Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P19 pptx

antecedents of many substantive areas of U.S. law, including the ubiquitous system of state and federal TAXATION, may be found in English history as well. The story of English CONSTITUTIONAL LAW prior to the American Revolution, which is inextricably intertwined with the development of English la w 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 others. Criminal cases were indistinguishable from civil cases, and both secular and spiritual disputes were resolved at the local level by community courts. Trials in the modern sense did not exist, nor did juries. Guilt and innocence were determined by compurgation and ordeal. Compurgation was a ritualistic procedure in which accused persons might clear themselves of an alleged wrongdoing by taking a sworn oath denying the claim made against them, and corroborating the denial by the sworn oaths of 12 other persons, usually neighbors or relatives. If an accused person failed to provi de the requisite number of compurgators, he or she lost. The number of compurgators was the same as the number of jurors later impaneled to hear criminal cases under the common law. In the United States, the SIXTH AMENDMENT to the Constitution required that all criminal trials be prosecuted before 12 jurors—until 1970, when the Supreme Court ruled that six-person juries were permissible (Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446). Trial by ordeal was a superstitious proce- dure administered by clerics who subjected accused persons to physical torment in hopes of uncovering divine signs of guilt or innocence. The most common forms of ordeal involved boiling or freezing waters and hot irons. In the ordeal of freezing water, accused persons were thrown into a pool to see if they would sink or float. If they sank, the cleric believed they were innocent, because the water would presumably reject someone with an impure soul. Of course, persons who sank to the bottom and drowned during this ordeal were both exonerated of their alleged misbehavior, and dead. Battle was another form of primitive trial that was thought to involve divine intervention on behalf of the righteous party. The comba- tants were armed with long staffs and leather shields, and fought savagely until one party cried, “Craven,” or died. Trial by battle, though in many ways as barbaric as trial by ordeal, foreshadowed modern trials in several ways. The combatants fought in an adversarial arena before robed judges who presided over the battle. The accused person was required to put on a defense, quite literally in the physical sense, against an oppo- nent who was trying to prove the veracity of his or her claims. Some parties to a battle, particularly women, children, and older indivi- duals, were entitled to hire stronger, more able champions to fight on their behalf. This last In 1215, King John approved the Magna Charta, which guaranteed fundamental liberties to the church and to individuals. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ENGLISH LAW 169 practice sheds light on the more recent phrase hired guns, which is sometimes used to describe U.S. trial attorneys. William the Conqueror understood the importance of revenue, and that is where he began building the English empire. In 1086 William initiated the Domesday Survey, which sought to determine the amount and value of property held in England, for the pu rpose of assessing taxes against the owners. The Domes- daySurveywasconductedbyeightpanelsof royal commissioners who traveled to every county in the country, where they collected information through sworn inquests. Although the survey began as a m ethod of recording real property held in the kingdom, one contempo- rary Saxon chronicler moaned “that there was not a single hide … nor … ox, cow or swine” omitted (Trevelyan 1982). The Court of Exchequer served as auditor, accountant, and tax collector for William, and provided a venue to settle disputes between the Crown and taxpayers, becoming the earliest DEPARTMENT OF STATE . William’s system for revenue collection began a process that gradually replaced the community courts of justice with a legal system that emanated from a central location, the king’s castle in Westminster. One symbol of powerful centralized government in the United States is the INTERNAL REVENUE SERVICE. For many U.S. citizens, paying taxes is a necessary evil. Taxes are necessary to keep the government, and its justice system, afloat. At the same time, they take away individuals’ money. Henry II (1154–89) further strengthened the central government by enlarging the power and jurisdiction of the royal system of justice. During his reign, any crime that breached the ruler’s peace was tried before a royal court sitting in Westminster, or by royal itinerant justices who traveled to localities throughout England to hear disputes. Heretofore, the royal court heard only cases that directly threatened the monarch’s physical or economic interests. Most other complaints, except for those heard by the Catholic Church, were leveled by private indivi- duals, who were also responsible for proving their accusations. By increasing the sphere of what the government considered public wrongs, Henry II laid the groundwork for the modern U.S. criminal justice system, where attorneys for the federal, state, and local governments are invested with the authority to prosecute persons accused of criminal wrongdoing. Henry II al so laid the groundwork for the common-law method of deciding cases, where- by judges make decisions in accordance with other decisions they have rendered in similar matters. The royal system of justice was governed by a single set of legal rules and principles, which was applied evenhandedly to litigants presenting claims to the monarch’s justices. This system superseded one that applied the often inconsis- tent customary laws of neighboring communities of different ethnic backgrounds. Because the monarch’s law was applied in a uniform manner, it became “common” to