Constitution

The history of the Second Amendment of the United States Constitution, which guarantees the right of US citizens to “bear arms” is one of the most complex and controversial of all the developments within constitutional law that have occurred in the last 230 years. In this book Cottrol attempts to bring together most of the major cases on the Second Amendment from the Supreme Court, and also includes various articles on their meaning.

One of the most valuable aspects of this book is the fact that Cottrol tackles his subject neither from the perspective of a supporter of the Amendment nor from a gun control advocate. This balance is a rare achievement in a treatment of an aspect of the law that often inspires resonantly partisan scholarship that fails to offer the true complexity and difficulties involved with balancing the various parties involved with the Second Amendment. The book is divided into two main sections. The first gives copies of the two leading Supreme Court cases, Presser v. Illinois and United States v.

Miller, as well as a state case that is now more than a century old but still provides precedence: Aymette v. State of Tennessee. Unlike many other books, Cottrol also provides the full texts of leading laws regarding gun control, such as the Brady Act and the 1986 Farm Owners Protection Act. These enable the reader to compare court cases, with the points of law that are raised within them, as well as the constitutional issues, with the actual laws that are now in place. Over all of them is the simple but actually over-riding language of the Second Amendment.

In the second part of the book, Cottrol provides ten law and history scholarly articles which offer a strictly balanced view of the spectrum of views on the Second Amendment. Four out of the ten articles are actually challenging to the idea that the Second Amendment is sacrosanct, while the rest are either historical or pro-Second Amendment in nature. Perhaps the best section of the book is actually the Introduction, an extended contemplation of the various issues involved with gun control from the Revolutionary War on.

Cottrol argues that the founding fathers saw that an armed citizenry was a necessity for the defence of political liberty that had only recently been won. However, the idea that America was (and still is) somehow intrinsically different from other countries in its attitude towards gun is merely stated rather than proven. Thus Cottrol argues that “from the beginning, conditions in colonial America created a very different attitude towards arms and the people” (p. 13).

But most European countries had a heavily armed populace in the Eighteenth and Nineteenth centuries compared to today, but have succeeded in developing into modern countries that do not have a generally armed citizenry, with associated much lower crime/murder rates. Cottrol offers an interesting view on a part of the gun control debate that rarely received much attention from either side. That is the fact that during the Nineteenth Century fears of insurrection from slaves (and then freed blacks) and Indians meant that there were outright bans on these groups possessing arms.

So the Second Amendment has already been suspended in the past for what are now regarded as spurious reasons: should not similar suspensions be considered in the present day? Cottrol does not explicitly state this, but it is implicit within his own scholarship that he briefly outlines within the Introduction to his book. In one of the most important aspects of the book, Cottrol argues that the “collective rights” argument over whether the Second Amendment merely guarantees the right to bear arms for a small, trained militia (i. e. an army? ) is moot.

He says that if both pro and anti- gun control proponents accepted that there is a right to bear arms guaranteed in the Constitution then a genuinely productive conversation and dialogue could occur within society as to sensible limits to access to that right. Arguing theoretically over whether the “right” exists or not is a rather futile exercise in sophistry. The more important argument is how the right should be instituted within society: what type of arms should be allowed under the constitution, what limits as to age, criminal history etc, should be placed?

The right to bear arms, Cottrol suggests correctly, does not imply the right to bear all arms. For example, fully automatic machine guns have been illegal for ordinary citizens in the United States since the 1930’s. A person cannot but a bazooka, tank or fighter plane and claim that the Second Amendment protects his right to purchase and use it. So the argument, Cottrol suggests, should be on the types of arms that are allowed, not whether they are to be allowed at all. Here Cottrol’s suggestion that Federalist issues be more closely considered is very interesting.

He correctly asserts that about 43 states already have laws and/or constitutions that touch in some way or another upon the unfettered right to bear arms. This area of law, full of often contradictory of at least contrasting law, has yet to receive much scholarly attention. Cottrol implies that far more gun control may actually be occurring than those on the national level, arguing over theoretical constitutional matters, seem to understand. State matters may at times conflict with Federal authority, especially considering the existence of state militias versus the federally controlled national guard.

