enabling law and without malice. 40 For example, Scott cited Steele v. Western Inl and Lock Navigation (N.Y. 1807) wherein the New York legislature passed a law authorizing a company to dig a canal to aid navigation in upstate New York. 41 property, had the unintended effect of blo cking the natural flow of smaller streams and ditches on his property and which resulted in significant flooding. 42 The court held that the company could not be held liable for these damages as it acted pursuant to the act passed by the state legislature a nd did not exceed its jurisdiction granted by the law. 43 Interestingly, the court noted that the plaintiff had been properly compensated for the taking of his property and that this compensation should have anticipated these damages when calculating the aw ard. 44 40 In addition to Steele v. Western Inland Lock Navigation (N.Y. 1807) and Goszler v. Corporation of Georgetown (1821), there existed other cases upon which Scott relied, which included Sutton v. Clarke 6 Taunt. 42 (1815) (which was addr essed and distinguished by Judge Archer in his trial court opinion) and the English case of Harman v. Tappenden 1 East. 555. These cases collectively stood for the proposition that agents of the state who engage in the making of improvements would not be held liable for their actions, absent some evidence of malice. 41 Steele v. Western Inland Lock Navigation 2 Johns. 283 (N.Y. 1807). 42 Steele 2 Johns. at 283. 43 Steele 2 Johns. at 285. 44 Steele 2 Johns. at 285. Parenthetically, the 1777 New York Constitution did not contain a specific prohibition against uncompensated takings, other than a more general restriction on depriving any member of the state of any

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100 Steele is instructional as it contains a number of similarities to the Barron litigation. In Steele the Western Inland Lock Navigation, a private company, was directed by the New York Legislature to dig canals in order to promote and aid lock navig ation through the state. To that plaintiff sued the company but not for the actual taking of the property, which was not at issue as he was properly compensa ted following an appraisal. Rather, as was the case with Barron and Craig, the plaintiff sued the company as a result of water that overflowed his land from the cross ditches that became bottled up by the new canal. Also like Barron and Craig, the plaint iff brought an action for trespass on the case against the company for lost profits due to the loss of his crops and for the damage to the soil of his farmland. Finally similar to Barron and Craig, the plaintiff won at the trial court level, but was rever sed on appeal. On appeal, the court denied remedy to the plaintiff holding that the original appraisal of the property taken for the canal should have foreseen and included these types of possible consequential damages that could have resulted from the op eration of the canal. 45 The court also pointed out that because the company acted pursuant to the legal authority of the legislature, neither it nor the officers could be held liable, unless they exceeded the scope of the law. 46 Scott cited Justice Marsh Goszler v. The Corporation of Georgetown (1821), which was similar to Steele and much like the facts in rights unless by law of the land. By 1821, the New York Constitution contained specif ic language prohibiting the taking of private property without compensation. See, New York Constitution (1777), Art. XIII; New York Constitution (1821), Art. VII, Sec. 5. 45 Steele 2 Johns. at 285. 46 Steele 2 Johns. at 285.

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101 Barron 47 In Goszler the Maryland legislature granted the municipal corporation of Georgetown the authorit y to make all laws necessary to grade and level the streets within the town. 48 After the first round of grading the streets the plaintiff, who owned property adjacent to one of the leveled streets, improved his property to meet the new gradation. However, seventeen years later in 1816, the city passed new ordinances modifying the existing gradation. The plaintiff then brought suit to enjoin the city from proceeding. 49 Upon appeal to the U.S. Supreme Court, Justice Marshall ruled in favor of the c ity and h eld that the original grant of power by the Maryland legislature allowed for continued grading without the need for subsequent acts. Moreover, he held that the ordinance which authorized the original grading did not constitute a compact that could not be altered, as was asserted by the plaintiff. 50 For Marshall a decision corporation and would, in practice, limit its powers that were specifically delegated by t he state legislature. 51 The Goszler decision is interesting for a number of reasons. First, Goszler took a broad view of the powers granted by the Maryland legislature to a municipal corporation, allowing subsequent alteration and action taken even decad es after the original grant of power. Second, the person describing the broad powers of municipalities is none other than Marshall himself and can be considered an early indicator of how later challenges to municipal improvements would be decided. Finall y, and related to the second point, Goszler is an example of stare decisis 47 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0053 (137); Goszler v. Corporation of Georgetown 6 Wheat. 593, 19 U.S. 593 (1821). 48 Goszler 19 U.S. at 593. 49 Goszler 19 U.S. at 594. 50 Goszler 19 U.S. at 597 598. 51 Goszler 19 U.S. at 597 598.

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102 jurisprudence upon which Marshall could have based the Barron decision. Instead of holding the Bill of Rights inapplicable to the states, Marshall could have conceivably simply cit ed Goszler as binding precedent. Alternatively, Marshall could have used the case as a foundation upon which to issue a decision that would deny relief to Barron by an expansive interpretation of municipal power instead of a constitutional opinion that fo rmally eviscerated a body of rights for the residents of the several states. te right of action against the c ity. To this point, Scott cited Lansing v. Smith an 1828 New York state case which held that no cause of action existed for consequential damages sustained as a result of public improvement projects. 52 In Lansing the court denied all remedy to a wharf owner who brought suit to recover the depreciation in the v alue of his wharf caused by the creation of a basin in the Hudson River which impeded access to the wharf. The plaintiff brought suit against the commissioners of a private company created by the state legislature to construct the basin. The plaintiff al so made a state constitutional argument when he alleged that his property was taken without just compensation, in violation of the New York Constitution and that the law which created the company was unconstitutional as it violated the provision prohibitin g the impairment of the obligation of contracts. 53 Described by William Novak as a damnum abseque injuria the Lansing court were not special to him, but common to the entire community. 54 By classifying the damages as general and common to all, the court was able to bring its decision in line with a body of 52 Lansing v. Smith 8 Cow. 146 (N.Y. 1828). 53 Lansing 8 Cow. at 147. The 1821 New York Constitution contained a specific provision prohibiting the taking of private property without compensation. See New York Constitution (1821), Articl e VII, Section 5. 54 Lansing 8 Cow. at 152; William Novak, America (Chapel Hill: University of North Carolina Press, 1996) 142.

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103 jurisprudence holding that special or unique damages are required in order to maintain a private cause of action for damages resultin g from a public nuisance. 55 Ultimately, the court held that damages were damnum abseque injuria part of the price to be paid for the advantages of the social condition. This is founded upon the 56 c ity to pay for the injury they caused to Barron. 57 Mayer cited the 1796 Act of the Maryland Legislature which chartered the c ity and specifically prohibited it from taking any actions which were repugnant to either the Maryland or U.S. Constitutions. 58 Mayer attempted to persuade the Appeals Court that the acts of the c ity which caused the run off to accumulate at the wharf constituted a violation of the Maryl and and U.S. Constitutions. He argued the right to take private property for public use belonged to the sovereign only, and that this power was never delegated from the State of Maryland to the c ity. As a result, the acts under which the c ity proceeded w ere unlawful as they were required to conform to the constitutions of the state of Maryland and of the United States, but violated both. 59 Even if the eminent domain power could be delegated, it could only be exercised upon 55 Lansing 8 Cow. at 152 For example, see Butler v. Kent 19 Johns. 223 (N.Y. 1821) which was also relied upon by Scott and Taney in their respective arguments. 56 Lansing 8 Cow. at 148. 57 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0057 (141). 58 Papenfuse, Outline, Notes and Documents Co ncerning Barron v. Baltimore 0058 (142). See also Chapter 68, Section 8, The General Public Statutory Law and Public Local Law of the State of Maryland, Vol. II, Clement Dorsey, ed. ( Baltimore: John Toy, 1810), 1396, 1399. 59 Papenfuse, Outline, Notes an d Documents Concerning Barron v. Baltimore 0059 (143).

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104 payment of just compensation. 60 Mayer specifically cited the applicability of the Fifth Amendment to negate the arguments brought by the c ity. 61 Mayer also relied upon several cases and treatises which upheld the sanctity of private property, including Dorrance a 17 95 case written by U.S. Supreme Court Justice Patterson while on Federal circuit in Pennsylvania. 62 In one party in a land title dispute claimed superior title as a result of a Pennsylvania law which quieted title and vested it in his po ssession. Justice Patterson held that the Pennsylvania legislature could not divest the party of title to land by legislation and place title in the opposing party without compensation. 63 Finally, Mayer argued that the damages to the wharf were not dam num abs e que injuria by order of a local law. Rather, chancery would require the public authority that made such order provide compensation to the owner. Mayer attemp ted to distinguish the arguments made by Scott that acts made to abate a public nuisance cannot give rise to a private cause of action by arguing that it was possible, during abatement of a public nuisance, that special damages could arise as was the case for Barron and Craig. 64 Mayer attempted to collapse the public/private nuisance distinction by arguing that simply because an act was deemed a public nuisance it could not also operate as a private nuisance with the requisite special damages necessary to g ive rise to 60 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0059 (143). 61 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0061 (145). 62 nce 2 U.S. 304 (C.C. Penn. 1795). 63 The Cambridge History of Law in America, Vol. 1: Early America (1580 1815), Michael Grossberg and Christopher Tomlins, ed. (New York: C ambridge Univ. Press, 2008), 542. is discussed in more detail in Chapter 5. 64 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0059, 0063 (143, 147).

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105 a private right of action. 65 However, at a more fundamental level, the existence of cases like Lansing which was decided after the case was filed in 1822 but before the appellate arguments took place in 1830, may have pushed Mayer and Hoffman to stress the constitutional and fundamental law arguments so forcefully on appeal. was discussed in Chapter 2 Hoffman was a well regarded attorney and one of the f irst practitioners to open a formal school for training attorneys, establishing his own law institute in Baltimore in 1822 after teaching for several years under the authority of the University of Maryland. 66 Hoffman presented twenty one separate points th at set forth his argument, which we can categorize into several general themes. 67 First, Hoffman conceded the right of the c ity to pave and grade the streets in order to protect the health of the residents, but ec argument that the c ity was nev er delegated the power of eminent domain, an extraordinary attribute of sovereignty that cannot be delegated or, alternatively, must be done in express terms. 68 Hoffman tried to re define the damage caused by the c ity as a taking and not as an attempt to ab ate nuisance. In this view, if the c ity caused damage while making street repairs, it had the duty to provide compensation. 69 Here, only the state of Maryland would possess the power of eminent domain and that power could only be exercised in cases of great public 65 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0063 (147). 66 Journal of Legal Education (1982): 127, 130 31. Schaffer notes that, while Hoffman established his own independent institute, he technically remain ed under the umbrella of the University of Maryland for his entire teaching career from 1814 1843. 67 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0064 (148). 68 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimor e 0064, 0067 (148, 151). 69 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0064 (148).

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106 necessity and with the caveat that compensation was an essential component. 70 The c ity did not possess the power of eminent domain and even if it was delegated this extraordinary power, how could it escape the just compensation requirement? For further support, Hoffman cited Joseph p ublished in 1824 and which provides an excellent primer on the contemporary remedies provided by the common law for all manners of damage to and by flowing waters. 71 Hoffman hed principle compensation, citing natural law theorists Grotius and Pufendorf in support. Without he first principles of civil government, but also in opposition to (what is of higher authority and absolutely decisive of the Amendment as well as noted sim ilar provisions in many state constitutions. 72 A s was noted by Morton Horwitz, Ange established orthodoxy of the common law as it related to riparian rights. The common law position restated by Angell was being challenged an d would become eclipsed by the economic needs of an ever expanding nation. 73 70 Papenfuse Outline, Notes and Documents Concerning Barron v. Baltimore 0067 (151). 71 Joseph K. Angell, A Treatise on the Common Law in Relation to Water Courses (Boston: Wells and Lilly, 1824), The Making of Modern Law. Gale. 2010. Gale, Cengage Learning. 15 April 2010, http://galenet.galegroup.c om/servlet/MOML?af=RN&ae=F101718351&srchtp=a&ste=14 ; Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0067 (151). 72 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0067 (151); Angell, A Treatise on the Common Law in Relation to Water Courses 53 54. In support of this proposition, Angell cited Gardner v. Trustees of the City of Newburgh 2 Johns. 162 (N.Y. 1816), which is discu ssed in more detail in Chapter 5 73 Morton Horwitz, The Transformation of American Law, 1780 1860 (Cambridge: Harvard University Press, 1977), 38.

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107 damages as general to the public and not specific to the Plaintiffs. As the road grading and paving projects caused the harbor that filled up with sediment and did not directly damage the wharf itself, these damages are general and must be bourne by all residents. Thus, Barron and Craig did not possess the requisite standing to sue the c ity. Hoffman argued that question of whether the public was injured was absolutely immaterial to the case. 74 The law did not recognize a distinction between direct and indirect damage to private property when taking actions for the public good. In fact, Hoff man countered the c 75 Third, Hoffman confronted the c ayor and members of the City C ouncil could not be held liable as they acted within the scope of the powers granted by the enabling laws passed by the Maryland legisla ture. Hoffman argued that the c ity was not an agent of the s tate of Maryland, but was an entity that could be sued. While the state woul d have sovereign immunity, the ci t y would not. Hoffman then asked the appeals court what would have 76 Under general common law principles, such an owner would be liable for the resulting dam age. Hoffman had to address citation of several cases which held that agents of the government who act pursuant to their legal mandate cannot be held liable for damages. Here, Hoffman attempted to distinguish some of this authority, such as the 1 815 English case, Sutton v. 74 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0066 (150). 75 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0065 (149). 76 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0065 (149).

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108 Clarke 77 In Sutton a land owner sued tru stees who were empowered by law in their mandate to widen a road and to cut any watercourses in order to keep the road from flooding. Parenthetically, as part of their mandate, the law required that the trustees provide reasonable compensation to any adjacent landowners who suffered damage as a result of the project. In widening the road, the landowner alleged that the trustees dug a drainage canal from the road to his property. He arg ued that the canal was too shallow and narrow and did not extend far enough from the road. As a result, water had continuously overflowed the canal and damaged the 78 At trial, the court ruled against the landowner and held that the trus tees were not liable as they were not private individuals taking these actions for their own benefit but were carrying out a duty prescribed by law for a public benefit. If the trustees were private individuals, the common law would hold them liable for t hese damages, even if they had exercised all due care. 79 As they were acting under color of law, the only way they could be held liable would be if they acted in an arbitrary manner or if within their jurisdiction they behaved 80 Hoffman seems to have cited Sutton in an attempt to argue that the c Certainly, in the trial court, this would explain his emphasis on calling numerous witn esses who contested the methods taken by the c ity to resolve the drainage problem. Similarly, Judge Archer also cited Sutton in his trial court opinion where in he addressed the holding that persons acting pursuant to legal mandate for the public good coul d not be held liable for damage. For 77 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0068 (152); Sutton v. Clarke 6 Taunt. 42. (1815), reprinted in Angell, A Treatise on the Common Law in Relation to Water Courses 195. 78 Angell, A Treatise on the Common Law in Relation to Water Courses 196. 79 Angell, A Treatise on the Common Law in Relation to Water Courses 207 208. 80 Angell, A Treatise on the Common Law in Relation to Water Cours es 207.

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109 Archer, this point stressed by Sutton was completely inapplicable to the Barron case as he delved public; but what public? Themselves. They are trustees of the public interests for their own benefit and ought to answer as an (Emphasis original). 81 Archer appears to have collapsed the distinction between an individual acting for his own benefit and a person acting solely for the public good out of public policy reasons. Archer argued that a contrary result would allow any private company that was chartered by the government to cause damage with impunity. 82 Given the number of public/private construction projects taking place during this era, this concern is not unfounded. to argue that at common l aw, Barron and Craig had a property interest not only in the wharf, but also in the adjacent soil and water that covered it. 83 That the actual wharf was not taken or even physically damaged represented one of the biggest hurdles that Barron and Craig had t o overcome. Judge Archer avoided this problem ran with their ownership of the wharf. Hoffman attempted to refine this analysis and argued that Barron and C 84 An incorporeal hereditament is any right that accompanies the ownership of property itself and which can be inherited along with the property itself, in this case realty 85 For example, a corporeal real hereditament would be land while an incorporeal real hereditament would be the 81 Archer, The American Jurist and Law Magazine 213. 82 Archer, The American Jurist and Law Magazine 213. 83 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0066 (150). 84 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0066 (150). 85

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110 right to rents from tenants occupying the land. The incorporeal hereditament arises out of the corporeal hereditament. 86 In making this argume nt, Hoffman may have not only tried to overcome the allegation that his clients did not suffer unique damages, but also tried to have the appeals court appreciate that the damage to the wharf constituted a taking by the c ity and was not the c ity merely act ing to abate nuisance. However, in order to refocus the court on the taking more than just the wharf itself. 87 Finally, unlike Mayer, Hoffman did not argue t hat the damage to the wharf constituted a violation of the Maryland or U.S. Constitutions. Rather right to recovery on an extra constitutional appreciation of rights. Hoffman argued that the law made no distinction between direct and indirect injuries to private property caused by compensation be made. 88 For Hoffman, an injury suffered by the o wner of private property de manded reimbursement, regardless of whether the party that damaged the property was a governmental entity, whether it was done for a public good, or whether the damage was direct or incidental. Like Mayer, Hoffman also cited the Federal circuit court deci sion in 86 Blackstone, William, Sir. : with notes of reference to the Constitution and laws of the federal government of the United States and of the commonwealth of Virginia : in five volumes : with an appendix to each volume containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia ... / by St. George Tucker. Vol. 3. Philadelphia, 1803. 5 vols. The Making of Modern Law. Gale, Cengage Learning (last accessed May 15, 2010 ) 21. http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F101126104&srchtp=a&ste=14 87 In addition to classifyin g the adjacent water and soil as an incorporeal real hereditament, Hoffman cited Browne v. Kennedy 5 H. & J. 195 (Md. 1821). There, Jones Falls (Baltimore) ran through a parcel of property. The property owner deeded the portion of his land north of the river to one party and the land on the south of the river to another. After Jones Falls was redirected, a dispute over the underlying land pitted the current owners of each parcel against one another in a boundary dispute. The court discussed the nature of rights to land under water and held that land bounded by a navigable river includes the soil under the river for purposes of granting the land to heirs. This case only discussed ownership of the soil and does not address the ownership of the surroundin g water, a conceptual problem that Hoffman tried to bridge. 88 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0065 (149).

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111 Lessee which held the Pennsylvania constitution as the enunciation of pre existing fundamental law. 89 However, Hoffman went much further. Citing natural law theorists Vattel, Grotius, and Pufendorf, and even Roman historian Livy, Hoffma n argued that in such cases of eminent domain, it could most importantly, accompanied by just compensation to the owner. 90 In his response, the future chief justice Roger Tane y took the lectern and skillfully dissected these arguments. In his opening statement to the court, Taney defused a major component of Barron and Cra ity did not possess the power of eminent domain. Taney quickly conceded t hat the c ity indeed did not possess the power of eminent domain, but argued that this deficiency was wholly irrelevant. Instead Taney contended general public, which supported the c domain line of argument. 91 In d oing so, 89 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0067 (151). 90 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0067 (151). Hoffman cited Book 31, History of Rome There, the Roman Senate sought to raise revenue to make war against Philip of Macedon after his support for Cart hage in the Second Punic War which had only recently ended. Citizens who had loaned money to fight the war were to be repaid, but the Senate needed to re equip a large army and navy and did not have the funds to make the third payment due. The Senate agr eed to repay these debts by agreeing to rent public lands to these creditors at an extremely reasonable rate. For example, the rental rate was one as per measu rement of land of 28,800 square feet, which is roughly one half acre ( 43,560 sq. feet = 1 acre). Thus, the discontinue the rental and return the property to the public, for which the Senate, counting on a better financial situation in the future, would reimburse the creditors. Presumably, Hoffman cited Livy to show that even in the classical age, the state could not keep the private property of its citizens without their consent or at least without providing som e reasonable compensation or indemnity for its return, even during times of war. Livy. Books XXXI XXXIV with an English Translation. (Cambridge, Mass.: Harvard University Press, 1935), 41 at http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0164%3Abook%3D31%3Achapter%3 D13 last accessed October 8, 2010. Interview with James Crozier, P h.D. Assistant Professor of Classic s and H istory Missouri Valley College (October 8, 2010). 91 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0069 (153).

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112 Taney raised one of the most obvious defects with the case: had an actual physical taking occurred? It is puzzling that this issue was not raised more forcefully. T he parties failed to emphasize the existence of the takings clause in the Fifth A mendment until later in the case and, even then, it is addressed very much as an afterthought. For example, neither of the parties raised the Fifth Amendment takings argument at the trial court; rather, it was Judge Archer who made a passing reference to it in his written trial court opinion. However, for Archer, the existence of the Fifth Amendment was irrelevant to the question of whether Barron and Craig opinion, the parties then addressed the issue of the applicability of the protections contained in stressed the fundamental duty of a party to provide compensation for injury, while the c attorneys str essed its inherent police power and classified the damages a result of a non compensable public nuisance to be shared by all. Taney also argued that the c ity acted as the agents of the sovereign power, the state of Maryland, and as such, the Mayor and City C ouncil could not be sued as long as they acted in good faith. 92 In support, Taney also cited Lansing as well as Steele which predated Lansing co counsel, John Scott. 93 Taney chose to close his argument by addressing the larger constitutional argument that emerged during the appellate phase. Taney framed the question not as whether the state was constitutionally required reimburse Barron and Craig, but instead emphasized the larger principal that the Maryland Constitution gave the legislature the power to take private property for public 92 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0073 (157). 93 Steele 2 Johns. a t 283.

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113 purposes. 94 For Taney, this power was an absolute attribute of sovereignty which the courts had no power to restrain. Taney argued that while the New York Constitution contained a specific clause prohibiting the taking of private property without just compensation, no such prohibition existed in the Maryland Constitution. 95 The Maryland Constitution of 1776 contained a provision, copied l argely verbatim from the Magna Charta of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the 96 While Judge Archer cited this provision as partial support for his ruling that Barron and Craig had been wrongfully deprived of their property without due process, Taney found just the opposite and argued that this provision was in applicable. 97 and argued that since the provision was copied from the Magna Charta the Maryland legislature should then be able to operate the same way as Parliament. And since Parliament could take private property with out payment, the same rule should apply in Maryland, an extraordinary argument. 98 legislature has the power to do so, then if they pass a law to that effect, it is the law of the which implicitly rejected the view of the legislature as limited by fundamental law, as argued by Mayer and Hoffman and set forth in decisions like 99 Taney countered the attempts of the plaintiffs to enunciate the limits that exist ed on state legislatures, as they had 94 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0074 (158). 95 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0075 (159). 96 Maryland Constitution (1776), Article 21 97 Archer, The American Jurist and Law Magazine 207. 98 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0075 (159). 99 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 0075 (159).

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114 done by emphasizing Lessee Fletcher v. Peck 100 In Fletcher, following wholesale bribery of nearly every member, the 1794 Georgia legislature sold thirty five million and Alabama, referred to as the Yazoo lands, to four companies for only 1.5 cents per acre. 101 When the 1796 Georgia legislature passed a law rescinding the sale, a purchaser, Fletcher, and hi s seller, Peck, concocted a lawsuit in order to test the law. 102 Before the Supreme Court, Justice Marshall prefaced his opinion with an obligatory statement of deference to the legislature, but then ignored the fraud and instead held the subsequent law res cinding the land grants unconstitutional. According to Marshall, the legislature was incompetent to void the earlier land grants as they were, in effect, contracts which the state legislature could not later unilaterally modify. 103 As we will discuss in mo re detail in later, Marshall struck down the rescission law as not only violating the Contract Clause of the U.S. Constitution, but more importantly violating the lar ger principles which restrain all legitimate government. Marshall wrote, unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institu tions, or by the particular provisions of the constitution of the United States constitutionally and legally impaired and rendered null and void (emphasis supplied). 104 100 Both Mayer and Hoffman cited wh ile only Mayer cited Fletcher v. Peck 101 Fletcher v. Peck The Oxford Companion to the Supreme Court of the United States Kermit Hall, ed. (New York: Oxf ord University Press, 19 92), 304. 102 Sandra F. Van 304. 103 Fletcher v. Peck 6 Cranch at 136. 104 Fletcher v. Peck 6 Cranch at 139.

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115 For Marshall, the pr operty rights in the Yazoo land vested in Fletcher and the legislature could not repeal those rights. 105 The legislature has limits to its powers and vested property rights provide a boundary line. In order to overcome this, Taney cited Satterlee v. Matthewson an 1829 U.S. Supreme Court case which largely contradicted Fletcher v. Peck without overruling the decision. 106 In Satterlee Justice Washington held that a Pennsylvania law which was intended to operate retrospectively, and which was passed to specifically overrule a decision of the Pennsylvania Supreme Court concerning a land title dispute, was not unconstitutional. A retrospective law which affected vested rights did not violate the U.S. Constitution as long as it did not constitute an ex pos t facto law or did not impair the obligation of contract as prohibited by Article I, Section 10 of the Constitution. 107 Further, the Fifth Amendment of the U.S. Constitution did not apply as the Bill of Rights Amendments only restricted the ac tivities of the Federal government and not those of the states. For this proposition, Taney cited Bradshaw v. Rodgers and Magee an 1822 New York state case also interestingly cited by Charles Mayer in his oral argument, but for a different reason. 108 In B radshaw the plaintiff sued Rodgers and Magee for trespass to his land after they cut and removed an amount of timber. 109 The defendants defended the suit by asserting their contract with a local canal commissioner to build a road to replace one destroyed b y the building of the canal and that the timber was needed for its construction. While Taney cited Bradshaw for the provision that the Fifth Amendment was intended to restrain only the Federal government, a 105 Fletcher v. Peck 6 Cranch at 135. 106 Satterlee v. Matthewson 27 U.S. 380 (1829). 107 Satterlee v. Matthewson 27 U.S. at 413. 108 Satterlee v. Matthewson 27 U.S. at 413. 109 Bradshaw v. Rodgers and Magee 20 Johns. 103 (N.Y. 1822).

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116 reading of the actual holding of the case eviden Spencer, writing for the court, held in favor of the plaintiff as he was incredulous that his land could be entered for the purpose of removing the timber without his consent. The law applied to the dig ging of canals and not to the construction of roads that may have been damaged as a result, which was well outside the scope of the law. 110 Spencer conceded that the Fifth Amendment only applied to the Federal government and the parallel provision of the Ne w York Constitution was not yet operable since it had not been ratified as of the time of his decision. principle of government; and any law violating that principl e must be deemed a nullity, as it is 111 For Spencer, the requirement of just compensation for the taking of private property is not a right that existed by virtue of its inclusion in a written w of constitutions is similar to that set forth by Hoffman and the court: a constitution recognizes pre existing rights; it does not provide their basis. Appeals Court in Barron overruled the judgment against the c ity. 112 Barron appealed the reversal of the decision by the Maryland Court of Appeals by way of a writ of error to the U.S. Supreme Court who agreed to hear the case to determine whether the actions of the State of Maryland, upheld as valid on appeal, were repugnant to the U.S. Constitution. 113 110 Bradshaw 20 Johns. at 104. 111 Bradshaw 20 Johns. at 105. 112 Barron Transcript, 30. 113 Barron Transcript, 1 2, 29 31. a writ of error from the Supreme Court on January 2, 1831. The attorneys produced the writ to the Maryland Court of Appeals on June 22, 1831. The writ gave the Court of Appeals until August 8, 1831 to deliver the record of the underlying proceedings to t he court. Strictly speaking,

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117 Supreme Court Ordered by the Supreme Court for oral arguments on February 11, 1833, Charles Mayer traveled to Washington, D.C. to plead th ity kept in place its defense team of Roger Taney and John Scott. 114 Curiously, however, is that there is no evidence that David Hoffman appeared before the Court as the notes of the argument written by the Court Clerk evidence that only Mayer presented argument. 115 Hoffman was a major figure in the legal community of the early r epublic era and was even known and respected by Justice Marshall personally. In fact, in 1833, Marshall had penned a testimonial describing the legal ap titude of David Hoffman which he and his law partner had republished as part of a newspaper advertisement. This advertisement was published in a D.C. newspaper and was clearly intended to attract clients with cases before the Supreme Court as the advertis status as an attorney authorized to practice before that Court. 116 Thus, the absence of Hoffman would not only have subtracted significant prestige from their legal team, but would have sheared much of the natural law based arguments f rom their case. Additionally, Mayer was opposed by Taney who, despite appearing as a private attorney and not as the Attorney General of the United States, still certainly exuded a strong presence at the Court. For example, of the required to file a writ of error instead of an appeal. According to Lawrence Friedman, Friedman notes that states provided, as their two methods of review, the appeal to a higher equity court of a common law case or the review of an action pursuant to a writ of error. Lawrence M. Friedman, A History of American Law Second Ed. (New Yo rk: Simon & Schuster, 1985), 149. 114 Barron Transcript, 30 31; Barron 32 U.S. at 246 147. 115 Barron 32 U.S. at 246. 116 The Papers of John Marshall: A Descriptive Calendar Vol. II, Irwin S. Rhodes, ed. (Norman: University of Oklahoma Press, 1969), 413.

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118 forty one reported case s heard before the Supreme Court during the 1833 term, Taney appeared before the Court as counsel eighteen times. 117 Marshall was determined to keep the arguments focused on a single point. Marshall advised Mayer to confine his argument to whether, under the Fifth Amendment, the Court had jurisdiction to hear the case. 118 This admonition effectively precluded the introduction of the majority of the reasoning relied upon b y Mayer and Hoffman at the appellate level. Within these wharf as an inco rporeal hereditament. 119 Next, Mayer outlined five points which would grant recovery. First, the M ayor and C ity C ouncil, regardless of their collective status as agents of the state clothed with sovereign immunity are nonetheless liable for their tort i ous acts. 120 Second, the acts in question were exercised under the authority of the state of Maryland pursuant to the enabl ing legislation granted to the c ity by the Maryland legislature. 121 Third, as the state took the property of the Plaintiffs without compens ation, their acts were repugnant to the Fifth Amendment. Mayer argued that the Fifth Amendment was enacted to limit the state legislatures 117 Taney appeared before the Supreme Court as Attorney General during the 1833 term in fourteen cases: U.S. v. MacDaniel 32 U.S. 1 (1833); U.S. v. Ripley 32 U.S. 18 (1833); U.S. v. Fillebrown 32 U.S. 28 (1833); U.S. v. Percheman 32 U.S. 51 (1833); U.S. v Turner 32 U.S. 132 (1833); U.S. v. Mills 32 U.S. 138 (1833); U.S. v. Wilson 32 U.S. 150 (1833); U.S. v. Brewster 32 U.S. 164 (1833); Sampeyreac v. U.S. 32 U.S. 222 (1833); Barlow v. U.S. 32 U.S. 404 (1833); 32 U.S. 435 (1833); U.S. v. 84 Boxes of Sugar 32 U.S. 453 (1833); Ex Parte Watkins 32 U.S. 568 (1833); and Heirs of Dubourge de St. Colombe v. U.S. 32 U.S. 625 (1833). Taney appears as private counsel in four others: Nicholas v. Fearson 32 U.S. 99 ( 1833), Lessee of Livingston v. Moore 32 U.S. 469 (1833), Scholefield v. Eichelberger 32 U.S. 586 (1833), and Barron 118 Barron 32 U.S. at 246. 119 Barron 32 U.S. at 245. 120 Barron 32 U.S. at 245. 121 Barron 32 U.S. at 245 246.

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119 in order to protect the people of all states. For Mayer, the people were perceived not as citizens of a particular state, but a people nationally who were entitled to the protection of the Fifth Amendment whether they were citizens of the United States of merely inhabitants who were subject to its laws Fourth, the Supreme Court had jurisdiction over this case as it w as an appeal regarding the constitutionality of state action from the highest appellate court in Maryland, as Supreme Court such jurisdiction in Section 25 of th e Judiciary Act of 1789. 122 Finally, Mayer is not confined to the establishment of an abstract point of construction but could take in to account factors other than a simple question of jurisdiction as was framed by in the water in which the wharf was located. In addition, the Court could then determine whether the property damage constituted allowed for a cause of action or whether the claim was non actionable as the damages were suffered in the abatement of a public nuisance. In the latter event, Mayer argued that Barron could still recover as he suffered damages special to him that were not similarly suffered by the public at large. 123 In this last point, Mayer echoed much of his used this last point as an attempt to introduce as much of his remaining argument as possible, as would be expected from a competent practitioner. Mayer could have saved his breath. Following his argument, Marshall stopped Taney and Scott from even presenting their rebuttal and then presumably concluded the hearing. 124 The 122 1 Stat. 73, Section 25 (178 9). 123 Barron 32 U.S. at 246. 124 Barron 32 U.S. at 247

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120 Court issued its opinion February 16 1833, five days after oral arguments. 125 accompanying decision evidences the basis for his f inding further argument by the c ity unnecessary. In the decision, the Court did not engage question of the proper role of rights in the federal system. Nor did the Court discuss the proper balance between the police power and individual property rights. Rather, the Court ensured that the case was narrowly confined to B gation that the actions of the c ity of Baltimore constituted a taking of his property without just compensation in violation of the Fifth Amendment. Thus, the only question was whether under the Fifth Amendment the Court had jurisdiction to re view the case under Section 25 of the Judiciary Act of 1789. 126 Section 25 provides, in part, that the Supreme Court can hear cases from the highest court of a state where the issue of repugnancy to the Constitution is asserted. As we have seen, the part ies in the lower court proceedings debated the role of rights in the young republic. Their varied arguments exposed the many competing views that existed and were competing for primacy. The parties were engage d in a rich debate which revealed the unsettl ed nature of rights. For example, we saw the interplay between rights as an individual rights binary. Additionally, the players all enunciated different strands o f thought regarding the location of rights themselves: Hoffman espousing individually based natural rights; Taney arguing community based rights to ensure harmonious order; Archer holding that compensation 125 Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore ( Barron Judgment ) 0144. 126 Barron 32 U.S. at 247; 1 Stat. 73, Section 25 (1789). The decision announced by Marshall was unanim ous. The justices on the Suprem e Court during the decision, along with the President who nominated them and their state, were Marshall (John Adams Virginia) William Johnson (Jefferson South Carolina) Jo s e ph Story (Madison Massachusetts) Gabriel Duval (Madison Maryland), Smith Thompson (Monroe New York), John McLean (Jackson Ohio) and Henry Baldwin (Jackson Pennsylvania) The Supreme Court in American Life Vol. II, The Marshall Court, 1801 1835 ed. Adrienne Siegel (New York: Associated Fa culty Press, Inc., 1987), 250; Hall, The Oxford Companion to the Supreme Court 965 966.

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121 was required by the principles of the common law; and Peter Cruse initially pleading their claim for reimbursement as predicated upon the accepted and routine procedural remedy classified under trespass. Instead of engaging this live ly debate, the Court reframed the issue as one where rights hinged solel y on the explicit language of written constitutions, and then used this interpretation The Court avoided the larger issue of the violation of fundamental rights and framed the questions as one which simply hinged on j urisdiction. To determine whether the Court had such jurisdiction it had to determine the pivotal question of states. While Mayer urged the Court to view the Fif th Amendment as protecting the right of all citizens from all governmental encroachment, the decision n arrowed the issue by reframing it as question of whether the Fifth Amendment applied to state governments. Justice Marshall, writing for a unanimous Cou 127 True to his word, the Court and altered the course of Constitutional history in an opinion spanning just a few pages. M The opinion likewise did not follow any of the alternate grounds that could have denied Barron ing the Bill of Rights inapplicable to state action. Rather, the Court relied solely on a strict analysis of the text of the Constitution and the legislative history surrounding its enactment. First, the Court held that each state established its own cons titution and that the people of each state provided their own protections against their respective state governments in those 127 Barron 32 U.S. at 247.

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122 constitutions. At the time the people of the several states decided to form a government for the United States, they specifically formed a Federal government, via the Constitution, with limitations on that government built into the Constitution itself. Specifically, Marshall wrote that constitution was ordained and established by the people of the United States for themselves, 128 This statement is interesting as it both agrees with and contradicts their capacities as citizens of the United States, who creat ed the Federal government. Marshall echoed Mayer by stating that it was the people who created the United States. However, by arguing that the Constitution was not intended for the governance of the individual states, he held that the Fifth Amendment did be considered unsound to the extent that he collapsed the idea of rights and the structure of government into one concept. For example, at its most fundamental level, a constitution accomp lishes two goals: it outlines the fundamental structure of a government and also sets limits on the powers of that government. The limits on the government are conceived of as rights. If a government exceeds its authority, a citizen can interpose a defen se to that action, by framing the improper act as impeding a right. Thus, Marshall is correct in the sense that the Constitution was not intended to redraw the functions of the various state governments, but what about rights? There wa s no allegation bef ore the Court that the Fifth Amendment was intended to rewrite the state constitutions. However, if the people insert ed limits against the United States government, does that mean that those rights vanish ed if the state governments infringe d those rights? 128 Barron 32 U.S. at 247.

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123 not only create the Federal government, but also to place limits on what any government could do to them, regardless of jurisdiction. Second, the Court noted that Mayer relied upon Article I, Section 10, which set certain limitations on the states, such as prohibiting them from entering into foreign treaties, coining money, passing ex post facto laws, and impairing the obligations of contracts, was mispl aced and actually supported the opposite conclusion. 129 Marshall stated that by reading this Section in pari materia with Article I, Section 9, which contains express limitations on the Federal government, it becomes clear that no limitations on the state g overnments are applicable unless specifically contained within Article I, Section 10. Marshall further noted that the prohibitions in Article I, Section 10 regulate d matters that naturally relate d to interests common to persons in all states, such as ente ring into foreign treaties and coining money, which would prove chaotic if attempted individually by each state. 130 Again, Marshall relied on a textual reading of the Constitution to support his argument. For Marshall, Article I, Section 10 contained speci fic language that specified that if a state was prohibited from taking action, the same method of interpretation should be used with the Amendments. As they did not specifically reference the states, the Amendments did not apply to them. The Court concl uded by holding that if the people of each state had desired more limitations on their respective state governments, they had the power to enact such limits in their occupation of improving the constitutions of the several states, by affording the people additional 129 U.S. Const. Art. I, Sec. 10. 130 Barron 32 U.S. at 249.

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124 131 Marshall cited the state constitutional ratifying conventions and noted encroachments of the general government 132 Here, Marshall now addressed the rights comp onent of a constitution. At a fundamental level, Marshall is using a combination of a textual reading and an original intent type argument. He again, however, combine d two ideas that do not necessarily go together. Marshall h eld that the framers intende d the Bill of Rights A mendments to restrain the Federal government. Certainly, the Constitution was not intended to restructure the state governments. However, when the argument turns from the structure of government to rights, the argument is not as sol id. works only if we appreciate rights as emanating from written constitutions. F rom a purely legalistic reading of Barron the Constitution, and the ratifyi ng debates, be supported. Based upon this logic, if the Fifth Amendment was meant to apply to the states, it was up to the framers of the Constitution to ensure that it was drafted in such a manner. In order for the Fifth Amendmen t, and the rest of the Bill of Rights, to apply to the states, history would have to wait for the Civil War, the resulting Fourteenth Amendment, and the selective incorporation process that would proceed piecemeal over the next one hundred and fifty years. However, if we view the same question with an appreciation that constitutions simply declared pre existing rights did the insertion of those rights into the U.S. Constitution mean that such rights, such as the private property rights at issue here which trace their recognition to Magna 131 Barron 32 U.S. at 250; Parenthetically, it shoul contradictory to his earlier opinions, which are discussed in greater detail in Chapter Six, which expand the powers McCulloch v. Maryland 17 U.S. 316 (1819), where Marshall held that the Federal government could charter a bank as a result of an 132 Barron 32 U.S. at 250.

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125 Charta now mean that those rights no longer applied because they were not explicitly mentioned as also applying to the state governments? Looking at Barron from this perspective makes ould these rights which predated the Constitution now not apply? In Chapter 4 even a tenable option for those from the colonial and founding generations.

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126 CHAPTER 4 RI GHTS AND THE FRAMERS OF THE CONSTITUTION your John Quincy Adams 1 As evidenced by the evolution of the Barron litigation, there existed a varied and complicate d ideological landscape in the e arly r epublic era regarding the conceptual location of rights. As we ha ve seen, the actors in the Barron drama perceived of rights in many different outcome ; i t was not a given. 2 Reading the opinion today complements our modern sen sibilities regarding a written law or constitution as the source of a right. Reading the case from the view of the attorneys and judges in the early nineteenth century betrays no such similar familiarity. Rather, the case shows the courtrooms of Maryland and the District of Columbia as places where conflicting views of rights were competing for primacy. What we will see in this chapter, however, is that this confusion was not limited to the Barron litigants or the other courtrooms of this era. Rather, this confusion extend ed back to the colonial and founding era generations who also expounded numerous and often conflicting ideas regarding the proper location for the rights and liberties they began to enunciate in response to British colonial policy. In the founding era, there was no consensus regarding the foundation of 1 John Quincy Adams, Memoirs of John Quincy Adams, Comprising Portions of his Diary from 1795 to 1848 Charles Fran c i s, ed. (Philadelphia, 1875), 336. A humorous but insightful observation by John Quincy Adams during his presidency which illustrates the conceptual difference between our modern view of a constitution as a written document setting forth the framework of government and providing rights to individuals to protect them against that government, and an older view of a constitution as a collection of documents, laws, and ideas wh ich collectively comprised the structure of the state and the general limits on the government, making the welfare of a country akin to the welfare of an individual. See Daniel Hulsebosch, Constituting Empire : New York and the Transformation of Constitutionalism in the Atlantic World (Chapel Hill, N.C.: University of North Carolina Press, 2005) who elaborates on this point. 2 Chapter 6 discuss es the views of hist orians argue that Barron was correctly decided

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127 rights and where they obtained their authority. Some identified natural law principles as the basis, some predicated rights on the unique characteristics of the English Anglo Saxon heri tage, and some espoused the ideas of an original compact and consent of the governed. The theories evidence a dizzying blend of rights as confirmed and secured by the common law, the Magna Charta, natural law, positivist legal guarantees, Greek and Roman precedents, or divine blessing. From these interpretations, however, we can begin to make sense of certain broad themes by categorizing these different and disparate views into three general categories: rights as liberties possessed by Englishmen, rights as universal possessions granted by nature or the divine, and rights as provided by an inchoate blend of numerous foundations. 3 Each of these categories can be conceptualized as being comprised of many ideological subparts or subcategories. First, those w ho framed rights as liberties unique to Englishmen celebrated the Magna Charta as the ba seline. They invoked the English c onstitution and viewed the common law as the mechanism which guarantied their rights in ways that subjects of the kingdoms of France and Spain could not. They echoed the writings of Blackstone for support and promoted the mythology of the English people as the particular protectors and inheritors of the freedoms enjoyed by their Germanic forefathers. Second, those who espoused rights as inherently granted by nature evidenced a blend of thought which emphasized rights as provided by nature or by God. These views found support in Enlightenment era thinkers like Grotius and Pufendorf as well as in the colonial favorite, John Locke, and i nvoked Greco Roman precedents for support. Finally, there were many who set forth a view of rights which not only combined 3 John Phillip Reid has noted that many expressions of the location of rights by founding era thinkers often blended categories and had a tendency to list numerous alternative bases for their rights. I interpret these modes of thought into three categories by grouping them more broadly; h owever, others, like Reid, have noted upwards of ten different categories by more narrow ly drawing the categories. See John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (Madison: Universit y of Wisconsin Press, 1 986), 66.

