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English Law
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▪ Criminal Law ▪ Courts Law
The system of law that has developed in England from ▪ Civil Law ▪ Computer Law
approximately 1066 to the present. ▪ Business Law ▪ legal system
▪ Common Law Law ▪ Indiana Law legal
The body of English law includes legislation, Common ▪ Commercial Law ▪ Judicial Review
Law, and a host of other legal norms established by UK
Parliament, the Crown, and the judiciary. It is the fountain ?My Word List
from which flowed nearly every facet of U.S. law during the
eighteenth and nineteenth centuries.
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Many of the concepts embodied in the U.S. Constitution—
such as the separation and delegation of powers between three
branches of government and the creation of an elective
national assembly representing the will of the people—trace
their roots to English law. Fundamental legal procedures
applied in the U.S. civil and criminal justice systems also
originated in England. The jury system, for example, slowly
matured into its modern form over several hundred years of
English history. The antecedents of many substantive areas of
U.S. law, including the ubiquitous system of state and federal
taxation, may be found in English history as well.

The story of English Constitutional Law prior to the American

Revolution, which is inextricably intertwined with the
development of English law as a whole during this period, can
be told in three parts: the centralization of power in the
monarchy, the creation of Parliament as a limitation on the
absolute power asserted by the monarchy, and the struggle for
supremacy between Parliament and the monarchy. In large
part, the American Revolution resulted from Parliament's
failure to check the monarchy's sovereignty and establish itself
as the supreme lawmaking body representing the people of
England and its colonies.

When William, duke of Normandy, also known as William the

Conqueror, vanquished England in 1066, there was no English
law as the Americans of 1776 came to know it. No national or
federal legal machinery had yet been contemplated. Law was a Advertisement (Bad banner? Please let us know)
loose collection of decentralized customs, traditions, and rules
followed by the Anglians and Saxons, among others. Criminal ?Charity
cases were indistinguishable from civil cases, and both secular
and spiritual disputes were resolved at the local level by
community courts. Trials in the modern sense did not exist, Feed a hungry child - donate to
nor did juries. Guilt and innocence were determined by school feeding program
compurgation and ordeal.

Compurgation was a ritualistic procedure in which accused

persons might clear themselves of an alleged wrongdoing by
taking a sworn oath denying the claim made against them, and
corroborating the denial by the sworn oaths of 12 other
persons, usually neighbors or relatives. If an accused person
failed to provide the requisite number of compurgators, he or
she lost. The number of compurgators was the same as the
number of jurors later impaneled to hear criminal cases under
the common law. In the United States, the Sixth
Amendment to the Constitution required that all criminal trials
be prosecuted before 12 jurors—until 1970, when the Supreme
Court ruled that six-person juries were permissible (Williams
v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446).

Trial by ordeal was a superstitious procedure administered by

clerics who subjected accused persons to physical torment in
hopes of uncovering divine signs of guilt or innocence. The
most common forms of ordeal involved boiling or freezing
waters and hot irons. In the ordeal of freezing water, accused
persons were thrown into a pool to see if they would sink or
float. If they sank, the cleric believed they were innocent,
because the water would presumably reject someone with an
impure soul. Of course, persons who sank to the bottom and
drowned during this ordeal were both exonerated of their
alleged misbehavior, and dead.

Battle was another form of primitive trial that was thought to

involve divine intervention on behalf of the righteous party.
The combatants were armed with long staffs and leather
shields, and fought savagely until one party cried, "Craven," or

Trial by battle, though in many ways as barbaric as trial by

ordeal, foreshadowed modern trials in several ways. The
combatants fought in an adversarial arena before robed judges
who presided over the battle. The accused person was required
to put on a defense, quite literally in the physical sense, against
an opponent who was trying to prove the veracity of his or her
claims. Some parties to a battle, particularly women, children,
and older individuals, were entitled to hire stronger, more able
champions to fight on their behalf. This last practice sheds
light on the more recent phrase hired guns, which is
sometimes used to describe U.S. trial attorneys.


Dr. Bonham's Case, 8 Co. Rep. 114 (Court of Common Pleas

[1610]), stands for the principle that legislation passed by the
English Parliament is sub-ordinate to the common-law
decisions made by trial and appellate court judges, and any
statute that is contrary to "common right and reason" must be
declared void (Thorne 1938).

The decision in this case, which was written by Sir Edward

Coke sitting as chief justice for the Court of Common Pleas in
England, spawned the concept of Judicial Review under which
courts of law, as the primary oracles of the Common Law in
the British and U.S. systems of justice, are authorized to
invalidate laws enacted by the executive and legislative
branches of government. The power of judicial review, which
was first recognized by the U.S. Supreme Court in MARBURY V.
MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, is invoked by
courts every day across the United States but has since been
rendered obsolete in England.

Bonham's Case arose from a dispute regarding the unlicensed

practice of medicine. Dr. Thomas Bonham had received a
degree in physic medicine from the University of Cambridge.
In 1606, Bonham was discovered practicing such medicine in
London without a license, and was summoned to appear before
the censors at the London College of Physicians, who
maintained jurisdiction in that city over the practice of

Bonham was examined by the college censors in a number of

areas regarding his professional practice, and provided
answers "less aptly and insufficiently in the art of physic"
(Stoner 1992, 49). As a result, Bonham was determined unfit
to practice medicine in this field, and was ordered to desist
from such practice in London. When Bonham was later
discovered flouting this order, he was arrested and placed in
the custody of the censors.

Bonham refused to undergo further examination. As a

graduate of Cambridge, he asserted that the London College of
Physicians had no jurisdiction over him and thus possessed no
authority to arrest or fine him. Promising to continue his
practice of physic medicine if released, Bonham was
immediately jailed.

The case came before the Court of Common Pleas when

Bonham claimed that his continued detention by the college
amounted to False Imprisonment. As a defense, the college
relied on its statute of incorporation, which authorized it to
regulate all physicians in London and to punish practitioners
not licensed by the college. The statute also entitled the
college to one-half of all the fines imposed by it.
The Honorable Justice Coke, also a Cambridge graduate, sided
with his fellow alumnus. After singing the praises of their
alma mater, Coke argued that because the college censors were
entitled to receive a portion of the fine they imposed on
Bonham, the statute made them prosecutor, plaintiff, and judge
in the dispute: "The censors cannot be judges, ministers and
parties; judges … give sentence or judgment; ministers …
make summons; and parties … have moiety [half] of
the Forfeiture, because no person may be a judge in his own
cause … and one cannot be judge and attorney for any of the
parties." Coke suggested that the impartiality of a judge is
compromised when the judge is also the plaintiff who will
benefit financially from any fines imposed on the defendant, or
the prosecutor who is the advocate responsible for seeking
such fines. Although the parliamentary statute in question
clearly contemplated that London College would wear all three
of these hats, Coke observed,

[I]t appears in our books, that in many cases, the common law
will controul Acts of Parliament, and sometimes adjudge them
to be utterly void: for when an Act of Parliament is against
common right and reason, or repugnant, or impossible to be
performed, the common law will controul it, and adjudge such
Act to be void.

Coke placed the judiciary in the middle of what was becoming

a titanic struggle for power between Parliament and the ruler
of England. Until the seventeenth century, the English
monarchy enjoyed nearly absolute power over all political and
legal matters that concerned the country as a whole. Despite
the growing popularity and importance of Parliament during
the fifteenth and sixteenth centuries, the monarchy's autocratic
power, which King James I (1603–25) asserted was divine in
origin, included the prerogative to enact laws without
parliamentary consent.

By the close of the seventeenth century, however, the

pendulum of power had swung in favor of Parliament. The
Glorious Revolution of 1688 subordinated the power of the
English Crown and judiciary to parliamentary sovereignty. In
1765, English jurist Sir William Blackstone described "the
power of Parliament" to make laws in England as "absolute,"
"despotic," and "without control."

The American Revolution, which began eleven years after

Blackstone's pronouncement of Parliament's unfettered power,
was commenced in response to the coercive legislation passed
in the colonies by what had become a despotic
Parliament. Thomas Jefferson, James Madison, and their
contemporaries believed that a legislative despot was no better
than a monarchical despot. In 1787, the U.S. Constitution
established the judiciary as a check on the legislative and
executive branches of government, a check that was
foreshadowed by Coke's opinion in Bonham's Case.