every shire in the land. This “common-law” system of adjudication was adopted by the American colonies and continues to be applied in nearly all of the 50 states of the Union. In addition to becoming more prevalent, the royal system of justice was becoming more popular. Its popularity stemmed from the rational legal procedures and reliable mod es of evidence developed by the King’s Court, which slowly supplanted their superstitious, ritualistic, and dangerous predecessors, compurgation, ordeal, and battle. One new rational procedure was trial by jury, which Henry II made available in land disputes between laypersons and the clergy. The juries comprised 12 sworn men who possessed some knowledge of the property dispute, and were asked to announce a VERDICT to the royal justices based on this knowledge. The trial-by-jury system employed by Henry II, though only an embryonic form, reflected society’s growing understanding that verdicts based on personal knowledge of a dispu te were more reliable than verdicts based on ordeals of freezing water and contests of brawn and agility. Henry II also made the law more imper- sonal and less vindictive. In 1166, the Assize of Clarendon prohibited the prosecution of any- one who had not first been accused by a “presenting jury” of 12 to 16 men from the community in which the crime occurred. The presenting jury foreshadowed the modern GRAND JURY as an ACCUSATORY BODY that identified persons for prosecution but made no determi- nation as to guilt or innocence. The presenting jury was seen as a more neutral and detached alternative to the system it replaced , which required the alleged victims, some of whom were waging a personal vendetta against the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 170 ENGLISH LAW accused person, to identify alleged criminals for prosecution. The writ de odio et atia provided additional safeguards for defendants wrongfully accused of criminal activity, by permitting the DEFENDANT to appeal legal issues to the King’s Court in cases where the complainant was proceeding out of spite or hatred. This writ of appeal was an early precursor to the modern appellate system in the United States, which similarly permits parties to appeal legal issues they believe did not receive appropriate consideration at the trial level. The presenting jury and writ of appeal underpin two beliefs that have been crucial to the development of the English and U.S. systems of justice. The first is the belief that a wrongfully accused person is no less a victim than is the target of civil or criminal malfea- sance. The second is the belief that the legal system must provide an impartial forum for seeking the truth in disputed legal claims. These two beliefs paved the way for an assortment of procedural and evidentiary protections that have evolved to protect innocent persons from being unjustly convicted in crim inal cases, and to keep prejudices from biasing judges and jurors in civil cases. However, the English monarchy did not centralize its power without cost. Frequently, English rulers abused their enlarged power to such an extent that they met with popular resistance. One of the earliest such confronta- tions occurred in 1215, and produced the first great charter of constitutional liberties, the MAGNA CARTA. The Magna Carta can best be understood as a peace treaty between three rival jurisdictions of poli tical and legal power: the Crown, the church, and the barons. In the thirteenth century, the king’s system of justice competed for influence with ecclesias- tical and manorial courts. The ECCLESIASTICAL COURTS were run by the Catholic Church, with the pope presiding as the spiritual head in Rome. Manorial courts were run by barons, who were powerful men holding large parcels of land from the king, known as manors. Each baron, as lord of his manor, retained jurisdic- tion over most legal matters arising among his tenants, also called vassals, who agreed to work on the land in exchange for shelter and security. The jurisdictions of the Crown, the church, and the barons overlapped and each depended on the others for support. The tyranny of King John (1199–1216) alienated the church and the barons, converting them into adversaries of the Crown. John was excommunicated by the pope, church services and sacraments were suspended in England, and the barons renounced homage to the Crown. Spearheaded by Ste phen Langton, archbishop of Canterbury, the barons confronted King John on the battlefield at Runnymede, where they won recognition for certain fundamental liber- ties contained in the 63 clauses that make up the Magna Carta. The Magna Carta granted the church freedom from royal interference except in a limited number of circumstances, establishing in nascent form the separation of church and state. The Great Charter required that all fines bear some relationship to the seriousness of the offense for which they were imposed, establish- ing the principle of proportionality between punishment and crime, which the U.S. Supreme Court still applies under the CRUEL AND UNUSUAL PUNISHMENT Clause of the EIGHTH AMENDMENT to the U.S. Constitution. Most import ant the Magna Carta prohibited any “free man” from being “imprisoned, or disseised, … or exiled, … except by the lawful judgment of his peers, or by the law of the land” (ch. 39). The phrase “law of the land” was later equated with “due process” in the American colonies and received constitutional recognition in the Fifth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court has described due process as the “most comprehen- sive of liberties” guaranteed in the Constitution ( ROCHIN V. CALIFORNIA, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 [1952]), and has relied on the Due Process Clause of the FOURTEENTH AMENDMENT to make most of the freedoms contained in the BILL OF RIGHTS applicable to the states. Fifty years after Magna Carta, Parliament was created to serve as an additional check on the arbitrary power of the monarchy. In 1265, Parliament was a very small