Tom Burrell

In a pleading for the Dartmouth College v. Woodward case, Daniel Webster commented that New Hampshire’s Law of the Land Clause meant:

By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.  The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.  Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.  If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be  the law of the land.  Such a strange construction would render constitutional provisions, of the highest importance, completely inoperative and void.  It would tend directly to establish the union of all powers in the legislature.  There would be no general permanent law for courts to administer, or for men to live under.  The administration of justice would be an empty form, an idle ceremony.  Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.

17 U.S. (4 Wheat.) at 581–82.   

In Magna Carta and Due Process of Law, I discuss “law of the land,” the Due Process Clause, and Webster’s influence on judicial development in the nineteenth and twentieth centuries.

Webster bootstrapped “law of the land” with a broader, unknown meaning by giving it an independent source of constitutional oversight reach.  In so doing, Webster violently opened the door to an umbrella construction including principles of fairness and other generalities.  His argument reads:  laws that run afoul of constitutional commands such as prohibiting acts of attainder are not law of the land.  Therefore, “law of the land” provides not for the rule of law but for a substantive review of the quality and character of legislation in order for that law to be law of the land.  Further, substantive review included fairness review among other generalities.  Under this reading, law of the land was an undefined variable inclusive of the Constitution as well as general principles of fairness and justice.

Burrell, Magna Carta and Due Process of Law, 204-05.

Buy now

Preview available on Google Books

 

I enjoy gun rights and the right to bear arms.  But I will not put my faith in the Supreme Court to protect that right.  I know what the Supreme Court does to “rights” including those in the Bill of Rights and other parts of the Constitution.  For the last seventy-five years, the Supreme Court has been an ideology center driving progressive values in the name of the Constitution.  Notwithstanding recent outlier opinions, Heller and McDonald, individual gun ownership is not one of those progressive values protected by the Court’s typical jurisprudence.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

With the loss of Justice Scalia, the pillar of the Court’s conservative wing, how long will it be before the Supreme Court reevaluates the Second Amendment as a protection for the individual’s right to bear arms?  The modern Supreme Court has shown no restraint from manipulating constitutional language that had never been used, and was never intended to be used, in a given manner to invent a new “constitutional” doctrine—thereby invalidating dozens of state laws and disenfranchising the American people in the process.

The Court’s interpretation of “Due Process of Law,” for example, extends far beyond a mechanism to protect the rule of law from arbitrary executive or judicial action.  Courts have extended it to invalidate legislation itself.  Courts invented “substantive due process,” which allows the judge to determine whether the law is valid based upon his or her subjective perception of whether the enacted law is fair, reasonable, or socially just.

Under the Court’s control, the Fourteenth Amendment’s “Equal Protection of the Law” became “protection of equal laws”—which is the not-so-slight difference between applying the law fairly and fully on the one hand and a substantive equality provision for the judge (not the legislators) to subjectively determine whether the law is fair, reasonable, and bestows equal dignity and respect to all divisions of society on the other hand.  If the law does not meet with the judge’s approval, it is unconstitutional.  The constitutional right to privacy and right to abortion were invented without any constitutional basis or supporting text.

The drive against guns will work its way into judicial ideology to present new challenges to individual gun ownership.   Recent events illustrate the anti-gun agenda.  A radical Muslim enters a high-attendee event and executes individuals in the name of Islam.  The response by a certain segment of society is to identify the act not with terrorism but with “gun violence.”  The main stream media: “we have a gun problem in America.”  An individual associating with Black Lives Matter ambush-kills five cops in Dallas and certain segments of society seem to believe that the gun he used committed the crime on its own, the gun made him do it.  It was all about the gun used.  There’s no further look into the hate-filled ideology within those movements.

When this anti-gun ideology enters the courts, the Supreme Court will overhaul the historic meaning of the individual’s right to bear arms.  The Court will bury the positive text of “people keep and bear arms” with militia membership and deprive the Amendment from protecting individuals’ right to bear arms.  This reading will prevent individuals living in localities like Chicago, DC, and New York, and other cities with stringent gun control tendencies, from protection.

With a militia-reading of the Second Amendment, gun owners will no doubt react with the concern “what about self-defense.”  The courts will say that the Amendment has nothing to do with self-defense.  Progressive advocacy groups will likely retort with statistics that individual gun ownership does not correlate with self-defense.  “In fact more individuals and home owners are likely to be harmed by their guns than they are to use those guns in self-defense.”   The anti-gun craze may even persuade the Court to find a negative or prohibition of an individual’s gun rights in the Second Amendment.  The negative would be something along the lines of because the right to bear arms is limited to militias and because individual gun ownership is unsafe, the modern Second Amendment prevents the federal government and each and every state from allowing its citizens to own guns.  The Court’s new interpretation of the Second Amendment would mean that only military and government officials are permitted to own guns.  State and local laws permitting individuals and homeowners from owning guns are unconstitutional.

The above-described path is perfectly consistent with modern Supreme Court judicial activism.  Rights are invented and destroyed at the Court’s outcome-driven whim.  The Court has radically redefined our federal and state governments under interpretations of the incorporated First Amendment, the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and the Fourteenth Amendment.  I don’t mean questionable or reasonable interpretations; I mean living, breathing, we-own-the-country interpretations.  Many judicially created rights should have been evaluated, adopted, or discarded through Article V or at least through legislative means.  But our society has seemingly accepted the notion to “let the courts sort it out.”

So beware of putting your faith in the Second Amendment.  The likelihood of the Supreme Court continuing to protect the individual right to bear arms is slim, in my humble opinion.  In fact, it may come down to the 2016 election.  Several justices are 80ish.  Both Heller and McDonald were 5-4 decisions.  If the Democrats win the election, there will probably be several new justices nominated and appointed to the Court.  One of the major goals of the progressives will be neutralizing the Second Amendment from blocking gun control laws.

