Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P19

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  1. 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 G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  2. 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 G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  3. EN G L I S H L A W 171 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 G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  4. 172 ENGLISH LAW 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. G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  5. EN G L I S H L A W 173 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. G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  6. 174 ENGLISH LAW 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. G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  7. E N G L I S H - O N L Y L A WS 175 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. G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  8. 176 ENGLISH-ONLY LAWS 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 G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  9. 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, G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
  10. 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. G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
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