James I was cognizant of the dangers Bonham's

Case presented to his claims of divine royal prerogative. The
king understood that the "common law," which Bonham's
Case said controlled acts of Parliament, was really just a
decision made by a court of law, or, more particularly, by a
judge or panel of judges. James also understood that if the
judiciary were allowed to assert the power to review acts of
Parliament, it was only a short step away from passing
judgment on actions taken by the Crown.

Accordingly, King James removed Coke from the Court of

Common Pleas in 1613, appointing him chief justice of the
King's Bench. This constituted a promotion in name only,
since Coke was now under closer scrutiny by the Crown.

Much to the Crown's chagrin, Coke's replacement on the Court

of Common Pleas, Sir Henry Hobart, expanded the concept of
judicial review intimated by Bonham's Case. In Day v.
Savadge, Hob. 84 (K.B. 1614), Hobart declared that "an act of
parliament made against natural Equity, as to make a man
judge in his own cause, is void in itself" (as quoted
in American General Insurance Co. v. FTC, 589 F.2d 462 [9th
Cir. 1979]). Where did the new chief justice derive the court's
power to invalidate the laws of Parliament? Hobart said, "[B]y
that liberty and authority that judges have over laws, especially
… statute laws, according to reason and best convenience, to
mould them to the truest and best use" (Sheffield v. Ratcliff,
Hob. (K.B. 1615), as quoted in Plucknett 1926, 50).

Exasperated by such further attempts to limit his prerogative,

James I dismissed Coke from the King's Bench, and ordered
him to "correct" his decision in Bonham's Case, which had
subsequently been published in England's case law reporter
known as The Reports. Coke refused to accede to the king's

The importance of Coke's opinion in Bonham's Case is

sometimes downplayed by some scholars who point to
England's later recognition of Parliament as the country's
supreme sovereign entity. However, this criticism overlooks
the indelible imprint left by Bonham's Case on U.S. law.

The American colonists were intimately familiar with the

writings of Lord Coke. Coke's Reports first came to America
on the Mayflower, and the Massachusetts General Court
ordered two complete sets from England in 1647. Coke's
opinion in Bonham's Case was among his most popular

In Paxton's Case of the Writ of Assistance, Quincy 51 (Mass.

1761), colonist James Otis challenged Massachusetts's
authority to issue writs of assistance, general search warrants
that empowered local sheriffs to enter private homes and
businesses to seize smuggled goods. Otis told the colonial
court that he objected to such writs, which were created by a
parliamentary act in 1662, because they violated the principle
of Bonham's Case: "As to acts of parliament, an act against the
Constitution is void. An act against natural equity is void; and
if an act of parliament should be made in the very words of
this petition, it would be void. The Executive Courts must pass
such acts into disuse."

John Adams, who was in the Boston courtroom where Otis

made his argument for the colonial application of Bonham's
Case, later exclaimed, "Then and there the child Independence
was born." Adams might also have exclaimed that the seeds of
judicial review had been planted in the American colonies by
Otis, who was unequivocally assigning to "Executive Courts"
the responsibility of invalidating parliamentary legislation that
violated constitutional precepts.

Four years later, the colonies again relied on the principle

of Bonham's Case, this time in their opposition to the Stamp
Act, a parliamentary statute that taxed everything from
newspapers to playing cards. Thomas Hutchinson, lieutenant
governor of Massachusetts, encouraged the "friends of liberty"
and opponents of the Stamp Act to "take advantage of
the Maxim they find in Lord Coke that an act of parliament
against Magna Carta or the peculiar rights of Englishmen
is ipso facto void."

In 1786, the Superior Court of Rhode Island relied

on Bonham's Case to strike down a statute that denied the right
to trial by jury for certain crimes, because "Lord Coke" held
that such statutes were "repugnant and impossible" (Trevett v.
Weeden [Newport Super. Ct. Judicature], as quoted in
Plucknett 1926, 66).

The U.S. acceptance of the legal principles enunciated

in Bonham's Case culminated in 1803 when the U.S. Supreme
Court handed down its decision in Marbury, which established
the power of judicial review by authorizing federal judges to
invalidate unconstitutional laws enacted by the coordinate
branches of government. Nowhere in Marbury does the
Supreme Court cite Bonham's Case or expressly quote Lord
Coke. But the influence of both Coke and his opinion cannot
be missed.

Chief Justice John Marshall, writing for a unanimous Court,

began his opinion in Marbury with two premises: the
"constitution controls any legislative act repugnant to it," and
"an act of the legislature repugnant to the constitution is void."
Congress cannot be entrusted to determine the constitutionality
of legislation passed by the House and Senate, Marshall
implied, for the same reason the London College censors could
not be allowed to judge their own cause.

"To what purpose are the powers [of Congress] limited" by the
federal Constitution, Marshall asked, "if these limits may, at
any time, be passed by those intended to be restrained?" In a
passage that harkens back to Chief Justice Hobart's opinion
in Sheffield v. Ratcliff, Marshall concluded that only the
judicial branch of government can be entrusted with such an
overreaching power: "It is emphatically the duty of the judicial
department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret the
rule. If two laws conflict with each other, the court must
decide on the operation of each."

Although Chief Justice Marshall's opinion

in Marbury extended to the United States the principles of
judicial review first intimated in Bonham's Case, judges,
lawyers, and laypersons still debate the legitimacy of allowing
unelected (appointed) judges to invalidate legislation enacted
by representative institutions in a democratic country.

Further readings

Edwards, R.A. 1996. "Bonham's Case: The Ghost in the

Constitutional Machine." Denning Law Journal(annual): 63–

William the Conqueror understood the importance of revenue,

and that is where he began building the English empire. In
1086, William initiated the Domesday Survey, which sought to
determine the amount and value of property held in England,
for the purpose of assessing taxes against the owners. The
Domesday Survey was conducted by eight panels of royal
commissioners who traveled to every county in the country,
where they collected information through sworn inquests.
Although the survey began as a method of recording real
property held in the kingdom, one contemporary Saxon
chronicler moaned "that there was not a single hide … nor …
ox, cow or swine" omitted (Trevelyan 1982). The Court of
Exchequer served as auditor, accountant, and tax collector for
William, and provided a venue to settle disputes between the
Crown and taxpayers, becoming the earliest DEPARTMENT OF

William's system for revenue collection began a process that

gradually replaced the community courts of justice with a legal
system that emanated from a central location, the king's castle
in Westminster. One symbol of powerful centralized
government in the United States is the Internal Revenue
Service. For many U.S. citizens, paying taxes is a necessary
evil. Taxes are necessary to keep the government, and its
justice system, afloat. At the same time, they take away
individuals' money.

HENRY II (1154–89) further strengthened the central government

by enlarging the power and jurisdiction of the royal system of
justice. During his reign, any crime that breached the ruler's
peace was tried before a royal court sitting in Westminster, or
by royal itinerant justices who traveled to localities throughout
England to hear disputes. Heretofore, the royal court heard
only cases that directly threatened the monarch's physical or
economic interests. Most other complaints, except for those
heard by the Catholic Church, were leveled by private
individuals, who were also responsible for proving their
accusations. By increasing the sphere of what the government
considered public wrongs, Henry II laid the groundwork for
the modern U.S. criminal justice system, where attorneys for
the federal, state, and local governments are invested with the
authority to prosecute persons accused of criminal

Henry II also laid the groundwork for the common-law

method of deciding cases, whereby judges make decisions in
accordance with other decisions they have rendered in similar
matters. The royal system of justice was governed by a single
set of legal rules and principles, which was applied
evenhandedly to litigants presenting claims to the monarch's
justices. This system superseded one that applied the often
inconsistent customary laws of neighboring communities of
different ethnic backgrounds. Because the monarch's law was
applied in a uniform manner, it became "common" to every
shire in the land. This "common-law" system of adjudication
was adopted by the American colonies and continues to be
applied in nearly all of the 50 states of the Union.