body, consisting of two knights from each shire, t wo citizens from each city, and two burgesses from each borough. By the fourteenth century, Parliament was being summoned to advise the monarch, vote on financial matters, and supervise the excesses of local officials. Representatives for the barons, later known collectively as the House of Lords, wielded more power than did represen- tatives for the commoners, later known GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGLISH LAW 171 Dr. Bonham’s Case D r. Bonham’s Case, 8 Co. Rep. 114 (Court of COMMON PLEAS [1610]), stands for the principle that legislation passed by the English Parliament is subordinate to the common-law deci- sions made by trial and appellate court judges, and any statute that is contrary to “common right and reason” must be declared void (Thorne 1938). The decision in this case, which was written by SIR EDWARD COKE sitting as chief justice for the Court of Common Pleas in England, spawned the concept of JUDICIAL REVIEW under which courts of law, as the primary oracles of the COMMON LAW in the British and U.S. systems of justice, are authorized to invalidate laws enacted by the executive and legislative branches of government. The power of judicial review, which was first recognized by the U.S. Supreme Court in MARBURY V. MADISON,5 U.S. (1 Cranch) 137, 2 L. Ed. 60, is invoked by courts every day across the United States but has since been rendered obsolete in England. Bonham’sCasearose from a dispute regarding the unlicensed practice of medicine. Dr. Thomas Bonham had received a degree in physic medicine from the University of Cambridge. In 1606 Bonham was discovered practicing such medicine in London without a license, and was summoned to appear before the censors at t he London College of Physi- cians, who maintained jurisdiction in that city over the practice of medicine. Bonham was examined by the col- lege censors in a number of areas regarding his professional practice, and provided answers “less aptly and insuffi- ciently in the art of physic” (Stoner 1992, 49). As a result, Bonham was determined unfit to practice medicine in this field, and was ordered to desist from such practice in London. When Bonham was later discovered flouting this order, he was arrested and placed in the custody of the censors. Bonham refused to undergo further examination. As a graduate of Cambridge, he asserted that the London College of Physicians had no jurisdiction over him and thus possessed no authority to arrest or fine him. Promising to continue his practice of physic medicine if released, Bonham was immediately jailed. The case came before the Court of Common Pleas when Bonham claimed that his continued detention by the college amounted to FALSE IMPRISONMENT. As a defense, the college relied on its statute of incorporation, which autho- rized it to regulate all physicians in London and to punish practitioners not licensed by the college. The statute also entitled the college to one-half of all the fines imposed by it. The Honorable Justice Coke, also a Cambridge graduate, sided with his fellow alumnus. After singing the praises of their alma mater, Coke argued that because the college censors were entitled to receive a portion of the fine they imposed on Bonham, the statute made them prosecutor, PLAINTIFF, and judge in the dispute: “The censors cannot be judges, ministers and parties; judges … give sentence or judgment; ministers … make summons; and parties … have moiety [half] of the forfeiture, because no person may be a judge in his own cause … and one cannot be judge and attorney for any of the parties.” Coke suggested that the impartiality of a judge is compromised when the judge is also the plaintiff who will benefit financially from any fines imposed on the DEFENDANT, or the prosecutor who is the advocate responsible for seeking such fines. Al- though the parliamentary statute in question clearly contemplated that Lon- don College would wear all three of these hats, Coke observed, [I]t appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void. Coke placed the judiciary in the middle of what was becoming a titanic struggle for power between Parliament and the ruler of England. Until the seventeenth century, the English monar- chy enjoyed nearly absolute power over all political and legal matters that con- cerned the country as a whole. Despite the growing popularity and importance of Parliament during the fifteenth and sixteenth centuries, the monarchy’s au- tocratic power, which King James I (1603–25) asserted was divine in origin, included the prerogative to enact laws without parliamentary consent. By the close of the seventeenth century, however, the pendulum of power had swung in favor of Parliament. The Glorious Revolution of 1688 sub- ordinated the power of the English Crown and judiciary to parliamentary sovereignty. In 1765 English jurist SIR WILLIAM BLACKSTONE described “the power of Parliament” to make laws in England as “absolute,”“despotic,” and “without control.” The American Revolution, which began 11 years after Blackstone’s pro- nouncement of Parliament’s unfettered power, was commenced in response to the coercive legislation passed in the colonies by what had become a despotic Parliament. THOMAS JEFFERSON, JAMES MADISON, and their contemporaries be- lieved that a legislative despot was no better than a monarchical despot. In 1787 the U.S. Constitution established the judiciary as a check on the legislative and executive branches of government, a check that was foreshadowed by Coke’s opinion in Bonham’s Case. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 172 ENGLISH LAW James I was cognizant of the dangers Bonham’sCasepresented to his claims of divine royal prerogative. The king understood that the “common law,” which Bonham’sCasesaid controlled acts of Parliament, was really just a decision made by a court of law, or, more particularly, by a judge or panel of judges. James also understood that if the judiciary were allowed to assert the power to review acts of Parliament, it was only a short step away from passing judgment on actions taken by the Crown. Accordingly, King James removed Coke from the Court of Common Pleas in 1613, appointing him chief justice of the King’sBench.Thisconstitutedapromo- tion in name only, because Coke was now under closer scrutiny by the Crown. Much to the Crown’schagrin,Coke’s replacement on the Court of Common Pleas, Sir Henry Hobart, expanded the concept of judicial review intimated by Bonham’sCase.In Day v. Savadge, Hob. 84 (K.B. 1614), Hobart declared that “an actof parliament made against natural equity, as to make a man judge in his own cause, is void in itself” (as quoted in American General Insurance Co. v. FTC, 589 F.2d 462 [9th Cir. 1979]). Where did the new chief justice derive the court’spowerto invalidate the laws of Parliament? Hobart said, “[B]y that liberty and authority that judges have over laws, especially … statute laws, according to reason and best conve- nience, to mould them to the truest and best use” (Sheffield v. Ratcliff, Hob. (K.B. 1615), as quoted in Plucknett 1926, 50). Exasperated by such further attempts to limit his prerogative, James I dis- missed Coke from the King’s Bench, and ordered him to “correct” his decision in Bonham’s Case, which had subsequently been published in England’s CASE LAW reporter known as The Reports. Coke refused to accede to the king’s demands. The importance of Coke’s opinion in Bonham’sCaseis sometimes downplayed by some scholars who point to England’s later recognition of Parliament as the country’s supreme sovereign entity. How- ever, this criticism overlooks the indelible imprint left by Bonham’sCaseon U.S. law. The American colonists were inti- mately familiar with the writings of Lord Coke. Coke’s Reports first came to America on the Mayflower, and the Massachusetts General Court ordered two complete sets from England in 1647. Coke’s opinion in Bonham’s Case was among his most popular writings. In Paxton’s Case of the Writ of Assistance, Quincy 51 (Mass. 1761), colonist James Otis challenged Massa- chusetts’s authority to issue writs of assistance, general search warrants that empowered local sheriffs to enter private homes and businesses to seize smuggled goods. Otis told the colonial court that he objected to such writs, which were created by a parliamentary act in 1662, because they violated the principle of Bonham’s Case: “As to acts of parliament, an act against the Constitution is void. An act against natural equity is void; and if an act of parliament should be made in the very words of this petition, it would be void. The Executive Courts must pass such acts into disuse.” JOHN ADAMS, who was in the Boston courtroom where Otis made his argu- ment for the colonial application of Bonham’s Case, later exclaimed, “Then and there the child Independence was born.” Adams might also have exclaimed that the seeds of judicial review had been planted in the American colonies by Otis, who was unequivocally assigning to “Executive Courts” the responsibility of invalidating parliamentary legislation that violated constitutional precepts. Four years later, the colonies again relied on the principle of Bonham’sCase, this time in their opposition to the STAMP ACT , a parliamentary statute that taxed everything from newspapers to playing cards. Thomas Hutchinson, lieutenant governor of Massachusetts, encouraged the “friends of liberty” and opponents of the Stamp Act to “take advantage of the maximtheyfindinLordCokethatanact of parliament against Magna Carta or the peculiar rights of Englishmen is ipso facto void.” In 1786 the Superior Court of Rhode Island relied on Bonham’sCaseto strike down a statute that denied the right to trial by jury for certain crimes, because “Lord Coke” held that such statutes were “repugnant and impossible” (Trevett v. Weeden [Newport Super. Ct. Judicature], as quoted in Plucknett 1926, 66). The U.S. acceptance of the legal principles enunciated in Bonham’s Case culminated in 1803 when the U.S. Supreme Court handed down its deci- sion in Marbury, which established the power of judicial review by authorizing federal judges to invalidate unconstitu- tional laws enacted by the coordinate branches of government. Nowhere in Marbury does the Supreme Court cite Bonham’s Case or expressly quote Lord Coke. But the influence of both Coke and his opinion cannot be missed. Chief Justice JOHN MARSHALL, writing for a unanimous Court, began his opinion in Marbury with two premises: the “constitution controls any legislative act repugnant to it,” and “an act of the legislature repugnant to the constitution is void.” Congress cannot be entrusted to determine the constitutionality of legisla- tion passed by the House and Senate, Marshall implied, for the same reason the London College censors could not be allowed to judge their own cause. “To what purpose are the powers [of Congress] limited” by the federal Consti- tution, Marshall asked, “if these limits may, at any time, be passed by those intended to be restrained?” In a passage that harkens back to Chief Justice Hobart’s opinion in Sheffield v. Ratcliff, Marshall concluded that only the judicial branch of government can be entrusted with such an overreaching power: “It is emphatically the duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the court must decide on the operation of each.” Although Chief Justice Marshall’s opinion in Marbury extended to the United States the principles of judicial review first intimated in Bonham’s Case, judges, lawyers, and laypersons still debate the legitimacy of allowing un- elected (appointed) judges to invalidate legislation enacted by representative institutions in a democratic country. FURTHER READINGS Edwards, R.A. 1996. “Bonham’s Case: The Ghost in the Constitutional Machine.” Denning Law Journal (annual): 63–90. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGLISH LAW 173 collectively as the House of Commons, who were summoned merely to assent to royal will. It was not long, however, before the Com- mons realized that its approval carried a measure of authority. In 1309, the Commons granted a subsidy to King Edward II (1307–27) on c ondi- tion that he redress its grievances. During the reign of Edward III (1327–77), Parliament asserted three claims that would be echoed with minor variation in the American colonies: Taxes assessed without approval from both houses of Parliament were void, legislation passed by only one house of Parliament lacked legal effect, and the Commons reserved the right to investigate and remedy any abuses by the royal administra- tion. A century later, during the reign of Henry VIII (1509–47), the Commons asserted th e power of the purse, arguing that all money bills must originate in its house. These claims, although fairly innocuous when originally asserted by the Commons, were interpreted by subsequent Parliaments to mean that no one could rule without the consent of Parliament, and royal officials who abused their power, including the ruler, could be impeached and removed from office. When the English civil war known as the War of the Roses (1455–85) substantially depleted the ranks of the barons, the voice of the Commons grew louder as the representatives of the commoners were left to fend almost for themselves against a monarchical power that, culminating in the reign of James I (1603–25), claimed to be divine in origin and absolute in nature. The struggles between Parliament and the crown for authority over England in the seventeenth century were a prelude to the struggles between Parliament and the colonists for control over the Amer ican colonies in the eighteenth century. The monarchy maintained that its power to govern England derived directly from God and thus overrode any earthly power, including that of Parliament and common law. Parliament, on the other hand, maintained that “the people, under God, were the source of all just power, and that Parliament represented the people.” Parliament and the monarchy waged battle on three fronts: military, political, and legal. The military struggle for power began in 1642 when England again erupted into civil war. The political battles constituted a series of muscle-flexing exercises conducted by Parlia- ment and the monarchy. The Commons impeached several of the king’s top advisers and demanded redress of the grievances it summarized in the 1628 Petition of Right. The monarchy, in turn, dismissed Parliament on a number of occasions, and attempted to govern without requesting revenue from the Commons. These political struggles came to a crescendo when King Charles I (1625–49) and Thomas Wentworth, the commander of the king’s largest army, were tried, convicted, and exe- cuted for subverting Parliament and the RULE OF LAW . The indictment against the king reads much like the DECLARATION OF INDEPENDENCE: Whereas it is n otorious, That Charles Stuart, the now king of England, not content with those many encroachments which his pre- decessors had made upon the people in their rights and freedoms, hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government; and that besides all other evil ways and means to bring this design to pass, he hath prosecuted with fire and sword, levied and maintained a cruel war in the land against the parliament and kingdom, whereby the country hath been miserably wasted, the public treasure exhausted, trade decayed, thousands of people murdered, and infinite other mischiefs committed. During the sentencing phase of the trial, the president of the High Court of Justice instructed the king, in language that resonates through the U.S. Constitution, “[T]he Law is your Superior,” and the only thing superior to the law is the “Parent or Author of Law, [which] is the people of England.” In 1689 Parliament achieved victory in its constitutional struggle with the monarchy when William and Mary (1689–1702) agreed to govern England as king and queen subject to a bill of rights. This English Bill of Rights, a forerunner to the U.S. Bill of Rights, which was submitted to Congress exactly one hundred years later, declares that the monarchy’s “pretended power of sus- pending of laws or the execution of laws by regal authority without consent of Parliament is illegal.” It also guarantees the right of each English subject to “petition the king” for redress of grievances, and acknowledges Parliament’srole in “amending, strengthening, and preserving … the laws” of the country. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 174 ENGLISH LAW Although the English Bill of Rights ended England’s seventeenth-century constitutional struggle between Parliament and the monarchy, America’s eighteenth-century constitutional struggle with these two branches of government had not yet be gun. By 1765 the pendulum of power had swung fully toward Parliament, prompting eminent English jurist SIR WILLIAM BLACKSTONE to write that “[s]o long as the English constitution lasts … the power of Parliament” is “absolute,”“despotic,” and “without control.” Because England had no written constitution that constrained the leg i slative power of Parlia- ment, “every act of Parliament was in a sense part of the [English] constitution, and all law … was thus constitutional.” The American colonists soon discovered that a legislative despot was just as tyrannical as a monarchical despot. The U.S. Constitution put an end to the notion of absolute power resting with any one sovereign, by separating the powers of government into three branches—executive, legislative, and judicial— and carefully delegating the powers of each. Although these safeguards against government- run-amok were the product of the violent American Revolution, they allowed for the tranquil and uneventful integration of many ordinary English legal principles into the U .S. system of justice, including e arly BANKRUPTCY and welfare laws during the nineteenth century. FURTHER READINGS Bailyn, Bernard. 1992. Ideological Origins of the American Revolution. Enl. ed. Boston: Belknap. Blackstone, William. 