Charles: “What would happen if guns were banned in America?”
Lucy: “Statistics show that most violence is committed by guns.  Banning guns will end gun violence.”
Charles: “With a ban, the law-abiding would not have guns and the criminals, thugs, and terrorists would.”
Lucy: “No, the ban would apply to all, equally.”
Charles:  “But terrorism and murder are against the law now.  Don’t you think that the criminal, thug, and terrorist will violate the ban just as they violate every other moral or legal command?  Further, the law-abiding will comply with the ban.  Thus, you’ve disarmed the good guys and declared open-season on them.”
Lucy: “I hadn’t thought about that…but guns are bad.  Wouldn’t we all be better off if there were fewer guns?  Most gun violence is probably committed by guns that were purchased legally. Banning guns is good.  There will be less gun violence.  I don’t think police should be able to carry guns.”
Charles:  “Did the ‘War on Drugs’ prevent the availability of drugs?  Did Prohibition prevent the availability of alcohol?  Do you want the police to be armed with only a whistle?”
Lucy: “What about other countries where guns are banned and crime is lower?”
Charles: “Good point, but apples and oranges.  Other countries do not have our ethnic struggles.”
Lucy: “Violent crime is a problem for all communities.”
Charles: “We finally agree on something.”
Lucy: “Fewer guns means less gun violence.”
Charles: “You can ask me for my gun when you demonstrate that no one else has a gun or there is no need for a gun.”

 

Buy paperback and kindle e-book now

 

front matter. . .

Contents

I. Introduction

II. Medieval Institutions and Political Theory

A. Saint Peter and the Vicar of Christ
B.  The Coronation Oath
C.  Feudalism

III. Normans, Angevins, and the Magna Carta

A. The Norman Conquest and Henry I’s Charter
B. Consilium and Henry II’s Assizes
C. The Assizes of Clarendon and Novel Disseisin
D. Richard I: Regency and Community

IV. King John and the Magna Carta

A. Chapter 12
B. Chapter 39
C. Chapter 61

V. The Thirteenth Century after Runnymede

A. Henry III and “Evil” Councilors
B. The Baronial Period of Reform, 1258–1265
C. Edward I and the Council in Parliament

IV. The Fourteenth Century and the Rise of Participatory Government

A. Edward II’s Coronation Oath and Baronial Reform
B. The Ordinances and the Competition for “Right and Reason”
C. The Ordainers, Rebellion, and the Statute of York
D. The Commons’ Petition
E. The King’s Council and Common Law
F. Archbishop Stratford and Judicium Parium
G. Richard II and Impeachment

VII. Summary of the Medieval Period: The High Court of Parliament

VIII. The Seventeenth Century and Reason of State

IX. The American Constitution

A. Independence, the Articles of Confederation, and Amendments to the Articles
B. The United States Constitution and the Fifth Amendment

X. The Judiciary and Due Process of Law: Substantive Due Process

A. Due Process of Law, Law of the Land, and Constitutional Common Law
B. Vested Property Interests and Due Process of Law
C. The Fifth Amendment, Substantive Due Process of Law, and Judicial Enforcement of the Bill of Rights
D. The Fourteenth Amendment and Substantive Due Process
E. Modern Supreme Court Law

XI. Conclusion

HTML Index (pdf)

A

Adams, George Burton…………… 22, 97

American Revolution … 172, 243, 265, 267

1774 Declaration and Resolves.. 169

American Independence …171, 191, 265, 267

Antifederalists…………………… 181, 182

arbitrary rule……….. 119, 230, 233, 250

America lost appreciation for concept of   … 187, 216, 218

America, use of ..169, 185, 187, 190, 197, 203, 216, 221, 239, 247, 250

England, use of ……3, 41, 48–70, 78, 134, 137, 145, 155–66, 184, 187, 207, 231, 232, 240, 265

judiciary creating arbitrary rule ..185, 245, 248

Arlidge, Anthony………………………… 55

Article V……. 268, see also Constitution

Articles of Confederation ..17, 168, 172, 173, 179

amendments to……………………. 175

Ashley, Maurice…………………. 162, 163

assizes… 26, 32–44, 46, 57, 58, 60, 63, 84, 183

Assize of Clarendon…………… 36, 37

presentment juries…………….. 36

Assize of Novel Disseisin…..36, 39–41

B

Baker, J.H…. 22, 33, 37, 40, 42, 43, 77, 118

Baldwin, James F. …….35, 73, 81, 85, 89, 114–22, 122

Bank of Columbia v. Okely, 17 U.S. 235 (1819)  …. 203

Baronial Period of Reform, 1258 .17, 43, 50, 70–80, 85, 93, 98, 99, 106, 112, 116, 127, 132, 138

as a building block………………….. 79

Committee of Twenty-Four……… 73

community of bachelors………….. 79

Council of Fifteen… 71–80, 101, 132

Provisions of Oxford……………….. 74

Bartlett, Robert………………… 32, 43, 75

battle, trial by ….14, 22, 40, 41, 53, see also judicial proofs

Berger, Raoul…………………………… 188

Biancalana, Joseph…. 24–26, 33, 39, 41

Bible …see also church; Christian empire

Jesus Christ…………………………… 11

Luke……………………………………… 9

Matthew……………………………….. 5

Paul…………………………………… 7, 8

Romans…………………………………. 7

Saint Peter……………………………… 5

bicameralism……. see also Constitution

Bidwell, William B……………………… 149

Bill of Rights…………………………….. 164

as guiding principle………… 233, 239

English ……134, 152, 164, 165, 233, 268

incorporation of…………….. 251, 252

judicial activism……………………. 240

state bills of rights… 171, 182, 183, 192, 233, 234, 237, 239, 265

United States …182, 194, 230, 236, 251, 252, 256, 266

unnecessary….…….234, 235, 238–40

bills of attainder…… 192, 204, 213, 247

Blackstone, Sir William…. 151, 185, 201

Bonham’s Case ….see also Coke, Sir Edward

Bracton…………………………. 11, 82, 150

Bracton’s antinomy…………… 11, 13

Bracton’s two theories of kingship 11

natural law…………………………… 13

Brand, Paul……………………… 25, 82, 87

Brown v. Board of Education, 347 U.S. 483 (1954)                    257

Brown, A.L………………………………… 36

Burgh, Hubert de…………………. 70, 125

Burns, J.H…………………………………… 6

Burrell, Thomas H…..17, 21, 47, 168, 172, 174, 180, 241, 242, 245, 251–53, 257–59

