First assignment: Marbury & Van Gend — judicial review.

Dear Students,

Read these two cases for next time, and in this order:

Marbury v. Madison
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html
(about 1820ish)

Van Gend & Loos

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61962J0026

Copy this link, then paste it into your browser’s address bar and hit return.

_After you have read these two cases please read my article comparing them.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331505<br />
I know you will have difficulty reading these cases – partly because Marbury is only in English (you may read Van Gend in German if you like) — but even Van Gend in German will be tough for you — because law is a specialized technical language. Bouvier’s law dictionary is old — but very good — and is in the public domain i.e. free.
http://www.constitution.org/bouv/bouvier.htm

DuHaime’s is also free — and is contemporary!
http://www.duhaime.org/LegalDictionary.aspx

Mirriam Webster is a good general American English dictionary:
http://mirriamwebster.com/

I may give another reading for the next lecture but this will certainly be done and in depth. You should take notes on the case — look up words and phrases you do not know. You should understand the arguments made, the reasons for the judge’s decision — not just what the judge decides but also how. Basically come to class with a good summary of the cases — what was the controversy, what was decided, and why. This is a basic necessary skill of lawyers and it is called “briefing cases”. This is an optional reading on case briefing, you may find it helpful.
http://www.lexisnexis.com/lawschool/StartingLawSchool.aspx?articleid=392
Googling “briefing cases” would lead to other links.
Here is my ssrn page:
http://papers.ssrn.com/author_id=879868

You should also read the federalist, #10.
http://www.constitution.org/fed/federa10.htm

Here are my own notes which I took for the article I wrote; not all of htem made it into the article. All of them raise relevant points about judicial review. Skim them at your leisure to try to figure out what’s going on.

“From the very beginning, American judges have been prepared to enforce constitutional rights that cannot fairly be said to derive from any enumerated textual guarantee. The Framers themselves, we are told, understood constitutional rights in unwritten, natural-law terms, drawing on the English lex non scripta and “ancient constitution” traditions passed down to them by Blackstone and others. “

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Jed Rubenfeld, THE NEW UNWRITTEN CONSTITUTION, 51 Duke L.J. 289, 289-290, (2001)

2 U.S. 304, *; 1 L. Ed. 391, **;
1795 U.S. LEXIS 351, ***; 28 F. Cas. 1012

VANHORNE’S Lessee versus DORRANCE.

CIRCUIT COURT, PENNSYLVANIA DISTRICT

Reported in Volume Two

of the United States Reports

2 U.S. 304; 1 L. Ed. 391; 1795 U.S. LEXIS 351; 28 F. Cas. 1012; 2 Dall. 304

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“The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendant and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima. It has sovereign and uncontroulable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: This being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, [***9] are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in [*308] short, do every thing that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo.” (1 Bl. Com. 160.)
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“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
u.s. const., Amdt. IX.

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“It is the glorious destiny of man to be always progressive. . . . Hence we may infer, that the law of nature, though immutable in its principles, will be progressive in its operations and effects. . . . In every period of his existence, the law, which the divine wisdom has approved for man, will not only be fitted, to the contemporary [sic] degree but will be calculated to produce, in future, a still higher degree of perfection.”
James DeWitt Andrews, ed., 1 Works of James Wilson 126-27 (1896).

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City of London v. Wood, 12 Mod.Rep. 669, 678 (1701) “an act of parliament can do no wrong”
Does this mean that parliament cannot violat natural law by working a wrong? Yes. “an act of parliament can do no wrong, though it may do several things that look pretty odd . . . An act of parliament may not make adultery lawful, that is, it cannot make it lawful for A. to lie with the wife of B. but it may make the wife of A. to be the wife of B. and dissolve her marriage with A.”

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[*1130]
“A much less familiar ingredient in the English opposition ideology is the nature of the constitution or fundamental law. Neither a single written document nor a category of either natural or enacted law, the ancient constitution was an amorphous admixture of various sources of law. It was essentially custom mediated by reason. 7 Bolingbroke defined it as “that Assemblage of Laws, Institutions and Customs, derived from certain fix’d Principles of Reason, directed to certain fix’d Objects of publick Good, that compose the general System, according to which the Community hath agreed to be govern’d.” 8 Coke described as void any Act of Parliament that is “against common right and reason, or repugnant, or impossible to be performed.” 9 Rutherforth, another English influence on the colonists, 10 held that “there does not seem to be any way of determining what form has been established in any particular nation, but by acquainting ourselves with the history and the customs of that nation. A knowledge of its present customs will inform us what constitution of government obtains now.” 11 A constitution was simply the norms by which a people were constituted into a nation. Thus in the 1760s, an American revolutionary thinker could refer to “the constitution of things” and “the British constitution” with a clear relatedness of meaning. 12 This natural law tradition was also echoed in the thought of various continental influences on the Americans. 13″
54 U. Chi. L. Rev. 1127, *

Copyright © 1987 University of Chicago.

University of Chicago Law Review

FALL, 1987

54 U. Chi. L. Rev. 1127

LENGTH: 23220 words

ARTICLE: The Founders’ Unwritten Constitution.

NAME: Suzanna Sherry 1

n9 Dr. Bonham’s Case, 8 Coke Rep. 107, 118a (1610),

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“Magna Charta, doth not give the privileges therein mentioned, nor doth our Charters, but must be considered as only declaratory of our rights, and in affirmance of them.”
*1132

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Alexander Hamilton wrote in 1775:

[*1134] The sacred rights of mankind are not to be rummaged for, among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power. 33
The Farmer Refuted &c., in Harold C. Syrett, ed., 1 The Papers of Alexander Hamilton 81, 122 (1961).
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Rutgers v. Waddington, in which Alexander Hamilton argued that “statutes against law and reason are void.”
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From these passages in Judge Blackstone’s Commentaries, from the variety of authorities to which he refers, and from many others of the greatest reputation, it most clearly appears, that the trial by jury was ever esteemed a first, a fundamental, and a most essential principle, in the English constitution. From England this sacred right was transferred to this country, and hath continued, through all the changes in our government, the firm basis of our liberty, the fairest inheritance transmitted by our ancestors! 61

“If the first act of the English Parliament now upon record, containing the great charter of the privileges of subjects: — If the exercise of those privileges for ages: — If the settlement of a new world to preserve them: — If the first solemn compact of the people of this State: — If the sacred declarations of the Legislature at different periods, and upon the most important occasions: — If the solemn appeal to heaven of the United States: — In short, if the torrents of blood that have been shed in defence of our invaded rights, are proofs, then have we triumphed in the cause of humanity, then have we shewn that the trial by jury is the birthright of the people!”