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128 many of these different foundations in the same conceptual argument but also drew on ideas of rights as emanating from more positive law type sources, like colonial charters. For purposes of our study, I first intend to contextualize the rights discussion around four different historical eras or moments that gave rise to the founding era rights debate: the historical antecedents foun d in the Greco Roman and early Christian traditions; the post Reformation natural law continental jurisprudence espoused by thinkers like Grotius and Pufendorf; the writings inspired by the English Civil War, such as those penned by Hobbes and Locke; and, finally, the Glorious Revolution and subsequent rise of the concept of Parliamentary supremacy. The enunciation of rights that occurred during each of these eras were invoked during the founding era debates and were each present as a m odel by which they c ould set forth their particular interpretation of rights. These categories are not intended as an exhaustive history of the evolution of rights in the western tradition, but were chosen to represent the general eras most often invoked during the founding era rights debates. 4 First, natural law jurisprudence dates to the ancient Greeks who conceptually separated law into those rules which were considered fundamental as they had as their basis a divine or natural sanction, as opposed to those laws which were created by man. 5 Aristotle contributed an essential ingre dient to the primacy of natural law by enunciating its universality as opposed to positive man made law which necessarily became restricted by concepts such as jurisdiction which could defeat its enforcement, restrictions which conceptually cannot restrict the timeless 4 Other scholars have divided these eras differently. For example, John Witte Jr. groups the history of the concept of rights in the Western tradition into five periods: classical, medieval, early Protestant, Enlightenment, and Modern. John Wi tte Jr., (Grand Rapids, Michigan: Wm. B. Eerdmans, 2006), Chapter 1. 5 Charles Grove Haines, The Revival of Natural Law Concepts (Cambridge: Harvard University Press, 1930), 4 5.

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129 idea of a natural law. 6 This Greek natural law binary was modified by the Romans through the development of commercial law necessitated by interactions which arose between Roman citizens and aliens. While dealings between citizens were the only transactions expected to be governed by principles of good faith, Roman magistrates (praetors) eventually modified these harsh rules through the development of the jus gentium. The jus gentium was enacted as a body of equitable laws used to counter t he more formal, and inflexible, jus civile. The concept of jus naturale, while not widely used as a body of law itself in this period, nonetheless gave the ideological support for the development of the jus gentium and infused its practical application wi th the universal notions of natural law principles. 7 By the Middle Ages, Christian philosophers adapted Roman legal concepts of natural law to ideologically blend with their Christian beliefs and worldview. The Spanish philosopher Isadore of Seville re grounded the Roman natural law legal concept of jus naturale as a divinely enacted law while the concepts of jus gentium and jus civile were considered as man made usage. 8 Thomas Aquinas further sub di vided natural law into those laws which came from God from those natural laws which man could discover by applying timeless notions of good and evil to judge human conflict, creating a hierarchy of divine law, natural law, and man made or positive law. 9 Second, the seismic upheavals caused on the continent and in England following Martin reordering of the concepts of natural law. In the legal philosophies e nunciated to make meaning 6 H aines, The Revival of Natural Law Concepts 6. 7 Haines, The Revival of Natural Law Concepts 8. 8 Haines, The Revival of Natural Law Concepts 12 13. 9 Haines, The Revival of Natural Law Concepts 13 14.

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130 of this event we see the origins of the later arguments which predicated rights on inherent, Hoffman before the appellate court. Freed from the ideological boundaries requiring the designation of the divine as the ultimate law giver, philosophers and jurists had the opportunity to set forth ideas of the place of natural law and natural rights in entirely new ways. Most famously, Dutch legal t heorist Grotius began to locate natural law as discovera ble through the exercise of man made reason. 10 To scholars like Grotius, the natural law doctrine of jus naturale was re conceptualized as principles of natural rights, rights that man inherently poss essed. 11 As a right possessed by man, the larger society or state could not infringe those rights. 12 By articulating his theories of international law, Grotius premised natural law as a set of rules that were timeless and unchangeable even by God, and sep arated natural law from positive law, which was enacted by man. 13 With Grotius we begin to see the evolution of natural law theory by the conceptual separation of natural law as an inherent individual right from other law which was enacted by the sovereign 14 Later proponents of the development of international law like eighteenth century Swiss philosopher Emerich de Vattel similarly emphasized the concept that man maintains inherent natural liberties that cannot be compromised without consent and, like Gro tius, based his ideas on the law of nations as being grounded in the principles of natural 10 Haines, The Revival of Natural Law Concepts 1 7. 11 Haines, The Revival of Natural Law Concepts 49. 12 Haines, The Revival of Natural Law Concepts 49. 13 Haines, The Revival of Natural Law Concepts 1 8 19. 14 Haines, The Revival of Natural Law Concepts 18 19. Haines noted that Grotius premised much of his work on the ideas set forth by Spanish thinkers of the sixteenth and seventeenth centuries, such as Vittoria, Suarez, and Gentilis. Haines further noted that some of his academic contemporaries, such as Roscoe Pound and E.D. Dickinson, believed that G Suarez that preceded his work or the ideas of Samuel Pufendorf who came later. See Roscoe Pound, An Introduction to the Philosophy of Law (New Haven: Yale University Press, 1922), 82 83; and E.D. Dickinson, The Equality of States in International Law (Cambridge, 1920), 43.

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131 law. 15 Pufendorf similarly discredited the idea of natural law as residing with the div ine and accorded those rights as belonging to man as an individual being, without relying on the state or the greater society as providing those rights. 16 Similar to Grotius, Pufendorf was writing during the genesis of the modern age of the nation state following the 1648 Peace of Westphalia and, also like Grotius, charged the state with ensuring the order and well being of the polity. 17 While continental theorists Grotius and Pufendorf disconnected the basis for natural law from its divine moorings, pl acing certain principles ideologically outside the control of human restraint, the Stuart upheaval of the seventeenth century constituted a third event which caused the reevaluation of rights thought. For example, Thomas Hobbes attempted to discredit the expansive notion of natural law that had been set forth by Grotius and sought to ground those rights with the sovereign. 18 natural law from the divine, but his attempt to reconnect that law with the sovereign. Hobbes presented his ideas of natural law and right in his most famous work, the Leviathan (1651), amid the political upheaval of England in the seventeenth century. Horrified by the English Civil War 15 Haines, The Revival of Natural Law Concepts 50 51. 16 Haines, The Revival of Natural Law Concepts 22. 17 Craig L. Carr, The Political Writings of Samuel Pufendorf (Oxford, 1994) 6. However, unlike scholars like his contemporary Thomas Hobbes, Pufendorf strenuously disagreed with Hobbes and his view of the legal omnipotence of the state. Rather, Pufendorf recognized that while the state could provide for the common good of the citizenry, it could also be the primary agent of oppression of those same persons. In order to prevent this, Pufendorf argued that both the citizenry and the state must recognize and accept their complementary responsibi lities. For example, the citizenry must come together as a commonwealth which stresses their unified goals of security and common good. Further, the citizenry must designate a sovereign to ensure those goals and must pledge their loyalty to that sovereig n. In return, while the citizenry owed the sovereign their allegiance, the state, as sovereign, was obligated to respect the fundamental natural rights of its citizenry. Similar to this notion of the existence of reciprocal obligations between the ruler and the ruled, as espoused by Pufendorf, the seventeenth century also gave rise to the societal condition. See, Carr, The Political Writings of Samuel Pufendorf 7, 14 16; Haines, The Revival of Natural Law Concepts 22. 18 Haines, The Revival of Natural Law Concepts pp. 20 21.

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132 and the subsequent execution of C harles I in 1649, Hobbes purposefully argued against the classical republican concept of rights or liberties that was being set forth as an ideological basis to oust the monarchy. 19 While the proponents of this view harkened to ancient Greece and Rome as t heir models to assert that liberty was present by default in all republics by their very nature, Hobbes argued that such view was in fact one of the causes of the Civil War. 20 Hobbes argued that liberty was possible in a monarchy or aristocracy and, in fac t, was better preserved in these hierarchal, non republican forms of government. 21 This definition of liberty required Hobbes to more precisely define terms such as natural law or natural rights that had been often used indiscriminately through the Middl e Ages. 22 To Hobbes, these were different concepts. Natural law was a body of rules meant to protect the security of the persons constituting the society while natural rights were those liberties which man had in his natural, pre societal state. 23 For Hob which the civil law leaves us: but civil law is an obligation, and takes from us the liberty which 24 whereby the indiv idual designated the state as the exclusive legal authority in the polity. While Hobbes believed in the existence of natural laws that pre dated the establishment of the 19 Quentin Skinner, Visions of Politics, Volume III: Hobbes and Civil Science (Cambridge: 2004), 226. 20 Skinner, Visions of Politic s 227. 21 In order to prove this, Hobbes was required to more closely define liberty. To show that liberty was possible in non republican forms of government, Hobbes defined liberty as the absence of external impediments to his action. 21 Hobbes defined hi s idea of external impediments closely to require actual physical barriers to free choice. 21 Thus, Visions of Politics 211 212, 227 228; Hobbes Studies ed. K.C. Brown (Cambridge: Harv ard University Press, 1965), 118 119. 22 Haines, The Revival of Natural Law Concepts 21. 23 Haines, The Revival of Natural Law Concepts 21. 24 Thomas Hobbes, The Leviathan: Or the Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil ed. Michael Oakeshott (Oxford, 1957), Chapter 26, 189 ; See also, Skinner, Visions of Politics 220.

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133 commonwealth, once man agreed to enter into the commonwealth and designate a sovereig n, the bond was unbreakable. 25 Those natural rights that man had possessed pre commonwealth were no longer considered separate from the state as the laws of nature and the laws of the sovereign were considered as inseparable as the sovereign was the exclus ive law giver. 26 The political turmoil of the seventeenth century also laid the predicate for the writings of English philosopher John Locke. His writings on the nature of rights and government, Two Treatises of Government (1689), were written between 1679 and 1681 following his return from France where he witnessed the persecution of French Protestants. 27 Upon his return, Locke wrote Two Treatises during the turmoil caused by Whigs in Parliament who unsuccessfully sought to e Catholic James, from ultimately claiming the throne. 28 Following the failure of the Exclusion Bill, Charles II prorogued the Parliament in 1679 and 29 During this uncertain period, creation of any government. In the state of nature, man possessed natural rights that he carried with him following the form ation of government and creation of a civil state. 30 These natural rights, which most notably included the rights of life, liberty, and property, were not given up once man created government; rather, the supreme obligation of government was to secure thes e 25 Hobbes, Leviathan Chapters 14 and 15, 84 105; Chapter 17, 113; Chapter 18, 113. 26 Hobbes, Leviathan Chapter 26, 174 175; Haines, The Revival of Natural Law Concepts 21. 27 W.M. Spellman, John Locke (New York: 20 21; Katherine M. Squadrito, John Locke (Boston: Twa yne Publis hers, 1979), 95. 28 W.M. Spellman, John Locke to exclude James. 29 K. Squadrito, John Locke 20 21; W.M. Spellman, John Locke 20. 30 K. Squadrito, John Locke 102.

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134 natural rights. 31 to that of Hobbes, they are both, however, predicated upon the consent of the people being governed. 32 Their differing ideas on the place of rights appear to provide the critical distinction between the two. Locke used rights as a basis by which to measure whether the sovereign is honoring his duties under the social compact; if not, the social compact has been broken and the sovereign right forfeited Howeve r, w hile Hobbes similarly recognized that pre societal man possessed natural rights, upon entering into a political society, he agreed to merge those rights with the state exclusively. By doing so, the sovereign became the ultimate legal authority and any alleged violation of those rights could not form the basis for recourse against the state as those rights no longer conceptually existed apart from the state. 33 Finally, the last era or moment occurred in England in the aftermath of the 1688 Glori ous Revolution which gave rise to the notion of Parliamentary supremacy. What we see is that notions of rights were transforming in England as ideas of sovereignty were evolving. For example, following 1688, the battles over who had the sovereign power i n England had been settled in favor of Parliament. Ideas of inherent natural rights which belonged to the individual were of less ideological importance as Parliament was perceived as the sovereign lawmaker which was the representation of the people thems elves. As sovereignty was conceptually placed with the people or, more accurately, with Parliament as the representative of the people, the emphasis upon natural rights inherent to an individual naturally became less important in the absence of the classi c tyrannical ruler against which these rights must be vigilantly maintained. 31 K. Squadrito, John Locke John Locke: Problems and Perspectives John W. Yolton, Ed. (Cambridge: Cambri dge University Press, 1969), 100. 32 Lowe, Locke 162. 33 Hobbes, Leviathan Chapter 26, 174 175; Haines, The Revival of Natural Law Concepts 21.

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135 Further, while this natural law tradition in England waned as the centuries old battles between the Crown and Parliament were gradually resolved in favor of the supremacy of Parl iament, a consistent turn toward the primacy of statutory law was a natural result of this change. For example, Gordon Wood notes that with the establishment of Parliamentary supremacy, Parliament was now possessed with the power to create law that did no t simply rest on the custom based principles of the common law, but could create whole new positive, or statutory, law. 34 Historians have noted that after 1688, Parliament slowly began to increase its exercise of its legislative powers, so that by 1760 182 0, Parliament was averaging 254 new statutes per legislative session, approximately five times the average number of laws passed per session from 1689 1702. 35 The rise of the acceptance of the idea of the supremacy of Parliament and the resulting emphasis on statutory law hastened the demise of ideas of natural law that had arisen in England to counter the Stuart excesses on the seventeenth century. To Wood, while notions of fundamental or natural law in which all governmental statutory law must be grounde d still to most Englishmen that all such moral and natural law limitations on the Parliament were strictly theoretical, without legal meaning, and relevant only in so far as they impinged on the 36 In England by the late eighteenth century, the concept of fundamental law as binding the sovereign, such as seen those set forth in the seventeenth century judicial pronouncements of Lord C oke in (1610) for example, were of another era, 34 Gordon Wood, The Creation of the American Republic, 1776 1787 (Chapel Hill: University of North Carolina Press, 1969, 1998), 265. 35 P.D.G. Thomas, The House of Commons in the Eighteent h Century (Oxford, 1971), 6 1; David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge, 1989), 13. 36 Wood, The Creation of the American Republic 260.

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136 swept away by an omnipotent Parliament in the aftermath of the Glorious Revolution. 37 Of course, the rise of English Parliamentary supremacy by the late eighteenth century should not obscure that the transformation did not occur overnight. Rather, Parliamentary supremacy did not immediately eclipse the older sixteenth century natural law tradition that, at its core, considered many rights as belonging to the individual and outside the scope or control of any sovereign, and did not fully extinguish the competing English Whig tradition in England and especially in the American colonies. 38 Major structural support for the transformation toward Parliamentary supremacy, or provided by the eighteenth English jurist William Blackstone. 39 Begun as a series of lectures at Oxford in 1753, Blackstone outlined the state of English law in his famous Commentaries on the Laws of England a multi volume legal treatise 37 In (1610), Lord Coke was presented with a claim of false imprisonment by Dr. Bonham against the Royal College of Physicians who had him sent to prison for his practice of medicine in London without a license issued by the College. Dr. Bonham, who graduated from Cambridge with a degree in medicine, refused to apply for license from the College. The College argued that it had the authority to take these actions as it existed pursuant to a royal grant confirmed by Parliament. Lord Coke, however, took a differ ent view, noting that while the authority given the College allowed it to collect fines for unlicensed practice, the grant also inappropriately allowed the College act as a judge in cases to which it was a party, as the College received half of all fines c ollected. As a result, Lord Coke commented that Parliamentary acts are still governed by the common law and when such acts void. Professor He modern concept of judicial review, which Helmholz argues was not necessarily intended by Coke. R.H. Helmholz, re, Journal of Legal Analysis Volume 1, No. 1 (Winter 2009) : http://jla.hup.harvard.edu 2 3. 38 co post 1688 and continued into the eighteenth century. For an example of fundamental law thinking, Hulsebosch describes the writings of Lord Boling broke who conceptualized a distinction between government and the constitution of the polity. While strict Parliamentary supremacy ideologically collapses these categories, Bolingbroke measured whether a government was proper by the extent to which it obs erved and adhered to the fundamental rules against which the people could measure ministerial behavior to gauge whether it was c Huls ebosch, Constituting Empire, 37 38. 39 Hulsebosch, Constituting Empire 38 39.

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137 whic h glorified the absolute supremacy of Parliament. 40 To Blackstone, all societies could only contain one supreme sovereign authority, and England was certainly no different. 41 Blackstone 1610 opinion in Dr. which recognized the extralegal nature of certain inherent rights. However, by the mid conflicted with fundamental laws, Blackstone h eld that a court could not void a parliamentary enactment, only modify the law if it led to a clearly absurd result that was not intended. However, an unjust law would still require enforcement if the legislature intended so. 42 Commen taries provides a good example of how the change in ideas of sovereignty post 1688 affected the ideological basis for rights themselves. For example, Blackstone continued the conceptual tradition of perceiving rights as either natural and inherent to the individual or granted by the civil state and thus capable of modification, or absolute versus relative rights. 43 Blackstone also continued the tradition espoused by Locke and Hobbes of employing the concept of man in a pre societal state where these natura l and absolute rights first existed and which continued to exist once man entered into a communal state. 44 However, while Blackstone continued the division of absolute and relative rights, the existence of Parliamentary sovereignty caused him to then explo de this distinction by arguing that these same absolute 45 Blackstone held contrary to Locke that the 40 Lieberman, The Province of Legislation Determined 31; Wood, The Creation of the American Republic 264. 41 Hulsebosch, Constituting Empire 39. 42 Hulsebosch, Constituting Empir e 39 40. 43 William Blackstone, Commentaries on the Laws of England (1765), Volum e I (Chicago: University of Chicago Press, 1979), 119. 44 Blackstone Commentaries Vol. I, 43, 121. 45 Blackstone Commentaries Vol. I, 123.

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138 is absolut 46 difference between natural law and natural rights in drawing his distinction between absolute and relative rights, but then made the distinction useless by locating supreme pow er in the sovereign. 47 Thus, the colonial and founding generations had ample sources to inspire their visions for the basis of rights. Before examining the different ways in which these generations digested these sources, a final interpretative point shoul d be addressed. We should appreciate the linguistic difficulty in attempting to discuss rights when there is disagreement over whether that term had the same meaning as it does today. For example, Jack Rakove argues that we must first appreciate that the idea of a right had a much different connotation before the seventeenth valid title or owned property, especially realty. Other aspects that we would now co nsider within liberties and privileges were effective against the power of the government; however, they were also considered as granted by the government an d could be rescinded. 48 Rakove argues that the upheaval of the seventeenth century associated with the Stuart dynasty led to an expansion of the idea of a right, first, to include those qualities previously associated with liberties and privileges and, sec ond, to perceive of these newly defined rights as something owned by an individual that could not be granted or taken away by the government, arguing that this was the genesis of the 46 Blackstone, Commentaries Vol. I, 157. 47 Blackstone, Commentaries Vol. I, 119 120, 123. 48 Jack N. Rakove, Declaring Rights (Boston: Bedford Books, 1998), 19.

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139 idea of the birthright of Englishmen. 49 Rakove credits this evolution to the idea of a right as something which an individual owns to seventeenth century political theorists Hobbes and Locke. 50 Consistent with this emerging idea of absolute individual ownership of rights was its natural corollary that written documents did not supply the basis for the right, but merely declared their existence, especially in the American colonies. For example, Rakove notes the existence of declarations contained in colonial charters and codes which affirmed the existence Bernard Bailyn noted the views of Philadelphia attorney, pamphleteer, and member o f the founding generation, John Dickinson, with respect to the rights contained in the colonial charters. Channeling natural law theory, Dickinson argued that th e colonists were born with rights founded upon larger principles of reason and justice and, as a result, written laws only declared and affirmed these rights, but did not grant them. 51 had reason to treat their ch arters as something more than preexisting entitlements. They were not 49 Rakove, Declaring Rights 19 20. 50 Rakove, Declaring Rights 21 22. Of course, while Hobbes and Locke share similar views reg arding the agreement of individuals to combine to form an ordered society, they differed greatly with respect to the ability of those individuals to modify the government of that society after the initial agreement. 51 Bernard Bailyn, The Ideological Origi ns of the American Revolution (Cambridge: Harvard U niversity Press, 1967), 187.

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140 Americans could appeal whenever the status of their rights within the Empire was controverted 52 regarding the location of rights between the American colonies and England which occurred during the eighteenth century and which set the stage for the many d ivergent views of the role of law, constitutionalism, and rights that had to be addressed post Independence. The presence of numerous, disparate interpretations of legal thought compe ting in the years of the early r epublic is likely evidence that the U.S. was being forced to confront and craft a unique legal ideology now that it could no longer define itself in opposition to England. The presence of these numerous ideologies can be considered as directly related the particular colonial experience, both be fore and after Independence. Within the context of these four eras, the founding generation found numerous sources upon which they could base their arguments regarding the source of rights in order to oppose British colonial policy. Rights as English Libe rties First, there was the belief in the rights of Englishmen, the idea that subjects of the English realm inherited unique privileges under the law and immunities from arbitrary or capricious governmental or royal action based upon whim instead of law. T his idea can be conceptually grouped with the sentiment that the English common law provided the basis for liberty, as was Barron If a person possesses rights as an automatic result of his status as an English subject, for example, it is only logical that the English common law is the procedural vehicle through which violations of those rights are vindicated. This type of thought is evident in the laws and charters of the colonies where they declared their equality 52 Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), 295 296.

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141 of rights with their countrymen from whom they recently departed. For example, in the Act for the Liberties of the People, passed by the Maryland General Assembly in 1 639, the legislature immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England by force or vertue of the 53 These rights specifically included the Magna Charta influenced rights that one could not be imprisoned or disseised of his freehold property except in accord with the laws of the colony. 54 This sentiment, that the rights of the colonists are predicated upon their status as subjects of the British Empire, continued throughout the seventeenth century. ext of what he characterized as the two types of governments: those who ruled by virtue of power or those who ruled by virtue of consent. England possessed the latter form which meant it was a nation ruled by law and not men. Law, for the English under t his government, consisted of those rules he social harmony. In opposition to these superficial rules, the law also contained unspecified mandates he termed English, there were certain rights that were unique to their society: the right to private property; the right to vote on law; and the right to limit or influence the judicial pow er through the use of the jury tri al. This last right Penn traced to the particular Anglo Saxon heritage of the English 53 the Liberties of the People (1639) University of Chicago Press, Volume 1, Chapter 14, Document 1, http://press pubs.uchicago.edu/founders/documen ts/v1ch14s1.html last accessed September 26, 2009. 54 (1639) University of Chicago Press, Volume 1, Chapter 14, Document 1, http://press pubs.uchicago.edu/founders/documents/v1ch14s1.html last accessed September 26, 2009.

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142 traced back to their mythic Germanic ancest ors. These rights we re not natural and universal, but we s of Englishmen, as three great roots, under whose spacious branches the English People have been wont to shelter themselves against the storms of 55 Twelve years later, Penn further refined his view of the Englishness of rights for inheritance that every Free born Subject of England is heir unto by Birth right, I mean that unparalleled privilege of Liberty and Property d his property determined by law and not royal or noble whim as was the case in a country like France. The freedom from violence or oppression provided by the law is participation in the jury trial system, which gave English subjects control over laws as well as over their execution, respectively. 56 For Penn, the fundamental rights which protect ed person and prop erty were not universal but uniquely English. Of course, discussion of rights is usually necessitated by conflict. During the Stamp Act crisis of 1764 1765, the Governor of Rhode Island, Stephen Hopkins, wrote a pamphlet protesting the British imperial policy that sought to raise revenue by enacting numerous new duties and taxes on the colonies. In The Rights of Colonies Examined (1764), Hopkins looked to the nature of colonial re lationships to argue that the rights of colonists generally we re no less 55 Document 3, http://press pubs.uchicago.edu/founders/documents/v1ch 14s3.html last accessed October 10, 2009. 56 Right of the Free Born Subjects t 5, http://press pubs.uchicago.edu/founders/documents/v1ch14s5.html last accessed October 10, 2009.

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143 than persons residing in the home country. 57 Historically, colonists who departed from the ancient Greek city states took with them all the same privileges as the citizens who stayed. The colonists also took the government of the polity they left, whether a democracy or an oligarchy. 58 While the colonies of ancient Greece were obligated to pay tribute to their home city state in a semi dependent status, the colonies of Rome were consi dered as part of the whole. The colonies did not have different laws; rather, they remained uniquely Roman. The colonies had the right to vote in all elections and had an equal voice. 59 Hopkins argued that this historical pattern of inclusion of the colo nies into the governance of the polity continued to the modern day, and cited the colonial relationships of Spain and France as examples. Hopkins conceded that the Spanish and French colonies did not enjoy the freedom afforded to the former Greek and Roma n colonies. However, this was so because the colonists were entitled to the same liberties as the persons residing in their respective home countries which, in the case of Spain and France, did not enjoy freedom as their tyrannical governments had taken t 60 Of course, as Hopkins argued, as colonists are entitled to the same liberties as if they were still in the mother country, the colonists in the American colonies were entitled to the same liberties as Englishmen at home. 61 For H opkins, the extent to which a right exists depends not on whether one resides in a colony or the mother country, as the same liberties exist in both locales. Rather, one 57 in American Political Writing During the Founding Era, 1760 1805 Charles S. Hyneman and Donald S. Lutz, eds. (Indianapolis: Liberty Press, 1983), 45. 58 47. 59 60 61 49.

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1 44 resides. The liberties and freedoms of the English are unique to that people and are secured by the British constitution. 62 In 1769 during the crisis with British customs officials in Boston, Samuel Adams wrote an article in the Boston Gazette where he set forth a view of rights as natural and inherent possession of English subjects. In support, Adams reached back to the turmoil of the seventeenth century and recounted the demise of the Stuart dynasty which he attributed to their failure to recogniz e the natural rights of their subjects. To Adams, the Glorious Revolution of 1688 represented a return to the proper status quo with respect to the rights of the English and original principles, declared in the bill of rights; which was afterwards pass'd into a law, and stands as a bulwark to 63 Note that while Adams based his argument on the rights of English subjects, he is echoing other natu ral law type arguments by describing the liberties contained in the English Bill of Rights as declaratory. Regardless, the proper order was restored following the Revolution when the principles of the British constitution were reinstated. The principles protected the natural rights of English subjects, thus Adams explicitly connected support of his claim that the ultimate rights of life, liberty, and property are p rotected by rights to justice in court, rights to petition for redress of grievance, and, finally, rights to the use of arms for self defense, were remedies part icular to English sub jects to enforce rights 62 50. 63 Samuel Adams, February 27, 1769 Boston Gazette , University of Chicago Press, Volume 1, Chapter 3, Document 4, http://press pubs.uchicago.edu/founders/documents/v1ch3s4.html last accessed October 10, 2009.

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145 guarante ed to those same subjects as was declared in the various documents of the British constitution. 64 Rights as Provided by Nature While many envisioned rights as liberties secured t o Englishmen others perceived of rights more as inherent natural possessions or based on u niversal principles of natural law, as first enunciated by seventeenth century philosophers like continental theorists Grotius and Pufendorf or English thinkers like Locke and Ho bbes. This enunciation of rights as not necessarily the birthright of English subjects but as universal natural liberties was seized upon by the American colonists in response to their conflict with the British. While many of the preceding documents iden equal English subject, but rested on a view of rights as more natural and universal. F or example, in 1768, the Massachusetts minister, the Reverend Daniel Shute, gave an Massachusetts House of Representatives. 65 Shute was a well respected minister who was later elected to the Massachusetts Constitutional Convention to debate the ratification of the proposed Federal Constitution. 66 At that convention, Shute spoke forcefully in support of the Federal Constitution with respect to the Article VI prohibition on requiring religious tests to hold public office. Shute argued that such tests would exclude honest and good men from government, 64 Samuel Adams, February 27, 1 769 Boston Gazette 65 in American Political Writing During the Founding Era, 1760 1805 Charles S. Hyneman and Donald S. Lutz, eds. (Indianapolis: Liberty Press, 1983), 109; S ee also, Daniel Shute, A Sermon Preached befo re his Excellency Francis Bernard (Boston: Richard Draper, 1768) which notes the persons from the government of Massachusetts who were in attendance for the sermon. Shute was the pastor of a church in Hingham, Massachusetts, while the sermon was apparentl y given in Boston. 66 American Political Writing During the Founding Era ed. Hyneman and Lutz, 109

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146 charity and confidence to men of my own denomination in religion, I suppose, and I believe, sir, that there are worthy characters among men of every denomination among the Quakers, the Baptists, the Church of England, the Papists; and even among those who have no other guide, in 67 In supporting the religious test prohibition Shute set forth a view of the qualities required for civic participation, which transcended any particular religious belief and, indeed, i ncluded those who had religious beliefs sermon discussed the interaction between the divine and the duties of government. For Shute, nd promote the happiness of man, his creation. As mankind formed into a society governed by a civil authority, it was thus the responsibility of the government to For 68 A shift from envisioning rights as English toward a conception of rights as universal was required as an ideological necessity once reconciliation with England was no longer possible. Such a shift is evident in the 1776 Virginia Declaration of Rights. This Declaration harkened t o inherent rights, of which, when they enter a state of society, they cannot, by any compact, 67 Jonathan Elliot, The debates in the several state conventions on the adoption of the federal Constitution, as recommended by the general convention at P hiladelphia, in 1787. Together with the Journal of the federal e additions. Collected and rev. from contemporary publications, by Jonathan Elliot. Pub. under the sanction of Congress. (1836), 5 vols. Chapter: DEBATES IN THE CONVENTION OF THE COMMONWEALTH OF MASSACHUSETTS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, A ccessed from http://oll.libertyfund.org/title/1906/112216 on October 20, 2009. 68 112.

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147 deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of 69 Similarly, another famous and well known enunciation of this principle is seen in the 1776 American Declaration of Independence, which presumes the existen by any government. Rather, it is the duty and responsibility of any legitimate government to 70 Of course, both these documents were written after the decision to break with the mother country was made. However, this does not mean that these the Declaration of Independence but also appear in his earlier writings. In 1 774, two years before the Declaration of Independence, Jefferson submitted a written summary of his views on the nature of the colonial relationship with England for the Virginia convention which was formed to elect members to the First Colonial Congress. While the convention rejected his 71 In these writings, Jefferson began to set forth a more universal natural rights framework in order to counter the p olicies of the English while at the same time, continuing to pay homage to the Anglo Saxon mythology of the English as unique inheritors of the freedom possessed by the Germanic tribes of northern Europe. Jefferson noted that the colonists, before immigra ting to the colonies, possessed the natural rights given to all men. However, Jefferson 69 The Virginia Declaration of Rights, June 12, 1776, The Founde 6. 70 Declaration of Independence, July 4, 1776, 9. 71 The Portable Thomas Jefferson ed. Merrill D. Peterson (New York: Vikin g Press, 1975), xvi.

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148 Saxon forefathers, and ultimately to their Germanic ancestors. 72 Muc h of the reliance on a universal natural law view of rights coalesced in the early attempts to draft the first state constitutions. Many contained declarations of rights which enunciated a natural law type view of rights. Those constitutions that did not provided the participants with a platform to debate the basis for rights. The latter example is seen in the assachusetts Constitution by the delegates to the Essex C ounty constitutional convention penned by Massachusetts lawyer, and future Chief proper role of govern ment. 73 Parsons echoed the Lockean/Hobbesian view of government as formed voluntarily by persons and their sovereign. He argued, however, that the proper role of a free government was not just to secure the rights that existed in the pre governmental sta te of nature, but to secure the greatest happiness of the people. Any government that was destructive of these ends would constitute a tyranny that would reduce the citizens to slaves. Parsons made an interesting and important point in his objections. A s an attorney, Parsons was most certainly Commentaries Thus, on one hand, he discussed rights in the same fashion as Blackstone, dividing them into two main categories, inalienable and alienable, similar n of absolute and relative rights. Unlike Blackstone, however, Parsons 72 University of Chicago Press, Volume 1, Chapter 14, Document 10, http://press pubs.uchicago.edu/founders/documents/v1ch14s10.html last accessed October 10, 2009. 73 University of Chicago Press, Volume 1, Chapter 4, Document 8, http://press pubs.uchicago.edu/founders/documents/v1ch4s8.html last accessed October 2, 2009; Thomas West, Vindicating the Founders (Rowman & Littlefield, 1997), Background to Publius Vol. 20, No. 1 (Winter, 1990) : The North American Review Vol. 89, No. 184 (July, 1859) : 232, 234 235.

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149 did not just define inalienable rights as did Blackstone, referring to life, liberty, and property. Rather, Parsons described inalienable rights as rights of conscience. The rights o f the security of person and p roperty are what each citizen received in consideration for giving up voluntary control over his alienable rights by leaving a state of nature and entering society, channeling Locke. Further contrary to Blackstone, the inalie nable rights, the rights of conscience, cannot be controlled by any legislature. These rights are extra legal and not part of any bargain struck between the citizen and the state. The proposed Massachusetts constitution was defective, according to Parson s, as it failed to define clearly those inalienable rights in a bill of rights. The constitution was also deficient as it failed to describe the bargain between the people and the state with respect to their alienable rights by failing to note that each m an receives the security of person and property as consideration for the surrender of part of his natural rights. 74 The delegates of the town of Beverly, Massachusetts followed the lead of Essex County in objecting to the proposed 1778 Massachusetts consti tution, likewise rejecting it for the lack of a bill of rights. Conceptually, the Beverly delegates split rights into two categories, similar to the inalienable/alienable categories described by the Essex convention or the absolute/relative division descr ibed by Blackstone. What is novel in the Beverly split, however, is that they re so important that they must b e contained in a pre dates the French Revolution and the subsequent French Declaration of the Rights of Man and the Citizen, first enacted in 1789, which specifically invoked this term. 75 For the Beverly 74 Univ ersity of Chicago Press, Volume 1, Chapter 4, Document 8, http://press pubs.uchicago.edu/founders/documents/v1ch4s8.html last accessed October 2, 2009. 75 Lynn Hunt, Inventing H uman Rights: A History (N ew York: W.W. Norton, 2007), 21.

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150 delegates, the rights that were relinquished to society (referred to as alienable by the Essex convention) were not properly protected in the constitution as it failed to describe what ple received in return for parting with such rights. 76 This widespread concern over rights was remedied and resulted in the ratification of the 1780 Massachusetts constitution, where the failure to enunciate a bill of rights which listed the inalienable r was remedied by the insertion of a Declaration of Rights that comprised the first article of the constitution. 77 Indeed, many early state constitutions reflected this idea t hat rights existed outside the frame of government. It was important that the constitutions reflect the existence of these natural rights, but there was no idea that those constitutions provided the basis for those rights. 78 For example, in 1776, eight st ates created written constitutions, with two more adopted the next year. 79 In these constitutions, the states created written constitutions to enunciate the organization of their body politic once the Declaration of Independence effectively nullified their former royal or corporate charters, which had previously provided such a structure. Given the headiness of the early days of the Revolution, it is not surprising that many states included written declarations of rights in these constitutions. For exampl e, Maryland officially titled their 76 University of Chicago Press, Volume 1, Chapter 14, Document 17, http://press pubs.uchicago.edu/founders/documents/v1ch14s17.html last accessed October 6, 2009. Beverly is located in Essex County, Massachusetts. 77 Massachusetts Constitution (1780), University of Chicago Press, Volume 1, Chapter 1, Document 6, http://press pubs.uchicago.edu/founders/documents/v1ch1s6.html last accessed October 6, 2009. 78 Suzanna Sherry argues that the first state constitutions, many of which contained declarations of rights, the constitutions were not considered as granting these rights, but merely declaring those rights that already pre existed. The University of Chicago Law Review Vol. 54, No. 4 (Fall 1987): 1127, 1131 132. 79 In 1776, Maryland, Pennsylvania, Delaware, New Hampshire, South Carolina, North Carolina, Virginia and New Jersey all adopted written constitutions, while in 1777, Georgia and New York followed suit. See, The Avalon Project at Yale Law School, www.yale.edu/lawweb/avalon/avalon.htm accessed September 13, 2008 ; See also G. Alan Tarr, Understanding St ate Constitutions (Princeton: Princeton University Press, 1998) 61.

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151 80 In it, the right of Marylanders to the English commo n law was confirmed and included many familiar rights, such as the freedom of the press, the prohibition against the quartering of soldiers, and the mandate 81 Simila 82 The Pennsylvania Constitution majestically declared that all men possessed ment to enable them 83 An obvious omission to a modern reader of these constitutions is the lack of any enforcement mechanisms. This makes sense i f we appreciate that t hese documents were not intended to be the basis upon which the se right s existed. Blending of Concepts As was mentione d previously, these categories we re not exclusive and many in the founding era blended these concepts. Many writers espoused views that used natural law concepts, the remedies of the common law, and a view of rights as emanating from written documents, like colonial charters. The relian ce on the latter category of written documents as providing the sole basis for the right itself was a much newer development however 80 1776 Maryland Constitution, The Avalon Project at Yale Law School, http://avalon.law.yale.edu/17th_century/ma02.asp last accessed, March 16, 2011 81 1776 Maryland Constitution, Articles 38, 28, and 21. 82 1776 Pennsylvania Constitution, Preamble, The Avalon Project at Yale Law School, http://avalon.law.ya le.edu/18th_century/pa08.asp last accessed March 16, 2011 83 1776 Pennsylvania Constituti on, Preamble, Article I.

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152 The well known Massachusetts Circular letter of 1768 displays a good example of this multi tiered type of argument. Penn ed by Samuel Adams in response to the Townshend Acts and sent to the other colonies to justify and coordinate resistance to the new duties, the letter blended concepts of rights as predicated on natural law as well as provided by the English constitution. 84 Adams presented a view of the English constitution as the location where natural, fundamental rights were recognized. Citing the principle that private property cannot be taken without consent, Adams wrote that it nature, ingrafted into the British Constitution, as fundamental law . originally provide the right, but as the right now existed within the constitutional structure, it was entitled to the natural rights contained in the constitution and the levying of duties on imports n The October 14, 1774 Declaration and Resolves of the First Con tinental Congress also rested on several alternate foundations. Written in response to the Intolerable Acts, the Congressional delegates articulated their argument as to why such rights. In doing so, the Congress enunciated the perceived basis of their rights which blended America, by the immutable laws of nature, the pri nciples of the English constitution, and the several charters 85 Here, the delegates identified all three categories 84 11, 1768, in Constitution University of Chicago Press, Volume 1, Chapter 17, Document 13, http://press pubs.uchicago.edu/founders/documents/v1ch17s13.html last accessed October 2, 2009. 85 University of Chicago Press, Volume 1, Chapter 1, Document 1, http://press p ubs.uchicago.edu/founders/documents/v1ch1s1.html last accessed October 2, 2009.

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153 as the basis for their rights: natural law, the rights of Englishmen, and the contractual obligatio ns contained in their colonial charters. The Declaration further specified those rights which liberty, and property, a more natural law based principle with its genesis in the seventeenth century tradition of writers like John Locke in England. Second, they declared that their free and natural born subjects, with participate in legislative affairs as well as to the entitlements and protection provided by the immu nities and privileges granted and confirmed to them by royal charters, or secured by their they based their authority upon their status of English subjects, while at the same time partially recognizing doctrines of natural law. After his return from the First Continental Congress, John Adams undertook a lengthy wrote twelve separate articles published in the Boston Gazette from December of 1774 to April of 1775. The purpose of the Novanglus series was to respond to the pro British articles written y of Parliament over the colonies. 86 Not surprisingly, Adams blended multiple theories of rights in much the same manner as the 1774 Co ntinental Congress Declaration which Adams helped draft 87 86 George Carey, The Political Writings of John Adams ed. George Carey (Washington, D.C. : Regnery Publishing, 2000), 22. 87 Edmund S. Morgan, The Birth of the Republic, 1763 89 (Chicago: University of Chicago Press, 1956), 66.

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154 Adams began by countering the proposition that Parliament had legal authority over the American co lonies, and argued that neither divine sanction, the law of nations, nor the English common law provided any such basis S tatutory law purporting to give such authority was improper as it was done after colonial settle ment and without the consent of the colonists. 88 To support his assertion, Adams presented a number of arguments. First, he provided historical examples to argue that the colonies of ancient Greece were considered independent commonwealths while Roman col onies were at least granted privileges consistent with any Roman city. 89 Second, the allegiance of the Massachusetts colonists was to the King, not Parliament, as the colonists made an express contract with William and Mary following their ascension to the throne, with the contract represented by the delivery of the colonial charter. 90 Finally, in answering the ultimate question of whom, then, had the authority to make law for the en, do we New Englandmen derive our laws? I say, not from parliament, not from common law, but from the law of nature, and the compact made with the king in our charters. Our ancestors were entitled to the common law of England when the emigrated, that i s, to just so much of it as they pleased 91 natural law principles as well as from their written agreement with the king as contained in their charters. Adams conti nued to blend concepts by then equating natural law with English liberties. reserved to the citizen by the English constitution, which cleaved to our ancestors whe n the 88 The Political Writings of John Adams 43. 89 The Political Writings of John Adams 62. 90 The Political Writings of John Adams 73 74. 91 The Political Writings of John Adams 82.

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155 crossed the Atlantic. . 92 For Adams, English liberties are due the American colonists, liberties which are coincident with natural law principles. As we have previously seen with the Essex Result and the response of the Beverly delegates in reject ing the proposed Massachusetts constitution, the view of rights set forth was one predicated upon rights as natural and universal. In rejecting the constitution, these counties made it known that it was deficient as it failed to properly recognize these p re existing rights. Similar to the rejections by the Beverly and Essex contingents, the delegates to the Berkshire County convention also rejected the proposed constitution Berkshire County, the westernmost county in Massachusetts, had not only rejected the proposed 1778 state constitution, but had remained hostile to the General Court in Boston by closing courts throughout the county until another constitutional convention was called. 93 After delegates from the General Court met with the Berkshire Count y representatives, the representatives prepared a written response which explained the reasons for their actions. 94 There, the representatives articulated a vision of rights that incorporated numerous parts. First, they set forth a Blackstonian view of rights belonging to the people as either alienable, for the common good, or inalienable, which cannot be delegated to the government and which formed the basis for their complaints. Second, they echoed Locke b y stating that man originally existed in a state of nature. Man left the natural state to form the however, must make a distinction It is the co nstitution, as opposed to 92 The Political Wri tings of John Adams 84. 93 The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 ed. Oscar Handlin (Cambridge, Massachusetts: Harvard University Press, 1966), 366. 94 The Popular Sources of Political Authority 374

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156 people. . but does not provide the inalienable rights of the people; the rights that cannot be given up to any legitimate government. 95 Interestingly, while the representatives make these declaratory type arguments, the fear caused by a lack of an effective constitution caused many in the county t o close the courts until such a constitution was pro perly ratified. 96 The Berkshire County representatives thus set forth a blend of concepts over the proper location of rights. While man possessed rights in a state of nature, certain rights could not be taken away even after consenting to form civil socie ty and constitutions were enacted as safeguards to recognize and identify the existence of these rights. However, while constitutions did not provide the basis for these rights, for the representatives, the lack of a constitution was so dangerous that the y closed the courts until this was remedied. While the representatives did not set for a positivist view of rights as emanating from written constitutions, they evidenced the genesis of that concept. In his Lectures on Law given from 1790 to 1791, J ames Wilson addressed the question of rights. Wilson, a member of the Continental Congress, a framer of the Constitution as a delegate from Pennsylvania, and an original justice of the U.S. Supreme C ourt evidenced a view of rights which blended numerous foundations for support. 97 To begin with, when discussing the purpose establish ment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or unerring 95 The Popular Sources of Political Authority 375. 96 The Popular Sources of Political Authority 378. 97 The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 932 933.

