Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P19

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Gale Encyclopedia of American Law Volume 4 P19 fully illuminates today's leading cases, major statutes, legal terms and concepts, notable persons involved with the law, important documents and more. Legal issues are fully discussed in easy-to-understand language, including such high-profile topics as the Americans with Disabilities Act, capital punishment, domestic violence, gay and lesbian rights, physician-assisted suicide and thousands more.

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EN G L I S H L A W 169



antecedents of many substantive areas of U.S. In 1215, King John
law, including the ubiquitous system of state and approved the Magna
federal TAXATION, may be found in English history Charta, which
guaranteed
as well.
fundamental liberties
The story of English CONSTITUTIONAL LAW to the church and to
prior to the American Revolution, which is individuals.
CORBIS.
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 loose collection of
decentralized customs, traditions, and rules
followed by the Anglians and Saxons, among The most common forms of ordeal involved
others. Criminal cases were indistinguishable boiling or freezing waters and hot irons. In the
from civil cases, and both secular and spiritual ordeal of freezing water, accused persons were
disputes were resolved at the local level by thrown into a pool to see if they would sink or
community courts. Trials in the modern sense float. If they sank, the cleric believed they were
did not exist, nor did juries. Guilt and innocence innocent, because the water would presumably
were determined by compurgation and ordeal. reject someone with an impure soul. Of course,
Compurgation was a ritualistic procedure in persons who sank to the bottom and drowned
which accused persons might clear themselves during this ordeal were both exonerated of their
of an alleged wrongdoing by taking a sworn alleged misbehavior, and dead.
oath denying the claim made against them, and Battle was another form of primitive trial
corroborating the denial by the sworn oaths of that was thought to involve divine intervention
12 other persons, usually neighbors or relatives. on behalf of the righteous party. The comba-
If an accused person failed to provide the tants were armed with long staffs and leather
requisite number of compurgators, he or she shields, and fought savagely until one party
lost. The number of compurgators was the same cried, “Craven,” or died.
as the number of jurors later impaneled to hear Trial by battle, though in many ways as
criminal cases under the common law. In the barbaric as trial by ordeal, foreshadowed
United States, the SIXTH AMENDMENT to the modern trials in several ways. The combatants
Constitution required that all criminal trials be fought in an adversarial arena before robed
prosecuted before 12 jurors—until 1970, when judges who presided over the battle. The accused
the Supreme Court ruled that six-person juries person was required to put on a defense, quite
were permissible (Williams v. Florida, 399 U.S. literally in the physical sense, against an oppo-
78, 90 S. Ct. 1893, 26 L. Ed. 2d 446). nent who was trying to prove the veracity of his
Trial by ordeal was a superstitious proce- or her claims. Some parties to a battle,
dure administered by clerics who subjected particularly women, children, and older indivi-
accused persons to physical torment in hopes of duals, were entitled to hire stronger, more able
uncovering divine signs of guilt or innocence. champions to fight on their behalf. This last


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170 ENGLISH LAW



practice sheds light on the more recent phrase invested with the authority to prosecute persons
hired guns, which is sometimes used to describe accused of criminal wrongdoing.
U.S. trial attorneys. Henry II also laid the groundwork for the
William the Conqueror understood the common-law method of deciding cases, where-
importance of revenue, and that is where he by judges make decisions in accordance with
began building the English empire. In 1086 other decisions they have rendered in similar
William initiated the Domesday Survey, which matters. The royal system of justice was governed
sought to determine the amount and value of by a single set of legal rules and principles, which
property held in England, for the purpose of was applied evenhandedly to litigants presenting
assessing taxes against the owners. The Domes- claims to the monarch’s justices. This system
day Survey was conducted by eight panels of superseded one that applied the often inconsis-
royal commissioners who traveled to every tent customary laws of neighboring communities
county in the country, where they collected of different ethnic backgrounds. Because the
information through sworn inquests. Although monarch’s law was applied in a uniform manner,
the survey began as a method of recording real it became “common” to every shire in the land.
property held in the kingdom, one contempo- This “common-law” system of adjudication was
rary Saxon chronicler moaned “that there was adopted by the American colonies and continues
not a single hide … nor … ox, cow or swine” to be applied in nearly all of the 50 states of the
omitted (Trevelyan 1982). The Court of Union.
Exchequer served as auditor, accountant, and
In addition to becoming more prevalent, the
tax collector for William, and provided a venue
royal system of justice was becoming more
to settle disputes between the Crown and
popular. Its popularity stemmed from the
taxpayers, becoming the earliest DEPARTMENT OF
rational legal procedures and reliable modes of
STATE.
evidence developed by the King’s Court, which
William’s system for revenue collection slowly supplanted their superstitious, ritualistic,
began a process that gradually replaced the and dangerous predecessors, compurgation,
community courts of justice with a legal system ordeal, and battle. One new rational procedure
that emanated from a central location, the was trial by jury, which Henry II made available
king’s castle in Westminster. One symbol of in land disputes between laypersons and the
powerful centralized government in the United clergy. The juries comprised 12 sworn men who
States is the INTERNAL REVENUE SERVICE. For many possessed some knowledge of the property
U.S. citizens, paying taxes is a necessary evil. dispute, and were asked to announce a VERDICT
Taxes are necessary to keep the government, to the royal justices based on this knowledge.
and its justice system, afloat. At the same time, The trial-by-jury system employed by Henry II,
they take away individuals’ money. though only an embryonic form, reflected
society’s growing understanding that verdicts
Henry II (1154–89) further strengthened the
based on personal knowledge of a dispute were
central government by enlarging the power and
more reliable than verdicts based on ordeals of
jurisdiction of the royal system of justice. During
freezing water and contests of brawn and agility.
his reign, any crime that breached the ruler’s
peace was tried before a royal court sitting in Henry II also made the law more imper-
Westminster, or by royal itinerant justices who sonal and less vindictive. In 1166, the Assize of
traveled to localities throughout England to hear Clarendon prohibited the prosecution of any-
disputes. Heretofore, the royal court heard only one who had not first been accused by a
cases that directly threatened the monarch’s “presenting jury” of 12 to 16 men from the
physical or economic interests. Most other community in which the crime occurred. The
complaints, except for those heard by the presenting jury foreshadowed the modern
Catholic Church, were leveled by private indivi- GRAND JURY as an ACCUSATORY BODY that identified
duals, who were also responsible for proving persons for prosecution but made no determi-
their accusations. By increasing the sphere of nation as to guilt or innocence. The presenting
what the government considered public wrongs, jury was seen as a more neutral and detached
Henry II laid the groundwork for the modern alternative to the system it replaced, which
U.S. criminal justice system, where attorneys for required the alleged victims, some of whom
the federal, state, and local governments are were waging a personal vendetta against the