Who actually controls national guard units became of great importance during the civil rights movement, when Southern states started to deny the validity of federal laws regarding desegregation. Presidents Eisenhower, Kennedy and Johnson all used federal troops in one way or another to help enforce federal court decisions. Cottrol’s book suggests that the strict constitutional arguments regarding the Second Amendment are in fact a fulcrum for much larger political, social and cultural dilemmas within society.

The scholarly articles which support the idea of gun control, and thus the diminishing of Second Amendment rights , often seem to rely upon essentially pragmatic arguments: gun control would lessen the amount and seriousness of violent crime. They imply that a tragic irony is now occurring in which the constitutional amendment designed to protect the country, and to make the citizens safer, have actually made the United States of America one of the most dangerous advanced industrialized countries in the world.

The issue of guns and the Second Amendment seems to be rather tangential to the real problems according to Cottrol. He briefly mentions the country that is the most difficult for gun control advocates to explain: Switzerland. The Swiss keep about 650,000 assault weapons in their private homes, making them by far the most armed/per capita population in the world. Yet Switzerland has virtually no violent crime. The country also has virtually no poor people and few if any of the social problems that seem to lead to much of the gun violence in the United States.

While Cottrol’s one volume edition of what was previously a large three-volume work is by necessity limited in length, it is a pity that these wider issues surrounding the Second Amendment could not be considered. For example, the Brady Law, named after the Reagan official who was paralyzed by the man who nearly assassinated President Reagan, was designed to stop the type of attack which had occurred there, but in fact does not really begin to tackle the problem.

A person who wants to assassinate a President (or to shoot his wife) will find access to deadly weapons in any country in the world, whether it has no gun laws or a plentitude of them. The psychological problems associated with spree killers such as the Columbine killers cannot be tackled by gun control laws, nor can the economic hardship and desperation that seems to lead to much of the black-on-black violence that accounts for a majority of murders. If Cottrol were to write another book on the wider implications of gun control these kinds of matters could be considered.

Yet the book might still have a constitutional basis as the US Constitution was not a theoretical document written as some kind of intellectual exercise but rather as a living framework on which a democratic country could grow. The argument over whether the US Constitution should be regarded as a “living document” that should be adapted to current circumstances and even changed if necessary, or whether its power lies within a strictly “originalist” interpretation is at the heart of political debate today.

One of the reasons that many of the public have an opinion on the constitutional arguments surround the Second Amendment is that they are, supposedly, simple to explain. Either the Constitution guarantees the right to bear arms or it does not. Cottrol suggests that this is in fact an irrelevant dichotomy: it is how that right is controlled that is at the heart of the matter. In conclusion, Gun Control and the Constitution: Sources and Explanations of the Second Amendment is an excellent book that raises a number of different perspectives on this important part of the US Constitution.

Cottrol’s compendium of cases, opinion and scholarship suggests that a balanced approach to the various arguments should be adopted so that both sides can speak to one another rather than at or passed one another. ____________________________________ Works Cited Cottrol, Robert. Gun Control and the Constitution: Sources and Explanations of the Second Amendment. Routledge, New York: 1994. .

A country’s constitution serves as the foundation of its existence, operation and dealings; both among people and sectors of the nation as well as domestic and foreign relations. The significance and effectiveness of a charter are attributed not on the statute’s traditional solidity and constancy. This is because foremost the supposed changes which happened, it is the realization of the constitution’s growing implications which manifest the ultimate transformation and evolution of its system.

In light of the existing and considered established measures of the land, it is empirical for the nation and its people to make the best out of it. Despite whatever is perceived to be flaws of a nation’s constitution, there is no good in returning to the past. What must be done to any current constitution instead is to directly address its underlying issues, prevent its negative premises to occur and for the country and its people to grasp its impacts. Constitution is presented in several forms and ways.

In doing so, varying interpretations of such kind of recognized document are provided like in literary works. It is in this condition that the public is offered with a manner how to evaluate and realize the relevance of a constitution. Hence, a literary piece will prove to be valuable at analyzing the essence and grabbing the effects of a constitution. Such illustration of a clear principle was best exemplified by Anthony King’s (2007) “The . ” By arguing, the author made the public realize the concrete facts concerning the constitution of the United Kingdom.