“Considerably less is known about a 1780 New Jersey case, Holmes v. Walton. 74 The case involved another transgression on the right to trial by jury, this time a New Jersey statute that allowed conviction for trading with the enemy by a jury of only six men. A convicted defendant took an appeal to the state supreme court, which reversed the conviction and ordered a new trial. No record of the court’s opinion has been found, but the supreme court minutes do describe the arguments made by defendant’s counsel. He argued that the trial by a six-man jury was “contrary to law,” “contrary to the constitution of New Jersey,” and “contrary to the constitution, practices, and laws of the land.” 75 The New Jersey Constitution of 1776 did provide for trial by jury, but without any further elaboration as to the nature of the jury. 76 The “laws of the land” thus most likely referred to various charters and legislative enactments. 77 Standing alone, this sparse information about Holmes v. Walton might not prove much, but in the context of the other state cases, it suggests that in New Jersey, as in other states, fundamental law was derived from more than the written constitution.”
James Mitchell Varnum, The Case, Trevett Against Weeden: On Information and Complaint, for refusing Paper Bills in Payment for Butcher’s Meat, in Market, at Par with Specie (1787) pp. 13-14.
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“If the first act of the English Parliament now upon record, containing the great charter of the privileges of subjects: — If the exercise of those privileges for ages: — If the settlement of a new world to preserve them: — If the first solemn compact of the people of this State: — If the sacred declarations of the Legislature at different periods, and upon the most important occasions: — If the solemn appeal to heaven of the United States: — In short, if the torrents of blood that have been shed in defence of our invaded rights, are proofs, then have we triumphed in the cause of humanity, then have we shewn that the trial by jury is the birthright of the people!”
James Mitchell Varnum, The Case, Trevett Against Weeden: On Information and Complaint, for refusing Paper Bills in Payment for Butcher’s Meat, in Market, at Par with Specie (1787) pp.
17-18.

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“Considerably less is known about a 1780 New Jersey case, Holmes v. Walton. 74 The case involved another transgression on the right to trial by jury, this time a New Jersey statute that allowed conviction for trading with the enemy by a jury of only six men. A convicted defendant took an appeal to the state supreme court, which reversed the conviction and ordered a new trial. No record of the court’s opinion has been found, but the supreme court minutes do describe the arguments made by defendant’s counsel. He argued that the trial by a six-man jury was “contrary to law,” “contrary to the constitution of New Jersey,” and “contrary to the constitution, practices, and laws of the land.” 75 The New Jersey Constitution of 1776 did provide for trial by jury, but without any further elaboration as to the nature of the jury. 76 The “laws of the land” thus most likely referred to various charters and legislative enactments. 77 Standing alone, this sparse information about Holmes v. Walton might not prove much, but in the context of the other state cases, it suggests that in New Jersey, as in other states, fundamental law was derived from more than the written constitution.”
54 U. Chi. L. Rev. 1127, 1141
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“The other case apparently departing from the usual pattern of judicial review is Commonwealth v. Caton, 90 a 1782 Virginia case [*1144] which is the first reported case in the United States in which a court reviewed a statute for constitutionality. Caton and others had been sentenced to death for treason under a 1776 statute that, in addition to defining the treason, removed the pardon power from the executive to the legislature. The lower house of the legislature (the House of Delegates) passed a resolution pardoning the prisoners, but the Senate refused to concur. When the attorney general moved the court for authority to execute the prisoners, Caton and his fellows responded that the 1776 statute must either be interpreted to grant pardon power to the House of Delegates alone or be held unconstitutional. 91 The Virginia Court of Appeals, to which the case was sent by the trial court because of its novelty and difficulty, found the statute constitutional and held the singlehouse attempt at pardon ineffective.”

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“The colonists inherited a tradition that provided not only a justification for judicial review but also guidelines for its exercise. As Bolingbroke proposed in theory and the new American states translated into action, judges were to look to natural law and the inherent rights of man, as well as to the written constitution, in determining the validity of a statute.”
*1145
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“And it 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. 30”
Bonham’s Case 77 Eng. Rep. 646, 652 (K.B. 1610).
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“When the English settlers migrated to America, they were assured by the English authorities that they were entitled to the same protections and benefits of English law that they would have enjoyed if they had remained in England. The colonial courts before the revolution, and the United States courts after it, followed and applied the common law. The fact that as of 1688, Parliament acquired total sovereignty in England did not affect the common law on either side of the Atlantic Ocean, except with respect to the final authority of the Parliament.”
6 Chap. L. Rev. 43, 50

Copyright (c) 2003 Chapman Law Review
Chapman Law Review

Spring, 2003

6 Chap. L. Rev. 43

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“a prevailing argument against the highly condemned Stamp Act of 1765, pursuant to which England imposed substantial taxes on the colonies, none of which had ever consented to it, was that it violated “Magna Carta and the natural rights of Englishmen, and therefore[,] according to Lord Coke[,] null and void.” 34 George Mason, the author of the Virginia Declaration [*51] of Rights and a Framer of the United States Constitution, cited Coke in a 1772 Virginia case 35 as authority for the proposition that “all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void.” 36 Thus, Coke’s view informed the very beginnings of American jurisprudence.”

n35. Robin v. Hardaway, 2 Va. (2 Jefferson) 109, 114 (1772).

Click here to return to the footnote reference.n36. Id. at 115.