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accused person, to identify alleged criminals for The tyranny of King John (1199–1216)
prosecution. alienated the church and the barons, converting
The writ de odio et atia provided additional them into adversaries of the Crown. John was
safeguards for defendants wrongfully accused of excommunicated by the pope, church services
criminal activity, by permitting the DEFENDANT to and sacraments were suspended in England, and
appeal legal issues to the King’s Court in cases the barons renounced homage to the Crown.
where the complainant was proceeding out of Spearheaded by Stephen Langton, archbishop of
spite or hatred. This writ of appeal was an early Canterbury, the barons confronted King John
precursor to the modern appellate system in the on the battlefield at Runnymede, where they
United States, which similarly permits parties to won recognition for certain fundamental liber-
appeal legal issues they believe did not receive ties contained in the 63 clauses that make up the
appropriate consideration at the trial level. Magna Carta.
The presenting jury and writ of appeal The Magna Carta granted the church
underpin two beliefs that have been crucial to freedom from royal interference except in a
the development of the English and U.S. limited number of circumstances, establishing
systems of justice. The first is the belief that a in nascent form the separation of church and
wrongfully accused person is no less a victim state. The Great Charter required that all fines
than is the target of civil or criminal malfea- bear some relationship to the seriousness of the
sance. The second is the belief that the legal offense for which they were imposed, establish-
system must provide an impartial forum for ing the principle of proportionality between
seeking the truth in disputed legal claims. These punishment and crime, which the U.S. Supreme
two beliefs paved the way for an assortment of Court still applies under the CRUEL AND UNUSUAL
procedural and evidentiary protections that PUNISHMENT Clause of the EIGHTH AMENDMENT to

have evolved to protect innocent persons from the U.S. Constitution.
being unjustly convicted in criminal cases, and Most important the Magna Carta prohibited
to keep prejudices from biasing judges and any “free man” from being “imprisoned, or
jurors in civil cases. disseised, … or exiled, … except by the lawful
However, the English monarchy did not judgment of his peers, or by the law of the land”
centralize its power without cost. Frequently, (ch. 39). The phrase “law of the land” was later
English rulers abused their enlarged power to equated with “due process” in the American
such an extent that they met with popular colonies and received constitutional recognition
resistance. One of the earliest such confronta- in the Fifth and Fourteenth Amendments to the
tions occurred in 1215, and produced the U.S. Constitution. The Supreme Court has
first great charter of constitutional liberties, described due process as the “most comprehen-
the MAGNA CARTA. The Magna Carta can best be sive of liberties” guaranteed in the Constitution
understood as a peace treaty between three rival (ROCHIN V. CALIFORNIA, 342 U.S. 165, 72 S. Ct. 205,
jurisdictions of political and legal power: the 96 L. Ed. 183 [1952]), and has relied on the Due
Crown, the church, and the barons. Process Clause of the FOURTEENTH AMENDMENT to
make most of the freedoms contained in the BILL
In the thirteenth century, the king’s system
OF RIGHTS applicable to the states.
of justice competed for influence with ecclesias-
tical and manorial courts. The ECCLESIASTICAL Fifty years after Magna Carta, Parliament
COURTS were run by the Catholic Church, with was created to serve as an additional check on
the pope presiding as the spiritual head in the arbitrary power of the monarchy. In 1265,
Rome. Manorial courts were run by barons, Parliament was a very small body, consisting
who were powerful men holding large parcels of of two knights from each shire, two citizens
land from the king, known as manors. Each from each city, and two burgesses from each
baron, as lord of his manor, retained jurisdic- borough. By the fourteenth century, Parliament
tion over most legal matters arising among his was being summoned to advise the monarch,
tenants, also called vassals, who agreed to work vote on financial matters, and supervise the
on the land in exchange for shelter and security. excesses of local officials. Representatives for the
The jurisdictions of the Crown, the church, and barons, later known collectively as the House of
the barons overlapped and each depended on Lords, wielded more power than did represen-
the others for support. tatives for the commoners, later known