Beyond the details given by the author, however, the worth of the book lies on its thesis which fundamentally justifies its dispute. That is, the British constitution was never continuous since its establishment but it rather allowed opportunities to evolve which collectively affected the nation and its people. “The British Constitution,” an Overview Refuting people’s idea about their existing constitution is the main position of King in the book “The British Constitution. ” The author debated that the country’s constitution was not to be regarded exactly as it was during the sovereignty of Queen Victoria.

By far, the book is a revelation that the majority of British nationals appear to be knowledgeable of the successive modifications which transpired in their constitution (King, 2007). However, the book revealed that hardly any realized that the mounting implication of the existing constitution is exactly the complete modification of the quality of the system of British charter. The disclosure also served as the book’s assertion that the Victorian statue no longer exists and that the present constitution is generally regarded as a chaotic document.

It is in this situation that the King’s book serves its very goal and essence. This is under a principle that what need to be considered are not the changes to the past constitution or its muddled current version. What is essential is just to exploit and make the existing constitution works to the advantage of the people and the country in general (King, 2007). By itself, the book is not a reference literary material or particularly a textbook. Unlikely for a serious-natured journalist, political critic and notable member of the academe, the author’s sense of humour paved the way for the book’s distinction.

The book was a well-defined work because of its contention that it will do no good if UK and its people opt to return and still refer to the earlier constitution. In short, reminiscing on the past and its supposed solidity will not be a good guide in an effort to steer the country towards the changes being brought about by the present-day and even the future (King, 2007). In realizing the issues concerning the contemporary United Kingdom, the book directly battled with such problems.

In particular, the book provided the readers with sharp and critical evaluation of the escalating conflicts. Through the book, King exposed the disagreements existing between England, Wales and Scotland. Such idea was based on the ground of the decentralization and damaging analysis of the new House of Lords. King specifically expressed alarm over the positions at the Parliament’s second house which he claimed to be dangerously occupied by a diversified group of swindlers, failed leaders and political wannabes (King, 2007).

Such condition sums up the entirety of the book. In today’s modern United Kingdom, the book is one whole statement of the need for the public to recognize the collective impacts of the existing statue. While the said effects were brought about by the supposed current constitution, in reality it is still plagued by the earlier period of influence. Ultimately, the book functions as the creation of the past, present and future’s manifestation and consideration of the British charter.

This makes it a crucial material which will meet one’s awareness and concern about the nature and prospect of the political setting in United Kingdom. People’s Conformity with the Constitution King’s “The British Constitution” explored on the changes which took effect in UK’s charter for the three decades. As the author depicted, it is notable that Britain is regarded as a nation which unfortunately did not possess the needed capital-C constitution. By this the author implied that majority of free-thinking democratic systems have their respective constitution in black and white.

In contrast, the existing charter of the United Kingdom was unwritten. Unlike the usual charter of other countries such as the United States, that of the Britain is composed of big and relevant qualities and features which were not placed in paper making it different compared with other countries’ capital-C statues (King, 2007, p. 5). The author, however, clarified that the British charter is not totally the contrast of a capital-C or written constitution. Such condition only signified that what UK has is a charter with a small-c constitution.

This is because the book manifested that Britain really possessed a collection of “the most important rules and common understandings in any given country” which, in turn, control the influence and restrictions of the central state organizations as well as their affiliation with the citizens. However, the book noted that such significant measures and guidelines were indeed unwritten which resulted into their classification as small-c constitution and not capital-C constitution (King, 2007, pp. 3-5).

In particular, the book further explained that the existing British constitution is comprised of both unwritten big chunks of capital-C charter and written small-c constitution. This presented the public with the reality that what UK requires is not a written charter but a coded or codified statue which refers to the capital-C constitution. The underlying principle behind this premise presented by the book is simply the supposed relationship between the government and its people. That is, the link between the government and/or various institutions as well as its people needs to be established (King, 2007).

