Tom Burrell
Liberty and Common Consent
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I came across this January 3, 1776 resolution of the Continental Congress and thought it worthy of sharing.
Resolved, That Colonel Nathaniel Heard, of Woodbridge, in the colony of New Jersey, taking with him five or six hundred minute men, under discreet officers, do march to the western part of Queen’s county, and that Colonel Waterbury, of Stanford, in the colony of Connecticut, with the like number of minute men, march to the eastern side of said county; that they confer together, and endeavour to enter the said county on the same day; that they proceed to disarm every person in the said county, who voted against sending deputies to the said convention, and cause them to deliver up their arms and ammunition on oath, and that they take and confine in safe custody’ till further orders, all such as shall refuse compliance.
That they apprehend and secure, till further orders, the persons named as principal men among the disaffected in the said county, in a summons for their appearance before the convention of New York, issued the 12 of December last, viz.
Of Jamaica township, Captain Benjamin Whitehead, Charles Arden, Joseph French, Esq! Johannes Polhemus.
Of Newtown, Nathaniel Moore, John Moore, [Sr.], Samuel Hallet, John Moore, [Jr.] William Weyman. John Shoals, Jeromus Rapalje.
Of Flushing, John Willet.
Of Barnstead, Justice Gilbert VanWyck, Daniel Kissam, Esq. of Cow neck, Captain Jacob Mott, Thomas Cornell,
[O]f Rockaway, Gabriel G. Ludlow, Richard Hewlet, Captain Charles Hicks, Dr. [Samuel] Martin, Justice Samuel Clowes.
Of Oyster bay, Justice Thomas Smith, of hog island, Justice John Hewlet, Captain George Weeks, Dr. David Brooks, Justice John Townsend,
And all such other persons who shall be found in arms, or who shall oppose the carrying the above resolutions into effect, as they the said Colonel Heard or Colonel Waterbury may think prudent to detain.
Vol. 4. Journals of the Continental Congress, pages 27-28 (footnote omitted).
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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.
Preview available on Google Books
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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.” -
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Contents
I. Introduction
II. Medieval Institutions and Political Theory
A. Saint Peter and the Vicar of Christ
B. The Coronation Oath
C. FeudalismIII. 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 CommunityIV. King John and the Magna Carta
A. Chapter 12
B. Chapter 39
C. Chapter 61V. 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 ParliamentIV. 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 ImpeachmentVII. 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 AmendmentX. 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 LawHTML 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
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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.
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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
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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.
- The pretended power of dispensing or suspending of laws, or the execution of laws by royal prerogative, without consent of Parliament, is illegal.
- 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.
- 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.
- It is the right of the subject to petition the King; and all commitments and prosecutions for such petitioning are illegal.
- The Acts concerning the militia are grievous to the subject.
- 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.
- 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.
- 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.
- That Parliament ought to sit frequently, and that their frequent sitting be preserved.
- No interrupting of any session of Parliament, till the affairs that are necessary to be dispatched at that time are determined.
- That the too long continuance of the same Parliament be prevented.
- No pardon to be pleadable to an impeachment of Parliament.
- Cities, universities, and towns corporate, and boroughs and plantations to be secured against Quo Warrantos and surrenders, and restored to their ancient rights.
- None of the royal family to marry a Papist.
- 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.
- 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.
- Constructions upon the statutes of treason, and trials and proceedings and writs of error, in cases of treason, to be regulated.
- 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.
- The requiring excessive bail of persons committed in criminal cases, and imposing excessive fines and illegal punishments, to be prevented.
- Abuses in appointing sheriffs, and in the execution of their office, to be reformed.
- Jurors to be duly impanelled and returned, and corrupt and false verdicts prevented.
- Informations in the Court of King’s Bench to be taken away.
- The Chancery and other courts of justice, and the fees of office, to be regulated.
- That the buying and selling of offices may be effectually provided against.
- That upon return of habeas corpuses and mandamus, the subject may have liberty to traverse such return.
- That all grants of fines and forfeitures are illegal and void; and that all such persons as procure them be liable to punishment.
- That the abuses and oppressions in levying and collecting the hearth money be effectually redressed.
- That the abuses and oppressions in levying and collecting the excise be effectually redressed.
Lois G. Schwoerer, the Declaration of Rights, 1689, appx 2.
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