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157 law, of our all wise and all 98 Wilson argued th at the purpose of government was to ensure the latter, to protect those rights that were granted by the divine, combining Lockean concepts of the social compact with early Christian ideas connecting natural rights as emanating from God. 99 For Wilson, gover existing 100 Wilson specifically have proper go lishment for their existence. 101 Man relinquished his natural rights upon entering society, as goes 102 For Wilson, this view of rights was fundame ntally flawed as it would place the government in the position of providing rights and man could only rely or invoke those rights which society provided. 103 On one hand, Wilson espoused a view of rights as natural and for any government to retain legitimac y, it must recognize and protect these pre existing rights. This view is contrary to the concept of rights as particular to the English which then includes implicit Blackstonian notions of limitless parliamentary supremacy. However, Wilson cloud ed this s eemingly simple 98 The Collected Works of James Wilson Vol. 2, Kermit Hall and Mark David Hall, eds. (Indianapolis, Indiana: Liberty Fund, Inc., 2007), 1053 1054. 99 Wilson, 100 Wilson, 1062. 101 1057 1058. 102 Wilson, 103

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158 Blackstone/natural rights binary when he discussed the methods by which these natural rights we re protected. For example, in discussing th e natural right of life, Wilson held that it was partially the common law that protected these natura l rights. Wilson interestingly described a right that found its basis in natural law, but grounding its enforcement in the common law which was a view of rights typically status as an Englis hman. 104 As we have seen, Wilson was not alone in his multi layered analysis of where rights obtained their authority. Indeed, the founding era debates evidenced a blend of numerous perceptions regarding this question These debates were crafted to oppose British colonial policy and evidenced that the ideas of where rights originated was ill formed and subject to numerous interpretations. The debate focused primarily on ideas of rights as liberties guaranteed to Engl ish subjects, rights as extra governmental natural and universal freedoms, and rights as a blend of these two However, the idea of rights as coming from written documents like colonial charters or early state constitutions existed only as additional supp ort. Arguments predicated upon a written document, like a charter, declaration of right, or early constitution, as providing the basis for the right itself are very much in the background As we will see in Chapter 5 this will begin to change. 104 1068.

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159 CHAPTER 5 RIGHTS IN THE EARLY REPUBLIC The confusion evidenced by the founding generation over the proper location of rights was not solved by the ratification of t he Constitution. Rather, these ideas co existed and began to compete as t he new nation entered the next century as courts, lawyers, litigants, and the people more generally wrestled with the concept of where rights fit within the new Federal scheme. As we have seen, the Barron litigation evidenced a more complicated picture as the various players all set forth differing views of where rights were located. This confusion, however, was not limited to Barron as case law from this era shows that that many other courts and litigants also held conflicting and sometimes contradictor y ideas regarding the location of rights. This c hapter will explore how courts, judges, and lawyers set forth many different views of where rights obtained their authority. The presence of these many varying interpretations demonstrates that ositivist view of rights set forth in Barron was not the only available outcome. Rather, there existed an ideological spectrum of rights all co mpeting for primacy. T hese views can be separated into four categories that were present during this era: right s as protected by the common law; rights as fundamental liberties which were simply recognized by written constitutions; written constitutions as the source o f rights; and, finally, rights as emanating from an inchoate blend of multiple sources. Rights as P rovided by the Common Law First, many viewed rights as coming from the wisdom and experience of the English common law similar to Judge Stephenson Archer the jurist who issued the trial court opinion in Barron. In Lindsay v. Commissioners (S.C. 1796) the South Carolina Constitutional Court was presented with a case which pitted the road commissioners appointed by the city of Charleston

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160 against a property owner whose land was taken for the purpose of constructing a new road. 1 The property owner sought a writ of prohibition to prevent the commissioners from proceeding with the construction. The primary basis was that the law was unconstitutional as it allowed a taking of property without consent, full compensation, or jury trial. 2 Because the court could not reach a majority decision, the writ was denied. However, the case is instructional as all parties, the judges and litigants used the vernacular of the common law to support their conflicting d that the taking violated the Ninth Article of the 1790 South Carolina Constitution which copied the language from the Magna Charta that no freeman could be disseised of his property except by a judgment of his peers or by law of the land. This provision is virtually identical to the similar article in the 1776 Maryland Constitution cited in the Barron case. 3 In support, they cited the natural law style opinion delivered by Justice Patterson in This case, relied upon by Ma yer and Hoffman during the appellate arguments, held that the Pennsylvania legislature had acted illegally by attempting to settle a land title dispute through enactment of legislation. Such an action effectively took property from one party and vested it in another without any compensation. 4 The plaintiffs also cited the 1792 South Carolina case, Middleton v. Bowman 5 There, the then South Carolina colonial legislature had, in 1712, attempted to resolve a boundary dispute by 1 Lindsay v. Commissioners 2 Bay 38 (S.C.Const.App. 1796). 2 Lindsay v. Commissioners 2 Bay at 38. The secondary basis for the writ was that even if the c ommissioners had such authority, they surpassed their legislative authority by making excessive tax assessments against the owners of the adjacent lots to pay for the improvements. Id 3 The only difference between the South Carolina provision and Artic le XXI of the 1776 Maryland Constitution is of this state 4 2 U.S. 304 (C.C.D.Penn. 1795). 5 Middleton v. Bowman 1 Bay 252 (S.C.Com.Pl.Gen.Sess. 1792).

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161 confirming the propriety of the title of one of the owners in the descendants of the owner following his intestate demise. Years later, the purchaser of the adjacent land brought suit and argued that this act by the colonial legislature was void as it was against the principles of t he Magna Charta as it effectively took property from the legal heirs without any due process. The property of one man and vested it in another without compensatio n or even jury trial. 6 The attorneys for the city of Charleston in Lindsay likewise viewed the common law as the basis upon which the city could take private property for public improvements. The city admitted that the rules against takings recognized in cases like and Middleton were correct as they violated t he Magna Charta and the South Carolina Constitution. However, the city argued that the power of the sovereign to maintain roadways for the convenience of society was part of the law of the land well before the Magna Charta or the South Carolina Constituti on ever existed. 7 Similarly, the city relied on continental theorists like Vattel that are normally considered part of the natural law tradition to support its case. For example, Vattel was cited for the argument that a state cannot exist if it cannot di spose of property under its authority for the public benefit. This right of eminent domain was an essential part of the sovereign power. 8 to the right the community h as over all property. 9 From these principles, argued the city, the 10 The city d id not 6 Middleton v. Bowman 1 Bay at 253. 7 Lindsay v. Commissioners 2 Bay at 40. 8 Lindsay v. Commissioners 2 Bay at 42. 9 Lindsay v. Commissioners 2 Bay at 42. 10 Lindsay v. Commissioners 2 Bay at 45.

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162 interpret the common law as given by the Magna Charta. Rather, the city argued for a more com mon understanding of what were originally considered English liberties. The common law, thus, tracked the wisdom of the ages formed when the mixtures of the customs of the Saxons, Normans, and Romans with that of the original inhabitants of the British Is les. 11 The court split on the decision. Two judges agreed with the city and held the right of eminent domain as an essential component of sovereignty and recognized in the common law. This sovereign right was part of the common law and was included in th e Magna Charta. The Magna Charta did not grant th is right ; instead, it simply confirm ed its existence 12 Likewise, the the common law provided the basis for the right of the sovereign to take property through its eminent domain power. No individual right could trump this power. For the other judges, the common law was just as important, but for different reasons. For t hese judges, the power to take property for public purposes was an essential attribute of sovereignty, but even Vattel argued that it must be done with compensation to the owner. 13 In addition to Vattel, the other side cited the sage of the common law, Wil liam Blackstone, for the proposition that the common law required compensation upon the exercise of the takings power. 14 For all the parties in Lindsay the common law was the basis for rights. It contain ed the basis for the right of the soverei gn to take property; it contained the right of the individual to demand payment. All claims to right flow ed through the language and concepts of the common law. 11 Lindsay v. Commissioners 2 Bay at 45. 12 Lindsay v. Commissioners 2 Bay at 48. 13 Lindsay v. Commissioners 2 Bay at 49. 14 Lindsay v. Commissioners 2 Bay at 49.

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163 In New York v. Goodwin (N.Y. 1820) the court held that the Fifth Amendment prohibition against double jeopardy applied in a state court proceeding. 15 The court held the double jeopardy rule applicable, but not necessarily because the Fifth Amendment applied to the state. To Chief Justice Ambrose Spencer, that was the wrong question, writing whether this provision be considered as extending to the state tribunals or not; the principle is a sound and fundamental o for good measure that the Fifth dicial tribunals in the United States, whether constituted by the 16 Goodwin raises two points. First, Spencer set forth a vision of the rights contained in t he Constitution w hich emphasized the declaratory nature of written constitutions t hemselves. Second, Judge Spencer equated fundamental rights, like the prohibition against double jeopardy, as protected by the common law. In discussin g the prohibition, Spencer cited Black stone, and stated that the 17 To Spencer, the common law grounds these rights. Written constitutions enunciate those rights, but do not provide them. Accordingly, it wa s wholl y irrelevant the extent to which the Constitu tion applies in New York as it wa s the common law which recognized these rights. The equation of fundamental principles with the common law was again shown in the 1844 case Commonwealth v. Flanagan (Penn. 1844 ). There, the Pennsylvania Supreme Court was presented with a motion by the defendants for a new trial after the initial case ended in a guilty verdict against them for murder. 18 Among other grounds, the defendants argued that the intense 15 New York v. Goodwin 1 Wheeler C.C. 440 (N.Y. 1820). 16 New York v. Goodwin 1 Wheeler C.C. a t 477. 17 New York v. Goodwin 1 Wheeler C.C. at 477. 18 Commonwealth v. Flanagan 7 Watts & Serg. 415, 1844 WL 5033 (Penn. 1844).

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164 excitement surro unding the charge of murder in the local community prejudiced them from having an impartial jury. 19 In denying the motion, the court addressed the portion of the Pennsylvania constitution which guaranteed a speedy trial by an impartial jury. The court sta ted 20 Furthermore, the question of what constituted a fair trial was a question for the courts. 21 In New York v. Toynbee v. Wynhammer (N.Y. 1856), the New York Court of Appeals was presented wit h an appeal from a conviction for selling alcohol subsequent to a n 1855 state prohibition law. 22 In holding the law unconstitutional, the court raised two important points. The first concerns its view of the role of the constitution in constraining the le gislature. As we will see later in this c hapter, there were courts that were beginning to hold the powers of the legislature supreme and limited only by the exact written prohibitions contained in the Federal Constitution or their own state constitution. In Wynhammer however, the court agreed with the contention that the legislature is not limited solely by the language of the constitution as written, tradition constitutions, are repugnant to reason, and subvert clearly vested rights, are invalid, and must be 23 For the court, the New York law deprived th e person charged with a violation of his property and, just like any other deprivation of property, wa s improper 19 Commonwealth v. Flanagan 7 Watts & Serg. at 418. 20 Commonwealth v. Flanagan 7 Watts & Serg. at 421 422. 21 Commonwealth v. F lanagan 7 Watts & Serg. at 421. 22 New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. 490 (N.Y. 1856). 23 New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. at 497.

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165 unless done in accordance with the strictures of fundamental law. 24 The fundamental law cited by the court included the provisions in the New Y ork Constitution (1846) regarding the prohibition against the deprivation of any rights or privileges except by the law of the land, the provision against the deprivation of life, liberty, or property without due process, or the provision outlawing takings of property without just compensation. 25 Importantly the Wynhammer court could then take property as long as it properly passed legislation allowing the tak ing. 26 Rather, the court held that it was the common law which determined whether the taki ng, for example, was done in accord with law. To hold otherwise would make the constitutional restraint on the legislature absurd as it would allow the legislature to circumvent its own prohibitions. 27 The second point raised in Wynhammer concerns enforcement. If the common law wa s the check on the legislature, the judiciary would naturally be the branch to determine questions of constitutionality of the laws. The concurring opinion anticipate d this role for the judiciary by enunciating the primacy of the common law and arguing that the common law wa 28 By celebratin g the common law as the means by which rights have been preserved over the centuries, and arguing that the new constitutions implicitly incorporate all of its many rules, the concept of the location o f rights was not only being perceived as emanating from outside of thos e 24 New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. at 495, 498. 25 New York v. Toy nbee v. Wynhammer 2 Parker Crim. Rep. at 498; New York Constitution (1846), Article I, Sections 1 and 6. 26 New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. at 498. 27 New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. at 498. 28 New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. at 511 512.

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166 documents, but the judiciary wa s positioning itself to be the branch that preserves those rights, instead of the legislature which were ostensibly the dire ct representatives Rights as Provided by Nature Second, fo r many, like Barron and Craig universal fundamental rights was paramount and was often coupled with the idea that these rights were declared in the various American constitutions. A good example of this logic can b e seen in court level regarding a dispute over competing land titles in western Pennsylvania. 29 In Vanhorne U.S. Supreme Court Justice Paterson, while presiding over the Federal Circuit Court in Pennsylvania, was called on to settle a dispute between two parties who claimed land, one who claimed superior title pursuant to a Pennsylvania law which quieted title and vested it in their possession. 30 arge to the jury, Paterson explored the propriety of the legislature specifically granting title in one party and, in the process, set forth his view of the new U.S. constitutions and the rights they contained. T he court discussed the available prohibitio ns on the action s of a duly e lected legislature According to the court, unlike the unlimited powe r of Parliament, the U.S. placed restrictions on the legislature. The critical key for the court was the written constitution which did not exist in England constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a 31 To the Court, the constitutions of the U.S. we 29 2 U.S. 304, 2 Dall. 304 (C.C. D. Penn., 1795). 30 The Cambridge Histor y of Law in America Vol. 1: Early America (1580 1815), ed. Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008), 542. 31 2 U.S. at 308.

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167 principles of fundamental laws are establi 32 The American act of writing down the rules of existing fundamental rights, one 33 is a primary object of the social compact, and, by the late constitution of Pennsylvania, was made 34 As a result, the court held that the Pennsyl vania legislature could not divest the party of title to land by legislation and to place title in the opposing party without compensation. 35 For the Vanhorne court, the Pennsylvania constitution was the enunciation of fundamental law. As a result, the court was required to void the offending law taking property as it did not comport with the fundamental laws of property which were contained in its Declaration of Rights. However, the court had not yet made the leap to looking solely to the constitu tion as the lone source of rights, holding that the offending act was unlawful in four respects: it was the comfort, peace, and happiness of mankind; it is c ontrary to the principles of social alliance in 36 In 1802, the Virginia courts were faced with the validity of a joint debt where one of the obligors was deceased. 37 In three persons jointly agreed to payment of 32 2 U.S. at 308. 33 Lessee v. Dorrance 2 U.S. at 309. 34 2 U.S. at 309. 35 2 U.S. at 309. 36 2 U.S. at 309. 37 3 Call 268 (VA. 1802).

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168 a £600 bond. Four years later, Virginia passed an act which provided that the representatives of a co obligor of a debt would be liable for the debt as if they were joi ntly and severally liable. 38 This act modified the common law rule which held that the executors of the estate of a deceased co obligor were discharged by the death. 39 After the law had passed, one of the co obligors died. Thus, the question before the co urt was which law to apply: the common law rule in effect at the time the bond was given, which would release the estate from the debt, or the subsequent 1786 law which would make the estate liable? More importantly for our purposes, the court was require d to determine whether applying the 1768 law would violate any rights of the parties that they held when they gave the bond. The court noted that legislative acts are to be interpreted as operating prospectively only. Otherwise, the subject law would act as an ex post facto law if it were criminal in nature. Even if the law did not hold any criminal penalties, it would be contrary of them at the time the bargain or agreement were struck. The court noted that the U.S. Constitution prohibited the states from passing ex post facto laws. That the Constitution was drafted and ratified after the date of the Virginia law in question was immaterial as the Consti 40 Approximately twenty years later in New York, the state chancery court was presented with a bill by a farm owner who sought to enjoin the trustees of his village who had successfully obtained an act from the state legislature to allow them to divert water from his upstream 38 Lyell 3 Call at 277. 39 3 Call at 268. 40 3 Call at 277.

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169 neighbor, thus depriving him of water essential to the maintenance of his farm. 41 In Gardner v. Trustees of the Vill age of Newburg h (N.Y. 1816), the chancery court, in an opinion written by Chancellor James Kent, cited the principle that a landowner has the right to the water that runs through his land and that any obstruction is a private nuisance, instead of a public nuisance that must be borne by all, making the damages special to the plaintiff and, thus, actionable in court. 42 Further, not only do the courts provide a procedural remedy, the court held that the right to the water is a property right that cannot be dis fundamental maxim of common right to be found in the Magna Charta and which the legislature 43 The court gra nted the injunction as it held that the act of the legislature which divert ed the stream without making just compensation violated his fundamental rights A ny act of the sovereign in appropriating private property for public use must be accomp anied by a just indemnity citing natural law philosophers Grotius and Pufendorf. 44 The court noted that this fundamental article of right in the constitution of govern been incorporated into the constitutions of Pennsylvania, Delaware, and Ohio, as well as in the U.S. Constitution in the Fifth Amendment, and even in the French Constitution of 1795. 45 41 Gardner v. Trustees of the Village of Newburgh 2 Johns. 162 (N.Y. 1816). While the opinion is simply written the Chancellor of the New York Chancery Court at the time. Carl F. Stychin The Commentaries of Chancellor James Kent and the Development of an American Common Law The American Journal of Legal History V ol. 37, No. 4 (Oct., 1993): 440 442. 42 Gardner v. Trustees of the Village of Newburg h 2 Johns. at 163. 43 Gardner v. Trustees of the Village of Newburg h 2 Johns. at 164. 44 Gardner v. Trustees of the Village of Newburg h 2 Johns. at 164. 45 Gardner v. Trustees of the Village of Newburg h 2 Johns. at 16 5.

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170 The Gardner case is instruc tive in two ways. First, the opinion shows that some courts view ed certain rights, like those prohibiting takings of property without compensation, as fundamental principles that we re enunciated and incorporated by written constitutions rather than provid ed by them. Second, Gardner helps provide insight into the litigation strategy pursue d by court in 1822, six years after the Gardner decision. Like the a ttorneys for Mr. Gardner, Barron e diversion of water could constitute a property right f or which actionable damages would lie. In New York v. Westchester (1848), private property was taken by the county to impro ve a road. While the 1845 statute required the road commissioners to reimburse any such property owner, and an amount was designated, a subsequent statute revoked the reimbursement. 46 The court held that the failure to reimburse the property owners not on ly violated the takings clause of the New York constitution as well as the contract clause of the U.S. Constitution, but that the legislature fundamentally exceeded its powers by passing the statute in question, characterizing the liquidated damages award as a vested property interest. 47 To the court, the legislature was not 48 Rather, purpose of all government was to protect life, liberty, and property. 49 provide this right. 50 Gardner v. 46 New York v. The Board of Supervisors of the County of Westchester 4 Barb. 64, 65 (N.Y. Sup Ct., N.Y. County, 1848). 47 New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 67. 48 New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 68. 49 New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 68. 50 New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 68.

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171 Village of Newburgh (N.Y. 1816) which held that all property taken for public use required compensation, further noting that the decision preceded the inclusion of the takings compensation requirement into the New York Constitution, which occurred during its 1821 constitutional revision, and noted that Kent held that the 51 The court further noted that this principle of compensation for takings of property was well recognized by legal scholars like Chancellor Kent and Jus tice Story, as well as by decisions of many state courts. 52 The purpose of written constitutions, to the Westchester court, was to rein in the legislature and not to provide the basis for rights, which to the court existed fundamentally outside of the cont rol of legislature and recognized in places like the Magna Charta and found in the social compact. 53 Rights as Enactments of Positive Law Third, the idea that the written constitutions provided the basis for the right in question Barron opinion In 1824, a New York court addressed an issue similar to Goodwin regarding the ap plicability of the Eighth Amendment to a state court proceeding. In Barker v. New York (N.Y. 1824), the court was 51 New York v. The Board of Supervisors of the Coun ty of Westchester 4 Barb. at 68; Gardner v. Trustees of the Village of Newburg 2 Johns. 162 (N.Y. 1816). 52 New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 68 69. The court cited Chancellor Kent in Gardner v. Trustees of the Village of Newburg 2 Johns. 162 (N.Y. 1816) and Justice Story in his famous Commentaries on the Constitution of the United States Section 1784. The court also cited the South Carolina Supreme Court in Bowman v. Middleton 1 Bay. (S.C. 1792) for the pro position that an act of the colonial legislature which resolved a boundary dispute by vesting title in one party violated the principle that property could not be taken without compensation. Interestingly, the New York court held that this requirement was upheld New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 69. While the Bowman court did hold that the act was void as to being against common righ t and the principles of magna charta 1778, that Constitution did contain the provision from the Magna Charta prohibiting the disseisin of property except by the law. See South Carolina Constitution (1778), Section XLI. 53 New York v. The Board of Supervisors of the County of Westchester 4 Barb. at 68.

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172 presented with a challenge to an 1816 state law which prohibited dueling. 54 The law stated that upon conviction for dueling, that person woul d be unable to hold any public office. 55 Barker appealed his conviction on the grounds that the Eighth Amendment prohibiting cruel and unusual punishment prohibited the sentence. While not specifically mentioning the Goodwin opinion four years earlier, Ba rney seemed to try to track former Chief Justice Spencer did not include a specific prohibition against cruel and unusual punishments. 56 Howev er, this hold of one man shall not be 57 The court, however, took the opposite view and methodically set forth the basis for the prohibition against cruel and unusual punishment. 58 The court recognized that the Eight h Amendment prohibited the practice as against the Federal government, and further noted that many of the states then amended their respective state constitutions to include the prohibition. 59 The problem for Barker was that New York was not one of those s tates. The court took a broad view of the powers of the state legislature, holding that the constitution gave it the power to define acts that constituted a crime and that the state legislature was not one of strict delegated powers, but the sovereign law making authority. 60 The 54 Barker v. New York 3 Cow. 686 (N.Y. 1824). 55 Barker v. New York 3 Cow. at 686. 56 Barker v. New York 3 Cow. at 689. 57 Barker v. New York 3 Cow. at 689 690. 58 Barker v. New York 3 Cow. at 693. 59 Barker v. New York 3 Cow. at 693.

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173 cannot be regulated or punished by the legislature. However, to determine what acts are deemed indicative of fundamental rights, the co urt looked again to the constitution itself. Five years after Barron was decided by the Supreme Court, the Pennsylvania Supreme Court was presented with an appeal on certiorari regarding the removal of a husband, considered by the court as a pauper, and h is wife from their property for which they held proper title. 61 In Forks v. Easton (Penn. 1837) the couple had lived in the Forks township but had purchased property in the nearby borough of Easton in 1832, building a house on the property over the course of the next year. 62 However, due to poor laws, the couple was required to bring a certificate of settlement from their former residence of Forks or, in the alternative, were required to post security with the Easton overseers of the poor in the event they became a public charge, as required by a 1771 state law. 63 As the couple did not bring a certificate or provide security evidencing settlement in Forks, the Easton authorities ordered them removed back to Forks, who appealed the decision of the county cour t approving the removal. 64 As the couple resided in their new home in Easton for almost four years before the order of removal, the issue before the court state law. 65 In support of the argument against removal, the court recognized English common law precedent which held that a pauper could not be removed from property he held as a 60 Barker v. New York 3 Cow. at 693 695. 61 Forks v. Easton 2 Whart. 405 (Penn. 1837). 62 Forks v. Easton 2 Whart. at 405. 63 Forks v. Easton 2 Whart. at 406. 64 Forks v. E aston 2 Whart. at 405. 65 Forks v. Easton 2 Whart. at 406.

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174 hall be dissiesed of his property. 66 However, while the court held that the removal did not technically constitute a dissiesen, it more importantly held that the provision did not apply here as the Magna Charta had no force in the U.S. 67 necessarily different here, where the principles of Magna Charta are no further in force, than they have been infused into our fundamental laws; and here is no such clause in our declaration of rights, or any ot 68 Significantly, the Pennsylvania Supreme Court echo ed Barron decision, viewing the guarantees of the Magna Charta as incorporated into the constitution, on one hand, while simultaneously holding that since the sub ject provision was not in the declaration of rights of the Pennsylvania constitution, the right no longer existed. 69 I n 1843, the Pennsylvania Supreme Court addressed an appeal by a business entity licensed by the state in 1803 to construct a dam on the Monongahela River. In the Monongahela Navigation Company v. Coons (Penn. 1843), the court entertained an appeal from the trial court who ruled in favor of the plaintiff whose mill on the Youghiogeny River, a tributary of the Monongahela, was damaged as a result of the obstruction of the water in the river upstream. 70 The 1803 statute allowed owners of property adjoining navigable rivers the right to erect dams on those rivers to allow power for mills, provided that they did not interfere with the navigatio n of the rivers. 71 The aggrieved mill owner prevailed in the trial court for damages against the 66 Forks v. Easton 2 Whart. at 407. 67 Forks v. Easton 2 Whart. at 407. 68 Forks v. Easton 2 Whart. at 407. 69 Forks v. Easton 2 Whart. at 407. 70 Monongahela Navigation Company v. Coons 6 Watts & Serg. 101 (Penn. 1843). 71 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 101.

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175 where the court held that the s tate of Pennsylvania, by incorporating the MNC, could not exempt the company as its agent for the incidental and consequential damages caused by the building of the dam to the private property of owners downstream. 72 On appeal to the Pennsylvania Supreme Court, the attorneys for the MNC logically presented their argument that there was no actual taking of private property by virtue of the abatement of the water flow that would g rant it a right to compensation. 73 existed in the written text of the C onstitution, arguing that it did not entail consequential injuries to property. 74 The majority opinion of the court ruled in favor of the MNC, agreeing that a taking, as defined by the Pennsylvania Constitution, did not occur. 75 Further, the court eng aged in a discussion which emphasized the pre eminence the Constitution took over similar action that could have been decided differently under the common law. For example, the court conceded, lly considered so far a species of ouster, that he might have had a remedy for it by assize of novel disseisin, or assize of nuisance, at his election, but we are not to suppose that the framers of the Constitution meant to entangle their meaning in the ma zes of jus antiquum 76 Rather, to the court, the state is sovereign and supreme, and its power c ould not be limited except as specifically provided by the Constitution. The state c ould not be sued except with its conse nt. Accordingly, if the state wa s not respo nsible for the damage, the MNC likewise was not liable, as the act which gave it 72 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 101. 73 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 107. The Court also cited Callende r v. Marsh (Mass. 1823) which is discussed more fully in Chapter Six. 74 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 107. 75 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 110. 76 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 110.

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176 corporate status did not provide for reimbursement for consequential damages, only for actual takings. 77 The court took an explicitly positivist view of the law of tak ings, arguing that the written Pennsylvania Constitution provided the basis for remuneration of takings of property, and as the Constitution did not specifically include consequential damages, the MNC would not be held responsible, further specifically fai ling to apply common law principles which could have provided for reimbursement. Bl ending of Concepts Finally, to add to the confusion, many courts blended these three categories, sometimes in the same case opinion. In 1843, a New York court was also pres ented with competing conceptions of the basis for rights when presented with a case where a plaintiff brought an action for trespass against the builders of a private road which they laid across his property. 78 In Taylor v. Porter & Ford (N.Y. 1843) builde road, allegedly without his permission. The builders did so pursuant to a 1772 New York statute which allowed the m to apply to the highway commissioners, who in turn would summon twelve local property owners to determine the necessity of the proposed road and, if so, to set the proper compensation for the owner of the property. 79 The court held the statute unconstitutional as it allowed property to be taken for private roads, thus taking privat e property for private use 80 For the Court, the issue of the amount of fair compensation for such a taking was irrelevant as the taking was not for public purposes and was not within the 77 Monongahela Navigation Company v. Coons 6 Watts & Serg. at 110 111. 78 Taylor v. Porter & Ford 4 Hill 140 (N.Y. Sup. Ct. 1843). 79 Taylor v. Porter & Ford 4 Hill at 141. 80 Taylor v. Porter & Ford 4 Hill at 144.

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177 eminent domain powers of the state. 81 Ju dge Bronson, writing the majority opinion, emphasized that this private taking violated the well accepted principle that the security of private property lies at the very heart of the social compact upon which all free government rested. Bronson used the level arguing that the social compact, and not a specific constitutional provision or statute, mandated that property taken for public use required reimbursement. 82 While the legislature is considered supreme, it nonetheless cannot violate this fundamental principle. To that end, the 1821 New York Constitution included language similar to that contained in the Magna Chart a and the Maryland Constitution which prohibiting t 83 Judge Bronson noted that the prohibition against the taking of private property without lawful process was codifi ed in the New York constitution, as well as in the constitutions of several others such as North Carolina and Tennessee. 84 However, this codification was not the dispositive issue. that was contained in the language of all of these prohibitions to note that this phrase required that only the common law could impose the manner through which private property could be taken, noting that the common law did not allow a taking for private use. 85 The court recognized that rights of private property against unauthorized takings were codified in many written constitutions, including 81 Taylor v. Porter & Ford 4 Hill at 142. 82 Taylor v. Porter & Ford 4 Hill at 142; Edward C. Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 32 U.S. 243, http://mdhistory.net/msaref06/barron/in dex.html (last accessed on April 5, 2008), 0065 (149). 83 Taylor v. Porter & Ford 4 Hill at 143; 1821 New York Constitution, Article VII, Section 1; 1776 Maryland Constitution, Section XXI; Magna Charta (1215), Section 39. 84 Taylor v. Porter & Ford 4 Hil l at 143. 85 Taylor v. Porter & Ford 4 Hill at 143.

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178 in those documen ts. Rather, the ultimate security of property was left to the restrictions handed down by the common law. In the Taylor dissenting opinion, however, Judge Nelson took a narrow er view of private property rights initially attempting to locate them solely within the written mandates of the applicable constitutions. Nelson noted that unlike the current state constitution, the first constitution (1777) which postdated the 1772 statute in question did not contain a specific prohibition regarding this exac t situation. Further, Nelson cited Barron as precedent which specifically e xcluded the Fifth Amendment from applicability. 86 Recognizing that a purely textual interpretation of the location of rights was not yet a completely accepted principle Judge Nels argument contemplates, depends upon this clause of the constitution, or rests upon the broader and more solid ground of natural right never delegated by the peop le to the law making power, it 87 For Nelson, the law wa s constitutional as a valid exercise of the road could still serve the pu blic interest of community growth. 88 T he majority and dissent ing opinion s in Taylor evidence an important interplay between ideas of the location of rights of property. For the majority, the constitutions of the several states emphasized the sanctity of p rivate property, but that the rights themselves did not come from those constitutions. Rather, the collective rulings contained in the common law provided the protection of those property rights fr om legislative encroachment. For the dissent, however, th e constitutions themselves 86 Taylor v. Porter & Ford 4 Hill at 144. 87 Taylor v. Porter & Ford 4 Hill at 144. 88 Taylor v. Porter & Ford 4 Hill at 144 45.

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179 were th e place where the right existed. Alternatively, even if the constitution did not provide the police power as paramount to individual rights made such a debate unnecessary In Day v. Maryland (Md. 1848), the Maryland Court of Appeals was presented with an appeal from a convict ion for violating a state law which prohibited the selling of out of state lottery tickets. 89 This law also required that any person suspected of sellin g illegal lottery tickets was required to answer a bill of discovery under oath which could then be filed against that person by the lottery commissioners in court. 90 Following conviction, the defendant appealed on the grounds that the law violated the com mon law as well as the Maryland constitution which recognized the protections of the common law and prohibited the compulsion of a person to bear witness ag ainst himself 91 The court, however, made a critical distinction in refusing to overturn the convic tion. The defendant stated that the common law guarante ed the prohibition against self incrimination and that this right, as well as all others enunciated by the common law, was incorporated into the Maryland constitution in its third article which states the inhabitants 92 The court was not persuaded by the legis lature was empowered to modify the common law. Further, the court held that the 89 Day v. Maryland 7 Gill 321 (Md. 1848). 90 Day v. Maryland 7 Gill at 322. A bill of discovery was a process by which a party could seek information about an opponent, through the production of documents or the answering of interrogatories under oath, before the suit was filed in order to assist in the prosecution of the case. This bill in an antiquated procedure which has been replaced by both by the Federal Rules of Civil Procedure as well as by most states, including Florida, which both allow discovery to be had only after the filing of the suit and in accord with strict rul es of procedure. See Law Dictionary Sixth Edition (St. Paul, Minn.: West Publishing Co., 1990), 166. 91 Day v. Maryland 7 Gill at 322; Maryland Constitution (1776), Articles III, XX (the court mistakenly refers to the nineteenth article instead of the twentieth). 92 Day v. Maryland 7 Gill at 323; Maryland Constitution (1776), Article III.

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180 consti tutional provision against self incrimination likewise did not apply as the provision was qualified by 93 To the court, the only constraints on the power of the legislature are those written prohibitions contained in the Maryland constitution or the applicable sections of the U.S. Constitution. 94 Reading those provisions narrowl y, the prohibition against sel f incrimination did not apply as the language of those documents did not prohibit the legislature from enacting a law requiring likely incriminating admissions. What we again see in Day v. Maryland are competing views of the location of rights. W hile th e court viewed the power s of the legislature very broadly and limited only by specific it of our social 95 The defense constructed its argument on a conception of rights as enunciated by the common law and incorporated into the written constitutions as a safeguard, not as a source of the rights themselves, while the court located th e law making power in the legislature and limit ed it only by the terms of the written constitution, ignoring any discussion of extra constitutional rules or notions of fundamental rights. These differing views were again seen when the same Maryland law wa s again litigated in 1855 in the case of Broadbent v. State (Md. 1855). 96 There, the defendants again questioned the law following their convictions on the grounds that they were compelled to incriminate themselves. The defendants likewise argued th at the prohibition against self incrimination was a fundamental principle recognized by the common law which 93 Day v. Maryland 7 Gill at 323; Maryland Constitution (1776), Article XX. 94 Day v. Maryland 7 Gill at 323. 95 Day v. Maryland 7 Gill at 322. 96 Broadbent v. State 7 Md. 416 (Md. 1855).

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181 was even recognized by the Magna Charta and which could not be surrendered to the legislature. 97 The Maryland Court of Appeals again held that this law w as within the scope of the powers of the legislature as nothing in the Maryland constitution prevented its enforcement. 98 In 1826, the Pennsylvania Supreme Court considered a law granting an upstream property owner the right to dam the Schuylk downstream, similar to the question presented to the New York Supreme Court in Gardner in 1816 In Schrunk v. Schuylkill River Navigation Company (Penn. 1826), the downstream plaintiff owned pro perty which fronted the Schuylkill and operated a fishery whose business was decimated by the dam erected by the Company who operated under an act of the legislature granted in 1815. 99 However, unlike the Gardner court ten years earlier which held that the water accordi ngly, Shrunk court viewed the issue differently 100 In Shrunk the Plaintiff appears to have hired William Rawle as counsel. As is discussed further in Chapter 6 Rawle wa s a major legal figure of the era whose writings, including his work on the U.S. Constitution, set forth his view that the Bill of Right s applied to both the Federal and state governments. 101 Before the Pennsylvania Supreme Court, Rawle argued that the deprivation of the right to the fishery in the waters was actionable for a number of reasons. First, the act authorizing the dam allowed fo r compensation for i njuries caused by the 97 Broadbent v. State 7 Md. at 419. 98 Broadbent v. State 7 Md. at 421. 99 Shrunk v. Schuy l kill Navigation Company 14 Serg. & Rawle 71 (Penn. 1826). 100 Gardner v. Trustees of the Village of Newburg 2 Johns. at 164. 101 Shrunk v. Schuy l kill Navigation Company 14 Serg. & Rawle at 72. William Rawle, A View of the Constitution of the United States of America Chapter X (Philadelphia, 1829), www.constitution.org/wr/rawle_10. htm last accessed February 23, 2010.

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182 diversion. 102 Second, the English common law gave his client a property interest in the fisheries that he lost 103 Finally, even if American courts had modified this common law rule, simple long standing custom exclu sive of the common law held that property owner 104 However, the court refused to recognize the English common law principle, holding that the rig ht to fishery in England is derived from the soil w here, in the U.S., that rule had never been applicable. 105 The court also bypassed any argument about fundamental rights of property owners which existed outside the written dictates of the law. Rather, th e court denied remedy to the Plaintiff, basing the simply on the view that the plaintiff did not suffer any special damages different than the public at large as he did not have a property interest in the fishery A s a result, his damages were damnum abse que injuria an injury without a remedy. 106 In 1830, the Pennsylvania Supreme Court address ed a writ of certiorari brought by the owners of the Germantown/Perkiomen turnpike. 107 The turnpike owners had been authorized by the l egislature in 1801 to build a road; however, in 1824 the legislature allowed the District of Kensington to lay out a town plan, and gave them eminent domain powers which encroached on part of the turnpike. Faced with these competing interests, the court h eld that the original act granting the company the right to build the road was a vested right. Accordingly, the court held 102 Shrunk v. Schuykill Navigation Company 14 Serg. & Rawle at 72. 103 Shrunk v. Schuykill Navigation Company 14 Serg. & Rawle at 73. 104 Shrunk v. Schuykill Navigation Company 14 Serg. & Rawle at 74. 105 Shrunk v. Schuykill Navigation Company 14 Serg. & Rawle at 78. 106 Shrunk v. Schuykill Navigation Company 14 Serg. & Rawle at 83. 107 Case of the plan of the Third Division of the District of Kensington 2 Rawle 445 (Penn. 1830).

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183 the general welfare, and that t he only security of the citizen, (and in most cases it is an ample public use, without the consent of his representatives, and without a just compensation being the Pennsylvania Constitution and allowing damages to the company. 108 This is significan t as the court specifically tied individual rights to the terms of the constitution, without any discussion or reference to any other n atural law basis, or even mention ing tha t the constitutional provision wa s declaratory of any natural of fundamental right. To the court, the right was to be found in the constitution itself. In 1839, the Maryland Court of Appeals entertained a dispute be tween the owners of a turnpike and a railroad company which presented facts similar to the famous U.S. Supreme Court decision in Gibbons v. Ogden (1824). 109 In The Washington and Baltimore Turnpike Road v The Baltimore and Ohio Railroad Company (Md. 1839), the Maryland legislature had incorporated the Washington and Baltimore group in 1812 for purposes of building a turnpike road from the District of Columbia to Baltimore. However, in 1827, the legislature incorporated the Baltimore and Ohio group and allo wed them to construct a railroad, part of which also ran directly between D.C. and Baltimore. 110 While the court denied remedy to the turnpike company by affirming the lower court without delivering an opinion, the arguments raised by the parties similarly tracked those made in the Barron case. For example, the turnpike company unsuccessfully argued, similar to Gibbons that the franchise given to them by t he legislature was a property interest and that the later incorporation of the railroad company along a similar route violated their vested 108 Case of the plan of the Third Divisi on of the District of Kensington 2 Rawle at 448. Pennsylvania Constitution (1790), Art. IX, Section 10. 109 The President, Managers, and Company of the Washington and Baltimore Turnpike Road v. The Baltimore and Ohio Railroad Company 10 G & J 392 (Md. Ct. of Appeals 1839). 110 Washington and Baltimore Turnpike Road v. The Baltimore and Ohio Railroad Company 10 G & J at 392.

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184 rights. As a result, the grant to the railroad company was void as it violated not only the presume the private rights of propert 111 To the turnpike company, their property rights required compensation for their infringement, while the railroad successfully pled primarily that the alleged damages were damnum abseque injuria an injury without a remedy. 112 Finally, w hile t his section primarily examined state court and lower Federal court cases, in order to gain a fuller picture of how courts and litigants were interpreting the basis of rights, a brief detour back into the Supreme Court is in order. In the same 1833 term th at the Supreme Court heard Barron the Court was also presented with the case of Livingston v. Moore (1833), where the Court was asked to decide the constitutionality of a Pennsylvania statute which allowed the state to lien and sell the real property of the former state comptroller who mishandled approximately $100,000.00 in state funds and, while acqui tted of criminal charges, resigned and was found civilly liable for the debt. 113 Years after the property was sold, the heirs of John Nicholson, the disgraced comptroller brought an action for ejectment against the owners and occupants who held title throu gh the purchase of the property at the sale. Interestingly, in Livingston the plaintiffs were represented by Roger Taney and Pennsylvania attorney and legislator Charles J. Ingersoll. While Ingersoll made the argument before the Supreme Court instead of Taney they nonetheless relied partially on the same argument made by the Plaintiffs in Barron Decided nine days after Barron Ingersoll and Taney were likewise unsuccessful. The legal argument devised by Ingersoll and Taney to recover the property was quite similar to that crafted Hoffman and Mayer in the Barron litigation. For example, they argued that the acts 111 Washington and Baltimore Turnpike Road v. The Baltimore and Ohio Railroad Company 10 G & J at 396. 112 Washington and Baltimore Turnpi ke Road v. The Baltimore and Ohio Railroad Company 10 G & J at 396. 113 Livingston v. Moore 32 U.S. 469 (1833).

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185 of the Pennsylvania legislature which resulted in the sale of the property violate d the Pennsylvania Constitution and the U.S. Constitution specifically the Contract Clause of Article 1, Section 10 barring a state from impairing the obligations of contract, the Fourth Amendment prohibit ing unlawful search and seizure, and the Seventh Amendment guaran teeing the right to jury trial and contr avened natural law principles that were partially recognized in documents like Magna Charta The plaintiffs argued that st universal law or common justice; 2d, the constitutional or organic law of this federal union of the s tates; 3d, the constitutional or organic law of the state of Pennsylvania. In other words, they violate natural, 114 Relying heavily on Vanhorne the plaintiffs argued that legislation that takes private prop erty without just com pensation wa 115 of legislation without compensation violated not only the Constitution, but more generally the principles up on which the Constitution declared or enunciated, but did not provide. The Supreme Court, in its opinion written by Justice William Johnson, relied on a strictly textual interpretation of the Constitution to dispose of the claim. Johnson evidenced a view of the legislature as supreme, except where explicitly restricted by the written prohibitions of a could confer, except so far as restricted by the instrum 116 Thus, in analyzing these decisions we see two trends that are occurring regarding the locatio n of rights in the first half of the nineteenth century. First, we see a complicated picture of where rights obtained their authority Some view rights as based in the natural law or the 114 Livingston v. Moore 32 U.S. at 482 483. 115 Livingston v. Moore 32 U.S. at 492. 116 Livingston v. Moore 32 U.S. at 548.

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186 common law traditions. By envisioning rights as grounded outside of written constitutions, the legislatures are positioned as the creators of ordinary law, but must mind carefully not to infringe on p re existing rights. Second, we see the rise of the concept of rights as granted by written constitutions themselves. Under this view, the legislatures were supreme and could pass any law unless specifically limited by the explicit written prohibitions of the constitutions. As this view revered the written constitution as the source of rights, c ourts which subscribed to this view employed a textual approach similar to Marshall in Barron While this approach is most familiar to contemporary lawyers and legal sensibilities, it does not change that this newer textual based interpretation did not immediately extinguish the competing natural law and common law traditions that stretched bac k centuries. As we will see there were many judges and lawyers who m aintained the logic of these older traditions.