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Dr. Bonham’s Case
r. Bonham’s Case, 8 Co. Rep. 114 Bonham refused to undergo further and sometimes adjudge them to
D (Court of COMMON PLEAS [1610]),
stands for the principle that legislation
examination. As a graduate of Cambridge,
he asserted that the London College of
be utterly void: for when an Act
of Parliament is against common
passed by the English Parliament is Physicians had no jurisdiction over him right and reason, or repugnant,
subordinate to the common-law deci- and thus possessed no authority to arrest or impossible to be performed,
sions made by trial and appellate court or fine him. Promising to continue his the common law will controul it,
judges, and any statute that is contrary to practice of physic medicine if released, and adjudge such Act to be void.
“common right and reason” must be Bonham was immediately jailed. Coke placed the judiciary in the
declared void (Thorne 1938). The case came before the Court of middle of what was becoming a titanic
The decision in this case, which was Common Pleas when Bonham claimed struggle for power between Parliament
written by SIR EDWARD COKE sitting as chief that his continued detention by the and the ruler of England. Until the
justice for the Court of Common Pleas in college amounted to FALSE IMPRISONMENT. seventeenth century, the English monar-
England, spawned the concept of JUDICIAL As a defense, the college relied on its chy enjoyed nearly absolute power over
REVIEW under which courts of law, as the statute of incorporation, which autho- all political and legal matters that con-
primary oracles of the COMMON LAW in the rized it to regulate all physicians in cerned the country as a whole. Despite
British and U.S. systems of justice, are London and to punish practitioners not the growing popularity and importance
authorized to invalidate laws enacted by licensed by the college. The statute also of Parliament during the fifteenth and
the executive and legislative branches of entitled the college to one-half of all the sixteenth centuries, the monarchy’s au-
government. The power of judicial review, fines imposed by it. tocratic power, which King James I
which was first recognized by the U.S. The Honorable Justice Coke, also a (1603–25) asserted was divine in origin,
Supreme Court in MARBURY V. MADISON, 5 Cambridge graduate, sided with his included the prerogative to enact laws
U.S. (1 Cranch) 137, 2 L. Ed. 60, is fellow alumnus. After singing the praises without parliamentary consent.
invoked by courts every day across the of their alma mater, Coke argued that By the close of the seventeenth
United States but has since been rendered because the college censors were entitled century, however, the pendulum of
obsolete in England. to receive a portion of the fine they power had swung in favor of Parliament.
Bonham’s Case arose from a dispute imposed on Bonham, the statute made The Glorious Revolution of 1688 sub-
regarding the unlicensed practice of them prosecutor, PLAINTIFF, and judge in ordinated the power of the English
medicine. Dr. Thomas Bonham had the dispute: “The censors cannot be Crown and judiciary to parliamentary
received a degree in physic medicine from judges, ministers and parties; judges … sovereignty. In 1765 English jurist SIR
the University of Cambridge. In 1606 give sentence or judgment; ministers … WILLIAM BLACKSTONE described “the power
Bonham was discovered practicing such make summons; and parties … have of Parliament” to make laws in England
medicine in London without a license, moiety [half] of the forfeiture, because as “absolute,” “despotic,” and “without
and was summoned to appear before the no person may be a judge in his own control.”
censors at the London College of Physi- cause … and one cannot be judge and
The American Revolution, which
cians, who maintained jurisdiction in that attorney for any of the parties.” Coke
began 11 years after Blackstone’s pro-
city over the practice of medicine. suggested that the impartiality of a judge
nouncement of Parliament’s unfettered
is compromised when the judge is also
Bonham was examined by the col- power, was commenced in response to
the plaintiff who will benefit financially
lege censors in a number of areas the coercive legislation passed in the
from any fines imposed on the DEFENDANT,
regarding his professional practice, and colonies by what had become a despotic
or the prosecutor who is the advocate
provided answers “less aptly and insuffi- Parliament. THOMAS JEFFERSON, JAMES
responsible for seeking such fines. Al-
ciently in the art of physic” (Stoner 1992, though the parliamentary statute in MADISON, and their contemporaries be-
49). As a result, Bonham was determined question clearly contemplated that Lon- lieved that a legislative despot was no
unfit to practice medicine in this field, don College would wear all three of these better than a monarchical despot. In
and was ordered to desist from such hats, Coke observed, 1787 the U.S. Constitution established
practice in London. When Bonham was the judiciary as a check on the legislative
later discovered flouting this order, he [I]t appears in our books, that in and executive branches of government, a
was arrested and placed in the custody of many cases, the common law check that was foreshadowed by Coke’s
the censors. will controul Acts of Parliament, opinion in Bonham’s Case.