As an emphasis, the book made it clear that the differences in the qualities of the written small-c and unwritten capital-C constitutions pave the way for the changes that happened between the government and people for the last three decades. The author has inclined that a radical change of the present constitution may no longer be needed. However, the apparent defects in the existing British constitution, particularly as far as its present functions are concern; have likely caused the changes in the relationship between the state and its population (King, 2007).

A further analysis, however, revealed irrational conclusions made by the book. This is particularly illustrated when King studied the reduced influence or authority of states which he claimed is due to the globalization of the economies around the world. He corroborated such situation with the supposed mounting lack of enthusiasm among the voting public to recognize and be part of the system of political voting (King, 2007). The book’s sensitivity likewise appeared when King assessed the policy concerning the power of the parliamentary.

Such government sovereignty became the core of the constitution during scholar Walter Bagehot’s time in the nineteenth century. In contrast, King portrayed in the book that the British government under the profile of the Parliament’s lower house, the House of Commons, is merely a powerless or weak body aside from being far from independence (King 2007). The book’s fundamental theme is what its author referred to as Britain’s conventional charter which basically signified the strains and requirements for modification as well as what the significance of such changes.

As far as the book is concern, the basis of the conventional constitution is the separation between the government and its people. The author’s declaration, which manifested that the governors are apparently only ruling however the people still have their customary pronouncements, supported the said foundation (King, 2007). This was particularly depicted in the book when King mentioned about the outside bodies. He noted the recent inclusion of the governors in the government as well as practically in majority of positions and sectors. It is in this situation that the said outside bodies were regularly conferred with.

However, as their nature implies, the outside bodies continue to be exactly as external parts (King, 2007). It is in this condition that the book is to be commended because of its clear presentation of a significant subject matter. That is, the need for people’s agreement or conformity with their constitution depends on the premise that they are not merely consulted. What is really necessary is the effective involvement of the people in Britain’s decision-making because it is them who compose majority of the population and not the few ruling governors.

For this, King stressed: “Consultation was not to be confused with active participation in the making of policy” (King, 2007, p. 49). To further account for the principle of people’s conformity with their constitution, the book also presented another aspect where the system of British constitution also succeeded. This is where King discussed the definite and genuine distribution of goods to the people. This was efficiently carried out by the book’s presentation that the agreement of the people is achieved if services such as potable water, constructions as well as other basic good and services were provided to them.

Thereafter, the book cautioned that there will be risk once the country’s constitution failed to provide what it has stated (King, 2007). Old Paving the Way for New Subsequent to the important concept of people’s agreement to the constitution hence enhancing the relationship between the government and people, King for the rest of the book succeeded in presenting how the past constitutional connections have paved the way to something new. The author referred to the new phenomenon as versions which are based from realistic responses to new situations instead of intentional and conscious ones.

In explaining further, the book has taken into account several events such as the termination of the British Empire, the fall of the nation’s economy, the time when social deference has stopped, the last parts of the post-war agreements within the political setting, the escalation of a rebellious workforce society which started in the middle of 1960s and the power of the leftist in Britain’s Labour Party during the beginning of 1980s (King, 2007).

In presenting this condition of old giving way for something new, the book stated that the most relevant modifications were attributed to British’ choice to be involved in the then referred to as the European Common market in 1973. This particular decision was the corrective action made by Britain concerning its mistake of conceitedly being on its own when several countries including Italy, Germany and France created a trade coalition trough the 1957 Treaty of Rome.

The said trade blunder resulted into Britain’s economic disaster in mid-1960s and eventually disclosed the flaw and being reluctant on the country’s manufacturing industry (King, 2007). It is from the perspective of the author that there is no particular improvement in contemporary period which shows more ability to change the system of British constitution. That is, previous choices made by Britain have become the foundation of the existing constitution and that their massiveness made it unlikely for new alterations to set in.

Hence, it is difficult to argue with King’s outlook that the lawful and constitutional outcomes of the country’s concurrence with the Treaty of Rome were enormous enough to be changed (King, 2007). Since the book presented that the superiority of European Community decree over the measures of UK, King was justified in his claim that the battle between the two laws resulted into the law created by the continent having more bearing over Britain’s law. Relatively is the case with the British courts since implementation of Community law is more required which made UK as secondary.

