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Forum Locked"First White Child" tradition

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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 11:17
There's a difference between building North America and building the United States of America.
 
The USA was created with the ratification of the Constitution.
 
What proportion of the framers were of English descent? What non-English precedents went into the framing of the Constitution to the extent that Magna Charta, the Petition of Right of 1628, the Habeas Corpus Act of 1679 and the Bill of Rights of 1688/9 did?
 
On whose Common Law is US Common Law (outside Louisiana) founded? In what other country, apart from the Commonwealth, does the Supreme Court recognise an English authority, Blackstone, on issues that predate the Constitution itself? For that matter how many other countries' legal systems are recognised as relevant to US courts?
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Styrbiorn Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 11:29
Originally posted by gcle2003 gcle2003 wrote:

What non-English precedents went into the framing of the Constitution to the extent that Magna Charta, the Petition of Right of 1628, the Habeas Corpus Act of 1679 and the Bill of Rights of 1688/9 did?

Montesquieu's L’esprit des lois? Although that has admitedly little to do with Frenchmen in the US.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Dolphin Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 12:08
Originally posted by drgonzaga drgonzaga wrote:

Originally posted by Parnell Parnell wrote:

It doesn't offend me in the slightist. But sometimes antiquarianism appeals to many - without having any significant historical importance. Finding a 200 year old coin in your back garden for example. Unfortunately for you not everyone (thankfully) is constantly trying to get at the 'interconnectedness of the human experience.' LOL I'm afraid that you suck history's life blood right out with thinking like that.
 
Despite my supposed tendencies toward vampirism (shades of the vampire Lestat  ), Parnell, the folderol over Virginia Dare is a symptom of history in the service of propaganda and relevant solely as examples of just how far some individuals and groups will go to close their eyes to transcendant events in the story of mankind. Interestingly enough, the Virginia Dare narrative is but a footnote in the larger orgy of imperial puffery that affected historical narrative and interpretation at the close of the 19th century and gained wide circulation as part of the Columbian Quadricentennial of 1893-1894. If you read the pamphlet on Dare that I cited that relationship becomes obvious. There the true historical significance and why the "First White Child" tradition is inextricably linked to the darker sides of European nationalism and rivalries. Interestingly enough, the question would not have even appeared relevant to the earliest Spanish and Portuguese "adventurers" in the New World.  Yes, they had children with Amerindian women and normally legitimized these descendants [e.g. Don Martin Cortez, made a Knight of Santiago in 1529].
 
By the way, personally, I have gotten over the urge to antiquarianism several times in my lifetime first in philately and numismatics [believe it or not as a child in New Orleans of the early 50s, Spanish doublons and reales were still in general circulation as dollars and dimes--so I didn't have to rummage through the garden for a 200 year old coin] and finally in incunabula and manuscripts, all of which I donated to relevant institutions when I retired.. Albeit, I must admit that I still will pick up rare books and Americana despite my better sense. Just this week I could not resist obtaining a pristine copy of Harry Franck's Vagabonding Down the Andes from 1907. Nevertheless, collecting and possessing objects or being overly-preoccupied with them does not History make. In any event, Virginia Dare does not constitute history but is simply a name in the process of myth-making on a par with that Philadelphia lady, Betsy what's-her-name, tied to the attitudes and perspectives of a completely different time.
 
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Carcharodon Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 13:32
gcle2003  "There's a difference between building North America and building the United States of America."
 
You can´t build a continent, it was already there when when the first people arrived.
 
And without all those acts of human enterprice that preceded the creation of the entity which is called the USA it would never have come into existence. And the building of a country is not just the legal and the constitutional work, it is all the other economical, cultural and social interactions as well.
 
 


Edited by Carcharodon - 15-Jun-2009 at 13:34
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 15:06
Originally posted by Carcharodon Carcharodon wrote:

gcle2003  "There's a difference between building North America and building the United States of America."
 
