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Authored by: Anonymous on Friday, October 05 2012 @ 01:51 PM EDT |
<em>If the US wanted to be different why did it base it's legal system so
much on English law?</em>
They didn't want to be different they wanted to rule themselves and not be under
English rule.
Because that was the law in the US under the English rule. The spreading of
knowledge was not as fast in those days as today. So at that time it was the
law they knew.
However some of the way they made their government was based on french ideas.
Back then France and England was the two big powers of the known world they
knew.
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Authored by: Anonymous on Friday, October 05 2012 @ 06:36 PM EDT |
Have you ever actually *read* the Magna Carta? There's some pretty wild stuff
in there. For instance, if a man owes money to a Jew and he dies, his widow is
*not* liable for the debt. Just imagine the kind of law you'd get by expanding
that into in the modern world...
FYI...The reason I read it was because of whimsical effort to convert the
student government in the dorm I was in (UC Berkeley, late 1960s) into a
Constitutional Monarchy. UC Housing Office read what I wrote up and had no
problems with it. The left wing radical freshmen we had a bunch of in the dorm
that year actually voted for it (it would have almost, but not quite,
disenfranchised them), and it got a bit over a 2/3 majority but didn't quite
reach the 3/4 majority it needed to go into effect.
Had it passed, I could very well have added "King of
Richards-Oldenburg" to my resume...
--W. H. Heydt[ Reply to This | Parent | # ]
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Authored by: Ian Al on Saturday, October 06 2012 @ 05:26 AM EDT |
The Magna Carta (1216–1369) wrested courts from the Court. Before this, the King
was the judge and jury, either in person or via delegated powers given to
sheriffs. The monarch was the law, although common law and the Law of the Forest
had also developed. IIRC (I am very old) the Magna Carta signalled the end to
the monarch acting as law-maker (where common law did not prevail), judge and
jury. It also introduced law common to the monarchy, the peerage and the
subjects.
I found this pdf about Magna Carta - Article 52 The
grand jury was originally a body of twelve, and later twenty-three men that
served as accusers who presented
indictments at the request of not only the
prosecutor of the king, but also at the request of individual [barons]. In
1681
the grand jury rule of secrecy was adopted. This allowed the grand jury to meet
in secret, especially out of the
sight of the king’s prosecutors who might
interfere. This secrecy provided the grand jury great power as an
independent
body with oversight over the government...
The grand jury served the
public in two ways. First, it limited the power of government to prosecute
citizens by
permitting the grand jury to vote for or against an indictment and
second, it had the power to make a presentment. A
presentment was a public
report of the grand jury’s activity. Through a presentment, the grand jury could
make
criminal activity known to the public, including criminal conduct committed
by government officials, judges, or
prosecutors...
Magna Carta
- Article 61
Since for God, for the improvement of our kingdom,
and to better allay the discord arisen between us and our
barons, we have
granted all these concessions, and wishing that the concessions be enjoyed in
their entirety with
firm endurance (for ever), we give and grant to the barons
the following security: namely, that the barons choose
any twenty-five barons of
the kingdom they wish, who must with all their might observe and hold, and cause
to be
observed, the peace and liberties we have granted and confirmed to them by
this our present Charter. Then, if we,
our chief justice, our bailiffs or any of
our officials, offend in any respect against any man, or break any of
the
articles of the peace or of this security, and the offence is notified to
four of the said twenty-five barons, the four
shall come to us-or to our chief
justice if we are absent from the kingdom-to declare the transgression and
petition
that we make amends without delay.
Bear in mind that the
'government' was the government of the country by the monarch. Parliamentary
government was not the rule until centuries later and considerable further
reduction of the direct power of the monarchy. The 25 peers were peers of the
realm, the nobility, 25 of the English barons. The 'witnesses' were more
witnesses to the accused's character and whether the accused was likely to be
guilty of the indictments brought by the grand jury than witnesses of facts.
They would often not deal with the facts of the indictment, but only to patterns
of behaviour and the sort of company kept by the accused.
It was not
until towards the 16th century that juries selected from subjects, rather than
peers, gave verdicts based on relevant facts presented by first-hand
witnesses.
I don't do Latin so I won't do habeas corpus.
However, the Magna Carta did provide the first written and widely published
charter for common law.
From the CONFIRMATIO
CARTARUM,
October 10, 1297:
EDWARD, by the grace of God,
King of England, ...have granted for us and our heirs, that the Charter of
liberties, and the Charter of the forest, which were made by common assent of
all the realm, in the time of King HENRY our father, shall be kept in every
point without breach.
And we will that the same charters shall be sent
under our seal, as well to our justices of the forest, as to others, and to all
sheriffs of shires, and to all our other officers, and to all our cities
throughout the realm, together with our writs, in the which it shall be
contained, that they cause the foresaid charters to be published, and to declare
to the people that we have confirmed them in all points;
and that our
justices, sheriffs, mayors, and other ministers, which under us have the laws of
our land to guide, shall allow the said charters pleaded before them in
judgement in all their points, that is to wit, the Great Charter as the common
law[*] and the Charter of the forest, for the wealth of our
realm.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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Authored by: Anonymous on Saturday, October 06 2012 @ 08:02 AM EDT |
The US Wanted To Be Different (NOT!)
The Founding
Fathers didn't create the Constitution to be different, they created the
Constitution to work by cherry-picking the best ideas from history.
Is it perfect? Maybe not, but considering it was written by a committee
it's pretty darn good.
Of course nowadays the Constitution is a "living
document" to be twisted in the political wind. [ Reply to This | Parent | # ]
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