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“general law shall not take away any part of Magna Charta; [and consequently] … a man is not to be restrained that he shall not labor for his living.” 67
Coke, in Dominus Rex v. Tooley, 80 Eng. Rep. 1055, 1059 (K.B. 1613).
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“The list that follows summarizes some of the important principles Coke advanced either as a legal commentator or a jurist, which have influenced jurisprudence in both England and the United States. 105 These principles included many of the rights Americans possessed in 1787 when the United States Constitution was drafted, and in 1788 when it was ratified.

1. No man shall be deprived of his life, liberty and property, including his lands, tenements, goods or chattels unless it is done pursuant to the substantive and procedural requirements of due process of law. 106

2. A legislative enactment ought to be prospective, not retroactive, in both text and operation. 107

3. Judges must adhere to and apply substantive and procedural due process of law in all legal proceedings. 108

[*59] 4. When an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will adjudge such act to be void. 109

5. Laws of the land include only general and public laws, operating equally upon every person in the community and do not include laws intended to favor or harm certain individuals or groups. 110

6. Regulatory laws must substantially advance the purpose for which the government has imposed them. 111

7. Exactions for public repairs and improvements should only be imposed in proportion to the benefits received. 112

8. No person should be given the power to be a judge in his own cause. 113″

9. Every person possesses the liberty to practice the trade, occupation, or vocation of his choice. 114

10. Monopolies violate the common law. 115

11. The prerogative powers of the king must be narrowly construed to give effect solely to the public benefits they are intended to promote. 116

12. Ownership of property or possessions may be limited when it is essential to protect lives or property. 117

Click here to return to the footnote reference.n106. Coke, The Second Part of the Institutes, supra note 14, at 46-47, 50.

Click here to return to the footnote reference.n107. Id. at 292.

Click here to return to the footnote reference.n108. Id. at 50.

Click here to return to the footnote reference.n109. Dr. Bonham’s Case, 77 Eng. Rep. 646, 652 (K.B. 1610).

Click here to return to the footnote reference.n110. Coke, The Second Part of the Institutes, supra note 14, at 50.

Click here to return to the footnote reference.n111. Dr. Bonham’s Case, 77 Eng. Rep. at 652.

Click here to return to the footnote reference.n112. The Case of the Isle of Ely, 77 Eng. Rep. 1139, 1142 (K.B. 1610).

Click here to return to the footnote reference.n113. Dr. Bonham’s Case, 77 Eng. Rep. at 652.

Click here to return to the footnote reference.n114. See, e.g., Dominus Rex v. Tooley, 80 Eng. Rep. 1055, 1055 (K.B. 1613); The Case of the Tailors of Ipswich, 77 Eng. Rep. 1218, 1219 (K.B. 1610); The Case of Monopolies, 77 Eng. Rep. 1260, 1266 (K.B. 1602); Davenant v. Hurdis, 72 Eng. Rep. 769, 770-71 (K.B. 1598).

Click here to return to the footnote reference.n115. The Case of Monopolies, 77 Eng. Rep. at 1265-66.

Click here to return to the footnote reference.n116. See The Case of the King’s Prerogative in Saltpetre, 77 Eng. Rep. 1294, 1295 (K.B. 1606).

Click here to return to the footnote reference.n117. See Mouse’s Case, 77 Eng. Rep 1341 (K.B. 1609) (per author’s own translation).
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Blackstone considered the rights of life, liberty, and property to be comprehended in the common law’s protection of the absolute rights of “personal security, of personal liberty, and of private property.”

1 William Blackstone, Commentaries 140.
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“as Alexander Hamilton put it in The Federalist Papers No. 84, the United States Constitution was a bill of rights. It did not grant the national government any power to deprive the people of their common law rights. In Hamilton’s opinion, expressed [*74] after the Convention, “the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS,” prescribing the limits of governmental authority.” 224
The Federalist No. 84, supra note 184, at 515.
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>Due proces in 5th and XIVth amendments are coextensive
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856).
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“According to the Court, due process of law means the same as law of the land, which Coke interpreted as a general protection against governmental oppression.”
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856).
*78
“for it would treat the innocent, who are unable to furnish the required security, as if they were guilty, and would punish them, while still presumed innocent, for their poverty, or want of friends. And it is equally clear, that such a law would not be “the law of the land,” within the settled meaning of that important clause in the constitution. Certainly this does not mean any act which the assembly may choose to pass. If it did, the legislative will could inflict a forfeiture of life, liberty, or property, without a trial. The exposition of these words, as they stand in Magna Charta, as well as in the American constitutions, has been, that they require “due process of law;” and in this is necessarily implied and included the right to answer to and contest the charge, and the consequent right to be discharged from it, unless it is proved.”
Greene v. Briggs, 10 F. Cas. 1135, 1140 (C.C.D. R.I. 1852) (No. 5,764).
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1990 Wis. L. Rev. 941, *

Copyright (c) 1990 University of Wisconsin Law School
Wisconsin Law Review

July, 1990/August, 1990

1990 Wis. L. Rev. 941

LENGTH: 32492 words

ARTICLE: SUBSTANTIVE DUE PROCESS IN 1791.

NAME: ROBERT E. RIGGS *

“Given the common perception of Magna Carta as a protection against arbitrary government, it is not surprising that the colonists also resorted to the Great Charter in their controversies with king and Parliament, particularly over the right to tax. An early episode of this nature occurred in 1680, when local authorities instituted treason proceedings against William Dyre, a customs collector in the Port of New York, for attempting to collect duties that had not been levied according to the usual procedure. Dyre was accused of “tretcherous, maliciously and advisedly” plotting to change “the known Ancient and Fundamentall Lawes of the Realme of England,” which was said to be, among other things, “contrary to the great charter of Libertyes.” 131

