hello. welcome. it's wonderful to see you all here tonight. it's particularly wonderful to see so many friends and neighbors coming out tonight on this beautiful evening. my name is scott stroh. i'm very proud to serve as the executive director of george mason gunston hall. and we are thrilled that you are joining us tonight for, this

very special program. in just a minute, we'll learn a little bit about our speaker. but i also want to take this opportunity just to share with a little bit about why tonight's program is so particularly important. important for us, as all of you know, gunston hall and the commonweal of virginia as well as fairfax county and our entire country are in the planning stages for what will be the commemoration of 250 years of independence coming up in 2026. and in many ways, tonight's program marks the kickoff event for celebration of 26 and america's independence tomorrow. as i'm sure all already know, is the 250th anniversary of the fairfax resolves an extremely important document that was coauthored by george mason and washington and program will be a wonderful way to explore the revolutionary ideas that were important in 1776, but also allow an opportunity to better understand why these ideas are so relevant and continue be so important in our nation in our

communities today. so we're thrilled by the opportunity to talk about the fairfax this evening and and in particular to thread that story within the context of presidential immunity. something i know we've all been reading and listening and a lot more about but we're very fortunate tonight to have one of the foremost legal scholars on that topic with us this evening. i also am very, very pleased to acknowledge delegate david bulova, a member of the virginia house of delegates, is here us this evening. thank you. and with that said, i'd like to invite gretchen bulova to come up director of historic alexandria and just share with you a little bit about some exciting programing that is happening tomorrow. the city of alexandria. thanks, scott. i am gretchen bulova director of the office of historic alexandria and i am pleased to actually sit on the va 250 commission with scott and so we represent you in northern virginia actually through 2031, which is excite ing.

i am pleased to welcome you to our fair fairfax resolves commemoration, which is going to be taking place tomorrow market square in alexandria it's the fairfax county resolves and i know a lot of people were like why is this in allen's andrea. it's because that is where the county courthouse was in 1774. and so the resolves were adopted on the location where we will have tomorrow those 250th anniversary ceremony. so we are pleased to have the honorary chair of va 250, karly offering our keynote address. we also have participants from the sons of the sons, the american revolution, the daughters in their home revolution, carlisle house and in partnership also with between us and mount vernon as well. so it's going to be an exciting

program that starts at six we will have a history fair at five so please come early and enjoy participate the fairfax resolves commemoration which will conclude with a marker dedication in in front of the carlisle house and then enjoy your evening in old town alexandria old town alexandria. so thanks for coming tonight for kind of kicking off our. 2/50 anniversary event and i look forward our speaker tonight. thank you. and we are very fortunate and very proud have such wonderful partners and other exceptional organizations here in fairfax county like historic alexandria like mount vernon and like so many others. so please take every opportunity to come out tomorrow and experience that as well. the last thing i want to say is i just want to take a minute and acknowledge our wonderful staff team here at gunston hall.

many of our folks are tonight helping out. we've all got our fancy name on. so please, as you have an opportunity to thank them for the great work they do, please do so. we are very, very blessed to. have a really talented, passionate, wonderful of folks that we work with here at gunson. so thanks very much to our wonderful team. and it is now my honor invite up dr. kate steer our, senior curator here at gunston hall, to introduce our speaker. thank you all very for being here. thank you, scott, and thank you once again to everyone for being here this evening. it is my delight to be up here to introduce you all to dr. holly brewer holly brewer is the birck, chair of american cultural and intellectual history and an associate professor of history at the university of maryland. she is also an a nog oral member of the historian's on the

constitution, the brennan center for justice at the nyu law school. dr. brewer is a in early american history and the early british empire as well as debates about justice. her first book by birth consent children law and the anglo-american revolution in authority, traced the origin and impact of democratic ideas across. the british empire and examined debates about who can consent in theory, as well as in practice. she is currently finishing book that examines the of american slavery in larger political and ideological debates. it is tentatively entitled slavery and sovereignty in early america and the british empire. her work been supported by a guggenheim and her books and

articles have won many prizes in both history and legal. these include the 2008 biennial book prize of the of cost from the american association of law schools, the 2006 willard hearst prize from the law and society association, the 26 cromwell prize from the americans for legal history. the clifford prize for best article on any aspect of 18th century studies and the douglas eight hour memorial world memorial award for the best article published in the william and mary quarterly in the past six years as. well, as numerous other accolades, her recent work and research has not only covered the political history of slavery, but has also led her to look into the constitutional framers ideas, executive privilege and the way that these debates are to the fairfax

resolves. we are here tonight to commemorate. so without further ado, please welcome dr. holly brewer holly brewer. thank you so much, kate, for that lovely introduction. let's oops, here we go. so this is tonight's talk royal prerogatives and revolutionary. so beginning last december, it was clear that the supreme court would take up the case. the trump versus us case, which was about presidential. i began writing a draft amicus brief for the supreme that focused on the legal history it. that december and the reason i agreed take it up working in collaboration with the brennan center was was that i was really worried that the supreme court might find a reason to do so.

