only seven years, its principle remained and is the historical origin of the use of the injunction process to prevent disorder or crime (see Chapter IV). So, in 1487, a statute of Henry VII gives special authority to the Court of Star Chamber over riots and disorders. But the abuse of the royal prerogative continued under the Tudors and Stuarts, until the Petition of Right in 1627 complains (Article 3) that although it is declared (quoting Magna Carta) that no man be imprisoned nor put out of his freehold, nor franchises, nor free customs unless it be by the law of the land, and established that from thenceforth none shall be taken by petition or suggestion made to the king or his Council unless it be by indictment or presentment of good and lawful people of the same neighborhood or by process by writ originally at the common law, and no one shall be forejudged but by the courts of the law, nevertheless of late times divers commissions have issued giving authority to proceed under martial law whereby (§ 8) some have been put to death when and where if by the laws and statutes of the land they had deserved death, by the same laws and by no other they ought to have been judged. And finally, the long history of invasion of the common law is closed by the entire abolition at the hands of the Long Parliament of the Star Chamber and of all but common-law courts. After the Revolution, the Bill of Rights complains that James II endeavored to subvert the laws and liberties of the kingdom, among other things by issuing a commission for a court to be called "The Court of Commissioners" (clause 3), and (Part II, clause 3) that both this commission and all other commissions and courts of like nature are illegal and pernicious. The right to the common law exclusively was too well established to need much expression in the Federal Constitution, but the Declaration of Independence complains (clause 17) that George III" has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws," and (clause 24) arraigns him for "abolishing the free system of English laws in a neighbouring province, establishing therein an arbitrary government." The Federal Constitution recognizes the principle in the seventh Amendment of the ten which are our national Bill of Rights, providing for suits at common law and trial by a jury, and that no fact so tried shall be otherwise re-examined in any court of the United States than according to the rules of the common law; while many State Constitutions declare the people entitled to the common law of England.' 1 See Book III, § 76, and note 6. The equal right to law was established as early as the Charter of Liberties of Henry II, and extended not only to the barons but to all persons except actual slaves; for even the villeins had full law rights. Magna Carta recognizes the principle of equality in Caps. 39, and in 40,- "To none will we sell, to none will we deny right or justice," and in the preamble conceding these liberties also "To all free men of our kingdom," and expressly in Cap. 60, extending all the foregoing customs and liberties not only to the king's tenants, but they are to be observed by all others, both clergy and laity, and in Cap. 65 (omitted by Henry III) granting the aforesaid liberties to all men. "By 1485," says Hallam, "the principle that all officers, administrators, or soldiers are liable at the common law for their acts, that is, the prohibition of the continental Administrative Law, had been fully established "; while in 1566 Speaker Onslow tells Elizabeth herself that she is subject to the common law. So in the Massachusetts Body of Liberties, clause 2, the same justice and law is extended to every one, whether an inhabitant or a foreigner;1 and in the Declaration of Independence appears the famous statement that "All men are created equal,” thus extending the principle established under Henry II, six hundred years before, that they are only equal before the law. What is due process of law will be discussed later more particularly. It is particularly notable that the words of Magna Carta, "legal judgment of his peers or the law of the land," are, in the Statute of 28 Edward III replaced by the words "due process of the law," and the Petition of Right (Article 4) quotes the provision in the same words. It is probable that historically the words are synonymous; that is, "the law of the land" means by indictment and procedure at the common law, and "judgment of his peers" trial by jury, while "due process" includes both. There is still a feeling that the words "due process of law" will not justify prosecution by information or in any other manner than a common law indictment or trial except by jury.2 The Supreme Court of the United States has, however, held that "due process of law" does not necessarily include trial by jury or, in certain cases, any court trial. The principle is embodied in the Fifth Amendment nearly in the words of the Statute of Westminster, "No person shall be 1 See Book II, Constitutional Principles. 2 See the recent amendment to the Wisconsin Constitution, Book III, § 127, and § 130, note 10. 2 deprived of life, liberty, or property without due process of law,' and in the Fourteenth Amendment is required, in the same words, by the Federal Government of the States. It exists in this language in New York and in the newer States copying the Federal Constitution, but still stands in the words of Magna Carta in New England and the older States. Finally, the principle that this common law under due process must be afforded to every person in his home or in local courts is expressed in Magna Carta, Cap. 17 in the exact terms demanded by the barons (clause 8 of the barons' demands), that common pleas shall not follow the King's Court, but be assigned or held in some certain place; in Cap. 18, that recognitions shall only be held in the court of the county where the lands lie and that the king shall send two justices into each county four times a year to hold assizes where, if all matters cannot be tried on the day appointed, a sufficient number of knights and freeholders present at the assizes shall stay to decide them. It is further especially