[*970] A more celebrated instance is James Otis’ unsuccessful but widely publicized argument against writs of assistance, 132 the general search warrants used by English officials in Boston to enforce the Navigation Acts. Otis asserted that the writs were “against the fundamental Principles of Law” and hence ought not to be enforced, even if authorized by act of Parliament. “An Act against the Constitution is void,” he insisted, and the “executive Courts must pass such Acts into disuse.” 133 While he relied mainly upon Lord Coke’s well-known statement in Bonham’s Case, Otis also cited the Magna Carta’s law-of-the-land provision as part of the fundamental law. 134 As Bailyn has pointed out, Otis did not accept the full implications of the proposition that Parliament was limited by a constitution or fundamental law as interpreted by judges, because he conceived of Parliament in seventeenth-century terms as a supreme judicial (as well as legislative) body that would be self-correcting when judges called the error to its attention. 135 Others, however, were quicker to espouse the concept of a constitution as an external limit upon the powers of Parliament. 136

Others, also, were ready to identify the Magna Carta specifically as a source of the rights that Parliament could not infringe. John Adams, in a petition protest against the Stamp Act presented to the governor and council of Massachusetts, adopted the Otis argument that the act was null because unconstitutional. This prompted a committee of the legislative assembly to resolve that business should be done without stamps. Lieutenant Governor Thomas Hutchinson subsequently wrote that the “prevailing reason” for opposition to the Act was “that the Act . . . is against Magna Carta and the natural rights of Englishmen, and therefore according to Lord Coke null and void.” 137 Benjamin Franklin, who represented the colonial cause in England, also founded [*971] his case upon the “common rights of Englishmen, as declared by Magna Carta, and the Petition of Right.” 138 So likewise did Daniel Dulany in his widely read pamphlet opposing the Stamp Act, which cited the Bill of Rights, the Great Charter and the common law as authority for the proposition that taxation could be only by consent. 139 These references to the Magna Carta do not tie taxation to chapter 39 or any other specific provision of the document, but they unequivocally embrace the argument that the Great Charter was a constitutional limitation even upon Parliament.

No attempt to ascertain the meaning of due process in the pre-independence period would be adequate without some reference to Blackstone’s Commentaries, which had become well known in the colonies before the outbreak of the Revolution. The work first appeared in England in 1765. An American edition was published in Philadelphia in 1771, and at least 1000 copies of the English edition had been imported before that time. 140 Available evidence indicates that Blackstone was widely read in America. Lutz’s study of the influence of European writers on American political thought lists Blackstone as second only to Montesquieu in frequency of citation in American political writings published between 1760 and 1805. 141 In Lutz’s list, Blackstone ranks just behind Montesquieu, Locke, Coke and Pufendorf during the 1760s and is preceded only by Montesquieu and Locke during the 1770s. His relative influence continued to grow during the early years of the republic until, from 1790 to 1805, he headed the list of most frequently cited European writers. 142

For our purposes, Blackstone is relevant primarily for his use of the expression “law of the land,” as indicative of its meaning in eighteenth-century England and as it may have been understood in America during the constitution-drafting period. Blackstone uses the expression mainly in contexts that equate it with the prevailing law of England, both statutory and common law. 143 In discussing chapter 39 of the Magna Carta, he sometimes identifies “law of the land” with judicial procedures. For example, in elaborating the provision that “no freeman [*972] shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land,” 144 he focuses mainly on procedure:

And many subsequent old statutes expressly direct that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the Petition of Right, 3 Car. I, it is enacted that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. . . . 145

Other passages, however, identify chapter 39 with substantive rules of common law or statute. In elaborating the right of personal security, Blackstone notes that “the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without express warrant of law,” 146 which in context refers not just to procedure but to definition of the offense and its punishment. 147 In his further elaboration of personal rights, he also declares arbitrary divestment of property, taking of private property for public use without full indemnification and taxation without consent to be contrary to the “law of the land.” 148 As these passages illustrate, Blackstone’s concept of the “law of the land” was not narrowly limited to procedural concerns or to criminal matters but extended to the whole range of the law. To the extent that Blackstone’s Commentaries influenced legal and political thought in America, it would have encouraged a broad reading of the concept.

Click here to return to the footnote reference.n131 3 DOCUMENTS RELATIVE TO THE COLONIAL HISTORY OF THE STATE OF NEW YORK 289 (R. Brodhead ed. 1853).

Click here to return to the footnote reference.n132 John Adams later called it an oration that “breathed into this nation the breath of life.” Letter from John Adams to H. Niles (Jan. 14, 1818), reprinted in 10 J. ADAMS, THE WORKS OF JOHN ADAMS 274 (1856).

Click here to return to the footnote reference.n133 John Adams’ Minutes of the Argument, in 1 B. SCHWARTZ, supra note 99, at 185.

Click here to return to the footnote reference.n134 REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY BETWEEN 1761 AND 1772 51 (S. Quincy ed. 1865). The Quincy Report of the Writs of Assistance Case is reproduced in M. SMITH, THE WRITS OF ASSISTANCE CASE 556-58 (1978). The reference to chapter 29 (39) of the Magna Carta is at 557.

Click here to return to the footnote reference.n135 In a pamphlet published three years later, entitled The Rights of the British Colonies Asserted and Proved (1764), reproduced with a historical introduction in 1 PAMPHLETS OF THE AMERICAN REVOLUTION 1750-1776, at 408 (B. Bailyn ed. 1965), Otis espoused the paradoxical position that “the power of Parliament is uncontrollable but by themselves” but, nevertheless, acts of Parliament against “natural equity” and “fundamental principles of the British constitution” are void. Id. at 448, 476. For Otis, Bailyn explains, this was no contradiction because of Otis’ archaic conception of Parliament as a court. Id. at 102.

Click here to return to the footnote reference.n136 See id. at 103-105, discussing revolutionary writings of Samuel Adams, William Hicks and Obadiah Hulme, among others.

Click here to return to the footnote reference.n137 Quoted in 1 B. SCHWARTZ, supra note 99, at 195.

Click here to return to the footnote reference.n138 THE WRITINGS OF BENJAMIN FRANKLIN 445 (A. Smyth ed. 1970).

Click here to return to the footnote reference.n139 Dulany, Considerations on the Propriety of Imposing Taxes in the British Colonies (1765) reprinted with historical introduction in 1 PAMPHLETS OF THE AMERICAN REVOLUTION, supra note 135, at 598.