i had been following a lot of their recent decisions which had which were since 2020, decisions that have privileged executive and i thought there was a real chance they would take it up at that time. most of those at the brennan center, most pundits thought, the supreme court would not. so i didn't want to be right. i was. and one of the things that really interested me that trump's former president trump's lawyers claimed that the common which was crucial to the how the law in the colonies continued to be enforced after revolution and that crucial to the common law was the idea that chief executive under that common had particular privileges and prerogative, including immunity from prosecution would be by executive read. therefore, they argued, the president should have such privileges as a careful observer of emerging originalists.

on the court, i knew that such claims were being taken seriously in circles, but also that the claims were. i read arcane legal treatises from this era as part my research for more than 30 years, not only the constitutional debates and ratifying conventions, but the debates that came before law and the post-revolutionary legal treatises came after emphasized that no one, not a king and not a president, should be above the law. here i talk about the i'll talk briefly end about the findings of our amicus brief. but i want begin by talking about how the even the fairfax resolves of 1774 250 years ago. can us understand the concerns of the american regard with regard this principle. so the fairfax resolves 250 years ago actually, it really is today because the they were signed tomorrow on july 18th, but they were written.

on july 17th by by george washington and in george mason and here is the picture of the first page and the question why were they written? what was in them and how can we better understand them? so so i'll talk more in detail about them. but to begin i to begin with actually this is a slide that i use when i teach the history of the american revolution. and one of the big questions that historians thought about for a long time, when we think about revolution and why it happened is to extent was the king of england directly, certainly at various points the patriots the revolutionaries blamed him. but was he really to blame what was going on? what led to this utter breakdown? and obviously, i'm not going to give you a whole lecture just about the origins of the revolution.

but i do want to raise couple, you know, some of the main theories that historians address partly because they come up so much, the primary sources. was he a mad king? later on, he would be diagnosed as insane. he had poor people have argued about exactly what his mental illness is but he did have one at this point he not or certainly was not diagnosed with one. so maybe maybe there was some element of that, but i don't think that works as an explanation. was he merely a bad king? was he corrupt was he terrible? was he. doing making too many actions in a self-interested way? was he incompetent? did he just not know what he was doing here in this painting? he was 21 when he came to power in 1760. was he too young and inexperienced to do, just not know what he was doing? corrupt, i guess relates partly

to bad, although they're exactly the same thing was simply exercising his legal powers and privileges as king over territories belong to him. and i emphasize this point this is a point that comes up in a lot of the writing because technically under english and british law, the colonies belong to the king as his personal possessions and he'd given away some of them as proprietary rules. but technically the colonies reported separately to him as king, and through his privy council, and he regarded them as his possessions. and in fact, there's wonderful passages in letters, descriptions of george, a third constantly referring to the colonies as his as his belonging. so i leave this out as to get you thinking about why what the king's role was, all the events and and and thinking about some of the bigger pictures and have a couple other sort of broadsides just to get you

thinking about. again, the colonies and the empire and. what else is going on? so 13 colonies were bound, 1776. and those are the ones we always talk about. but in fact, in 1776, england, 40, by my count, 40 colonies in the americas and i don't have them all highlighted here. many of them are in the caribbean. they're on the the mexican, the yucatan peninsula to the east and west on the mainland that don't rebel their six colonies in canada, that don't rebel. and so there's only 13 of the 40 that rebel. and one of the really interesting questions is why 13? why didn't the. and the other side i want to give you to get your thinking is also the britishmpire didn't just stop in the americas after the ven years war. the what the we call usually th

french and indian w britain had territory had gained rrories all over the and wh you see is a rather unusual perspective on wt e world looks like but it's actually from a game published in london in 1770. and your mind as aou british nobleman who it was designed for to travearnd theor and learn all about what parts of the world belonged to britain. so in other words british empire didn't just stop in the americas. those 40 colonies, they were the most dominant or one of the most dominant. and in league with spain, especially empires around, the world. and they were feeling on top of their game in the decade that led up to the revolution. so i'm just giving you this broader perspective and said that you can understand a little bit more of what was going on to make sense of the fairfax. the last side i want to share

you with that helps to also make sense of wt e empire meant to britain is thiss st one picture actually of hundreds i have like this out of the treasuryecd books of the british empire. at that so n t united states in terms of federal income the main source of federal income is frnce. so you can look at charts and you can see that at this point t british empire, the main source of was taxes on imported goods and all od from coni had to be shipped back to england where they were taxed and all of tseoods, you can see here, if look carefully the word tobacco, i know if i can kn anyway, but you'll see words, tobacco and sugar and. there's various imposts. this is this is a picture from the 1688 or 87, i think and of

these tobacco and goods produced well, especially tobacco here and in in virginia maryland was especially heavily taxed and increasingly so over this period. so in by 1750, tobacco is taxed at roughly eight and a half times. what was for it in virginia and maryland? that's an 850% tax on the naval, a square to the tax tobacco back to england. it was a source of crown revenue. tobacco alone was about 15% of crown revenue. that is, think about it as the equivalent of federal revenue. so what i'm trying say is that mercantilist system of, tax collection and of goods being in the colonies and going back to england, they were heavily taxed, was actually very very important to the wealth. the government in england and virginia were actually