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James I was cognizant of the dangers America on the Mayflower, and the The U.S. acceptance of the legal
Bonham’s Case presented to his claims Massachusetts General Court ordered principles enunciated in Bonham’s Case
of divine royal prerogative. The king two complete sets from England in culminated in 1803 when the U.S.
understood that the “common law,” 1647. Coke’s opinion in Bonham’s Case Supreme Court handed down its deci-
which Bonham’s Case said controlled acts was among his most popular writings. sion in Marbury, which established the
of Parliament, was really just a decision In Paxton’s Case of the Writ of power of judicial review by authorizing
made by a court of law, or, more Assistance, Quincy 51 (Mass. 1761), federal judges to invalidate unconstitu-
particularly, by a judge or panel of judges. colonist James Otis challenged Massa- tional laws enacted by the coordinate
James also understood that if the judiciary chusetts’s authority to issue writs of branches of government. Nowhere in
were allowed to assert the power to review assistance, general search warrants that Marbury does the Supreme Court cite
acts of Parliament, it was only a short step empowered local sheriffs to enter private Bonham’s Case or expressly quote Lord
away from passing judgment on actions homes and businesses to seize smuggled Coke. But the influence of both Coke
taken by the Crown. goods. Otis told the colonial court that and his opinion cannot be missed.
Accordingly, King James removed he objected to such writs, which were Chief Justice JOHN MARSHALL, writing
Coke from the Court of Common Pleas created by a parliamentary act in 1662, for a unanimous Court, began his
in 1613, appointing him chief justice of the because they violated the principle of opinion in Marbury with two premises:
King’s Bench. This constituted a promo- Bonham’s Case: “As to acts of parliament, the “constitution controls any legislative
tion in name only, because Coke was now an act against the Constitution is void. act repugnant to it,” and “an act of the
under closer scrutiny by the Crown. An act against natural equity is void; and legislature repugnant to the constitution
Much to the Crown’s chagrin, Coke’s if an act of parliament should be made in is void.” Congress cannot be entrusted to
replacement on the Court of Common the very words of this petition, it would determine the constitutionality of legisla-
Pleas, Sir Henry Hobart, expanded the be void. The Executive Courts must pass tion passed by the House and Senate,
concept of judicial review intimated by such acts into disuse.” Marshall implied, for the same reason
Bonham’s Case. In Day v. Savadge, Hob. 84 JOHN ADAMS, who was in the Boston the London College censors could not be
(K.B. 1614), Hobart declared that “an act of courtroom where Otis made his argu- allowed to judge their own cause.
parliament made against natural equity, as ment for the colonial application of “To what purpose are the powers [of
to make a man judge in his own cause, is Bonham’s Case, later exclaimed, “Then Congress] limited” by the federal Consti-
void in itself” (as quoted in American and there the child Independence was tution, Marshall asked, “if these limits
General Insurance Co. v. FTC, 589 F.2d born.” Adams might also have exclaimed may, at any time, be passed by those
462 [9th Cir. 1979]). Where did the new that the seeds of judicial review had been intended to be restrained?” In a passage
chief justice derive the court’s power to planted in the American colonies by Otis, that harkens back to Chief Justice
invalidate the laws of Parliament? Hobart who was unequivocally assigning to Hobart’s opinion in Sheffield v. Ratcliff,
said, “[B]y that liberty and authority that “Executive Courts” the responsibility of Marshall concluded that only the judicial
judges have over laws, especially … statute invalidating parliamentary legislation branch of government can be entrusted
laws, according to reason and best conve- that violated constitutional precepts. with such an overreaching power: “It is
nience, to mould them to the truest and Four years later, the colonies again emphatically the duty of the judicial
best use” (Sheffield v. Ratcliff, Hob. (K.B. relied on the principle of Bonham’s Case, department to say what the law is. Those
1615), as quoted in Plucknett 1926, 50). this time in their opposition to the STAMP who apply the rule to particular cases,
Exasperated by such further attempts ACT, a parliamentary statute that taxed must of necessity expound and interpret
to limit his prerogative, James I dis- everything from newspapers to playing the rule. If two laws conflict with each
missed Coke from the King’s Bench, and cards. Thomas Hutchinson, lieutenant other, the court must decide on the
ordered him to “correct” his decision in governor of Massachusetts, encouraged operation of each.”
Bonham’s Case, which had subsequently the “friends of liberty” and opponents of Although Chief Justice Marshall’s
been published in England’s CASE LAW the Stamp Act to “take advantage of the opinion in Marbury extended to the
reporter known as The Reports. Coke maxim they find in Lord Coke that an act United States the principles of judicial
refused to accede to the king’s demands. of parliament against Magna Carta or the review first intimated in Bonham’s Case,
The importance of Coke’s opinion in peculiar rights of Englishmen is ipso facto judges, lawyers, and laypersons still
Bonham’s Case is sometimes downplayed void.” debate the legitimacy of allowing un-
by some scholars who point to England’s In 1786 the Superior Court of Rhode elected (appointed) judges to invalidate
later recognition of Parliament as the Island relied on Bonham’s Case to strike legislation enacted by representative
country’s supreme sovereign entity. How- down a statute that denied the right to institutions in a democratic country.
ever, this criticism overlooks the indelible trial by jury for certain crimes, because
imprint left by Bonham’s Case on U.S. law. “Lord Coke” held that such statutes were FURTHER READINGS
The American colonists were inti- “repugnant and impossible” (Trevett v. Edwards, R.A. 1996. “Bonham’s Case: The
mately familiar with the writings of Lord Weeden [Newport Super. Ct. Judicature], Ghost in the Constitutional Machine.”
Coke. Coke’s Reports first came to as quoted in Plucknett 1926, 66). Denning Law Journal (annual): 63–90.