With Community measures having more significance, British people took up their legal grievances and actions against the British government in Community courts (King, 2007). Noting such inevitable circumstances and outcomes, the book was correct when it said that Britain failed to foresee the imminent conditions. This is because the nation got involved in said Community without taking into consideration its possible consequence. In fact, it was Britain’s apparent desire to be a member of a union which eventually affected the nation’s constitution (King, 2007).

This idea was precisely supported by the book wherein King said that Britain then was more concern in entering the markets and did not think of the possible implications. It was unfortunate to note then that it was Britain’s sovereignty which was affected. This was affirmed by the author when he presented the condition of globalization. This is because when the practice took effect, the community of various countries evolved as the European Union or EU hence blocking the region as part of worldwide economy. In its worst effect, more significant impacts to the constitution happened.

Such European power over the government of Britain have greatly affected the nation’s policy aspects, such as in agriculture and environment, which were previously classified as internal but eventually became only a portion of the whole power of EU (King, 2007). The book was correctly critical in its discussion of the judiciary’s assertion of self-rule from the executive branch. King was also vivid when he presented the system of review of government decision done by the judiciary. He explained that such mechanisms lessened the authority of local governments.

These governments were regarded by the author as mere “pale shadow of its former self. ” This is because contrary to its previous influence, local governments became nobody and just turned out to be symbols of control by the primary government (King, 2007, p. 151). The book’s various manifestations of constitutional and policy changes were comprehensively provided, supported as well as rationally analyzed by the author. These include the modifications which happened during the free-market capitalism under Prime Minister Margaret Thatcher.

In the following two decades, changes were also depicted by the privatization of the government’s basic services to the people and fall of locally-generated incomes (King, 2007). Such changes significantly paved the way for similar adjustments in the branches of Britain’s governments which, in turn, affirmed more the earlier premise of Britain having a small-c and decoded constitution. This was effectively established by the book as King wrote that Prime Ministers barely visit the House of Commons with exemption if they need to address specific questions (King, 2007).

This goes the same with the Parliament which is frequently in recess because of the emptiness of the chambers most of the time. This has resulted into laws or measures which were created and just provided by the government to its people otherwise the bills do not have opportunity to be formed and even put into law. The said modification even led to announcements of government laws and policies that are carried out through the mass media. The book noted that this is definitely in contrast to the established process when the parliament is appraised at the onset (King, 2007).

As opposed to such condition of the Parliament, Britain’s executive branch upheld its constitutional power and authority. This was proven by the influence of the Prime Minister which was more strengthened to the detriment of the cabinet system. This was supported by the book when it provided the readers with several situations that showed the increased power of the PM (King, 2007). Constitution as Gauge of Government’s Fitness The driving factor which lies underneath the changes made to the British constitution is precisely the idea of the need for the government to be suitable in its main function of governing the country and people.

Fortunately, this was clearly noted and shared to the public by the book. This is when it was able to effectively portray that the government adhered with its functions of ensuring that it is indeed fit and capable for all its roles. These purposes of the government, which were attributed from the changes made to the constitution, include its economic, political and economic principles and practices (King, 2007). Being involved in multi sectors, King reasonably centred on the supposed needed changes to the constitution thereby resulting into strengthened relationship between the government and its people.

Since the nation was subjected to several crises, the book noticed the need for the constitutional modifications which, in turn, assured the competency and ability of the government to both run the country and establish favourable relationship with people. Conclusion It is certain that a country needs to have an established constitution which serves as the binding principle and performance of its government and for the citizenry to follow. Such foundation may be manifested in different and even opposing manners.

However, it is the only way at placing the systems in place and in good form. While the British charter underwent changes, it is such conditions which eventually signalled its aspiration. Since the earlier times up to the present, UK’s constitution has proven its worth and significance. It is in this understanding that King’s book served its very purpose and essence of making the public realize the possibilities and implications of the British constitution. Reference King, A. (2007). The British Constitution. New York: Oxford University Press.

“The extent of the contractual effect of a company’s articles has long been a subject of controversy generating much academic debate, interest and at times consternation.”Griffin, S Companies Act 2006 – altering the contractual effect of the articles of associationCompany Law Newsletter (2010), pages 1-4. (Available on WestLaw).Provide an overview of the academic debate in relation to the contractual effect of a company’s articles, highlighting specifically where the differences of opinion can be found.

