Saturday, July 9, 2011

Edward Coke on Due Process of Law, Part 1 of Many

It has been long and firmly established that "without the judgment of his peers or by the law of the land" and "due process of law" have exactly the same meaning (for nearly 400 years, anyway), the former having appeared in Magna Charta (chapter 39 in the original and chapter 29 in each subsequent version) and many of our state constitutions, and the latter having been written into the Fifth and Fourteenth Amendments to the United States Constitution. In the following, from 1628, the celebrated jurist Edward Coke discusses an aspect of the rights protected by such clauses:

De libertatibus. This word, libertates, liberties, hath these significations: 1. First, As it hath been said, it signifieth the Laws of the Realm, in which respect this Charter is called, Charta libertatum. 2. It signifieth the freedoms that the Subjects of England have; for example, the Company of the Merchant Tailors of England, having power by their Charter to make Ordinances, made an Ordinance, that every brother of the same Society should put the one half of his clothes to be dressed by some Clothsworker free of the same Company, upon pain to forfeit r s. & c. and it was adjudged that this Ordinance was against Law, because it was against the Liberty of the Subject, for every Subject hath freedom to put his clothes to be dressed by whom he will, & sic de similibus: And so it is, if such or the like grant had been made by his Letters Patents.”

“Liberties signifieth the franchises, and priviledges, which the Subjects have of the gift of the King, as the goods, and Chattels of felons, outlaws, and the like, or which the Subject claims by prescription, as wreck, waif, stray, and the like. So likewise, and for the same reason, if a grant be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that grant is against the liberty, and freedom of the Subject, that beore did, or lawfully might have used that trade, and consequently against this great Charter. Generally all monopolies are against this great Charter, because they are against the liberty and freedom of the Subject, and against the Law of the Land.”

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