Click here to return to the footnote reference.n140 This figure is taken from A. HOWARD, supra note 100, at 268.

Click here to return to the footnote reference.n141 Lutz, The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought, AM. POL. SCI. REV. 189, 193 (1984).

Click here to return to the footnote reference.n142 Id.

Click here to return to the footnote reference.n143 See, e.g., 1 W. BLACKSTONE, COMMENTARIES * 6, 26, 44-45, 62, 69. Within the “unwritten” branch of the law, Blackstone contrasts the common law or “general law of the land” with “particular customs, or law which affect only the inhabitants of particular districts.
Id. at * 74-75.

Click here to return to the footnote reference.n144 Id. Blackstone cites to chapter 29, using the chapter numbering of the 1225 reissue of the Magna Carta.

Click here to return to the footnote reference.n145 Id. at * 134-35. Even here, the proscription of imprisonment “without cause shown” may import an element of substantive law.

Click here to return to the footnote reference.n146 Id. at * 132. Here Blackstone quotes portions of chapter 39.

Click here to return to the footnote reference.n147 The lines immediately following read:

“Nullus liber homo,” says the Great Charter, “aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terrae,” which words, “aliquo modo destruatur,” according to Sir Edward Coke, include a prohibition, not only of killing and maiming, but also of torturing, (to which our laws are strangers), and of every oppression by color of an illegal authority.
Id. at * 132-33 (italics in original).

Click here to return to the footnote reference.n148 Id. at * 138-140. Here he is speaking of the law of the land generally, with no reference to chapter 39.”

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“Coke and Blackstone taught them that the common law was “the perfection of reason,” seamlessly blending principle and practice. 293 For most of the eighteenth century, Americans seemed to take this lesson quite seriously. They spoke of the common law as they spoke of “reason” more generally: as though its dictates were timeless, universal, and all of a piece. One sign of their outlook, as Morton Horwitz has noted, was their indifference to the antidemocratic aspect of common-law judging – [*1788] indeed, their apparent failure even to recognize the problem. 294 At the center of Justice Scalia’s Tanner Lectures was what he called “the uncomfortable relationship of common-law lawmaking to democracy.””

100 Colum. L. Rev. 1739, *

Copyright (c) 2000 The Columbia Law Review
Columbia Law Review

November, 2000

100 Colum. L. Rev. 1739

LENGTH: 41508 words

ARTICLE: THE FOURTH AMENDMENT AND COMMON LAW

NAME: David A. Sklansky*

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The ancestry of the due process clause is universally traced to chapter 39 of the Magna Carta, which was signed by King John and his rebellious barons on the field of Runnymede in June 1215. 29 It [*949] reads as follows: “No freeman shall be taken or [and] imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or [and] the law of the land.” 30

The “Great Charter” was negotiated with the intent of terminating two years of armed conflict between the king and the barons. Although in that sense a treaty or political compromise, the Magna Carta was no mere declaration of general principles. It embodied a list of specific grievances against the king and laid down rules of law to prevent future abuses; it also stipulated with some precision the duties as well as the rights of the barons, burgesses and other free men. The parties did not view the Charter as legislation in the sense of making new rules to cover the situation, but rather as a statement of what they believed to be their rights, duties and appropriate remedies under existing law and custom. The document contained great detail in matters of medieval law and legal procedures having little direct relevance today. The language, even in English translation, sounds almost as if in an alien tongue. Yet the underlying principles proved so fundamental as to project an enduring legacy of liberty down through the ages. Of the sixty-three chapters into which this remarkable document has been divided by modern commentators, chapter 39 is almost universally regarded as the most important. 31

Chapter 39 was important at the time of its origin as a proscription against arbitrary action by the king, who in the past had sometimes seized the property of his subjects or caused them to be exiled, outlawed, imprisoned, killed or subjected to other disabilities, without the benefit of any legal process. It rested on the central principle that penalties should be imposed only after “the deliberate judgment of a competent court of law.” 32 Most commentators agree that chapter 39 was meant [*950] to be a guarantee of minimal fairness by providing judgment before execution of penalty. The key words appear last in the chapter, “nisi per legale judicium parium suorum vel per legem terre,” translated as “except by the lawful judgment of his peers or [and] by the law of the land.” Although the expression “lawful judgment of his peers” was in later centuries mistakenly identified with trial by jury, it is now recognized as having no reference to that practice, which in 1215 was barely in its infancy, but rather to a right of the accused to be judged by equals in a society strictly divided by class. 33 The meaning of the second part of the clause, “or [and] the law of the land” is much less certain. Indeed, the uncertainty attached to the meaning of these words down through the centuries is the principal basis for disagreement about whether the fifth amendment due process clause originally included a substantive as well as a procedural guarantee, since in eighteenth-century America the “law of the land” and “due process” were seen as largely synonymous. 34

Part of the argument about the original meaning of per legem terrae in chapter 39 relates to the interpretation of the Latin word vel, which connects the phrases judicium parium suorum (judgment of his peers) and per legem terrae (by the law of the land). The question is whether vel should be translated to read “and” or “or.” Either meaning is acceptable, depending on the context, 35 but here the context is ambiguous. Reading vel as the conjunctive “and” could mean that judicium parium and per legem terrae are different parts of the same procedure, or at least complementary, and thus tend to give the whole clause a procedural cast. This is the position taken by McKechnie, who leans toward the position that lex terrae as used in the Charter referred to the medieval tests of battle, compurgation or ordeal. 36 Viewed in this light, [*951] the concluding passage of chapter 39 might be read as saying, “except by the lawful judgment of his peers and trial by battle, compurgation or ordeal.” This would be consistent with the medieval practice by which, as McKechnie observes, “[t]he peers appointed the test and decided whether it had been properly fulfilled.” 37 The whole passage thus interpreted would refer to a procedure by which guilt or innocence of the accused could be determined.