In addition to becoming more prevalent, the royal system of

justice was becoming more popular. Its popularity stemmed
from the rational legal procedures and reliable modes of
evidence developed by the King's Court, which slowly
supplanted their superstitious, ritualistic, and dangerous
predecessors, compurgation, ordeal, and battle. One new
rational procedure was trial by jury, which Henry II made
available in land disputes between laypersons and the clergy.
The juries comprised 12 sworn men who possessed some
knowledge of the property dispute, and were asked to
announce a verdict to the royal justices based on this
knowledge. The trial-by-jury system employed by Henry II,
though only an embryonic form, reflected society's growing
understanding that verdicts based on personal knowledge of a
dispute were more reliable than verdicts based on ordeals of
freezing water and contests of brawn and agility.

Henry II also made the law more impersonal and less

vindictive. In 1166, the Assize of Clarendon prohibited the
prosecution of anyone who had not first been accused by a
"presenting jury" of 12 to 16 men from the community in
which the crime occurred. The presenting jury fore-shadowed
the modernGrand Jury as an accusatory body that identified
persons for prosecution but made no determination as to guilt
or innocence. The presenting jury was seen as a more neutral
and detached alternative to the system it replaced, which
required the alleged victims, some of whom were waging a
personal vendetta against the accused person, to identify
alleged criminals for prosecution.

The writ de odio et atia provided additional safeguards for

defendants wrongfully accused of criminal activity, by
permitting the defendant to appeal legal issues to the King's
Court in cases where the complainant was proceeding out of
spite or hatred. This writ of appeal was an early precursor to
the modern appellate system in the United States, which
similarly permits parties to appeal legal issues they believe did
not receive appropriate consideration at the trial level.

The presenting jury and writ of appeal underpin two beliefs

that have been crucial to the development of the English and
U.S. systems of justice. The first is the belief that a wrongfully
accused person is no less a victim than is the target of civil or
criminal malfeasance. The second is the belief that the legal
system must provide an impartial forum for seeking the truth
in disputed legal claims. These two beliefs paved the way for
an assortment of procedural and evidentiary protections that
have evolved to protect innocent persons from being unjustly
convicted in criminal cases, and to keep prejudices from
biasing judges and jurors in civil cases.

However, the English monarchy did not centralize its power

without cost. Frequently, English rulers abused their enlarged
power to such an extent that they met with popular resistance.
One of the earliest such confrontations occurred in 1215, and
produced the first great charter of constitutional liberties,
theMagna Charta. The Magna Charta can best be understood
as a peace treaty between three rival jurisdictions of political
and legal power: the Crown, the church, and the barons.

In the thirteenth century, the king's system of justice competed

for influence with ecclesiastical and manorial courts. The
ecclesiastical courts were run by the Catholic Church, with the
pope presiding as the spiritual head in Rome. Manorial courts
were run by barons, who were powerful men holding large
parcels of land from the king, known as manors. Each baron,
as lord of his manor, retained jurisdiction over most legal
matters arising among his tenants, also called vassals, who
agreed to work on the land in exchange for shelter and
security. The jurisdictions of the Crown, the church, and the
barons overlapped and each depended on the others for

The tyranny of King John (1199–1216) alienated the church

and the barons, converting them into adversaries of the Crown.
John was excommunicated by the pope, church services and
sacraments were suspended in England, and the barons
renounced homage to the Crown.

Spearheaded by Stephen Langton, archbishop of Canterbury,

the barons confronted King John on the battlefield at
Runnymede, where they won recognition for certain
fundamental liberties contained in the 63 clauses that make up
the Magna Charta.

The Magna Charta granted the church freedom from royal

interference except in a limited number of circumstances,
establishing in nascent form the separation of church and state.
The Great Charter required that all fines bear some
relationship to the seriousness of the offense for which they
were imposed, establishing the principle of proportionality
between punishment and crime, which the U.S. Supreme Court
still applies under the Cruel and Unusual Punishment Clause
of the Eighth Amendmentto the U.S. Constitution.

Most important the Magna Charta prohibited any "free man"

from being "imprisoned, or disseised, … or exiled, … except
by the lawful judgment of his peers, or by the law of the land"
(ch. 39). The phrase "law of the land" was later equated with
"due process" in the American colonies and received
constitutional recognition in the Fifth and Fourteenth
Amendments to the U.S. Constitution. The Supreme Court has
described DUE PROCESS as the "most comprehensive of liberties"
guaranteed in the Constitution (ROCHIN V. CALIFORNIA, 342 U.S.
165, 72 S. Ct. 205, 96 L. Ed. 183 [1952]), and has relied on
the DUE PROCESS CLAUSEof the Fourteenth Amendment to make
most of the freedoms contained in the Bill of Rights applicable
to the states.

Fifty years after Magna Charta, Parliament was created to

serve as an additional check on the Arbitrarypower of the
monarchy. In 1265, Parliament was a very small body,
consisting of two knights from each shire, two citizens from
each city, and two burgesses from each borough. By the
fourteenth century, Parliament was being summoned to advise
the monarch, vote on financial matters, and supervise the
excesses of local officials. Representatives for the barons, later
known collectively as the House of Lords, wielded more
power than did representatives for the commoners, later
known collectively as the House of Commons, who were
summoned merely to assent to royal will.

It was not long, however, before the Commons realized that its
approval carried a measure of authority. In 1309, the
Commons granted a subsidy to King Edward II (1307–27) on
condition that he redress its grievances. During the reign of
Edward III (1327–77), Parliament asserted three claims that
would be echoed with minor variation in the American
colonies: taxes assessed without approval from both houses of
Parliament were void, legislation passed by only one house of
Parliament lacked legal effect, and the Commons reserved the
right to investigate and remedy any abuses by the royal
administration. A century later, during the reign of Henry VIII
(1509–47), the Commons asserted the power of the purse,
arguing that all money bills must originate in its house.

These claims, although fairly innocuous when originally

asserted by the Commons, were interpreted by subsequent
Parliaments to mean that no one could rule without the consent
of Parliament, and royal officials who abused their power,
including the ruler, could be impeached and removed from
office. When the English civil war known as the War of the
Roses (1455–85) substantially depleted the ranks of the
barons, the voice of the Commons grew louder as the
representatives of the commoners were left to fend almost for
themselves against a monarchical power that, culminating in
the reign of James I (1603–25), claimed to be divine in origin
and absolute in nature.

The struggles between Parliament and the crown for authority

over England in the seventeenth century were a prelude to the
struggles between Parliament and the colonists for control over
the American colonies in the eighteenth century. The
monarchy maintained that its power to govern England derived
directly from God and thus overrode any earthly power,
including that of Parliament and common law. Parliament, on
the other hand, maintained that "the people, under God, were
the source of all just power, and that Parliament represented
the people."

Parliament and the monarchy waged battle on three fronts:

military, political, and legal. The military struggle for power
began in 1642 when England again erupted into civil war. The
political battles constituted a series of muscle-flexing exercises
conducted by Parliament and the monarchy. The Commons
impeached several of the king's top advisers and demanded
redress of the grievances it summarized in the 1628 Petition of
Right. The monarchy, in turn, dismissed Parliament on a
number of occasions, and attempted to govern without
requesting revenue from the Commons.

These political struggles came to a crescendo when King

Charles I (1625–49) and Thomas Wentworth, the commander
of the king's largest army, were tried, convicted, and executed
for subverting Parliament and the Rule of Law. The indictment
against the king reads much like the Declaration of

Whereas it is notorious, That Charles Stuart, the now king of

England, not content with those many encroachments which
his predecessors had made upon the people in their rights and
freedoms, hath had a wicked design totally to subvert the
ancient and fundamental laws and liberties of this nation, and
in their place to introduce an arbitrary and tyrannical
government; and that besides all other evil ways and means to
bring this design to pass, he hath prosecuted with fire and
sword, levied and maintained a cruel war in the land against
the parliament and kingdom, whereby the country hath been
miserably wasted, the public treasure exhausted, trade
decayed, thousands of people murdered, and infinite other
mischiefs committed. During the sentencing phase of the trial,
the president of the High Court of Justice instructed the king,
in language that resonates through the U.S. Constitution,
"[T]he Law is your Superior," and the only thing superior to
the law is the "Parent or Author of Law, [which] is the people
of England."