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187 CHAPTER 6 THE BILL OF RIGHTS As we have seen, the question of the origin of rights was unsettled before and after Barron In the colonial and founding eras, t here w ere many conception s of where rights obtained their authority. Some argued that rights came from the English common law or were a birthright of Englishmen, others followed the European natural law tradition especially enunciated in the seventeenth c entury with the emergence of international law jurisprudence and many set forth a blend of these views Following t he ratificati on of the Constitution and into the early r epublic era a positive law interpretation emerged which held that written documents like constitutions grant ed rights. However, this positivist interpretation of rights did not extinguish these competing traditions. B y contextualizing Barron within the se larger debate s over the source of rights it becomes appare nt t vie w of rights as emanating from written constitution s was just one of m any possible i nterpretations. There are sch olars, however, who minimize this rights debate precisely because of their view that Barron was correctly decide d. S ome scholars discount competing ideologies regarding the location of opinion as proof that only his positivist view is accur ate. A prime proponent of this interpretation is Akhil Reed Amar who argues that the idea that the Bill of Rights declared pre existing rights applicable to all government, state and Federal, was largely slavery forces in response to repressive actions by Southern states to maintain slavery in light of abolitionist agitati on, such as censoring

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188 the free s peech and press of the abolitionists. 1 portray the full picture 2 Amar argues that abolitionist concocted a n argument that the Bill of Rights Amendments were not created to restrain the Fede ral government, but were inserted into the Constitution to declare the existence of pre views into the Constitution itself and to overrule Barron. 3 While Amar recognizes that many ante bellum lawyers and judges applied all or some of the Amendments to state action both before and after Barron and in courts both North and South, he min imizes the significance of this evidence. Instead of recognizing the existence of legitimate competing traditions, Amar dismisses those jurists as wildcards or outliers to a well accepted principle of non applicability of the Bill of Rights. 4 contrari properly credit th e larger natural law and common law tradition s that significantly preceded Barron and continued despite the ruling. 5 1 The Nature of Rights at the American Founding and Beyond Barry Alan Shain, Ed. (Charlottesville: University of Virginia Press, 2007), 165. 2 For this chapter, I am focusing on two of Ama The Bill of Rights and his 2007 chapter in the compilation, The Nature of Rights at the American Founding In the Bill of Rights Amar sets forth his argument regarding the correctness of the Barron decision and distinguishes co ntrary holdings by other jurists of the era. In his article in The Nature of Rights Amar builds on his prior argument by arguing that the idea that the Constitution simply enunciated pre existing rights, what he refers to as the declaratory theory, was i nvented by abolitionists in the 3 4 Akhil Reed Amar, The Bill of Rights : Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998), 145 147. 5 Amar, The Bill of Rights 145. Amar finds that these jurists used two main theories to support their claim that the Bill of Rights applied to state action. The first method he refers to as the negative implication theory which viewed the fa ilure to provide limiting language in the Amendments to mean that they had universal application. Amar refers to the second method as the declaratory theory of rights which argued that the guarantees contained in the Bill of Rights were not simply enacte d to check the new Federal government but simply declared the existence of those rights

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189 Amar arrives at his conclusion largely because of his particular perspective and his i nterpretive techniques First, Amar views Barron w ith a positive law interpretation very similar to that of a contemporary attorney concluding that, 6 Indeed, i f we read Barron through the eyes of a modern attorney, the op inion seems reasonable U nder our current system of jurisprudence, we look to written documents for guidance i n legal matters. A n attorney or judge seeks to ground their argument or ruling in precedent, such as a prior case from that jurisdiction, or in a statute, administrative rule, or constitutional provision. Without such support, most practitioner s would appreciate the futili ty of making a legal argument without citing some specific written document to lend wei ght to the argument. However, as we have see n the idea that recourse to a right depends on its inclusion in a written document for that right to exist was not always t he case in American jurisprudence. S econd Amar also partially relies upon the original intent argument made by Marshall in Barron Using what he Ma recognizes that the takings clause of the Fifth Am endment is not limited by the text to apply only to the Federal government. Amar notes that Ma r shall held the absence of such language harmless because the states were already in existence when the Constitution was drafted 7 Amar posits that Marshall was the Federalist Number 83 which stated that the new United States was the subject to which all the provisions of the Constitution referred. 8 Amar relies upon the anti Federalist view that the Bill of Rights was added to t he Constitution to limit 6 Amar, The Bill of Rights 142. 7 Amar, The Bill of Rights 141 8 Amar, The Bill of Rights 141

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190 the Federal government exclusively 9 In attempting ve history, Amar supports Marshall position that, at that the time of ratification, many state ratifying conventions demanded amendments to check encroachment by the new Federal government. Marshall held that there was never any implication that the suggested amendments would then bind th e state governments that were already well established at the time. 10 Thus, as Article I, Section 10 contains specific limits on state action if the Fifth Amendment was meant to apply to the states the framers would have made that clear in the same manner as Marshall noted. 11 This conclusion is based upon an historical interpretation of two founding era debates: (1) who created the Federal Union, th e states or the national people ; and (2) conclusions are not incorrect, but only represent one side of each of these founding era debates. First, Amar articulates a view of the Federal system as a creation of the state governments Certainly the anti Federalists plac ed the states at the center of this granti ng authority; however, there were also many who sought the establishment of the Federal government precisely because 9 Amar, The Bill of Rights 144. 10 Barron 32 U.S. at 250. Ot her scholars have recognized this, noting that during the ratification debates, Massachusetts, South Carolina, New Hampshire, New York, and Virginia all approved the Constitution specifically based upon assurances that the requested amendments would be pro posed for state ratification by the First Congress. Saving the Revolution: The Federalist Papers and the American Founding ed. Charles R. Kesler (New York, 1987), 228 29. 11 Amar, The Bill of Rights pp. 141 42. Article I, Section 10 of the U.S. Constitution contains specific limitations on state action, as follows: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque an d Reprisal; coin Money; emit Bills of Credit; make any Thing but go ld and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Co ntracts, or grant any Title of Nobility. No State shal l, without the Co nsent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspectio n Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, sha ll be for the Use of the Treasury of the Un ited States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consen t of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Pe ace, enter into any Agreement or Compact with another State, or with a f oreign Power, or engage in War, unless actually invaded,

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191 of what they felt was state excess. 12 Instead of the states creating the Federal government, this alternate view envisioned a sovereign nat ional people creating an entirely new government that would check and in s ome cases overrule the states. The actions of the state legislatures in the wake of the Revolution horrified many Americans. Many states had passed laws seen as indulging debtors t o the detriment of their creditors, such as allowing repayment of debts in a form other than hard currency or even halting the court system to frustrate collection. 13 Debt relief was not the only concern. While all states, and even the continental governm ent, all printed paper money to help support them during the Revolution, seven states continued the practice even after the War had ended. 14 For many, a ll the negative connotations of the term majorities running over the rights of property, seemed to manifest themselves in the state legislatures. These policies convinced many framers that the loose national confederation of states must be replaced by a strong United States with the power to end these practices Criticall y, the Constitution was ratified by the people through state constitutional conventions and not by the state legislatures, which supplied the necessary ideological connection between the founding of the Federal government by the people in a national sense and not the states. Related to this debate over who created the United States, t he states or a national people, were the questions regarding the intent of the Bill of Rights. In his study of the anti Federal opponents of the Constitution, Saul Cornel l notes that many objected to the Constitution for a number of reasons, including that it created an improper consolidation of the Federal and state governments, that the Federal government was insufficiently represented by the people by virtue 12 Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007), 28. 13 Holton, Unruly Americans 7 8. 14 Holton, Unruly Americans 8.

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192 of expansiv e house districts and lack of a popular vote for the senate, and, importantly for our discussion, the absence of a declaration of rights. 15 When the issue of the omission of a written bill or declaration of rights was raised in the final days of the 1787 C onstitutional Convention, the main objection to remedying the defect was that it was unnecessary. As the Constitution created a government of delegated powers, it had no power to act except as provided by the Constitution. Many pro Federal advocates also alleged that such a declaration of rights could even be dangerous as there was no way to possibly enumerate all rights. Of course, this did not satisfy the anti Federal opposition who ultimately approved ratification based on the express promise that the First Congress would provide amendments which recognized rights guarantees. Cornell notes the fondness that many anti Federalists had for written constitutions who expressed a literal style of interpretation in order to ensure that the powers split betwe en th e people and the government was explicitly understood. 16 For many anti Federalists, having a declaration of rights in the Constitution was important, not to provide their basis, but as an additional restraint on the government that certain rights exis ted and, thus, were outside of the scope of government. The 1776 anonymous text, Four Letters on Interesting Subjects is an excellent example of genesis of many of the essential components of what came to comprise American constitutionalism, especially r egarding the necessity of a separate constitution that enunciated fundamental principles that could not be modified by ordinary law. With respect to rights, the author discussed how it was important to set for the existence of the rights, but admonished: And for the same reason perfect liberty of conscience; security of person against unjust imprisonments, similar to what is called the Habeas Corpus act; the mode of trial in all law and criminal cases; in short, all the great rights which man never 15 Saul Cornell, The Other Founders: Anti Federalism and the Dissenting Tradition in America, 1788 1828 (Chapel Hill: University of North Carolina Press, 1 999), 30 31. 16 Cornell, The Other Founders 58.

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193 mean, n or ever ought, to lose, should be guaranteed, not granted, by the Constitution . 17 Cornell aptly notes that for many anti Federalists, these notions of rights were intertwined with concepts of federalism which held that states were the entities tha t would protect rights. 18 Cornell also notes that anti Federalist thought was not monolithic as many viewed constitutional permissible as long as they were passed b y a properly elected legislature and passed to further the public good. 19 Nonetheless, many anti Federalists still found the need for written declarations of rights. Right s were important as it reminded not only the representatives in government of essent ial boundaries, but also served to educate the populace. 20 Rights in this capacity operated as an important reminder of founding principles that the government should heed and that the people must not forget. The very idea of the Bill of Rights as providi ng the basis for the rights would have been unacceptable to many of these proponents as this would have allowed a court to determine the availability of a right. Indeed, for the anti Federalists, an overreaching Federal judiciary was one of their main poi nts of dissatisfaction with the Constitution. 21 As we will see from examining the opinions of some of these jurists who held the rights contained in the Bill of Rights applicably to state action, it is not accurate to exclusively view the Bill of Rights as providing the basis for rights. 17 Four Letters on Interesting Subjects (Philadelphia: 1776), The Founders' Constitution Volume 1, Chapter 17, Document 19, (The University of Chicago Press, http://press pubs.uchicago.edu/founders/documents/v1ch17s19.html (last accessed March 16, 2011). See also Gordon Wood, The Creation of the American Republic 267. 18 Cornell, Th e Other Founders 59. 19 Cornell, The Other Founders 79. 20 Cornell, The Other Founders 90. 21 Cornell, The Other Founders 31.

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194 This chapter will explore th is concept in three par ts. First, we w ill examine the opinions of the jurists that Amar classifies as prime Barron contrarians and will focus on two in particular: Joseph Henry Lumpkin of the Georgia Supreme Court and New York State Chief Justice Ambrose Spencer. Second, we will explore how other courts handled claims of right based upon the rights guaranties of the Federal Constitution. Finally, we will examine t he jurisprudence of John Marshall to appreciate how even his own decisions evolved over time. This evolution will show how by the end of his judicial career, a decision like Barron with such a positive law basis became possible. A quintessential Barron is Georgia Supreme Court Justice Joseph Henry Lump kin. 22 Nunn v. State (Ga. 1846) presents a good example of his theory that existing rights are declared not granted by written constitutions In Nunn the court received an appeal from a conviction under an 1837 Georgia law prohibiting the wearing of concealed weapons. 23 The court was asked to determine whether this law was Lumpkin noted that courts in Kentucky, Alabama, and Indiana had addressed similar concealed weapons laws and, while ru ling differently, all three assumed the right to bear arms existed in their respective cases. Lumpkin conceded that all three cases reste d upon guarantees contained in their state constitutions; however, he used this opportunity to espous e first, a declaratory view of the s e rights Constitutions; but these ins truments confer no new rights on the people which did not belong to 22 A History of the Supreme Court of Georgia ed. John Harris (Macon, Ga.: J.W. Burke Co., 1948), 24. 23 Nunn v. State 1 Kelly 243 (Ga. 1846).

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195 24 Second, Lumpkin also recognized that the United States was created by the people and recognized the dual role possessed by all citizens. Lumpkin argued that the Bill of Ri ghts was added to the Constitution at the insistence of many of the states who wanted more restrictions on the new Federal government. To Lumpkin, whether these rights were contained in the Federal or state constitutions was irrelevant; the act of writing these guarantees down and pla cing them into a constitution did not alter their fundamental basis and availability. Lumpkin argued that if the right to bear arms, abdication and flight of the last of the Stuarts and the ascension of the Prince of Orange, did it not belong to our colonial ancestors in this western hemisphere? Has it been a pa rt of the English Constitution ever since the bill of rights and act of settlement? And been forfeited here by the submission and adoption of our own Constitution? No notion can be more fallacious that this! On the contrary, this is one of the fundament al principles, upon which rests the great fabric of civil liberty, reared by the fathers of the Revolution and of the country. And the Constitution of the United States, in declaring that the right of the people to keep and bear arms, should not be infringed, only reiterated a truth announced a century before, in the whether living 3,000 or 300 miles from the royal palace. 25 Lumpkin approached the Barron issue un der different a ssumptions than Marshall Lumpkin understood rights as protections that belong ed to citizens which could be a pplied against governments. Declaring the protection to ensure that the new Federal government did not violate certain rights did not give the states license to do so. Thus, Lumpkin viewed rights from a declaratory rather than a positivist perspective Without specifically naming Barron Lumpkin recognized the precedent that the Bill of Rights applied solely to the Federal Governme nt. In order t o support his argument Lumpkin cited the pre Barron New York state case, New York v. 24 Nunn v. State, 1 Kelly at 251. 25 Nunn v. State, 1 Kelly at 251.

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196 Goodwin (1820), as precedent decided by New York Chief Justice Ambrose Spencer. 26 In Goodwin hibition on double jeopardy applied to the states or only the Federal go vernment Spencer held the controversy 27 Justice Spencer was urged by both attorneys that the Fifth Amendment either applied to the states or it did not. Spencer felt the dispute was immaterial as the prohibition was a fundamental principle of the common law. Spencer did state however that he believed that the Fifth Amendment applied as the Constitutio n was the supreme law of the land. 28 Interestingly, Justice Spencer went further and provided in dicta that he was of the opinion that Article VI of the Constitution (the Supremacy Clause) extended all Constitutional provisions that we re not specifically c onfined to the Federal government as also fully applicable to the states. 29 Justice Spencer followed this logic in a subsequent case which involved the takings clause of the Fifth Amendment. In Bradshaw v. Rogers (N.Y. 1822), the plaintiff landowner sued the agents of the canal commissioners for trespass after they entered his property and cut down trees in order to rebuild a portion of a private turnpike road that was broken up as a result of the building of the Champlain Canal offshoot during the constru ction of the Erie Canal. 30 While the defendants argued that state law authorized these acts, Spencer held them liable as the state law only provided for taking of land for the construction of the canal, and not to rebuild a road that was 26 New York v. Goodwin 18 Johns. 187, 200 (N.Y. Sup Ct. 1820). 27 New York v Goodwin 18 Johns. at 195. 28 New York v. Goodwin 18 Johns. at 194. 29 Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstand Goodwin 18 Johns. at 195. 30 Bradshaw v. Rogers 20 Johns. 103 (N.Y. Sup. Ct. 1822)

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197 damaged because of the canal, especially a private road. 31 More importantly, Spencer noted that the act which allowed the commissioners to take property to rebuild roads interrupted by the canal disturbingly failed to contain any provision of compensation for the owner. 32 S uch an omission would allow for uncompensated takings in violation of the Fifth Amendment as well as a similar prohibition contained in the New York Constitution. 33 Spencer recognized that the former related to the powers of the national government, and w as intended as a restraint on that were drafted to restrain the Federal government. 34 Barron analysis however, Spencer held this distinction as irrelevant. The prohibition against taking private property without providing just compensation applied in New York as this principle was declaratory of a fundamental principle of government. Any law violating that rule was void. 35 In Nunn Lumpkin cit Goodwin dicta on the Supremacy Clause and held that there was no language in the Second Amendment that limited it only to the Federal government. 36 In contrast to the Barron holding, Lumpkin argued that because the Bill of Rights was ratified to restrict the powers of the new Federal government, did it, 31 Bradshaw v. Rogers 20 Johns. at 104. 32 Bradshaw v. Rogers 20 Johns. at 105. 33 Bradshaw v. Rogers 20 Johns. at 105. 34 Bradshaw v. Rogers 20 Johns. at 105. The first New York Constitution of 1777 did not contain a specific prohibition against uncompensated takings, while the second Constitution of 1821 did. Spencer is apparently alluding to the fact that the 1821 Constitution was not yet full ratified as of the time of the case opinion. See N.Y. Constitution, Article VII, Section 7 (1821), http://www.courts.state.ny.us/history/constitutions/1821_constitution.htm (last acce ssed May 8, 2010) and N.Y. Constitution (1777), http://www.nhinet.org/ccs/docs/ny 1777.htm (last accessed May 8, 2010). 35 Bradshaw v. Rogers 20 Johns. at 103 36 Nunn, 1825 treatise. Amar, The Bill of Rights 146; See also footnote 37, supra

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198 f ollow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed it to rest in the State governments? Is this a right reserved to the States or to themselves ? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disenfranchisement from Congress, they ever intended to confer it on local legislatures. This right is too dear to be confided to a republican legislature. 37 Thus, b y izing one concept of rights that was emerging in the early r epublic. The intent of this chapter is not to argue that Amar is wrong. There is ample evidence to support his claims. Instead, this chapter argues that there also exists ample evidence to supp o one ideology had gained primacy during this era. position can be supported by one reading of the Constitution, another reading of the same languag e supports the opposite argument. Further, these a ntebellum jurists who held the Bill of Rights applicable to the states did so within an ideological tradition which viewed fundamental rights as something outside the realm of lawyers and courts. These jurists saw rights, such as prohibitions against taki ng private property without compensation or placing a defendant in double jeopardy, as fundamental principles that could not be given or taken away simply because of their inclusion or omission in a written constitution. 37 Nunn, 1 Kelly at 252. Michael Kent Curtis has also used and addressed the same two above cited excerpts from Nunn in his book, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights There, Curtis viewed the Fourteenth Amendment incorporation argument by approaching it in context of the pre Civil War abolition conflicts, where he discusses the effect of the Barron decision. Curtis concedes that a Barron issue lurking behind stability at the expense of liberty. It left southern states free to suppress speech and press on the question of slavery and left them free to deny procedural and tradition by antebellum jurists to hold the Bill of Rights applicable to the states, as was also recognized by Mazzone and Amar, in light of their perception of those rights as f undamental and reserved to the people, not the states. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke Univ. Press, 1986), 22 25. While I largely agree w ith Curtis, I am attempting to focus on Barron more closely on it s own, rather than in context of the Fourteenth Amendment incorporation debate

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199 T h is sentiment w as not limited to Justice Lumpkin in Georgia or Justice Spencer in New York. Rather this view can be found in all levels of the court system, state and Federal and appear both pre and post Barron Court decisions from the Supreme Court, to lower Federal courts, to state courts all had numerous instances of ruling s similar to Lumpkin and Spencer This chapter wi ll review many of the same cases as did Amar ; however, this chapter views the evidence differently. Where Amar sees ambiguity or wrongheadedness, the chapter see s competing ideological traditions. Consider first the U.S. Supreme Court. For example, Amar cites the 1819 Bank of Columbia v. Okely decision where the Supreme Court held the Seventh Amendment guarantee of a civil jury applicable in a state court pr oceeding. 38 There, the Maryland legislature, in its act incorporating a bank, gave the bank the right to use a summary procedure to levy on the assets or the person of a borrower who fell in default on the loan. The defendant argued that the law violated both the Seventh Amendment right to trial guarantee as well as section twenty one of 39 Writing for the Supreme Court, Justice William Johnson held the Maryland Constitution inapplicable as the section of the Magna Charta upon which it was based was meant to restrain governmental actions and not transaction between private individuals. 40 However, Johnson held the Seventh Amendment app licable but ruled against the defendant as the Court held that he properly waived 38 Bank of Columbia v. Okely 17 U.S. 235 (1819); Amar, T he Bill of Rights 145. 39 Bank of Columbia 17 U.S. at 239 240. 40 Bank of Columbia 17 U.S. at 244. The Court also held that Article 3 of the Maryland Constitution (1776) which also provided a right to a jury trial was also inapplicable for the same reasons. Parenthetically, William Johnson was a member of the Supreme Court when Barron was decided.

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200 its protections. 41 The basis for this view of the applicability of the Seventh Amendment is a bit uncertain as the bank was loc ated in the District of Columbia. While the laws of the State of Maryland continued to apply following the transfer of the D.C. lands from Maryland to the Federal Government after 1801, the fact remains that the case occurred in a Federal district and not a state. 42 However, o ne year later in Houston v. Moore (1820) Justice Johnson had another opportunity to address the applicability of the Bill of Rights Amendments to state action. In Houston the Supreme Court was presented with an appeal from Mr. Ho uston, a private in the Pennsylvania militia, who failed to muster when his unit was called by the U.S. government during the War of 1812, a violation of state law. 43 Following a state court martial, Houston was convicted and fined. To contest the executi on of the judgment against his real property, Houston filed an action for trespass arguing that Pennsylvania statute was unconstitutional as the state did not have the authority to punish his failure to report for duty for service of the Federal government 44 At the Supreme Court, Justice Johnson held the statute constitution valid and ruled against Houston in a concurring opinion In dictum, Justice Johnson, apparently referring to the Fifth Amendment, argued that prohibition against double jeopardy was a pplicable to both the Federal and state governments 45 Certainly, the Barron holding was known to the justices of the Supreme Court and we do not see o pinions post 1833 that relied on a purely declaratory theory of rights in the Supreme 41 Bank of Columbia 17 U.S. at 244. 42 Bank of Columbia 17 U.S. at 242. 43 Houston v. Moore 18 U.S. 1 (1820) 44 Houston v. Moore 18 U.S. at 3. 45 Houston v. Moore 18 U.S. at 35. The decision was five to two with Justices Story and Washing ton holding the Pennsylvania law unconstitutional.

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201 Court However, this did not mean that this view completely disappeared from the minds of counsel that appeared before the Court. In Holmes v. Jennison (1840), the Court was presented with an appeal from the denial of a habeas corpus petition. 46 The prisoner H olmes, was held under a warrant issued by the Governor of Vermont Jennison, and was to be turned over to a Canadian agent for a murder allegedly committed in the Quebec province. The Court was presented with the question of whether the acts of the Govern or were unconstitutional as they were delegated to the Federal government. Holmes was ultimately released as the Court held that Vermont had no basis to hold him for the agent of a foreign government, but the Court split on their reasoning. Taney, joined by Story, McLean, and Wayne, agreed that the denial of the habeas petition by the Vermont Supreme Court constituted sufficient final action to vest the Court with jurisdiction. Thus, Taney held that Vermont could not enter into an agreement with British Canada as it would violate Article I, Section 10 which held in part that no state could enter into a treaty, alliance, or agreement with a foreign nation without the consent of Congress. 47 The remainder of the Court held that Holmes did not have jurisdicti on under Section 25 of the Judiciary Act of 1789. T he Court relied on Barron to hold that the Fifth Amendment Due Process clause did not apply to Vermont, which would dispose of the case s imilar to Barron While the Court ruled against the petitioner, Hol made arguments that are instructional. Van Ness he presented an argument that made Constitutional assumptions similar to those set forth by Justice Lumpkin of Geo rgia Van Ness argued that Barron was quite simply wrongly decided. Van Ness believed that the Constitution made a distinction between limitations on the power of 46 Holmes v. Jennison 39 U.S. 540 (1840). 47 Holmes v. Jennison 39 U.S. at 570.

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202 government, on one hand, and rights that were by nature inherent and non divestible on the other 48 For example, Van Ness pointed out that the Ninth Amendment spoke in terms of 49 The Constitution thus recognized this distinction. As a result, the right of personal liberty that can only be deprived upon due process as declared in the Fifth Amendment w as a right designed for the protection of citizens that both the Federal and state governments were bound to protect Rights of due process were much different than li mitations on governmental power. The latter referred to powers that a government could otherwise lawfully exercise but for the limitation 50 In Holmes Van Ness presented his argument based largely on two assumptions. First, he presented a slightly more nuanced version of the dec laratory view of rights by differentiating between rights and limitations of power. For Van Ness, the right that no one can be deprived of liberty without due process was not subject to jurisdictional concern as this right was just that, a right. Second, Van Ness made a made an argument which recognized the existence of a sovereign people in the creation of the Federal union. According to Van Ness, t he right of personal liberty recognized in instead of limiting the powers of the gen eral government, directly calls into action those powers for the protection of the citizen. That it forms a part of the supreme law of the land, by which all the authorities of the states, as well as those of the Union, are bound. And that the establishmen t of the contrary doctrine would essentially weaken the security of the people; since it would leave without the protection of the paramount and superintending power 51 48 Holmes v. Jennison 39 U.S. at 555 556. 49 Holmes v. Jennison 39 U.S. at 557. 50 Holmes v. Jennison 39 U.S. at 555. 51 Holmes v. Jennison 39 U.S. at 557.

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203 J urists riding the Fe deral circuit courts also often found that the Bill of Rights Amendments applied to the states. U.S. Supreme Court Justice Henry Baldwin, while on circuit, held the Amendments applicable to state actions in Johnson v. Tompkins an 1833 case stemming from an attempt to recover a n enslaved fugitive from across state lines. 52 In Johnson a man enslaved to Caleb Johnson, a resident from New Jersey, escaped to Pennsylvania and was hired by John and Isachar Kenderdine. 53 Mr. Johnson, his brother, and two friends followed the enslaved man Jack, into Montgomery County, Pennsylvania. 54 After securing accommodations in the local tavern, Johnson and his party went to the Kenderdine residence. Creating a ruse that their wago n had suffered an accident, they were allowed to enter the Kenderdine home where they recognized Jack and took him into custody, which was initially made easier by the temporary absence of the men of the Kenderdine family. After shackling Jack and taking him back toward the tavern, the Kenderdines and a mob of between for ty and fifty caught up with the Johnsons and attacked them with clubs. The Johnson party was then sequestered in the tavern until a judge could be called. In a turn of events, Johnson an d his associates were held in custody on charges of kidnapping. Ultimately, after Johnson was acquitted, he brought suit against the justice of the peace and others who arrested and detained him. 55 In ruling in favor of Johnson, Baldwin took an expansive view of the applicability of the Amendments, arguing first that the Second (right to bear arms) Fourth (rights against unreasonable searches and seizures) 52 Johnson v. Tompkins 13 F. Cas. 840 (C.C.E.D.Penn., 1833). Henry Baldwin was also on the Supreme Court when Barron was decided. 53 Id As the enslaved man, Jack, was abducted in the kitchen of the home of his new empl oyer, it is plausible to believe either that Jack was hired as a domestic servant. 54 It is unclear from the case how Johnson knew that Jack was in Montgomery County, Pennsylvania. 55 Johnson v. Tompkins 13 F. Cas. at 842. Interestingly, after the initi al trial which cleared Johnson, he manumitted Jack who continued to reside near Johnson in Princeton, New Jersey. Jack also appeared in the first trial as a witness for Johnson.

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204 F ifth (rights of due process ) and Sixth (right to confront accusatory witnesses) Amendments applied to the states before holdi ng that all the Amendments applied 56 The rights contained in which we have referred you, they existed in their plenitude before an y constitutions, which do not create but protect and secure them against violation by the legislatures or courts, in making, 57 I n Bonaparte v. Camden & A.R. Co. Ba l dwin offered a similar analysis when presented with a dispute brought by Joseph Bonaparte, the older brother of the Napoleon Bonaparte and the former king of Naples and later of Spain. 58 elder Bonaparte left for America and eventually settled outside Bo rdentown, New Jersey on a two thousand acre estate. In order to transform rural New Jersey into a home befitting a former king, Bonaparte spent over $300,000.00 installing parks, walkways, gardens, a lake, and other similar improvements. 59 The problem was between the towns of Camden and Amboy, New Jersey, between which the state of New Jersey had incorporated a private company build a rail line. After workers of the Camden and Amboy Railroad Company enter ed onto his estate and marked out the proposed route, Bonaparte sought an injunction to halt work. In order for the court to issue an injunction, a plaintiff is required to prove that he will suffered irreparable injury; an injury is deemed irreparable if money damages 56 Johnson v. Tompkins 13 F. Cas. at 852. 57 Johnson v. Tompkins 13 F. Cas. at 852. While unclear, it appears the court exercised its Federal diversity Pennsylvania. This case pre dates Swift v. Tyson 41 U.S. 1 (184 2) which provided that Federal courts exercising diversity jurisdiction must apply statutory law of the state in which it is located but not the common law. 58 Bonaparte v. Camden & A.R. Co. 3 F Cas. 821 (C.C. Dist. N.J. 1830) Patricia Tyson Stroud, Th e Man Who had been King (Philadelphia: University of Pennsylvania Press, 2005), 221. 59 Bonaparte v. Camden & A.R. Co. 3 F Cas. at 821 Stroud, 222.

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205 will no t suffice. Here, Bonaparte did not plead that compensation w ould not be ma de. I n fact, the company answered the complaint and alleged that it intended to make full compensation and indeed that state law required it. 60 Rather, Bonapa rte argued that he would suffer irreparable injury as he would not be compensated for the damages that occur red during the construction. Even when presented with this rather loose definition of irreparable injury, Justice Baldwin held for Bonaparte and is sued the injunction. 61 Baldwin conceded that the applicability of the Fifth doubt. However, the question was immaterial as the principle expressed by the Fifth Ame be doubted whether as a constitutional provision, this applies to the state governments, yet it is the declaration of what in its nature is the power of all gov ernments, and the right of its citizens; 62 Later in the same opinion Baldwin again not find this dispositive as 63 Baldwin invoked natural law theorists Grotius, Pufendorf, and Vattel for the principle that w hile 60 Bonaparte v. Camden & A.R. Co. 3 F Cas. at 824. 61 Bonaparte v. Camden & A.R. Co. 3 F Cas. at 834. Specifically, Baldwin held that the company did not follow the compensation procedure set forth by the state in its articles of incorporation for the company. 62 Bonaparte v. Camden & A.R. Co. 3 F Cas. at 828. Interestingly, the editor prepari ng the case book included a foot note which cited the recent Barron decision that was entered after the Bonaparte opinion was issued. Bonaparte v. Camden & A.R. Co. 3 F Cas. at 829. 63 Bonaparte v. Camden & A.R. Co. 3 F Cas. at 831. For the propositio n that the Fifth Amendment might not apply, Baldwin cited Bradshaw v. Rogers 20 Johns. 103 (N.Y. 1822), a decision by New York Chief Justice Spencer which was cited by both the plaintiff and defendant for different purposes during oral arguments in the Ba rron appeal in 1830, discussed in more detail in Chapter 4, as well as later in this Chapter.

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206 the right to take property for public use is an attribute of sovereignty, the right to make just compensation is an absolute corollary to that right. 64 While William Johnson and Henry Baldwin ma de arguments in the Federal courts that viewed constitutions as declarations of pre existing rights, these types of arguments were also widespread among many state court jurists. S tate courts across the Union held all or portions of the protections contained in the Bill of Rights applicable to state action, both north and south. A number of state court jurists argued that the protections listed in the Bill of Rights could be applicable to state action, and for a variety of reasons. For example, in S tate v. Antonio the South Carolina Constitu tional Appeals Court was faced with an appeal from a defendant accused of counterfeiting. 65 The defendant argued that since the coinage of money was the exclusive domain of the Federal government, the state of South Carolina could not prosecute him for cou nterfeiting. 66 If the prosecution was held valid, the defendant argued, he cou ld conceivably be tried again for counterfeiting by the Federal government. The court held that as it was the practice between separate sovereign nations to recognize the finali ty of judgments of fellow courts, surely the same rule would be exercised between the state and Federal courts. The court felt th c ould not possibly happen: first, because it is the established comi tas gentium, and is not unfrequently brought into practice, to discharge one accused of a crime, who has been tried by a court of competent jurisdiction. If this prevails among nations who are strangers to each other, could it fail to be exercised with us who are so intimately bound by political ties? But a guard yet more sure is to be found in the 7th article of amendments to the federal constitution. 67 64 Bonaparte v. Camden & A.R. Co. 3 F Cas. at 828. 65 S tate v. Antonio 3 S.C. 562 2 Tread. 776 ( S.C.Const.App., 1816) 66 S tate v. Antonio 2 Tread. 776. 67 S tate v. Antonio guaranteed another nation, as a mere matter of indulgence, without any claim of right made. Comitas inter

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207 For the court, this belief that further prosecution would not lie was not just illusory because the Se v enth Amendment would bar further prosecution. 68 In State v. Buzzard (Ark. 1842) the Arkansas Supreme Court was presented with a challenge to a state law that outlawed the possession of concealed weapons as violating both the Arkansas Constitution and the Second Amendment. 69 While the Court ultimately upheld the law as a valid exerc the Court did not entertain any notion that the Bill of Rights protections were not applicable to state action 70 Rather, while the right to bear arms was c onsidered as fundamental, it must nonetheless bend to the common law maxim Sic utere tuo non ldas alienum : that one should use his property in a way that will not injure the property of others. 71 The Court did not rely on a textual reading of the Constitution to hold that the state law was valid; rather, they simply held that the rights contained in the Second Amendment, like all rights are never absolute in a commonwealth. The Arkansas Supreme Court maintained this view in Atkins v. State ( Ark. 1855) where it was presented with an appeal of a criminal conviction on a double jeopardy claim. 72 The Court again held that the prohibition against placing a defendant in jeopardy twice was prohibited by the Arkansas Constitution, the Fifth Amendment and in, perhaps, all of the American bills of rights a s well as by the common law. 73 While the Court held that the illness of one juror which caused a continuation of communitas ; or comitas inter gentes ; comi ty between communities or nations; comity of nations. Dictionary Sixth Ed. (West Publishing Co., 1990), 267. 68 S tate v. Antonio 2 Tread. at 778. 69 State v. Buzzard 4 Ark. 18 (Ark. 1842). 70 Buzzard 4 Ark. at 28. 71 Buzzard 4 Ark. at 32; Bla 1380. 72 Atkins v. State 16 Ark. 568 (Ark. 1855). 73 Atkins 16 Ark. at 573.

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208 the trial to the next term did not constitute double jeopardy, the Court viewed the prohibition against double jeopardy as a ri ght recognized by many sources: state constitutions, the Federal Constitution, the common law However, those sources did not provide the basis for the prohibition. The Court felt no need to engage in jurisdicti onal questions over the applicability of the Fifth Amendment to state court proceedings. Prohibiting double jeopardy was a given. Louisiana also routinely applied this logic when it encountered similar rights claims. In two separate cases, Justice John son of the Louisiana Supreme Court addressed double jeopardy appeals. In State v. Brown (La. 1844) and State v. Hornsby (La. 1845), Johnson held that the state could bring new trials as the filing of a nolle prosequi did not prohibit future prosecution ( B rown ) or a subsequent retrial on a lesser included charge ( Hornsby ). 74 In both opinions, Johnson held the double jeopardy prohibition of the Fifth Amendment applicable without reference to its applicability to state courts. For Johnson, the double jeopard y prohibition of the Fifth Amendment was simply a affirmance of a magna charta maxim of the common law 75 Similarly, in Mississippi v. Moor (Miss. 1823) the court w as faced with a case where a criminal jury retired to deliberate, but failed to a verdict before the statutory time for the court session expired. 76 The court ruled against the defendant seeking to use double jeopardy as a defense to a se cond trial. However, the court found the double jeopardy protections of t he Fifth Amendment applica ble as the Constitution wa and state. 77 The Mississippi court cited New York state law and specifically opinion in Goodwin as a persuasive interpretation of the Fifth Amendme nt. 74 State v. Brown 8 Rob. (LA) 566 (La. 1844); State v. Hornsby 8 Rob. (LA) 583 (La. 1845). 75 Brown 8 Rob. (LA) at 566. 76 M issi ssi ppi v. Moor 1 Miss. 134 (Miss. 1823) 77 M issi ssi ppi v. Moor 1 Miss. at 135.

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209 The Supreme Court of Georgia of course routinely ruled that the Bill of Rights applied to state action most notably by virtue of the influence of Justice Lumpkin author of the 1846 Nunn opinion discussed earlier. Certainly, Lumpkin continued his similar line of thought in subsequent opinions. In Flint River Steamboat Company v. Foster (Ga. 1848), the Court was presented with the legality of a state statute allowing steamboat workers to file liens on vessels whos e captains failed to pay wages. 78 After one steamboat company appealed the law on the basis that it violated the due process clause of the Fifth Amendment, the jury trial right of the Seventh Amendment, and the similar provisions of the Georgia Constitutio n, Lumpkin again had the opportunity to set forth his view of the applicability of these rights to the states. 79 In discussin g the right of the jury trial, Lumpkin explained, I t would be out of place, on this occasion, to expatiate on the importance of tr ial by jury. In England, it has long been esteemed the great bulwark and safeguard, both of civil rights and of political freedom. It is incorporated prominently into Magna Charta. Our ancestors, when they removed to this country, brought this admirable sy stem with them, as their birth right and inheritance. And for greater security, have had a guarantee for its preservation inserted, not only in the Federal, but in all their State Constitutions. 80 Similarly, in Allen v. Georgia (Ga. 1851), Lumpkin held t hat the Eighth Amendment applied to state action while in Campbell v. Georgia (Ga. 1852) he held that the Sixth Amendment right to confront witnesses also applied. 81 Indeed, in Campbell Lumpkin argued that t he entire Bill of Rights applied. In doing so, he again made two co nstitutional assumptions. First, the Bill of Rights Amendments which echoed 78 Flint River Steamboat Company v. Foster 4 Ga. 194 (Ga. 1848). 79 Flint River Steamboat Company v. Foster 4 Ga. at 197. 80 Flint River Steamboat Company v. Foster 4 Ga. at 204. 81 Allen v. Georgia 10 Ga. 85, 90 (Ga. 1851); Campbell v. Georgia 11 Ga. 353 (Ga. 1852).

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210 his other decisions like Nunn or Flint River 82 Second, Lumpkin again made an argument which also recognized the role of the people in the creation of the Union instead just the states, writing, For let it constantly be borne in mind, that notwithstanding we may have different governments, a nation within a nation, i mperium in imperio we have but one people; and that the same people which, divided into separate communities, constitute the respective State governments, comprise in the aggregat e, the United States Government . 83 However, Lumpkin was not the only jurist in Georgia to make these types of arguments. Justice Hiram Warner of the Georgia Supreme Court also held in Young v. McKenzie (Ga. 1847) that the takings clause of Fifth Amendment applied. 84 Warner was not unmindfu l of Barron as counsel for the defendant cited it for the proposition that the Fifth Amendment did not apply. 85 Rather, for Warner, Barron simply did not apply. Explained Warner, new principle of restriction which did not exist before? Did not the same principle of restriction exist, both as it regards the Federal and State Government, before the adoption of the amendment in question? Does the amended constitution do anything more than declare a great common law principle, applicable to all governments, both State a nd Federal, which has existed from the time of Magna Charta to the present moment? The amended constitution of the Union asserts a great principle applicable, it is said, to the National Government. Why is not the same great principle equally applicable t o the State Government? 86 Similarly, in Parham v. Decatur County (Ga. 1851), Justice Eugenius A. Nisbet of the Georgia Supreme Court was also presented with an appeal which questioned the legalit y of a state law which allowed the local road commissioner s to take unenclosed private property for 82 Campbell v. Georgia 11 Ga. at 361. 83 Campbell v. Georgia 11 Ga. at 362. 84 Young v. McKenzie 25. 85 Young v. McKenzie 3 Ga. at 36. 86 Young v. McKenzie 3 Ga. at 39.

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211 road construction, but only required compensation if the property was enclosed at the time. 87 Nisbet recognized that necessity sometimes warranted takings, but that this was not one of those occasions. Rather, the requirement that the sovereign provide compensation upon a taking was founded in natural equity of and could be found not only in the Bill of Rights but in the common la w, Magna Charta Commentaries Commentaries the writings of Continental theorists like Grotius, Vattel and Pufendorf, the Napoleonic Code, the Civil Code of Louisiana, and even in the laws which governed exotic lands like Turkey. 88 Nisbet was also aware that the Bill of Rights Amendments had been held inapplicable to state action, but this did not change his opinion. This obligation to compensate an owner of private property for a taking was a right that the Fifth Amendment simply declared and recognized. Nisbet was incredulous that placing the right in the Fifth Amendment somehow meant that it no longer existed unless it was specifically spelled out in the state constitution. For Nisbet, the power to take private property withou t compensation did not belong to any government. 89 D ecisions regarding the applica bility of the Bill of Rights were not simply a southern phenomenon attributable to Lumpkin and a few like minded judges. In Hoffman v. State (Md. 1863), the Maryland Appeals Court was faced with a double jeopardy appeal by a defendant convicted of murder. 90 At the first trial, a jury was selected and sworn in; however, the court iled to 87 Parham v. Decatur County 26. 88 Parham v. Decatur County 9 Ga. at 347 348. 89 Parham v. Decatur County 9 Ga. at 348. 90 Hoffman v. State 20 Md. 425 (Md. 1863).

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212 appear. The appeals court adopted a rule similar to the double jeopardy cases we have already discussed, namely that jeopardy did not attach until an actual verdict was rendered. 91 Here, t he court was presented with the appeal on the basis that th e second trial violated the double jeopardy clause of the Fifth Amendment. The court could have simply cited Barron and rejected the Fifth Amendment claim. Instead, the court held that the double jeopardy rule applied to criminal trials as an indispensib le part of the common law. 92 The Hoffman court interpreted the prohibition on double jeopardy contained in the Fifth Amendment as dec laratory of the common law, and held that the importance and value of the principle on which the motion to discharge is founded in this case, is shown in the fact, that although handed down by the common law for centuries, and recognized in innumerable instances, it was thought proper to embody it in the Constitutions of several of the States, and engraft it, by way of amen dment, on that of the United States. 93 Other state courts across the north also applied the Bill of Rights to state action and relied on similar constitutional assumptions. New Jersey, both before and after Barron held the takings clause of the Fifth Ame ndment applicable. New Jersey also presents an interesting example of how courts addressed rights claims where a state e ither did not have a constitution or had a constitution that contained few rights provisions. The latter example is seen in New Jersey rudimentary frame of government, but did not contain a separate declaration or bill of rights. Outside of a general provision for the applicability of the common law u ntil superseded by later state law, the 1776 New Jersey constitution only specifically listed the rights of religious freedom the right of a jury trial, and the right of assistance of counsel in criminal prosecutions, 91 Hoffman v. State 20 Md. at 434 435. 92 Hoffman v. State 20 Md. at 434. 93 Hoffman v. State 20 Md. at 432.

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213 but little else. 94 While the subseque nt constitution of 1844 corrected these omissions, New Jersey courts presented with rights claims before this time did not have the option of relying upon written provisions in the state constitution in order to locate rights. In Scudder v. Trenton Delawa re Falls Company (N.J. 1832), the chancery court was presented with an appeal by a property owner whose riverfront property was damaged by the construction of a nearby dam. 95 The court viewed the damages to the property owner not as a temporary inconvenien ce, but as a permanent injury. 96 The property owner objected in part to the law allowing the construction of the dam as it took private property without a mechanism for providing compensation in an amount set by a local jury 97 However, it was the court that cited the applicability of the Fifth Amen dment, and held that private property could be taken for public use as long as compensation was made 98 While the court ultimately refused the injunction as money damages could suffi ce to reimburse the property owner for damages, and did not require a jury trial to set the compensation, the court nonetheless held that compensation was required pursuant to the Fifth Amendment. For the Scudder court, the lack of a takings clause in the New Jersey constitution did not mean that the right of compensation did not exist as the Fifth Amendment enunciated the rule. While Barron was decided a year after Scudder the New Jersey Supreme Court had the opportunity to revisit almost the same issu e six years after Barron was decided. In Sinnickson v. Johnson (N.J. 1839), the cou rt reviewed the legality of a state law which allowed a property 94 New Jersey Constitution (1776), Articles 16, 18, 19, and 23. See also Gordon Wood, The Creation of the American Republic 271, n. 21. 95 Scudder v. Trenton Delaware Falls Company 1 N.J. Eq. 694 (N.J. 1832). 96 Scudder v. Trenton Delaware Falls Company 1 N.J. Eq. at 710. 97 Scudder v. Trenton Delaware Falls Company 1 N.J. Eq. at 712. 98 Scudder v. Tre nton Delaware Falls Company 1 N.J. Eq. at 712.

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214 owner to dam a canal that was exclusively on his property. 99 In Sinnickson the question before the court w as whether this law provided a defense to the owner of the dam from damages alleged by his upstream neighbors. 100 Similar to Scudder the absence of a state takings clause was immaterial. In fact, counsel for the defendant in Sinnickson attempted to distin guish those cases where private entities authorized by statute to make improvements were held liable for actual and consequential damages to owners of private property. 101 Counsel argued that those cases were decided by a reliance on the takings clauses of the various state constitutions. As New Jersey had no such provision, the legislature could exercise its sovereign power as only the constitution provided limits to check that power. The court, well aware of the Barron decision, held that Barron only meant that as a constitutional principle the Fifth Amendment did not apply. The court held Barron as irrelevant as the concept of only taking property upon providing a just compensation was and that the da mages alleged by the neighboring property owners were proper. 102 For the court, the obligation to make payment for takings existed entirely separate from any constitutional pronouncements as was recognized by natural theorists like Pufendorf, Vattel, Montes quieu, by Blackstone, and by American jurists and theorists like Ken t, Story, a nd Supreme Court justice Henry Baldwin. 103 For the Sinnickson court, this principle operated as an innate part of universal law that served as an essential counterbalance to the 99 Sinnickson v. Johnson 17 N.J.L. 129 (N.J. 1839). 100 Sinnickson v. Johnson 17 N.J.L. at 140. 101 The cases were: Gardner v. Trustees of the Village of Newburgh 2 Johns. 162 (N.Y. 1816) ; Crittenden v. Wilson 5 Cow. 165 ( N.Y. 1825); and Stevens v. Proprietors of Middlesex Canal 12 Mass. 466 ( Mass. 1815 ). 102 Sinnickson v. Johnson 17 N.J.L. at 142. 103 Sinnickson v. Johnson Bonaparte v. Camde n & A.R. Co. 3 F Cas. 821 (C.C. Dist. N.J. 1830) in support.

