united-states england-and-wales common-law
Can statutory common law be overruled entirely in the U.S. in jurisprudence?
<p>Magna Carta chapter 28 (King John’s c 38) basically provides for a plurality of law-worthy, credible and trustworthy witnesses for one to be take into the law of an official or a bailiff — in other words: To subject one to arrest or be ordered before a court in today’s parlance.</p>
<p>Some U.S. Supreme Court decisions talk about “common sense” evaluation and not legal analysis being at the heart of deciding whether probable cause exist or not.</p>
<p>Can the U.S. Supreme Court outrule then written law in the common law protected under the Fifth Amendment?</p>
<p>Sources</p>
<hr />
<p>Here is a little more background — I thought it was more commonly know and I was lagging behind:</p>
<p><a href="https://en.wikipedia.org/wiki/Murray%27s_Lessee_v._Hoboken_Land_%26_Improvement_Co." rel="nofollow noreferrer"><em>Murray's Lessee v. Hoboken Land &amp; Improvement Co.</em>, (1856) 59 U.S. 18 How. 272, 276, 15 L.Ed. 372</a>:
The words, &quot;due process of law&quot; were undoubtedly intended to convey the same meaning as the words &quot;by the law of the land,&quot; in Magna Charta. Lord Coke, in his commentary on those words (2 Inst. 50), says they mean due process of law. The Constitutions which had been adopted by the several States before the formation of the federal Constitution, following the language of the great charter more closely, generally contained the words, &quot;but by the judgment of his peers, or the law of the land.&quot; (see also <em>Kerry v. Din</em> (2015) 576 U.S. 86, 91 [affirming <em>Murray’s Lessee</em>; meaning of “[d]ue [p]rocess” of U.S. Const., amndt. 5 same; “Due Process Clause has [] origin in Magna Carta”])</p>
<p>And lastly:</p>
<p><em>Wooden v. United States</em> (Mar. 7, 2022, No. 20-5279) [pp. 33-34] providing:
“Under the Fifth and Fourteenth Amendments, neither the federal government nor the States may deprive individuals of &quot;life, liberty, or property, without due process of law.&quot; U.S. Const., Amdts. 5, 14. Generally, that guarantee requires governments seeking to take a person's freedom or possessions to adhere to &quot;those settled usages and modes of proceeding&quot; found in the common law[; (<em>Murray's Lessee v. Hoboken Land &amp; Improvement Co.</em>, 18 How. 272, 277 (1856); N. Chapman &amp; M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1774-1775 (2012)) [including] ancient rule[s]”</p>
<p>As you can see, the Due Process of Law is, in fact, defined by statute in the sense that the Magna Carta was written law and not merely the result of jurisprudence, yet it is regarded common law since it has been inherited from England.</p>
<p>And although it has been, except for a few chapters, overruled in England, that didn’t outrule the same things in the U.S..</p>
<p>Thus the question remains: Can courts out-rule the clear language of Magna Carta on what the Due Process of Law means which requires that two law-worthy, credible, trustworthy witnesses statements support a charge or an arrest?</p>
<p>This plurality-of-witnesses rule is in the Latin version and each subsequent English translation that remained.</p>
<p>The meaning of “Due Process of Law” of the Fifth Amendment is, primarily, chapter 28 of Magna Carta and everything that built on it by judicial decisions.</p>

<h2>Current Place of Magna Carta in US law</h2>
<p><em>Magna Carta</em> is not now a current statute in any part of the US. I don't think it ever was (not since the US became independent of the UK), but I am not sure of that.</p>
<p>Its words influenced the drafters of the US Federal Constitution. In some cases it may thus be helpful in understanding the original intention of the framers, but probably <em>The Federalist</em> and the records of the debates of the Philadelphia Constitutional Convention are far more persuasive and more helpful. The major decisions of the Marshall Court are also very relevant.</p>
<p>The US Supreme Court can and does change its interpretation of laws passed by Congress and of the Constitution. The words of <em>Magna Carta</em> are not more binding than Supreme Court decisions. In fact they are not binding at all, on any court or official in the US in any way. They are part of our legal history, but they are mnot current law, no more than the Code of Justinian or the Laws of Hammurabi are.</p>