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collectively as the House of Commons, who muscle-flexing exercises conducted by Parlia-
were summoned merely to assent to royal will. ment and the monarchy. The Commons
It was not long, however, before the Com- impeached several of the king’s top advisers
mons realized that its approval carried a measure and demanded redress of the grievances it
of authority. In 1309, the Commons granted a summarized in the 1628 Petition of Right. The
subsidy to King Edward II (1307–27) on condi- monarchy, in turn, dismissed Parliament on a
tion that he redress its grievances. During the number of occasions, and attempted to govern
reign of Edward III (1327–77), Parliament without requesting revenue from the Commons.
asserted three claims that would be echoed with These political struggles came to a crescendo
minor variation in the American colonies: Taxes when King Charles I (1625–49) and Thomas
assessed without approval from both houses of Wentworth, the commander of the king’s
Parliament were void, legislation passed by only largest army, were tried, convicted, and exe-
one house of Parliament lacked legal effect, and cuted for subverting Parliament and the RULE OF
the Commons reserved the right to investigate LAW. The indictment against the king reads
and remedy any abuses by the royal administra- much like the DECLARATION OF INDEPENDENCE:
tion. A century later, during the reign of Henry
Whereas it is notorious, That Charles Stuart,
VIII (1509–47), the Commons asserted the the now king of England, not content with
power of the purse, arguing that all money bills those many encroachments which his pre-
must originate in its house. decessors had made upon the people in their
rights and freedoms, hath had a wicked design
These claims, although fairly innocuous
totally to subvert the ancient and fundamental
when originally asserted by the Commons, were laws and liberties of this nation, and in their
interpreted by subsequent Parliaments to mean place to introduce an arbitrary and tyrannical
that no one could rule without the consent of government; and that besides all other evil
Parliament, and royal officials who abused their ways and means to bring this design to pass,
power, including the ruler, could be impeached he hath prosecuted with fire and sword, levied
and maintained a cruel war in the land against
and removed from office. When the English civil
the parliament and kingdom, whereby the
war known as the War of the Roses (1455–85) country hath been miserably wasted, the
substantially depleted the ranks of the barons, the public treasure exhausted, trade decayed,
voice of the Commons grew louder as the thousands of people murdered, and infinite
representatives of the commoners were left to other mischiefs committed.
fend almost for themselves against a monarchical During the sentencing phase of the trial, the
power that, culminating in the reign of James I president of the High Court of Justice instructed
(1603–25), claimed to be divine in origin and the king, in language that resonates through the
absolute in nature. U.S. Constitution, “[T]he Law is your Superior,”
The struggles between Parliament and and the only thing superior to the law is the
the crown for authority over England in the “Parent or Author of Law, [which] is the people
seventeenth century were a prelude to the of England.”
struggles between Parliament and the colonists In 1689 Parliament achieved victory in its
for control over the American colonies in the constitutional struggle with the monarchy when
eighteenth century. The monarchy maintained William and Mary (1689–1702) agreed to govern
that its power to govern England derived England as king and queen subject to a bill of
directly from God and thus overrode any rights. This English Bill of Rights, a forerunner to
earthly power, including that of Parliament the U.S. Bill of Rights, which was submitted to
and common law. Parliament, on the other Congress exactly one hundred years later, declares
hand, maintained that “the people, under God, that the monarchy’s “pretended power of sus-
were the source of all just power, and that pending of laws or the execution of laws by regal
Parliament represented the people.” authority without consent of Parliament is
Parliament and the monarchy waged battle illegal.” It also guarantees the right of each
on three fronts: military, political, and legal. English subject to “petition the king” for redress
The military struggle for power began in 1642 of grievances, and acknowledges Parliament’s role
when England again erupted into civil war. in “amending, strengthening, and preserving …
The political battles constituted a series of the laws” of the country.