You can´t build a continent, it was already there when when the first people arrived.
Reasonable objection. Make my statement "there's a difference between building a North American country and building the United States of America.' Or possibly 'a North American society'.
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And without all those acts of human enterprice that preceded the creation of the entity which is called the USA it would never have come into existence. And the building of a country is not just the legal and the constitutional work, it is all the other economical, cultural and social interactions as well.
Try defining the United States of America (which the original assertion referred to) without its constitutional and legal framework. You can't define it racially or ethnically or religiously. You can't even define it geographically without being circular ('the United States is wherever the constitution of the United States is sovereign'). 
 
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 15:07
Originally posted by Styrbiorn Styrbiorn wrote:

Originally posted by gcle2003 gcle2003 wrote:

What non-English precedents went into the framing of the Constitution to the extent that Magna Charta, the Petition of Right of 1628, the Habeas Corpus Act of 1679 and the Bill of Rights of 1688/9 did?

Montesquieu's L’esprit des lois? Although that has admitedly little to do with Frenchmen in the US.
And on the basis of what country's institutions (as he perceived them) did Montesquieu write L'esprit des lois?
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Styrbiorn Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 15:16
Locke, I would presume, but that doesn't change the fact that French thinking also had its part.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Carcharodon Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 15:30
gcle2003: Try defining the United States of America (which the original assertion referred to) without its constitutional and legal framework. You can't define it racially or ethnically or religiously. You can't even define it geographically without being circular ('the United States is wherever the constitution of the United States is sovereign'). 
 
 
Still you must have some societal, economic, and cultural foundation on which you could apply constitutional and legal framework, and that foundation was created by several different groups.


Edited by Carcharodon - 15-Jun-2009 at 15:32
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Post Options Post Options   Thanks (0) Thanks(0)   Quote lirelou Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 16:27
Well, it's nice that everyone now gets the credit for building the US of A. It was, as pointed out, the endeavor of multitides. Yet its foundation was laid on English history, law, and custom. Those who set out to people the northern reaches of the North American continent, and create its wealth and governing institutions, did so within the framework of the constitution. Spanish contributions were negligible, but some Spanish legal concepts, principally touching upon real property and community (i.e., marriage) property, survived in Texas, Nex Mexico, Arizona, and California. The French and Canadians made much greater contributions, primarily as explorers and settlers of what later became American territory, and many signers of the Constitution had likely read at least translations of the Philosophes, but Anglo-American common law became the basis of their state legal systems, as they quickly became Americanized. Because of its population, Louisiana was the exception. If memory serves, the 1875 Civil Code was the last printed in French. But while Louisiana state law retained French civil law terms, it quickly borrowed from Anglo-American jurisprudence. I base this judgment on a thesis I submitted years ago which traced civil law temporary alimony payments (paid while divorce proceedings are in progress) from the original Napoleonic Code down through Spain to Puerto Rico and in Quebec and Louisiana. In Louisiana, the Civil Code was merely referenced, while Anglo-American principles governing alimony were applied. I did not look at the Commerce codes, but suspect that the former was French based in Louisiana, as it took the Federal Courts longer to extend the reach into commerce that they have today.

Some may question that Spanish contributions were negligible, particularly in light of the obvious fact that the American cattle industry grew out of the Texas experience. The fact is that the only territory successfully colonized by Spain (Mexicans) in North America was that portion of the Upper Rio Grande valley above El Paso. Spanish efforts to find colonists to settle Florida, Texas, Arizona, and California resulted in very few takers. These areas were remote, viewed as desert, and home to hostile semi-nomadic tribes. By the time of the treaty of Guadalupe Hidalgo (1848), only 75,000 Mexican citizens inhabited the Southwest, and most of those were in New Mexico. The waves of immigration that gave the U.S. the Mexican-American population it has today started during the Reforma, continued during the "Porfiriato", and reached its early apex during the Mexican Revolution. It continued because the average Mexican immigrant had more opportunity, and protection under the law, on this side of the border than they did back "home". The fact that some modern Americans with names like Ramirez or Gonzalez can now trace at least one ancestor back to the Mayflower, or Jamestown, does not a "Spanish contribution" make.  
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Post Options Post Options   Thanks (0) Thanks(0)   Quote drgonzaga Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 17:53
Oh, oh, we've steered dangerously close to the precipice of topical digression and wandered onto a very old controversy: To what extent does the Common Law govern American jurisprudence.
 