<p>The detailed procedural rules of <em>Magna Carta</em> are certainly not in fore in the US in 2022, nor in the UK either. The Ninth Amendment, which protects unenumerated rights of the states and the People does not protect,such procedural details, At least it has never been held to do so, to the best of my knowledge. I don't even know of a case where such a contention was seriously argued.</p>
<p>The question states that:</p>
<blockquote>
<p>The meaning of “Due Process of Law” of the Fifth Amendment is, primarily, chapter 28 of Magna Carta and everything that built on it by judicial decisions.</p>
</blockquote>
<p>There is a sense in which this is true, but a very weak one. The concept of “Due Process of Law” was to some extent spelled out in Magna Carta, and later court decisions and legal and political philosophers (such as Locke) built on it. But most of the specifics of what constitute &quot;due process&quot; at the time of Magna Carta have since been dropped, and most of the current requirements were added much later. The idea of a hearing before an impartial tribunal, where the accused can present evidence, goes back to MC. Other requirements of due process, such as a right to a lawyer, rights against self-incrimination, rights against double jeopardy, the right of an accused to testify under oath, the right of an accused to issue subpoenas to witnesses, the right to an impartial jury, The right to be free of search, seizure or arrest unless probable cause has been shown under oath, and many others were added long after MC, some not until the 20th century. Such one-time aspects of due process as the right to be tried by members of one's own social class, a vital aspect of MC, are long gone, and never really existed in the US.</p>
<h2>Two-Witness Rule</h2>
<p>There was an early debate in a Supreme Court case, a perjury case if I recall correctly, on the need for two witnesses for conviction, but later statues have altered that rule. I don't know of any such rule ever applying to arrests in the US. It surely does not apply now.</p>
<h2>Coke and Magna Carta</h2>
<p>Early in the 1600s Lord Justice Edward Coke used the text of <em>Magna Carta</em> (among other things) to argue that Equity courts should not be able  to use injunctions to stop cases pending in common-law courts. To do this he gave to <em>Magna Carta</em>  a semi-sacred status it did not have when it was originally issued. (Indeed J.C. Holt, in his classic study <em>Magna Carta</em>, arguses that the charter was a victory for King John, and a defeat for the Barons, because the Barons allowed themselves to be bought off by promises that John never intended to keep, and that were not, in fact, kept. He further argues that it was the re-issues over the period 50-100 years later that gave MC what contemporary force it had, but that it was Coke's invocation of it that gave it the modern reputation as a foundation of freedom. I agree.)</p>
<p>Coke claimed things for Magna Carta it could not have meant at the time it was issued, as the equity courts did not exist as an institution at that time, and would not for several generations.</p>
<p>Charles Rembar, in his excellent non-technical history of Anglo-american law, <em>The Law of the Land: The Evolution of Our Legal System</em> (ISBN: 978-1-5040-1566-0;
1980) wrote (pp. 57-8):</p>
<blockquote>
<p>Early in the 1600s, Lord Justice Coke declared that neither king nor Parliament could transgress fundamental principles of common law. In time the proposition was true enough for king (also, academic: he himself could make no law, fundamental or trivial), but it has never held for Parliament; no one in office followed Coke along this line, not even Coke himself. Removed from the bench, he entered the House of Commons, and fought the Stuarts there. In the last stage of his long career, Coke asserted the utter supremacy of Parliament, an assertion which by the century’s end had become the constitutional law of England.</p>
</blockquote>
<p>The equation of &quot;Due Process of Law&quot; with &quot;Law of the land&quot; was part of this argument on Coke's part; it was, in effect, a piece of spin, which not all later scholars have noticed. &quot;Due process&quot; was, at beat, a <strong>part</strong> of the &quot;law of the land&quot;, and it was always subject to modification by Act of Parliament (earlier, by acts of King-in-Council).</p>
