Upon discussing a statute confirming Magna Charta (in the second part of his Institutes in 1628), Edward Coke wrote,
Saturday, July 9, 2011
Edward Coke on Confirmationes Chartarum
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.”
“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.”
Thursday, July 7, 2011
Nathaniel Chipman, on Blackstone, 1793
I consider Vermont's Nathaniel Chipman, who was active in law during the formative years of the federal legal system under the Constitution, to be one of the most perspicacious of the writers who I have found on the topics of Natural Law and principles of government. I think that this will eventually become clear to you, the readers, as I post more of his work at this site. The following was written by him, discussing William Blackstone's definition of a law:
“If laws command or prohibit that, which is absolutely indifferent to the state, they deviate from the true spirit and principles of legislation in a free government. They are arbitrary. They agree not with the definition, which is a good one, of ‘commanding what is right, and prohibiting what is wrong.’ If they go farther, and command the violation, or forbid the performance of any moral duty, they become tyrannically unjust. In the former instance, instead of feeling an obligation, we feel ourselves insulted; in the latter we are filled with the utmost abhorrence of the laws. When the laws coincide with the principles above laid down, when they fully agree with the above definition, they are strictly binding on the consciences of men. They ought not to allow themselves an alternative.”
Monday, July 4, 2011
The Six Statutes
I believe I now know all six of the Six Statutes, which were made to reinforce the protections of Magna Charta:
The Six Statutes
1331: 5 Edward III 9: “Item, it is enacted, that no man from henceforth shall be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seised into the King’s hands, against the form of the Great Charter, and the law of the land.”
1351: 25 Edward III 4 (of Statute V): “Item, whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is accorded, assented, and stablished, that from henceforth none shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; and if any thing be done against the same, it shall be redressed and holden for none.”
1354: 28 Edward III 3: “Item, that no man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.”
1362: 36 Edward III, Roll of Parliament no. 9, 22: “First, that the Great Charter, and the Charter of the Forest, and other Statutes made in his time, and the time of his progenitors, for the profit of him, and his commonalty, be well and firmly kept; and put in due execution, without putting disturbance, or making arrest contrary to them by special command, or in other manner.” / “Our lord the king, by the assent of the prelates, dukes, earls, barons, and the commonalty, hath ordained and established, that the said Charters and Statutes be held, and put in execution, according to the said petition.” … “Whereas it is contained in the Grand Charter and other Statutes, that no man be taken or imprisoned by special command without Indictment, or other due process to be made by the law, and oftentimes it hath been, and yet is, many are hindered, taken and imprisoned without Indictment, or other process made by the law upon them, as well of things done out of the Forest of the king, as for other things; that it would therefore please our said lord to command those to be delivered, which are so taken by special command against the form of the Charter and Statutes as aforesaid.” / “The king is pleased, that if any man find himself grieved, that he come and make his complaint, and right shall be done unto him.”
1363: 37 Edward III 18: “Although it be contained in the Great Charter, that no man be taken or imprisoned, or put out of his freehold, without due process of the law, nevertheless divers persons make false suggestions to the King himself, as well for malice as otherwise, whereof the King is often grieved, and divers of the realm put in great damages, contrary to the form of the same statute: Whereof it is ordained, that all they that make such suggestions be sent, with their suggestions, to the chancellor or treasurer, and they and ever of them find sureties to pursue their suggestions; and endure the same pain that the other should have had, in case that his suggestion be found untrue; and that then process of the law be made against them: without being taken or imprisoned, against the form of the same charter, and other statutes.”
1368: 42 Edward III 3: “Item, at the request of the commons by their petitions put forth in this Parliament, to eschew the mischiefs and damages done to divers of his commons by false accusers, which oftentimes have made their accusations more for revenge and singular benefit, than for the profit of the King, or of his people, which accused persons, some have been taken, and sometime caused to come before the King’s council by writ, and otherwise upon grievous pain against the law: It is assented and accorded, for the good governance of the commons, that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: And if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.”
The Six Statutes
1331: 5 Edward III 9: “Item, it is enacted, that no man from henceforth shall be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seised into the King’s hands, against the form of the Great Charter, and the law of the land.”
1351: 25 Edward III 4 (of Statute V): “Item, whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is accorded, assented, and stablished, that from henceforth none shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; and if any thing be done against the same, it shall be redressed and holden for none.”
1354: 28 Edward III 3: “Item, that no man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.”
1362: 36 Edward III, Roll of Parliament no. 9, 22: “First, that the Great Charter, and the Charter of the Forest, and other Statutes made in his time, and the time of his progenitors, for the profit of him, and his commonalty, be well and firmly kept; and put in due execution, without putting disturbance, or making arrest contrary to them by special command, or in other manner.” / “Our lord the king, by the assent of the prelates, dukes, earls, barons, and the commonalty, hath ordained and established, that the said Charters and Statutes be held, and put in execution, according to the said petition.” … “Whereas it is contained in the Grand Charter and other Statutes, that no man be taken or imprisoned by special command without Indictment, or other due process to be made by the law, and oftentimes it hath been, and yet is, many are hindered, taken and imprisoned without Indictment, or other process made by the law upon them, as well of things done out of the Forest of the king, as for other things; that it would therefore please our said lord to command those to be delivered, which are so taken by special command against the form of the Charter and Statutes as aforesaid.” / “The king is pleased, that if any man find himself grieved, that he come and make his complaint, and right shall be done unto him.”