In 1689, Parliament achieved victory in its constitutional

struggle with the monarchy when William and Mary (1689–
1702) agreed to govern England as king and queen subject to a
bill of rights. This English Bill of Rights, a forerunner to the
U.S. Bill of Rights, which was submitted to Congress exactly
one hundred years later, declares that the monarchy's
"pretended power of suspending of laws or the execution of
laws by regal authority without consent of Parliament is
illegal." It also guarantees the right of each English subject to
"petition the king" for redress of grievances, and
acknowledges Parliament's role in "amending, strengthening,
and preserving … the laws" of the country.

Although the English Bill of Rights ended England's

seventeenth-century constitutional struggle between
Parliament and the monarchy, America's eighteenth-century
constitutional struggle with these two branches of government
had not yet begun. By 1765, the pendulum of power had
swung fully toward Parliament, prompting eminent English
jurist Sir William Blackstone to write that "[s]o long as the
English constitution lasts … the power of Parliament" is
"absolute," "despotic," and "without control." Because
England had no written constitution that constrained the
legislative power of Parliament, "every act of Parliament was
in a sense part of the [English] constitution, and all law … was
thus constitutional."

The American colonists soon discovered that a legislative

despot was just as tyrannical as a monarchical despot. The
U.S. Constitution put an end to the notion of absolute power
resting with any one sovereign, by separating the powers of
government into three branches—executive, legislative, and
judicial—and carefully delegating the powers of each.
Although these safeguards against government-run-amok were
the product of the violent American Revolution, they allowed
for the tranquil and uneventful Integration of many ordinary
English legal principles into the U.S. system of justice,
including early Bankruptcy andWelfare laws during the
nineteenth century.

Further readings

Bailyn, Bernard. 1992. Ideological Origins of the American

Revolution. Enl. ed. Boston: Harvard Univ. Press.

Blackstone, William. 1765. Commentaries on the Laws of

England. Reprint, Chicago: Univ. of Chicago Press, 1979.

Christenson, Ron. 1991. Political Trials in History: From

Antiquity to the Present. New Brunswick, N.J.: Transaction.

——. 1986. Political Trials: Gordian Knots in the Law. New

Brunswick, N.J.: Transaction.

Landsman, Stephen. 1983. "A Brief Survey of the

Development of the Adversary System." Ohio State Law
Journal 44.

Levy, Leonard. 1986. Origins of the Fifth Amendment New

York: Macmillan.

Palmer, Robert C. 2002. Selling the Church: The English

Parish in Law, Commerce, and Religion. Chapel Hill: Univ. of
North Carolina Press.

Plucknett, Theodore F.T. 1956. A Concise History of the

Common Law. Boston: Little, Brown.

——. 1926. "Bonham's Case and Judicial Review." Harvard

Law Review 40.

Slapper, Gary, and David Kelly. 2000. English Law. London:


Smith, George P., II. 1966. "Dr. Bonham's Case and the
Modern Significance of Lord Coke's Influence."Washington
Law Review 41.

Stoner, James R., Jr. 1992. Common Law and Liberal Theory:
Coke, Hobbes, and the Origins of American
Constitutionalism. Univ. Press of Kansas.

Thorne, Samuel. 1938. "Dr. Bonham's Case." Law Quarterly

Review 54.

Trevelyan, G.M. 1982. A Shortened History of England. New

York: Penguin Books.

Wood, Gordon S. 1969. The Creation of the American

Republic. New York: Norton.

Wormald, Patrick. 1999. The Making of English Law. Malden,

Mass.: Blackwell.

Becket, Saint Thomas; Clarendon, Constitutions of; Domesday
Book. "Magna Charta" (Appendix, Primary Document).

• Magna Charta
• English Bill of Rights
• Second Treatise on Government

The development of U.S. law is rooted in English political and

legal history. The colonial settlers of North America were
primarily from England, and until the 1760s they viewed
themselves as English rather than "American." They brought
with them the English Common Law and the English
constitutional tradition.

Unlike the United States, England has never had a written

constitution. Instead, the English constitutional tradition is
based on the substance and procedures of the common law,
along with key documents, such as Magna Charta and the
English Bill of Rights. In the seventeenth and eighteenth
centuries, political philosophers, especially John Locke,
challenged the absolute authority of the monarchy and
introduced the democratic idea that the people have a right to a
government that meets their needs. These documents and ideas
assumed great importance as the American colonists moved
toward independence in the 1770s. In this sense English ideas
paved the way for the American Revolution and the writing of
the U.S. Constitution.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale

Group, Inc. All rights reserved.

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The ancient law of England based upon societal customs and recognized and enforced by the judgments
and decrees of the courts. The general body of statutes and case law that governed England and the
American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the
government and protection of persons and property that derive their authority from the community customs
and traditions that evolved over the centuries as interpreted by judicial tribunals.

A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.

The common-law system prevails in England, the United States, and other countries colonized by England. It
is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and
Spain. The common-law system is used in all the states of the United States except Louisiana, where
French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is
also used in Canada, except in the Province of Quebec, where the French civil-law system prevails.

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the
king's courts represented the common custom of the people. It evolved chiefly from three English Crown
courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas.
These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts,
such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific
geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases
where common-law relief was unavailable, also merged with common-law courts. This consolidation of
jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American
judicial system.
Early common-law procedure was governed by a complex system of Pleading, under which only the offenses
specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of
a writ before they were allowed access to a common-law court. This system was replaced in England and in
the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code
Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the
dispute by the parties and leaves the determination of issues to the court.

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative
enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the
law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on
abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their
decisions in law reports, which contain decisions of past controversies. Under the doctrine ofStare Decisis,
common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are
substantially the same. A court's decision is binding authority for similar cases decided by the same court or
by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that
jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and
discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a CASE
OF FIRST IMPRESSION (previously undetermined legal issue). The common-law system allows judges to look to
other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a
decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At
the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal

Under a common-law system, disputes are settled through an adversarial exchange of arguments and
evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or
jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one
of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts
in a common-law system may review only findings of law, not determinations of fact.

Under common law, all citizens, including the highest-ranking officials of the government, are subject to the
same set of laws, and the exercise of government power is limited by those laws. The judiciary may review
legislation, but only to determine whether it conforms to constitutional requirements.

Further readings

Cantor, Norman F. 1997. Imagining the Law: Common Law and the Foundations of the American Legal
System. New York: HarperCollins.

Kellogg, Frederic R. 2003. "Holmes, Common Law Theory, and Judicial Restraint." John Marshall Law
Review 36 (winter): 457–505.

Pound, Roscoe. 1999. The Spirit of the Common Law. New Brunswick, N.J.: Transaction.

Strauss, David A. 2003. "Common Law, Common Ground, and Jefferson's Principle." Yale Law Journal112
(May): 1717–55.


Adversary System; English Law.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

common law n. the traditional unwritten law of England, based on custom and usage which developed
over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of
the Common Law was reportedly written by a woman, Queen Martia, wife of a Briton king of a small English
kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work
was translated into the emerging English language by King Alfred (849-899 A.D.). When William the
Conqueror arrived in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in
the English Common Law, much of which was by custom and precedent rather than by written code. By the
14th Century legal decisions and commentaries on the common law began providing precedents for the
courts and lawyers to follow. It did not include the so-called law of equity (chancery) which came from the
royal power to order or prohibit specific acts. The common law became the basic law of most states due to
the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became
every American lawyer's bible. Today almost all common law has been enacted into statutes with modern
variations by all the states except Louisiana which is still influenced by the Napoleonic Code. In some states
the principles of common law are so basic they are applied without reference to statute.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

The written text of the state and federal constitutions. The body of judicial precedent that has gradually
developed through a process in which courts interpret, apply, and explain the meaning of particular
constitutional provisions and principles during a legal proceeding. Executive, legislative, and judicial actions
that conform with the norms prescribed by a constitutional provision.