1765. Commentaries on the Laws of England. Reprint, 2003. Clark, NJ: Lawbook Exchange. Christenson, Ron. 1999. Political Trials: Gordian Knots in the Law. New Brunswick, NJ: Transaction. ———. 1991. Political Trials in History: From Antiquity to the Present. New Brunswick, NJ: Transaction. Landsman, Stephen. 1983. “A Brief Survey of the Develop- ment of the Adversary System.” Ohio State Law Journal 44. Levy, Leonard. 1999. Origins of the Fifth Amendment: The Right Against Self-Incrimination. Chicago: Dee. Palmer, Robert C. 2002. Selling the Church: The English Parish in Law, Commerce, and Religion. Chapel Hill: Univ. of North Carolina Press. Plucknett, T.F.T. 1926. “Bonham’s Case and Judicial Review.” Harvard Law Review 40. ———. 2001. A Concise History of the Common Law. Clark, NJ: Lawbook Exchange. Slapper, Gary, and David Kelly. 2006. English Law. 2d ed. London: Routledge-Cavendish. Smith, George P., II. 1966. “Dr. Bonham’s Case and the Modern Significance of Lord Coke’s Influence.” Washington Law Review 41. Stoner, James R., Jr. 1992. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitution- alism. Univ. Press of Kansas. Thorne, Samuel. 1938. “Dr. Bonham’s Case.” Law Quarterly Review 54. Trevelyan, George M. 1988. A Shortened History of England. New York: Penguin. Wood, Gordon S. 1998. The Creation of the American Republic. Chapel Hill: The Univ. of North Carolina Press. Wormald, Patrick. 2001. The Making of English Law: King Alfred to the Twelfth Century. Oxford: Blackwell. CROSS REFERENCES Becket, Saint Thomas; Clarendon, Constitutions of; Domes- day Book. ENGLISH-ONLY LAWS Laws that seek to establish English as the official language of the United States. The movement to make English the official language of the United States gained momen- tum at both the state and federal levels in the mid 1990s. In 1995 alone, more than five bills designating English as the official language of the United States were introduced in the U.S. Congress. In September 1995 Representative John T. Doolittle (R-Cal.) proposed an amend- ment to the U.S. Constitution that would establish English as the official language of the United States (H.R.J. Res. 109, 104th Cong., 1st Sess., 141 Cong. Rec. H9670-04 [1995]). The proposed amendment states, in part, The English language shall be the official language of the United States. As the official language, the English language shall be used for all public acts including every order, resolution, vote or election, and for all records and judicial proceedings of the Government of the United States and the governments of the several States. Related legislation considered in the U.S. House of Representatives included the National Language Act of 1995 (H.R. 1005, 104th Cong., 1st Sess., 141 Cong. Rec. H1967-04 [1995]), introduced by Representative Peter T. King (R-N.Y.), and the Declaration of Official Language Act of 1995 (H.R. 739, 104th Cong., 1st Sess., 141 Cong. Rec. H889-02 [1995]), introduced by Representative Toby Roth (R- Wis.). Roth’s bill would abolish section 203 of the VOTING RIGHTS ACT OF 1965 (42 U.S.C.A. § 1973aa-1a), which requires bilingual ballots, and the federal Bilingual Education Office, which is funded through the Bilingual Educa- tion Act of 1968 (20 U.S.C.A. §§ 3281 et seq. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGLISH-ONLY LAWS 175 [1988]). English-only advocates favor the eli mi- nation of these programs, arguing that earlier immigrants to the United States learned English without such government help. In the U.S. Senate, Senator Richard C. Shelby (R-Ala.) introduced the Language of Government Act of 1995 (S. 356, 104th Cong., 1st Sess., 141 Cong. Rec. S2124-04 [1995]). This legislation states, in part, [I]n order to preserve unity in diversity, and to prevent division along linguistic lines, the United States should maintain a language common to all people; … the purpose of this Act is to help immigrants better assimilate and take full advantage of economic and occupational opportunities in the United States; … by learning the English language, immigrants will be empowered with the language skills and literacy necessary to become responsible citizens and productive workers in the United States. By the end of 1995, more than 20 states had passed their own laws declaring English to be the official state la nguage. Most state English- only laws have been established since the mid 1980s, although Louisiana’s was enacted in 1812. Many of the laws are largely symbolic and lack an enforcement mechanism. For exam- ple, the California measure, CA Const. art. 3, § 6 (West), a state CONSTITUTIONAL AMENDMENT ap- proved in 1986, simply states, The Legislature and officials of the State of California shall take all steps necessary to insure that the role of English as the common language of the State of California is preserved and enhanced. The Legislature shall make no law which diminishes or ignores the role of English as the common language of the State of California. Some versions of the proposed English Language Amendment would void almost all state and federal laws that require the govern- ment to provide services in languages other than English. The services affected would include health, education and social welfare services, job training, translation assistance to crime victims and witnesses in court and administrative proceedings; voting assistance and ballots, drivers’ licensing exams, and AIDS-prevention education. English-only laws apply primarily to 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 foreign languages on private business signs. English-only advocates have opposed a tele- phone company’s use of multilingual operators and multilingual directories, FEDERAL COMMUNI- CATIONS COMMISSION licensing of Spanish- language radio stations, and bilingual menus at fast food restaurants. Those who oppose English-only laws point out that NATURALIZATION for U.S. citizenship does not require English literacy for people over 50, nor for those who have been in the U.S. for 20 years or more. Thus, there are many elderly immigrant citizens whose ability to read English is limited, and