1363: 37 Edward III 18: “Although it be contained in the Great Charter, that no man be taken or imprisoned, or put out of his freehold, without due process of the law, nevertheless divers persons make false suggestions to the King himself, as well for malice as otherwise, whereof the King is often grieved, and divers of the realm put in great damages, contrary to the form of the same statute: Whereof it is ordained, that all they that make such suggestions be sent, with their suggestions, to the chancellor or treasurer, and they and ever of them find sureties to pursue their suggestions; and endure the same pain that the other should have had, in case that his suggestion be found untrue; and that then process of the law be made against them: without being taken or imprisoned, against the form of the same charter, and other statutes.”
1368: 42 Edward III 3: “Item, at the request of the commons by their petitions put forth in this Parliament, to eschew the mischiefs and damages done to divers of his commons by false accusers, which oftentimes have made their accusations more for revenge and singular benefit, than for the profit of the King, or of his people, which accused persons, some have been taken, and sometime caused to come before the King’s council by writ, and otherwise upon grievous pain against the law: It is assented and accorded, for the good governance of the commons, that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: And if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.”
Sunday, July 3, 2011
Were the Founders Right?
If you have ever wondered whether the Founders correctly stated the rights of the English and principles of the English Constitution, which they had been trying to vindicate throughout the conflict leading up to the time of Independence, the answer is, "Yes, absolutely." Here is a little of the evidence of that, from the Parliamentary Debates of 1627 and 1628, when the English sought to vindicate the same thing for themselves, against King Charles I:
“Resolved upon the Question, Nemine contradicente.
“I. That no Freeman ought to be detained or kept in prison, or otherwise restrained by the command of the King or Privy-Council, or any other, unless some cause of the commitment, detainer or restraint be expressed, for which by Law he ought to be committed, detained, or restrained.
“II. That the Writ of Habeas Corpus may not be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained though it be by the command of the King, the Privy-Council, or any other, he praying the same.
“III. That if a Freeman be committed or detained in prison, or otherwise detained in prison, or otherwise restrained, by the command of the King, the Privy-Council, or any other, no cause of such Commitment, Detainer, or Restraint being expressed, for which by Law he ought to be committed, detained, or restrained, and the same be returned upon Habeas Corpus, granted for the said Party, then he ought to be delivered or bailed.”
“And then taking into consideration the Property of the Subject in his Goods, they came to this Resolution, to which there was not a Negative; viz. That it is the ancient and indubitable right of every Freeman, that he hath a full and absolute property in his Goods and Estate; that no Tax, Tallage, Loan, Benevolence, or any other like Charge ought to be commanded, or levied by the King, or any of his Ministers, without common consent by act of Parliament.”
Saturday, July 2, 2011
October 14, 1774
Our rights are not limited to those that are declared by the Bill of Rights or that were written into the main body of the Constitution. Up until the time of Independence (and after that point in time, more abstractly, in its principles) the Americans were fighting for the British Constitution and the rights and rules which formed it. Are these not also ours? If not, when did we surrender them? They are summarized in the previous post, and immediately below.
From the Declaration of Rights and Grievances, by the First Continental Congress:
"The good people people of the several Colonies of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceeding of parliament and administration, have severally elected, constituted, and appointed deputies to meet and sit in general congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties may not be subverted:
"Whereupon the deputies so appointed being now assembled, in a full and free representation of these Colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare,
"That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights:
From the Declaration of Rights and Grievances, by the First Continental Congress:
"The good people people of the several Colonies of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceeding of parliament and administration, have severally elected, constituted, and appointed deputies to meet and sit in general congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties may not be subverted:
"Whereupon the deputies so appointed being now assembled, in a full and free representation of these Colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare,
"That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights:
"Resolved, N. C. D. 1. That they are entitled to life, liberty, & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.
"Resolved, N. C. D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.
"Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
"Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent.
"Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
"Resolved, 6. That they are entituled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
"Resolved, N. C. D. 7. That those, his majesty's colonies, are likewise entitled to all the immunities and privileges granted & confirmed to them by royal charters, or secured by their several codes of provincial laws.
"Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.
"Resolved, N. C. D. 9. That the keeping a Standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.
"Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation."
October 19, 1765
From the colonial congress which assembled to address the Stamp Act:
"The members of this Congress, sincerely devoted, with the warmest sentiments of affection and duty to His Majesty's Person and Government, inviolably attached to the present happy establishment of the Protestant succession, and with minds deeply impressed by a sense of the present and impending misfortunes of the British colonies on this continent; having considered as maturely as time will permit the circumstances of the said colonies, esteem it our indispensable duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties of the colonists, and of the grievances under which they labour, by reason of several late Acts of Parliament.