Lirelou went a little overboard as to contributors and contributions within the American juridical tradition, suffice it to say that the question at hand (digression though it may be) deals with the tension between Common Law and Civil Jurisprudence. Here is a good on-line summation juxtaposing the juridical directions:
 
 
Now with regard to the dismissal of the "Spanish/French" contribution by Lirelou, one must keep in mind how the customary in most states States of the Far West, Southwest, and Lower Mississippi Valley based upon Civil jurisprudence, trumped the Common Law in both material and social issues. Not only are mining and riparian rights premised upon the older Spanish and French precedents but inheritance and property rights for the female as well. Nor can the argument from population numbers be made since Californianos were in the majority as late as the 1870s. As regard to the Spanish there is a rather good book on just this topic: Charles R. Cutter. The Legal Culture of Northern New Spain.
 
By the way, Lirelou, even during the British interlude in Florida (1764-1784), the government of George III employed "Spaniards" from the Balearic Islands to populate the colony!
 
Now as to the Founding Fathers and what ideas they reflected upon in shaping government much can be made on how much they drew upon Roman Law as a constraint on what is known in shorthand as the Whiggish Tradition. Certainly, Jefferson was not too keen on judges rather than legislatures being the ultimate arbiter of what Law is...Wink
 
PS: Is it not curious that Federal Law is known as U. S. Code?


Edited by drgonzaga - 15-Jun-2009 at 17:59
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Post Options Post Options   Thanks (0) Thanks(0)   Quote drgonzaga Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 18:11
The USA was created with the ratification of the Constitution.
 
So then what does one make of the Articles of Confederation? From 1781 to 1789, it governed in perpetual Union the territories known as the United States.
 

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

 

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

These concluding words eerily haunted the succeeding document until crisis brought Civil War.
 
PS: It seems that "first" has a lot of encumbrances no matter where one looks.


Edited by drgonzaga - 15-Jun-2009 at 18:13
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Post Options Post Options   Thanks (0) Thanks(0)   Quote lirelou Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 21:44
My good Drgonzaga. In re:  "one must keep in mind how the customary in most states States of the Far West, Southwest, and Lower Mississippi Valley based upon Civil jurisprudence, trumped the Common Law in both material and social issues."

I must respectfully disagree. California, certainly. New Mexico, likewise. Washington State? Oregon? Idaho?, Montana?, Wyoming?, Utah? Colorado?  Most assuredly not!  As for the Lower Mississippi Valley. Louisiana, Civil code is the structure. I'll avoid a lengthy digression of common law precedent "seeping" in. Arkansas, Tenneessee, Mississippi, and Alabama? Ango-American common law. Missouri? Perhaps. St. Louis was the capital of Upper Louisiana.

Nice article you cited on the differences between the two. However, judicial precedence also influences Civil Law, and at times modifies it so that in practice the "law" is based upon a "sentencia" of the Supreme Court, rather than the exact wording of the Civil Code. You might want to look at Puig-Brutau, but all I could find was this: http://www.tirant.com/redabogacialibros/detalle?articulo=8497902297

As for the numerical superiority of "Californios" in the 1870s, I'll look at your source. Certainly the gold rush brought in great numbers from all over the world, to include Hispanics from Chile northwards. But it likewise brought in a great number of other folks. Granted, Porfirio Diaz was already in power, but "quare"...

As for the articles of confederation, note that the State of Vermont was not included. It preferred to govern itself. Maine was then part of Massachusetts, so Vermont was the only holdout.


Edited by lirelou - 15-Jun-2009 at 21:59
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Post Options Post Options   Thanks (0) Thanks(0)   Quote drgonzaga Quote  Post ReplyReply Direct Link To This Post Posted: 15-Jun-2009 at 23:52
As they say, Lirelou, the devil Evil Smile is in the details, so let us get satanic here:
 
As for the articles of confederation, note that the State of Vermont was not included. It preferred to govern itself. Maine was then part of Massachusetts, so Vermont was the only holdout.
 