<p>It is true tht the US Supreme court has taken &quot;Due process&quot; in a procedural sense, to imply in most cases the right to a hearing, before an impartial tribunal, including a right to present witnesses and evidence, and that several of these principles are mentioned in Magna Carta, and come down to us from MC through much legal history.</p>
<h1>Magna Carta in the Case of Murray's Lessee</h1>
<p>In the case of <a href="https://supreme.justia.com/cases/federal/us/59/272/" rel="nofollow noreferrer"><em>Murray's Lessee v. Hoboken Land &amp; Improvement Co.</em>, 59 U.S. 272 (1856)</a> The US Supreme Court looked back throigh legal history to consider what is and is not permitted by the US Fifth Amendment, and its &quot;Due process&quot; clause. This is the kind of extensive excursion into legal history that was more common in Court opinions from the fist half of the Nineteenth Century that it is now. (Rembar remarked, on p 170 of <em>The Law of the Land</em>, &quot;the Supreme Court, ... is fond of legal history and often gets it wrong.) But it is important to note how that opinion from the Taney Court (not the previous Marshall Court) used Magna Carta.</p>
<p>The court wrote:</p>
<blockquote>
<p>[<em>59 U. S. 277</em>] We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition <strong>by having been acted on by them after the settlement of this country.</strong> We apprehend there has been no period since the establishment of the English monarchy when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law.</p>
</blockquote>
<p>In short that court is interested in Magna Carta <strong>only</strong> as it has influenced US state and Federal statutes. It <strong>in no way</strong> states or implies that the exact procedure of Magna Carta must be that of the current US, or is assumed to be such in the absence of a statute changing that procedure. Rather it looks at how US States adopted procedures derived from MC as a guide to the meaning of the Due process clause.</p>
<p>After discussing at 59 U. S. 278 what the procedure for retrieving money from tax officials who had allegedly retained it improperly under the statutes of the Tudors (already long after Magna Carta, although well before Coke) the Court wrote:</p>
<blockquote>
<p>[<em>59 U. S. 278</em>] This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England is sufficient to show that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on other subjects, and that, as respects such debts due from such officers, &quot;the law of the land&quot; authorized the employment of auditors, and an inquisition without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question.</p>
<p>It is certain that this diversity in &quot;the law of the land&quot; between public defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the States, after the declaration of independence and before the formation of the Constitution of the United States.</p>
<p>...</p>
<p>[<em>59 U. S. 279-280</em>] Provisions not distinguishable from these in principle may be found in the acts of Connecticut (Revision of 1784, p. 198), of Pennsylvania, 1782 (2 Laws of Penn. 13); of South Carolina, 1788 (5 Stats. of S.C. 55); New York, 1788 (1 Jones &amp; Varick's Laws, 34); see also 1 Henning's Stats. of Virginia, 319, 343; 12 ibid. 562; Laws of Vermont (1797, 1800), 340. Since the formation of the Constitution of the United States, other States have passed similar laws. This legislative construction of the Constitution, commencing so early in the government when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was &quot;due process of law.&quot; *Prigg v. Pennsylvania-, 16 Pet. 621; <em>United States v. Nourse</em>, 9 Pet. 8; <em>Randolph's Case</em>, 2 Brock. 447; <em>Nourse's Case</em>, 4 Cranch C.C.R. 151.</p>
<p>Tested by the common and statute law of England prior to the emigration of our ancestors, <strong>and by the laws of many of the States at the time of the adoption of this amendment</strong>, the proceedings authorized by the act of 1820 cannot be denied to be due process of law when applied to the ascertainment and recovery of balances due to the government from a collector of customs</p>
</blockquote>
<p>It is to support  this last conclusion on what is and is not Due Process under the Fifth Amendment that the Court examined history, including Magna Carta. All the rest of this discussion of history was <em>Obiter Dictum</em> not binding precedent. And of course, not Supreme Court precedent is binding on future Supreme Court rulings. The court can and does overturn its own decisions, and change its interpretations of the Constitution.</p>