important, especially in that equation. so. all of that is the general background, understanding some of the events immediately preceded the fairfax results. so you, all of you now, i'm sure out the tea party in boston in december 1773 when colonists up as indians and threw this tea into the harbor rather than paying the duty. in fact, those ships coming to all the different colonies, b the other colonists were not acting so aggressively. they at leas didn't. the tea. in many cases they did prevent it from being landed. there was a lot of anger at britain. this was one of a series of different nds of taxes that the empire had imposed on the colonies, some of which had been much egregious. but by this point it had almost become a point of principle about whher the colonies

should have to pay taxes that were levied parliament as opposed to the crown. remember, they are already paying other kinds of taxes because all their goods have to go back to england. and so we don't usually tell that part of the story but that is in the background as well. so this happened in december of 1773 and in january of 1774, something important happened that other scholars particularly sheila scamp has written about in a wonderful on benjamin franklin his son william and up till this point benjamin franklin had been an agent for the colony of pennsylvania and he had played a really important mediating in trying to resolve all the differences between the colonies and parliament and the king and for example, after the first stamp act, he had come in and explained to parliament why this was so onerous and really

impossible for the colonies to pay they didn't have access to the hard currency was required, they would bring much of their business and even legal agreements to stop. but in i was so 1774 something mpletely different happened and that is that it was discovered that benjamin franklin had done something that had led inart to the boston tea party, the tea party, not just about refusing to pay the taxes. the tea party was about fury at the royal governor in massachusetts, a man named francis hutchinson, who had who hasent letters requesting a royal tros soldier's royal soldiers to be stationed in boston toaintain the peace after riots, after the stamp, after stamp act and franklin had gotten a copy of those and had sent them to the massachusetts leslature where they had been printed that summer.

and they were part of the reason that so many people were angry and that had precipitated the boston tea party and in january of 1774 he has fessed up to so that somebody else didn't take the blame and he's put this is this is a cockpit was was well assembly hall and he was being tried he was he was under a formal hearing in the palace as to his behavior and during it he was basically he was completely humiliated and he was so angry that this helped to precipitate him his opposition to the crown and, his leadership his role in the american revolution. but can see here this is a contemporary drawing of all the lords and ladies were listening and heas complety embarrassed. but the angry all of this wasn' just about benranklin. it was also. this precipitated a completely

response from the crown and parliament and the king real appointed all the parliamentary leaders, including the prime minister at this point, and caed that called the shots and. they, they they essentially decided they were going to crack down no more repealing laws, no more negotiations. they going to teach those colonists lesson. and they decided that the main culprits were all in massachusetts and they were going to pass a series of laws that isolated massachusetts and made them pay. so the embarrassed. but more to the point, they set whole different policy in terms of how to deal with colonial resistance and there were five coercive acts they called later intolerable acts, but they weren't that at the time passed since 1774. and the first one i'm only going to talk about to today, the boston port bell and the massachusetts government, because those are the two most important in terms of what will

happen next and in terms frankly the fairfax resolves. so is the the boonort bell boston was and you can see here this drawing of what boston looked like the time it's a has a bigger footprint now than it did then but it was a basically an opinion ursula almost an island surrounded by water commerce was crucial to what boston did this crucial to the entire economy of the colony, not just in boston itself, but in massachusetts. in massachusetts, a whole everything came in and out of boston. and what the boston port bill did was it closed the port to all shipping said nothing can go or out and they basically man you can see this and letters are almost immediately the dead people were were starving. i mean there was no economy was cratering almost immediately and. it was supposed to be closed officially on june 1st. so even before it closed up and

down the colonies, this news brought about this closure. other colonies to respond. and in virginia, this is for of you who've been to williamsburg. this is the reconstruct it governor's palace, the royal governor had called and the buesses into assembly and they were deliberating on other ings when heard the news of e closure of boston's pt and in the capital in the capital the lower house of assembly called the burgesses met to discuss what to do and i love this bit. it's the historian in me they actually had a copy of historical tracks from the era of england's civil in the middle of the 17th century written by a guy named john rushworth. and they looked at his examples from there precedence and they decided they would have a day of

fast and thanksgiving on june 1st, which was the day that boston port was began was to begin to be closed. so they passed this resolution and the royal governor i don't have a picture of him, but his name was was was was william murray the fourth earl of dunmore, and he was a scottish as scottish title. and the royal governor it's just immediately decided that this this is what it looked like. this call to to to have a day of fasting and thanksgiving and and mourning fasting and prayer and when they are this was regarded by the royal governor as affront to his majesty's authority because. he did not think that the assembly should be protesting

against a law that the had encouraged and and that parliament had passed and. so the he was furious at when they passed this in the lower house and it was not ever made formally a law because it wasn't by the upper house of the governor. because as soon as the governor saw it, he the burgesses. so said no more, go away. you're not meeting any more. and that was the last time they would really that that those last actually i mean they might there might have been one or two times that he called them i realize in 1775 i'd have to check. but certainly this was really important that he dissolved them at that moment so where are we may 24th, 1774, just the part of the course of acts the house of burgesses has voted to support their friends in massachusetts and they've been dissolved. what do they do?