The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in which the duties
and prerogatives of the executive, legislative, and judicial branches are delineated by express constitutional
provisions; a Separation of Powers, in which the responsibilities of government are divided and shared
among the coordinate branches; a reservation of power, in which the sovereignty of the federal government
is qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the
prerogatives of the three branches of government are restricted by constitutionally enumerated individual
rights, Unenumerated Rights derived from sources outside the text of the Constitution, and other constraints
inherent in a democratic system where the ultimate source of authority for government action is the consent
of the people.

In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a
court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the
doctrine of Stare Decisis, the judicial branch is required to adhere to existing precedent in all future cases
presenting analogous factual and legal circumstances, unless it has a compelling reason for deviating from
the precedent or overruling it.

A state or federal law is said to be constitutional when it is consistent with the text of a constitutional
provision and any relevant judicial interpretations. A law that is inconsistent with either the written text or
judicial interpretation of a constitutional provision is unconstitutional.

The Constitution

The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been built.
By establishing a structure for the federal government and preserving certain areas of sovereignty for the
states, the Constitution has created a system of government that has allowed every area of civil, criminal,
and ADMINISTRATIVE LAW to evolve with the needs of society. The federal Constitution became binding on the
U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state to vote for

The federal Constitution comprises seven articles and 26 amendments. Articles I, II, and III set forth the
basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets forth
the presidential executive powers, and Article III establishes federal judicial powers. The first ten
amendments to the U.S. Constitution, known as the Bill of Rights, enumerate certain individual liberties that
must be protected against government infringement. The rest of the Constitution contains miscellaneous
other provisions, many of which are intended to maintain a federalist system of government in which the
federal Constitution is the supreme law of the land and the federal government shares sovereignty with the

Article I: The Lawmaking Power Article I of the Constitution allocates the lawmaking power to Congress.
Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and a House of Representatives." Article I also requires that
candidates running for the House of Representatives be elected directly by the residents of each state.
Originally, Article I endowed the state legislatures with the power to choose members of the Senate.
However, the Seventeenth Amendment now requires all senators to be elected directly by the people of their
home state.

Section 8 enumerates specific lawmaking powers that Congress may exercise. These include the power to
declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and coin
money; establish and collect taxes; pay debts; establish uniform laws for immigration, naturalization,
and Bankruptcy; and provide for the common defense and General Welfare of the United States. Both the
Senate and the House must approve all bills before they are submitted to the president. If the president
vetoes a bill, Section 7 authorizes Congress to override the Veto by a two-thirds vote in both houses.
Because Congress is a public body, this article requires the House and Senate to record and publish its
proceedings, including the votes made by any of its members.

Section 8 also grants Congress the power to pass all laws that are "necessary and proper" to the
performance of its legislative function. In MCCULLOCH V. MARYLAND, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819),
the Supreme Court broadly interpreted the Necessary and Proper Clause to grant Congress the implied
powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and fiscal
responsibilities. Thomas Jefferson had earlier argued that the Necessary and Proper Clause authorized
Congress only to enact measures that are indispensable to the implementation of the enumerated powers.

Congress frequently relies on its authority to regulate commerce as a justification for the legislation it enacts.
Section 8 gives Congress the "power to regulate commerce among the several states." InGIBBONS V. OGDEN, 22
U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme Court ruled that congressional power to regulate
commerce is plenary (complete in itself) and extends to all interstate commerce (commercial activity that
concerns more than one state). The Court said that intrastate commerce (commercial activity that is
conducted exclusively within one state) is beyond the reach of this congressional power.

Congressional commerce power reached its zenith in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L.
Ed. 122 (1942), where the Supreme Court ruled that Congress has authority to regulate a family farm that
produces and consumes its own wheat. The Court said that "even if [a farm's] activity be local, and though it
may not be regarded as commerce, it may still … be reached by Congress, if it exerts a substantial economic
effect on interstate commerce … irrespective of whether such effect [is] direct or indirect."

This seemingly unfettered power was later limited, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624,
131 L. Ed. 2d 626 (1995), where the Supreme Court ruled that mere possession of a gun at or near a school
does not substantially affect interstate commerce and may not be regulated at the federal level. Although the
interstate commerce power has been given an expansive reading in modern times, the Court said in Lopez,
the scope of congressional authority in this area

must be considered in light of our dual system of [state and federal] government and may not be extended so
as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our
complex society, would effectually obliterate the distinction between what is national and what is local and
create a completely centralized government.

Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to take
certain action. Section 9, for example, prohibits Congress from passing bills of attainder and Ex Post Facto
Laws. (A bill of attainder is a legislative act that imposes punishment on a party without the benefit of a
judicial proceeding. An ex post facto law makes criminal or punishes conduct that was not illegal at the time it
occurred.) Section 9 further prohibits Congress from suspending Habeas Corpus (a citizen's right to
protection against illegal imprisonment) except as may be necessary to preserve national security in time of
rebellion or invasion. Although the Constitution delegated this power to Congress, President Abraham
Lincoln suspended habeas corpus during the Civil War without congressional assent. Article I also restricts
the power of state legislatures, such as the power to make treaties, alliances, and confederations, are also
prohibited by Article I.

Article II: The Executive Power Congressional power is not absolute. The Framers of the Constitution were
familiar with the abuses of absolute power. In the century preceding the American Revolution, Parliament
acquired unlimited sovereignty. This arrangement replaced an earlier system of government in which the
English monarchy ruled with a tyrannical scepter. In the United States, the Framers sought to create a
system of checks and balances in which the executive and legislative branches would share power with each
other and with the judiciary. In this light, many of the powers delegated to the president must be viewed in
conjunction with the powers delegated to the coordinate branches of government.

Article II provides that "[t]he executive Power shall be vested in a President of the United States … [who]
shall hold … Office during the Term of four Years … together with the Vice President." The Electoral College,
which provides the method by which the president and vice president are elected, derives its constitutional
authority from Article II as well as from the Twelfth and Twenty-third Amendments. TheTwenty-Second
Amendment limits the president to two terms in office, and the Twentieth and Twenty-fifth Amendments set
forth the order of succession for presidents who are unable to begin their term or continue in office.

Article II, Section 2, makes the president the commander in chief of the armed forces. Yet only Congress has
the power to declare war. Between these two powers lies a gray area in which presidents have exercised the
prerogative to commit U.S. troops to foreign military excursions without congressional approval. The U.S.
involvement in the Vietnam War resulted from one such exercise of power. In response to these executive
maneuvers, Congress passed the War Powers Resolution (Pub. L. No. 93-148 [ codified at 50 U.S.C.A. §§
1541 et seq.]), which restricts the president's authority to involve the United States in foreign hostilities for
more than 60 days without the approval of Congress.

The president also shares power with Congress in other areas under Article II. Section 2 authorizes the
president to make treaties with foreign governments, but only with the advice and consent of the Senate. The
president must also seek senatorial approval when appointing ambassadors; federal judges, including
Supreme Court justices; and other public ministers.

Section 4 states that the president may be removed from office only through Impeachment for "Treason,
Bribery, or other High Crimes and Misdemeanors." The House is responsible for drafting Articles of
Impeachment (accusations of misconduct), and the Senate is responsible for holding an impeachment trial. A
two-thirds vote in the Senate is required for conviction.

The United States revisited the issue of what constitutes a High Crime and Misdemeanor during the
impeachment proceedings against President William Jefferson Clinton. In 1998 the U.S. House of
Representatives approved two articles of impeachment against President Clinton, accusing the president of
having committed the crimes of perjury and Obstruction of Justice to conceal his relationship with a White-
House intern named Monica Lewinsky. The impeachment trial was then held before the Senate from January
7, 1999, through February 12, 1999.

Clinton supporters generally opposed impeachment on grounds that concealing a private, extramarital affair
should not constitute an impeachable high crime or misdemeanor. Clinton detractors generally supported
impeachment on grounds that perjury and obstruction of justice are felony-level offenses that render a chief
executive who is guilty of such offenses incompetent to discharge the duties of his office. Clinton supporters
contended that past presidents had concealed their extramarital affairs without it rising to the level of an
impeachable offense, while Clinton detractors countered by arguing that the president was not being
impeached for having an extramarital affair but for committing crimes to conceal it.