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Although the English Bill of Rights ended Stoner, James R., Jr. 1992. Common Law and Liberal Theory:
England’s seventeenth-century constitutional Coke, Hobbes, and the Origins of American Constitution-
alism. Univ. Press of Kansas.
struggle between Parliament and the monarchy, Thorne, Samuel. 1938. “Dr. Bonham’s Case.” Law Quarterly
America’s eighteenth-century constitutional Review 54.
struggle with these two branches of government Trevelyan, George M. 1988. A Shortened History of England.
had not yet begun. By 1765 the pendulum of New York: Penguin.
power had swung fully toward Parliament, Wood, Gordon S. 1998. The Creation of the American
Republic. Chapel Hill: The Univ. of North Carolina
prompting eminent English jurist SIR WILLIAM Press.
BLACKSTONE to write that “[s]o long as the English Wormald, Patrick. 2001. The Making of English Law: King
constitution lasts … the power of Parliament” is Alfred to the Twelfth Century. Oxford: Blackwell.
“absolute,” “despotic,” and “without control.”
Because England had no written constitution CROSS REFERENCES
that constrained the legislative power of Parlia- Becket, Saint Thomas; Clarendon, Constitutions of; Domes-
ment, “every act of Parliament was in a sense day Book.
part of the [English] constitution, and all law …
was thus constitutional.” ENGLISH-ONLY LAWS
The American colonists soon discovered Laws that seek to establish English as the official
that a legislative despot was just as tyrannical as language of the United States.
a monarchical despot. The U.S. Constitution The movement to make English the official
put an end to the notion of absolute power language of the United States gained momen-
resting with any one sovereign, by separating tum at both the state and federal levels in the
the powers of government into three mid 1990s. In 1995 alone, more than five bills
branches—executive, legislative, and judicial— designating English as the official language of
and carefully delegating the powers of each. the United States were introduced in the U.S.
Although these safeguards against government- Congress. In September 1995 Representative
run-amok were the product of the violent John T. Doolittle (R-Cal.) proposed an amend-
American Revolution, they allowed for the ment to the U.S. Constitution that would
tranquil and uneventful integration of many establish English as the official language of the
ordinary English legal principles into the U.S. United States (H.R.J. Res. 109, 104th Cong., 1st
system of justice, including early BANKRUPTCY and Sess., 141 Cong. Rec. H9670-04 [1995]). The
welfare laws during the nineteenth century. proposed amendment states, in part,
FURTHER READINGS The English language shall be the official
language of the United States. As the official
Bailyn, Bernard. 1992. Ideological Origins of the American
language, the English language shall be used
Revolution. Enl. ed. Boston: Belknap.
Blackstone, William. 1765. Commentaries on the Laws of
for all public acts including every order,
England. Reprint, 2003. Clark, NJ: Lawbook Exchange. resolution, vote or election, and for all
Christenson, Ron. 1999. Political Trials: Gordian Knots in the records and judicial proceedings of the
Law. New Brunswick, NJ: Transaction. Government of the United States and the
———. 1991. Political Trials in History: From Antiquity to governments of the several States.
the Present. New Brunswick, NJ: Transaction. Related legislation considered in the U.S.
Landsman, Stephen. 1983. “A Brief Survey of the Develop-
House of Representatives included the National
ment of the Adversary System.” Ohio State Law
Journal 44. Language Act of 1995 (H.R. 1005, 104th Cong.,
Levy, Leonard. 1999. Origins of the Fifth Amendment: The 1st Sess., 141 Cong. Rec. H1967-04 [1995]),
Right Against Self-Incrimination. Chicago: Dee. introduced by Representative Peter T. King
Palmer, Robert C. 2002. Selling the Church: The English (R-N.Y.), and the Declaration of Official
Parish in Law, Commerce, and Religion. Chapel Hill:
Language Act of 1995 (H.R. 739, 104th Cong.,
Univ. of North Carolina Press.
Plucknett, T.F.T. 1926. “Bonham’s Case and Judicial 1st Sess., 141 Cong. Rec. H889-02 [1995]),
Review.” Harvard Law Review 40. introduced by Representative Toby Roth (R-
———. 2001. A Concise History of the Common Law. Clark, Wis.). Roth’s bill would abolish section 203 of
NJ: Lawbook Exchange. the VOTING RIGHTS ACT OF 1965 (42 U.S.C.A.
Slapper, Gary, and David Kelly. 2006. English Law. 2d ed.
§ 1973aa-1a), which requires bilingual ballots,
London: Routledge-Cavendish.
Smith, George P., II. 1966. “Dr. Bonham’s Case and the and the federal Bilingual Education Office,
Modern Significance of Lord Coke’s Influence.” which is funded through the Bilingual Educa-
Washington Law Review 41. tion Act of 1968 (20 U.S.C.A. §§ 3281 et seq.


