As Stubbs remarks, the early English statutes, before the Conquest, are hardly statutes in the modern sense. When they have not to do with matters of procedure, or penalty, they are but vague statements of the moral law. The underlying law, like the Ten Commandments, is supposed to be known of every one. Written statutes busied themselves only with the amount of the were, or fine, or (for the first century after the Conquest) with the method of procedure.

Furthermore, the right to law involved the right to trial by a man at home by his local courts according to his local customs, originally by his neighbors. The jealousy of the King's judicial power, of the Court following the person of the king or even centralized in London to the exclusion of the jurisdiction of the county courts, is shown in every constitutional document, beginning with Magna Carta, in a long line of statutes, in the Declaration of Independence, and in the American Constitution.

2

"The great original principle of the English judicial system was that of trial in local courts properly constituted - trial per pais, in the presence of the county, as opposed to a distant and unknown tribunal." And the law enforced was the law as it was in the time of Edward the Confessor, the customary law of the people, not the statutes of the Norman sovereign. Thus, in 890, "I, then, Alfred, king, gathered these (laws) together, and commanded many of those to be written which our forefathers held, those which to me seemed good; and many of those which seemed to me not good I rejected them, by the counsel of my 'witan.' . . . I, then, Alfred, king of the West Saxons shewed these to all my 'witan', and they then said that it seemed good to them all to be holden." After the Conquest every Norman king was made on his coronation oath to promise this, the law of Edward the Confessor, until Magna Carta; after that they promised to respect Magna Carta instead, which was thus reissued or confirmed thirty-two times in the eighty-two years which intervened between Runnymede and the final Confirmation of charters under Edward I. Thus, William the Conqueror himself, in his charter to the City of London says, in Anglo Saxon: "And I do you to wit that I will that ye two be worthy of all the laws that ye were worthy of in King Edward's day.' So the Domesday Book records "the customs," that is to say, the laws, of various towns and counties; these bodies of customs invariably containing a mere list 1 Taswell-Langmead, 6th ed., p. 28. • Ibid., p. 83.

* Stubbs' Charters, p. 62.

of penalties for the breach of the established law, while later charters usually give the inhabitants of a town all the customs and free privileges enjoyed by the citizens of London. In 1100 Henry I in his Charter of Liberties promises in the first section relief to the kingdom of England from all the evil customs whereby it had lately been oppressed, and finally returns to the people the law of Edward the Confessor "with such emendations as my father made with the consent of his barons." 1 In his charter to the citizens of London he promises general freedom from feudal taxes and impositions, from dane-geld, and from the fine for the murder of a Norman; and the Charter of Liberties issued by Henry II in 1154 confirms their "liberties and free customs to all men in the kingdom." In Magna Carta the right to law is of course primarily guaranteed in Cap. 39, that no freeman is to be molested except "by the law of the land"; also by Cap. 24, prohibiting minor royal officers from trying criminal cases; and Cap. 13, which extends the ancient liberties and the free customs of the citizens of London as well by land as by sea to all other cities, burghs, towns, and ports in the realm as to their own law. In 1309 (see Historical Digest) we already find a statute restraining chancery jurisdiction and forbidding arrest, conviction, or forfeiture without a jury, a principle only recently revived in the Constitution of Oklahoma; in 1331 a statute against invasion of common law jurisdiction by the chancellor; in 1383 a protest against Roman law and a definite prohibition of it to the courts of England; in 1391, no man is to be compelled to answer before a Lord (of matters determinable at common law), and there is another statute limiting admiralty jurisdiction and again prohibiting the Roman law. In 1406 the House of Commons present their Petition of thirty-one articles, of which the tenth provides that the Council should determine nothing cognizable at common law unless by the advice of the judges; and other clauses are that all officers shall personally perform their duties and be sworn to observe "the common law of the land"; but in 1452, after Jack Cade's Rebellion, the Act 31 Henry VI, C. 2, provides that in case of riots or disorder an offender may be commanded to appear in Chancery and, if he disobey, the chancellor may issue writs of proclamation to appear within one month or suffer forfeiture or outlawry; and although this statute continued 1 Stubbs' Charters, p. 101 (clause

13).

2 Ibid., p. 108.

• Ibid., p. 135.

See Book III., §§ 650, 662.

For this principle in modern American State Constitutions, see Book III, $215.