Scholars debated the merits of the Clinton impeachment proceedings as well. However, constitutional
historians on both sides of the debate generally agreed that the phrase High Crimes and Misdemeanorshad
no settled usage at the time the Constitution was ratified by the states, except that the Founding Fathers
rejected proposals that would have allowed for impeachment in cases of maladministration, malpractice,
or neglect of duty. The Founding Fathers favored a chief executive who was subject to constitutional checks
and balances, but not one who was weak and easy to remove by political opponents. In the end, the Senate
voted to acquit President Clinton. Neither article of impeachment was supported by even a majority of votes,
far short of the 67 votes required to convict.

Although the president participates in the lawmaking process by preparing budgets for congressional review,
recommending legislation on certain subjects, and signing and vetoing bills passed by both houses, no
formal lawmaking powers are specifically delegated to the Executive Branch. The president nonetheless
"legislates" by issuing executive orders, decrees, and proclamations. No express provision of the
Constitution delineates the parameters of this executive lawmaking power. However, in YOUNGSTOWN SHEET &
TUBE CO. V. SAWYER, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Supreme Court set forth some
guidelines. Known as the Steel Seizure case, Youngstown examined the issue of whether the president of
the United States could order the government seizure of steel mills that were crippled by a labor strike during
the Korean War. In holding the Executive Order unconstitutional, the Supreme Court ruled that "the
President's power to see that the laws are faithfully executed refutes the idea that [the president] is to be a

Justice ROBERT H. JACKSON, in a concurring opinion, set forth an analysis by which the Supreme Court has
subsequently evaluated the constitutionality of presidential action. Jackson opined that Presidential
Powers are not fixed, but fluctuate according to "their disjunction or conjunction with those of Congress."
When the president acts pursuant to congressional authorization, the action carries maximum authority.
When the executive acts contrary to congressional will, presidential powers are at their lowest ebb. Between
these positions, when a president faces an issue on which Congress is silent, the executive acts in "a zone
of twilight in which [the president] and Congress may have concurrent authority, or in which the distribution is
uncertain." In such instances, Jackson reasoned, courts must balance the interests of the parties and of
society to determine if a particular executive action has violated the separation of powers.

Another area that has stirred debate over the appropriate separation of powers involves the delegation of
legislative, executive, and judicial authority to federal administrative bodies. Since the mid-1930s, the United
States has seen an enormous growth in the administrative state. Administrative agencies have been created
to establish, evaluate, and apply rules and policies over a diverse area of law, including taxes, Securities,
transportation, antitrust, the environment, and employment relations. Federal administrative bodies are
created by statute, and Congress has the authority to prescribe the qualifications for administrative officials
who are appointed by the president, courts of law, and heads of government departments.

The NATIONAL LABOR RELATIONS BOARD (NLRB) demonstrates the overlapping powers that may be exercised by an
administrative body. The NLRB is empowered by statute to issue regulations that govern union activities.
Such regulations are virtually indistinguishable from legislative enactments and are considered no less
authoritative. The NLRB also adjudicates disputes between unions and employers, with an administrative law
judge presiding over such cases. Finally, the NLRB is endowed with the power to make prosecutorial
decisions, a power traditionally exercised by the executive branch. Although successful challenges have
been lodged against the delegation of certain powers to federal administrative bodies, by and large, the
Supreme Court has permitted administrative officials and agencies to play all three government roles.

Article III: The Judicial Power Article III provides that "[t]he judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and
establish." Pursuant to this constitutional authorization, Congress has created a federal judicial system
comprising a lower tier of federal trial courts, known as the U.S. district courts, and an intermediate tier of
federal appellate courts, known as the U.S. Courts of Appeals. At least one federal district court is located in
each of the 50 states.

The federal appellate courts consist of 11 numbered circuit courts plus the Court of Appeals for the District of
Columbia and the Court of Appeals for the Federal Circuit. Each federal appellate court has jurisdiction over
a certain geographic area and may only hear appeals from federal district courts within that jurisdiction.
Specialized courts of appeals have been created to hear appeals concerning such disputes as international
trade (the court of International Trade) and military matters (the Court of Military Appeals). Parties aggrieved
by a decision made by any of these federal appellate courts may appeal their case to the Supreme Court,
which has the ultimate judicial power. Cases that originate in state court and present a federal question may
also be appealed to the U.S. Supreme Court.

The Supreme Court is not required to hear every case that is appealed to it; instead, the Court has broad
discretion to accept or decline cases that are appealed by a lower court. Only four justices need to vote in
favor of hearing an appeal before a writ of certiorari will be granted. Certiorari is a device that allows the
Supreme Court to call up the records of a lower court and review them in order to identify important legal
questions that need to be resolved. Granting "cert" has no bearing on the Court's subsequent resolution of a
case. The Court is asked to review about 5,000 cases a year and grants certiorari in less than 250 of them.

Federal courts do not have jurisdiction to hear every kind of lawsuit. Article III lists certain types of cases that
may be heard by the federal judiciary, including cases arising under the Constitution; under treaties with
foreign nations; and under federal laws passed by Congress, the executive, or an administrative body.
Federal courts also have jurisdiction to hear lawsuits between two or more states, between citizens of
different states, and between a citizen or government of one state and a citizen or government of a foreign
The Supreme Court has original jurisdiction over cases involving ambassadors and other public ministers as
well as cases in which a state government is a party. Original jurisdiction gives a court the power to hear a
lawsuit from the beginning, rather than on appeal. This grant of original jurisdiction does not preclude
Congress from giving original jurisdiction to other courts over the same matters. In fact, Congress has
granted concurrent original jurisdiction to the federal district courts for all controversies except those between
state governments.

Nowhere in Article III, or elsewhere in the Constitution, is the power of the federal judiciary defined.
Historically, the role of English and U.S. courts was to interpret and apply the laws passed by the other two
branches of government. At the close of the eighteenth century, it was unclear whether that role included the
prerogative of Judicial Review, which is the authority of state and federal courts to review and invalidate laws
passed by legislatures that violate a constitutional provision or principle.

In MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the U.S. Supreme Court clarified
thisAmbiguity by pronouncing that it "is emphatically the duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws
conflict with each other, the court must decide on the operation of each." Because the federal Constitution is
the supreme law of the land, the Court reasoned, any laws that violate the Constitution must be declared
void. It was the essence of judicial duty, the Court intimated, for judges to evaluate the constitutionality of a
particular act, because judges are not elected and are therefore independent from the political considerations
that may have motivated the popular branches of government to enact that law. The Court reasoned that the
executive and legislative branches could not be impartial arbiters of their own laws.

The Bill of Rights

When the U.S. Constitution was ratified by the states in 1789, it contained no bill of rights. During the last
days of the Constitutional Convention, one of the delegates proposed that a bill of rights be included, but this
proposal was voted down by every state. Many Framers of the Constitution believed that there was no need
for a bill of rights because the powers of Congress and of the president were explicitly enumerated and
limited, and no provision of the Constitution authorized any branch of government to invade the personal
liberties of U.S. citizens.

Other Framers were concerned that any list of rights would be hopelessly incomplete and that the
government would deny any liberties left unmentioned. This concern was ultimately expressed by theNinth
Amendment to the U.S. Constitution, which provides that "[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people." The Ninth Amendment
was later relied on by the Supreme Court to recognize the unenumerated right of married adults to use Birth
Control (GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]).

By 1791, the need for a bill of rights was viewed in a different light. The residents of the states soon realized
that government by the will of the majority not only achieved democracy, it sometimes achieved majoritarian
tyranny. The system of checks and balances created by the original Constitution was insufficient to avoid the
pitfalls of absolute power endemic to the English form of government that the American colonists had
overthrown. A bill of rights was needed to serve as a bulwark between individual liberty
and Arbitrary government power.

As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by a two-thirds
majority in both houses of Congress and ratified by three-fourths of the states as required by Article V. The
Bill of Rights, which comprises the first ten amendments to the Constitution, contains both procedural and
substantive protections. In some instances, these protections guarantee the right to do, say, or believe
something without government interference. In other instances, these protections guarantee the right to
refrain from doing, saying, or believing something without government coercion.