this sorry, this is the council chamber. the that of the house of bridge. this is a council chamber of the of the in the house of burgesses, which where the upper house, which is all appointed the royal governor, which, where they me and the governor would have been sitting here when he decided to dissolve the lower. okay, so they gathered that at raleigh's tavern and tried to decide what to do. so this late may and then they disperse and they go all different places and inside this sort of what it looked like, it's still standing okay then news about second punishment for for massachusetts it's came down and this was almost although i can ironically less serious was politically far more serious so this was a closure this was closing down the port the government of massachusetts and taking away its charter and

rry, this is what the charter looked like of for masshusetts. this was an edition published in 1742 this particular charter had granted in 1692 or three arrived in the colonies in 1683 grounded in 1682. and it was it was after a terrible because england massachusetts bay earlier charter had been taken away by charles the second and james the second as king in the late 1680s had imposed something called the dominion of new england which had no elected government at all and after the glorious revolution in england, which also impacted the colonies, they had gotten a new charter which gave them once again the right to have some kind of elected assembly. but they were really scared about losing it and about what that might mean and when when

the george third and parliament, this new this bill. revoking massachusetts charter, they set up a new kind of government that actually echoed what had been done in the late 1680s it had no elected assembly. everybody was appointed the governor and an appointed council. and they were going to make all laws and all the judges had their seats at the pleasure of the of the royal governor and there their salaries were to be paid by the royal governor. and not independently. and it was really scary. and for virginians i'm going to just pause here to explain it's really important. virginians had lost their charter in 1625 and they had repeatedly sought new charter which would guarantee them certain kinds of rights and privileges, especially the right of election. but they had never been granted it. so it was kind of a customary

the house of burgesses, the lower house, many customary raises, but there were not guaranteed at all. and actually around the world, if you look at india, for example, england had just taken steps to get rid of elected assemblies there. and the back act of 1774 said no elected, no assemblies, no elected assemblies there. so this all combination was really, really scary to virginians who didn't even have the luxury of a printed charter could turn to to establish the rights so and i put here charter was like a constitution and so part of why it was so scary and again also it was martial law that was imposed under general thomas gage, which suspended kinds of things, including habeas corpus, which is the right to know with what you're charged. okay, so the fairfax freeholders for fairfax county were supposed to gather on july fifth, so this is about a month afterwards. and all this while news is and

news has come down about parliament by july 5th, that parliament might pass might suspend massachusetts its charter and impose martial law. but they aren't sure by the time they met on july 18th they had that mass charter massachusetts charter was resort was as i put resolved that i was clearly typing quickly was taken away and they had no more elected government in massachusetts and george mason and george washington then had written a draft of the resolves on tuna 50 years ago today on the 17th. and one of the things that fascinated me, i was doing a little extra research for today, i hadn't quite realized the fairfax resolves were one of only of about 30 such resolves in virginia during july and august 1775. so freeholders in many different counties are gathering together and deciding what to do this is one of the most powerful, one of the strongest and one of the most well articulated.

but all through the virginia, they were thinking how to act. and in some cases they actually supported the crown and didn't protest. in fact, were mad about their colleagues anyway. but this predated the first real meeting of the burgesses as there. so there's the library of virginia classifies the categorizes as the house of burgesses the former house burgesses as meeting a legally five times between. that first meeting at the raleigh and and when they officially separated england and other words the governor wasn't calling them they were not officially in and the first real session of that was september first of 1774. so the fairfax resolves are happening a really crucial place where trying to figure out how do you respond. you just say the governor has dissolved the assembly. we have no more assembly. we do not have an ability to respond.

or do you start meeting in localities and i'm not going to talk about every element of the fairfax results that would take the whole lecture. but i do want to highlight some the issues that are that are really foundational to them and most importantly is a most important i want to point out the ways which the confiscation of massachusetts charter is really scaring them. and so there are they're saying it's fundamental principle of the people's being governed by laws to which they have not given their consent. so that's why i should start from the beginning. reserve resolved that the most important and valuable of the british constitution upon its very existence depends. it's not written, by the way, but except for the charter is

fundamental principle of the people's being governed. no laws to which they have not given their consent by represent it gives freely chosen by themselves who are affected by the laws they enact equally with their constituents, to whom they are accountable and without this protection the government must generate either an absolute and despotic monarchy or a tyrannical aristocracy and the freedom of the people to be annihilated. so there really they're emphasizing that withdraw like what does it mean to have charter taken away like this and to put in jeopardy the whole idea of representative government it's it under and under undermines pretty everything and they particularly blamed as you'll see the king for this for taking away such privileges. when they saw his help in getting them restored and so he

they on to talk about how these being passed by parliament are directly contrary to these first principles of the and again unwritten british constitution. but and the original and that's charters by which we are dependent upon the british crown and government. and it's totally incompatible as well not only with the but with written documents, but with the privileges of a free people and natural rights of mankind. and what's going on in terms of these laws being passed by britain with the king's approval and and the king's pressure and the queen's encouragement will render our own legislatures nominal and nugatory. so it isn't just, i mean, the worst is removing massachusetts charter, but they're feeling kind of helpless helpless. it'll it's calculated to reduce

us from a state of freedom and happiness to slavery and misery. oops, i'm pointing in the wrong i'm. okay. i no, i don't know why it's not working. can you just maybe. okay, so these are just a few others. and again, i'm not going to go into detail, but they say this is for under and pursued by the brithinister. this or these would be people like lord north, the british prime minister, who the ng appointed at this pot,rime ministers weren't chosen the lower house of three appointed by t king, and he th talk a lot about introducing arbitrary vement and notice in particular under the next i think it's 12 bowumber 12. he says they mentioned this partul two bills lately brought into parliament for abrogating the charter of the