provided that the writ præcipe (Cap. 34) shall not in effect be issued so as to cause a freeman to lose his court; and this is also the exact words of the barons (clause 24), the object being to protect the local jurisdiction against the royal courts; and in Cap. 45, 'justices... shall only be appointed of such as know the law and mean duly to observe it," also taken literally from the barons' request; the meaning being to require local common law courts held by common law judges and allow no other jurisdiction. So in 1391 the law above quoted preserving the common law as against a Lord's courts; while by 1485 Hallam mentions as one of the six liberties now established the right to be tried by a jury of the county. In the Declaration of Independence the twenty-third clause complains of the king's "transporting us beyond seas to be tried for pretended offences" and the Virginia Bill of Rights (clause 8) provides for trial in the vicinage. The principle is preserved in the Federal Consitution, Art. 3, § 2, requiring all trials to be held in the State where the crime is committed; and so in most of the States. The same principles are true of civil cases. Cap. 40 of Magna Carta applies to civil as well as criminal matters, slightly expanding the demand of the Barons (clause 30) "that justice shall not be sold nor deferred nor forbidden"; and the clause is adopted in almost the same words in all the State Constitutions.1 66 1 See Chapter III, infra; Book III, § 130. 2 Printed in Stubbs' Charters. 3 See Book III, § 133. CHAPTER III THE RIGHT OF LIBERTY CIVIC liberty, as understood and enjoyed by the English people, has, like the right to law, important differences from the conception held in other countries. For the right to have one's person free of arrest, detention, or control applies as well to the government, the actions of officers of the courts of law, as to the trespass of any fellowcitizen; and the right of liberty in trade or industry involves the notion of protection from any monopoly or any privilege even if granted by the State, as well as from any combination of guilds or other workmen. Moreover, the right is guarded by the great institutions of trial by jury and habeas corpus; the former of which indeed has lately been copied in continental countries, but the latter, so far as I am informed, not even yet. There is on the Continent nothing corresponding to the constitutional right of any individual when arrested by an officer of government to demand instant information of the cause of his arrest and to be set at large unless indicted by a grand jury for a crime not bailable or for which the person accused is unable to give satisfactory bail. The right of personal liberty includes, therefore, the right to life, that is, the right not to be deprived of life except under a general law of the land previously made, the facts to be found by a jury (Magna Carta, Cap. 39); and the right to liberty of the person, that is, freedom of bodily restraint either by imprisonment, detention, or the being refused locomotion to any place desired, even to the extent of leaving the kingdom. In this country this right has been found by the Supreme Court to involve the constitutional right to move from one State to another free of tax or hindrance,' and this is expressly decided not to rest upon the Interstate Commerce clause, but upon the right to personal liberty of the American citizen. On the other hand it involves the right not to be banished even 1 Crandall v. Nevada, 6 Wall. 39. for crime, presumably, therefore, not to be banished even from a State of the Union.1 The right to personal liberty is guarded by the writ of habeas corpus, preceded by the writ de odio et atia referred to in Cap. 36 of Magna Carta: "Nothing shall be given or demanded of another for the writ of inquisition of life or limb, but it shall be given gratis and never denied." The right to be informed at once upon arrest of the nature and cause of the accusation is a different and independent constitutional right from that to a grand jury or the process of indictment; although many State Constitutions confound the two. The right to be informed of the nature and cause of the accusation 2 is instantaneous upon arrest, or at least arises as soon as the accused is brought before a magistrate. The requirement that the person accused or arrested can only be tried on a finding of a body of twentythree men, the grand jury, antedates the petit jury, going back to the time when the trial of facts was by ordeal. The English people persistently struggled for many years after the Conquest to have this the only method of accusation; the practice of beginning a criminal suit by information to the king or to a Crown officer, obviously Norman in origin, was obnoxious to the people; it cannot, however, be said that it was not finally established, though many of the American State Constitutions evidently contemplate that procedure by information is not "due process of law." Some of the western States, however, have shown a tendency to do away with the grand jury and use the process of information exclusively.3 There were twenty-five thousand slaves in England at the Domesday Book, probably the result of earlier conquest or punishment, possibly of voluntary sale; but they soon disappeared, either by exercising a trade (see Chapter V) or by acquiring land, just as under the Dawes Act the allotment of land in severalty makes an Indian a United States citizen. Villeins were not regarded as slaves under the law; and they also disappeared, largely as a consequence of the rebellions of Jack Cade and Wat Tyler, which successfully established their right to land in severalty and to be paid money wages. Subject to this exception the right to liberty was The word "Banishment" is used however, granted by a State governor in the sense of compulsory transpor- on condition that the offender leave tation beyond the limits of the British the State might possibly be upheld. Empire. In early days it was defined 2 See Book III, § 120, notes. to mean not beyond the four seas, 3 See Book III, § 127. Tangier and the Islands. A pardon, Taswell-Langmead, p. 18. |