"Lastly, That it is the indispensable duty of these colonies, to the best of sovereigns, to the mother country, and to themselves, to endeavour by a loyal and dutiful address to his Majesty, and humble applications to both Houses of Parliament, to procure the repeal of the Act for granting and applying certain stamp duties, of all clauses of any other Acts of Parliament, whereby the jurisdiction of the Admiralty is extended as aforesaid, and of the other late Acts for the restriction of American commerce."
- "That His Majesty's subjects in these colonies, owe the same allegiance to the Crown of Great-Britain, that is owing from his subjects born within the realm, and all due subordination to that august body the Parliament of Great Britain.
- "That His Majesty's liege subjects in these colonies, are entitled to all the inherent rights and liberties of his natural born subjects within the kingdom of Great-Britain.
- "That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.
- "That the people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great-Britain.
- "That the only representatives of the people of these colonies, are persons chosen therein by themselves, and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.
- "That all supplies to the Crown, being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British Constitution, for the people of Great-Britain to grant to His Majesty the property of the colonists.
- "That trial by jury is the inherent and invaluable right of every British subject in these colonies.
- "That the late Act of Parliament, entitled, An Act for granting and applying certain Stamp Duties, and other Duties, in the British colonies and plantations in America, etc., by imposing taxes on the inhabitants of these colonies, and the said Act, and several other Acts, by extending the jurisdiction of the courts of Admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.
- "That the duties imposed by several late Acts of Parliament, from the peculiar circumstances of these colonies, will be extremely burthensome and grievous; and from the scarcity of specie, the payment of them absolutely impracticable.
- "That as the profits of the trade of these colonies ultimately center in Great-Britain, to pay for the manufactures which they are obliged to take from thence, they eventually contribute very largely to all supplies granted there to the Crown.
- "That the restrictions imposed by several late Acts of Parliament, on the trade of these colonies, will render them unable to purchase the manufactures of Great-Britain.
- "That the increase, prosperity, and happiness of these colonies, depend on the full and free enjoyment of their rights and liberties, and an intercourse with Great-Britain mutually affectionate and advantageous.
- "That it is the right of the British subjects in these colonies, to petition the King, or either House of Parliament.
Friday, July 1, 2011
September 17, 1774
"Whereas the power but not the justice, the vengeance but not the wisdom of Great-Britain, which of old persecuted, scourged, and exiled our fugitive parents from their native shores, now pursues us, their guiltless children, with unrelenting severity: And whereas, this, then savage and uncultivated desert, was purchased by the toil and treasure, or acquired by the blood and valor of those our venerable progenitors; to us they bequeathed the dear-bought inheritance, to our care and protection they consigned it, and the most sacred obligations are upon us to transmit the glorious purchase, unfettered by power, unclogged with shackles, to our innocent and beloved offspring. On the fortitude, on the wisdom and on the exertions of this important day, is suspended the fate of this new world, and of unborn millions. If a boundless extent of continent, swarming with millions, will tamely submit to live, move and have their being at the arbitrary will of a licentious minister, they basely yield to voluntary slavery, and future generations shall load their memories with incessant execrations. -- On the other hand, if we arrest the hand which would ransack our pockets, if we disarm the parricide which points the dagger to our bosoms, if we nobly defeat that fatal edict which proclaims a power to frame laws for us in all cases whatsoever, thereby entailing the endless and numberless curses of slavery upon us, our heirs and their heirs forever; if we successfully resist that unparalleled usurpation of unconstitutional power, whereby our capital is robbed of the means of life; whereby the streets of Boston are thronged with military executioners; whereby our coasts are lined and harbours crouded with ships of war; whereby the charter of the colony, that sacred barrier against the encroachments of tyranny, is mutilated and, in effect, annihilated; whereby a murderous law is framed to shelter villains from the hands of justice; whereby the unalienable and inestimable inheritance, which we derived from nature, the constitution of Britain, and the privileges warranted to us in the charter of the province, is totally wrecked, annulled, and vacated, posterity will acknowledge that virtue which preserved them free and happy; and while we enjoy the rewards and blessings of the faithful, the torrent of panegyrists will roll our reputations to that latest period, when the streams of time shall be absorbed in the abyss of eternity. -- Therefore, we have resolved, and do resolve....
"2. That it is an indispensable duty which we owe to God, our country, ourselves and posterity, by all lawful ways and means in our power to maintain, defend and preserve those civil and religious rights and liberties, for which many of our fathers fought, bled and died, and to hand them down entire to future generations...."
"2. That it is an indispensable duty which we owe to God, our country, ourselves and posterity, by all lawful ways and means in our power to maintain, defend and preserve those civil and religious rights and liberties, for which many of our fathers fought, bled and died, and to hand them down entire to future generations...."
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