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215 Finally, in 1841 the New Jersey Supreme Court was presented with a claim for damages against a canal company by a property owner who alleged that their improvements caused the river that flowed through his property to ov erflow and destroy his crops. 104 In Ten Eyck v. the Delaware and Raritan Canal Co. (N.J. 1841), the canal company defended the case with many of the same argument s made by the c ity of Baltimore in Barron namely that they had been chartered by a legislative act of the state to take these actions they did so in full compliance with the enabling law and the damages suffered were non compensable public damages 105 Like the Barron trial court, the New Jersey Supreme Court did not find these arguments persuasive While property wa s not actually taken, the of these streams gave rise to an obligation to provide compensati on for the damage. 106 While the by owner. 107 The court did not locate the right to compensation in the New Jersey constitution as such right did not appear, nor did it cite the Fifth Amendment. It simply held that the right of the sovereign to take property could only be exercised upon payment of compensation, as if such a rul e were a given Across the river New York courts also heard similar claims arising from takings of private property. In People v. White (N.Y. 1851), the Supreme Court of New York County was presented with a question of what happens to property ta ken by the state under its eminent 104 Ten Eyck v. The Delaware and Raritan Canal Co. 18 N.J.L. 200 (N.J. 1841). 105 Ten Eyck v. The Delaware and Raritan Canal Co. 18 N.J.L. at 200. 106 Ten Eyck v. The Delaware and Raritan Canal Co. 18 N.J.L. at 201. 107 Ten Eyck v. The Delaware and Raritan Canal Co. 18 N.J.L. at 201.

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216 domain powers when the public project is abandoned. 108 In White land was taken by the state for the construction of a canal in 1819. By 1842, when railroads had surpassed canals as the preferred method of transportation the state abandoned the canal but maintained that it still owned the property. Like the Sinnickson court, the White court held that the eminent domain power was an attribute of sovereignty that could only be exercised upon necessity and payment of just compensation. According to the court, this principle was recognized and cited Grotius, Pufendorf, Blackstone, and Kent in support. 109 Also similar to Sinnickson the White court was aware of the Barron ruling which held the Fifth Amendment inapplicable to state action. 110 The court overcame the positive law obstacles with two arguments. First, the court countered Barron by holding that the takings clause of the Fifth Amendment 111 Second the court was aware that when the taking occurred in 1819, the New York Constitution of 1777 which was in effect at the time did not contain a similar takings prohibition. 112 New York had a similar constitutional experience as New Jersey. Until revision in 1821, the 1777 New York constitution provided little in the way of rights guarantees. 113 The White court deflected this problem and held that the obligation that takings ca n only be had upon public necessity and just compensation was a principle recognized by court long before the provision 108 People v. White 11 Barb. 26 (N.Y. 1851). 109 People v. White 11 Barb. at 28. 110 People v. White 11 Barb. at 28. 111 People v. White 11 Barb. at 28. 112 People v. White 11 Barb. at 28. The New York Constitution of 1821 incorporated a takings clause (Article VII, Section 7) as did the New York Constitution of 1846 (Article I, Section 6). 113 The 1777 New York constitution provided for the right to a jury trial (Art. XLI) an d religious freedom (Art. XXXVIII). New York Constitution (1777).

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217 was placed into the 182 1 state constitution. In support, the court cited Georgia Supreme Court Justice Young v. McKenzie (Ga. 1847) which held the takings clause of Fifth Amendment as declaratory of a pre existing common law right as well as the decision of Chancellor Kent of the New York Chancery Court in Gardner v Newburgh (N.Y. 1816) 114 In Gardner which was discussed in Chapter 5 the court set forth a view of rights as predicated largely on the idea that they existed as a matter of natural law. Chancellor Kent held that a could be found as far back as the Magna Charta However, t he obligation to make compensation for the redirection was a duty imposed on all government 115 Similarly, the Pennsylvania Supreme Court also addressed the issue of the applicability of the Fifth Amendment. In (Pa. 1851), the court struck down an act of the state legislature which order ed the s ale of a decedent in contravention of the terms of the will 116 According to the court, the due process clause of the Fifth Amendment prohibited the unilateral passage of a law which ordered the sale against the wishes of potential beneficiaries. 117 Due process required notice and an opportunity to be heard. 118 The court held that the Fifth Amendment and the similar clause in the Pennsylvania Constitution of 1838 (Article IX, Section 9) recognized this principle. The court did not address Barron or any argument holding the Fifth Amendment applicable only to the Federal government. Rather, the court simply assumed the applicability of the due princip le clause as it an affirmation of a great doctrine contained in 114 White 11 Barb. at 28; Gardner v. Trustees of the Village of Newburgh 2 Johns. 162 (N.Y. 1816). 115 Gardner v. Trustees of the Village of Newburgh 2 Johns. at 164. 116 16 P a. 256 (Pa. 1851). 117 16 Pa. at 263. 118 16 Pa. at 266.

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218 Magna Charta 119 The due process clauses found in both the Federal and state constitutions subtleties. They have their foundations in natural justice, and, without their pervading efficacy, oth 120 There were courts in New England who also addressed rights claims in similar ways. In Stone v. Dana (Mass. 1842), the Massachusetts Supreme Court discussed the legality of a state statute regarding the requirements of a search warrant, and held that if the statute made significant changes to the search procedure, it would run afoul of the search and seizure protections of the Fourth Amendment as wel l as a similar provision in the state constitution. 121 Courts in the western states also followed a similar view of rights. I n Stein v. State (Mo. 1828), a Missouri law allowed justices of the peace to try and sentence persons charged with beach of the pea ce offenses without the necessity of a grand jury indictment. 122 In assessing the legality of this law, th e Court looked to the due process clause of the Fifth Amendment as well as a similar pro vision in the Ohio Constitution In order to determine the mea ning of these provisions, the Court looked solely to Chancellor Kent who in his recently published Commentaries held that the rights of personal liberty that were written into all American constitutions derived their basis from the Magna Charta and simil ar acts of the English Parliament. 123 Thus, the meaning of the derived its meaning from English precedents. According to Kent, due process required 119 16 Pa. at 263. 120 16 Pa. at 263. 121 Stone v. Dana 46 Mass. 98, 102 (Mass. 1842) 122 Stein v. State 2 Mo. 67 (Mo. 1828) 123 Stein v. State Stein opinion. See Carl F. Stychin The Commentaries of Chancellor James Kent and the Development of an American Common Law The American Journal of Legal History V ol. 37, No. 4 (Oct., 1993): 440 443.

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219 presentm ent of charges by way of an indictment by a grand jury. These rules of due process were incorporated into both the Fifth Amendment as well as the Missouri constitution. 124 I n McArthur v. Kelly and Williams (Ohio 1831), the Ohio Supreme Court was presented with an appeal from a property owner who sought an injunction to keep the local canal commissioners from digging a water course over his property to supply water to a newly constructed canal. 125 In reviewin g the state law which gave the commissioners authority to create these water courses, the Ohio Supreme Court was guided by two principles. While a government can exercise its eminent domain powers for the greater welfare, it can only take property for (1) a public use and (2) upon a just compensation to the owner as recognized by the Ohio Constitution and the Fifth Amendment For the court, the obligation to pay for private property taken for a public use is a fundamental principle of which our constitu tions are only declarative, that when the government takes private property for public use, full compensation shall be made : 126 For the Court, Chancellor Kent was also persuasive as the court h eld his opinion in Gardner v. Newburgh (N.Y. 1816) as dispositive. 127 In Rhinehart v. Schuyler (Ill. 1845), the Illinois Supreme Court was presented with an appeal from a debtor whose property was sold to satisfy an outstanding tax bill 128 The debtor argue d that the law was unconstitutional as it violated the Illinois Constitution (1818). 129 While 124 Stein v. State 2 Mo. at 67. 125 McArthur v. Kelly and Williams 5 Ohio 139 (Ohio 1831). 126 McArthur v. Kelly and Williams 5 Ohio at 143. 127 McArthur v. Kelly and Williams 5 Ohio at 143 144. 128 Rhinehart v. Schuyler 7 Ill. 473 (Ill. 1845). 129 Specifically, the appellant argued that the sale violated three provisions of the Illinois Constitution (1818). First, it violated Article VIII, Section 11 which contained a provision similar to the takings clause of the Fifth

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220 the appellant only made a state constitutional argument, possibly informed by the Barron decision made a decade earlier, the Court did not feel so constrained. Th e court equated the 130 The court ultimately held the law authorizing the sale constitutional, but nonetheless did so by viewing the rights of due process as universal and not subject to jurisdictional limitations. ta ken only by following the dictates of law was a right Sa xon forefathers by magna charta. . 131 These opinions evidence the existence of a wide range of opinions regarding the basis for the rights guaranteed in the Bill of Rights. Courts across the country were presented with rights claims, from takings without compensation, to double jeopardy, to due process objections. Likewise, judges faced with these claims had a variety of interpretations of where these rights existed. If we revisit the opinion of the Barron trial court the decision in f avor of Barron and Craig falls along the same spectrum. There, the judge, Stephenson Archer, recognized that the rights of property included the d uty to use it in a manner that wa s not detrimental to others. 132 While Judge Archer r ecognized that certain damages we re damnum abs e que injuria (an injury Ame ndment. Second, he argued that it violated Article VIII, Section 8 of the which contained the language similar That no freeman shall be imprisoned or disseized of his freehold, liberties, or privileges, or outlawed or e xiled, or in any manner deprived of his life, liberty, or property, but by the judgment of that property taxes be determined by land va lue, which the appellant argued was violated as his property was either exempt or that the law in question allowed for an arbitrary method of valuation. Rhinehart v. Schuyler 7 Ill. at 473. 130 Rhinehart v. Schuyler 7 Ill. at 504. 131 Rhinehart v. Schuyler 7 Ill. at 504. 132 Judge Stephenson Archer, reprinted in The American Jurist and Law Magazine Vol. 4 (October, 1829): 203, 205.

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221 without a remedy) as well as noted the importance of the common welfare rule salus populi est suprema lex (the welfare of the people is the s to demand that he whose property has fallen a victim to the public service be compensated in 133 Judge Arch er he ld that the people of the c ity of Baltimore re graded these streets for their benefit and, as a result, should be held liable to reimburse them for the damages 134 Judge Archer found the c ity of Baltimore liable for damages in a manner very similar to the Barron 135 Archer adhered to a view that the Bill of Rights did not grant rights, but rather enunciated those rights th at the people already possessed. Second, Archer posited that the framers intended the people of the Union, as one nation, certain rights essential to their existence as a free government, and the infringement of [these rights] which, in any one state, 136 Archer cited William interpreta tion of its various articles and sections, including the powers granted to the Federal governmen t as well as its restrictions. specific 133 Archer, The American Jurist and Law Magazine, 205 206; William Novak, The People s Welfare: Law & Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996) 9, 128. 134 Archer, The American Jurist and Law Magazine, 212. 135 Archer, The American Jurist and Law Magazine, 212. 136 Archer, The American Jurist and Law Magaz ine, 211. Judge Archer stated that he believed specifically that the Second, Third, Fourth, Fifth, and Eighth Amendments cannot be abridged by any state; however, not the First

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222 Amendments which did not contain any such limitation were intended to apply to the states, tly denounced in Barron by 137 However, Rawle did not simply rely on this one interpretation alone to suppor t his argument. Rather, he set forth explanations that are both textual and extra constitutional. For e xample, Rawle investigated the limits on power contained in the body of the Constitution, such as the prohibition on laws passing ex post facto laws or those constituting bills of attainder which operate to restrain both the Federal and state governments, as set forth in Article I, sections 9 and 10 respectively. 138 However, Rawle held that Article I, section 10 was not the only part of the Constitution which constrained the states as the Bill of Rights Amendments also largely applied to both levels of gover nment. With respect to the First Amendment, he recognized that the text itself specifically referenced that Congress was prohibited from passing certain laws and not the state le gislatures While Rawle appreciated that limitation, he noted that the remai ning amendments did apply to the states as well as the Federal government not simply because they did not contain the prefatory term limiting it just to Congress, but that since these rights were incorporated as amendments to the Constitution they ] parts of the declared rights of the people, of which neither the state powers nor those 139 delineation of powers in the Federal system which held the powers not specificall y delegated to Congress reserved to the states or the people for the proposition that the people, in their capacity 137 Amar, The Bill of Rights 146. 138 William Rawle, A View of the Constitution of the United States of America Chapter X (Philadelphia, 1829), www.constitution.org/wr/rawle_10.htm last accessed February 23, 2010; U.S. Constitution, Art. I, Sec. 9, 10. 139 Rawle, A View of t he Constitution of the United States of America 5.

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223 as citizens of a nation, have certain rights that neither the Federal n or state governments can infringe. 140 s a similar logic that was followed by many jurists of the era. Archer felt that constitutions declared rights that existed at common law entirely separate from the documents themselves. In addition, Archer held the rights set forth in the Bill of Right s as those secured to the people, not the respective state governments. As we have seen, Archer continued a line of thought that began at the Constitutional Convention, where many felt that a national soverei gn people were creating a new government of the fundamentally alter the prior confederation of wholly separate sovereign states. T hese jurists maintained the ideological tradition of holding certain rights fundamental to the people and outside the realm of the government. 141 Whether the Bill of Rights applied to the states d id not get to the heart of the matter. Many of the Barron and even Judge Archer, who ruled in favor of Barron and Craig in the trial court phase, entertained doubts about whether the Bill of Rights applied to state action. 142 However, that question was immaterial. Placing the right to compensation for takings of private property did not mean that this right existed in the Constitution exclusively. Rather, they viewed the Fifth Amendment as simply recognizing the existence of the right. ding how a positive law opinion like Barron was even possible from the person who is known most for his advocacy of a strong national union. A decision which held that the states did not have to 140 Rawle, A View of the Constitution of the United States of America 5. 141 Barron contrarians. Their views are discussed more fully in Chapter 1. 142 Archer, The American Jurist and Law Magazine, 211.

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224 observe the guarantees of the Bill of Rights appears out of place when we consider the breadth of However, if we consider the Marbury (1803) to his final written decision in Barron (1833) we may be able to better explain the discrepancy Over the sp an of his time as Chief J ustice, the forcefulness and authority of his decisions gradually lessened for two decades due to judicial succession and the effects of presidential, namely Jacksonian, politics on the Court. If we return to the beginning of Mars Marbury we see Marshall asserting the right of the Supreme Court to hold legislative acts unconstitutional. 143 Marshall eloquently described the basis for this power by describing the purpose of a constitution: That the people h ave an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, are deemed fundamental And as the authority, from which they proceed, is supreme, and can seldom act, th ey are designed to be permanent (Emphasis supplied). 144 either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter 145 The language in this famous opinion is well known. But compare it to the opinions of Barron like Justice Lumpkin of the Georgia Supreme Court. For example, in Campbell v. Georgia (Ga. 1852), Lumpkin used l ogic much like Marbury when confronted with 143 Marbury v. Madison 5 U.S. 137, 178 (1803). 144 Marbury v. Madison 5 U.S. at 176. 145 Marbury v. Madison 5 U.S. at 177.

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225 states. 146 In regard to whether the Bill of Rights applies, Lumpkin conceded that the question, specifically referring to Barron was uns ettled but that nonetheless governments are not clothed with absolute and despotic power; but that independently of written constitutions, there are restrictions upon which the legislative power, growing out of th e nature of the civil compact and the natural rights of man. And that when certain boundaries are overleaped and a law passed subversive of the great principles of republican liberty and natural justice as for instance, taking away without cause, and f or no offence, the liberty of the citizen that it would become the imperative duty of the Courts, to pronounce such Statute inoperative and void. 147 Both Lumpki n in 1852 and Marshall in 1803 we re setting forth very much the same propositions, that t here we re limits to the legislative power and it is the duty of the courts to ensure the fundamental liberty of the citizens in the event those limits are breached. We can compare the language used in Marbury and Campbell to Barron written thirty years after Marbury In Marbury, Marshall bravely and radically set forth the equality of the judiciary in order to act as a guardian against encroachment from the legislature, much in the same ideological vein as Justice Lumpkin. However, thirty years later in Bar ron Marshall veered sharply into the perspective of rights as given or taken away by positive enactments of legislators. After reading sections 9 and 10 of Article I which place limitations of the powers of the Federal and state governments, respectively Marshall determined that all limitations on the inhibition intended to act on state power, words are employed, which directly express that intent; 146 Campbell v. G eorgia 11 Ga. 353 (Ga. 1852). The specific issue in Campbell concerned the admissibility of a dying declaration during the trial of the appellant, James Campbell, for homicide. The trial court allowed the testimony of a witness who alleged that the vict im told the witness that Campbell had perpetrated the crime, should have been excluded as violating the Sixth Amendment, while the State argue d, in part, that the Sixth Amendment applied only to the Federal government. While Justice Lumpkin agreed with the State that the testimony was admissible as it was made in anticipation of imminent death, he took the opportunity to expound on the admissib ility of the Bill of Rights that he began with Nunn v. Georgia 1 Kelly 243 (Ga. 1846). 147 Campbell v. Georgia 11 Ga. at 363.

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226 some stro ng reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed. We search in vain for that 148 What caused this evolution? Given the context of the null ification crisis well as the rise in abolitionist sentiment and the resulting demands for greater first amendment protection, it is plausible to believe that these contemporaneous events caused Marshall to make a political decision. Indee istorical context. T his career neared its end. The bold declarations of judicial power proclaimed at the outset of his career as Chief Justice in Marbury were no longer there in Barron which was his final opinion by some historians into three phases: first, from 18 01 through 1811, when Marshall dominated the decisions and direction of the Court; next, from 1811 through 1823, when he was forced to share power and compromise more in order to keep consensus, but clearly retained his role as the leader of the Court; and finally, from 1823 through his death in 1835, the time period of the Barron decision, when Marshall was forced to become increasingly accommodating in order to attempt to maintain control. 149 Although the exact dates of this trilogy are not universally ag reed 150 148 Barron v. Baltimore 32 U.S. at 249. 149 Hall, The Oxford Companion to the Supreme Court 526. 150 For example, both William Wiecek using his 1824 opinion in Gibbons v. Ogden as the end of his dominance over the Court. William Wiecek, Liberty Under Law: The Supreme Court in American Life (Baltimore: Johns Hopk ins Press, 1988) 53; William F. Swindler, The Constitution and Chief Justice Marshall (New York, 1978), 21.

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227 Marbury v. Madison where he took control of the Court and established the equality of the 151 Seven years later, in Fletcher v. Peck Marshall interpreted the Constitutional prohibit ion against state impairment of contracts contained in Article I, Section 10. 152 The second stage of Massachusetts by President Madison. Historians attribute the consensu s building aspect of this stage to the combination of the equally willful Story and William Johnson, who had been appointed by President Jefferson in 1804. 153 Nonetheless, finding an unusual ally in the republican appointed Story, Marshall continued to prod uce decisions that built on Marbury and Fletcher Federal government, regardless of the republican sentiments of the White House. For example, in Trustees of Dartmouth College v. Woodward Marshall again cited the Constitutional prohibition in Article I, Section 10 against state impairment of contracts and held that the royal charter granted by Parliament in 1769 to establish Dartmouth as an institute to educate and conv ert Indians was, in fact, a contract that the State of New Hampshire in 1816 was impairing as a result of its actions in seeking to reform the administration and direction of the Donald Morgan divided the Marshall Court into five separate periods (1801 1804, 1805 1811, 1812 1823, 1824 1829, and 1830 1833). However, Morgan or the trilogy cited above as he asserts the 1812 1824, citing Gibbons v. Ogden the most difficult period for Marshall until the last Chief Justice John Marshall: A Reappraisal ed. W. Melville Jones (Ithaca, N.Y., 1956), 171 183. Regardless of the particular timeline, it appears that most scholars consider the Gibbons Court. 151 Marbury v Madison 5 U.S. 137 (1803). 152 Fletcher v Peck 10 U.S. 87, 139 (1810). 153 Hall, The Oxford Companion to the Supreme Court 526.

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228 school. 154 Approximately one month later, in McCulloch v. Maryland Marshall u pheld the right of the Federal government to charter the Second Bank of the United States through the powers and insuring that the Federal government would not be limited, such as the government established by the Articles of Confederacy, to only those powers specifically enumerated in the text of the Constitution itself. 155 In Sturges v. Crowninshield (1819), Marshall held a New York State bankruptcy law which grant ed the discharge of debts incurred from contracts executed prior to the enactment of the law unconstitutional as it modified the terms of contracts that pr ohibition against state impairment of contracts. 156 Finally, in 1821, in Cohens v. Virginia Marshall did not hesitate to reprimand his own home state, Virginia, and reaffirm the appellate jurisdiction of the Supreme Court over state court decisions as not barred by the Eleventh Amendment. 157 which we should focus in order to attempt to find new meaning behind Barron 154 Trustees of Dartmouth College v. Woodward 17 U.S. 518 (1819) 155 McCulloch v. Maryland 17 U.S. 316 (1819). 156 Sturges v. Crowninshield 17 U.S. 122 (1819). 157 Cohens v. Virginia United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of Amendment was proposed (1794) and ratified (1795) in response to the Supreme Court decision in Chis h olm v. Georgia 2 Dallas 419 (1793). In this case, Chisholm served as the ex ecutor of an estate of a South Carolina resident who supplied the state of Georgia with materials to help fight the Revolutionary War. Chisholm sued the state of Georgia in Federal court to recover payment for these goods for the estate. The Supreme Cour t, under Chief Justice John Jay, held that Federal courts had jurisdiction to hear such cases, ruling against the state of Georgia who argued that its inherent sovereignty precluded the claim. The extreme backlash to this decision prompted the move toward the adoption of the Eleventh Amendment which disallowed such cases. Documents of American Constitutional and Legal History Vol. I, ed. Melvin Urofsky and Paul Finkelman (New York: Oxford University Press, 2002), 130 131.

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22 9 opinion. Ac cording to William W iecek was a time of frustration, accommodation, and reluctant concession. With one exception, the constitutional decisions of the Marshall Court after 1824 either fell short of the nationalist scope of the earlier opi nions, or met with severe resistance. And even that one exception Craig v. Missouri (1830), in which Marshall struck down a state note issued under the Bills of Credit clause of Article I, S ection 10 158 In 1824 in Gibbons v. Ogden the Court was faced with the constitutionality of a New York statute granting a monopoly to Robert Livingston and Robert Fulton to operate steamships within the navigable wat ers of the State. 159 Livingston and Fulton later licensed this right to the partnership of Aaron Ogden and Thomas Gibbons. After an acrimonious dissolution of the partnership, Ogden retained the rights under the New York monopoly, but Gibbons obtained a Fe deral license to operate the line. 160 monopoly by the New York State courts, the case came before the Supreme Court where it had to decide between the two permits, This question of which license was superior gave Marshall a platform from which he could expand the Federal powers by an opinion giving an expansive reading to the Commerce Clause of Article I, S ection 8. As could be expected, Marshall took aim, at least initially. Marshall acknowledged that the Constitution created a Federal government of enumerated powers, but asked, with respect to the power of Congress to enact its enumerated powers through 158 Wiecek, Liberty Under Law 53 159 Gibbons v. Ogden 22 U.S. 1 (1824); Wiecek, Liberty Under Law 50. 160 Irons, 131; Trade and Fisheries 1 Stat. 302, Ch. VIII, Feb. 18, 1793, cited in Swindler, The Constitution and Chief Justice Marshall 330.

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230 ought to be construed strictly. But why ought they to be so construed? Is there one sentence in 161 Mar shall held that the power of Congress to regulate commerce governed the matter but also used this opinion to expound on the extent of the commerce clause by famously responding to those who believe that this power is to be strictly construed, famously writ ing that, Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted, by construction, into the narrowest possible compass, and that the original powers of the states are ret ained, if any possible construction will retain them, may, by a course of well our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for u se. 162 Although Marshall recognized the right of a state to use its police power to regulate its internal and where su ch a conflict existed the state law wa s 163 Although Gibbons Federal jurisprudence, holding the state regulation as pre empted by Federal statute and building common law precedent by 164 Instead of simply asserting that the Federal government had exclusive power over inters tate commerce, regardless of whether 161 Gibbons v. Ogden 22 U.S. at 187. 162 Gibbons v. Ogden 22 U.S. at 222. 163 Gibbons v. Ogden 22 U.S. at 210 211. 164 Wiecek, Liberty Under Law 52.

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231 [Marshall] recognized that, though commerce must be regulated by Congress, local interests 165 Similarly, five years later in Willson v. Black Bird Creek Marsh Company (1829), we can see that Marshall continued this line of thought. 166 In Willson the owners of a sloop were sued for to recover damages to a dam built across a Delaware river. 167 The defendants appealed the decision on the ground that the river was a public highway and that the state had violated the Federal commerce clause by authorizing the dam which blocked public navigation. Much like his decision in Gibbons Marshall held t hat Delaware could exercise this authority because the Federal government had not passed any law regarding traffic or commerce on the river. Thus, the law which authorized the dam was constitutional as Delaware did not impede on the dormant Federal commer ce power. 168 Federal supremacy over commerce in Gibbons the surface of the opinion: slavery. 169 Wiecek further implies that Marshall may have recognized the growing gap between the Federal government and the states as exemplified by the slavery question. 170 To support this contention, Wiecek cites Elkison v. Deliesseline a United States Circuit Court opinion, decided by Justic e William Johnson while on circuit, from the year before 165 Chief Justice John Marshall: A Reappraisal ed. W. Melville Jones (Ithaca, N.Y.: Cornell University Press, 1956), 155. 166 Willson v. Black Bird Creek Marsh Company 27 U.S. 245, 2 Pet 245 (1829). 167 Willson v. Black Bird Creek Marsh Company 27 U.S. at 246. 168 Willson v. Black Bird Creek Marsh Company 27 U.S. at 252. 169 Wiecek, Liberty Under Law 52. 170 Wiecek, Liberty Under Law 52.

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232 power to regulate commerce under Article I, Section 8. 171 Wiecek argues that, as a result of the extreme backlash against the strong Federal position in Elkison when Gibbons came before the Court one year later, Marshall recognized the issue of slavery lurking behind Commerce clause cases as a critical dispute that precluded what would normally have been a routine decision where Marshall would expand the Federal commerce power to its fullest extent. 172 R. Kent Newm yer and Herbert Johnson both agree with Wiecek, in part, that Gibbons left some growing power of the rising factor. 173 After Gibbons Wiecek further noted that Marshall not only continued to fail to press his Federalist beliefs as he had so forc efully done in past cases, but in fact began to chip away at his own precedent. 174 Three years later, as seen in Ogden v. Saunders a dministration as in the Cherokee cases or the breaking up of the old judicial consensus with Justice [Smith] Thompson [replacing Marshall ally Henry Brockholst Livingston in 1824], were 175 In Ogden the Court, in a four to three opinion written by Justice William Johnson, held a New York State bankruptcy law Constitutional because it only applied 171 Wiecek, Liberty Under Law to remain on their ships; otherwise, the sailor would be detained if he came on land until such time as his ship departed. Further, the captain of the ship would also be refused, the sailor would be sold as a slave to recoup those costs. Id 172 Wiecek, Liberty Under Law 52 53. 173 R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Roug e, La., 2001), 314 315; Sturges v. Crowninshield and Ogden v. Saunders s Achievement: Law, Polit ics, and Constitutional Interpretat ions, ed. Thomas C. Shevory (Westport, Conn.: Greenwood Press, 1989), 48. 174 Wiecek, Liberty Under Law 54. 175 Swindler, The Constitution and Chief Justice Marshall 21.

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233 prospectively and did not alter contracts retrospectively as did the New York bankruptcy law held unconstitutional in Sturges v. Crowni nshield 176 To come full circle, the positive law interpretation of rights enunciated in Barron opinion does not even fit comfortably within his own jurisprudence much less with the opinions of contemporary state and Federal judges who did not en vision rights in the same fashion. Many courts evidenced a judicial philosophy that valued the primacy of the common law or of natural law in deciding cases rights cases Of course, many courts also adjudicated rights cases with the same positivist logic as Marshall in Barron This is not to attempt to state that one interpretation is more correct than another. Certainly, the Barron from our modern perspective, but advocating that interpretation as proof of its correctness to the e xclusion of all others is a teleological mistake. As was shown in C hapters 4 and 5 the concept of where rights obtained their authority was never an all or nothing question. Rather, the answers to this question formed an ideological spectrum instead of a binary On one end, we see rights as emanating from natural or universal law or equity. In the middle, there wa s the less ambiguous idea of the common law as the source of rights. While many liberties are conceptualized as the birthright o f Englishmen, the source of these rights can be traced to documents like the Magna Charta, to other documents that collectively make up the English constitution or to centuries of judicial pronouncements Finally, on the opposite end of the spectrum, we see the newer positivist ideology that held that written constitutions themselves must be invoked in order to assert a right. Thus far, this dissertation has explored these larger debates regarding where rights obtained their authority. However, we will now shift to examine the some of the reasons that these debates occurred. This study finds that Barron fits within a set 176 Ogden v. Saunders 25 U.S. 213 (1827); Sturges v. Crowninshield 17 U.S. 122 (1819).

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234 of much larger transformations that were occurring in the United States at the time. First, the U.S. was attempting to work out the p roper balance between the F ederal and state governments, which Justice Marshall feared was devolving into a col lection of states instead of a F ederal union. Second, the country was forced to confront the realities of enacting popular sovereignty and the q uestion of where final authority rested within such a system Barron speaks to both of these transformations.

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235 CHAPTER 7 SOVEREIGNTY warned an 1 835 a newspaper article which proceeded to list over thirty separate incidents of rioting, mobbing, and lynching occurring across the United States from New Orleans to Lynn, Massachusetts. 1 T he early republic witnessed numerous incidents where people did not look to the courts or th e government to redress g rievances, settle private scores, enforce community norms, or to abate nuisances. Instead, people often took action themselves, from commu nit y leaders seeking to silence abolitionist tracts by a local printer, to a neighborhood tearing up unwanted and dangerous railroad tracks, to the murder of a man who had dishonorable premarital sexual relations with a young girl. 2 Taken together, these individual and collective actions can be viewed as the exercise of extralegal authority by non governmental actors. However, a t a more fundamental level, what define s these actions as extralegal? Answering this question requires us to reevaluate our idea s of who makes, interprets, and enforces law To put it another way, it requires us to consider who possesses sovereign power, as an essential attribute of sovereignty is the power to make law and enforce discipline upon those found in violation. 3 Part o f the answer lies in the struggle over the proper role of the people in a system of government predicated upon popular sovereignty. The actors in these events personally exercised their sovereign power but did so by disregarding the formal legal mechanis ms of the state. As we will see, t hese acts had larger 1 Niles Weekly Register August 22, 1835, 439. 2 Elizabeth Dale, Constitutional Mythologies: New Perspectives on Controlling the State (Alain Marciano, ed., forthcoming from Springer 2011); University of Florida Levin College of Law Research Paper No. 2009 17, available at SSRN: http://ssrn.com/abstract=1361322 3 See William Blackstone, Commentaries on the Laws of England Vol. I (Chic ago: University of Chicago Press, 1979), 46.

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236 implications as the ir violent nature caused many to seek to strengthen the state as the vehicle through which sovereignty would be exercised. Poplar sovereignty would exist, but would be channeled an d moderated through the law making and enforcement apparatus provided by the state. Thus, these incidents can viewed not simply as extralegal but also as symbolizing a n assertion of sovereignty by the people These events evidence a common theme that ma ny people we re taking the idea of their own sovereignty seriously. Up to this point, this dissertation has discussed the ways in which th e concept of rights was being contested We examined the newer tradition of rights as emanating from written constitutions that arose to complement the existing concepts of rights as protected by the wisdom and custom of the common law or by a more inchoate basis in fundamental or natural law. W hile so far we have examined this debate regarding where rights deri ved their authority, this study will now shift to explore a larger question: why was this debate taking place? This chapter concludes that struggles over defining and implementing popu lar sovereignty caused a re evaluation in the conceptual location of wh ere rights obtained their authority. At a macro level, two ideological debates over sovereignty occurred simultaneously. The first con cerned the balance of state power. The federal system created by the Constitution set forth a concept of dual governme nts covering the same geographic territory. How would dual sovereignty work? Which government was supreme and over what issues? What were the proper boundaries between Federal and state power? Rights were not only adjusted to deal with this new system of shared or dual sover eignty, but sovereignty itself wa s being redefined. The struggle to delineate the proper balance of power between the Federal and state governments is a well known story. Indeed, it is a struggle that continues throughout American history. Howe ver, this struggle between the F ederal and state governments still took place under an assumption of

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237 state centered sovereignty. The second question raised an issue more fundamental than just feder alism: u ltimately, where did sovereignty re side? What form would popular sovereignty in government more generally, regardless of whether it was at the Federal, state, or municipal level? The answe r to this question was being worked out durin g this era. Ultimately, the the state, caused a reevaluation in the concept of rights because sovereignty and rig hts are inseparable concepts. One cannot undergo an ideological revision without redefining the other Transformations of Sovereignty Federalism First, the practical balance of the sy stem of dual sovereignty that is a hallmark of the U.S. federal system was one of those founding era questions that had to be worked out in practice. Marc us Dirk Dubber describes th is first transformation of sovereignty in the United States where the new nation struggled to define the proper b alance between the Federal and state governments. Dubber locates the origins of federalism by noting the conceptual problems encountered when a king or other sovereign absorbed a smaller political governing unit, par ticularly regarding how the smaller unit could be preserved in any capacity following integration into the kingdom. 4 Dubber argues that following the Revolution, the states had to address these same issues when attempting to create a federal union without destroying state governing authority. 5 In order to maintain any semblance of governing power by the states, the 4 Dubber, The Pol ice Power 44. 5 Dubber, The Pol ice Power 44.

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238 not continue as separate institutions of gove rnance: to surrender the police power, literally, was to surrender the right, and the power, of self 6 In August of 1829, William Thompson, captain of the ship Emily sailed into New York Harbor with a cargo of one hundred immigrants arrivi ng for the first time to America. 7 While immigrants such as these embarked for a new lif e in America, officials of the c ity of New York were not always pleased at their arrival. In 1824, in an attempt to stem the flow of mostly indigent Irish immigrants, the c ity passed a statute that mandated that the master of every ship entering New York from a foreign port, within twenty four hours, provide a written report of all persons disembarking. 8 This report was to include the name, place of birth, last legal settlement, age, and occupation of every passenger landing at the Port of New York. 9 The master of the ship was also required to post a bond of up to $300.00 to cover expenses in the event any of these immigrants beca me an indigent charge upon the c ity wi thin two years of their arrival. 10 Failure to provide such a report would subject the master and commander, the owner, consignee or consignees, to monetary penalties of $75.00 for each passenger not reported, or for every person whose biographical informat ion was falsely reported 11 In Miln the c ity assessed penalties of $15,000.00 for failing to submit the required report. Miln contested the assessment on the grounds that the law was an unconstitutional infringement 6 Dubber, The Pol ice Power 44. 7 New York v. Miln 36 U.S. 102, 131 (1837). 8 Barry Law Review 1 (2003): 15. While Finkelman posits that the law was designed primarily to protect against the flood of Irish immigrants, it i s unclear whether the Emily originated from Ireland. 9 Miln 36 U.S. at 104. 10 New York v. Miln 36 U.S. at 105. 11 New York v. Miln 36 U.S. at 104

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239 upon the Federal Commerce Clause, which reserves to Congress the right to regulate foreign and interstate commerce. 12 When the case finally reached the Supreme Court, during Justice Roger commerce and thus did not violate the Commerce Clause ruling that it was a permissible state police power function. 13 Paul Finkelman rightly notes that when the Supreme Court spoke of the state police power, it referred not simply to a notion of police as a modern law enforcement entity, but as representing a larger right of state and local government s to pass all laws necessary to protect the health, safety, and welfare of the citizenry. 14 Th e police power is tied up with notions of sovereignty, the right of a sovereign to enact regulations to ensure the common good. What we see in a case like Miln is a conflict over the boundaries of power within the federal system, wit h the Taney Court squarely b ehind the concept of balancing F ederal power by enunciating the role of the state police power at the F ederal level. While Dubber des cribes the role of police power as essential to maintaining the theoretical balance of a feder al system, Finkelman argues that the Supreme Court specifically promoted the concept of state police power largely in order to protect slavery. 15 Finkelman tied the basis for the Miln opinion to growing sectional tensions over slavery, arguing that the Cou rt was cognizant of the problems such as the Negro Seamen Laws enacted in South Carolina to keep black sailors from entering the sta te while their ships were docked. 16 Finkelman argues that the real message behind Miln was announce to the southern states t hat they could regulate who could enter their jurisdictions, 12 U.S. Const., Article I, Section 8, Clause 3. 13 New York v. Miln 36 U.S. at 152. 14 15 16

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240 Gibbons v. Ogden opinion. 17 17 Finkelman further notes that Miln represented the first time the Supreme Court expressly used the notion of state po lice power to recognize the validity of a state law. Before this time, state laws challenged on the grounds of repugnancy to the commerce clause were routinely overturned. Miln In Brown v. Maryland 25 U.S. 419 (1827), a Maryland law required all wholesale importers and sellers of foreign goods to purchase a $50.00 license. The issues before the Court were: (1) did the la w violate Article I, Section 10 prohibiting states from laying duties on imports/exports without the consent of Congress; and (2) was it repugnant to the Commerce Clause? Taney, arguing for the s tate of Maryland, held that the law did not constitute a tax on imports/exports, but was an occupational tax on the importers and sellers after the goods were within the s tate. Taney argued that this law was an incident of sovereignty and the right to tax remained with the states. If the law was struck down, what would prohibit an importer of gunpowder from selling it anywhere free from all attempts by the state to intervene? gunpowder is a branch of the police power, which un Brown v. Maryland 25 U.S. at 443. While Marshall recognized the existence of a state police power, he held the law as repugnant to the Constitution as it constituted a levy on imports/exports, not a reserved state tax, and violated the Commerce C lause. Inde ed, the concept of police power existed in Federal jurisprudence earlier than Miln both explicitly and implicitly. As noted above, Brown v. Maryland (1827) specifically used the term. S imilarly, Marshall recognized the concept in Gibbons v. Ogden (1824). Gibbons 22 U.S. at 81. In addition, there we re cases that implicitly recognize d the state police power such as i n Willson v. Black Bird Creek Marsh Company 27 U.S. 245 (1829) which wa s discussed in Chapter 6. Miln represents the first time the state police power was affirmatively recognized as a legitimate exception to the Commerce Clause, for example, but the concept was enunciated earlier. Taney seemed to exploit the failure of th e Supreme Court to ever make a complete preemption argument and used that spac e to enunciate the police power concept. Finally, it appears that the whole line of cases including Miln held the police power as the exclusive province of the states. The issu e was raised most often in relation to the Commerce Clause challenges and the tension between the two drove the analysis of whether a law was a permissible police power or an unconstitutional violation of the Commerce Clause (Article I, section 8) As the re was no universal appreciation of the c ommerce power as exclusively residing with Congress, this provided space for the police power argument. Throughout the Miln is cited mostly approvingly, along with Gibbons Willson and Brown Th ere are a number of cases where it is cited, but for interesting reasons. For example, Thurlow v. Mass. 46 U.S. 504 (1847), Taney held three state laws limiting the purchase of liquor to wholesale quantities did not violate the Commerce Clause. The atto rneys cited Miln in addition to Gibbons Willson and Brown case of the City of New York v. Miln 11 Pet., 130, the question as to the power of the States upon this subject [the relationship between the commerce clau se and the state police power] was very fully discussed at the bar. But no opinion was expressed upon it by the court, because the case did not necessarily involve it, and there was great diversity of opinion on the bench. Consequently the point was left o pen, and has never been decided in any Thurlow v. Mass. 46 U.S. at 584. This makes more sense if you look at Smith v. Turner 48 U.S. 283 (1849), where Justice Wayne held that New York and Massachusetts laws which imposed taxes on alien passengers violated the Commerce Clause. Wayne stated that Miln was reported incorrectly. Wayne stated that four of the justices felt that Gi bbons and Brown meant that the Federal government had exclusive commerce clause power, and three felt otherwise. Additionally, the justices split Justice Thompson was assigned the task of writing the decision on the grounds that the law was a constitutional police regulation. However, when he read the opinion, a majority of the justices did not agree with it over the extent of Smi th 48 U.S. at 430 432.

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241 Analyzing Miln with an eye to the F ederal/state sovereignty tension, we can look at Barr on in a new light. By focusing on a view o f police power as a state, as opposed to Federal, function, we can see that a decision enunciating and preserving the police power as a prerogative of the states was critical to maintain the balance of the F ederal system as Miln recognized four years after Barron First, by viewing rights as granted by the U.S. Constitution and then holding them inapplicable, the Marshall court reaffirmed the dual sovereignty prescribed to the states in the Federal system, as not ed by Dubber. For example, Marshall held that t he constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constit ution for itself, and in that constitution, provided such limitations and restrictions on the 18 Marshall rejected the view that American government, Federal or state. 19 To a great extent, Barron between the Federal and state governments over the parameters of their respective sovereignties M uch of reflected personal and historic c onnection s to contemporary events but Barron seems out of place The holding that the Bill of Rights did not bind the states has puzzled many including one historian who viewed as autonomy not compelled by the language of any of the original ten amendments except the 20 Barron opinion is usually considered an uncharacteristic outlier to his pro 18 Barron v. Baltimore 243 U.S. at 247. 19 Barron v. Baltimore 243 U.S. at 247. 20 William Wiecek, Liberty Under Law: The Supreme Court in American Life (Baltimore: Johns Hopkins Press, 1988) 54. For these interpretations of Bar ron see Chapter One.

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242 Federal jurisprudence. However, if we view the opinion within the context of the transformation of so vereignty required by American F ederal system the decision looks different contemporaneous personal correspondence bear s out much of his concern over the continued existen ce of the Republic in light of the nullification crisis between South Carolina and the Federal government. Marshall wrote several letters to fellow Supreme Court Justice Joseph Story during 1832 and 1833 which evidenced a growing anxi ety and sense of resi gnation. I n his September 22, 1832 letter to Justice Story, penned less than five months before the announcement of Barron Marshall initially congratulated Story on his progress in finishing his Commentaries Marshall, however, continued more ominously, reluctantly to the conviction that our constitution cannot last. I had supposed that north of the Potowmack a firm and solid government competent to the security of rational liberty might be preserved. Even that now seem s doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has 21 O n December 25, 1832, three months after the letter quoted above, Marshall again wrote to taken up, and the debate will, I doubt not be ardent and tempestuous enough. I pretend not to anticipate the result. Should it countenance the obvious design of South Carolina to a form of a southern confederacy, it may conduce to a southern league, never t o a southern on be maintained north of the Po 21 John Edward Oster, The Political and Economic Doctrines of John Marshall (New York: Franklin, 1967), 143.