who cannot exercise their right to vote without bilingual ballots and other vote r materials. Moreover, these advocates maintain that bilingual campaign materials and ballots foster a more informed electorate by increasing the information that is available to people who lack English proficiency. Advocates of English-only legislation argue that having one official language will serve as a unifying force in the United States. They point to the findings of the 1990 census that 32 million U.S. citizens live in a non-English-speaking household and that of these, 14 million persons do not speak English very well. In a 1995 Labor Day address to the AMERICAN LEGION Convention in Indianapolis, printed in 141 Cong. Rec. E 1703-01 (1995), U.S. Republican presidential candidate and Senate Majority Leader Bob Dole, of Kansas, echoed this unification theme, stating, [I]f we are to return this country to greatness, we must do more than restore America’s ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. States that Enacted English-Only Laws, 2009 “English Only” States Alabama (1990) Alaska (1998) Arizona (2006) Arkansas (1987) California (1986) Colorado (1988) Florida (1988) Georgia (1986 & 1996) Hawaii (1978) Idaho (2007) Illinois (1969) Indiana (1984) Iowa (2002) Kansas (2007) Kentucky (1984) SOURCE: U.S. English, Inc. Louisiana (1812) Massachusetts (1975) Mississippi (1987) Missouri (1998) Montana (1995) Nebraska (1920) New Hampshire (1995) North Carolina (1987) North Dakota (1987) South Carolina (1987) South Dakota (1995) Tennessee (1984) Utah (2000) Virginia (1981 & 1996) Wyoming (1996) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 176 ENGLISH-ONLY LAWS defenses. We must return as a people to the original concept of what it means to be American…. For example, English must be recognized as America’s official language…. Lacking the centuries-old, primal bonds of other nations, we have used our language, our history and our code of values to make the American experiment work….Thesearethe forces that have held us together—allowing us to … absorb untold millions of immigrants while coming the closest any country ever has to the classless, upwardly mobile society of our ideals. Members of U.S. English, an advocacy group founded in 1983, claim that English should be the primary, but not exclusive, language of government. They believe that all official docu- ments and proceedings should be in English, but would make exceptions for the use of other languages in such places as hospitals, emergency rooms, police stations, and tourist sites. Actual- ly, a 1995 study of government print commu- nications, conducted by the GENERAL ACCOUNTING OFFICE , found that only a small percentage were in a language other than English. The study, requested by advocates of English as the official language of the government, examined titles released by the GOVERNMENT PRINTING OFFICE and an agency of the U.S. COMMERCE DEPARTMENT over a five-year period. Of approximately 400,000 titles examined, only 265, or less than 0.06 percent, were in a foreign language. The study excluded foreign language communications issued by the DEPARTMENT OF STATE and the DEPARTMENT OF DEFENSE, which most English-only advocates consider to be a legitimate use of languages other than English. Critics argue that English-only law s are a hostile reaction to the ongoing influx of immigrants to the United States. In a September 1995 address to the Congressional Hispanic Caucus, President BILL CLINTON attacked the English-only movement, stating, Of course English is the language of the United States…. That is not the issue. The issue is whether children who come here, while they are learning English, should also be able to learn other things. The issue is whether American citizens who work hard and pay taxes and who haven’t been able to master English yet should be able to vote like other citizens. In May 1995 Governor Parris N. Glendening, of Maryland, vetoed a bil l passed by the state legislature that would hav e made English the official language of state government. He said the legislation’s anti-immigrant sentiment would divide the state’s citizens. In Arizona, cri tics of a constitutional provision m aking English the official language sued the state, the governor, and other state o fficials to stop i ts enforcement. In Yniguez v. Arizonans for Official English, 69 F.3d 920 (1995), the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s ruling that the provision, which bars state and local employees from using any language other than English in performing official duties, violates free speech ri ghts and that it is unconstitutionally overbroad. This ruling was later overturned, Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L. Ed.2d 170 (1997). The case began in October 1987, when an organization called Arizonans for Official English began a petition drive to amend the Arizona Constitution to prohibit the govern- ment’s use of languages other than English. The drive resulted in the 1988 passage of Article XXVIII of the Arizona Constitution, titled English as the Official Language. Article XXVIII provides that English is the official language of the state of Arizona, and that the state and its political subdivisions—including all government officials and employees performing government business—must act only in English. When the article was passed, Maria-Kelley Yniguez, a Latina, was employed by the Arizona Department of Administration, where she handled MEDICAL MALPRACTICE claims. She was bilingual in Spanish and English and commu- nicated in Spanish with Spanish-speaking clai- mants and in a combination of English and Spanish with bilingual claimants. Because state employees who fail to obey the Arizona Constitution are subject to employment sanc- tions, Yniguez stopped speaking Spanish on the job immediately upon passage of Article XXVIII, because she feared that she would be disciplined. In November 1988, Yniguez filed an action against the state of Arizona and various state officials, including t he