C

Calder v. Bull, 3 U.S. 386 (1798) …211, 218

Cam, Helen…….. 80, 100, 121, 130, 143

Canning, J.P………………………….. 16, 46

Carpenter, D.A……………. 55, 67, 68, 75

Chapman, Nathan S……………. 186, 201

Charles I…………………….. 153, 161, 162

execution of………………………… 162

Charles II…………………………………. 162

charter of liberties……………………… 17

Henry’s……………………………. 31, 52

Stephen’s……………………………… 32

charter privileges and immunities ….17, 55

checks and balances ….see also Constitution

Cheney, C.R………………………. 9, 17, 50

Christian appeals………………………. 6, 7

null and void…………………………… 6

reason of sin……………………….. 6, 7

Christian empire………………………….. 6

consent…………………………………. 6

papal release…… 65, 79, 90, 93, 139

papal review…………………………… 7

Saint Ambrose………………………… 7

sword bearer………… 9, 44, 140, 166

temporal and spiritual swords……. 9

church ….see also Bible; Christian empire

canon law……………….. 5–14, 42, 50

corporate status……………………… 6

Petrinacy……………………………. 6, 8

reason ….7, 8, 10, 11, 13, 86, 94–96, 99, 104, 106, 109, 117, 128, 140, 149, 207, 268

Coke’s artificial reason………. 149

ratione alligatus………………….. 8

Civil Rights Act of 1866………… 243, 252

civil war………………………. 1, 19, 44, 50

American……………………… 241, 249

English ….1, 53, 65, 72, 79, 80, 147, 162

Clarke, Maude Violet………….. 124, 143

Coke, Sir Edward …..52, 53, 148, 155, 161, 185, 196, 205, 217, 231, 246, 248, 267

advocacy rather than legal history ….148

Cole, Maija J…………………………….. 149

common consent ….35, 145, 147, 159, 160, 165, 168, 185, 233, 236, 243, 267, 268

common counsel …3, 26, 29, 34, 35, 55–57, 62, 67, 72, 88, 100, 102, 109, 128, 137

assent ..……34, 35, 85, 88, 101, 102, 106, 130, 143, 175, 176

common law……………………………… 78

American adoption of…….. 170, 191

birth of………………………………… 42

common law ineffective………… 122

common-law procedure ….82, 116, 118, 126, 129, 130, see also Council sub conciliar process; assizes; due process of law; law of the land

information or suggestion……… 118

ius commune………………………… 42

king’s ability to record crimes…. 106

common utility ….7, 8, see also Christian empire; Petrinacy; kingship; judicial activism sub judicial prerogative

common good….. 67, 68, 79, 87, 207

common profit ….88, 91, 101, 102, 104, 123, 140, 268

necessity ….8, 10, 18, 44, 57, 60, 86–88, 95, 96, 114, 137, 140, 151, 163, 169, 207, 268

salus populi suprema lex ….see also commonwealth

welfare …10, 18, 44, 57, 86, 96, 102, 114, 136, 163, 166, 241, 245, 268

commonalty ……93, 106, 113, 139, see also High Court of Parliament

commonwealth …166, 267, see also judicial activism sub courtwealth

commune, London’s……………………. 46

competition over right, reason, utility, and necessity …. 91, 95, 99, 102, 106, 109, 128, 158

compurgation ….14, 15, 22, 38, 40, 61, see also judicial proofs

congressional enforcement of the law…..174, 178

Constitution

Article V………………………. 264, 268

as a black box…………. 204, 256, 264

bicameralism………….. 111, 171, 180

checks and balances… 179, 248, 266

ex post facto…………………. 192, 213

impeachment………………………. 180

ratification………………………….. 182

we the people………………. 264, 267

constitutional common law….. 191–93, 196, 202, 214, 246, 267

Constitutional Convention of 1787 …179, 188, 194, 234, 236, 266

coronation charter……………. 17, 31, 32

coronation oath ……. 14–18, 30, 31, 52, 82, 86–102, 104, 107, 128, 133, 134, 136, 139, see also kingship, theory of

inalienable rights … 16, 233, 250, 251

Costello, George A…………………….. 256

Council ….22, 34, 35, 61, 62, 69, 71–80, 80–90, 97–113, 114–22, 127, 132, 138, 140, 143, 180

chancellor ….45, 69, 72, 75, 77, 83, 115, 116, 121

committee of hearers……………. 115

conciliar process……………. 118, 120

concilium baronum………………… 69

Council’s judicial role……… 116, 145

common law ineffective……. 122

due process of law…………… 121

Council’s legislative role………… 115

false suggestions……………. 120, 121

justiciar……………. 45, 69, 72, 75–77

council-regency … see also kingship, sub regency

Coutances, Archbishop Walter de ….45, 47, 63

cruel and unusual punishment …..…see also Constitution

curia regis….. 11, 13, 27, 28, 37, 43, 117

D

Darnel’s Case …153, see also forced loans

Dartmouth College v. Woodward, 17 U.S. 518 (1819) ….203, 230

Davidson v. New Orleans, 96 U.S. 97 (1878)….. 211

Davies, James Conway …..86, 91, 95, 96, 99, 101–05

Davies, R.G……………. 75, 113, 114, 116

De la Pole, Chancellor………………… 131

impeachment………………………. 131

Denton, J.H……………………………….. 75

deposition …8, 16, 46, 108, 142, see also church; High Court of Parliament

Edward II’s deposition…………… 107

John’s almost………………………… 51

Richard II’s deposition…………… 134

Despensers……………………….. 105, 126

diffidatio…………….. see also feudalism

disseisin……………… see also feudalism

Dodd, Gwilym………. 6, 81, 83, 111, 112

Domesday Survey………………….. 30, 36

Douglas, David C…. 2, 15, 21, 30, 31, 37

Dred Scott…………………………. 229, 230

Due Process Clause ….2, 183, 189, 191, 211, 212, 228, 230, 231, 245, 249–64

substantive due process ….3, 230, 231, 233, 245, 252, 257

due process of law ….2, 117, 118, 121, 126, 129, 145, 154, 155, 159, 182–264, 266, 267, see also Magna Carta; Chapter 39; Fifth Amendment; Fourteenth Amendment

caught red-handed………….. 23, 129

E

Easterbrook, Frank H………….. 183, 186

Edward I ….6, 19, 33, 80–91, 93, 96, 99, 101, 103, 107, 109, 114, 116, 119, 139, 144, 157, 231