Reading vel as “and” does not necessitate a conclusion that per legem terrae refers only to legal procedure, however. McIlwain, in a much cited article published in 1914, also adopted the conjunctive interpretation of vel but gave a broader meaning to per legem terrae. For him “the judgment of peers” referred to the mode of adjudication, and “law of the land” identified the law to be applied. 38 That law in his view was substantive law, “the ancient custom of the realm, ‘the law of the land’ in a real sense,” not just procedure. 39

Probably the more widely accepted view today among historians is that espoused by Powicke in a noted essay published in commemoration of the 700th anniversary of the Magna Carta. 40 Powicke argues that vel, as used in chapter 39, has a primarily disjunctive meaning; hence “law of the land” was meant to suggest an alternative, or at least something in addition to, judgment by peers. It was not intended to specify particular alternative procedures, but to provide assurance that the king would not act arbitrarily. He would mete out punishment only in accordance with the law of the land, understood to be the customs of England and perhaps local custom as well, which might include many varieties of law and procedure. 41 Holt, in his 1965 study, endorses the Powicke interpretation. He understands Powicke to mean that judgment by peers and by the law of the land “were advanced as loose, but not exclusive alternatives,” the intention being “that men should be judged by their peers or by some other method which was in accordance with the law of the land.” 42 Even McIlwain subsequently recognized [*952] the merit of the Powicke position, concluding that vel was best translated as “or” and that chapter 39 proposed alternative approaches to judgment. 43

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Click here to return to the footnote reference.n33 Thus, “‘peers’ of a Crown tenant were his fellow Crown tenants, who would normally deliver judgment in the Curia Regis, while the ‘peers’ of the tenant of a mesne lord were the other suitors of the Court Baron of the manor.” W. MCKECHNIE, supra note 29, at 378. Also, Jews might be judged by those of their own religion, and a foreign merchant by a jury composed partly of those of his country. Id. See also Powicke, Per Iudicium Parium Vel Per Legem Terrae, in MAGNA CARTA COMMEMORATION ESSAYS 96, 191-202 (H. Malden ed. 1917).
USE LAWN AND ELSEWHERE

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NAME: Paul Finkelman*

73 Fordham L. Rev. 1477, *

Copyright (c) 2005 Fordham Law Review
Fordham Law Review

March, 2005

73 Fordham L. Rev. 1477

LENGTH: 22887 words

ESSAY: THE TEN COMMANDMENTS ON THE COURTHOUSE LAWN AND ELSEWHERE

NAME: Paul Finkelman*

The sources of law for the American colonies, and later the United States, are broad and varied. The principal early source is the common and statutory law of England, including the Magna Carta. Also influential was the law coming out of the non-common law courts of England, such as equity, chancery, admiralty, orphans, and ecclesiastical. The founding generation – those who participated in the American Revolution and the creation of the nation under the Constitution – was influenced by many English sources of law, such as [*1501] the Magna Carta and the English Bill of Rights, 124 as well as non-legal sources like the works of such Enlightenment thinkers as John Locke, John Trenchard and Thomas Gordon, the authors of “Cato’s Letters,” and other English Libertarian Philosophers. 125 Other sources of American law include Roman law, the civil law of continental Europe in the post-Roman period, private international law, biblical law, and Germanic tribal law. 126

Click here to return to the footnote reference.n124. An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (Bill of Rights), 1689, 1 W. & M., sess. 2, c.2 (Eng.)

Click here to return to the footnote reference.n125. The English Libertarian Heritage, from The Writings of John Trenchard and Thomas Gordon in the Independent Whig and Cato’s Letters 37 (David L. Jacobson ed., Bobbs-Merrill Company, Inc. 1965) (1755) [hereinafter English Libertarian Heritage].

Click here to return to the footnote reference.n126. See Lawrence Friedman, A History of American Law 11-104 (2d ed. 1985); Kermit L. Hall, The Magic Mirror 9-27 (1989); 1 Melvin I. Urofsky & Paul Finkelman, A March of Liberty: A Constitutional History of the United States 45-46, 61, 168 (2002).

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At the time of the American Revolution, the substantive provisions of the Magna Carta and the English Bill of Rights became central to the process of the drafting of the state constitutions and, later, the United States Constitution. The United States Constitution and the Bill of Rights incorporated many of the substantive provisions of both docents, sometimes word-for-word.
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American colonists cited the Magna Carta, Coke’s Institutes, Blackstone’s Commentaries, and other English legal sources in their struggle against the Crown and Parliament. 185 At the time of the American Revolution, the substantive provisions of the Magna Carta and the English Bill of Rights became central to the process of the drafting of the state constitutions and, later, the United States Constitution. The United States Constitution and the Bill of Rights incorporated many of the substantive provisions of both documents, sometimes word-for-word.
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44 Am. U.L. Rev. 757, *

Copyright (c) 1995 The American University Law Review
American University Law Review

February, 1995

44 Am. U.L. Rev. 757

LENGTH: 19623 words

ARTICLE: WILL THE FEDERAL COURTS OF APPEALS PERISH IF THEY PUBLISH? OR DOES THE DECLINING USE OF OPINIONS TO EXPLAIN AND JUSTIFY JUDICIAL DECISIONS POSE A GREATER THREAT?

NAME: Martha J. Dragich *
The concept that a written record of decisions is needed for a system of law based on precedents to function is not new. 66 But for centuries, the most important sources of the law were treatises that restated the law, 67 such as the commentaries of Coke 68 and Blackstone. 69 Decisions were relatively few, and many of the fields of law we know today did not exist. The law could be reduced to a treatise that synthesized, but did not reproduce, the precedents. 70 Moreover, law was practiced in a more homogeneous society and was primarily confined to the local jurisdiction. Lawyers and judges could remember the salient precedents as easily as law students today [*772] remember black letter rules. 71 Legal “research,” therefore, was a very different process. Lawyers usually consulted only a small number of highly familiar sources, including their own notes of important cases. 72

See Maltz, supra note 63, at 372 (explaining that precedent controls future cases with similar facts).

Click here to return to the footnote reference.n65 Leflar, supra note 6, at 810-11.

