A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution

Abstract

Commentators often advocate that privileges and immunities language found in the United States Constitution represents authority for some right along the spectrum of natural law, the Bill of Rights, or fundamental law in general. This paper provides contextual background for the argument by examining medieval royal privileges and immunities and tracing the crown’s charter to the American colonies and the United States Constitution. This article goes beyond merely providing a short background for the use of the language in revolutionary pamphlets and the U.S. Constitution; rather, this article discusses the concept of royal privileges and immunities and traces its growth in England and influence on the colonies. Along the way, useful comparisons are made between English institutions and American institutions.

In early English history, landholders owed customs and services to the state, and from these burdens, the crown, by charter, granted privileges and immunities. Royal privileges and immunities to municipalities and merchant associations gave authority, for example, to have markets and fairs, to trade, to travel, and to exercise self-government. In this first section, following a brief introduction of feudal tenure and royal immunities, the article discusses the development of mercantile institutions and borough governance.

The second part of the article discusses adventuring merchants and the extension of municipal institutions to overseas merchant voyagers. When Europe expanded its boundaries in the late fifteenth century, royal charters permitted explorers such as Christopher Columbus and John Cabot to load ships, travel from England, and discover foreign lands. After discovery and exploration, explorers received privileges to establish trading colonies. In this section, charter privileges and immunities to early American proprietors are introduced and discussed. Unlike charters to trading associations, grants to proprietors in the latter part of the sixteenth century focused on colonization as well as commercial interests.

The third part of the paper discusses the influence of English institutions in colonial America. Under royal charters, three types of colonies and a variety of English institutions took root in America. Among other topics, this section discusses tenure, colonial governance, and the colonial assembly. The colonial assembly was an instrumental force in colonial development as colonists sought to free themselves from the crown and proprietor.

The fourth part of the paper examines the emergence of the “privileges and immunities of Englishmen” concept and traces its influence in the colonies. The seventeenth century was a period of revolution and transformation. In the first part of the seventeenth century, Englishmen invoked the “liberty of the subject” to combat royal monopolies. Once introduced, the concept served advocates and pamphleteers in a variety of ways. Revolutionaries felt their rights as natural-born Englishmen entitled them to the benefit of ancient statutes and fundamental law. When this concept, supported by similar but distinct clauses in colonial charters, reached the colonies, colonists argued that they too enjoyed the privileges and immunities of English subjects and thus enjoyed the same rights and law as subjects resident in England enjoyed, including the right to be free from taxation without consent.

English taxation without colonial representation was a major factor in the American Revolution. Following Independence, the colonies no longer needed to reference the privileges of Englishmen. Nonetheless, the privileges and immunities concept made the text of the Articles of Confederation (“free inhabitants shall be entitled to all privileges and immunities of free citizens in the several States”) and the United States Constitution (“the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”). After the Civil War, similar language found its way into Section One of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”). When drafting these documents, framers provided little comment on what “privileges and immunities” meant or how the language should be used. Commentators and courts have argued that these provisions are self-executing grants of natural law, confer specific rights such as the right to travel and the Bill of Rights, or protect fundamental law in general. Summarizing the history and concept of the phrase, this article concludes by offering a contrary interpretation of the language.

Keywords: constitution, borough, local government, colonial history, english legal history, privileges and immunities, feudalism, sake and soke, liberty of englishmen, citizenship, taxation without representation, section five, fourteenth amendment, gild merchant, craft gild, self-executing

JEL Classification: B15, H20, K10, K30, K40, N00, N01