Introduction

The Contractual effect of a company’s articles of association has long been a contentious concept which is commonly referred to as the “statutory contract”, distinguishable from normal commercial contracts and uniquely applicable to each and every member of a company as a separate and binding covenant[1]. S.33 of the Companies Act 2006 now forms the basis of this “multi-party” contract and is the successor to s.14 of the Companies Act 1985. S.33 states that: “the provisions of the company’s constitution bind the company and its members to the same extent as if there were covenants on the part of the company and of each member to observe it”.

This formulation represents only a slight departure from s.14 which made no specific mention of whether the company was a party to the contract. This small lexical difference aside the words of the new provision largely replicate the language of the old and, in Sealy and Worthington’s opinion, mean that “the same uncertainties seem destined to plague this area”. Since s.33 has come into force only two cases have mentioned it directly and so the likely effects it will have are still largely theoretical and based on the controversy which dogged s.14. This essay will provide an overview of the company’s articles of association and in part 1 will examine the academic debate which has surrounded both s.14 and now s.33.

Part 1: The constitutional debate

The academic debate on s.14 centers on the extent to “which it regulated a company’s obligation to adhere to the terms of its articles in relation to dealing with its members”. The extent of a company’s contractual obligation was, as noted above, notably absent from the 1985 version and this was the catalyst for a vigorous debate into the precise boundaries of the company in relation to the articles. Astbury J argued that s.14 creates rights and obligations between the company and its members but qualified it heavily by saying that this only applied in relation to those articles which regulated the rights and obligations of members generally. Griffin characterizes this, in light of the case law, as being that a member can enforce only those parts of the articles which relate to a “pure membership obligation” . Purely procedural issues, such as a member’s right to vote at a company meeting would be denied where the meeting related to an internal procedure but accepted where the meeting related to a more substantial issue of constitutional significance. As Griffin points out there was strong opposition to Astbury J’s restricted view of the extent of a company’s contractual obligation under s.14 with Lord Wedderburn arguing that the obligation extended to all obligations save those which related to merely “internal procedures” and as long as it was pursued by a member qua member and Gregory argued that, without exception, a member should be able to enforce every obligation within a company’s articles irrespective of status.

The new drafting of s.33, which is more expansive than s.14 in relation to the companies’ contractual obligations, would seem to support Lord Wedderburn and Gregory’s arguments. As Griffin notes the wording was inserted late into the Company Law bill by Lord Wedderburn himself in the House of Lords and on a literal reading does reflect his teachings. Section 33 has now been in operation since 2009 and it is still unclear as to whether it will evolve towards Lord Wedderburn’s views or remain entrenched with Astbury J. So far the courts have steered clear of deciding if it does and Randall QC has only seen fit to mention the “slightly changed” language of s.33.

Conclusion

In conclusion the contractual effect of the articles of association, notwithstanding the altered language employed in s.33, will remain contentious for many years to come. The debates which plagued s.14 of the 1985 Act have not yet been exorcised by the Companies Act 2006 and the key question remains as to the precise extent of a company’s contractual obligations under the articles. The lack of cases in the few years that s.33 has been operational would seem to hint that the courts are unwilling to give effect to Lord Wedderburn’s scholarly intentions much less Gregory’s. Sealy and Worthington are right when they warn that the problems behind s.14 will be inherited by s.33:

“…this provision [s.14] has been an endless source of varying interpretations and conflicting analyses…the same uncertainties seem destined to plague this area”.