<h2><em>Wooden v. United States</em> and its citation  of <em>Murray's Lessee</em></h2>
<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/20-5279_09m1.pdf" rel="nofollow noreferrer"><em>Wooden v. United States</em> (Mar. 7, 2022, No. 20-5279)</a>, Justice  GORSUCH in his opinion concurring in the result, but dissenting from the majority opinion's reasoning, wrote, starting on page 6 of his separate opinion:</p>
<blockquote>
<p>Consider lenity’s relationship to due process. Under the Fifth and Fourteenth Amendments, neither the federal government nor the States may deprive individuals of “life, liberty, or property, without due process of law&quot; Amdts. 5, 14. Generally, that guarantee requires governments seeking to take a person’s freedom or possessions to adhere to “those settled usages and modes of proceeding” found in the common law. <em>Murray’s Lessee v. Hoboken Land &amp; Improvement Co</em>., 18 How. 272, 277 (1856); N. Chapman &amp; M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1774–1775 (2012). And among those “settled usages” is the ancient rule that the law must afford ordinary people fair notice of its demands. See, e.g., <em>Sessions
v. Dimaya</em>, 584 U. S. ___, <em><strong>–</strong></em> (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 3–
5). Lenity works to enforce the fair notice requirement by ensuring that an individual’s liberty always prevails over ambiguous law.</p>
<p>Early cases confirm the message. In <em>United States v. Wiltberger</em>, a sailor had killed an individual on a river in
China. 5 Wheat. 76, 77 (1820). But the federal statute under which he was charged criminalized manslaughter only
on the “‘high seas.’” Id., at 93 (quoting Act of Apr. 30, 1790,
§ 12, 1 Stat. 115). Chief Justice Marshall acknowledged that other parts of the law might have suggested Congress intended to capture the sailor’s conduct. 5 Wheat., at 105. But he insisted that “penal laws are to be construed strictly” because of “the tenderness of the law for the rights of individuals”—and, more specifically, the right of every person to suffer only those punishments dictated by “the plain
meaning of words.” ...</p>
<p><em>United States v. Mann</em> tells a similar story. 26 F. Cas. 1153 (No. 15,718) (CC NH 1812).</p>
<p>...</p>
<p>As the framers understood, “subjecting . . . men to punishment for things
which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” <em>The Federalist</em> No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also <em>McBoyle v.
United States</em>, 283 U. S. 25, 27 (1931)</p>
<blockquote>
<p>Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand</p>
</blockquote>
</blockquote>
<p>The first thing to note is that this is not a majority opinion, and so not binding law. Indeed another opinion in this case specifically responds to Justice Gorsuch's views, taking issue with them.</p>
<p>The next thing to note is that while the opinion does cite <em>Murray’s Lessee</em>, it never so much as mentions <em>Magna Carta</em>, nor does it quote any of the mentions of <em>Magna Carta</em> in <em>Murray’s Lessee</em>.
Justice Gorsuch cites <em>Murray’s Lessee</em> to support two principles. One is the &quot;rule of lenity&quot; whch says theist when there is ambiguity in a criminal statute, it shall be read so as to favor the accused. The other is the &quot;rule of fair notice&quot; which says that a person shall not be convicted of crime unless some law clearly makes the actions charged criminal. Justice Gorsuch derives both of these from the Due Process clauses of the Fifth and Fourteenth amendments. To establish this, he cites, not Magna Carta, nor cases from Tudor times, nor US cases from before the Constitution, but US Supreme Court cases written by Justices Marshall and Story (both members of the Marshall Court), and one of the numbers of <em>The Federalist</em> (often considered a good guide to the intentions of the framers).</p>
<p>Nothing in this citation implies that the detailed procedures of Magna Carta are now in force, nor that they ever were in the US. It applies only a general rule of law, not a detailed procedure, and that on the basis of US Supreme Court precedent, not because Magna Carta says so. The Great Charter may have been one of the earliest statements of these rules, but it is the reconfirmation of them, in case after US case, that makes them part of US law today.</p>