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243 separate from Southern Virginia and unite with a northern confederacy may probably be 22 Again on June 3, 1833, approximately four months after Barron correspondence to Story continue d to lament the Southern crises, congratulating Story on the us e of his Commentaries in American universities, but also taking the occasion to set forth his concern on how the younger generation in the South ha d failed to appreciate the importance of thful mind are of vast importance; and most unfortunately, they are in the South all erroneous. Our young men generally speaking, grow up in the firm belief that liberty depends on construing our constitution into a league instead of a government; that it has nothing to fear from breaking these United States into numerous petty republics. Nothing in their view is to be feared but that bugbear, consolidation; and every exercise of legitimate power is construed into a breach of the constitution. Your book, 23 Marshall authored the Barron opinion at approximately the same time as was penning the letters to Story which occurred during the height of the nullification crisis. For example, the Barron oral arguments were held February 11, 1833 and the decision issued less than a week later 24 In fact, on the day the Barron opinion was issued, February 16, 1833, John C. Calhoun was upstairs in the Senate giving a two day speech justifying South Carolina 22 Oster, Doctrines of John Marshall 145. 23 Oster, Doctrines of John Marshall 151. 24 For the date of the oral arguments, see Barron Transcript, 30 31. For the date the opinion was issued, see Barron 32 U.S. at 246 147; Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore ( Barron Judgment ), 0144. located at http://mdhistory.net/msaref06/barron/html/index.html

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244 Federal law. 25 Critically, the South Carolina constitution al convention met in Nov ember of 1832 and outlawed the collection of the Federal tari ffs within the state to begin February 1, 1833, eleven days before Barron came before the Supreme Court. 26 If we read Barron with an appreciation for this constitutional crisis as a backdrop, the opinion make sense as an attempt to provide stability to the eyes. Barron can be seen as a concession to South Carolina, or at least as an attempt to keep from exacerbating a precarious situation even further. In fact, Barron contains striking similarities to opposites, such as St. George Tucker, a pro state Virginia lawyer, judge, and law professor 27 William and Ma ry, which he envisioned as an American complement to Commentaries 28 In supplementing Blackstone, Tucker intended to modify the lectures for the differe nt political landscape created by independence from England and the subsequent attempts to create new governments, both in the states as well as for the collective nation through the U.S. Constitution. For Tucker, the Constitution was entered into by an agreement of the states, and was not as an agreement of the people separate and apart from their identity as citizens of the various states. 29 The Constitution was enacted as a compact between sovereign states that, by entering 25 Calhoun: Basic Documents (State College, Pa.: Bald Eagle Press, 1952), 135 190. 26 William W. Freehling, The Road to Disunion, Volume I: Secessionists at Bay, 1776 1854 (New York: Oxford University Press, 1990), 277. 27 St. George Tucker, View of the Constitution of the United Stat es with selected writings, with a forward by Clyde N. Wilson (Indianapolis: Liberty Fund, 1999), vii viii. 28 St. George Tucker, View of the Constitution of the United States 4. 29 St. George Tucker, View of the Constitution of the United States 91.

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245 into the agreement, retained their structure and sovereignty. 30 Tucker viewed the Constitution as a compact and not as a charter or grant, the latter which implied that a higher authority had granted a degree of sovereignty. 31 By creating written constitutions which establish ed the form of government and design ed limits on those governments, the states set forth declaratio ns of the 32 This position was informed by his views 33 Given the Revolutionary struggles against the omnipotence of Parliament, Tucker set forth an alternate view. Where in the old world governments could not be traced to a constitutional moment of a written compact creating a government by mutual consent, as had been done in the U.S., these countries experienced constant turmoil in defining the boundaries of rights and sovereignty as the powerful continually limit the rights of the weak. 34 However, in the U.S., the creation of new governments necessitated b y the vacuum created from the absence of the king allowed a compact of the people, through their states, to erect a new government of consent. 35 the social compact theories of writers like Hobbes and Locke, but with a significant difference. While Hobbes and Locke described the social contract as an implied contract that wa s entered into when man decided to formally enter civil society, and thus gave up certain natural rights in 30 St. George Tucker, View of the Constitution of the United States 92. 31 St. George Tucker, View of the Constitution of the United States 91. 32 View of the Constitution of the United States 6. 33 View of the Constitution of the United States 18. 34 View of the Constitution of the United States 19. 35 View of the Constitution of the United States 19.

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246 order to live cooperatively, Tucker characterized the Constitution as a written social compact which Americans entered into to create a Federal unio n of states. 36 This is a critical distinction as the Constitution becomes the evidence of the actual contract made between the people of the United States as citizens of their respective states, to form a collective government. Further, the distinction d oes not hinge solely on its written form. Many h istorians have found that scholars sometimes mistakenly emphasize the act of writing down the Constitution as the essential act in creating the American version of our constitutional system, and Tucker bears this out. 37 Mary Sarah Bilder argues that the colonists had relied on written documents, specifically letters patent or colonial charters, to enunciate their liberties for generations before charters gave way to constitutions in the Revolutionary era. 38 S imilarly, Daniel Hulsebosch notes that the emphasis on the act of creating written constitutions is misplaced. Much is made of the evolution from the malleable unwritten British constitution subject to the whim of Parliament, to the fixed American Consti tution as the bedrock of fundamental laws However, Hulsebosch argues, much of what was commonly understood to comprise the British constitution, the Bill of Rights, the Magna Charta, the Petition of Right, was written. The act of writing down the Consti tution was not the dispositive change. 39 It wa s not simply the act of writing do wn fundamental laws that created this new system, as Tucker wr ote circumstance, as all national compacts since the invention of l etters have probably been reduced 36 St. George Tucker, View of the Constitution of the United States p. 91. 37 Transformations in American Legal History: Essays in Honor of Mort on J. Horwitz ed. Alfred L. Brop hy and Daniel W. Hamilton (Cambridge, Mass.: Harvard University Press, 2009 ) 28 29 ; Hulsebosch, Constituting Empire 6 7 38 ional Law 31 32. 39 Hulsebosch, Constituting Empire 7 8 Primarily, Hulsebosch is arguing against the position taken by historians like Bernard Bailyn ( Ideological Origins of the American Republic ) and Gordon Wood ( Creation of the American Republic ). Hulsebosch traces this idea to Charles McIlwain and Oscar and Mary Handlin. Hulsebosch, Constituting Empire 310, n. 24.

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247 40 Rather, the unique invention was that this social compact had been entered into at the beginning of a new nation. 41 The act of creating a written Constitution was significant as it marked the birth of this new order and rendered the structure of government and location of sovereignty plain for all literate persons to read and understand. 42 Thus, Tucker balked at the arguments presented by pro Federal advocates that amending the Constitution to add a written bill of rights would not only be pointless but actually dangerous as it could imply that only the enumerated rights were protected. 43 For Tucker, affixing written declarations of rights to the Constitution was important as it informed the people of their speculative truths to fundamental laws, every man of the meanest capacity and understanding 44 40 St. George Tucker, View of the Constitution of the United States 104. 41 St. George Tucker, View of the Constitution of the United States 104. 42 St. George Tucker, View of the Con stitution of the United States 104. 43 St. George Tucker, View of the Constitution of the United States 246. 44 St. George Tucker, View of the Constitution of the United States 246. state views of sovereignty led him to oppose the attempts by Federalist judges to create a Federal common law. Tucker argued that the English common law existed in the Federal courts much in the same way that civil and ecclesiastical law operate d operates as a kind of persuasive, but not authoritative point. St. George Tucker, View of the Constitution of the United States 246. ral law of the United States, is to the full as absurd as to suppose that the laws of Russia, or Germany, are the general law of the land, because in a controversy respecting a contract made in either of those empires, it might be necessary to refer to the laws of either of them, to decide the question between the litigant parties. Nor can I find any more reason for empire, or of Russia, Spain, or a View of the Constitution of the United States 362. Thus, it appears that Tucker set forth three main points. First, he viewed the Federal union as created by the states which retained their sovereignty. Sec ond, he argued that the Constitution was the written embodiment of fundamental law which constituted the social compact of the peoples comprising the new nation. Third, he argued that English common law was not the domain of the Federal courts. It appear s that the third point is, to a great extent, driving the first two. The best way for the states to remain sovereign is to disallow overreach by the Federal judiciary. How do you accomplish this? One way is to set forth a vision of the Constitution as w ritten fundamental law. A view of the Constitution whic h set forth the dual role of the Federal and state governments, and preserved the sovereignty of the latter, allowed Tucker to oppose Federal misuse of the common law to overrun state law.

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248 Tucker viewed the Constitution as the embodiment of fundamental law that was written down to allow the citizenry to intelligently participate in government Certainly, Marshall did not subscribe to the compact theory of union which held that the states created the United States, as opposed to a national collective people. However, in Barron Marshall largely echoed uestions of Federal government power and limits could only be answered through a strict textual and original intent interpretation of the document itself In Barron Marshall outlined his view of what steps were necessary for the protections contained in the Bill of Rights to apply to the states. Marshall stated that if the people of the states wanted similar protections from their state governments, they would have either needed to titution unequivocally state that the Federal Bill of Rights also bound the state governments. 45 As we will discuss in this era local police power that regulat ed and attempted to ensure the good of the community was in the forefront, while arguments of the primacy of First Amendment protections by abolitionist press editors, for example, were very much in the background. 46 An opposite ruling in Barron c o uld have completely inverted this accepted order and would have caused unimaginable dissent from the southern states, as was evidently feared by Marshall in his personal correspondence. If we consider Barron in the context of the federalism debate it is apparent that an opposite decision in Barron could have led Marshall to believe that he was compromising the essential foundations of the Federal system. A decision which 45 Barron 3 2 U.S. at 249 250. 46 Richard Kielbowic Law and History Review Vol.24, No. 3 (Fall 2006).

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249 Am endment would have constituted a l imitation on their police power which, unlike law, is not comm on good of the entire household Barron had the effect of screening th e states from the rights portion of the Constitution and re moved the Federal courts from the business of sitting in judgment over state decisions, at least where individual rights were concerned. 47 In Barron Marshall interpreted rights as granted by writt en constitutions. The Federal Constitution contained the rights operable against the Federal government, while the state constitutions operated against their respective governments. Barron helped maintain the boundaries between the state and Federal gove rnments by allowing the states wide lat itude to use their police power without interference. If rights were perceived of as having a natural inherent quality or universal application, these jurisdictional a rguments would have easily collapsed. Transformations of Sovereignty Enacting Popular Sovereignty The second and, more fundamental, transformation occurred over the actual implementation of popular sovereignty. While the above debate concerned the proper balan ce of sovereignty among institu tions of the state between the Federal and state governments, the second transformation concerned the placement of sovereignty between the state and the people more generally. W e previously the Barron opinion. While the decision seemed out of place with the pro jurisprudence, it made more sense when considered as an artifact of this crisis. It is very possible that Marshall tied rights specifically as granted by the Constitution so that he could release the states from the Bill of Rights by a seemingly simple textual and original intent reading. 47 Barr on v. City of Baltimore Journal of Supreme Court History Vol. 32, Issue 3 (November 2007): 223.

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250 argument threatened to ups et the Federal balance but as an event where notions of popular sovereignty were being asserted, the crisis takes on different attributes. 48 If we return to the F ebruary 15 16, 1833 speech given by Calhoun on the Senate floor regarding the Force Bill, we see Calhoun respond ing to the many critics of nullification by outlining its underlying legal philosophy. One of the provisions of the nullification ordinance required all state officials to take an oath swearing to enforce the ordinance or they would be stripped of their title which placed intense pressure on pro Union South Carolinians 49 Calhoun defended the oath and, in doing so, revealed another aspect of the nullification position. Certainly, Calhoun maintained his view of the compact theory of the creation of the United States that the states and not a national people created the Federal Union through agreement or compact However, he did not stop there. Calhoun noted that the people of the South Carolina passed the nullification ordinance in th e same way they ratified the Constitution: through a convention and not by legislative decree. 50 The tariff was thus nullified by th e same people who approved the C onstitution, the people of the state. In South Carolina, there was no higher sovereign than the people in convention. For Calhoun, the ordinance [of nullification] thus enacted by the people of the State themselves, acting as a sovereign community, was, to all intents and purposes, as a part of the constitution of the State; and though of a peculiar character, was as obligatory on the citizens of that State as any portion of the Constitution. 51 48 See Elizabeth Dale, A Government of Laws or Men? Criminal Justice in the United States, 1789 1939 ( Forthcoming from Cambridge University Press, New Histories of American Law series) 49 South Carolina Ordinance of Nullification (November 24, 1832) in The Nullification Era: A Documentary Record ed. William W. Freehling (New York: Harper Torch Books, 1967), 150 152. 50 Calhoun: Basic Documents 155 156. 51 Calhoun: Basic Documents 156.

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251 As a result, Calhoun equated the oath to uphold nullification ordina nce with an oath to uphold the C onstitution. By organizing themselves as an extra governmental convention, the assembly could conceptually hold itself out as the sovereign, with all law making powers that accompany the sovereign. By enunciating a view that the people of South Carolina reconstit uted themselve s as the soverei gn, Calhoun set up a counterpoint to the argument that the state wa s acting unconstitutionally. By framing the argument this way, the dispute bec ame a question of the p rimacy of sovereignty. Who would prevail: t he Federal gove rnment, as the state based e ntity who demanded enforcement of its tariffs, or the people of South Carolina, as opposed to the state go vernment, who argued that they we re the sovereign? Calhoun did not envision that a national sovereign people creat ed the United States. Rather, the sovereign people of the state of South Carolina had created the Constitution. As the sovereign, the people of South Carolina were entitled to renounce the laws of the Federal government that they created. T hus, t he nullification crisis that took place in the background of the Barron decision can also be understood as a battle between the proper location of sovereignty between the state here the Federal government and the people of South Carolina who Calhoun argued created this government and retained the ultimate veto over its actions b y virtue of their sovereignty. This crisis is emblematic of a larger tension in th is era regarding the true location of sovereignty: is it with the people (true popular sovereignty) or with the state (as the representatives of the people)? This tension was exposed by the methods each side had at its disposal to enforce its view of popular sovereignty. Those who sought to keep sovereignty located directly with the people often used direct action methods that, in lat er years, come to be associated only with government, like community abatement of nuisance. W ho had the right to abate nuisance? If it were the state, they could rely on the police power doctrine, while if it were persons in the community,

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252 they co uld rely on common law principles and abate the nuisance without the involvement of the state. As we will see, these actions were sometimes peaceful, but many times were not. Those wh o sought to keep the people out of direct control enunciated a view of sovereignty as located with governmental institutions like the courts. The era witnessed a battle between differing conceptions of governance. If the state was to be the actual sovereign, it would enforce that sovereignty lar gely through the police power If the people were sovereign, they would enforce their sovereignty through popular actions. We will now turn to the methods by which these two visions of sovereignty were exhibited. Police Power The sovereignty of the state is being supported by the evolution of the notion of the police power doctrine. While we discussed the importance of the police power of the states in maintaining the balance of the federal system, the concept of police power has alternat e qualities. Here we will view the po lice power doctrine as an attribute increasingly relied upon to provide state based order. Marcus Dubber studied the history of th e police olice power arose from traditions similar to the patriarchal authority of a head of a household. 52 Dubber finds that the concept of police power was formed when the government of the household was superimposed on the governance of the state itself, with t he sovereign of the state acting as the theoretical head of the state household. 53 As the head of the state household, the sovereign is thus charged with ensuring the well being of the household by using the police power, which Dubber finds as the public e 52 Marcus Dirk Dubbe r, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), 3. 53 Dubber, The Pol ice Power 81.

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253 in a private family setting. 54 55 Blackston to conform their general behaviour to the rules of propriety, good neighbourhood, and good 56 e offenses covered broad range of prohibitions, including most notably the power to abate common nuisances, as opposed to private nuisances. 57 Blackstone cited a long list of what constituted a common nuisance which could be abated, which nces and inns which promoted disorderly conduct; unregulated lotteries; fireworks; the presence of idlers, gypsies, and vagra nts; and night poaching, to name a few. 58 Scheiber argues that both the common law and civil law traditions long granted the sovereign these types of broad powers to ensure the public good. In the case law of the early American r epublic, Scheiber finds th is power was also envisioned as an essential and indispensable attribute of sovere ignty or, alternatively, arose from a common law based theory emphasizing the common welfare of the community. 59 54 Dubber, The Pol ice Power 58. 55 Capitalism, and the Republican Polity in The Yale Law Journal Vol. 107 (1997): 823, 824, n. 6; William Blackstone, Commentaries on the Laws of England, Vol. 4: Of Public Wrongs (London: J. Murray, 1857), 176. 56 Blackstone, Co mmentaries Vol. 4, 176. 57 Blackstone, Commentaries Vol. 4, 176. 58 Blackstone, Commentaries Vol. 4, 176 199 59

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254 Christopher Tomlins places the police power within th is tension over whether the state was sovereign or whether sovereignty truly resided with the people. Tomlins argues that i t was the transformation of the police power, originally kept by the people as their method of local control, away from the people and its relocation as an instrument of law as an essential change occurring during this era. 60 Tomlins argues that there was a backlash against p opular constitutionalism and that affirmative steps were taken to strengthen the judiciary in order to restrain th e majoritarian excess of the states. Tomlins places the genesis of this concept as coming out of the Federalist/Anti Federalist debates at the Constitutional Convention which culminated in a largely unaccountable judiciary designed to ensure the primacy o f the law as the primary discourse of American society. 61 Further, Tomlins proclaims the triumph of law at the Convention as similar to the redefinition of the concept of the common good as one now predicated on individual rights as the triumph of classica l liberalism over pre Constitutional ideas of the polity based upon its virtuous republican citizenry. 62 Tomlins argues that the idea of police as a term largely synonymous with the common good pre dated the early r epublic and existed as far back as the e arly modern Europe. 63 Like Scheiber, Tomlins dates an important milestone in the concept to Blackstone. However, unlike Scheiber, Tomlins argues that by the time of Commentaries police power began to be reassessed as a function of state pow er that was concerned more with security rather than 60 Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge Univ. Press, 1993), 78. 61 Tomlins, Law, Labor, and Ideology 70. 62 Tomlins, Law, Labor, and Ideology 75. the view set forth by Larry Kramer, who places the move toward judiciary review, and later judicial supr emacy, as a post Constitutional effort to restrain the primacy of popular constitutionalism that the ratification of the Constitution was supposedly to ensure. 63 Tomlins, Law, Labor, and Ideology 45.

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255 larger issues of public welfare. 64 Similar to William regulated society, Tomlins argues that the Constitution succeeded in elevating law over popular politics as the primary discourse, succe 65 While the discourse of police, and its focus on common good or happiness, had a brief period of expression, when it m et the discourse of law it became a power of the state. 66 By the nineteenth century, the idea of police had become of the ideal of police as happiness current 67 regarding the evolution of the police power are compelling. Like popular sovereignty, the police power is being redefined as a power belonging to the state, instead of a tool retained by a community to en sure harmonious living. The police power is being expanded to provide for a method of control and regulation by the state to punish offenders, abate nu isance, or regulate trade or business as opposed to a popular power that existed to provide communal ord er. We can gain a better understanding of the links between the sovereignty of the state and the police power by focusing on the ordinances and regulations passed by the s tate of Maryland and the c ity of Baltimore and examining how those laws gave rise to the suit by Craig and Barron. In their lawsuit, Craig and Barron cited numerous local ordinances and resolutions to support their position, including a March 24, 1813 ordina nce appointing wardens for the p ort of 64 Tomlins, Law, Labor, and Ideology 81. 65 Tomlins, Law Labor, and Ideology 91; William Novak, Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996). 66 Tomlins, Law, Labor, and Ideology 94. 67 Tomlins, Law, Labor, and Ideology 94.

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256 Balti more. 68 Pursuant to this ordinance, these wardens were given powers to ensure the continued use, navigation, and the safety of the port and the surrounding district. For example, the port wardens were given extensive jurisdiction over the port district, i ncluding all wharves, public or private, and specifically possessed the authority to cause even private wharves to be torn down and rebuilt if found defective. This ordinance further directed the wardens address the drainage issue by commanding them to hi re a surveyor to report on the feasibility of redirecting 69 The port wardens hired a surveyor, Jehu Boulden, to perform the study. Boulden, later a witnes s for Craig and Barron, indicated that the plan was feasible and would cost no more than $10,000.00. However, on July 19, 1815, the port wardens is sued a report to the city c ouncil Ann Street, a large road which dispensed directly into the harbor, a report that Craig and Barron also entered as evidence. 70 Likewise, Craig and Barron also entered into evidence two April 10, 1817 ordinances which directed additional paving of streets in the port district which caused the water to be redirected even further. 71 In response, the c ity entered into evidence the same ordinances enacted by Craig and Barron, but also cited numerous acts of the Maryland General Assembly to support their argument t hat all actions done without malice and were taken purs uant to law. For example, the c ity cited a 1796 act to incorporate the c ity of Baltimore under the structure of a mayor and a two 68 Ba rron v. Mayor of Baltimore 32 U.S. 243, Transcript of Record, File Date: July 1, 1831, 31 pp., U.S. Supreme Court Records and Briefs, 1832 1978. Thompson Gale; and Maryland State Archives SC 2221 4 20, 182 1833 (hereinafter referred to as Barron Transcrip t), 11; Ordinances of the City of Baltimore (Warner & Hanna, 1807), 72 73; Ordinances of the Corporation of the City of Baltimore (William Warner, 1813), 12 19. 69 Ordinances (1813), 12 19 70 Barron Transcript, 16. 71 Ordinances of the Corporation of the City of Baltimore (William Warner, 1817), 32 35.

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257 branch city council. The Maryland legislature gave the c ity broad pow ers to pass all necessary laws including those concerning health measures, abatement of nuisances, surveying and setting proprietors of the lots or houses adjoini of the Patapsco River, upon which the c ity financially relied. 72 The c ity also relied upon a November, 1797 act of the General Assembly giving the c ity full power to pave and repair all streets, as well as the 1813 ordinance appointing the port wardens. 73 By entering many of the same ordinances into evidence, the parties were arguing before the court two very different visions of the powers of the municipal government. Craig and Barron argued that t he actions of the c ity damaged their business, which is readily apparent. Shortly after their purchase of the property, the c ity passed these laws which directly dumped the sediment that had been flowing through the entire port district right at their doo rstep. Craig and Barron at first attempted to mitigate the damage by successfully petitioning the c ity in April of 1816 to allow them to extend their wharf. 74 However, it appears that the April 1817 ordinances directing further street paving was the final straw. On September 30, 1817, the Baltimore Patriot for a 75 Interestingly, John Barron resurfaced in the Baltimore Patriot in November of 1822, the year the Barron suit was filed, advertising his new Rope business, 72 (1796, Ch. 68), in The General Public Statutory Law and Public Local Law of the State of Maryland ed. Clement Dorsey, 1396, 1400. 73 Dorsey, ed. The General Public Statutory Law 1404. 74 Baltimore Patriot April 6, 1816, Vol. VII, Issue 84, 2. 75 Baltimore Patriot September 26, 1817, Vol. X, Issue 225, 3.

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258 although under the supervision of a more seasoned craftsman, a far cry from his prior co ownership of a profitable wharf. 76 Regardless of the damages, the c ity did not contest these losses or that their actions were the cause. By simply relyi ng on these laws that gave the c ity the power to take these actions, they argued that they w ere acting within the scope of their authority granted by these ordinances and that the damages alleged constituted a public nuisance which were not recoverable by an expansive interpretation of the common law principle damnum abseque injuria : that some wr ongs do not have a remedy. It is also interesting to note that t his was not the first time the c ity relied upon this type of defense. In 1825, the c ity was sued foll owing the enactment of ordinances in 1817 which direct ed the paving of numerous streets Parenthetically, these were the same paving ordinances that ultimately contributed to the damag In the Mayor and City of Council of Baltimore v. Moore and Johnson (1825), the Maryland Court of Appeals ruled in favor of Moor e and Johnson, two property owners who contested their tax assessment from the 1817 street repairs. These property owners were taxed the costs of the repairs due to a 1797 act allowing the c ity to not only pass all ordinances to make improvements such as street repairs, but also to tax the land owners of that district if the repairs specifically b enefited those residents. The c ity, represented by the same attorneys in Barron John Scott and Roger Taney, raised similar arguments to those they relied upon l ater that decade in Barron namely that the c ity is not liable as it acted in accor d with the ordinances, but the c ourt ruled otherwise. 77 The Court 76 Baltimore Patriot November 15, 1822, Vol. XX, Issue 114, 3. 77 In fact, John Scott for the City of Baltimore attempted to distinguish this case in his arguments before the Appeals Court in December 1830, while Charles Mayer for Barron and Craig cite d it in support. Edward C. Papenfuse, Outline, Notes and Documents Concerning Barron v. Baltimore 32 U.S. 243, http://mdhistory.net/msaref06/barron/index.html (last accessed on 4/5/08), 134, 146.

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259 strictly construed the 1817 ordinance and found that, because it contained a preamble stating its intent wa s to pave the streets in order to pre serve proper navigation of the c roads, the repairs did not provide a special benefit to the adjacent property owners, and thus 78 Similarly, Judge Archer, the trial court judge in Barron had another opportunity to rule on a case pi tting the police power of the c ity versus the rights of its residents. In Glenn v. Mayor and City Council of Baltimore (1833), an 1832 fire damaged a tu rpentine distiller y within the c ity limits. While the owner, John Glenn, rebuilt the distillery and resumed operations, the c ity fined him under an 1826 ordinance prohibiting activit ies within the c ity limits, such as operating a slaughterhouse or, here, a turpentine disti llery. 79 Judge Archer, sitting in an appellate capacity, reviewed the 1826 ordinance in light of the 1796 and 1817 acts by the Maryland General Assembly which gave t he c ity the power to pass all ordinances to prevent nuisance s and prevent fires i n Baltimore 80 Archer us ed the opinion to rei n in the c ity by differentiating two se parate standards of review for city o rdinances. For example, ordinances which related to laying out new streets, establishing night watches, and surveying were permissible because they are simply ex ecuting 78 Mayor and City Council of Baltimore v. Moore & Johnson 6 H. & J. 375 (Md. Ct. App. 1825). 79 Parenthetically, John Glenn was also a prominent Baltimore attorney who later served as a U.S. District Court judge. Glenn was a business associate of Reverdy Johnson, another elite Baltimore Attorney whose accomplishments included his appointment as U.S. Attorney General in 1849 and his election as a U.S. Senat or in 1863. Johnson and Glenn also served as counsel to the Bank of Maryland which, following its collapse in 1834, led to the 1835 Baltimore Bank Riots which lasted from August 6, 1835 through August 10, 1835. Enraged by the loss of personal savings, a ablaze. J. Thomas Scharf, History of Baltimore City and County from the Earliest Period to the Present Day (Philadelphia: J.B. Lippencott & Co., 1881), 784 785. 80 John Glenn v. The Mayor and City Council of Baltimore 5 G. & J. 424 (Md. Ct. App. 1833).

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260 power was great, but not un limited, and noted t is true the corporation [the c ity of Baltimore] have power to pass all laws, which are necessary or proper to carry into effect any given power, and the degree of its necessity or propriety would not be minutely, or critically s crutinized; but the court ought to see that it may be the means of accomplishing the object of the Archer noted that the 1826 ordinance did not contain any preamble classifying that a distillery constituted a nuisance or which connected the ordinance to its original grant of power to abate nuisances, and thus reversed the judgment against Glenn, the property owner. 81 While we see that the c ity continu ed to exp and its police power to govern and regulate, we also see that individuals, such as Craig and Barron, Moore and Johnson, and John Glenn contest ed these actions. While Craig and Barron raised an issue most fundamental, the taking of private property without just compensation, all the litigants were aggrieved by similar concerns. Further, so me antebellum jurists, such as Archer, put the brakes on the police power by holding in many cases that this power was not unlimited. Thus, Barron can be envision ed as a moment where Marshall attempted to enunciate the primacy of the police power of state and local governments and to remove all obstacles to their free exercise, namely, the property rights guarantees of the Bill of Rights that many litigants and jur ists had embraced. Barron we can view the trial court decision in a new l ight. For example, in Chapter 3 presented as enunciating a particular conception of righ ts as granted by the common law, as 81 Glenn v. Baltimore, 5 G. & J. at 427 430.

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261 opinion in the context of the evolution of the police power as residing with the state a different the natu ral flow of watercourses to protect himself from injury. However, this right carried with it a corresponding responsibility to indemnify any other persons whose property is damaged by such diversion as the common law mandates that all must use their prope rty in ways that will not affect the property of others. 82 Archer held that the aggressive reliance on the common law maxim, damnum abseque injuria (a n injury without a remedy), that was often used to insulate municipalities from payment of damages when ab ating nuisances, did not apply when the damages caused were of a permanent or material nature. 83 Archer recognize d and responded to potential criticism that such a ruling could bring, and of these doctrines. The exercising of the right of cutting down streets and diverting water courses into particular parts of the basin, for the benefit of the navigation, does not necessarily lead to a loss for which a suit 84 For this proposition, Archer cited the New York case Palmer v. Mulligan (N.Y. 1805), where the court refused to hold an upstream mill owner liable for damages by the owner of the downstream mill resulting from the diversion of water. 85 The court, th r ough the majority opinion written by Justice Spencer, held that all mills will necessarily injure the mill of any other downstream on the same river; thus, the damages were damnum abseque injuria 86 In 82 Opinion of Judge Stephenson Archer, reprinted in The American Jurist and Law Magazine Vol. 4, (October, 1829) : 205. 83 Archer, The American Jurist and Law Magazine, 214. 84 Archer, The American Jurist and Law Magazine, 214. 85 Palmer v. Mulligan 3 Cai. R. 307 (N.Y. 1805). 86 Palmer v. Mulligan 3 Cai. R. at 309.

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262 addition, Justice Henry Brockholst Livingston wrote a con curring opinion which chipped away at the common law rules regarding the riparian rights of property owners. Livingston classified the damages to the downstream owner as merely an inconvenience which would always attend the building of additional mills or dams on a river. In a signal that he intended to be nd common Were this not permitted for fear of some inconsiderable damage to other persons, the public, whose advantage is always to be regarded, would be deprived of the benefit which always attends competition and rivalry. 87 Justice James Kent joined by Smith Thompson in dissent, argued that the on of the current. Damnum abseque injuria can limit certain claims; however, it would only apply to those for the the velocity of the current, and of the quan 88 For Kent, the downstream mill owner should collect damages in this matter as he proffered eight witnesses who set forth uncontroverted evidence that the placement of the upstream mill injured his property, including one who esti mated the loss at close to $100.00 per year. 89 87 Palmer v. Mulligan 3 Cai. R. at 311. Livingston was later named to the U.S. Supreme Court where he served from 1807 in The Oxford Companion to the Supreme Court of the United States Kermit Hall, ed. (New York: Ox ford University Press, 1992), 507 508. 88 Palmer v. Mulligan 3 Cai. R. at 312. Smith Thompson was also later named to the U.S. Supreme Court where he served from 1823 to 1843 and ruled in favor of the City of Baltimore in Barron v. Baltimore th The Oxford Companion to the Supreme Court of the United States Kermit Hall, ed. (New York: Oxford University Press, 1992), 871 872. 89 Palmer v. Mulligan as he was serving as Chief Justice of the New York Supreme Court at the time, and had not yet been appointed as chancellor of its Court of Chancery, which occurred in 1814. See Kent and the Developm The American Journal of Legal History Vol. 37, No. 4 (October 1993): 440, 442.

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263 That Archer felt it important to distinguish Palmer v. Mulligan at the end of his opinion is important. Morton Horwitz described Palmer as a critical moment in the evolution in the concept of the paramount att ributes of property ownership. Specifically, Horwitz argued that Palmer marked the beginning of a transformation of the idea of property ownership toward the appreciation that most important function of property was as a commodity to be developed as a bus iness asset. 90 Certainly, Palmer reads this way. For example, Archer did not state that municipalities could never divert waterways or alter drainage which would provide a public er sought to reign in an overly expansive use of the common law exception, damnum abseque injuria If the state sought to abate nuisance thro ugh the use of its police power it was entitled to do so. What the state could not do is damage property and in the process rely on a tortured interpretation of the common law to escape its responsibilities. 91 However, there are other ways to view Palmer For example, William Novak framed Palmer not as one where the courts intentionally modified the common law to facilit ate economic growth, as argued over an essential resource: the Hudson River. 92 Asserting the Hudson as a publi c highway, For Novak, the court did not engage in a weighing of private interests to determine its result. Rather, it determined that the river was a pu blic thoroughfare; accordingly, one private company 90 Morton Horwitz, The Transformation of American Law, 1780 1860 (Cambridge: Harvard University Press, 1977), 36 37. 91 Archer, The American Juri st and Law Magazine, 214 92 William Novak, (Chapel Hill: University of North Carolina Press, 1996), 133.

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264 could not assert superior rights over another with respect to this public channel. 93 If we compare the Palmer majority and dissenting opinions we see a dynamic occurring in a very similar way to Barron Justices Spencer and Livingston are implicitly asserting the primacy of the state over the river by disallowing two private entities to fight over superior right to the use of a public river, as posited by Novak. Similarly, in Barron the c ity argued that it had all power to redirect vate actors as a result of the c compensable as t he c ity had acted pursuant to its d elegated police power from the s tate of M aryland, period. The c damages, and simply demurred to the complaint on the basis that exercising its police power within their mandate and without malice constituted an absolute defense. In contrast, Justice Kent in dissent clung to an older view that did not see the powers of the state in such an expansive manner. Kent in his thirty year ownership of land on the river, which he held non navi gable at common law. Under the English common law tradition, the question of navigability of a river determined whether it was a common public highway. If it did not have an ebb and flow, it was a non navigable inland river and thus belonged to the owner s of the adjacent land. 94 The Hudson River navigable according to Kent, thus he had a recognizable property right for which the court should have provided compensation. 95 Similarly, in ruling in favor of Barron and Cra ig, Judge Archer held that the c ity must provide compensation for the damage to the ir property, regardless of its inherent police power 93 Novak, 133 134. 94 Palmer v. Mulligan 3 Cai. R. at 312. 95 Palmer v. Mulligan 3 Cai. R. at 312.

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265 Popular Constitutionalism We previously discussed th e expansion of the police power doctrine to support: (1) the dual sovereignty of the states within the federal system; and (2) the sovereignty of the state or, more specifically, the government over that of the people. In contrast to this emerging state f ocused doctrine of the police power th ere was the competing tradition of popular control. We have seen Barron and Craig, and indeed other Baltimore property owners, contest the actions of the c ity in the courtrooms of the early republic. A larger question, however, is why they resorted to fo rmal law remedies instead of seeking to abate the nuisance personally. If the dams and embankments gradually funneled the water and sediment to the harbor directly north of Barron elves? Shortly after the sediment began pouring into the river by their wharf, Barron and Craig sought, unsuccessfully, to mitigate the damages and were granted permission by the city c ouncil to extend their wharf deeper into the river. 96 However, this re quest for the extension of the wharf raises two interesting questions that have largely been unanswered by the study of Barron The first is raised by looking at the request for the extension itself. The Baltimore Patriot article which reported the grant ing of the extension shows that Barron and Craig were not the only wharf owners in the path of this sediment as numerous other petitions granting extensions to owners of wharves in the same area were granted at the same time. Thus, the first question is: what was the response of the other owners? Second, why were the courts the place where Barron and Craig decided to contest this action? First, Barron and Craig were not the only persons damaged by the redirection of the 96 Baltimore Patriot April 6, 1816, Volume VII, Issue 84, Page 2.

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266 damage as it was even closer to the area where the runoff entered the harbor than Barron and C by William Dawson, also apparently was damaged by the same drainage plan. 97 Indeed, there were three filings against the Mayor and City Council in March of 1822. In addition to Barron d William Dawson also sued the c ity at the same time. Dawson was represented by the same attorneys who brought the claim against the c ity on behalf of Barron and Craig : David Hoffman, Charles Mayer and Upton Heath. 98 It is unclear whether Curti s also used the same legal team though a ll three suits were apparently filed in sequence and have many similarities. The Barron and Dawson claims both sought identical damages of $20,000.00 while Curtis sought $2,000.00. All three cases were successful in the trial court, with Barron and Craig winning $4,500.00, Dawson winning $2,000.00, and Curtis winning $900.00. The c it y, represented in all three cases by Roger Taney and John Scott, unsuccessfully moved to arrest the judgments in all three cases. 99 However, it appears that the c ity only appealed the Barron and Dawson opinions. 100 At least one newspaper, the Baltimore Patr iot intently followed the proceedings from the Appeals Court in Annapolis. When the Court reversed the trial court decision in both cases, the Patriot 97 Baltimore Patriot Volume VI, Issue 901, Page 1; January 5, 1830 Baltimore Patriot Volu me XXXV, Issue 4, Page 2. 98 Baltimore County Court, City Civil Docket, March Term 1828, Maryland State Archives, MSA C301 14, at Papenfuse, Edward C., Outline, p. 0001, http://mdhis tory.net/msaref06/barron/html/barron 0001.html On March 9, 1824, the City Council passed a resolution which authorized the Mayor to hire assistant counsel to specifically defend the suits brought by Craig and Barron, Dawson, and Curtis. See March 10, 18 24 Baltimore Patriot Volume XXIII, Issue 58, Page 3. 99 Baltimore County Court, City Civil Docket, March Term 1828, Maryland State Archives, MSA C301 14, at Papenfuse, Edward C., Outline, p. 0001. 100 Maryland Court of Appeals, Western Shore (Docket), Maryla nd State Archives, MdHR 618; 1/66/14/29, Papenfuse, Edward C., Outline, p. 0004, http://mdhistory.net/msaref06/barron/html/barron 0004.html

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267 frees them from all liability for the injury done to the wharf property of individuals by the 101 However, the second, and larger, question concerns why aggrieved property owners like Barron, Craig, Dawson, and Curtis owners used the c ourts as the place to contest the actions of the c ity. The se men likely resorted to formal law remedies instead of seeking to abate the nuisance personally as the litigation was being funded by one of the city fathers as a largely sp eculative venture. Fu rther, this damage only affected a small segment of the comm unity while Achieving a critical mass of popular outrage against a public drainage project would hav e been difficult. However, during this era there were many instances where individuals circumvented the courts in order to personally abate what many communities deemed nuisances. Existing historiography on this topic supports the idea that i n contrast to the police power that the sovereign state relied upon there were also methods of popular community regulation that operated independent of the government Larry Kramer argues that two major concepts of constitutionalism had evolved by the early nineteenth century: one stressing the primacy of the judiciary to determine and settle matters of law, and one holding that the people, through methods such as forming political parties and political activism, retained just as much a right to determine the constitutionality of laws. 102 Kramer recounts eighteenth century concepts of constitutionalism which placed notions of fundamental laws and constitutions outside of the realm of the judicia ry or even the legislature, 101 Baltimore Patriot January 8, 1831, Vo l. XXXVII, Issue 7, Page 2. 102 Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review ( New York: Oxford University Press, 2004).

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268 their enforcement and interpretation. 103 Kramer argues that under this view, the public possessed the right to resist unconstitutional acts and laws, which included the right to vote the right to petition their grievances, and the right to assemble. 104 It was after these remedies had been ignored, as Parliament had prior to the American Revolution, that more serious remedies were invoked, such as the use of mobbing or group violence. Kramer notes that the use of mobbing was not unorganized violence, but was considered a legitimate right and remedy belonging to the community to correct unconstitutional acts. 105 It was following ratification of the Constitution that problems arose as the people did not defer to the elites as the Federalists believed the Constitution would ensure; rather, white men began to exercise their voice in government through methods many considered frightening These community based remedies did not disappear foll owing Independence. In response, many Federalists favored an expand ed the role for the judiciary. 106 However, t his attempt to elevate the judiciary as the proper arbiter of the constitution did not extinguish competing views which located this power in the citizenry. 103 Kramer, The People Themselves 24. 104 Kramer, The People Themselves 25. 105 Kramer, The People Themselves 25. Kramer notes that modern commentators fail to understand what he refers that this someone must be a governmental agency regulat ed not the regulat ors and final interpreting authority rests with the peo Within this context then, the early appearance of concepts of judicial review simply made the judicial branch an equal partner in the governmental scheme and not the final arbiter of the Constitution. For example, Kramer argues that the over that of the Federal legislative veto and that, thereafter, the framers accepted that judicial review existed with respect to state laws. However, while Kramer attributes the role of the judiciary to a Federalist desire to resolve parties involved in framing the Const itution understood that it was only through politics, and not courts, that the Constitution would be enforced. Kramer, The People Themselves 25, 80 83, 107. 106 Kramer, The People Themselves 130.

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269 Richard Kielbowicz, in his study of the use of law by mobs in censoring abolitionist publications, provides a few concrete examples of how these popular methods of constitutional interpretation and enforcement were carried out. 107 K ielbowicz uses his study of anti abolition mobs in beginning in 1833, the year of Barron to set forth the two main views of law competing for supremacy during this time: abolitionists who stressed the primacy of individual rights to protect their message; and anti abolitionists who emphasized the supremacy of majoritarian rights of the community to determine their collective good. 108 Kielbowic z notes that prior to the abolitionist periodicals did not cause much concern for local communities as they w ere circulated primarily among the abolition groups themselves. 109 However, beginning in the extent in order to reach a larger national audience including, for e xample, the two year campaign by the American Anti Slavery Society to use the Federal mail system to send over one million pamphlets across the country, causing enormous resistance in the South. 110 The battles between abolitionist editors and the often anti abolitionist communities in which they operated exhibited these two emerging traditions of law competing in the early nineteenth century. 111 Kielbowicz argues that anti abolitionists used two main arguments to justify their actions in shutting down ab olitionist newspapers: the doctrines of breach of the peace and public nuisance, which were collectively used to ensure the primacy of the collective 107 Richard Kielbowic Law and History Review Vol.24, No. 3 (Fall 2006) : 559 108 109 110 7 0. 111

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270 good of the community. 112 Kielbowicz notes that while, today, the modern idea of nuisance law as being held applicable to overshadow fundamental liberties such as freedom of the press is difficult to appreciate, he notes that it formed the basis for local governance in the nineteenth century and that larger constitutional rights of freedom of the press were not considered as releva nt to daily life and governance. 113 Kielbowicz notes that these principles underlying nuisance law, the idea that the good of the community overrules individual rights, were the basis for the dominant paradigm of the age and were well s upported and accepted, such as by Justice Joseph Story in his Commentaries where he discussed freedom of the press. There, Story tethered this freedom to the principle of Sic utere tuo, ut non alienum laedas were in line with most freedom of the pr ess guarantees found in state constitutions which specifically made the right contingent upon the responsible exercise; whether the exercise was responsible appeared to whether it was in accord with the will of the community. 114 Furthermore, Kielbowicz note s that, following Barron abolitionists could not rely on the Federal Bill of Rights to aid their freedom of the press arguments. As the anti abolitionist mobs could assert 112 113 Kielbowic as an example of this. There, Novak argues that extensive public regulation in favor of the salus populi the regulated In fact, Novak notes that, from 1781 to 1877, an unprecedented number of statutes, ordinances, and common law decisions regulated almost every aspect of society including public health, safety, morals, and the economy. The common thread running through the majority of the laws and regulations during this period was their intent that the general welfare of the public took precedence over private property rights so often considered an essential element of the laissez faire society. Kielbowic 1 2, 9. 114 Kielbo 576.

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271 their majoritarian rights to close the papers, the abolitionist editors could only seek to argue for a more expansive interpretation of the freedom of press. 115 Laura Edwards found a similar dynamic in her study of the post Revolutionary American south by examining local dispute resolution in North and South Carolina. 116 Edwards describes a system of law and adjudication which placed the keeping of the peace as the prime consideration. While firmly entrenched in a society predicated on white male patriarchal power, this system nonetheless allowed for the participation of additional actors, such as women and enslaved persons. Further, this system also provided for the punishment of white male patriarchs if the peace had been breached. The overriding concern is that all members of the local had a stake in preserving and observing the peace, the order, the norms, and the common welfare of the essional legal community and governmental elites at the state level attempted to transform this local arrangement into a more uniform system of jurisprudence which relied on one body of law applicable to all situations. Where localities used magistrates to call all to account for a beach of the peace, state leaders saw chaos. As a result, Edwards posits that state leade rs used the vernacular of rights to reorder who could use law and the courts to seek redress. Edwards replacing subject of the peace, with their distinctive pers onalities and entangling relationships, with the theoretically uniform bodies of rights 117 Edwards echoes the more general transformation of law more generally toward classical liberal conceptions which place 115 77. 116 Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post Re volutionary South (Chapel Hill: University of North Carolina Press, 2009). 117 Edwards, The People and Their Peace 238.