Bibliography

Books

1. Gower & Davies (2008) Principles of Modern Company Law Sweet & Maxwell: London
2. Sealy & Worthington (2008) Cases and Materials on Company Law Oxford Uni Press: Oxford

Journals

1. Gregory, R (1981) ‘The Section 20 Contract’ Modern Law Review 44 p.526
2. Griffin, S (2010) ‘Companies Act 2006 – altering the contractual effect of the articles of association?’ Company Law Newsletter
3. Lord Wedderburn (1957) ‘Shareholders’ Rights and the Rule in Foss v Harbottle’ Company Law Journal p.194
4. Scanlan, Gary & Ryan, Chris (2007) ‘The Accrual of Claims for Breach of Contract Under s.14 Companies Act 1985 and s.33 Companies Act 2006: The Continuing Obligation’ Company Lawyer 28(12) pp367-371

Cases

1. Cream Holdings Limited v Stuart Davenport [2010] EWHC 3096 (Ch)
2. Fulham Football Club (1987) Ltd v Richards and another [2010] EWHC 3111 (Ch)
3. Hickman v Kent or Romney Marsh Sheepbreeders’ Association [1915] 1 Ch.881

Statute

1. Companies Act 2006
2. Companies Act 1985
3. Scanlan, Gary & Ryan, Chris (2007) ‘The Accrual of Claims for Breach of Contract Under s.14 Companies Act 1985 and s.33 Companies Act 2006: The Continuing Obligation’ Company Lawyer 28(12) pp367-371
4. Gower & Davies (2008) Principles of Modern Company Law Sweet & Maxwell: London
5. Companies Act 2006, s.33
6. Sealy & Worthington (2008) Cases and Materials on Company Law Oxford Uni Press: Oxford at p.250
7. Fulham Football Club (1987) Ltd v Richards and another [2010] EWHC 3111 (Ch)
8. Cream Holdings Limited v Stuart Davenport [2010] EWHC 3096 (Ch)
9. Griffin, S (2010) ‘Companies Act 2006 – altering the contractual effect of the articles of association?’ Company Law Newsletter at p.1
10. Hickman v Kent or Romney Marsh Sheepbreeders’ Association [1915] 1 Ch.881 at 900 per Astbury J
11. Griffin, S (2010) ‘Companies Act 2006 – altering the contractual effect of the articles of association?’ Company Law Newsletter at p.1
12. Macdougall v Gardiner (1875-6) L.R.1 Ch.D.13 (CA)
13. Lord Wedderburn (1957) ‘Shareholders’ Rights and the Rule in Foss v Harbottle’ Company Law Journal p.194
14. Gregory, R (1981) ‘The Section 20 Contract’ Modern Law Review 44 p.526
15. Griffin, S (2010) ‘Companies Act 2006 – altering the contractual effect of the articles of association?’ Company Law Newsletter at p.2
16. Ibid at p.4
17. Fulham Football Club (1987) Ltd v Richards and another [2010] EWHC 3111 (Ch) at para 59 per Vos J
18. Cream Holdings Limited v Stuart Davenport [2010] EWHC 3096 (Ch) at para 27 per Randall QC
19. Sealy & Worthington (2008) Cases and Materials on Company Law Oxford Uni Press: Oxford at p.250

Question: To what extent was the Constitution a radical departure from the ? Thesis: Due to the fact that the Articles of Confederation were causing problems, the U. S.

adopted the Constitution that solved the problems in the weak government including no executive control and no way to levy or collect taxes. I. On example of how the Constitution differed from the Articles of Confederation is the setup of their government a. Houses in Congress i. Articles of Confederation of 1777 had one-house congress 1.Weak government a. When the government was created, people were afraid of a strong government like England had.

The government became very weak because of that. i. No executive branch; no president/leader 1. Colonists were afraid of the president turning into a king. 2. After Shay’s Rebellion and other rebellions, people realized that they needed someone to govern them. a.

Shays rebellion was a rebellion caused by the government forcing people to go to jail if they were in debt b. ,000 men marched to Worcester where they closed down the commonwealth’s Supreme Court and then marched to Springfield where they broke in and freed imprisoned debtors. c. Massachusetts asked Congress for help but legally, there was not much Congress to do to relieve them. Noting, a greater authority in the central government is necessary ii. No judiciary; no courts iii. ALL power went to legislative b.

Government couldn’t tax the states or individuals iv. Individuals were still only subject to their states and hadn’t had an interest in a national government c.Thomas Paine’s Common Sense v. Widely read, Paine argued how it never did any good for Americans to be subjects under a King and how they are strong enough to create an independent republic. ii. Constitution 2. Constitutional Convention in 1787 in Philadelphia was where people met to start creating and drafting a constitution d.