The first three amendments provide substantive protections. The First Amendment guarantees Freedom of
Speech, press, religion, assembly, and petition. The Free Speech Clause protects "thoughts that we hate"
(United States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889 [1929] [Holmes J., dissenting]).
Such thoughts can be expressed verbally, as in a racially derogatory remark, or in writing, as in a Marxist-
Leninist pamphlet denouncing the U.S. government, and still receive First Amendment protection. The First
Amendment also protects certain symbolic expression, such as burning the U.S. flag in protest over
government policy (TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). The Supreme
Court has ruled that no political speech may be curtailed by the government unless it presents a Clear and
Present Danger of imminent lawless action (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d
430 [1969]).

The Free Press Clause prohibits the government from censoring news stories in the print and electronic
media merely because the content is critical of the government. However, the Founding Fathers did not
agree on the definition of censorship.

A majority of the Founding Fathers adhered to the English Common Law view articulated in the eighteenth
century by Sir William Blackstone, who equated a free press with the doctrine of no Prior Restraint. This
doctrine provides that a publication cannot be suppressed by the government before it is released to the
public. Nor can publication of something be conditioned upon judicial approval before its release.

While the English common law prohibited prior restraint, it permitted prosecution for libelous and seditious
material after publication. Thus, the law protected vituperative political publications only insofar as the author
was prepared to serve time in jail or pay a fine for offending the sensibilities of the wrong person.

A minority of Founding Fathers adhered to the view articulated by James Madison, who said that

The security of the freedom of the press requires that it should be exempt, not only from previous restraint of
the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the
previous inspection of licensers, but from the subsequent penalty of laws.

Madison was concerned that authors would be deterred from writing articles assailing governmental activity if
the government was permitted to prosecute them following release of their works to the public.

In Near v. Minnesota, 283 U.S. 697, 51 S. Ct 625, 75 L. Ed. 2d 1357 (1931), the Supreme Court incorporated
the doctrine of no prior restraint in First Amendment Jurisprudence, when it ruled that under the Free Press
Clause there is a constitutional presumption against prior restraint which may not be overcome unless the
government can demonstrate that Censorship is necessary to prevent a clear and present danger of a
national security breach. In NEW YORK TIMES V. UNITED STATES, 403 U.S. 713 92 S.Ct 2140, 29 L. Ed.2d 822 (1971)
the Court applied this presumption against the United States Justice Department which had sought
an Injunction to prevent the publication of classified material revealing the secrecy and deception behind
American involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers,
had threatened American troops by disclosing their location or movement, the Court said, publication would
not have been permitted.

The Supreme Court's interpretation of the Free Press Clause has also gone a long way toward adopting
Madison's sentiments against subsequent punishments for publishers of materials criticizing public officials.
In a series of cases the Supreme Court has held that the First Amendment protects media outlets from being
held liable in civil court for money damages merely because a published story contains an inaccuracy or
falsehood about a public official. The Supreme Court has ruled that the media are immune from LIBEL actions
brought by public officials unless the plaintiff can demonstrate that a particular story was printed or aired with
knowledge that it was false or in reckless disregard of its veracity, a principle that has become known as the
"actual-malice" standard (NEW YORK TIMES V. SULLIVAN,376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964]).
Finally, the media cannot be punished with civil or criminal sanctions for publishing pornographic material
unless that material rises to the level of Obscenity(MILLER V. CALIFORNIA, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed.
2d 419 [1973]).

The First Amendment contains two religion clauses. One guarantees the free exercise of religion. In most
instances, the Free Exercise Clause prohibits the government from compelling a person to act contrary to his
or her religious beliefs. For example, in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15
(1972), the Supreme Court held that a state cannot compel Amish parents to send their children to school
past the eighth grade when doing so would violate their religious faith. However, inReynolds v. United States,
8 U.S. 145, 25 L. Ed. 244 (1879), the Supreme Court refused to exempt Mormons from a federal law against
bigamy, reasoning that Polygamy was more a religious practice than a religious belief.

The other religion clause in the First Amendment prohibits the government from establishing religion. The
Framers drafted the Establishment Clause to prevent the federal government from passing legislation that
would create an official national church in the United States as Great Britain had done with the Anglican
Church in England. Since the early 1970s, the Supreme Court has applied the Establishment Clause more
broadly to strike down certain forms of government assistance to religion, such as financial aid. Such
assistance will be invalidated unless the government demonstrates that it has a secular purpose with a
primary effect that neither advances nor inhibits religion nor fosters excessive entanglement between
government and religion (Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 [1971]).

The Second and Third Amendments also provide substantive protections. The Second
Amendmentacknowledges that a "well regulated Militia" is "necessary to the security of a free State," and
guarantees "the right of the people to keep and to bear Arms." The right to bear arms is not absolute. It
restricts only federal laws regulating the use and possession of firearms and has no applicability to state
governments (Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 [1886]). In addition, Congress
may prohibit the possession or use of a firearm that lacks any reasonable relationship to the preservation or
efficiency of a well-regulated militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206
[1939]). Federal courts have interpreted the term militia to include only military groups that are organized by
the state governments, such as the National Guard, and to exclude private military groups that are not
associated with the government, such as the Kansas Posse Comitatus (United States v. Oakes, 564 F.2d
384 [10th Cir. 1977]).

The Third Amendment, which is an out-growth of the American Revolution, prohibits the government from
compelling homeowners to house soldiers without their consent. Although the Supreme Court has never
decided a case that directly involved the forced quartering of soldiers, the Court of Appeals for the Second
Circuit ruled that the Third Amendment's protections apply to the National Guard (Engblom v. Carey, 724
F.2d 28 [2d Cir. 1982]).

The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments contain a mixture of procedural and substantive
rights. Most of the procedural rights pertain to Criminal Law. As such, these rights offer protection against
unconstitutional actions taken by government bodies and officials, such as law enforcement agencies and
agents. These rights do not offer protection against action taken by private citizens unaffiliated with the
government. For example, the Fourth Amendment prohibits the government from performing
unreasonable SEARCHES AND SEIZURES and from issuing warrants on less than Probable Cause. The procedural
requirements of the Fourth Amendment protect homes, papers, and other personal belongings in which an
individual can demonstrate a "reasonable expectation of privacy" (Katz v. United States, 389 U.S. 347, 88 S.
Ct. 507, 19 L. Ed. 2d 576 [1967]).

The Fifth Amendment offers procedural safeguards to criminal defendants and suspects. It provides that no
person shall be held to answer for a capital or infamous offense unless first indicted by a Grand Jury. The
Fifth Amendment further safeguards defendants from being "twice put in jeopardy of life or limb" for the
"same offence." It also prohibits the government from compelling someone to incriminate himself or herself.
The right to be apprised of many of these procedural protections during custodial police interrogations,
through what are known as Miranda warnings, is derived from the Fifth Amendment (MIRANDA V. ARIZONA, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

The Sixth Amendment provides a panoply of procedural protections for criminal defendants. Under the Sixth
Amendment, defendants are entitled to notice of any criminal accusations against them. The Sixth
Amendment guarantees the right to a jury trial for all crimes more serious than a petty offense. The Sixth
Amendment guarantees the right to be represented by an attorney during a criminal proceeding and entitles
indigent defendants to a state-appointed lawyer when they are charged with a misdemeanor or more serious
offense (GIDEON V. WAINWRIGHT, 372 U.S. 355, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). A defendant's right to a
speedy and public trial in which she or he can cross-examine adverse witnesses and subpoena favorable
witnesses is also protected by the Sixth Amendment.

The protections offered by the Eighth Amendment are more substantive. This amendment forbids the
government from inflicting a punishment that is "cruel and unusual." The Eighth Amendment also prohibits
the government from setting bail in an excessive amount and from imposing a fine that is disproportionate to
the seriousness of the crime. Under the CRUEL AND UNUSUAL PUNISHMENTS CLAUSE, the Supreme Court has ruled
that it is not necessarily unconstitutional for the government to execute a mentally retarded person (Penry v.
Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989]) or a juvenile above the age of 15
(Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 [1989]).