Click here to return to the footnote reference.n66 See HAIG BOSMAJIAN, METAPHOR AND REASON IN JUDICIAL OPINIONS 23 (1992) (stating that written records are necessary for legal systems based upon precedent). The Anglo-American practice dates back at least to the early British Yearbooks of the 14th century. These reports, however, like private reports that followed them, were unofficial and incomplete, and their accuracy is questionable. Id. at 23-24.

Click here to return to the footnote reference.n67 See CRAIG E. KLAFTER, REASON OVER PRECEDENTS: ORIGINS OF AMERICAN LEGAL THOUGHT 12-14 nn.31-32 (1993). Early treatises served as the basic text for legal education. Henry St. George Tucker wrote of Blackstone’s Commentaries:

The transcendental merit of the Commentaries on the Laws of England precludes every idea of improvement, on the method observed in them; and where the law remains unaltered, it would be presumption to deviate from the authority, or even the language of their Author, the precision of the one being equal to the weight of the other.

St. George Tucker’s Lecture Notebooks, Tucker-Coleman Collection, Earl Gregg Swem Library, College of William and Mary, Williamsburg, Virginia, cited in id. at 14 n.66. Although some of the described laws were inapplicable in the United States, early American lawyers used the Commentaries as a prototype for American law. Id. at 31. St. George Tucker later revamped Blackstone’s Commentaries to make it wholly relevant to the United States. HENRY ST. GEORGE TUCKER, COMMENTARIES ON THE LAWS OF VIRGINIA (Winchester, Va. 1831); see also DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 3 (1941) (stating that in first century of American jurisprudence, “the Commentaries were not merely an approach to the study of law; for most lawyers they constituted all there was of the law”).

Click here to return to the footnote reference.n68 SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND (Philadelphia, R.H. Small 1853).

Click here to return to the footnote reference.n69 SIR WILLIAM BLACKSTONE, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA (Philadelphia, Birch & Small 1803).

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Click here to return to the footnote reference.n62. See, e.g., David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375, 1382 (1996) (“Blackstone’s Commentaries were later adopted by United States courts as the authoritative statement of English common law prior to the independence of the American colonies and the drafting of the Constitution.”).
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“Blackstone’s treatise, Commentaries on the Laws of England, served as the source of law for American courts.”
Mark Spatz, COMMENT: SHAME’S REVIVAL: AN UNCONSTITUTIONAL REGRESSION, 4 U. Pa. J. Const. L. 827, 835 (2002).

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the English common law regarded international law as a species of natural law – and therefore a part of the domestic law – that bound all individuals and states consistent with the principle that natural law resided at the apex of the hierarchy of sources of law both domestic and international. See 4 William Blackstone, Commentaries 66, 73 (stating that international law was “deducible by natural reason,” and that each state is expected “to aid and enforce the law of nations, as part of the common law; by inflicting an adequate punishment upon offenses against that universal law”); Adam Smith, The Theory of Moral Sentiments 340-41 (D.D. Raphael & A.L. MacFie eds., Clarendon Press 1976) (1759) (“Every system of positive law may be regarded as a more or less imperfect attempt towards a system of natural jurisprudence … .”).

1429 n. 248

79 Notre Dame L. Rev. 1365, *

Copyright (c) 2004 Notre Dame Law Review
University of Notre Dame

July, 2004

79 Notre Dame L. Rev. 1365

LENGTH: 43074 words

SYMPOSIUM: THE CHANGING LAWS OF WAR: DO WE NEED A NEW LEGAL REGIME AFTER SEPTEMBER 11?: “THE DUTY TO DEFEND THEM”: 1 A NATURAL LAW JUSTIFICATION FOR THE BUSH DOCTRINE OF PREVENTIVE WAR

NAME: William C. Bradford*

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“The Bonham’s Case principle was affirmed, though carefully circumscribed, only fifty-three years before Blackstone wrote his Commentaries. 85 Though the principle was not categorically denied until 1871,”
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7 Regent U.L. Rev. 1, *

Copyright (c) 1996 Regent University
Regent University Law Review

Fall, 1996

7 Regent U.L. Rev. 1

LENGTH: 21286 words

ARTICLE: Courts of General Jurisdiction: Judicial Power Extending to Cases Arising under the “LAWS of Nature and of Nature’s God”

NAME: Glenn M. Willard *
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in Blackstone’s eighth edition of his Commentaries, published in 1778, there is a note in the margin of a copy, alleged to be in Blackstone’s own hand, that makes the latter part of the second sentence of the quotation above read: “I know of no power in the ordinary forms of the Constitution that is vested with authority to control it.” 89 The ninth and all later editions have this modification. Josiah Quincy suggested that Blackstone had changed his opinion with respect to judicial review, as a consequence of American precedents. 90 Even Brent Bozell, who was extremely skeptical of the presidential attention paid to Bonham’s Case, conceded that “the change was evidently made to allow for the right of revolution.”
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“all of our formative documents – the Declaration of Independence, the Constitution, the Federalist Papers, and the seminal decisions of the Supreme Court under John Marshall – were drafted by attorneys steeped in [Blackstone’s Commentaries].”
Robert A. Ferguson, Law and Letters in American Culture 11 (1984).

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[***73] for a term of years, all the other inhabitants of New Jersey from taking fish there.

2. Another answer to this objection is, that Magna Charta is a mere statute, and its application was local and confined to the realm of England, for which the Parliament which passed it was the local legislature, unless subsequently expressly extended to the colonies by competent authority.

1. This is shown upon the face of the statute itself. The preamble contains this language. Cited Coke’s Institutes, part 1, vol. 1, p. 1, English ed. 1817.

In order further to show the proper construction of the sixteenth chapter of Magna Charta, Mr. Wright also cited 2 Black. Com. 39; Cruise’s Digest, 261, title Franchise; Duke of Somersett v. Fogwell, 2 Barn. & Cress. 875; 1 Statutes of Great Baritain and Ireland, 579, 718, vol. 2, 213, 242, 644, 688; 7 Coke’s Rep. part 13, p. 35, 36.