Council in Parliament……………… 85

law giver………………………………. 85

Edward II …..15, 75, 91–109, 114, 116, 128, 139, 141, 144

coronation oath of…………………. 92

Edward III …108, 113, 123, 124, 130, 142

Ehrlich, Ludwik………………….. 8, 82, 93

Elton, G.R………………………………… 122

English Constitution ….1, 135, 141, 147, 165, 168, 179, 231, 265, 267

Equal Protection Clause ….see also Fourteenth Amendment

Evans, G.R…………………………………… 9

evil councilors …91, 96, 101, 104, 140, 152, 232

evolving standards of decency…….. 264

ex post facto…….. see also Constitution

excommunication …8, 9, 16, 44, 51–53, 65, 68, 71, 79, 83, 97, 124, 140, see also church

John’s………………………………….. 51

F

Farrand, Max…………………….. 179, 180

federalism………………….. 241, 256, 266

feudalism………………………. 18, 46, 128

commendation……………………… 21

Conrad II…………………………. 23, 60

consilium …21, 24, 26, 27, 29, 34, 69, 102, 137, see also common counsel

diffidatio………………………… 25, 143

diffidation …25, 26, 44, 54, 58, 62, 108, 140, 143

disseisin…….. 24, 39, 48, 59, 61, 184

distraint …24, 36, 38, 39, 41, 49, 62, 67, 97, 138, 140, 173, 178

fealty………. 8, 15, 20, 23, 52, 57, 69

feud…………………………………….. 19

feudal contract……………………… 24

homage …21, 23, 24, 32, 52, 66, 94, 95, 108

judgment before………….. 22, 48, 54

sine judicio et injuste………….. 39

judicium parium.……………………. 57

maintenance……………………. 20, 21

oath-worthy………………………….. 20

retainers………………………………. 19

self-help………………………………. 26

surety………………… 19, 20, 120, 121

tenants in chief….. 21, 26, 28, 57, 58

Field, Justice Stephen J… 245, 249, 251, 252, 254, 257, 258

Fifteenth Amendment……………….. 241

Fifth Amendment …2, 3, 179, 182, 227, 228, 254, 256, 264, 266

plain-language construction of …183, 191, 217

Five Knights Case ..see also forced loans

forced loans……………….. 152, 153, 158

Fourteenth Amendment …3, 241, 251, 252, 256–58, 266

Equal Protection Clause …242, 252, 256, 257, 261

substantive equal protection …253

fundamental law …1, 97, see also arbitrary rule; Constitution; English Constitution

binding the king…………………… 149

Constitution………………………… 181

judicial use of ….223, 224, 246, 254–56, 258, 259, 264, 268

Magna Carta as……………….. 97, 187

prerogative a part of…………….. 154

Furman v. Georgia, 408 U.S. 238 (1972) …264

G

Galbraith, V.H……………………………. 30

Ganshof, F.L…………………………. 19, 21

Gaveston, Piers or Peter …91, 93, 96, 102, 105, 126

Gedicks, Frederick Mark…………….. 251

Glorious Revolution …162, 163, 165, 168, 265, 268

seven bishops case……………….. 163

Goldsworthy, Jeffrey …117, 152, 155, 157, 158, 165, 202

Great Councils …27, 34, 70, 72, 74, 75, 103, 123

Greenaway, George W………. 15, 31, 37

Griswold v. Connecticut, 381 U.S. 479 (1965) …258, 260

H

habeas corpus …2, 152, 153, 158, 162, 236

Haines, Charles Grove….. 205, 211, 251

Hamilton, Alexander …185–90, 202, 204, 205

Harding, Alan …14, 19, 22, 31, 36, 37, 40, 45, 76, 87, 110

Harrison, John……… 204, 212, 230, 231

Harriss, G.L. …….10, 72, 88–97, 99, 110–16, 124, 131–33, 144

Haxey, Thomas………………….. 134, 163

Haywood, Attorney General …193, 198, 232

heightened scrutiny …see also judicial review

Helmholz, R.H……………………………. 42

Henry I……. 6, 17, 30, 31, 45, 52, 53, 55

Henry II ….32, 35, 36, 39, 48, 49, 52, 57, 59, 63, 76, 77, 81, 183

Henry III …66–71, 78–90, 109, 127, 139, 144

majority………………………….. 67, 68

minority……………………………….. 66

Henry IV………………………………….. 134

Herle, Charles…………………………… 158

Hershey, Andrew H……… 72, 76, 77, 81

High Court of Parliament …1, 84, 129, 132, 136, 139, 142, 144, 145, 265

impeachment….. 128, 129, 131, 142

parley………………………………….. 27

parliamentary procedure……….. 133

parliamentary sovereignty …2, 3, 29, 140, 145, 165, 166, 265

partnership with community …141, 145

Holdsworth, Sir William….27, 28, 33, 34, 37, 43, 49, 55, 77, 78, 82, 83, 112, 115, 122, 149, 152, 153, 162, 165