There was no colonial entity known as "Vermont" in 1775, and the land encompassed by the present state was in dispute between the Royal Colonies of New York and New Hampshire as well as the Commonwealth of Massachusetts. Vermont as a separate political entity arises as part of the overall "Western Lands" controversy that dogged the Congress under the Articles of Confederation. We will not go into the myths generated by the rabble known as The Green Mountain Boys but the fact remains that the Continental Congress refused to recognize any of the pretensions to sovereignty by Ethan Allen given the forcible expulsion of settlers in the region with New York land titles--not to mention the treasonable activities of the Allen brothers. It is not until 1790. with the payment of $30,000 to the State of New York and the formal conformance of the inhabitants with the 1784 and 1785 Ordinances of the Congress under the Articles that Vermont is granted "statehood" in 1791. There are other interesting quirks--such as the area serving as a refuge to participants in Shay's Rebellion--but none of the bordering states in the early nation recognized Vermont as a juridical entity. The Bakers and the Allens were quite a crew of speculators and scofflaws, read this interesting little background:
 
Now to the West...
 
With regard to the Californios, a strange thing happened on the way to the Census Offices in the years 1850-1870: people went missing! Needless to say, current research by institutions such as the Huntington Library's Early California Population Project is redressing the phenomenon, see:
 
 
We will not go into Cook's studies on the decline of the Amerindians between 1776 and 1876 during the 1970s but suffice it to say that Federal census officials ignored them entirely both in 1850 and 1860, and differentiations as to origins becomes rather hazy with regard to "emmigrants and immigrants" where totals just do not "add up". See this chart, which raises more questions than profers answers:
 
 
However, we are concerned more with the law and it roots, and as far as California is concerned we have to look into mining, land tenancy, and water rights. Keeping in mind that we must recognize that there were two Californias--the North where anything went and the South, with its older traditions and patterns--even the Congress got involved. A good jumping point for further research:
 
 
Didn't you ever wonder why title to what's under the ground does not run with title to the ground itself or why prior appropriation statutes govern water usage in the American West?
Here's a book to read:
 
Miller, Char, ed. Fluid Arguments: Five Centuries of Western Water Conflict. Tucson: University of Arizona Press, 2001
 
As an aside, did you ever wonder why Leo Carillo (the famous Pancho of Cisco Kid fame) served as grand marshall of the Rose Parade for years? There was a rather famous Californio with a lot of real estate.
 
 

 


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Post Options Post Options   Thanks (0) Thanks(0)   Quote lirelou Quote  Post ReplyReply Direct Link To This Post Posted: 16-Jun-2009 at 02:33
in re: Vermont. The U.S. did not recognize Vermont? France and the Netherlands did, and the U.S. Continental Congress allowed Connecticut to represent its interests in the U.S.. It also maintained its own militia, minted its own currency, governed itself with all the powers of any of the 13 colonies, and conducted foreign relations. Yes, the majority of Vermonters wanted Statehood. That places them on a par with the Texas Republic. But, thank you for the thoughtful reply. I had always presumed that the majority of early Vermonters simply wanted independence. Your reply shows me otherwise.

Reference California's census problems. Apparently everyone agrees that the entire population of California prior to the gold rush (1849) was under 15,000. I assume that non-mission Indians were not counted, but they are irrelevant to the issue. Thus no reason to go into Cook. What is undisputed is that an enormous number of people came into California as a result of the gold rush. My sources, from memory, indicate that the arriving immigrants made Hispanics a minority. I already agreed that Spanish law provided the basis for property rights (which would include water and mining) and certain family matters in California and New Mexico, but both are legally Anglo-American common law jurisdictions. The only real civil law jurisdiction under the U.S. flag is Puerto RIco, and even there the Criminal Code is subject to U.S. constitutional rights and guarantees. Puerto Rico also has an admiralty code, but it remains a mere document as admiralty falls under the commerce clause. Puerto Rico was also obliged to do away with its "juez investigadores". Yes, the Fed's have a code, and so do most common law states. Penal codes, codes of judicial procedure, commercial codes, etc.