only seven years, its principle remained and is the historical origin of the use of the injunction process to prevent disorder or crime (see Chapter IV). So, in 1487, a statute of Henry VII gives special authority to the Court of Star Chamber over riots and disorders. But the abuse of the royal prerogative continued under the Tudors and Stuarts, until the Petition of Right in 1627 complains (Article 3) that although it is declared (quoting Magna Carta) that no man be imprisoned nor put out of his freehold, nor franchises, nor free customs unless it be by the law of the land, and established that from thenceforth none shall be taken by petition or suggestion made to the king or his Council unless it be by indictment or presentment of good and lawful people of the same neighborhood or by process by writ originally at the common law, and no one shall be forejudged but by the courts of the law, nevertheless of late times divers commissions have issued giving authority to proceed under martial law whereby (88) some have been put to death when and where if by the laws and statutes of the land they had deserved death, by the same laws and by no other they ought to have been judged. And finally, the long history of invasion of the common law is closed by the entire abolition at the hands of the Long Parliament of the Star Chamber and of all but common-law courts. After the Revolution, the Bill of Rights complains that James II endeavored to subvert the laws and liberties of the kingdom, among other things by issuing a commission for a court to be called "The Court of Commissioners" (clause 3), and (Part II, clause 3) that both this commission and all other commissions and courts of like nature are illegal and pernicious. The right to the common law exclusively was too well established to need much expression in the Federal Constitution, but the Declaration of Independence complains (clause 17) that George III" has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws," and (clause 24) arraigns him for "abolishing the free system of English laws in a neighbouring province, establishing therein an arbitrary government." The Federal Constitution recognizes the principle in the seventh Amendment of the ten which are our national Bill of Rights, providing for suits at common law and trial by a jury, and that no fact so tried shall be otherwise re-examined in any court of the United States than according to the rules of the common law; while many State Constitutions declare the people entitled to the common law of England.1

1 See Book III, § 76, and note 6.

The equal right to law was established as early as the Charter of Liberties of Henry II, and extended not only to the barons but to all persons except actual slaves; for even the villeins had full law rights. Magna Carta recognizes the principle of equality in Caps. 39, and in 40,- "To none will we sell, to none will we deny right or justice," and in the preamble conceding these liberties also "To all free men of our kingdom," and expressly in Cap. 60, extending all the foregoing customs and liberties not only to the king's tenants, but they are to be observed by all others, both clergy and laity, and in Cap. 65 (omitted by Henry III) granting the aforesaid liberties to all men. "By 1485," says Hallam, "the principle that all officers, administrators, or soldiers are liable at the common law for their acts, that is, the prohibition of the continental Administrative Law, had been fully established"; while in 1566 Speaker Onslow tells Elizabeth herself that she is subject to the common law. So in the Massachusetts Body of Liberties, clause 2, the same justice and law is extended to every one, whether an inhabitant or a foreigner;1 and in the Declaration of Independence appears the famous statement that "All men are created equal," thus extending the principle established under Henry II, six hundred years before, that they are only equal before the law.

What is due process of law will be discussed later more particularly. It is particularly notable that the words of Magna Carta, "legal judgment of his peers or the law of the land," are, in the Statute of 28 Edward III replaced by the words "due process of the law," and the Petition of Right (Article 4) quotes the provision in the same words. It is probable that historically the words are synonymous; that is, "the law of the land" means by indictment and procedure at the common law, and "judgment of his peers" trial by jury, while "due process" includes both. There is still a feeling that the words "due process of law" will not justify prosecution by information or in any other manner than a common law indictment or trial except by jury.2 The Supreme Court of the United States has, however, held that "due process of law" does not necessarily include trial by jury or, in certain cases, any court trial. The principle is embodied in the Fifth Amendment nearly in the words of the Statute of Westminster, "No person shall be

1 See Book II, Constitutional Principles.

2 See the recent amendment to the Wisconsin Constitution, Book III, § 127, and § 130, note 10.

deprived of life, liberty, or property without due process of law," and in the Fourteenth Amendment is required, in the same words, by the Federal Government of the States. It exists in this language in New York and in the newer States copying the Federal Constitution, but still stands in the words of Magna Carta in New England and the older States. Finally, the principle that this common law under due process must be afforded to every person in his home or in local courts is expressed in Magna Carta, Cap. 17 in the exact terms demanded by the barons (clause 8 of the barons' demands), that common pleas shall not follow the King's Court, but be assigned or held in some certain place; in Cap. 18, that recognitions shall only be held in the court of the county where the lands lie and that the king shall send two justices into each county four times a year to hold assizes where, if all matters cannot be tried on the day appointed, a sufficient number of knights and freeholders present at the assizes shall stay to decide them. It is further especially provided that the writ præcipe (Cap. 34) shall not in effect be issued so as to cause a freeman to lose his court; and this is also the exact words of the barons (clause 24), the object being to protect the local jurisdiction against the royal courts; and in Cap. 45, justices... shall only be appointed of such as know the law and mean duly to observe it," — also taken literally from the barons' request; the meaning being to require local common law courts held by common law judges and allow no other jurisdiction. So in 1391 the law above quoted preserving the common law as against a Lord's courts; while by 1485 Hallam mentions as one of the six liberties now established the right to be tried by a jury of the county. In the Declaration of Independence the twenty-third clause complains of the king's "transporting us beyond seas to be tried for pretended offences" and the Virginia Bill of Rights (clause 8) provides for trial in the vicinage. The principle is preserved in the Federal Consitution, Art. 3, § 2, requiring all trials to be held in the State where the crime is committed; and so in most of the States. The same principles are true of civil cases. Cap. 40 of Magna Carta applies to civil as well as criminal matters, slightly expanding the demand of the Barons (clause 30) "that justice shall not be sold nor deferred nor forbidden"; and the clause is adopted in almost the same words in all the State Constitutions."

1 See Chapter III, infra; Book III,

§ 130.

" Printed in Stubbs' Charters.

* See Book III, § 133.

Ibid., §§ 70, 73, 79.