ovince of massachusetts and another e ich is about the the justice system which they also regarded as sorry you'll have to just for some reason this has stopped working. so and resolved nothing will so much contribute defeat the pernicious did not designs of the common enemies of. great britain and the colonies a firm union of the latter. so they're to appeal to the king parliament to say this is creating divisions. as to effect this desirable purpose, that a congress should be appointed consist of deputies from all the colonies to concert a general uniform plan for the defense and preservation of our common rights and continuing the connection independence of the sad colonies upon the great britain. under i just lenient, permanent and constitutional form of government. so they're saying these are really scary. we might lose a whole basis of

our of government. the whole idea of government based on consent to the extent that it even exists here. it was it was imperfect before, but they're worried that it might disappear. so this is the initial call for the continental congress. you can look and and i'm then just gng to talk also about number 23 and in which there they're saying it's really up to your majesty to to fix this. and this is our dutiful petition. and raymond strauss, his majesty, asserting with decent firmness, are just constitutional rights and privileges, lamenting fatal necessity of being compelled to into measures disgusting to his majesty and his parliamenor injurious to our fellow subjects in great britain. and they say, we, we want to be continue part of this empire. we humbly concurring, beseeching, his majesty, this is

very this is very. humble and this is very carefully worded. but they say then they finish with not to reduce his faithful subjects of america a state of desperation and to reflect that from our sovereign there can be about one appeal. so there saying if there's no way if the king won't fix it and this is all coming from the king there can be but one appeal to and this is to god to revolution. this is actually ends a pretty pretty powerful threatening note. go ahead. okay. and i'm i'm just going to then talk briefly about this is the fairfax are one of man examples. you can see these kis of ideas being laid out as ey struggle to figure out how to establish schemes to rigs, including especially government based on the consent of the governed to the extent they have it and, how

to get the government england and especially king, to recognize it by. the time they write the declaration of independence, which you see here in, june and july of 1776, they are squarely blaming the king for all of the irregular parities in terms of questions of, human rights and governance based on the consent, the governed that they been witnessing and if you see here at the e this first substantial paragraph of declaration, he says the history of the present king of great britain is a history of repeated injuries and or usurpation,ll having in direct conflict the, indirect object, the establishment of an absolute tyranny overhese states. to prove this, let facts be to a candid world, and then they give a list. things that the king have done has done wrong, including many of the things that i've described here. and they don't they don't say these that revolution should be

done quickly or easily. they talk about a long train of abuses, and they lay out fundamental rights to beyond charters. okay fast forward to. how this understanding these principles relate to questions of presidential immunity. with which i began my talk today. and as historian, i have read documents such as these for for many years on surrounding king the revolution before and and consider about executive power were substantial and in all in all phases and especially as expressed in terms of the king claiming too much authority over the colonies over royal governors, over just judges and if a king could just simply snap his fingers and say charter is gone and, you don't have a

representative government, what does that say and the consequence was when that the states set up every state set up their own frame of government, they often, at least at first, especially first, really weak governors and the constitutional convention in 1787, they they saw that the executives had been made so un powerful that they practically couldn't do anything they couldn't execute the laws in pennsylvania they had three a group of three who governed. and so they tried to balance concerns and to make sure the executive have some power, but also to make sure that the executive was taxed in ways that the king had been. and i'll talk a little bit more about the extent of the king's privileges. but in a minute, but for the most part, where you also need to understand is that all the former colonies having experienced years where royal

governors had vetoed many, they had an absolute veto, had appointed most, then they really and were they'd seen the act in pretty capricious ways. they were really scared about having an executive too much power and george mason was really at the forefront of such concurrence concerns. he was, most of, you know, a member of the constitutional convention and afterwards at the ratifying convention and in the surrounding it in virginia, he he argued against ratification and the core of his concerns was he felt that even under the constitution, which had two sets of procedures and, impeachment and afterwards a trial of the president for possible that he that even these two mechanisms were not enough. and he was especially worried about the giving the pardon power to the president.

the pardon power was a privilege that had also belonged to kings and to royal governors governors. and although there's a little bit of a limit that you can't pardon case of impeachment that's written into the constitution, the. george mason was still concerned. can you turn the next slide. so this is actually just a snippet. some of the ratifying convention debates here in virginia and which and you can see at the top answer to mr. mason's objections to the new constitution recommended by the late convened organ in philadelphia and so mason's objection, the president of the united states has unrestrained power of granting paons, treason, which may be sometimes to screen from pushment, those whom he had secretly instigated to c the crime and thereby prevent discovery of his own guilt. so this was explicit concern of

mason. thiss crucial to why he did not argued against ratifying the constitution in virginia and the person ring to him is right beloways answer. and he says the probability of the president ofnited committing an act of treason against. the country is very slight. he's werded by the other powers of government and the natural strength of. e people at large must be so weighty that in my opinion, it is the most chimerical. i apprehension that can be entertained. such thing is so ever ible, and accordingly he that is the president is not exempt from a trial. if he should be guilty, supposed guf or any other offense, i entirely out on the considerationthe improbability a man honored in such a man by country risking li general arnolth would be benedictrnold. he was at that point, of course, infamous the.