governor and the attorney general, in federal district court. She sought an injunction against state enforcement of Article XXVIII and a declaration that the provision violated the First and Fourteenth Amendments to the U.S. Constitution, as well as federal CIVIL RIGHTS laws. The district court interpreted the provision as barring state officers and employees from using any language other than English in performing their official duties, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENGLISH-ONLY LAWS 177 except with certain limited exceptions, and ruled that it infringed on constitutionally protected speech in violation of the FIRST AMENDMENT. Arizona voters passed an English-only law as an Amendment to the Arizona Constitution adopted through a petition drive that culminat- ed in a general election in November 1988. The Amendment provides that English was the official language of the State of Arizona, and that the State and its political subdivisions must “act” only in English. In April 1998 the Arizona Supreme Court held that the amendment violated the First Amendment to the U.S. Constitution in that it adversely impacted the constitutional rights of non-English speaking persons regarding access to their government, and that it limited political speech of elected officials and public employees. The court also held that the amendment violates the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT to the United States Constitution in that it unduly burdens core First Amendment rights of a specific class without materially advancing a legitimate STATE INTEREST. Plaintiffs in the case were four elected officials, five state employees, and one public school teacher. All plaintiffs are bilingual and regularly communicated in both Spanish and English as private citizens and during the performance of government busi- ness. The court noted that although 21 states and 40 municipalities have official English statutes, most of those provisions are substan- tially less encompassing and less proscriptive than Arizona ’s Amendment. In mid January 1998, the U.S. Supreme Court denied review of the case, then known as Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984 (1998). Utah became the 26th state to declare English as its official language, in November of 2000, when voters approved a measure that lawmakers had failed to pass on three previous occasions. That law provided for several exceptions, allow- ing languages other than English, for example, when required by law, for public health and safety, and in public education. Concerned that the measure would be read generally to prohibit the government and the people from communi- cating in any language other than English, the AMERICAN CIVIL LIBERTIES UNION of Utah filed a suit on behalf of elected and appointed officials, government employees, nonprofit organizations, and an individual PLAINTIFF challenging the constitutionality of the initiative. After a trial in January 2001, the Utah district court issued a 15-page ruling that dramatically limited the law. According to the court, in order to pass constitutional muster, the law cannot be read to prohibit government employees and elected officials from communicating in languages other than English. Similarly, the court concluded that the law’s exceptions must be broadly construed to permit the government to provide essential services, including driver’slicenseexams,in languages other than English. On April 24, 2001, the U.S. Supreme Court, by a 5–4 vote, rejected a legal challenge to Alabama’s Official ENGLISH LAW, which was a tremendous victory for Official English. In Sandoval v. Alexander 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (U.S., Apr 24, 2001) (NO. 99-1908), Sandoval claimed that because it was a recipient of federal financial assistance, the Alabama Department of Public Safety was subject to Title VI of the Civil Rights Act of 1964. Because Section 601 of Title VI prohibits discrimination based on race, color, or national origin, Sandoval brought a CLASS ACTION suit to enjoin the department from administering state driver’s license examinations only in English. Sandoval argued that the English-only policy violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The Court disagreed and ruled that there was no private right to sue the state under the federal anti-discrimination law. The majority, led by Justice ANTONIN SCALIA, held that private citizens were never authorized to sue under the title ’s disparate-impact regulations. The Court de- clared that Congress only prohibited intentional discrimination when it wrote Title VI, but left it up to the federal government to apply the discrimination ban to practices that have unin- tended discriminatory effects. Thus, unless Sandoval could prove that the Alabama driver’s test intentionally discriminated against her, she had no grounds to sue the state. FURTHER READINGS Adams, Karen L., and Daniel T. Brink, ed. 1990. Perspectives on Official English: The Campaign for English as the Official Language of the USA. New York: Mouton de Gruyter. Stritikus, Tom. 2002. Immigrant Children and the Politics of English-Only: Views from the Classroom. New York: LFB Scholarly. Tatalovich, Raymond. 1995. Nativism Reborn?: The Official English Language Movement and the American States. Lexington, KY: Univ. Press of Kentucky. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 178 ENGLISH-ONLY LAWS . redress of grievances, and acknowledges Parliament’srole in “amending, strengthening, and preserving … the laws” of the country. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 1 74 ENGLISH LAW Although. Reborn?: The Official English Language Movement and the American States. Lexington, KY: Univ. Press of Kentucky. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 178 ENGLISH-ONLY LAWS . executive branches of government, a check that was foreshadowed by Coke’s opinion in Bonham’s Case. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 172 ENGLISH LAW James I was cognizant of the dangers Bonham’sCasepresented