2013/07/24

Who coined the name "United States of America"?

In another forum a participant took the position that the authoritative version of the Declaration of Independence was not the one signed by the members of the Continental Congress on July 4, 1776, but the versions printed and sent to the states, which changes in capitalization and punctuation of some of the words. That is not correct.

The editorial changes from the original signed document to the copies that were transmitted to the states did not change the meaning. The document is its meaning, not the details of language or style, and an accurate translation into another language would be the same document.

As a hypothetical, suppose the printers had changed the meaning in some substantive way. Would their version then have been the authoritative one, even though it was not confirmed by the Continental Congress? Suppose the printer had inserted the word "not" in some of the copies, sent to some but not all of the states, changing the meaning from declaring independence to not declaring independence. Would the states that got the "not" have remained subject to Britain while the others were independent? Nonsense. The authoritative act was the voice vote to declare independence on July 2, not the signed document, which was evidence of the act, not the act itself.

First use of the name "United States of America" in any style of capitalization appears to be in a series of articles in the Virginia Gazette, published in Williamsburg, beginning in March, 1776:
“What a prodigious sum for the united states of America to give up for the sake of a peace, that, very probably, itself would be one of the greatest misfortunes!” – A PLANTER
So who is A PLANTER?

Likely candidates could be well-known Virginians, like Richard Henry Lee, Patrick Henry, or Thomas Jefferson. But it could have been someone else.

The author was aware of the historical significance of introducing the new name:
“Many to whom this language is new, may, at first, be startled at the name of an independent Republick, [and think that] the expenses of maintaining a long and important war will exceed the disadvantages of submitting to some partial and mutilated accommodation. But let these persons point out to you any other alternative than independence or submission. For it is impossible for us to make any other concessions without yielding to the whole of their demands.”
Perhaps some future historian will discover the author.

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2013/07/23

Are private "grand juries" legal?

In another forum the question was raised by a lawyer:
Where is the case law providing that a grand jury can be formed and do anything, other than get indicted, without it being summoned by the clerk of court and empaneled by the court?
There is of course no such case law, although state laws differ concerning the procedures. Some provide for summons and empaneling by different officials, such as the sheriff, or authorize the county government to designate who performs those functions. In Texas state law each county has the authority to use one of two methods of selection: key-man or random.

Everything is ultimately based on some kind of public election. In some states, like Texas, it is possible for citizens to conduct a public election to elect an official who does not otherwise have official authority, to an office that is created by the election. Thus, such a public election could elect someone to a new office such as "grand jury administrator" with the authority to summon and impanel grand jurors not necessarily under the supervision of any particular court, but with the authority to pick their own court for the purposes of enforcing summonses and subpoenas, but the court would not be compelled to enforce them. They could appoint prosecutors by issuing indictments to them, but again, the court does not have to allow the prosecutions in its court.

Enforcement all comes down to custom. The justice system depends on voluntary cooperation among several components and officials, and if they refuse to cooperate, there is generally no recourse but "self-help", which is likely to lead to violence. It should always be kept in mind that courts exist to give people an alternative to violence, to prevent civil disorder. But if all the courts want to close their doors and let the riots proceed, that is their prerogative.

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A comma would have helped

In another forum a participant asked the question:
But isn't the central question ... whether even "law-trained persons" in 1776 shared a specific theory of capitalization, commas, or semicolons?  Perhaps they did.
They didn't. It was a matter of style or taste. Many of the Founders changed the spellings of their own names from one day to the next, and James Madison did not consistently spell the names of the delegates to the Constitutional Convention (an irritation for moderns using search tools to build concordances and indexes).

That is why one has to be careful interpreting texts, not just from the Founding Era, but for any era. Humans are sloppy. Don't look for consistency in minute details.

One example that illustrates the problem is the clause:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Moderns, or even many of the Founders (like James Wilson), tended to interpret "committed on the high seas" as an adjectival phrase modifying both "Piracies and Felonies", but piracy was not limited to the seas. There was a long history of land piracy, and "piracy" ("attack") should be understood, using more modern words, as "a warlike act by a nonstate actor against a country other than his own", to form a partition of warlike acts into state and nonstate acts, and distinguish warlike acts against one's own country as "treason". The clause should be read as having the phrase restrict only "Felonies" and not "Piracies", with a missing but needed comma following "Piracies" to make this clear.

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