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ILLUSTRATION BY GGS and enhanced. The Legislature shall make no
CREATIVE RESOURCES. States that Enacted English-Only Laws, 2009 law which diminishes or ignores the role of
REPRODUCED BY PER- English as the common language of the State
MISSION OF GALE, A
of California.
PART OF CENGAGE “English Only” States
LEARNING. Some versions of the proposed English
Alabama (1990) Louisiana (1812)
Alaska (1998) Massachusetts (1975) Language Amendment would void almost all
Arizona (2006) Mississippi (1987) state and federal laws that require the govern-
Arkansas (1987) Missouri (1998)
California (1986) Montana (1995) ment to provide services in languages other than
Colorado (1988) Nebraska (1920) English. The services affected would include
Florida (1988) New Hampshire (1995)
Georgia (1986 & 1996) North Carolina (1987) health, education and social welfare services, job
Hawaii (1978) North Dakota (1987) training, translation assistance to crime victims
Idaho (2007) South Carolina (1987)
Illinois (1969) South Dakota (1995)
and witnesses in court and administrative
Indiana (1984) Tennessee (1984) proceedings; voting assistance and ballots,
Iowa (2002) Utah (2000) drivers’ licensing exams, and AIDS-prevention
Kansas (2007) Virginia (1981 & 1996)
Kentucky (1984) Wyoming (1996) education. English-only laws apply primarily to
SOURCE: U.S. English, Inc.
government programs. However, such laws can
also affect private businesses. For example,
several Southern California cities have passed
ordinances that forbid or restrict the use of
[1988]). English-only advocates favor the elimi- foreign languages on private business signs.
nation of these programs, arguing that earlier English-only advocates have opposed a tele-
immigrants to the United States learned English phone company’s use of multilingual operators
without such government help. and multilingual directories, FEDERAL COMMUNI-
CATIONS COMMISSION licensing of Spanish-
In the U.S. Senate, Senator Richard C.
language radio stations, and bilingual menus
Shelby (R-Ala.) introduced the Language of
at fast food restaurants.
Government Act of 1995 (S. 356, 104th Cong.,
1st Sess., 141 Cong. Rec. S2124-04 [1995]). This Those who oppose English-only laws point
legislation states, in part, out that NATURALIZATION for U.S. citizenship does
[I]n order to preserve unity in diversity, and not require English literacy for people over 50,
to prevent division along linguistic lines, the nor for those who have been in the U.S. for 20
United States should maintain a language years or more. Thus, there are many elderly
common to all people; … the purpose of this immigrant citizens whose ability to read English
Act is to help immigrants better assimilate is limited, and who cannot exercise their right
and take full advantage of economic and to vote without bilingual ballots and other voter
occupational opportunities in the United
States; … by learning the English language,
materials. Moreover, these advocates maintain
immigrants will be empowered with the that bilingual campaign materials and ballots
language skills and literacy necessary to foster a more informed electorate by increasing
become responsible citizens and productive the information that is available to people who
workers in the United States. lack English proficiency.
By the end of 1995, more than 20 states had Advocates of English-only legislation argue
passed their own laws declaring English to be that having one official language will serve as a
the official state language. Most state English- unifying force in the United States. They point to
only laws have been established since the mid the findings of the 1990 census that 32 million
1980s, although Louisiana’s was enacted in U.S. citizens live in a non-English-speaking
1812. Many of the laws are largely symbolic household and that of these, 14 million persons
and lack an enforcement mechanism. For exam- do not speak English very well. In a 1995 Labor
ple, the California measure, CA Const. art. 3, § 6 Day address to the AMERICAN LEGION Convention
(West), a state CONSTITUTIONAL AMENDMENT ap- in Indianapolis, printed in 141 Cong. Rec. E
proved in 1986, simply states, 1703-01 (1995), U.S. Republican presidential
candidate and Senate Majority Leader Bob Dole,
The Legislature and officials of the State of
of Kansas, echoed this unification theme, stating,
California shall take all steps necessary to
insure that the role of English as the common [I]f we are to return this country to greatness,
language of the State of California is preserved we must do more than restore America’s


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E N G L I S H - O N L Y L A WS 177



defenses. We must return as a people to official language of state government. He said the
the original concept of what it means to be legislation’s anti-immigrant sentiment would
American…. For example, English must be divide the state’s citizens. In Arizona, critics of a
recognized as America’s official language….
constitutional provision making English the
Lacking the centuries-old, primal bonds of
other nations, we have used our language, our official language sued the state, the governor,
history and our code of values to make the and other state officials to stop its enforcement.
American experiment work…. These are the In Yniguez v. Arizonans for Official English,
forces that have held us together—allowing us 69 F.3d 920 (1995), the U.S. Court of Appeals
to … absorb untold millions of immigrants
for the Ninth Circuit upheld a lower court’s
while coming the closest any country ever
has to the classless, upwardly mobile society of ruling that the provision, which bars state and
our ideals. local employees from using any language other
than English in performing official duties,
Members of U.S. English, an advocacy group
violates free speech rights and that it is
founded in 1983, claim that English should be
unconstitutionally overbroad. This ruling was
the primary, but not exclusive, language of
later overturned, Arizonans for Official English v.
government. They believe that all official docu-
Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.
ments and proceedings should be in English, but
Ed.2d 170 (1997). The case began in October
would make exceptions for the use of other
1987, when an organization called Arizonans for
languages in such places as hospitals, emergency Official English began a petition drive to amend
rooms, police stations, and tourist sites. Actual- the Arizona Constitution to prohibit the govern-
ly, a 1995 study of government print commu- ment’s use of languages other than English. The
nications, conducted by the GENERAL ACCOUNTING drive resulted in the 1988 passage of Article
OFFICE, found that only a small percentage were
XXVIII of the Arizona Constitution, titled
in a language other than English. The study, English as the Official Language. Article XXVIII
requested by advocates of English as the official provides that English is the official language of
language of the government, examined titles the state of Arizona, and that the state and its
released by the GOVERNMENT PRINTING OFFICE and political subdivisions—including all government
an agency of the U.S. COMMERCE DEPARTMENT over officials and employees performing government
a five-year period. Of approximately 400,000 business—must act only in English.
titles examined, only 265, or less than 0.06 When the article was passed, Maria-Kelley
percent, were in a foreign language. The study Yniguez, a Latina, was employed by the Arizona
excluded foreign language communications Department of Administration, where she
issued by the DEPARTMENT OF STATE and the handled MEDICAL MALPRACTICE claims. She was
DEPARTMENT OF DEFENSE, which most English-only bilingual in Spanish and English and commu-
advocates consider to be a legitimate use of nicated in Spanish with Spanish-speaking clai-
languages other than English. mants and in a combination of English and
Critics argue that English-only laws are a Spanish with bilingual claimants. Because state
hostile reaction to the ongoing influx of employees who fail to obey the Arizona
immigrants to the United States. In a September Constitution are subject to employment sanc-
1995 address to the Congressional Hispanic tions, Yniguez stopped speaking Spanish on the
Caucus, President BILL CLINTON attacked the job immediately upon passage of Article
English-only movement, stating, XXVIII, because she feared that she would be
disciplined. In November 1988, Yniguez filed an
Of course English is the language of the United
States…. That is not the issue. The issue is action against the state of Arizona and various
whether children who come here, while they state officials, including the governor and the
are learning English, should also be able to attorney general, in federal district court. She
learn other things. The issue is whether sought an injunction against state enforcement
American citizens who work hard and pay of Article XXVIII and a declaration that the
taxes and who haven’t been able to master provision violated the First and Fourteenth
English yet should be able to vote like other Amendments to the U.S. Constitution, as well
citizens.
as federal CIVIL RIGHTS laws. The district court
In May 1995 Governor Parris N. Glendening, interpreted the provision as barring state officers
of Maryland, vetoed a bill passed by the state and employees from using any language other
legislature that would have made English the than English in performing their official duties,