the i can't read the word the somethin what? yeah. damnation of his fame to all futures though it is a circumstance of some weight a circumstance of some wghin considering whether for the sake of such a remote and improbable is this, it would be prudent to bridge the power of in a manner altogether an example, and which might produce miss mischief. so actually i would say this was a valid concern and is still one we're thinking about today. in fact attended the oral arguments in the immunity case live and i, i was shocked to hear some of the justices appear to that the president could pardon himself for an action which was really pretty you can read those notes yourself if you want. please go ahead. okay.

so. while george had an extreme view on these questions and was more cautious than others, my review and that the others who worked on the brief, i was the main author, but many other historians did research and signed on. we read comprehensively. we talked with pretty much everyone we could. we, all of us were pretty wise in terms of these materials and what we found is that during the constitutional convention and afterwards, virtually all founders agreed that while kings had immunity from prosecution, presidents should not. and and and one of the things that really struck is there's a famous speech that alexander hamilton gave during the constitutional, where he, he argues for somebody who looks a little bit like a king as president, who will have a life position, be elected, but hold that position for life, but even alexander hamilton said during good behavior, which meant he

could impeached and removed and prosecuted and that was a phrase commonly used in english law at that time. and so what i want to emphasize is not only all of these debates about ratification in the constitution, but all of the major legal treatises published by justices in america after. the revolution emphasized that presidents were not above the law, bounding the executive and, creating balance of power in general were key concerns of the revolutionaries. go ahead. so i'm going to just you two examples. these are texts that i'm familiar with for the last many years. they're my good friends. this one was written by st george tucker. he was a prominent virginian justice on the court of chancery here, and he was also a federal justice on the one level down from the sre court. this was the most important treatise on the common law published america after the revolution was published. as you see in philadelphia in

1803 and i include the table of contents here. so it was commentaries. it was he using blackstone? william blackstone was the most important british legal writer in the late 18th century, and he created this collection commentaries on the common law, and he reprinted entire of blackstone's treatise, which had been published originally between 1630, 1765 and 1769, but then he made modifications, created fitness. and so what i want to point your attention to in the table of contents is the sections from blackstone's original treatise about the the talked about some of the powers and privileges of king next page. and i want to point out what what st george tucker did. so st george tucker the text at the top is blackstone's just literally reprinted and then to the right at the footnote and i made it bigger to the right is what st george tucker had to say. he said the fundamental

principle on the american constitutions and governments being the perfect equality of rights. there was no room to admit anything therein that should bear the most distant resemblance to the subject of this chapter in words. this chapter, it doesn't apply there and. so all the sections of blackstone where he talked about the powers and privileges and prerogatives, kings st george tucker made similar and particularly also about the power of immunity from prosecution. he said the president no less than a beggar in the streets is subject trial at common law. if he is is a serious crime and the example he gives of if a president tries to raise an insurrection. next slide and the other example i want to give this from as from joseph story, who is the first and most serious on the constitution as whole. he published this treatise in

1833. i he was himself a justice on the supreme court. and this is regarded by most legal historians as, you know, sort the most important fundamental treatise on the american constitution. go ahead. and i just give you a little bit. this is straight out of a draft of brief. as i was writing. and the in impeachment under british had allowed criminal prosecution. so in other words parliament could somebody who was impeached to be executed as it had in fact charles the first in 1649 during the english civil wars and during the constitutional convention they decided to take away the power of life in them from congress and to leave it and to leave it elsewhere. so joseph's story is telling is summarizing this and he says after impeachment final judgment is confined a removal from and

disqualification office this being the punishment in such modes of redress are peculiarly fit for political to administer, as well as secure the public against political injuries, but striking need in other respects the. offense is to be left to be disposed of by common tribunals of justice according to the laws of the land. upon an indictment found by a grand jury and a jury in a trial by jury appears and quote, the president, like the other officials to whom stories analysis applied, is to stand for his final delivery. like his fellow citizens next, like. okay, all of this brings me to the amicus brief that i have to or i was the main author i was it was me and rosie rosemary zaccaro who some of you might know who teaches at george. at first working with the brennan center for justice and

in new york city, and then a major firm and. we had our i we had a complete draft ready by the end of february when the supreme court took up the case, so that by the time they took it out, we were ready to share it with others who then gave feedback and we checked and rechecked and triple checked every footnote. and this is the front page of our brief. go ahead. and this is the supreme court's decision as i noted, i went to the oral arguments during those oral arguments, my. that there would the concern rid of them the court would try to craft an argument immunity for some part of the president's actions was vindicated. they focus a lot on official unofficial actions and this is the final verdict. and here's just the main part of it. under our constitutional structure of separation of powers, the nature of presidential power entitles

former president to absolute immunity from criminal prosecution for actions within his conclusive and prickly set of constitutional authority. and he is entitled to at least presumptive immunity from prosecution. all his official acts there is immunity for unofficial acts the example they gave of the latter was next line. actually, this is an article i wrote for new republic, turned about. i was one more was what bill clinton lying about engaging in oral sex in the oval. they gave no other substantive examples. what horrified and i use that word deliberately was that the main part of the decision didn't engage at all any constitutional issues with regard to balance of power. vague language about the framers wanting a powerful, energetic executive. but they raised no concerns about of power. it's only the liberals on the