Holmes v. Walton (New Jersey 1780) ….202

Holmes, George……………………….. 129

Holt, James C…………….. 44–64, 75, 128

House of Commons…………………. 1, 75

Commons …3, 42, 75, 100, 104–67, 181, 184, 185, 242, 265, 267

impeachment …2, 99, 108, 130–33, 135, 139, 142, 152

Hurnard, Naomi D………………………. 36

Hurtado v. California, 110 U.S. 516 (1884) ….230, 245, 246, 248

I

indictment and presentment… 37, 38, 60, 109, 118, 121, 129, 130, 142, 154, 155, 183, 185, 190, 202, 204, 245, see also assizes; common-law procedure; due process of law; law of the land

information…….. see also common law

Innocent III, Pope…….. 9, 17, 50–54, 65

inquest ….30, 39, 76, 80, 129, see also assize

itinerant judges………………………….. 37

J

James I…………………………….. 150, 162

James II……………………………. 162, 163

Jefferson, Thomas…………………….. 237

Jensen, Merrill……………. 172, 174, 175

Johnson, Robert C…………………….. 149

Jolliffe, John Edward Austin …7–117, 19, 25, 35, 64, 103, 108, 111, 143

Judge, Igor………………………………… 55

judicial activism ….245, 256, 258, 261, 264, see also arbitrary rule

courtwealth………………………… 257

judicial anarchy……………………. 211

judicial hegemony………….. 263, 264

judicial prerogative….. 205, 240, 245

judicial state…………… 258, 267, 268

reasonableness review …3, 219, 251, 254, 255, 261, 264, 268

fairness…..204, 230, 245, 254, 257

tyranny of the majority…… 240, 248

judicial nominations………………….. 264

judicial proofs ….38, see also battle, trial by; compurgation; ordeal; trial by jury; inquest; oath; judicium parium

judicial review… 224, 227, 235, 248, 264

beyond reasonable doubt ………202, 217, 227, 248, 249

heightened scrutiny……….. 254, 255

judicial restraint…………………… 216

rational basis………………… 254, 255

vested property interests………. 211

judicium parium ….22, 38, 46, 60, 61, 109, 125–27, 129, 130, 142, 144, 181, see also feudalism; High Court of Parliament

Judson, Margaret Atwood……… 148–63

Jurow, Keith…………………………….. 120

K

Kantorowicz, Ernst………… 8, 11, 18, 99

Keeler, Mary F………………………….. 149

Keeney, Barnaby C…………………. 23, 61

Kent, Chancellor James…… 192, 237–40

Kenyon, J.P……… 148, 150, 158, 160–63

Kern, Fritz……………………. 8, 10, 29, 33

Killian, Johnny H……………………….. 256

kin…………………………………………… 19

King, P.D…………………………………… 10

kingship, theory of ….9, 18, 82, see also vicar of God; church; common utility; arbitrary rule

above the law….. 11, 12, 18, 86, 136

divine right …117, 150, 165, 205, 265

fountain of justice…………….. 10, 28

minority ….22, 66, 69, 72, 73, 78–90, 108, 127, 130–32, 138, 141

non obstante…………….. 68, 86, 164

paradox……………………………….. 29

per perceptum domini regis …59, 77, 153

per voluntatem ….10, 48, 66, 184, 233, 268

placing government in council …72, 73, 78, 131

prerogative …..127, 128, 152, 154, 265

proceedings against king or his ministers  …..57, 58, 81, 93, 97, 108, 128, 136, 153

quo warranto……………… 68, 76, 80

quod habet vigorem legis principi placuit ….10

regency ….45, 66, 67, 69, 74, 78, 87, 93, 108, 124, 127, 131, 138

separate capacities……. 95, 107, 150

succession, conciliatory attitude …67, 87, 130, 134, 141

two bodies…………………….. 8, 9, 11

vicar of God ….9, 11, 33, 58, 165, see also church

gratia Dei………………. 10, 16, 29

voluntas princepis….. 29, 44, 57, 153

knights and burgesses ….75, 76, 79, 103, 106, 107, 110–12, 123, 142

L

Lackland, King John ….1, 16, 25, 35, 36, 44–66, 69, 87, 90, 139, 144

Lancaster, Henry of…………….. 106, 130

Lancaster, Thomas of…… 104, 105, 129

Langton, Stephen………………….. 51, 52

Lapsley, Gaillard T…. 107, 125, 128, 129

law of the land ….2, 42, 57, 59, 60, 69, 100, 101, 115–28, 154, 182–264,  see also due process of law; Magna Carta

concept includes Parliament’s acts 155

Leges Edwardi………………………. 52, 55

Leges Henrici Primi……………. 31, 52, 55

legibus solutus …..8, see kingship, theory of sub proceedings against king

Liberty of Conscience or Declaration of Indulgence ….162

Liebermann, Felix……………………….. 27

Lindsay v. Commissioners, 2 S.C.L. 38 (Ct. App. 1796)…..209, 212–14

Locke, John…… 166, 167, 207, 233, 267

Longchamp, William…………. 45–47, 63

Lords Appellant…………………. 132, 133

Lovejoy, David S……………………….. 168

Loving v. Virginia, 388 U.S. 1 (1967) .259

Luscombe, D.E……………….. 7, 9, 25, 50

Lyon, Bryce …..20, 27, 28, 32, 34, 35, 37, 38, 46

M

Maddicott, J.R. 15, 27, 34, 55, 67, 72, 73, 79, 87, 90, 96, 98, 102, 105

Madison, James…………… 173, 180, 235

Magna Carta…. 2, 17, 24, 48–64, 124–26, 137, 139, 143, 154, 157, 161, 167, 169, 202, 203, 230, 231, 265, 266

Articuli super Cartas ….71, 89, 98, 101, 119, 139

Chapter 12………………… 55, 56, 137

Chapter 39 ….2, 55, 57, 60, 117, 137, 183, 266

Chapter 40……………………………. 77

Chapter ….61 55, 61, 62, 65, 67, 73, 94, 97, 137, 138

Confirmatio Cartarum of 1297 ….17, 88, 98, 268

confirmation of ….55, 70, 71, 78, 88, 97, 99, 112, 123, 125, 134, 138, 140, 143, 144, 158