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178 ENGLISH-ONLY LAWS



except with certain limited exceptions, and ruled 15-page ruling that dramatically limited the law.
that it infringed on constitutionally protected According to the court, in order to pass
speech in violation of the FIRST AMENDMENT. constitutional muster, the law cannot be read to
Arizona voters passed an English-only law as prohibit government employees and elected
an Amendment to the Arizona Constitution officials from communicating in languages other
adopted through a petition drive that culminat- than English. Similarly, the court concluded that
ed in a general election in November 1988. The the law’s exceptions must be broadly construed to
Amendment provides that English was the permit the government to provide essential
official language of the State of Arizona, and services, including driver’s license exams, in
that the State and its political subdivisions must languages other than English.
“act” only in English. In April 1998 the Arizona On April 24, 2001, the U.S. Supreme Court,
Supreme Court held that the amendment by a 5–4 vote, rejected a legal challenge to
violated the First Amendment to the U.S. Alabama’s Official ENGLISH LAW, which was a
Constitution in that it adversely impacted the tremendous victory for Official English. In
constitutional rights of non-English speaking Sandoval v. Alexander 532 U.S. 275, 121 S.Ct.
persons regarding access to their government, 1511, 149 L.Ed.2d 517 (U.S., Apr 24, 2001)
and that it limited political speech of elected (NO. 99-1908), Sandoval claimed that because
officials and public employees. The court also it was a recipient of federal financial assistance,
held that the amendment violates the EQUAL the Alabama Department of Public Safety was
PROTECTION Clause of the FOURTEENTH AMENDMENT
subject to Title VI of the Civil Rights Act of
to the United States Constitution in that it 1964. Because Section 601 of Title VI prohibits
unduly burdens core First Amendment rights of
discrimination based on race, color, or national
a specific class without materially advancing a
origin, Sandoval brought a CLASS ACTION suit to
legitimate STATE INTEREST. Plaintiffs in the case
enjoin the department from administering state
were four elected officials, five state employees,
driver’s license examinations only in English.
and one public school teacher. All plaintiffs are
Sandoval argued that the English-only policy
bilingual and regularly communicated in both
violated the DOJ regulation because it had the
Spanish and English as private citizens and
during the performance of government busi- effect of subjecting non-English speakers to
ness. The court noted that although 21 states discrimination based on their national origin.
and 40 municipalities have official English The Court disagreed and ruled that there was no
statutes, most of those provisions are substan- private right to sue the state under the federal
tially less encompassing and less proscriptive anti-discrimination law. The majority, led by
than Arizona’s Amendment. In mid January Justice ANTONIN SCALIA, held that private citizens
1998, the U.S. Supreme Court denied review of were never authorized to sue under the title’s
the case, then known as Ruiz v. Hull, 191 Ariz. disparate-impact regulations. The Court de-
441, 957 P.2d 984 (1998). clared that Congress only prohibited intentional
discrimination when it wrote Title VI, but left it
Utah became the 26th state to declare English up to the federal government to apply the
as its official language, in November of 2000, discrimination ban to practices that have unin-
when voters approved a measure that lawmakers
tended discriminatory effects. Thus, unless
had failed to pass on three previous occasions.
Sandoval could prove that the Alabama driver’s
That law provided for several exceptions, allow-
test intentionally discriminated against her, she
ing languages other than English, for example,
had no grounds to sue the state.
when required by law, for public health and
safety, and in public education. Concerned that
FURTHER READINGS
the measure would be read generally to prohibit
Adams, Karen L., and Daniel T. Brink, ed. 1990. Perspectives
the government and the people from communi-
on Official English: The Campaign for English as the
cating in any language other than English, the Official Language of the USA. New York: Mouton de
AMERICAN CIVIL LIBERTIES UNION of Utah filed a suit Gruyter.
on behalf of elected and appointed officials, Stritikus, Tom. 2002. Immigrant Children and the Politics of
government employees, nonprofit organizations, English-Only: Views from the Classroom. New York: LFB
Scholarly.
and an individual PLAINTIFF challenging the
Tatalovich, Raymond. 1995. Nativism Reborn?: The Official
constitutionality of the initiative. After a trial in English Language Movement and the American States.
January 2001, the Utah district court issued a Lexington, KY: Univ. Press of Kentucky.


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