It is believed that both the objections above enumerated are effectually disposed of by the considerations and authorities presented, and that the proposition before arrived at is fully established, viz.: “That the King of England had the right, by the laws of nations, and the laws of England, at least until the statute of [***74] 1 Anne, in the year 1701, to grant in fee, to a subject, the crown lands, and various royal franchises, portions of the property and inheritance of the crown, within the realm; and the subject could take, hold, possess, and enjoy in full propriety, according to the grant, the lands and franchises, so conveyed to him by the sovereign.”

This Court has adopted these principles, as to the power of the king over his distant and conquered dominions; and has applied them to the American colonies, especially so far as they relate to grants of the soil of this country, in a great variety of decisions. One of the leading cases, if not the most so, is that of Johnson v. M’Intosh, in which the opinion of the Court was pronounced by the late Chief Justice Marshall. Johnson v. M’Intosh, 8 Wheat. Rep. 543, 573, 574, 595, 597.

Whatever then may have been, or may be the power of the King of England to grant lands within the realm, it is believed the main question with which this argument commenced may now be safely answered. That the King of England, in conformity with the laws of nations and the laws of England, could convey, in the year 1664, to a subject of his realm, a valid title to lands [***75] covered by the water of bays, rivers, and arms of the sea, where the tide ebbs and flows, in the then province of New Jersey; and that the Court of the United States cannot, according to the wellestablished principles of the laws of nations, of the laws of England, and of the laws of the United States, as applicable to grants of land within the United States, pronounce such a conveyance void, for the want of constitutional and legal power in the king to make the grant.

Martin v. Lessee of Waddell, 41 U.S. 367
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In England, their early and fundamental laws, and especially their Magna Charta, were called constitutions; and before the revolution these were called by our ancestors, “the constitution,” the “English constitution,” “the constitution venerable to Britons and Americans” — 1 Journal American Congress, 60, 65, 138, 148, 149, 163.Many of the fundamental principles of public liberty contained in Magna Charta are copied into the constitution of Mississippi and of the [***55] other states. How then is this great constitutional law regarded and construed in England? In the first place, then, it was a law, and is thus described in Dwaris on Statutes, 801 — “Magna Charta, 9. H. 3, is the earliest statute we have on record” — It contains 37 chapters.” Among the rules of construing this fundamental law here laid down was this, that “no sanction was wanting to enforce its obligations,” that no judgment could be given by any court “contrary to any of its points,” but that it should be observed with “the most scrupulous care” — Lord Coke says in regard to it, “As the gold finer will not out of the dust, threads, or shreds of gold, let pass the loast crumb, in respect of the excellency of the metal, so ought not the learned to let pass any syllable of this law in respect of the excellency of the matter.” But here in our Magna Charta, the fundamental law of the state, consecrated as the act of the people in their highest sovereign capacity, we are to give less effect to its provisions than to subordinate legislative enactments. In a statute, it is admitted these words would be a prohibition, but in this fundamental law, these same words are not so to operate, [***56] but are to be changed by implication and interpolation, or rather by what Coke calls “divination,” guessing, or judicial astrology, into a mere direction to the legislature. Was Magna Charta ever regarded as a mere direction to parliament? No, it was universally interpreted as addressed to the courts, and to be enforced by them with the most “scrupulous observance” of all its provisions. And if by implication or interpolation we shall construe one portion as addressed to the legislature for their direction, where is the rule to stop? Parts of this constitution are addressed in words to the legislature, and other portions are not so addressed; and when the framers of the constitution intended merely to give directions to the legislature, they so declared, and not otherwise. No British court would so construe any clause of Magna Charta as to defeat any of its fundamental principles, or to change them into mere directions to the legislature; and shall an American court regard as less sacred the prohibitory enactments of the constitution? Among the canons for construing Magna Charta is the maxim “Verba ita sunt intelligenda, ut res magis valeat quam pereat;” but here we are asked [***57] so to construe this provision that it may perish and be treated as a dead letter. Indeed this clause is asked to be expounded as the young interpret dreams, by contraries; and when our fundamental law says, this traffic “shall be prohibited from and after the first May, 1833, — this is to be construed “shall not be prohibited” on that or any other day but such as the legislature may or may not think proper to designate.

Groves v. Slaughter, 40 U.S. 449

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And not only is such legislative authority not conferred upon Congress by the Constitution, but it is, in effect, expressly denied. The fifth amendment contains restrictions taken, in substance, from Magna Charta. Among them are the provisions that no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use [***77] without just compensation.These are restrictions upon legislative as well as executive power. What is due process of law is well understood. It is law in regular course of administration through courts of justice. Coke, 2 Inst. 272; Murray’s Lessee v. The Hoboken Land and Improvement Co., 18 How. 272. “The terms ‘the law of the land,’ said Chief Justice Ruffin (Hoke v. Harderson, 4 Dev. (N.C.) 1), do not mean merely an act of the General Assembly. If they [*738] did, every restriction upon legislative authority would be at once abrogated, and private property would be at the mercy of the legislature.” p. 15.

Sinking-Fund Cases, 99 U.S. 700

[***93] State bankrupt laws, since the Constitution went into effect, have only been sustained when operating prospectively [*746] upon contracts, and then only in the absence of a national law. The inhibition referred to undoubtedly had its origin in these considerations. It fully explains the fact that no such inhibition was laid upon the national legislature; and the absence of such an inhibition, therefore, furnishes no ground of argument in favor of the proposition that Congress may pass arbitrary and despotic laws with regard to contracts any more than with regard to any other subject-matter of legislation. The limitations already quoted exist in their full force, and apply to that subject as well as to all others. They embody the essential principles of Magna Charta, and are especially binding upon the legislative department of the government. Under the English Constitution, notwithstanding the theoretical omnipotence of Parliament, such a law as the one in question would not be tolerated for a moment. The famous denunciation that “it would cut every Englishman to the bone,” would be promptly reiterated.

Sinking-Fund Cases, 99 U.S. 700

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