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272 the faceless, hypothetical classical liberal model of contract which assumes a bargain struck by two individuals of equal bargaining power, Edwards describes a move toward ambiguous individuals who, by virtue of th eir possession of rights, are able to use the judiciary to vindicate or protect their interests. Edwards articulates this transformation as one much more sinister in practice than in theory as it was then coupled with the idea that some individuals have r ights, and thus access to law, and some do not. This created a hierarchy of persons able to use the law based upon the seemingly universal notions of rights. Edwards argues that the states of South Carolina and North Carolina actively promoted a uniform system of formal law adjudication which exalted the state governments as the entity that would protect rights. For Edwards, rights became the new currency of societal worth as, unlike a system of communal order which emphasized overall harmony, rights al lowed for a hierarchy to determine access to law. Edwards finds that this emphasis on the primacy of rights was directed to white men who, as owners of rights, would profit most from the new system. 118 More importantly, the state was active in promoting it s role as the entity rights, an argument that Edwards notes was deployed with particular effectiveness in gathering support for the nullification crisis of 1832 1833 A similar dynamic is described by Michael Pfeifer in his study lynching in the post Civil War U.S. 119 Pfeiffer described a tension between middle classes who supported criminal justice system based on formal law remedies that prized group 118 Edwards, The People and Their Peace 275. 119 Michael J. Pfeifer, Rough Justice: Lynching and American Society, 1874 1947 (Urbana, Ill.: University of Illinois Press, 2004).

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273 that could determine whether and how severely a criminal would pay for his transgressions. 120 For the believers in community based justice, Pfeifer posits that they relied on older notions of fundamental or higher law to justify violent acts in order to maintain communal order, including sovereignty that the authority of government came from the people, who could exercise their sovereignty in order to see th at justice was done if the courts would not. 121 For Pfeifer, the question of whether an offender would be allowed to go through formal court pro cedures was up to the community. o be seen in numerous incidents which took place in the early nineteenth century. A common thread running through all of these studies is the tension over the where the ultimate legal authority resides. Who possesses this sovereign power: the courts or t he people? While many felt that they retained the ultimate right to punish transgressions and provide communal order, as described by Pfeifer, Kielbowicz, or Kramer, there was a competing push to make formal courts the place where law was determined and e nforced, as described by Edward s What we see in this era are two group s competing for sovereign power: those who s ought to maintain true popular sovereignty and those who s ought to place sovereignty with the formal institutions of the state. This strugg le to locate sovereign legal power was contested in numerous incidents across the United States, especially with respect to who had the power to silence unpopular speech, whether live lectures or written newspapers. 120 Pfeiffer, Rough Justice 2 3. 121 Pfeiffer, Rough Justice 6.

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274 If a speaker debated a contested subjec t, many in the community would use physical, often violent, acts to silence the speech. For example, in Vermont in 1835, a minister wrote an Slavery Society about his four week lecture tour. Across the state, communities turn ed out to silence the lectures. During his first lecture, the crowd hurled forced him to abruptly finish. At his next stop, a procession blowing horns and bea ting drums tracked him to his boarding house and then shouted down the program as soon as it had begun. A third speech in yet another town was drowned out due to the stamping of the crowd, despite a plea by a local judge for order. His final speech was a lso interrupted by stamping and yelling from the crowd. The lecture was ended when the crowd extinguished the lights and began throwing objects at the stage. The mob followed the minister out of the hall where, but for the defense from a townsman, the cr owd likely would have succeeded in a physical attack. These actions were not simply the work of drunken ruffians but included members of the local elite. At one of the speeches, the crowd was encouraged to keep the minister from speaking by a lawyer and an ex U.S. Senator. Further, it appears that much of the impetus for shutting down these lectures was a result of his opposition to the colonization movement. As the minister recounted, excited 122 To a great extent, part of what seems to have occurred in Vermont during these lectures is an attempt to shut down speech that was in opposition to prevailing local opinion. Later that year, a New York meeting of P After assaulting the ministers leading the meeting and driving out the followers, the rioters 122 The Liberator (Boston, Mass.), February 28, 1835, Vol. V, Issue 9, Page 35.

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275 ripped up the benches and smashed all the furniture in the meeting room before leaving. 123 Additionally, attempts by the legal authorities to punish those responsible for this type of violence were also contested in extra legal ways. In Troy, Ohio in 1842, two men were charged with assault and battery for throwing eggs at speakers lecturing at a temperance rally, including the county prosecutor. The two men were convicted and fined $15 each, plus court costs and ten days in jail. This was not the end of the matter as a mob fo rmed intent on freeing the men, requiring the sheriff to rely on local and two companies of militia to defend the jail. The standoff was finally resolved in favor of the sheriff only when additional militia units arrived. 124 Philip Hone, in his diary, also recorded the reaction of New Yorkers to the 1849 visit of English actor William Charles Macready who were enraged over perceived insults to American actor New Yo rk to perform Macbeth a mob attacked during the performance and drove Macready from the stage amid a shower of rotten eg gs and other projectiles. The c by this display, demanded that Macready finish the performance the following n ight and guaranteed his safety. Security inside the theater allowed the play to continue, but outside a military unit of over three hundred soldiers was forced to fire on the rioters who were in the process of smashing the windows and kicking in the doors of the theater. Approximately twenty rioters were killed and many more were wounded, all in an attempt to silence a performance of Macbeth 125 123 The Gloucester Telegraph (Gl oucester, Mass.), March 21, 1835, Vol. 9, Issue 23, Page 3. The article estimated the mob at between 100 and 200 persons. 124 The North American and Daily Advertiser (Philadelphia, Pennsylvania), June 1, 1842, Volu me 4, Issue 991, Page 2. 125 The Diary of Philip Hone, 1828 1851 Vol. II, Allan Nevins, Ed., (New York: Dodd, Mead and Company, 1927), 866 870.

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276 Popular actions were also used against newspapers whose opinions offended local sensibilities. In the event that a newspaper was printing material inflammatory to the community, many in the community reserved the right to abate the nuisance instead of seeking an injuncti on in court. I ndeed, Kielbowicz noted that between 1833 and 1859, in response to efforts by abolitionists to amplify their message by their extensive and coordinated use of abolitionist newspapers, more than twenty incidents of mob action to shut down these presses occu rred across the country. 126 The actions of the mob ranged from dismantling the print shop and destroying the presses, often by smashing the press and throwing it in the street or in a nearby river. The famous 1812 mob that attacked the offices of the Feder al Republican helped 127 The Federal Republican had made the mistake of editorializing its opposition to the recent declaration of war against the British which started fices, threw the newspaper presses into the street, and tore down the building cau sing the employees to flee the c ity. 128 After reestablishing an office, the editors called in about fifty persons to help defend the press. This group included many notable p 129 After firing on the attacking mob, which left at least one person dead and many others wounded, the mob left and returned and aimed a nine pound cannon at the house. The men defending the house agreed 126 569. 127 J. Thomas Scharf, History of Baltimore City and County (Philadelphia: Louis H. Evers, 1881), 778, 782. The Federal Republican had its main offices in the District of Columbia but opened a branch office in Baltimore where the riots took place. See The Albany Register (Albany, N.Y.), A ugust 4, 1812, Vol. XXIV, Issue 62, Page 3. 128 Scharf, History of Baltimore City and County 782. 129 Scharf, History of Baltimore City and County

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277 to surrender to the militia that finally appeared and were transported to the jail. 130 After the militia retired, leaving the jail virtually unguarded, the mo b broke in and beat the men savagely, torturing many, and ultimately killing one. 131 A similar well known incident was replayed in Alton, Illinois in 1837 where Elijah Lovejoy ultimately lost his life defending his press from anti abolitionist mobs. Lovejo y had already been forced to flee St. Louis before reestablishing the paper in Alton. After mobs in Alton destroyed his press three times, Lovejoy sought protection from the Mayor who asked the city council appoint constables to protect the newspaper offi ce in order to maintain order. The city council refused and advised Lovejoy to simply stop printing. When the fourth and final mob came on November 7, 1837, Lovejoy and his allies armed themselves attempted to defend the press, much like the defenders of the Baltimore Federal Republican had in 1812. However, when taking aim against one of the mob who was trying to burn down the building, Lovejoy was shot and killed. 132 These incidents implicated conflicts between notions of individual rights versus co mmunity norms. Certainly, a view of sovereignty as residing with the state allows for the protection or vindication of individual rights in ways that true popular sovereignty does not. However, the struggle to delineate the balance of sovereignty between the state and the people was not just simply a matter of whether to protect the rights of individuals espousing unpopular opinions. There are also examples of popular actions to abate nuisances that were deemed injurious to the community. In 1839, the P ennsylvania legislature authorized the Camden and 130 Page 3; Scharf, History of Baltimore City and County 783. 131 Scharf, History of Baltimore City and County 783 784. 132 Abolition Mob: Free Speech, Mobs, U.C.L.A. Law Review (1996 1997): 1109 1111.

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278 Amboy Railroad to lay new railroad tracks within Philadelphia to help complete the line. The residents along the new route became concerned that allowing a railroad along a busy urban street would be dange rous. When the railroad workers attempted to rip up the street to install the line, a crowd of local residents gathered and loudly protested. When this failed to stop The railroad hired over one hundred policemen to protect the workers while the re laid the track. The police largely protected the workers from the mob that gathered the next day, who now began to hurl paving stones along with their insults. However, the mob simply tore up the tracks again after the workers left. Afterwards, they attacked and set on fire a local tavern owned by the president of the railroad which was a frequent meeting place for the police. Those arrested in the melee were quickly tried and convicted, but petitions to the Governor produced pardons. Ultimately, the Pennsylvania legislature repealed the law granting the railroad the right to build the track. 133 Sometimes, instead of simply forming to abate a nuisance, like a dangerous rai lroad track or an offensive speech or article, there are numerous examples of mobs attempting to close the courts themselves, keeping alive a tradition that had begun prior to Independence. For example, vement disrupt the courts to protest corrupt government. Beginning in 1774, American colonists resisted imperial policy by forcibly keeping courts across the colonies from meeting. Similarly, after Independence, the farmers of western Massachusetts led f amously by Daniel Shays between 1786 and 1787 closed courts across the state in order to protest their distrust of eastern elites and the familial or clannish nature of those 133 J. Thomas Scharf and Thompson Westcott, History of Philadelphia, 1609 1884 (Philadelphia: L.H. Everts and Co., 1884), 2184.

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279 s attempt to enrich speculators by fund war bonds at full value. 134 These are just a sampling of incidents that occurred across the country during this era. A common thread running through all of these incidents shutting down printing presses, courtroo ms, and speakers, or tearing up railroad tracks is the perception by those community actors that they possessed the power to put a stop to persons or events in their midst that they deemed a n uisance. Like the police power belonging to the state, these communities had members that did not willingly fully concede the police power, the power to provide for the common safety and welfare, to the state. If we assess Barron within the transformations in sovereignty that took place during this era, it can st and for more than just the position that the Bill of Rights do not apply to state governments. First, if we place the Barron decision within the struggle over sovereignty between the states and the Federal government, an opposite ruling in Barron where Marshall held the Bill of Rights applicable to the states would have not only inflamed the South, but would have ignited intense resistance among those communities in the North, especially in those areas where local communities were actively seeking to keep order and to keep abolitionists and their presses out. By ruling against the states, Marshall would have implicitly placed a significant check on the power of the state to regulate its a ffairs through its police power by placing the rights guaran tees of the Constitution in the way. Second, if we view Barron with an representatives, by holding the Bill of Rights inapplicable to the states, Barron also had the effect of supporting state and local governments by allowing for a liberal expansion of the police 134 See Leonard Richards, (Philadelphia: University of Pennsylvania Press, 2002).

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280 power without the interference of the rights guarantees of the Bill of Rights. Barron ga ve the states space to use their police power At the same time, Ba rron also helped to lessen the competing tradition of popular control by undercutting the fundamental right of not taking by virtue of its placement in the U.S Constitution. Envisioning a right as granted by a written constitution evidenced a significant transformation in the right itself. Like the proverbial tree falling in the woods, a right only matters if it can be used to resist an act or omission that i t was designed to prevent. Thus, the re conceptualization of the right to just compensation for takings of property as being granted by the Fifth Amendment, or similar state constitutional provision, likewise matters. It meant that the courts alone, and not extra legal communities, then had jurisdiction to determine whether to enforce the right.

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281 CHAPTER 8 POPULAR SOVEREIGNTY AND POSITIVIST RIGHTS Thus far this dissertation has explored two separate debates tha t occurred during the early nineteenth century: the competing ideas over where rights obtained their authority and the tension over the proper location of sovereignty. If we examine these debates more closely we can draw a few conclusions. First, the co ncept of where right s obtained their authority was unsettled as a cross the country the location of rights was subject to numerous interpretations Barron was just one of many views regarding the location of our liberties. Second, the location of sovereignty was also cont ested. Not only was the proper balance of sov ereignty between the Federal and state governments at issue, but so too was the m ore fundam ent question of whether sovereignty itself was lie with the people (popular s state s overeignty). Finally, the relationship between rights and sovereignty was evolving. As many actors sought to place sover eignty firmly with the formal apparatus of the state, an ideological re conceptualization of rights as existing by virtue of their inclusion within a written constitution also took place. The relationship between the se two concepts meant that as sovereign ty was transformed, rights were likewise transformed. It is this relationship between rights and sovereignty that this chapter will explore. This chapter argues that a reassessment of rights as the domain of the state as in all government itself occ urred during thi s era as a result of acts which sought the establishment of a model of state sovereignty and to lessen reliance on true popular sovereignty. Th is was aided by the actions of many, including Marshall in his Barron opinion, to re envision ri ghts as emanating from written constitutions to the exclusion of the

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282 older tradition of rights as a product of natural or fundamental law or as part of the domain of the immemorial common law. 1 We have discussed the numerous ways that rights were envi sioned In the colonial and founding eras, rights were viewed as liberties possessed by Englishmen, as universal possessions granted by nature or the divine, or provided by an inchoate blend of numerous foundations As was displayed over the course of th e Barron litigation, the view of rights in the early republic largely maintained these variations: rights as emanating from the common law tradition, natural law principles, or an inchoate blend of sources, but now added an additional source, rights as der ived from positive law pronouncements of the federal and state constitutions. At the same time, a nother debate occurred concerned the proper location of sovereignty in the new nation. While a well known struggle between the Federal and state governments took place, a larger question remained unanswered: w as sovereignty to lie truly representatives, the state? 2 As s et forth ly nineteenth century, the you ng nation attempted to determine wh at that phrase actually meant. L ike much of the new U.S. constitutional system, 1 in the title of this chapter as an appreciation of law or claim of right as existing solely by virtue of its enactment by a governmental entity. 2 As was noted by James Martel, Donald Lutz has classified four different models of popular sovereignty occurring in western political thought: the Leviathan Model (proposed by Hobbes where sovereignty only resides with the people temporarily before it is pe rmanently transferred to the ruler); the Traditionalistic Model (proposed by Bodin, Philippe du Plessis Mornay, and others where the people create the ruler); the Constitutional Republic Model (set forth by Locke, William Penn and others where the people c reate a popular government but only act through their representatives; and the Constitutional Democracy Model (described by Rousseau and Roger Williams where the people create a popular government and retain active and direct participation in that governme nt. Donald S. Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006), 76; There Be Politics Without Sovereignty? Law, Culture and the Human ities 6(2) (June 2010): 153 154, n. 2. It appears that the tension over defining popular sovereignty as one between the people and the state as the representatives of the people could also be described as a battle between the Constitutional Republic Mod el (the state) and the Constitutional Democracy Model (the people) if we

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283 implementation of the contours of popular sovereignty was left for later generations. 3 Indeed, the Constituti on left scores of unanswered questions for succeeding generations to define. The early considered contracts that could not be impaired by the state (Article I, Section 10), or whether the judiciary had the power to review legislation (Article III). Likewise, the idea of popular sovereignty also required structure and definition by futu re g enerations. However, unlike these questions which were addressed through formal law adjudication and have resulting short hand reference markers McCulloch Dartmouth College Marbury the concept of popular sovereignty was much more difficult to define As we h ave seen the concept of rights is malleable and subject to numerous interpretations. The concept of sovereignty is also murky and defi es simple definition. 4 Many scholars find fault in both the definitions of sovereignty and in the failure of scholars dissatisfied with the concept to be able to even envision alternatives to it. 5 Stephen Krasner explains that the concept of sovereignty is muddled because the term is often used without reference to its many variations, both internationally an d domestically. Specifically, Krasner argues that there are four 6 For purposes of this 3 Of course, ideas of popular sovereignty well pre dated the American example. See Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton, 1988). This chapter is referring to the unique popular sovereignty begun in the United States and not the mixed constitution model present in England, for example. 4 See Reclaiming Sovereignty ed. Laura Brace and John Hoffman, (London: Pinter, 1997), 9. 5 Politics Without Sovereignty?, 153 6 Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton Univ. Press 1999), 3

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284 chapter, I am envisioning domestic sovereignty, the power of an entity or group within a particular society to possess final authority to make and enforce law While classical versions of sovereignty were present in ancient Greece and Rome, these societies did not develop the requisite attributes that many scholars stress must arise for true notions of sovereignty to exist namely the idea of a state recognized as possessing absolute authority in a society a s the essential ingredient in defining sovereignty. 7 F.H. Hinsley argued that two main ideological transformations must take place before true notions of sovereignty can arise. First, a society must perceive a state that is conceptually separate from the community at large. 8 Second, that society must und ergo a transformation in its appreciation of law. It must separate natural or divine law from positive law and must make natural or divine law more a matter of morality or ethics. 9 Thus, natural or divine law would constitute more a matter of conscience whereas the positive law of the sovereign actually controlled practical matters on the ground. 10 T here were partial first steps toward a modern theory of sovereignty, dating primarily to the twelfth century and the rediscovery of Roman law which aided in this differentiation between natural and positive law. 11 Legal scholars like Bracton in England took up these arguments in the thirteenth century and expanded the powers of the king by arguing that the pope had no authority in secular issues. There, the k ing was solely preeminent and answered to no higher authority, at least within his own kingdom. 12 However, Hinsley dated the true gene sis of 7 F.H. Hinsley, Sovereignty Second Ed. (Cambridge: Ca mbridge University Press, 1986) 17. 8 Hinsley, Sovereignty 28. 9 Hinsley, Sovereignty 69 70. 10 Hinsley, Sovereignty 69 70. 11 Hinsley, Sovereignty 72. 12 Hinsley, Sovereignty 72.

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285 the modern concept to sixteenth century political theorist Jean Bodin who put the concept together fully. 13 Michel Foucault dated th e concept of sovereignty somewhat earlier to the middle ages and argued that it was created to address problems inherent in monarchical government. 14 The theory of sovereignty was used to both resist and impose the power of monarchies. 15 B y the eighteenth century, this same notion of sovereignty was co opted and employed not just to limit the monarch, but as a justification for alternative forms of government such as the rise of parliamentary democracies like those following the French Revo lution. 16 J ames Martel places the modern notion of sovereignty as arising out of the same forces that brought about the notions of modern liberalism. 17 Indeed, Martel notes, the modern liberal emphasis on the individual and the free access to markets are o nly obtainable through modern notions of sovereignty. 18 Thus, concept of sovereignty in its modern sense translates into state sovereignty. Under this system, the people nominally retain sovereignty but in reality the state exercises the vast majo rity of the sovereign functions. The sovereign power is delegated to elected officials, but the people retain ultimate power. Those legislative officials who perform their duties unfavorably are voted out of office and replaced. In judicial matters, whi le the people may disagree with a ruling of the Supreme Court, in the United States the consensus is that the Court holds the final word. Attempts to con test the decisions of the Court such as promoting or 13 Hinsley, Sovereignty 71. 14 Lectures at the College de France 1975 1976 (New York: Picador, 1997), 34. 15 16 17 James R. Martel, 154 18 Martel, 155.

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286 opposing judicial nomi nees all implicitly admit t he In this legislative and judicial scheme, the people are on the sidelines. The people vote for their representatives, they voice opinions for or against c ourt decisions, but at all times behave withi n a set of assumptions th at true power has been delegated to governmental entities and actors. The using the courts, and peaceful protest. However, as we explored in Chapter 7 these remedies were not so limited in the early republic and betray how far notions of sovereign power have evolved since the early nineteenth century. It is precisely the question of whether popular sovereignty truly resided with the people or with the state that determined the related issue of the location of rights. As we have seen, for many t he idea of sovereignty as residing with the people is nothing more than cover for actually placing sovereignty with the state. 19 In order to assuage this reality of state sovereignty, rights became used as a vernacular to soothe thi s harsh reality; rights became a way to limit state sovereignty. 20 Indeed, rights do not make as much sense unless considered in opposition to sovereignty. In turn, sovereignty makes sense as a state based condition limited by the rights of the people it governs. Right s could limit the power of the state, but in the end it was the state and not the people that was the true sovereign. To a great extent, rights are a conceptual term applied to counterbalance or demarcate the limits of sovereign power. A s overeign power that does not provide for any limits on that power (rights) would constitute a totalitarian state or an absolute monarchy. 21 Such a state would not provide for any actual protections for individual 19 Martel, 20 M artel, 21 Nadya Nedelsky, Defining the Sovereign Community: The Czech and Slovak Republics (Philadelphia: University o f Pennsylvania Press, 2009), 3.

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287 rights and rights would not exist in that p olity. 22 Excluding these societies, rights must exist in order to help define the limits of sovereign power. Indeed, at its most fundamental level, rights can be conceived as an umbrella term that denotes t he boundaries of state power. As notions of sov ereignty as a state based condition evolved, the concept of where rights obtained their authority also had to shift as these are related concepts. These concepts transformed most notably during times of turmoil. For example, Hinsley argued that Bodin for mulated his concept of sovereignty with the religious and civil warfare in France as a backdrop. The idea of a sole power in society with unlimited power is naturally attractive during such times in order to stop bloodshed and warfare among numerous group s of even strength. 23 powerful Leviathan was penned amid the regicide of the English Civil War. Similarl y, as was noted in Chapter 4 rights are also re conceptualized during these transformative events. For example, sovereignty was relocated away from the Crown and toward Parliament in England following the Glorious Revolution. Ultimately the idea of Parliament as the sole location of sovereignty largely evolved into an accepted notion in England, no doubt aided by the writings of Blackston were conceptually limitless. A sovereign cannot act illegally. In response to this shift in sovereignty away from the crown, t he American colonists relied on the vernacular of rights to eign power The colonists argued either that sovereignty did not fully 22 I use of propaganda influenced constitutions like those of the former Union of Soviet Socialist Republics. While the U.S.S.R. embodied the unch ecked sovereignty of the state that would constitute totalitarian government, it did promulgate three constitutions which included vigorous protections for individual rights. However, these protections seem to have only existed on paper and were largely e nunciated to counter criticism from abroad. For example, see the 1977 U.S.S.R. Constitution, http://www.constitution.org/cons/ussr77.txt (last accessed August 11, 2010). For a different view of the Soviet Constitutions, see Nathan J. Brown, Constitutions in a Nonconstitutional World (Albany: State University of New York Press, 2002), 6. Brown argues that calling the Soviet Constitutions a the workings of the Soviet authoritarian state were well on display for all who read the document, like its establishment of a single political party. 23 Hinsley, Sovereignty 120 121.

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288 shift to Parliament, thus negating their laws, or if it did, that colonial rights placed boundaries on Rights were predicated as emanating fr om colonial charters (keeping sovereignty with the crown) or enunciated as natural law possessions (placing limits on the sovereignty of Parliament). Following Independence and ratification of the Constitution, the United States settled on a structure of shared sovereignty that is the hallmark of the federal system. The questions that arose over the pr actical boundaries between the F ederal and state governments under the new federal system meant tha t the conception of rights again underwent revision Pri or to Independence, rights conceptually operated to check the power of the English sovereign whether the King or Parliament This binary worked logically as long as the sovereign was the monarch or other unified entity. This began to tear in the America n coloni es post 1688 as the colonists did not fully accept the substitution of Parliament with the sovereign role formerly occupied by the crown. After independence, the new American nation likewise had to reconfigure its notions of sovereignty when the e xternal sovereign was conceptually replaced by the people. Following Independence, the new nation espoused that it was ruled by the sovereign people but, in reality, two different mod els of sovereignty arose. The popular s overeignty model conceptualized power as remaining with the people, instead of their representatives, the state. Under this model, however, rights appear out of place. This is similar to a parliamentary sovereignty mod el where Parliament, as the sovereig n, could not act illegally. Likewise, in the U.S., the sovereign people could not act illegally if they were trul y sovereign. In contrast, a state s overeignty model envisioned a system where the people delegated their sovereignty to the state. This mode l envisioned the people as exercising their rights through formal methods like voting, petitioning government, and, eventually, by exercising rights in courts of law. Rights make

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289 sense in this model, much in the same way that rights make sense in a royal s overeignty model. In both, the sovereign, the state or the monarch, agree to limits on their sovereignty, which is expressed in the language of rights. The tension in the early republic era shows the strain over these two sovereignty models state and popular competing for primacy. What we see in the e arly r epublic er a is a nation wrestling with this tension. The d egree to which sovereignty rested with the people or with the state likewise affected the role of rights, as rights exist as a c heck on s tate sovereign power. It may be helpful to envision this relationship between sovereignty and rights as existing along a spectrum. On one end, sovereignty is the firmly located with the people. In this model, where the will of the sovereign people is th e preeminent concern, rights lose their primacy. As noted by Edmund Morgan, if the people are sovereign why do they need lim its on their own government? In the Federalist 84, Alexander Hamilton noted that the great documents of British constitution which protected rights, like the Magna Charta, the Petition of Right, or the English Bill of Rights, were agreements between the king and his subjects. These documents were important to identify what rights were retained by the people. However, in what was to 24 After citing the Hamilto rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethi cs than in a constitution of 25 view is similar to the view of sovereignty described by Jean Jacques 24 Alexander Hamilton, The Federalist: A Commentary on the Constitution of the United States No. 84 (New York: Random House, 2000), 549. 25 Hamilton, The Federalist No. 84, 549.

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290 Rousseau in The Social Contract (1762) In describing the relationship between popular sovereignty and rights, Rousseau argued that the Sovereign, being formed wholly of the individuals who compose it, neither has nor can have any interest contrary to their s ; and consequently the sovereign power need give no guarantee to its subjects, because it is impossible for the body to wish to hurt all its members. 26 For Rousseau, entirety of society required the individual to subsume individual desire s to those of the group. 27 Hamilton qualified, and softened Roussea by his view that the only limit ations on the sovereign people we re those co ntained in a written constitution a s the act that creates the government. A constitution acts as evidence of a social contract where the obligations of both the ruler and the ruled, or the people and their government, are laid bare. This tension between popular and state sovereignty and their relationship to rights can be traced to the early days of the Republic, and in particular to the debates over ratification of the Constitution. For example, one of the well known objections to the new Constitution was its lack of a written bill of rights. Much of the debate over whether the omission of a rights guarantee was mat erial was due to different appreciations of the sovereign characteristics of the new government. One of the most prevalent arguments against the inclusion of a bill of rights was one of irrelevance. As the Constitution established a federal government th at could only exercise its delegated powers, a written rights guarantee was illogical, as its Federalist promoters envisioned. 28 At its most extreme, a bill of rights could even be considered dangerous as there 26 Jean Jacques Rousseau, The Social Contract and Discourses translated by G.D.H. Cole (New York: E.P. Dutton, 1950), 17. 27 Rousseau, The Social Cont ract 18. 28 Jackson Turner Main, The Anti Federalists: Critics of the Constitution, 1781 1788 (Chapel Hill: University of North Carolina Press, 1961), 158.

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291 was no way to enumerate all potential rights, thus implying that any rights left out were no longer protected. 29 Many thought a written bill of rights simply did not make sense in the new system of American government. As was noted by Gordon Wood, Noah Webster argued that written rights guarantees, like the Magna Charta or the Habeas Corpus act were logical to check 30 For Webster, written documents which declared ri ghts did not make sense in the Republic as no one had superior rights to another. 31 Anti Federalists like George Mason, who had initially raised the need for a bill of rights during the Constitutional Convention, were incredulous at the omission. Mason no ted that many of the pre existing state constitutions contained written bills of rights and questioned why the Federal Constitution should be any different. Wood described one Massachusetts commentator who likewise viewed all constitutions, state and Fede 32 This view is telling as it retained a Lockean/Hobbesian concept of government as an arr angement between a ruler and its subjects. It was precisely this dispute which amplified how different view s of sovereignty were driving different appreciations of the concept of right. For Mason and the anti Federalists, they maintained a view of sovereignty a s one predicated along a state s ty the people vote for elected officials and then largely disappear. The state makes and enforces the law. Given the number of checks on popular participation in the proposed Constitution senators elected by state 29 Gordon Wood, The Creation of the American Republic, 1776 1787 (Chapel Hill: University of North Carolina Press, 1998), 540. 30 Wood, The Creation of the American Republic, 378. 31 Wood, The Creation of the American Republic, 378. 32 Wood, The Creation of the American Republic, 541.

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292 legislatures, the president chosen by electoral delegates, and the House of Representatives diluted by large districts and short terms this view is not unfounded. 33 Thus, Mason was rightly concerned about the lack of a written set of limitations on the state. In contrast, the Federalists po sited a view of the new Federal government as resting on the sovereignty of a national people, instead of a collection or confederation of states. This is not to say that the Federalists were believers in a system of popular sovereignty in any sense of th e empowerment or celebration of the common man that the term normally denotes. Rather, by enunciating a view of the Federal government resting on the sovereignty of a national people it allowed the Federalists, at least conceptually, to evade the reality of state sovereignty. By theorizing the rule of a national people, instead of a collection of states, the idea of a bill of rights became illogical. If the national people are the rulers, how can the rulers limit themselves? In contrast, on the other end of the spectrum, we can view rights as the vehicle through the citizenry exercise s its sovereignty. Under this view, the relationship of rights to sovereignty is more nuanced and more positive Instead of considering rights as only existing within a model of state sovereignty where rights are perceived as largely inconsequential checks granted to the people in return for relinquishing their sovereignty to the s tate, rights can play a more important role. Under this view, the reality of sovereignty as a state based condition is accepted. The state is perceived rather as a guarantor of universal liberties and freedoms, primarily vindicated through state institutions like the courts. Rights in this capacity are possessed by all and the state ensures th eir existence. This rights based system, which evolved post World War II, viewed the judiciary as responsible for enunciating and bringing to life the grand principles contained in 33 See Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007).

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293 constitutional provisions. 34 As was noted by Lorraine Weinrib, i n the Unit ed States, this system was particularly exemplified by t he jurisprudence of the Warren C ourt through decisions like Brown v. Board of Education (1954) or Loving v. Virginia (1967). In both of these cases, the Court rejected arguments that predicated a seg regated system of education ( Brown ) or laws banning interracial marriage ( Loving ) on custom, tradition, or social hierarchy. 35 Arguments of this sort rely implicitly on a recognition of community norms for their basis. For example, in Brown the Court dis missed arguments that schools in Clare ndon County, South Carolina had always been segregated, they were segregated because it was the will of the community, and natur al (racial) difference sanctioned this method. In the post World War II rights model, the courts are responsible for cutting through local normative based arguments. Indeed, the school system in Clarendon County was segregated because the majority of the community desired it. Nonetheless, judiciary in this model protected the children of Cla rendon County acting, as Weinrib describes one hand, and judicial subjectivity, on the other. In this paradigm, the abstract ideas of equal citizenship and respect for human dignity ideas based on human personhood give structure to 36 T he emphasis on the rule of law and an independent judicia ry to enforce the law undergirded the 34 The Migration of Constitutional Ideas ed. Sujit Choudhry (Cambridge: Cambridge University Press, 2006), 84, 85. 35 102. 36 between these two views of rights tracks the debate over rights that occurred between advocates of the Critical Legal rejected as false the then prominent view of the law as a system that mirrored to the needs o f a society premised on a model of liberal capitalism, viewing rights as verbiage to obscure disparities of power. As was noted by some Critical Race Theory scholars, rights can also serve to empower minorities to help blunt the effects of discrimination Stanford Law Review (1984): 57; Richard Delgado, Harvard Civil Rights Civil Liberties Law Review 301 (1987) : 304 307.

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294 sprea d of human rights that exploded globally since World War II. Indeed, the penultimate deficiency with the human rights based conception of adjudication is the question of enforceability where viable states and independent judiciaries do not exist which ev idences the importance of the state to this model Under this model, r ights act as a more sophisticated way for people can exercise their sovereignty. While it is tempting to observe the popular sovereignty tradition with nostalgia for a system of law based more closely rooted in popular will than law mediated through the apparatus of an impersonal state, the reality is that this system came with a ter rible price for those deemed outside prevailing social norms. Those who conformed to different notions of work, sex, or thought often paid dearly for such difference In addition, like many of the transformations the young nation was undergoing in the ea rly nineteenth century, the idea of local, community based popular will as overshadowing formal law was scarcely possible in a rapidly expanding era, even if it were possible. Instead, under a rights based model of state sovereignty, t he right of the fran chise gives citizens control and influence over elected officials, the right to a jury trial gives both defendants and members of the community power over judicial processes, and the rights of search and seizure allows for restraints on the exercise of exe cutive branch law enforcement powers. Montesquieu recognized this principle when he famously analyzed the three types of government: monarchy, aristocracy, and, most importantly, the people is democracy the people are in some respects the sovereign, and in other the subject. There can be no exercise of sov ereignty but by their suffrages. . 37 This is similar to the view of the state as a 37 Montesquieu, The Spirit of Laws ed. David Wallace Carrithers (Berkeley: University of California Press, 1977), 107 108.

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295 social group as set forth by N.W. Barber. 38 Barber argues against the Weberian view of the state geographically defined area. 39 For Barber, this view of the state is largely only appreciates how institutions of the state interacts with its citizens. 40 However, if we examine the state as a social ly created entity, we can replace the idea of a distant impersonal state and refocus attention on the people of the polity. In this view, the focus is not just on the interaction between the state and the people, but on the relations between the people themselves. 41 Further, Barber argues, we can exami ne in a more complex manner the relationship between the people and the state by exploring how the people deal with institutions of the state and the manner in which the people comprise these institutions 42 Barber realistically reconfigures the natu re of the state by stressing that it is created as a social construct. As such, a view of the state that simply must be opposed in order to maintain liberties for its people fails to recognize the human agency in creating the state. Further, if, in a system of state sovereignty, we consider the proper exercise of popular will as defined by actions such as voting, petitioning the government, or using the courts, these actions are legitimate because they recognize that a more nuanced view of the state appreciates that it exists to also protect the people from each other. If we stress rights as the way that the people exercise their sovereignty and apply it to reexamine some of the examples given in Cha pter 7 these incidents take on a different hue. 38 N.W. Barber, The Constitutional State (New York: Oxford University Press, 2010). 39 Barber, The Constitutional State 19. 40 Barber, The Constitutional State 24. 41 Barber, The Constitutional State 25. 42 Barber, The Constitutional State 25.

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296 Take, for example, the 1837 incident in Alton, Illinois where abolitionist Elijah Lovejoy ultimately lost his life attempting to protect his press or the mob that attacked the offices of the Federal Republican for its opposition to the War of 1812. In both incidents, the mob claimed to represent the will of the community. The Alton mob had more representation by members of the both episodes, however, the consensus of the community was at most a majority opinion. In Alton, it was L unsuccessfully sought to diffuse the mounting criticism of his friend by emphasizing the importance of the rights of free expression. 43 In Baltimore, it was many elite members of day 44 What these incidents show is that whether the mob was led by city fathers or by the lower classes, d efining comm unity opinion as monolithic is not possible. These supporters espoused opinions that were out of step with a could not be quashed if the larger community did not agree. If we reexamine the Alton and Baltimore incidents with an appreciation of rights as the way that people express their sovereignty, we see rights as a way to place limits not only on the sovereign state, but as a way to place limits on other soverei gn people. Rights exist in this form as not just part of a binary that opposes state power, but as a realistic way to protect individuals from power in all its forms. 43 Abolition Mob: Free Speech, Mobs, U.C.L.A. L. Rev. 1109 (1996 1997): 1140 1141. 44 J. Thomas Scharf, History of Baltimor e City and County The Albany Register (Albany, N.Y.), August 4, 1812, Vol. XXIV, Issue 62, Page 3.

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297 Rights must still exist under this umbrella of state sovereignty, but they can be used as a more sophisticated method of opposing power that does not just emanate from the state. Thus, i f sovereignty is identified with the state, rights as emanating from written constitutions makes sense. The state is created by the constitution and is in vested with sovereign power As a result, the state creates law and the constitution provides the limits on its power. These limits include what we would envision as rights. The sovereign state can act pursuant to the constitution and is restrained by t he enunciation of rights in the same constitution. However, if sovereignty truly remains with the people, rights are viewed less as positive law enactments perce ived as extra governmental natural or fundamental rules that pre date the constitutional structure of the state. Under this view, a Lockean conception of government prevails. People entered civil society for mutual protection and departed with certain ri ghts in order to provide for harmonious living and the common welfare, but did not give away their fundamental or natural Chapter 4 which created a conceptual d istinction between alienable rights that could bend in order to provide a civil society and inalienable rights that could not be infringed. It makes less sense under this view that a sovereign people could potentially alienate fundamental or inalienable r ights simply by the act of enunciating them in a written constitution. By contextualizing Barron within these transformations, the opinion takes on entirely new attributes. If we consider sovereignty as residing with the state, the constitution is where the question of original intent interpretations make sense under this model. However, if sovereignty is truly located with the people, a decision refusing to compens ate them for the wharf damages because

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298 the Bill of Rights was not originally intended to apply to the states is illogical. This right to compensation existed well before the Constitution; questions concerning maintaining the balance of power between the F ederal and state governments cannot abridge a natural obligation required of all free governments. Alternatively, r ights as natural or inherent conceptually left ultimate sovereignty with the people. Such a view of rights challenges the absolute supremacy required of a sovereign. Right s in this capacity are are also directly challenging the sovereignty of the state by attempting to remove some of the an essential component of sovereignty. 45 To a lesser extent, envisioning rights as an artifact of the common law places boundaries on state action, but does not attack state sovereignty itself. Finally, envisioning rights as emanating from written documen ts leaves define rights seems to be a barometer as to the ty pe of sovereignty that exists. If rights are used to limit the power of the sovereign, the sovereign is in theory unlimited in its powers that do not impede individual or community rights. Importantly, the modern concept of sovereignty has alternative, that the state became the true sovereign. 46 45 154. 46 M artel, ere Be Sovereign ty 127. Hinsely argues that the rise of popular sovereignty gave the impression that the idea of the rule of the people was claiming victory from the opposite position, the sovereignty of the r uler or king. In reality, it was the sovereignty of the state that was victorious.

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299 CHAPTER 9 CONCLUSION Jo hn Craig and John Barron never received reimbursement for the damages to their once prosperous wharf However, even had Marshall ruled differen tly it would not have made any difference to them, as C raig died shortly before the case went to trial i n March of 1828 while Barron died a few months after trial, on June 11 of the same year 1 Neither was alive by the time the Maryland Court of Appeals h eard and overturned the trial court ruling in December of 1830, and both had been dead for five years by the time the Supreme Court ruled in favor of the c ity in 1833. Nonetheless, Luke Tiernan continued the case against the c ity all the way to the highes t court in the land Why? Certainly, as executor of a l assets. Less than a year before h e pass ed away in early 1828 Craig executed his will. 2 In it, Craig divided his estate among his son, John Craig, and his son in law, John Staples the husband of his daughter Margaret who very likely went by Peggy as did her mother The younger John Craig and Staples would share To see that his intent under the will was faithfully carried out, Craig appointed his son John and Luke Tiern an as co executors of his estate. 3 However, approximately five months after executing his will, his son renounced all on No vember 14, 1827, leaving Tiernan as the sole executor. 4 1 See Baltimore Patriot March 8, 1828, Volume XXXI, Issue 59, Page 3 and Death Notice for John Barron, Baltimore Patriot June 12, 1828, Volume XXXI, Issue 141, Page 3. 2 Craig executed his will on June 18, 1827 3 John Craig Inventory (February 16, 1828), Maryland State Archives, Folio 25.37.63, Book 37. 4 John Craig Inventory (February 16, 1828), Maryland State Archives, Fo lio 25.37.63, Book 37.

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300 Tierna n pursued the case against the c ity all the way to the Supreme Court before finally accepting that the wharf damages would not be recognized, posting bonds and likely paying the legal fees the whole way to keep the case alive. It seems that the prime motivation was not out of a sense of loyalty to Craig or even a desire to see the high Court vindicate the right to receive reimbursement for governmental takings of private property. Instead, it appears that Tiernan was motivated not just as but primarily because Craig owed him a significant amount of money According to a ledger acknowledged as accurate by Craig on February 21, 1826 approximately two years before his death, he 5 However, shortly after his passing in 1828 listed his assets as totaling only $1,199.20. 6 Yet e ven before Craig and Barron passed away, Tiernan had position ed himself to recoup his losses Years earlier, Ti wharf at auction for $16,000.00 in January of 1822 7 Approximately one month later, Craig and Barron brought the Barron case against the M ayor and C ity C ouncil with ssential financial backing On July 16 1829, approximately one year after Craig and Barron and during the pendency of the appeal of the Barron litigation to the Maryland Court of Appeals, Tiernan filed suit to foreclose property mortgaged to him by Craig in 1820 in law 8 In return for a loan of $3,000.00, Craig had mortgaged to Tiernan the brick house he 5 Luke Tiernan v. Margaret, John, and Robert Craig, Margaret Staples and the Estate of John Craig Baltimore City, Chancery Court, Recorded in Liber No. 114 12, Maryland State Archives, Accession No.: 17,898 11412 1/2, MSA S512 14 11 237, Location 1/39/3/, 14. 6 John Craig Inventory (February 16, 1828), Maryland State Archives, Folio 25.37.63, Book 37. 7 James Mackubin, Administrator of Frederick Mackubin v. John Craig and John Barron Jr. (Baltimore County Court, 1818), Maryland State Archives, MSA S512 4 3602, Acc. No. 17,898 3495 1/2, Location: 1/36 /3/, (January 17, 1822 notation in file from R. Lemmon & Co., auctioneer). 8 adve

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301 the whar f. 9 The Craigs did not file an appearance to contest the suit and the chancery court appointed William H. Tiernan as trustee to conduct the auction of the property. On May 13, 1830, William Tiernan auctioned the property which sold for $1,795.00 to the highest bidder: Luke Tiernan. 10 On the same day Tiernan filed suit against the Craigs, on June 16, 1829 Tiernan received an assignment of a lease from s son in law, John Staples, for property that Staples had previously received from Craig in 1827. On May 4, 1827, Craig assigned the l ease on this second property to Staples for payment of $60.00 per year 11 This property was north of and immediately adjacent to the lot Craig owned at the corner of Ann and George Streets that he mortgaged to Tiernan. 12 in an 1838 chancery court case, 13 John Craig co owned a brig which was ordered sunk at the entrance to Baltimore harbor in1814 to defend the city from the British. In 1815, Craig and the other owners sold the brig for salvage to the plaintiff along with the rights to any future indemnity from the United States Government. during January or early February of 1828. See Baltimore Patriot March 8, 1828, Volume XXXI, Issue 59, Page 3; Death Notice for John Barron, Baltimore Patriot June 12, 1828, Volume XXXI, Issue 141, Page 3; and John Craig Inventory (February 16, 1828), Maryland State Archives, Folio 25.37.63, Book 37. 9 Tiernan v. Craig, et al pp. 3 5. 10 Tiern an v. Craig, et al pp. 46 47. 11 Tiernan v. David and John Fisher, John Craig and John H. Staples Maryland State Archives S512 14 11311, Acc. No.: 17,898 11483, Location: 1/39/3/ (Deed of Assignment). See also See Maryland Land Records, www.mdlandrec.net Liber WG No. 185, folio 655. 12 Shortly thereafter, on July 3, 1829, the Baltimore Patriot reported on Tiernan v. Fisher, et al Apparently, in 1805, John Fisher had origin ally leased to John Craig the property at the corner of George and Ann Streets, but the lease was never recorded. Craig assigned the lease to son in law John Staples on May 4, 1827, who in turn assigned the lease t o Luke Tiernan on June 16, 1829. See also July 7, 1829 Baltimore Patriot ; Tiernan v. Fisher, et al Maryland State Archives, MSA: S512 14 11311. 13 10 G. & J. 253 (Md. Ct. of App. 1838).