taxes………… 67, 71, 88, 123, 138

foundation for statute 138, 142, 143, 205

Magna Carta as a bargaining chip ….71, 79, 138

modify………… 71, 84, 100, 157, 231

Runnymede……………………… 54, 65

spirit of………………………………… 71

Maitland, Frederic……….. 19, 22, 24, 83

Malcolm, Joyce Lee…………….. 150, 158

Markus, R.A………………………………. 14

Marshall, John………………………….. 234

Mason, George………………….. 181, 182

Matthew……………………. see also Bible

Mayo v. Wilson, 1 N.H. 53 (1817) 198, 201

McConnell, Michael W….. 186, 201, 257

McKean, Thomas………………………. 234

McKechnie, William Sharpe… 49, 53–55

McKisack, May… 110, 111, 123–25, 130

medieval political theory……………….. 5

Merciless Parliament ….130, 133,  see also Richard II

Milsom, S.F.C………………………. 76, 117

Morris, Colin …….6, 7, 9, 46, 50, 51, 85, 107

Murray v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)……228, 229

Musson, Anthony… 37, 81, 98, 112, 134

Myers, A.R………………………….. 131–34

N

natural law 8, 10, 13, 14, 33, 93, 95, 136, 145, 233, see also Bracton

Necessary and Proper Clause………. 181

necessity, law of …..see also common utility; kingship sub separate capacities

Nelson, Janet…………………………….. 17

Nicol, D.M…………………………………. 10

Norman Conquest …14, 17, 21, 22, 24, 26, 27, 30, 60, 66

William the Conqueror……………. 30

Normandy………………….. 45, 49, 50, 69

Northwest Ordinance…………. 183, 236

Notestein, Wallace……………………. 149

O

Obergefell v. Hodges, 576 U.S. — (2015) ….261

ordeal ….14, 22, 38, 40, 61, see also judicial proofs

Ordinances ….71, 89, 98, 99, 101, 104–06, 110, 119, 123, 125

Baronial Declaration……………….. 95

Ordainers ….80, 125, 127, 132, 140, 142, 268

right and reason ….99, see also competition over right, reason, utility, and necessity

original writs…….. 33, 77, 118, 121, 145

register of writs……………………… 81

Ormrod, Mark W…..37, 81, 98, 111, 112, 134

Osgood, Herbert L…………………….. 168

P

Palmer, Robert C………………………… 25

Paper Constitution……. 72, 73, 132, 138

Parliament …..see also High Court of Parliament

participatory government ……..2, 3, 29, 160, 165, 170, 179, 185, 197, 207, 232, 243, 252, 257, 264, 267, 268, see also High Court of Parliament; arbitrary rule; Constitution; fundamental law

Paterson, Justice ….208, 211, see also vested property interests; judicial activism

petitions. ….12, 62, 63, 70, 75–87, 98, 100, 103, 110–22, 125–44, 158, 160, 163, 229

Commons’ petitions… 111, 112, 142

grace ..10, 13, 16, 28, 48, 81, 82, 116, 117, 142, 160, 163

hallmark of the English Constitution …110

hearers………………………….. 83, 115

Petition of Right …82, 143, 152, 156, 158, 160, 161, 163, 187, 231

right to…………… 134, 163, 170, 233

Plucknett, Theodore F.T. …..7–117, 31, 84, 100, 129, 130, 132, 133, 148, 153, 162, 165, 233

police power……………………… 241, 245

Pollard, A.F…………………………………. 8

Poole, Austin Lane ….17, 22, 23, 31, 35, 37, 38, 43, 44–66

positive law …..8, 10, 11, 13, 18, 32, 60, 86, 96

Post, Gaines…………… 10, 11, 13, 18, 88

Powell v. Pennsylvania, 127 U.S. 678 (1888) ….248

Powicke, Sir Maurice …..18, 59, 66–71, 76, 78–90, 121

prerogative ….see also kingship, theory of

Prestwich, Michael ….88, 89, 91, 98, 105, 110, 123, 125

privacy, right to …3, 211, 255, 257, 258, 260

Privy Seal……….. 89, 100, 101, 119, 145

Procope, John………………………… 7, 10

Provisions of Oxford ….101, see also Baronial Reform Period

Q

Queen Isabella and Roger Mortimer ….107

querelae……………….. 72, 76, 80, 81, 89

R

Rakove, Jack N…………………… 172, 174

rational basis…. see also judicial review

reason of sin ….see also Christian appeals; church

reasonableness ….see also judicial activism; church sub reason

recognition……………………… 37, 39–41

regency…… see also kingship, theory of

Relf, Frances Helen …149, 152–54, 158, 160, 161

representative government …2, 3, 171, 233, 264

republican principles …171, 196, 264, 265, 267

Reynolds, Susan………….. 14, 22, 23, 33

Richard I……… 34, 44, 45, 47, 48, 62, 73

Richard II ….3, 99, 109, 128–35, 130, 133, 147, 163, 267

Richardson, H.G. …14, 15, 18, 23, 25, 34, 49, 58, 63–66, 74, 76, 81, 85–87, 94, 104, 106, 114, 144

Riggs, Robert E……… 155, 171, 185, 188

Roberts, Chief Justice John…………. 261

Robinson, I.S………………… 5, 6, 7, 9, 16

Roe v. Wade, 410 U.S. 113 (1973) ….259, 261

Rogers, Alan……………….. 109, 132, 133

Roman Catholics………………………. 162

Rothwell, Harry ….2, 46, 52, 54, 56, 61, 65, 72, 88, 89, 92, 94, 98, 106, 184

Rufus, William……………………………. 31

rule of law …140, 144, 203, 204, 232, 242, 243, 267, 268, see also due process of law; arbitrary rule; judicial activism

Russell, Conrad. …151, 153, 157, 158, 161, 162, 164

S

Saint Peter………. see also Bible; church

salus populi suprema lex ….see also commonwealth

same-sex marriage ….257, 261, 262, see also Obergefell v. Hodges

Saul, Nigel……………………………….. 130

Sayles, George O……… 7–117, 146, 160

Scalia, Justice Antonin……………….. 262

school desegregation…… 253, 257, 258

Schwartz, Bernard…………………….. 202

Schwoerer, Lois G. ….152, 153, 163–66, 233

scutage…………………………. 56, 66, 137

Semple, W.H……………………… 9, 17, 50

Simpson, Hartley………………………. 149

Star Chamber……………………. 122, 162

State v. —, 2 N.C. (1 Hayw.) 50 (1794) …192, 232

statute ….33, 60, 84, 86, 99, 100, 107, 110–22, 128, 143, 144, 154, 164, 231, see also High Court of Parliament