As for Leo Carrillo. I also presume that the original "californios" ended up with a lot of land. As 'presiderarios" under the Spanish, they were corporals and sergeants. Often, they did not get paid for years at a time. The Spanish would then pay them in land grants. When Mexico went independent, they were all promoted to officers. Yet again, the payroll often failed to arrive from Mexico City, and they received more land grants.  They were hardly wealthy men, but I suspect that as California's population boomed, some of them made money. Not all Mexican Californios in 1848 were Hispanic. The Los Angeles "Lancero" unit included an American immigrant, and an "English" one (named Reid, if memory serves). In any event, when both fell out to fight the American invaders, the "Brit" was wearing what was described as a "skirt" and carrying a "long sword". I presume that none of his fellow lancers had ever seen a Scot go to war. I used to wonder if any of his gene pool was in Duncan Reynaldo.Wink
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 16-Jun-2009 at 11:45
Originally posted by drgonzaga drgonzaga wrote:

 
We will not go into Cook's studies on the decline of the Amerindians between 1776 and 1876 during the 1970s
Then why mention them? If we don't go into them there's no reason at all to suppose they support your case.
Quote  
Didn't you ever wonder why title to what's under the ground does not run with title to the ground itself
Nope. It's standard in English Common Law, and is at least often then case in monarchies. What's more interesting is the way in which in the US mining rights frequently do go with surface rights, which may be the result of the US having so much unassigned and unclaimed Federal territory. 
 
I don't really see what point you're making there though. The distinction between surface rights and mining rights is common to all monarchies with a feudal history, surely?
 
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote drgonzaga Quote  Post ReplyReply Direct Link To This Post Posted: 16-Jun-2009 at 21:26
Originally posted by gcle2003 gcle2003 wrote:

Originally posted by drgonzaga drgonzaga wrote:

 
We will not go into Cook's studies on the decline of the Amerindians between 1776 and 1876 during the 1970s
Then why mention them? If we don't go into them there's no reason at all to suppose they support your case.
Quote  
Didn't you ever wonder why title to what's under the ground does not run with title to the ground itself
Nope. It's standard in English Common Law, and is at least often then case in monarchies. What's more interesting is the way in which in the US mining rights frequently do go with surface rights, which may be the result of the US having so much unassigned and unclaimed Federal territory. 
 
I don't really see what point you're making there though. The distinction between surface rights and mining rights is common to all monarchies with a feudal history, surely?
 
 
 
Wrong on both counts. Cook is important not only in terms of Amerind populations--which were ignored by Census officials, specially hispanicized Amerinds--but also in calculating the veracity of supposedly "official" census figures for the period 1850-1880. Further, mineral rights are distinct and different between Common Law and Civil Law countries. Under traditional understanding of the Common Law "he who owns the surface owns what lies below" and the conceptualization of Mining Codes recognizing conditionals setting title to mineral wealth apart from terran proprietorship had no standing at Law. What was inherited from Roman Law dealt with the concept of the res publicum (the law and public land as distinct from private titles). However, when the United States acquired the Mexican borderlands, Mexican (from Spanish Law) Mining Codes, which granted the individual the right to explore and mine for mineral wealth on public land, was adopted ipso facto by the miners in California who not only accepted the premise under the Civil Law but had the distinction established under Federal Law through the General Mining Act of 1872. In essence, under the Common Law private property can not be suborned by Mining Codes nor Statutory agreements, whereas the Civil Law does provide for such. "Claim staking" originates within the Spanish tradition and not that of the Common Law for it is the product of a Mining Code, which sets forth basic rules in a coherent and consistent fashion, and tacitly recognized the principle of "open mining". A Mining Code entered into the Common Law principles of the United States with the acquisition of the Southwest. 
 
As for the niceties in a contemporary setting when discussing Common Law and Civil Law countries:
 
 
I found this bit interesting:
 
"What's more interesting is the way in which in the US mining rights frequently do go with surface rights, which may be the result of the US having so much unassigned and unclaimed Federal territory."
 
I do believe that many an Amerind has a few choice words to say on the above.  
 
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