After Shay’s Rebellion, it was noticed that a strong central government was needed e. America was in debt after the war, we needed someone in charge to clear up the debt. i. Taxation is now allowed in the Constitution but taxation was not allowed under the Articles of Confederation. 3. Strong government f. Could tax individuals vii.

Individuals were now subject to their state government as well as the national government viii. Taxes were enforced 3. Helped pay off war debt g. Checks and balances ix. Representation in Congress 4. Great Compromise d. Exactly 2 Senators from each state were chosen (in favor of the smaller states- equal representation) e.

House of Representatives from each state were chosen based upon population (in favor of smaller states- population) x. Branches (legislative, executive, and judicial) 5. They were separate, and each checked on the other branch to make sure it is running efficiently Conclusion: The Constitution was created to fix the governmental problems that the Articles of Confederation failed to do. It was essential for the U. S. to depart from the Articles of Confederation because of the weak government it had created, there was no executive branch/leader, and Legislature was prohibited to levy or collect taxes.

To what extent were political, economic, and social development between the Revolutionary War and the ratification of the Constitution, a reflection of the colonists’ dreams for independence. BY ALULAR During the settling of the New World, the European colonists underwent many situations that caused the desire for independence to arise. From that point forward the colonists cultivated ideas regarding their dreams and how they were going to achieve their dream. After the Revolutionary War, the colonists were ready for the better life that they hoped for, but they were sadly mistaken.

Instead the colonists, who were now Americans, were faced with creating their own political system/ government, establishing peace within the nation, and regaining their economic standing as a nation and not as individual states. These tasks, which seem simple to an outsider, caused the Americans much distress and dampened their hopes and dreams of a better and more stable life. The main contributor to their dilemma was the, newly developed, Articles of Confederation, which had numerous flaws that made the colonists’ dreams begin to dim.

The political, economic, and social velveteen between the ending of the Revolutionary War and the ratification of the Constitution was not an accurate reflection of the colonists’ dreams for independence. The colonists hoped that after the Revolutionary War and their separation from England, creating a functioning government would be smooth sailing. However, the creation of the Articles of Confederation made that extremely hard. The Articles of Confederation contained several flaws that became apparent as America tried to develop. For one, the Articles did not give the national government the power to tax or regulate trade.

In addition, the government was unable to levy/ charge taxes during wartime. As a result, the government tried to finance wars by printing more money, which naturally led to inflation. Moreover, under the Articles of Confederation the government was unable to impose tariffs on goods. This article left the nation powerless when the British denied the colonies access to West Indian markets. Many Americans felt that the Articles of Confederation were more concerned with preventing the government from gaining too much power, like the past English government, that the new government ended up with not enough power to function properly.

Besides having problems creating a functioning government, there were social problems that also needed to be rectified. After the Revolution, many citizens and non-citizens, specifically women and slaves believed that they should be treated as like many others, made many sacrifices during the war that entitled them to being treated like a white male citizen (a regular citizen). However, the slaves’ personal dreams were never met, mainly because they were faced with tremendous amounts of racism and hatred. Whereas the women, with the help of Abigail and John Adams, had a fighting chance to gain rights in the new government.

Even though the colonists’ dream of a beautiful life was stifled by their inability to create a functioning government, The Articles of Confederation, in some ways helped the dream stay alive. In 1787, the Northwest Ordinance was added to the Articles. The Northwest Ordinance, for one, abolished slavery in the Northwest Territories. It also guaranteed citizens the right to a trial by Jury, and the freedom from excessive punishment. The Northwest Ordinance also gave citizens the freedom of religion, which was one of the major problems in England before the development of the New World.

The ratification of the Constitution was open only with both arms ajar and not fully open. However, the colonists were pleased to see the positive progress. Yes, the constitution did have problems and conflicting interpretations, but the colonists’ dreams were finally coming forward and into the light. Although the political, economic, and social developments between the ending of the Revolutionary War and the ratification of the Constitution, were not an accurate reflection of the colonists’ dreams for independence, the era to come slowly but surely began to fully reflect their dreams and aspirations.