42 Edward III………………… 156, 231

annul….. 86, 114, 116, 128, 146, 163

Edwardian statute………. 84, 85, 157

equity and the rule of law… 117, 157

importance of………… 113, 114, 205

king in council enough for……….. 85

modify law………………. 84, 157, 231

ordinance…. 39, 84, 85, 99, 114, 115

resolution of justice……….. 113, 140

royal legislation……………………… 33

suspending and dispensing …10, 152, 162–64, 224, 233, 265, 268

Statute of 1341…….. 126, 127, 129, 132

Statute of York………… 15, 93, 102, 106

Stenton, Doris M………………. 22, 25, 41

Storing, Herbert J….. 181, 182, 234, 239

Stratford, Archbishop John 99, 122, 123–25, 128

Stubbs, William……………………. 15, 246

Supremacy Clause…………………….. 266

suspending and dispensing ….see also statute; common utility; kingship sub prerogative

Sutherland, Donald W…………………. 80

T

Tait, James………………………………… 47

Taney, Chief Justice Roger B. …..229, 230, 245, 253

taxation without representation ….2, 152, 265, see also arbitrary rule; Constitution

Thirteenth Amendment………. 241, 253

Thomas, Kenneth R…………………… 256

Thompson, Faith ….68, 71, 86, 97, 100, 101, 105, 114, 117, 120, 121, 134, 154

Tierney, Brian……………… 6, 7, 9, 32, 50

Tite, Colin G.C……………………. 129, 152

Tout, T.F… 74, 86, 89, 98, 101, 105, 107, 108, 129, 130

Treharne, R.F………………………… 71–80

Trevett v. Weeden (Rhode Island 1786) ….202

trial by jury ……3, 37, 38, 185, 191–93, 198, 202, 204, 213, 229, 236, 239, see also judicial proofs

petit jury………………………………. 38

Trustees of the University of North Carolina v. Foy, 5 N.C. 57 (1805)….214, 216, 217

Tudors…………….. 3, 122, 135, 145, 148

Turner, Ralph V. ….11, 35, 43, 44, 46, 48, 55, 56, 58, 59, 61, 63, 67–70, 78, 86

tyranny ….49, 134, 158, 230, 239, 266–68, see also arbitrary rule; High Court of Parliament; judicial activism

U

Ullmann, Walter ….5–16, 28, 29, 32, 33, 34, 60

ascending theory…………………… 29

descending theory…………………. 29

V

Valente, Claire…………………… 108, 109

Van Caenegem, R.C…. 26, 31, 33, 38–41

Vanhorne’s Lessee v. Dorrance, 2 U.S. 304 (1795) ….211, see also vested property interests

vested property interests ….48, 68, 151, 177, 193, 206, 212, 214, 217, 218, 221–23

A-to-B laws…………………………. 211

due process of law……………….. 217

law of the land………………. 212, 214

natural law defense of……. 207, 208

origin of judicial activism…. 206, 211

representative consent ….151, 206, 210, 211

takings………………….. 184, 207, 217

jury required…………………… 208

just compensation …….183, 191, 208, 212, 213

necessity………………………… 207

vicar of God ….see also kingship theory; Bible; Christian empire sub two swords

vox curiae, vox Dei.……………………. 268

vox populi, vox Dei …109, see also commonwealth

W

Walter, Archbishop Hubert…………… 50

Warren, Chief Justice Earl …258, 259, 261, see also judicial activism

Watt, J.A……………………………. 6, 9, 16

we the people….. see also Constitution

Webster, Daniel …203–05, 230, 245, 247, 253

western constitutionalism……. 205, 207

White, Stephen D…………………. 148–63

Wilkinson, Bertie …..7–117, 102, 107, 125–27, 130, 134, 135, 140, 141, 143, 145, 211

Williams, Ryan C. …171, 183, 185, 198, 205, 214, 242

Witan………………………………………. 27

written or unwritten constitutions ….33, 35, 60, 62, 84, 203, 212, 217, 220, 224, 239, 248, 258, 267, 268

Wynehamer v. People, 13 N.Y. 378 (1856)…..217–19, 221, 223, 248

Z

Zylstra v. Corp. of Charleston, 1 S.C.L. 382 (Ct. Com. Pl. 1794) ….. 214

 

In 2015, the English-speaking world will celebrate the Magna Carta’s 800th anniversary.

The Magna Carta is a pillar of the English Constitution. In 1215, a group of powerful barons secured a great charter of liberties from King John. The barons believed that King John ruled arbitrarily and violated the customs and laws of the realm. A long-brewing struggle between the barons and the king erupted. The result, under the threat of civil war, was a promise of liberties from John to the barons.

The Magna Carta’s anniversary, as anniversaries have in the past, will likely produce an abundance of literature.

From the English side, we will read of the history of Parliament and the House of Commons: famous English institutions such as taxation only with representation, parliamentary privileges, the Petition of Right, the Habeas Corpus Act, and the English Bill of Rights. The English will celebrate the growth of Parliament’s representative government, which grew alongside the constriction of monarchical government.

From the American side, we will see similar academic productions noting the history of our Constitution and tracing its connection to the English Constitution and the Magna Carta. Without much difficulty, American constitutionalism will trace “due process” back to Chapter 39 of the Magna Carta. Chapter 39:

“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

The two cornerstones of Chapter 39 and the era of the Magna Carta are (1) the concept of judgment and process before enforcement (2) common counsel or assent, e.g., participation in extraordinary taxation and government.

But the conversation in America will quickly turn away from participatory government to the American notion of “Due Process of Law.”

In America, “due process of law” means differnt things to different people. Most attribute a body of procedure to the phrase. For them, “due process of law” in the Fifth Amendment and Fourteenth Amendment entitles citizens to judicial customs and processes like fair notice, a hearing, and perhaps trial by jury.

Others go much further and champion substantive “due process of law.” For substantive-due-process advocates, the Constitution’s use of “due process of law” incorporates not only a body of judicial processes but also generic concepts of reasonableness and social justice. Public actions or even enacted law that violates particular notions of right and wrong, privacy, happiness, dignity, equality, or some other social principle is a violation of the Constitution’s “Due Process of law.” The problem with this subjective constitutional standard is self-evident.

