The Sovereign's Posterity

• Author: Gregory J. Roden
• Position: Gregory J. Roden holds a J.D. from South Texas College of Law. I wish to thank my family for their support and understanding of my time and effort devoted to this Article, and I would like to express my gratitude to God for the many blessings received while working on this article, 'Thanks be unto Thee, from whom all comes, whenever it goes...
• Pages: 585-649

THE SOVEREIGN’S POSTERITY

GREGORY J. RODEN *

“What I bear, and clearly perceive to be animated, is innocent of the

faults of her who bears it, and has, I beg leave to say, a right to the

existence which God has begun to give it.” - Bathsheba Spooner1

I. INTRODUCTION

“[T]he people are the sovereign of this country.”2 And, although the

people delegated many powers to the federal government in the United

States Constitution, t hey retained for themselves the benefi ts of “Trial by

Jury” under Section 2 of Article 3, the Sixth Amendment, and the Seventh

Amendment.3 By these constitutional provisions, not only was the right to

a jury trial guaranteed, but also the power to sit on juries and to be the finder-

of-fact.4 These constitutional guarantees are to be understood “with

reference to the meaning affixed to them in the [law] as it was in this country

and in England at the time of the adoption of” the Constitution.5

At the time of the adoption of the Constitution, the people retained the

power to determine when life began in the womb by means of matron juries.6

Pursuant to a writ de ventre inspiciendo, a jury of matrons was impaneled in

response to a plea of pregnancy made by a condemned woman “to ascertain

whether a woman convicted of a capital crime was quick with child . . . in

order to guard against the taking of the life of an unborn child for the crime

Copyright © 2015, Gregory J. Roden.

* Gregory J. Roden holds a J.D. from South Texas College of Law. I wish to thank my

family for their support and understanding of my time and effort devoted to this Article, and

I would like to express my gratitude to God for the many blessings received while working

on this article, “Thanks be unto Thee, from whom all comes, whenever it goes well with me.”

T. Kempis, Of the Imitation of Christ, 3rd bk., ch. 40 (Whitaker House 1981). Where

appropriate, I have retained the original spelling when quoting from historical documents to

preserve the style of the time-period for the reader’s appreciation.

1 Commonwealth v. Bathsheba Spooner, 2 AMERICAN CRIMINAL TRIALS 1, 49 (1778)

(Peleg Chandler ed. 1844).

2 Chisholm v. Georgia, 2 U.S. 419, 479 (1793).

3 U.S. CONST. art. III, § 2; U.S. CONST. amend. VI; U.S. CONST. amend. VII.

4 See U.S. CONST. art. III, § 2; U.S. CONST. amend. VI; U.S. CONST. amend. VII.

5 West v. Gammon, 98 F. 426, 428 (6th Cir. 1899).

6 See James C. Oldham, The Origins of the Special Jury, 50 U. CHI. L. REV. 137, 171–72

(1983).

586 CAPITAL UNIVERSITY LAW REVIEW [43:585

of the mother.”7 Thereby, as a matter of legal history, the sovereign people

retained the right to be the finder-of-fact if any controversy arose over the

existence of life in the womb under their jury powers.8 As a consequence of

this proceeding, the existence of a living child en ventre sa mere was

established, and the equal protection of the law was brought to bear “to all

intents and purposes for the child’s benefit.”9

Although modern statutes have replaced the finders-of-fact in such

situations with physicians, that replacement had already occurred under the

common law of one state just two years after the enactment of the Sixth and

Seventh Amendments.10 The fact that the change from juries of matrons to

examinations by physicians began under the common law—

contemporaneously with the enactment of the Sixth and Seventh

Amendments—illustrates that the “substance of the common-law right of

trial by jury” was preserved and enhanced in the form of physicians applying

the advances of medical science to the task of their examinations.11

II. THE POWER OF THE SOVEREIGN PEOPLE TO ADJUDIC ATE RIGHTS

AS JURIES

A. The People as Sovereigns

Chief Justice John Jay once said:

“[T]he people are the sovereign of this country.”12

“Sovereignty is the right to govern.”13 One of the first questions that

arose under our Constitution asked who was the ultimate sovereign: the

7 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 253 (1891).

8 See id. See also supra note 6 (discussing the writ de ventre inspiciendo).

9 7 THE AMERICAN AND ENGLISH ANNOTATED CASES: CONTAINING THE IMPORTANT

SELECTED FROM THE CURRENT AMERICAN, CANADIAN, AND ENGLISH REPORTS 133 (William

M. McKinney et al. eds., 1907).

10 Gregory J. Roden, The Sovereign’s Remedy, HUMAN LIFE REV. (Jan. 6, 2015),

http://www.humanlifereview.com/sovereigns-remedy/.

11 Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). See also

Gregory J. Roden, Unborn Children as Constitutional Persons, 25 ISSUES L. & MED. 185,

235, 238–39 (2010), http://www.grtl.org/docs/ILM_Spring%2010.pdf.

12 Chisholm v. Georgia, 2 U.S. 419, 479 (1793).

13 Id. at 472.

[A] nation or State-sovereign is the person or persons in whom that

resides. In Europe the sovereignty is generally ascribed to the Prince;

here it rests with the people; there, the sovereign actually administers the

Government; here, never in a single instance; our Governors are the

2015] THE SOVEREIGN’S POSTERITY 587

states, whose representatives attended the Constitutional Convention, or the

people?14

In the 1793 case Chis holm v. State of Ge orgia, a private citizen from

South Carolina brought a suit against the state of Georgia.15 The state

posited that j urisdiction could not be exercised over it because it was

immune from the suits of private parties as a sovereign state: “It is said, that

Georgia refuses to appear and answer to the Plaintiff in this action, because

she is a sovereign State, and therefore not liable to such actions.”16 Chief

Justice John Jay, examining the circumstances surrounding the f ounding of

our Constitution, observed that it was the people who were the ultimate

sovereign and established the state and national governments:

It is remarkable that in establishing [the Constitution],

the people exercised their own rights, and their own proper

sovereignty, and conscious of the plenitude of it, they

declared with becoming dignity, “We the people of the

United States, do ordain and establish this Constitution.”

Here we see the people acting as sovereigns of the whole

country; and in the language of sovereignty, establishing a

Constitution by which it was their will, that the State

Governments should be bound, and to which the State

Constitutions should be made to conform. Every State

Constitution is a compact made by and between the citizens

of a State to govern themselves in a certain manner; and the

Constitution of the United States is likewise a compact

made by the people of the United States to govern

themselves as to general objects, in a certain manner. By

this great compact however, many prerogatives were

transferred to the national Government, such as those of

making war and peace, contracting alliances, coining

money, etc. etc.17

agents of t he people, and at most stand in the same relation to their

sovereign, in which regents in Europe stand to their sovereigns.

Id.

14 See id.

15 Id. at 430–32.

16 Id. at 469.

17 Id. at 470–71.