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302 However, Craig and his associates allegedl y kept the $1,003.75 later paid by the Federal government for the damage, but managed to defeat the 1824 suit at law on the ground that the statute of limitations had run. Further, when the plaintiff brought suit again in 1827 in equity and was suc cessful in chancery court, Tiernan filed an ultimately successful appeal as executor. 14 While Craig died before trial in debted significantly to Tiernan, it appears that t he life of his son John Craig was both a story of redemption and tragedy. The younger John Cr aig was only twent y one years old 15 Despite the loss of the wharf, Craig managed acquire significant amount of personal property. 16 Unfortunately, misfortune stuck the younger Craig quickly. On February 10, 1838, a woman named Mary Ann, described as a of a John Craig, died at thirty years of age 17 Craig himself was killed a year later in a carriage accident. While drivin the carriage successfully jumped out, Craig was thrown from the carriage while trying to ged down the bumpy stone street until the horse could be stopped. Craig was only thirty two. 18 O ne year later, 14 10 G. & J. 253 (Md. Ct. of App. 1838). 15 Baltim ore Sun Volume IV, Issue 146, p. 2. 16 between Bond and Market Streets. May 20, 1839 Baltimore Sun Volume V, Issue 3, Page 3. It is not know n how Craig succeeded in establishing himself as a successful merchant and what support Luke Tiernan may have provided, if any. 17 Baltimore Sun Volume II, Issue 28, p. 2. 18 Baltimore Sun V olume IV, Issue 146, p. 2.

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303 wandered from the steps of his house where he was left unattended. The boy wandered out to 19 Ultimately, while Barron v. Baltimore is r emembered in Constitutional history for its holding that the Bill of Rights amendments did not apply to st ate governments, at its base the litigation was continued all the way to the Supreme Court by a creditor seeking to re cover some of his losses. However, many cases o utlast their original intent and purpose, and Barron is no exception. Certainly, on a mic ro level, this study i lluminate s the actual circumstances that gave rise to the case, from the lives of the people involved to a snapsh ot of early Baltimore to a view inside the courtrooms where the Barron and Craig tried to remedy their misfortune. Whi le a detailed and intimate history of the case is satisfying for Constitutional history buffs, much more was needed By digging deeper into the story, we see that t he case has a relevance and importance to our understanding of American history. Treating Barron as an introductory footnote to the Fourteenth Amendment fails to capture a moment in American history. Barron matters on its own. The case is an excellent vehicle through which we can appreciate how notions of rights, sovereignty, federalism and, ultimately, power, we re being negotiated and transformed in the early republic. B y widening our focus and contextualizing the deci sion within its era we gain a better appreciation of the range of ideas regarding the origins of our rights. Looking at the varied interpretations from the colonial, founding, and early republic eras, it is interpretations. Indeed, this positivist approach was much newer than the c ompeting traditions which held rights as natural law possessions or the particular birthright of Englishmen, f or example. As this interpretation was only one of severa l possible outcomes, it requires us to 19 Baltimore Sun Volume VII, Issue 20, p. 2.

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304 Certainly, Barron arrived on the Supreme during a time of incredible upheaval and can be interpreted as a byproduct of escalating nullification crisis. H owever, on a broader scope, Barron can also been seen as part of a larger battle over the location of power in the early republic This debate was not simply over the balance of power between the Federal and s tate governments but concerned the role of the people in a country which was predicated upon popular sovereignty. Barron plays a critical role in the maintenance of a system of state sovereignty where the The idea of locating rights is an important step in this process. If rights are perceived as natural or fundamental principles, the sovereign people retain the right to enforce those rights if they deem it necessary. However, b y advocating rights as emanating from written constitutions, the courts become the location where governmental overrea ch will be redressed

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305 LIST OF REFERENCES PRIMARY SOURCES Constitutional Documents Magna Charta (1215). The Virginia Declaration of Rights ( June 12, 1776 ). Declaration of Independence ( July 4, 1776 ). United States Constitution, including Amendments I through X. Illinois Constitution (1818) Louisiana Constitution (1921). Maryland Constitution (1776) Mass achusetts Constitution (1780) New York Constitution (1777) (1821), and (1846). Pennsylvania Constitu tion (1776) and (1790) South Carolina Constitution (1778). Statutes/Ordinances /Resolutions 1 Stat. 302, Ch. VIII, Feb. 18, 1793, cited in Swindler, The Constitution and Chief Justice Marshall 330. inhabitants thereof 1796, Ch. 68, The General Public and Statutory and Public Local Law of the State of Maryland, 1692 1839 Vol. II, ed. Clement Dorsey Laws and Ordinances Governing the City of Chicago, 1837 Joseph E. Gary, ed. (Chicago 1866), cited in Novak, Welfare 250. The General Public Statutory Law and Public Local Law of the State of Maryland, From the Year 1692 1839 Inclusive, Clement Dorsey, ed., Vol. II, 1396 1627. Judiciary Act of 1789, Section 25, 1 Stat. 73 (1789).

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306 Ordinances of the City of Baltimore (Warner & Hanna, 1807), 72 73. Ordinances of the Corporation of the City of Baltimore (William Warner, 1813), 12 19. Ordinances of the Corporation of the City of Baltimore (William Warner, 1817), 3 2 35. South Carolina Ordinance of Nullification (November 24, 1832) in The Nullification Era: A Documentary Record ed. William W. Freehling (New York: Harper Torch Books, 1967), 150 152. for the Liberties of the People (1639), Constitution, University of Chicago Press, Volume 1, Chapter 14, Document 1, http://press pubs.uchicago.edu/founders/documents/v1ch14s1.html University of Chicago Press, Volume 1, Chapter 4, Document 8, http://press pubs.uchicago.edu/founders/documents/v1ch4s8.html University of Chicago Press, Volume 1, Chapter 14, Document 17, http://press pubs.uchi cago.edu/founders/documents/v1ch14s17.html Constitution University of Chicago Press, Volume 1, Chapter 1, Document 1, http://press pubs.uchicago.edu/founders/documents/v1ch1s1.html Cases (a ) U.S. Supreme Court: Chisholm v. Georgia, 2 Dallas 419 (1793). Marbury v. Madison 5 U.S. 137 (1803). Fletcher v. Peck 10 U.S. 87, 139 (1810). Bank of Columbia v. Okely 17 U.S. 235 (1819). McCulloch v. Maryland 17 U.S. 316 (1819). Sturges v. Crowninshield 17 U.S. 122 (1819). Trustees of Dartmouth College v. Woodward 17 U.S. 518 (1819). Houston v. Moore 18 U.S. 1 (1820).

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307 Co hens v. Virginia 19 U.S. 264 (1821). Goszler v. Corporation of Georgetown 6 Wheat. 593, 19 U.S. 593 (1821). Gibbons v. Ogden 22 U.S. 1 (1824). Ogden v. Saunders 25 U.S. 213 (1827). Brown v. Maryland 25 U.S. 419 (1827). Satterlee v. Matthewson 27 U.S. 380 (1829). Willson v. Black Bird Creek Marsh Company, 27 U.S. 245 (1829). John Barron, survivor of John Craig, for the use of Luke Tiernan, Executor of John Craig v. the Mayor and City Council of Baltimore 32 U.S. 243 (1833). Nicholas v. Fearson 32 U.S. 99 (1833) Lessee of Livingston v. Moore 32 U.S. 469 (1833) Scholefield v. Eichelberger 32 U.S. 586 (1833). U.S. v. MacDaniel 32 U.S. 1 (1833). U.S. v. Ripley 32 U.S. 18 (1833). U.S. v. Fillebrown 32 U.S. 28 (1833). U.S. v. Per cheman 32 U.S. 51 (1833). U.S. v. Turner 32 U.S. 132 (1833). U.S. v. Mills 32 U.S. 138 (1833). U.S. v. Wilson 32 U.S. 150 (1833). U.S. v. Brewster 32 U.S. 164 (1833). Sampeyreac v. U.S. 32 U.S. 222 (1833). Barlow v. U.S. 32 U.S. 404 (1833). 32 U.S. 435 (1833).

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308 U.S. v. 84 Boxes of Sugar 32 U.S. 453 (1833). Ex Parte Watkins 32 U.S. 568 (1833). Heirs of Dubourge de St. Colombe v. U.S. 32 U.S. 625 (1833). Nicholas v. Fearson 32 U.S. 99 (183 3). Proprietors of Charles River Bridge v. Proprietors of Warren Bridge 36 U.S. 420 (1837). New York v. Miln 36 U.S. 102, 131 (1837). Holmes v. Jennison 39 U.S. 540 (1840). Swift v. Tyson 41 U.S. 1 (1842). Thurlow v. Mass. 46 U.S. 504 (1847). Smith v. Turner 48 U. S. 283 (1849) Gitlow v. N.Y. 268 U.S. 652 (1925). Duncan v. Louisiana 391 U.S. 145 (1968). District of Columbia et al v. Heller 554 U.S. 570 (2008). McDonald v. City of Chicago, Ill. 130 S.Ct 3020 (2010). (b ) Federal Courts: v. Dorrance 2 U.S. 304 (C.C. Penn. 1795). Elkison v. Deliesseline, 8 F. Cas. 493 (C.D. S.C. 1823). Bonaparte v. Camden & A.R. Co. 3 F Cas. 821 (C.C. Dist. N.J. 1830). Magill v. Brown 16 F. Cas. 408 (C.C. E. Dist. Pa. 1833). Johnson v. Tompkins 13 F. Cas. 840 (C.C. E. Dist. Pa. 1833). (c ) State Courts: Bowman v. Middleton 1 Bay 252 (S.C.Com.Pl.Gen.Sess. 1792). Lindsay v. Commissioners 2 Bay 38 (S.C.Const.A pp. 1796).

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309 3 Call 268 (VA. 1802). Palmer v. Mulligan 3 Cai. R. 307 (N.Y. 1805). Steele v. Western Inland Lock Navigation 2 Johns. 283 (N.Y. 1807). Livingston v. Van Ingen 9 Johns. Rep. 557 (N.Y 1812). Stevens v. Proprietors of Middlesex Canal 12 Mass. 466 (Mass. 1815). State v. Antonio 3 S.C. 562 (S.C. 1816). Gardner v. Trustees of the Village of Newburg 2 Johns. 162 (N.Y. 1816). James Colston v. John Craig (Baltimore County Court, 1817), MSA S512 9 7151, Acc. No. 17,898 7118 1/3, Location: 1/37/4/. James Mackubin, Administrator of Frederick Mackub in v. John Craig and John Barron Jr. (Baltimore County Court, 1818), Maryland State Archives, MSA S512 4 3602, Acc. No. 17,898 3495 1/2, Location: 1/36/3/ New York v. Goodwin 1 Wheeler C.C. 470; 18 Johns. 187 (N.Y. 1820). Butler v. Kent 19 Johns. 223 (N.Y. 1821) Browne v. Kennedy 5 H. & J. 195 (Md. 1821). Bradshaw v. Rogers and Magee 20 Johns. 103 (N.Y. 1822). Callender v. Marsh 1 Pick. 418 (Mass. 1823). Mississippi v. Moor 1 Miss. 134 (Miss. 1823). Commonwealth v. Purchase 19 Mass. 521 (Mass. 1824). Barker v. New York 3 Cow. 686 (N.Y. 1824). Crittenden v. Wilson 5 Cow. 165 ( N.Y. 1825). Mayor and City Council of Baltimore v. Moore & Johnson 6 H. & J. 375 (Md. Ct. App. 1825). John Craig v. Thomas Cowart Baltimore County Court (Chancery), February 13, 1826. Shrunk v. Schuylkill Navigation Company 14 Serg. & Rawle 71 (Penn. 1826). Lowry v. Tiernan & Williamson 2 H. & G. 34 ( Md. 1827).

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310 Peter Rescaniere v. John Hanna, Charles Malloy, Richard Williams, John Craig, and Luke Tiernan Baltimore County Court (Chancery), filed September 21, 1827, Maryland State Archives, Location: 1/39/2/, Accession No.: 17,898 10670 1/4, MSA Citation: MSA S512 13 10519. Lansing v. Smith 8 Cow. 146 (N.Y. 1828). Stein v. State 2 Mo. 67 (Mo. 1828). Barron & Craig v. The Mayor and City Council of Baltimore Baltimore County Court, March Term 1828, reprinted in The American Jurist and Law Magazine No. 2, Vol. 4, (October 1829) : 203 Luke Tiernan v. Margaret, John, and Robert Craig, Margaret Staples and the Estate of John Craig Baltimore City, Chancery Court (1829). Tiernan v. David and John Fisher, John Craig and John H. Staples (Baltimore Chancery Court, 1829). Tiernan v. Poor 1 G. & J. 216 (Md. Ct. of App., 1829). Case of the plan of the Third Division of the District of Kensington 2 Rawle 445 (Penn. 1830). McArthur v. Kelly and Williams 5 Ohio 139 (Ohio 1831). Scudder v. Trenton Delaware Falls Company 1 N.J. Eq. 694 (N.J. 1832). John Glenn v. Th e Mayor and City Council of Baltimore 5 G. & J. 424 (Md. Ct. App. 1833). Forks v. Easton 2 Whart. 405 (Penn. 1837). 10 G. & J. 253 (Md. Ct. of App. 1838). The President, Managers, and Company of the Washington and Baltimore Turnpike Road v. The Baltimore and Ohio Railroad Company 10 G & J 392 (Md. Ct. of Appeals 1839). Sinnickson v. Johnson 17 N.J.L. 129 (N.J. 1839). Ten Eyck v. The Delaware and Raritan Canal Co. 18 N.J.L. 200 (N.J. 1841). State v. Buzzard 4 Ark. 18 (Ark. 1842). Stone v. Dana 46 Mass. 98 (Mass. 1842). Monongahela Navigation Company v. Coons 6 Watts & Serg. 101 (Penn. 1843). Taylor v. Porter & Ford 4 Hill 140 (N.Y. Sup. Ct. 1843).

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311 Commonwealth v. Flanagan 7 Watts & Serg. 415, 1844 WL 5033 (Penn. 1844). State v. Brown, 8 Rob. 566 (La. 1844). Rhinehart v. Schuyler 7 Ill. 473 (Ill. 1845). Nunn v. Georgia 1 Ga. 243, 250 (Ga. 1846). Young v. Mckenzie 3 Ga. 31 (Ga. 1847). Day v. Maryland 7 Gill 321 (Md. 1848). Flint River Steamboat Co. v. Foster 4 Ga. 194 (Ga. 1848). New York v. The Board of Supervisors of the County of Westchester 4 Barb. 64 (N.Y. Sup Ct., N.Y. County, 1848). Allen v. Georgia 10 Ga. 85 (Ga. 1851). Parham v. Decatur County 9 Ga. 341 (Ga. 1851). People v. White 11 Barb. 26 (N.Y. 1851). 16 Pa. 256 (Pa. 1851). Campbell v. Georgia 11 Ga. 353 (Ga. 1852). Atkins v. State 16 Ark. 568 (Ark. 1855). Broadbent v. State 7 Md. 416 (Md. 1855). New York v. Toynbee v. Wynhammer 2 Parker Crim. Rep. 490 (N.Y. 1856). Jones v. Robbins 74 Mass. 329 (Mass. 1857). Hoffman v. State 20 Md. 425 (Md. 1863). (d ) English Cases: (1610). Sutton v. Clarke 6 Taunt. 42 (1815 )

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312 Treatises Adams, John. The Political Writings of John Adams ed. George Carey (Washington, D.C.: Regnery Publishing, 2000) Adams, Samuel (February 27, 1769 Boston Gazette) , University of Chicago Press, Volume 1, Chapter 3, Document 4, http://press pubs.uchicago.edu/founders/documents/v1ch3s4.html Angell, Joseph K. A Treatise on the Common Law in Relation to Water Courses (Boston: Wells and Lilly, 1824) Blackstone, William Commentaries on the Laws of Engla nd Vol. 1 (University of Chicago Press, 1979). ----. Commentaries on the Laws of England, Vol. 4: Of Public Wrongs (London: J. Murray, 1857 ). Livy. History of Rome Books XXXI XXXIV with an English Translation. (Cambridge, Mass.: Harv ard University Press, 1935). Hobbes, Thomas The Leviathan: Or the Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil ed. Michael Oakeshott (Oxford: Basil Blackwell, 1957) Hoffman, David A Course of Legal Study; Respectfully Addressed to the Students of Law in the United States (Baltimore: Coale and Maxwell, 1817). Hopkins, Stephen in American Political Writing During the Founding Era 1760 1 805 ed. Charles S. Hyneman and Donald S. Lutz (Indianapolis: Liberty Press, 1983). Jay, John, Alexander Hamilton, and J ames Madison. The Federalist: A Commentary on the Constitution of the United States, ed. Robert Scigliano (New York: Random House, 2000). Montesquieu. The Spirit of Laws ed. David Wallace Carrithers (Berkeley: University of California Press, 1977). Press, Volume 1, Chapter 14, Document 3, http://press pubs.uchicago.edu/founders/documents/v1ch14s3.html ----. th Right of the Free Born

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313 1, Chapter 14, Document 5, http://press pubs.uchicago.edu/founders/documents/v1ch14s5.html Rawle, William A View of t he Constitution of the United States ( Philadelphia, 1829 ). Rousseau, Jean Jacques The Social Contract and Discourses translated by G.D.H. Cole (New York: E.P. Dutton, 1950). Story, Joseph Commentaries on the Constitution of the United States (1833). Tucker, St. George View of the Constitution of the United States with selected writings, with a forward by Clyde N. Wilson (Indianapolis: Liberty Fund, 1999). Wilson, James The Collected Works of James Wil son Vol. 2, ed. Kermit Hall and Mark David H all (Indianapolis : Liberty Fund, Inc., 2007). The North American Review Vol. 13, No. 33 (Oct., 1821) Four Letters on Interesting Subjects (Philadelphia: 1776), The Founders' Constitution Volume 1, Chapter 17, Document 19, (The University of Chicago Press, http://press pubs.uchicago.edu/founders/documents/v1ch17s19.html Newspapers Baltimore Price Current (Baltimore, Maryland), 5 21 1803, 5 28 1803, 6 25 1803, 7 30 1803, 10 29 1803, 11 12 1803, 7 19 18048 30 1804, and 12 6 1804 editions. The Albany Register (A lbany, N.Y.), August 4, 1812, V ol. XXIV, Issue 62, p. 3. November 16, 1815 Baltimore Patriot Volume VI, Issue 901, Page 1. Baltimore Patriot April 6, 1816, Vol. VII, Issue 84, p. 2. Baltimore Patriot April 12, 1817. Baltimore American and Daily Advertiser August 7, 1817. Baltimore Patriot September 26, 1817, Vol. X, Issue 225, p. 3. Baltimore Patriot February 11, 1820. Baltimore Patriot November 15, 1822, Vol. XX, Issue 114, p. 3. March 10, 1824 Baltimore Patriot Volume XXIII, Issue 58, Page 3.

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314 North American Review Vol. 20, Issue 46 (January 1825), p. 118. Baltimore Patriot March 8, 1828, Volume XXXI, Issue 59, Page 3. Death Notice for Joh n Barron, Baltimore Patriot June 12, 1828, Volume XXXI, Issue 141, Page 3. July 7, 1829 Baltimore Patriot. January 5, 1830 Baltimore Patriot Volume XXXV, Issue 4, Page 2. Baltimore Patriot January 8, 1831, Vol. XXXVII, Issue 7, Page 2. July 9, 1831, p. 327. January 25, 1834, p. 366. February 1, 1834, p. 382 February 8, 1834, p. 399. December 20, 1834, p. 272. The Liberator (Boston, Mass.), February 28, 1835, Vol. V, Issue 9, p. 35. The Gloucester Telegraph (Gloucester, Mass.), March 21, 1835, Vol. 9, Issue 23, p. 3. August 22, 1835, p. 439. July 8, 1837, p. 291. Baltimore Sun Volume II, Issue 28, p. 2. Baltimore Sun Volume IV, Issue 146, p. 2. May 20, 1839 Baltimore Sun Volume V, Issue 3, Page 3. Baltimore Sun Vol ume VII, Issue 20, p. 2. The North American and Daily Advertiser (Philadelphia, Pennsylvania), June 1 1842, Volume 4, Issue 991, p. 2.

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315 American Bar Association Journal (October 2008) Chicago Tribune July 24, 2008, July 25, 2008, July 29 2008 ChiTown Daily News July 25, 2008 Directories/ Genealogical Records Maryland Naturalization Abstracts, Vol. 1: Baltimore County and Baltimore City, 1784 1851 Compiled by Robert Oszakiewski (Family Line P ublications, 1995). U.S. Naturalization Records Indexes, 1794 1995, District of Maryland Maryland Marriages, 1801 1820 compiled by Robert Barnes (Baltimore, Maryland: Genealo gical Publishing Co., 1993) Baltimore Directory for 1803 ed. Cornelius William Stafford (Baltimore: Butler, 1803). Baltimore Directory and Citizens Register, for 1807 ed. and Hanna, 1807). (Baltimore, 1808) The Baltimore Directory for 1810 William Fry (Baltimore: G. Dobin and Murphy, 1810). Maryland 1810 Census, Computer Index, Compiled by Ronald V. Jackson (Accelerated Indexing Systems, Utah, 1973 ) (Baltimore: B.W. Sower & Co., 1812) The Bal timore Directory and Register for 1814 15 1814). The Baltimore Directory for 1817 18 (Balt imore: James Kennedy, 1817). The Baltimore Directory, for 1822 23 Compiled by C. Keenan (Baltimo re: Richard Matchett, 1822) Baltimore Directory for 1824 (Baltimore: Richard Matchett, 1824) Correspondence/Memoirs /Speeches Adams, John Quincy. Memoirs of John Quincy Adams, Comprising Portions of his Diary from 1795 to 1848 ed. Charles Fran cis (Philadelphia, 1875). Adams, Samuel University of Chicago Press, Volume 1, Chapter 17, Document 13,

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316 http://press pubs.uchicago.edu/founders/documents/v1ch17s13.html Calhoun, Calhoun: Basic Documents (State College, Pa.: Bald Eagle Press, 1952), 135 190. Elliot, Jonathan The debates in the several state conventions on the adoption of the federal Constitution, as recommended by the general convention at Philadelphia, in 1787. ected and rev. from contemporary publications, by Jonathan Elliot. Pub. under the sanction of Congress. (1836), 5 vols. Chapter: DEBATES IN THE CONVENTION OF THE COMMONWEALTH OF MASSACHUSETTS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, Accessed from http://oll.libertyfund.org/title/1906/112216 Hone, Philip. The Diary of Philip Hone, 1828 1851 Vol. II, Allan Nevins, e d., (New York: Dodd, Mead and Company, 1927). Jefferson, Thomas. Constitution University of Chicago Press, Volume 1, Chapter 14, Document 10, http://press pubs.uchicago .edu/founders/documents/v1ch14s10.html ----. The Portable Thomas Jefferson ed. Merrill D. Peterson (New York: Viking Press, 1975). Marshall, John. The Papers of John Marshall: A Descriptive Calendar Vol. II, ed. Irwin S. Rhodes (Norman: University of Oklahoma Press, 1969). Saint Mery Moreau de Edited by Fillmore Norfleet, Maryland Historical Magazine Vol. 35, No. 3 (September 1940): 221 in American Political Writing During the Founding Era, 1760 1805, ed. Charles S. Hyneman and Donald S. Lutz (Indianapolis: Liberty Press, 1983). ----. A Sermon Preached before his Excellency Francis Bernard (Boston: Richard Draper, 1768) Taney, Roger. Papers of Roger Taney, beginning in 1825, located in Special Collections at the Maryland State Archives, Call No.: MS 800, Item ID No.: Q9700000009137. Maps/Diagrams/ Land Records/ Miscellaneous Maryland State Archives SC 2221 4 20, 1822 1833. Baltimore County Court, Plat of Fells Point from Barron v. Baltimore Maryland State Archives C 2042 168 MdHR 19,957 244.

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317 Baltimore County Court (City Civil Docket) March Term 1828, Maryl and State Archives, MSA C301 14, located at O utline, Notes, an d Documents Concerning Barron v. Baltimore complied by Edward C. Papenfuse, http://mdhistory.net/msaref06/barron/html/index.html Baltimore County Court (City Civil Docket) March Term 1828, Maryl and State Archives, MSAC301 14, Court of Appeals for the Western Shore of Maryland ( Docket, Notes of Oral Arguments, and Decision), December Term 1830, and Barron Judgment compiled by Papenfuse, Edward C. Outline, Notes and Doc uments Concer ning Barron v. Baltimore 32 U.S. 243 http://mdhistory.net/msaref06/barron/index.html Barron v. Mayor of Baltimore 32 U.S. 243. Transcript of Record. File Date: 7/1/1831. 31 pp. U.S. Supreme Court Records and Briefs, 1832 1978 Report of Isaac Trimble, the Engineer appointed by the Commissioners of the Mayor and City Council of Baltimore on the Subject of the Maryland Canal (Baltimore: Lucas & Deaver, 1837). An Exhibit of the Losses Sustained at the Office of Discount and Deposit Baltimore, under the Complied by the President and Directors of the Office at Baltimore, in Pursuance of an Order from the President and Directors of the Bank of the United States, to which is appended a Report of the Conspiracy Cases, tried at Hartford County Court in Maryland (Baltimore: Thom as Murphy, 1823) MDLandrec.net, Baltimore County Court (Land Records) WG Book No. 134: 474 (1815). MD LandRec.net, Baltimore County Court (Land Records) WG Book No. 97: 151 (1808). MDLandrec.net, Baltimore County Court (Land Recor ds) WG Boo k 104: 349 (1809) Baltimore City Archives, RG 22 (War of 1812 Records), MSA SC5458 45 20 1042 (RG 22, S1, Box 1) and MSA SC5458 45 20 0140 (RG 22, S1, Box 1) Boardley to Barron Assignment July 18, 1807, MdLandRe c.net, WG Book No. 95: 108. Giles to Barron Deed June 18, 1808, MdL andRec.net, MSA WG Book 99: 299. Mackubin Deed December 1, 1815 MdLandRec.net, MSA W G Book 134: 474. Barron/Schley Deed 1818, MdLandRec.net, MSA WG Book 150: 236. John Craig Inventory (February 16, 1828), Maryland State Archives, Folio 25.37.63, Book 37.

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318 References /Compilations The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 ed. Oscar Handlin (Cambridge, Massachusetts: Harvard University Press, 1966) Documents of American Constitutional and Legal History Vol. I, ed. Melvin Urofsky and Paul Finkelman (New York: Oxford University Press, 2002). Sixth Edition (St. Paul, Minn.: West Publishing Co., 1990) The Supreme Court in American Life, Vol. II, T he Marshall Court, 1801 1835 ed. Adrienne Siegel (New York: Associated Faculty Press, Inc., 1987) Papenfuse, Edward C. Outline, Notes and Documents Concerning Barron v. Baltimore 32 U.S. 243 http://mdhistory.net/msaref06/barron/index.html. Interviews Interview with James Crozier, Ph.D., Assistant Professor of Classics and History, Missouri Valley College (October 8, 2010). SECONDARY SOURCES Aarsleff, Hans. John Locke: Problems and Perspectives ed. John W. Yolton, (Cambridge: Cambridge University Press, 1969). Almand, Bond A History of the Supreme Court of Georgia ed. John Harris (Macon, Ga.: J.W. Burke Co., 1948). Amar, Akhil Reed The Bill of Rights: Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998). ----. The Nature of Rights and the American Founding and Beyond ed. Barry Alan Shain, (Charlottesville: University of Virginia Press, 2007). Bailyn, Bernard The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967). Barber, N.W. The Constitutional State (New York: Oxford University Press, 2010). Beirne, Francis F. The Amiable Baltimoreans 1st ed. (New York: Dutton, 1951)

PAGE 319

319 Bilder, Mary Sarah Transformations in American Legal History: Essays in Honor of Morton J. Horwitz ed. Alfred L. Brophy and Daniel W. Hamilton (Cambridge, Mass.: Harvard University Press, 2009). Bohner, Charles H. John Pendleton Kennedy: Gentleman from Baltimore (Baltimore: Johns Hopkin s Press, 1961). Brown, Nathan J. Constitutions in a Nonconstitutional World (Albany: State University of New York Press, 2002). Browne, Gary L. Baltimore in the Nation, 1789 1861 (Chapel Hill: University of North Carolina Press, 1980). ----. Law, Society, and Politics in Early Maryland ed. Aubrey Land, L ois Green Carr, and Edward Papen fuse (Baltimore: Johns Hopkins University Press, 1977). Bruchey, Stuart Weems Robert Oliver, Merchant of Baltimore 1783 1819 (Baltimore: Johns Hopkins University Press, 1956). Brugger, Robert J. Maryland: A Middle Temperament (Baltimore: Johns Hopkins Press, 1988). Carr, Craig L. The Political Writings of Samuel Pufendorf (Oxford, 1994). Clinton, Robert Lowry Marbury v. Madison and Judicial Review ( Lawrence: University of Kansas Press, 1989). Cohen Lizabeth Making a New Deal: Industrial Workers in Chicago 1919 1939 (New York: Cambridge University Press, 1990). The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992). Cox, Richard J. urveying, Maps, and the Absence of Urban Planning in Baltimore, 1730 Maryland Historical Magazine Vo l. 81, No. 1 (Spring 1986) Cranwell J.P. and W.B. Crane, Men of Marque: A History of Private Armed Vessels out of Baltimore During the War of 1812 (New York: W.W. Norton, 1940). Curtis, Michael Kent by an Anti Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens, 44 U.C.L.A. Law Review (1996 199 7) Curtis, Michael Kent No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N .C.: Duke University Press, 1986).

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320 Cornell, Saul The Other Founders: Anti Federalism and the Dissenting Tradition in America, 1788 1828 (Chapel Hill: University of North Carolina Press, 1999). Cornell Saul in The Cambridge History of Law in America Vol. 1: Early America (1580 1815), ed. Michael Grossbe rg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008) Dale Elizabeth Constitutional Mythologies: New Perspectives on Controlling the State ed. Alain Marciano ( forthcoming from Springer 2011); University of Florida Levin College of Law Research Paper No. 2009 17, available at SSRN: http://ssrn.com/abstract=1361322 ----. A Government of Laws or Men? Criminal Justice in the United States, 1789 1939 (Forthcoming from Cambridge University Press New Histories of American Law series). Delgado, Richard. Harvard Civil Rights Civil Liberties Law Review 301 (1987) Dickinson, E dwin Dewitt The Equality of States in International Law (Cambridge : Harvard University Press 1920). Doherty, Brendan J. Barron v. City of Baltimore Journal of Supreme Court History V ol. 32, Issue 3 (November 2007 ): 211 Dubber, Marcus Dirk The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005). Edwards, Laura F. The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post Revolutionary South (Chapel Hill: University of North Carolina Press, 2009). Finkelman, Paul. Barry Law Review 1 (2003). Fisher III, William Stanford Law Review 1065 (May 1997). Foucault, Michel Lectures at the College de France 1975 1976 (New York: Picador, 1997). Freehling, William W. The Road to Disunion, Volume I: Secessionists at Bay, 1776 1854 (New York: Oxf o rd University Press, 1990).

PAGE 321

321 Friendly Fred and Martha Elliott. The Constitution: That Delicate Balance (New York: Random House, 1984). Friedman, Lawrence M. A History of American Law Second Ed. (New York: Simon & Schuster, 1985). Garitee, Jerome by Baltimore During the War of 1812 (Middletown, Conn.: Wesleyan University Press, 1977). Gates, David The Napoleonic Wars, 1803 1815 (New York: Arnold, 1997). Gerber, Scott Douglas To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York : New York University Press, 1995). Gordon, Robert 36 Stanford Law Review 57 (1984) Grimsted, David American Mobbing, 1828 1861 (New York: Oxford University Press, 1998). Grossberg, Michael 25 Journal of Social History 191 (1991) Hall, Kermit The Magic Mirror: Law in American History (New York: Oxford University Press, 1989) ----. The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992). ----. With William Wiecek, and Paul Fink e l man, American Legal History: Cases and Materials (New York: Oxford University Press, 1991), Haines, Charles Grove The Revival of Natural Law Concepts (Cambridge: Harvard University Press, 1930). Hartog, Hendrik Journal of American History Vol. 74, No. 3 (December 1987): 1013 1034. Haskins, George L. in Chief Justice John Marshall: A Reappraisal ed. W. Melville Jones (Ithaca, N.Y.: Cornell University Press, 1956). Hayes, Kevin J. Poe and the Printed Word (Cambrid ge University Press, 2000). Head, David Maryland Historical Magazine Vol. 103, No. 3 (Fall 2008): 269.

PAGE 322

322 Helmholz, R.H. Journal of Legal Analysis Volume 1, No. 1 (Winter 2009), http://jla.hup.harvard.edu Hinsley, F.H., Sovereign ty Second Ed. (Cambridge: Cambridge University Press, 1986). Reclaiming Sovereignty ed. Laura Brace and John Hoffman, (London: Pinter, 1997) Holton, Woody Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007). Horwitz, Morton J. The Transformation of American Law, 1780 1860 (Cambridge, Mass.: Harvard Uni versity Press, 1977) Hulsebosch, Daniel Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World (Chapel Hill: University of North Carolina Press, 2005). Hunt, Lynn Inventing Human Rights: A History (New York: W.W. Norton, 2007). Irons, Peter (New York: Penguin Books, 1999). Johnson, Herbert A. Thought in L ight of Sturges v. Crowninshield and Ogden v. Saunders in John ed. Thomas C. Shevory (Westport, Conn. : Greenwood Press 1989). Kielbowicz, Richard Attacks on Antislavery Newspapers, 1833 Law and Hist ory Review, Vol. 24, No. 3 (Fall 2006) Kramer, Larry The People Themselves: Popular Constitutionalism and Judicial Review ( New York: Oxford University Press, 2004). Krasner, Stephen D. Sove reignty: Organized Hypocrisy (Princeton Univ. Press, 1999). Land, Aubrey C. Colonial Maryland: A History (New York: Millwood Press, 1981). Lieberman, David The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge University Press 1989). Lutz, Donald S. Principles of Constitutional Design (New York: Cambridge University Press, 2006). ----. Publius Vol. 20, No. 1 (Winter, 1990): 55

PAGE 323

323 Main, Jackson Turner. The Anti Federalists: Critics of the Constitution, 1781 1788 (Chapel Hill: Univer sity of North Carolina Press, 1961). Question of Sovereign I Law, Culture and the Humanities, 6(2), (June 2010): 153 Mayer, Brantz Baltimore: Past and Present (Baltimore: Richardson and Bennett, 1871). Mazzone, Jason 92 Minnesota Law Review 1 ( November 2007). ----. Brooklyn Law School Legal Studies Research Paper Series Working Paper No. 48 (2006). Morgan, Edmund S. The Birth of the Republic, 1763 89 (Chicago: University of Chicago Press, 1956). ----. Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton, 1988). Morgan, Donald Chief Justice John Marshall: A Reappraisal ed. W. Melville Jones (Ithaca, N.Y.: Cornell University Press, 1956). Nedelsky, Nadya Defining the Sovereign Community: The Czech and Slovak Republics (Philadelphia: University of Pennsylvania Press, 2009). Newmyer, R. Kent John Marshall and the Heroic Age of the Sup reme Court (Baton Rouge: Louisiana State University Press 2001). Norman, Joseph Gary Eighteenth Century Wharf Construction in Baltimore, Maryland (M.A. Thesis, Anthropology, William and Mary, 1987) Novak, William The People s Welfare: Law & Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996). Olson, Sherry Baltimore: The Building of an American City (Baltimore: Johns Hopkins University Press, 1980.) Oster, John Edward. The Political and Eco nomic Doctrines of John Marshall (New York: Franklin, 1967). Parsons, Jr., Theophilus. Review of The North American Review Vol. 89, No. 184 (July, 1859): 232

PAGE 324

324 Peskin, Lawrence A. Pre Maryland Historical Magazine Vol ume 97, No. 2 (Summer 2002): 153. Pfeifer, Michael J. Rough Justice: Lynching and American Society, 1874 1947 (Urbana, Ill.: University of Illinois Press, 2004). Pinkney, Rev. William The Life of William Pinkney (New York: D. Appleton and Co., 1853) Pound, Roscoe An Introduction to the Philosophy of Law (New Haven: Yale University Press, 1922). Power, Garrett Maryland Historical Magazine Vol. 88, No. 2 (Summer 1993) : 151. Rakove, Jack N. Declaring Rights (Boston: Bedford Books, 1998) ----. Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996). Reid, John Phillip Constitutional History of the American Revolution: The Authority of Rights (Madison: University of Wisconsin Press, 1986). Richards, Leonard (Philadelphia : University of Pennsylvania Press 2002). Ridgway, Whitman H. Community Leadership in Maryland, 1790 1840: A Comparative Analysis of Power in Society (Chapel Hill: University of North Carolina Press, 1979). ----. Maryland Historical Magazine Vol. 71 (Fall 1976) : 334. Rockman, Seth Scraping By: Wage Labor, Slavery, and Survival in Early Baltimore (Baltimore: Johns Hopkins University Press, 2009) ----. Magazine, Vol. 102, No. 1 (Spring 2007) Rossum, Ralph A. Saving the Revolution: The Federalist Papers and the American Founding ed Charles R. Kesler (New York: Free Press, 1987). Ryan, Mary Civic Wars: Democracy and Public Life in the American City during the Nineteenth Century (Berkeley: University of Californi a Press, 1998). Scharf, J. Thomas The Chronicles of Baltimore (B altimore: Turnbull Brothers, 1874).

PAGE 325

325 ----. History of Baltimore City and County (Philadelphia: Louis H. Evers, 1881) ----. With Thompson Westcott, History of Philadelphia, 1609 1884 (Philadelphia: L.H. Everts and Co., 1884) Scheiber, Harry 68 Journal of American History 337 (Sept. 1981) ----. 107 Yale Law Journal 823 (December 1997). Schweber, Howard. "The Science of Legal Science: The Model Natural Sciences in Nineteenth Century American Education," Law and History Review Volume 17 Number 3 (Fall 1999). S ellers, Charles The Market Revolution: Jacksonian America, 1816 1846 (New York: Oxford University Press, 1991). Shaffer, Thomas L. Journal of Legal Education 127 (1982). Shalhope, Robert E. The Baltimore Bank Riot: Political Upheaval in Antebellum Maryland (Urbana, Ill.: University of Illinois Press, 2009). Shammas, Carole The William and Mary Quarterly (July 2000). Sheets, Kevin B. Maryland Historical Magazine Vol. 89, No. 2 (Summer 1994): 133 Sheldon, Charles H. The Oxford Companion to the Supreme Court of the United States ed. Kermit Hal l (New York: Oxford University Press, 1992). Sherry, Suzanna The University of Chicago Law Review Vol. 54, No. 4 (Fall 1987): 1127. Simon, Bryant A Fabric of Defeat: The Politics of South Carolina Millhands, 1910 1948 (Chapel Hill, Univ. of North Carolina Press, 1998). Skinner, Quentin. History and Theory Vol. 8, No. 1 (1969) ----. Visions of Politics, Volume III: Hobbes and Civil Science (Cambrid ge University Press : 2004).

PAGE 326

326 Sleeman, Bill Univ. of Maryland Website, http:// www.law.umaryland.edu /Marshall/Hoffman/influence.asp ----. (2005), All Faculty Publications, Paper 43, page 12, http://digitalcommons.law.umaryland.edu/fac_pubs/43 Snead, 21 Cornell Law Quarterly (1935 36): 276. Spalding, Thomas The Premier See: A History of the Archdiocese of Baltimore, 1789 1989 (Baltimore: Johns Hopkins University Press, 1989). Spellman, W.M. John Locke (New York: St. Mar Squadrito, Katherine M. John Locke (Boston: Twayne Publishers, 1979). Steffen, Charles G. From Gentlemen to Townsmen: The Gent ry of Baltimore County, Maryland 1660 1776 (Lexington: University Press of Kentucky, 1993). ----. The Mechanics of Baltimore: Workers and Politics in the Age of Revolution 1763 1812 (Chicago: University of Illinois Press, 1984). Stroud, Patricia Tyson The Man Who had been King (Philadelphia: University of Pennsylvania Press, 2005). Stychin, Carl F. The American Journal of Legal History Vol. 37 No. 4 (October 1993). Swidorski, Carl on and Association, 1919 Labor History 45 (Feb. 2004): 61. Swindler, William F. The Constitution and Chief Justice Marshall (New York : Dodd, Mead, 1978) Swisher, Carl B. Roger B. Taney (Hamden, Conn.: Archon Books, 1961). Tarr, G. Alan Understanding State Constitutions, (Princeton: Princeton University Press, 1998). Thomas, P.D.G. The House of Commons in the Eighteenth Century (Oxford: Clarendon Press, 1971). Tiernan, C.B. The American Catholic Historica l Researches Vol. 12, Issue 4 ( October 1895): 189.

PAGE 327

327 Tomlins, Christopher Law, Labor, and Ideology in the Early American Republic ( New York: Cambridge University Press, 1993). ----. 32 William & Mary Law Review 353 (1990 1991) Tushnet, Mark Wm. & Mary Const. Law Review 945 (1998). ----. 1950 (Chapel Hill: University of North Carolina Press, 1987, 2004). Tyler, Samuel Memoir of Roger Brooke Taney, L.L.D. (Baltimore: John Murphy and Co., 1872) Urofsky Melvin and Paul Finkelman, ed. Documents of American Constitutional and Legal History Vol. I (New York: Oxford University Press, 2002). VanBurkleo, Sandra F. The Oxford Companion to the Supreme Court of the United States ed. Kermit Hall (New York: Oxford University Press, 1992). Weinrib, The Migration of Constitutional Ideas ed. Sujit Choudhry (Cambridge: Cambridge University Press, 2006) Wernham, A.G. Hobbes Studies ed. K.C. Brown (Cambridge: Harvard Uni versity Press, 1965). West, Thomas Vindicating the Founders (Rowman & Littlefield, 1997) Wilbur, W. Allan Review of John Marshall: A Life in Law The American Journal of Legal History (April 1976). Wiecek, William M. Liberty Under Law: The Supreme Court in American Life (Baltimore: Johns Hopkins Press, 1988). Wilentz, Sean The Rise of American Democracy: Jefferson to Lincoln (New York: W.W. Norton & Co., 2005). Witte Jr., John. rn Tradition (Grand Rapids, Michigan: Wm. B. Eerdmans, 2006). Wolf, Michal Allen. The Zoning of America: Euclid v. Ambler (Lawrence, Kansas: University Press of Kansas, 2008). Wood, Gordon The Creation of the American Republic, 1776 1787 (Chapel Hill: University of North Carolina Press, 1969, 1998).

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328 BIOGRAPHICAL SKETCH William Mercer was born in Vero Beach, Florida and grew up in Tampa, Florida. William received his B.A. in h istory from Mercer University in Macon, Georgia in 1994 and his J.D. from Stetson University College of Law in St. Petersburg, Florida in 1997. William was admitted to the Florida Bar in October of 1997 and began practicing law first in private practice f oc using on commercial litigation in Tampa, Florida and f rom Augus t of 2001 through the present, has practiced public interest law at the University of Florida in Gainesville, Florida William received his M.A. ( 2007 ) and Ph.D. (2011) in history from the University of Florida.