Jonas Phillips to the President and Members of the Convention

 Sires,

 With leave and submission I address myself To those in whome there is wisdom understanding and knowledge.  they are the honouable personages appointed and Made overseers of a part of the terrestrial globe of the Earth, Namely the 13 united states of america in Convention Assembled, the Lord preserve the amen—

 I the subscriber being one of the people called Jews of the City of Philadelphia, a people scattered and despersed among all nations do behold with Concern that among the laws in the Constitution of Pennsylvania [there] is a Clause Sect. 10 to viz—

 I do believe in one God the Creature and governour of the universe the Rewarder of the good and the punisher of the wicked — and I do acknowledge the scriptures of the old and New testement to be given by a devine inspiration—

 [T]o swear and believe that the new testament was given by devine inspiration is absolutely against the Religious principle of a Jew.  and is against his Conscience to take any such oath — By the above law a Jew is deprived of holding any publick office or place of Government which is Contridectory to the bill of Right Sect 2. viz

 That all men have a natural and unalienable Right To worship almighty God according to the dectates of their own Conscience and understanding, and that no man aught or of Right can be Compelled to attend any Relegious Worship or Erect or support any place of worship or Maintain any minster contrary to or against his own free will and Consent nor Can any man who acknowledges the being of a God be Justly deprived or abridged of any Civil Right as a Citizen on account of  his Religious sentiments or peculiar mode of Religious worship, and that no authority can or aught to be vested in or assumed by any power what ever that shall in any Case interfere or in any manner Controul the Right of Conscience in the free Exercise or Religious Worship—

 It is well known among the Citizens of the 13 united States that the Jews have been true and faithful whigs, and during the late Contest with England they have been foremost in aiding and assisting the States with their lifes and fortunes, they have supported the Cause, have bravely faught and bleed for liberty which they Can not Enjoy —

 Therefore if the honourable Convention shall in ther Wisdom think fit and alter the said oath and leave out the words to viz— [“]and I do acknoweledge the scripture of the new testement to be given by devine inspiration[”] then the Israeletes will think them self happy to live under a government where all  Relegious societys are on a Eaquel footing — I solecet this favour for my self my Childreen and posterity and for the benefit of all the Israeletes through the 13 united States of america. 

 My prayers is unto the Lord.  May the people  of this States Rise up as a great and young lion, May they prevail against their Enemies, May the degrees of honour of his Excellencey the president of the Convention George Washington, be Extollet and Raise up. May Every one speak of his glorious Exploits.  May God prolong his days among us in this land of Liberty – May he lead the armies against his Enemeys as he has done hereuntofore—May God Extend peace unto the united states – May they get up to the highest Prosperetys— May God Extend peace to them and their seed after them so long as the Sun and moon Endureth — and may the almighty God of our father Abraham Isaac and Jacob endure this Noble Assembly with wisdom Judgement and unamity in their councells, and may they have the Satisfaction to see that their present toil and labour for the wellfair of the united States may be approved of, Through all the world and perticular by the united States of america is the ardent prayer of Sires

             Your Most devoted obed Servant,

                        Jonas Phillips, September 7, 1787 

The Heads of Grievances was the first draft of the Declaration of Rights.  The Declaration was later given statutory form, with a few changes, in the English Bill of Rights.

1. The pretended power of dispensing or suspending of laws, or the execution of laws by royal prerogative, without consent of Parliament, is illegal.
2. The commission for erecting the late Court of Commissioners for ecclesiastical causes and all other Commissioners and Courts of like nature are illegal and pernicious.
3. Levying money for or to the use of the crown by pretence of prerogative, without grant of Parliament for longer time, or in any other manner than the same shall be so granted, is illegal.
4. It is the right of the subject to petition the King; and all commitments and prosecutions for such petitioning are illegal.
5. The Acts concerning the militia are grievous to the subject.
6. The raising or keeping a standing army within this kingdom in time of peace, unless it be with the consent of Parliament, is against the law.
7. It is necessary for the public safety, that the subjects, which are Protestants, should provide and keep arms for their common defence, and that arms which have been seized and taken from them be restored.
8. The right and freedom of electing members of the House of Commons, and the rights and privileges of Parliament, and members, as well in the intervals of Parliament as during their sitting, to be preserved.
9. That Parliament ought to sit frequently, and that their frequent sitting be preserved.
10. No interrupting of any session of Parliament, till the affairs that are necessary to be dispatched at that time are determined.
11. That the too long continuance of the same Parliament be prevented.
12. No pardon to be pleadable to an impeachment of Parliament.
13. Cities, universities, and towns corporate, and boroughs and plantations to be secured against Quo Warrantos and surrenders, and restored to their ancient rights.
14. None of the royal family to marry a Papist.
15. Every king and queen of this realm, at the time of their entering into the exercise of their royal authority, to take an oath for maintaining the Protestant religion, and the laws and liberties of the nation, and that the coronation oath be revived.
16. Effectual provision to be made for the liberty of Protestants in the exercise of their religion and for uniting all Protestants in the matter of public worship as far as may be possible.
17. Constructions upon the statutes of treason, and trials and proceedings and writs of error, in cases of treason, to be regulated.
18. Judges commissions to be made quam diu se bene gesserint; and their salaries to be ascertained and established, to be paid out of the public revenue only, and not to be removed nor suspended from the execution of their office, but by due course of law.
19. The requiring excessive bail of persons committed in criminal cases, and imposing excessive fines and illegal punishments, to be prevented.
20. Abuses in appointing sheriffs, and in the execution of their office, to be reformed.
21. Jurors to be duly impanelled and returned, and corrupt and false verdicts prevented.
22. Informations in the Court of King’s Bench to be taken away.
23. The Chancery and other courts of justice, and the fees of office, to be regulated.
24. That the buying and selling of offices may be effectually provided against.
25. That upon return of habeas corpuses and mandamus, the subject may have liberty to traverse such return.
26. That all grants of fines and forfeitures are illegal and void; and that all such persons as procure them be liable to punishment.
27. That the abuses and oppressions in levying and collecting the hearth money be effectually redressed.
28. That the abuses and oppressions in levying and collecting the excise be effectually redressed.

Lois G. Schwoerer, the Declaration of Rights, 1689, appx 2.