Some of the protections offered by the Bill of Rights apply to civil proceedings. For example, the Seventh
Amendment guarantees the right to a jury trial in civil "Suits at common law." In condemnation proceedings,
the Fifth Amendment recognizes the power of Eminent Domain, by which the government may appropriate a
piece of property owned by a private citizen and convert it to a public use. Concomitantly, the Fifth
Amendment guarantees the right to "just compensation" for private landowners when the government
exercises its power of eminent domain.

Due Process Clauses

Of all the liberties protected by the Bill of Rights, none has been a greater source of constitutional litigation
than DUE PROCESS. The Fifth Amendment provides that no person shall be deprived of "life, liberty, or property,
without due process of law." The Supreme Court has interpreted this provision to regulate actions taken by
only the federal government, not the state governments (BARRON V. BALTIMORE, 32 U.S. [7 Pet.] 243, 8 L. Ed.
672 [1833]).

Broadly speaking, the Due Process Clause of the Fifth Amendment guarantees litigants the right to be
informed of any legal action being taken against them, and the opportunity to be heard during a fair
proceeding in which they may assert relevant claims and defenses. Specifically, many procedural protections
have been recognized by the Supreme Court as essential to the concept of due process. For example, in
criminal cases, the Due Process Clause requires that the prosecution prove its case Beyond a Reasonable
Doubt before a conviction may be obtained. In civil cases, the Due Process Clause prohibits a court in one
state from asserting jurisdiction over a resident in another state unless that resident has sufficient contacts
with the jurisdiction in which that court sits.

The Fourteenth Amendment also contains a Due Process Clause. Whereas the Due Process Clause of the
Fifth Amendment regulates only the federal government, the Due Process Clause of the Fourteenth
Amendment regulates actions taken by state governments. During the twentieth century, the Supreme Court
interpreted the Due Process Clause of the Fourteenth Amendment to make most of the liberties enumerated
in the Bill of Rights applicable to the states.

Through a series of decisions, the Supreme Court has ruled that certain liberties guaranteed in the Bill of
Rights are too fundamental to be denied protection by the state governments. Only the right to bear arms,
the right to be indicted by a grand jury, the right to a jury trial in civil cases, the right against excessive bail
and fines, and the right against involuntary quartering of soldiers have not been made applicable to the
states. Because these constitutional guarantees remain inapplicable to state governments, the Supreme
Court is said to have selectively incorporated the Bill of Rights into the Due Process Clause of the Fourteenth

The Supreme Court has interpreted the Due Process Clauses to have a substantive content in addition to
their procedural content. Procedurally, due process prescribes the manner in which the government may
deprive persons of their life, liberty, or property. In short, the procedural guarantees of due process entitle
litigants to fair process.

Substantively, the Due Process Clauses of the Fifth and Fourteenth Amendments protect persons from
legislation infringing on certain individual rights. Such individual rights may be expressly enumerated in a
constitutional provision, as are the liberties that are enumerated in the Bill of Rights and have been
incorporated into the Due Process Clause of the Fourteenth Amendment. Since DRED SCOTT V. SANDFORD,60
U.S. (19 How.) 393, 15 L. Ed. 691 [1856]), where the Supreme Court recognized a slave owner's property
interest in his slaves, the Due Process Clauses have been interpreted to protect other liberties that are not
expressly enumerated in any provision of the federal Constitution.

These unenumerated rights have been derived from Supreme Court precedent, common law, history, and
moral philosophy. Such rights, the Court said, "represent the very essence of ordered liberty" and embody
"principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental"
(Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). Since the mid-1960s, the Supreme
Court has relied on the concept of Substantive Due Process to establish a general right to privacy that
protects a woman's decision to terminate her pregnancy under certain circumstances (ROE V. WADE, 410 U.S.
113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).

Equal Protection Clause

The EQUAL PROTECTION CLAUSE of the Fourteenth Amendment has been another bountiful source of litigation.
Ratified during the aftermath of the Civil War along with the Thirteenth Amendment, which outlawedSlavery,
and the Fifteenth Amendment, which protected the right to vote from discriminatory infringement, the
Fourteenth Amendment was designed to promote racial equality.

Until the middle of the twentieth century, the Supreme Court interpreted the Equal Protection Clause to
permit state-implemented racial Segregation. Then, in BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct.
686, 98 L. Ed. 873 (1954), the Supreme Court declared that the institution of segregation is inherently
unequal. Almost immediately after issuing the Brown decision, the Court began striking down state-
implemented racial segregation at a host of public accommodations, including golf courses, beaches, and
public schools. Pursuant to the Fourteenth Amendment, Congress has passed a number of Civil
Rights statutes that protect African Americans and other racial groups from discrimination in the private
sector. Title VII of the Civil Rights Act of 1964 (Pub. L. No. 88-352 [42 U.S.C.A. § 2000e et seq.]), for
example, prohibits RACIAL DISCRIMINATION in private employment.

Persons of any race, creed, or ethnic origin may bring a claim against a state government for discriminating
against them in violation of the Fourteenth Amendment. The Supreme Court has also relied on the Equal
Protection Clause to invalidate state laws that discriminate on the basis of gender, state residency, and
national citizenship, among other legislative classifications. In 1996 the U.S. Supreme Court struck down a
Colorado constitutional amendment that discriminated against homosexuals, because it served no rational
purpose (ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 [1996]). The CIVIL RIGHTS ACT of 1871
(17 Stat. 13 [42 U.S.C.A. § 1983]) authorizes individuals to enforce the provisions of the Fourteenth
Amendment against state governments.

Members of other minority groups, such as persons who are elderly or disabled, are protected from
discrimination in both the public and private sectors by federal laws that Congress has passed pursuant to its
constitutionally delegated powers. The Americans with Disabilities Act (Pub. L. No. 101-336 [ codified at 42
U.S.C.A. §§ 12111 et seq.]) and the Age Discrimination in Employment Act (Pub. L. No. 90-202 [ codified at
29 U.S.C.A. § 621 et seq.]) are two such laws.

Supremacy Clause

The Supremacy Clause in Article VI makes the Constitution, federal laws, and treaties "the supreme Law of
the Land." Under this clause, state courts may not interpret the Bill of Rights, or any other constitutional
provision, differently than does the Supreme Court. States may not provide less protection for individual
liberties than is provided under the federal Constitution. However, state courts do retain the power to afford
their residents greater protection for certain liberties established by their own state constitution than is
afforded by the federal Constitution (Prune Yard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035,
64 L. Ed. 2d 741 [1980]).

Other Constitutional Provisions

The Nineteenth, Twenty-fourth, and Twenty-sixth Amendments provide that the right to vote shall not be
denied to a U.S. citizen on account of gender, age (so long as the citizen is at least eighteen years old), or
the failure to pay a poll tax. The Twenty-First Amendment repeals the Eighteenth Amendment, which banned
the manufacture, sale, and transportation of intoxicating liquors, otherwise known as Prohibition.
The Sixteenth Amendment establishes the congressional power to lay and collect income taxes.

The Tenth and Eleventh Amendments attempt to preserve the federalist system created by the Constitution,
whereby the state and federal governments share sovereignty and jurisdiction. Recognizing the threat
presented by an omnipotent federal government, the Tenth Amendment reserves to the states all powers not
delegated to the federal government. The text of the Eleventh Amendment restricts federal courts from
hearing lawsuits against state governments brought by the residents of another state or the citizens of a
foreign country. The Supreme Court has also interpreted the Eleventh Amendment to restrict federal courts
from hearing lawsuits instituted by residents of the state being sued and lawsuits initiated by the
governments of foreign countries.

Further readings

Hall, Kermit L. 2002. Oxford Companion to American Law. New York: Oxford Univ. Press.

Posner, Richard A. 1999. An Affair of the State. Cambridge, Mass.: Harvard Univ. Press.

Abortion; Administrative Law and Procedure; Age Discrimination; Commerce Clause; Congress of the United
States; Constitution of the United States; Criminal Procedure; Custodial Interrogation; Disability
Discrimination; Double Jeopardy; Federal Budget; Federalism; Freedom of the Press; Gay and Lesbian
Rights; Incorporation Doctrine; Right to Counsel; Sex Discrimination; Speedy Trial.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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