court who actually engage with the constitution and a lot of people including myself are are pretty upset about this. and for me as a legal strain and i study not only the periods surrounding founding, but i study the colonies a lot in the 17th century. and i see huge abuses of power when there are adequate checks. and so the concern for me is, i think the concern that mason would have had is that when you take certain when make a president immune for certain, i mean, regardless of of the person you president trump or not, i mean, to me in her dissent, justice tanya brown, brock jackson says the court has unilaterally altered balance of power between the three coordinate branches of government as it relates to the rule of law, aggrandizing power and the division and the executive. and for me, the problem is, is

not just whatever is the next president and it's not just about trump former president trump. it's about we have fundamentally altered the balance of power and made it much harder to keep an executive accountable and think that i have yet one more slide. okay, so we're now back to my original slide that i shared with you that. i always used to teach the revolution and has have for you know, i don't know when i created this certainly at least five years ago, probably ten. and the issue is not simply d king bad king in computer corrupt george the first had elements of all of tho thing and certainly he felt like he all the colonies just belong to him and he could do what he wanted the key in 1774 and 1776 and 1787 and 1803, 1787 is the constitution convention. 1803 is st george tucker's

treatise. 1833oseph stories treatise was that kings and presidents needed limits on their power power. that's it. so we have a break now, right? yes, i'm happy to get people a little information. all right. thank you everyone. so now we're going to take about ten minute break. this is a chance if anyone wants to use the restroom or get some snacks, mingle. but it's also a chance for you to submit questions that you have for our we have a comment box in back of the room so you can submit your questions and then we will be having a q&a in about 10 minutes. all right. thank you all.

so thank you, everyone, for coming on. i guess we have some questions you want to read or do you want me to read them? i'm happy to read them and make a little more conversation. can everyone hear me okay? okay great. all right. so our first question, did other colonies draft resolution in 1774. like the virginians. and if so, how their arguments or keep, compare or contrast. i have not memorized all the other response in 1774, but of course i think the real evidence is that 13 colonies representatives to the first continental congress that met that fall, that wrote in protest about the coercive acts, about what's guaranteed in charters and, about fundamental human rights, and about the consent of the governed. so certainly it's fair to say

that the fairfax resolves, the concerns were echoed in the resolve that were passed and signed by all the colonies. but georgia and end in the fall of 1774. so thank you. all right. how quickly, could news the resolves reach other colonies and also more generally about how quickly was this information spreading and what did these different committee is know right so it takes a while but it's important to understand that the way that the everything had to by boat so notice that one newspaper article i shared with you it said it's only taken 36 days for this news to crazy atlantic. and it was published in boston. right. so. that was sometimes you had a little bit quicker travel, but that was not that was probably

about, you know, little over a month to get from england and back forth up and down the colonies was often quicker than that a least, if they're accessible by boat. so overland travel was much more difficult and a lot of the settlement, you know of in terms of towns and cities and plantations like this was along the waterways. that was by far the easiest way to travel. but it could take, you know, easily week and if you wanted to travel overland from say, richmond to what is now washington d.c. or you know that it could take you a week because it just took so news traveled as people traveled is. i think the larger point so there was always a time delay yeah i that helps and i it's always really fascinating to think about how these ideas were

circulating in this moment. one of the fascinating things to me is there were these almanacs that were printed in the 18th century and every colony that told you like when the sun rise and set and, when a frost was anticipated and things like that, and when the tides and all this information was there, but at the back were often lists of travel and how where could stay and where the ferries were. so if you wanted to travel between richmond, wherever, right. or in philadelphia, say it would tell you like travel six miles in one day on horseback and say at this. so they they had practical guides to make it mark accessible that's that's really is so you described the legal treatises that continued to argue for checks on power were there any situations that arose

between 1787 and 1833 that demonstrate the importance of checks on executive power or were there other examples concerns during that period? oh, i think they were probably pretty constant and i don't even i could list all of them, but one that many would know about for example is when jefferson made the decision about the louisiana purchase. congress was out of session and it wasn't like he could easily turn to them. and it was a deal he was being offered from a french government that was really in crisis and was afraid if he waited and and about you know what it would mean to call a congress into session and all the travel times i've just talked about and he made this decision his own and he got he got some flack it afterwards although not you know most people approved of it it was i think probably would have passed no problem but it's as a result of decisions like that there's there are many i mean this is a i think would have been a constant feature that

joseph story in his treatise he has something like 70 pages on this question about how often presidents whose job is to take care that the laws be duly executed has to making a decision quickly sometimes with advice from his his ministers like the secretary of state or whatever and he to act expeditiously and in doing his job and so he says you have to trust the president to do that. but that doesn't mean you shouldn't be accountable for everything that he does, including going before a court of law necessary. if what he has done is fact contrary to what he's charged to do in terms of taking care of that, the laws julie executed. so the extent to which he discusses this makes it that in the 50 years between. 1787 and 1833 not quite 50

because that in fact this had been an issue that came up all the time. thank you. any idea why george mason in particular was so concerned about the power to pardon? is there any larger context? well, he wasn't alone. and it actually came up at the constitutional as well. i mean, he i can't remember who all people who were raising it. i think governor morris, one of them from new york. they wanted to keep the ability to pardon because as they noted sometimes laws can be too harsh or badly applied and some grace for those convicted be really is really fundamental to the law and under english law colonial law there are many many more crimes there had been punishable death in england. in fact, in the 18th century there were some 200 crimes were punishable by death. and so the power which was part

