Ordered Liberty: A Constitutional History of New York

By Peter J. Galie | Go to book overview

and was doing. This fear accounts, in part, for the unwillingness of the drafters of the 1777 Constitution to embrace completely the doctrine of legislative supremacy and instead hedge assembly power with checks and balances. 103

As with religious toleration, speech and press freedom were almost certainly more widely practiced than legal doctrine would suggest. There is substantial evidence to indicate that the press "operated as if the law of seditious libel did not exist." 104 Since juries could not make law, the Zenger case established no legal precedent. The decision, however, gave impetus to an already active and vigorous press, which had been printing material as libelous as anything Zenger had written. This was the tradition the colonists would take with them as they embarked on their journey toward independence.

In the area of criminal procedure protection, colonists received the same protections guaranteed by English common law and relevant statutes. These protections included the fundamental notion, found in the Magna Carta, that no person should be deprived of life, liberty, or property except by the law of the land or due process of law. It included the following specific protections: trial by jury of one's peers, twelve in number; bail in non-capital cases; presentment by grand jury; some protection against self-incrimination; right to an attorney in a criminal trial. This latter right was limited in England to misdemeanor cases or cases involving treason but was more liberally applied in the colonies. 106

Not only were political institutions in place which could serve as the basis for the 1777 Constitution, but also fundamental notions of due process, freedom of speech and the press, property rights, and religious liberty were so entrenched that the first constitution would largely ratify and legitimize colonial practice.


NOTES
1
Milton Klein, The Politics of Diversity: Essays in the History of Colonial New York (Port Washington, N.Y.: Kennikat Press, 1974), p. 35.
2
Sung Bok Kim, Landlord and Tenant in Colonial New York Manorial Society: 1664-1775 ( Chapel Hill: University of North Carolina Press, 1978), p. vii.
3
The traditional view is represented by Irving Mark, Agrarian Conflicts in Colonial New York, 1711-1775 ( New York: Columbia University Press, 1940); Carl L. Becker, The History of Political Parties in the Province of New York, 1760-1776 ( Madison: University of Wisconsin Press, 1968 [orig. pub. 1909]); Staughton Lynd, Class Conflict, Slavery and the United States Constitution: Ten Essays ( Indianapolis: Bobbs-Merrill, 1967), pp. 63-77. Kim, Landlord and Tenant, challenges this view, arguing that more openness and fairness

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