the five-and-twenty barons; and the said five-and-twenty barons, together with the community of the whole kingdom, shall distrain and distress us in all possible ways, by seizing our castles, lands, possessions, and in any other manner they can, till the grievance is redressed according to their pleasure; saving harmless our own person, and the persons of our queen and children; and when it is redressed, they shall obey us as before. And any person whatsoever in the kingdom, may swear that he will obey the orders of the five-and-twenty barons aforesaid, in the execution of the premises, and will distress us, jointly with them, to the utmost of his power; and we give public and free liberty to any one that shall please to swear to this, and never will hinder any person from taking the same oath. 62. As for all those of our subjects who will not, of their own accord, swear to join the five-and-twenty barons in distraining and distressing us, we will issue orders to make them take the same oath as aforesaid. And if any one of the five-and-twenty barons dies, or goes out of the kingdom, or is hindered any other way from carrying the things aforesaid into execution, the rest of the said five-and-twenty barons may choose another in his room, at their discretion, who shall be sworn in like manner as the rest. In all things that are committed to the execution of these five-and-twenty barons, if, when they are all assembled together, they should happen to disagree about any matter, and some of them, when summoned, will not, or cannot come, whatever is agreed upon, or enjoined, by the major part of those that are present, shall be reputed as firm and valid as if all the five-andtwenty had given their consent; and the aforesaid five-andtwenty shall swear, that all the premises they shall faithfully observe, and cause with all their power to be observed. And we will not, by ourselves, or by any other, procure anything whereby any of these concessions and liberties may be revoked. or lessened; and if any such thing be obtained, let it be null and void; neither shall we ever make use of it, either by ourselves or any other. And all the ill will, indignations, and rancours that have arisen between us and our subjects, of the clergy and laity, from the first breaking out of the dissensions between us, we do fully remit and forgive: moreover all trespasses occasioned by the said dissensions, from Easter in the fifteenth year of our reign, till the restoration of peace and tranquillity, we hereby entirely remit to all, both clergy and laity, and as far as in us lies do fully forgive. We have, moreover, caused to be made for them the letters patent testimonial of Stephen, lord archbishop of Canterbury, Henry, lord archbishop of Dublin, and the bishops aforesaid, as also of master Pandulph, for the security and concessions aforesaid. 63. Wherefore we will and firmly enjoin, that the Church of England be free, and that all the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, truly and peaceably, freely and quietly, fully and wholly to themselves and their heirs, of us and our heirs, in all things and places, for ever, as is aforesaid. It is also sworn, as well on our part as on the part of the barons, that all the things aforesaid shall be observed bona fide and without evil. subtilty. Given under our hand, in the presence of the witnesses above named, and many others, in the meadow called Runingmede, between Windsor and Staines, the 15th day of June, in the 17th year of our reign.] - FEDERAL PROCEDURE AT LAW. CHAPTER I. THE CONSTITUTIONAL BASIS OF PROCEDURE IN THE COURTS OF THE UNITED STATES. § 1. Three branches of the law. In the practical administration of justice, it is the habit of the legal and judicial mind to consider the law as divided into three great branches, namely: (1) Those constitutional and statutory provisions by which the courts of judicature are created and established and their jurisdiction is defined and limited; (2) the rules of substantive law and jurisprudence which define the rights, duties. and liabilities of persons; and (3) the rules of procedure by which the jurisdiction of the courts is invoked, the appropriate relief is obtained, and the judgment or decree of the court is finally and fully executed. This is especially true in the federal judicial system, where the jurisdiction of the courts. is special and limited, and the rules of substantive law to be applied are drawn from both the state and federal laws, and also from general jurisprudence, and their procedure is hedged about by constitutional limitations and controlled in some instances by federal laws, and in others by state regulations. § 2. No definite line between procedure and substantive law. Neither the courts of judicature nor the legislative power has ever been able to, nor have they attempted to draw any definite line between the rules of procedure and the rules of substantive law. Indeed, such a line of demarkation is impossible, for the reason that, in many instances, the right to a particular remedy or procedure is a valuable substantive right, given by the law for the protection of the rights of person or property.1 § 3. Same Illustration-Remedy on contract.-A remedy for the enforcement of a contract is a procedure, but at the same time it is a valuable right, of which persons may not be constitutionally deprived; for if a law should be passed, materially diminishing the effectiveness of the remedy, such law would be, as to past transactions, void, as being a law impairing the obligation of contracts.2 § 4. Same-Illustration-Procedure for protection of life and personal liberty. The right of a person charged with an infamous crime to be prosecuted only on a presentment or indictment of a grand jury, to be informed of the nature and cause of the accusation against him, tried by an impartial jury, confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense, is the right to certain procedure. and it is also a substantive right, fundamental in its character, and secured by constitutional guaranty.3 § 5. Importance of the law of procedure.-In the administration of public justice, in both criminal and civil causes, the importance of a just, simple, reasonable and humane procedure 1 Kring v. Missouri, 107 U. S. 289. 2 Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Tenn. v. Sneed, 96 U. S. 69; Barnitz v. Beverly, 163 U. S. 125; Edwards v. Kearzey, 96 U. S. 595; Antoni v. Greenhow, 107 U. S. 769; 3 U. S. Const. V and VI arts. of Amend. cannot be overestimated; the maintenance of such a procedure, intelligently and faithfully enforced by the courts of ju dicature, constitutes the highest evidence of an advanced civilization, while its absence indicates national decay, and entails upon civil society universal inconvenience, ills, and misery.* § 6. Same-Judicial murders in England.-From the accession of Henry VII to the revolution in 1688, the national life of England was one continued carnival of judicial murders, in which the very flower of the kingdom were destroyed, their heritable blood corrupted, and their estates forfeited to the crown; and that career of national crime was accomplished by denying to its victims that reasonable and just judicial procedure which is the common right of mankind.5 § 7. Same Same Statement of Hallam.-Mr. Hallam, in his Constitutional History, speaking of this period, said: "Civil liberty in this kingdom has two direct guaranties: the open administration of justice according to known laws truly interpreted, and fair construction of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain the redress of public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom where this condition is not found both in its judicial institutions and in their constant exercise. In this, much more than in positive law, our ancient constitution, both under the Plantagenet and Tudor lines, had ever been failing; and it is because one set of writers have looked merely to the letter of our statutes or other authorities, while another have been almost exclusively struck by the instances of arbitrary government they found on record, that such incompatible systems have been laid down with equal positiveness on the character of that constitution. "I have found it impossible not to anticipate, in more places. than one, some of those glaring transgressions of natural as well as positive law, that render our courts of justice in cases of treason little better than the caverns of murderers. Whoever 4 Hallam's Const. Hist. Eng. 138, 471. 5 State Tr. I, 965, 985, 1148, 1256, 1403; ib. IV, 857, 1329; ib. VI, 153, 687; ib. IX, 577, 818, 834, 899; ib. X, 105; ib. XI, 297, 322, 834, 861, 862. Hallam's Const. Hist. England (5th London Ed.), 138, 417. 418, 419, 471, 472, 488, 489, 490. |