of the king's majesty and part of something the royal governors also had was seen as crucial to curbing the excesses of a really harsh system of punishment. so that's what mostly came out arguing for that power by then they thought, i think it's when read the constitutional convention and debates i think they by saying no pardoning of impeachment that there would be swift enough action that if a president was going to be impeached and he was in dirty business, he wouldn't have enough time to pardon others involved and am making sense. but i think, you know, in retrospect, it's a, it's a big concern of president is willing to be ruthless to pass. i really wants to grasp power. i mean right it's a scary. was there any discussion but

actually just one other thing it came up at i think it was for when we did the count that came up at at least four different ratifying conventions. so it wasn't in virginia. so very widespread. yeah, yeah. was there any concern about excess or unfounded persecution of executives based on outside political influence? the main place that was expressed was with respect to the power, the giving power to congress to punish presidents with life, limb and other words. they looked back on examples of impeachments in english history, like the trial and execution of charles the first for example, in 1649. and they said we don't want the

politicians to have that kind of power over over the president because it could be misused if the politicians do it. and that's why they said and fact story and state judge tucker are explicit about this. but it's also you can see this in the constitutional convention. it should be left up to the regular courts of common. so this process there's actually a lot protections in the english and american system of having a grand jury do the indictment of having a jury, one's peers preside over the trial to protect against of power. and that's why they were very particular saying those other processes are well established in english law and in our colonies are the ones that should be used. if something is so serious that it needs to be investigated, prosecuted as a crime. so the idea that a functioning justice system would be robust. yeah, and it should be out of the hands of the politicians to do anything more than, remove somebody from power.

makes sense. all right. how did the relationship, the king and parliament affect the framers views of? the king's power. so that's complicated, but there the part of the problem is, well, there's wonderful book called popular politics at accession of george, a third written by someone named john brewer who's no relation came out probably 30, 40 years ago. you can get a copy if you're interested, but it shows the extent to which the king really did choose. he was going to be prime minister and who all the ministers would be interact what was going on a much more activist way before the revolution and the colonists were aware of this so as a he can always get things and he had to appoint new prime george the third went through six prime ministers between. 1760 and 1774 for settling on lord north you pretty much did

his bidding, but the the loss of the colonies after of the effort that was put into it. add two thirds perhaps and he was really, you know, a huge force behind the war did actually lead in england to undercutting george two thirds power over over prime ministers. so they they they took away part of his privileges of appointing over appointing a lot of ministerial offices of giving a lot of lifetime benefit, etc., which actually undercut his ability to manipulate the house of commons in the house of lords. so in terms of the colonies or in the new united states, i should say they were really aware of what george a third had done. and yet before the revolution they often couldn't talk about it that openly because was treason. to criticize the king directly, you had to be very, very careful about what said so. and even if you criticize as a prime minister or a minister like lord north, if you look at american newspapers like some of

those that are on display, the colonial newspapers, they would say lord north l dash, dash de and dash, dash, dash eight. and then they would write under pseudonyms so that it was harder prosecute them for sedition or treason for criticizing the king. so what i would what i trying to say is they were well well, this difficulty basically, you can tell ultimately how the king responsible but they they saw him as really manipulating. in the 1770s and eighties that actually ties in really well with our next question the point you just made about holding the king responsible, were there any limits to, kingly authority? so in that's part of what's so fascinating to me. so i don't just study the period surrounding revolution. i studied the early histories of the colonies in the empire as well. so work a lot on the 17th century and england as well as

the colonies and england might or might not be aware, i had to in the 17th century one, which is the english civil war, the other is called the glorious revolution. and both of those revolutions were in fundamental about unrestrained executive, about the king saying, i'm above law and i can do whatever i want and the first one ended with the trial and execution of the king. the second one after the restoration of charles the second in 1660, and then the accession. james the second where he really saw himself as completely above the law. again, could do whatever he wanted and appointed justices at his pleasure who told them that he could do whatever he wanted, that turned into what it's called the glorious revolution because it was bloodless. in the end, his soldiers refused to fight for him, and after that it was an established in english law that the king couldn't simply say, i can. the king couldn't simply ignore

the laws. but there was no good way to prosecute the king and that remains the case in england today. technically the king of england is immune from prosecution for anything he do. and so the way it's fudged in a treatise like william blackstone's is that he essentially to just what they did here in fairfax resolves the appeal to heaven and to the example of the two revolutions in england in the 17th century and says english kings now that if they try to ignore the laws of the land they run the risk of being removed from power. i mean, there is no process of impeachment but technically. right. it's interesting because during the constitutional convention, benjamin franklin says the old processes are removing a king were essentially assassins in a revolution. and we don't want to have rely on that. we want a system of impeachment and trial where somebody who's

accused clear their name if they're wrongly accused. we don't want our only recourse to be assassinations and revolutions now kind of interesting. right the thought is and that's the note i think going to end on because we are at a time. so thank you very much to dr. holly brewer holly brewer. i believe we have a little more time if you want to stick around and meet our speaker and have some more snack. you've been a wonderful audience thank you so much. thank you so much for coming