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By Professor Paola I. de la Rosa Rodríguez
San Luis Potosí, S.L.P. enero 2017.
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TABLE OF CONTENTS PAGE
INTRODUCTION………………………………………………………………….. 4 PART ONE: ENGLISH COMMON LAW 5
READING ONE The Common Law and Civil Law Traditions………………... 5 EXERCISE 1………………………………………………………………………. 6 READING TWO Origin of Case Law……………………………………………. 7 READING THREE Common law tradition. The English style……………….. 8 READING FOUR The Role of Equity…………………………………………… 9 Spread of English laws…………………………………………………………… 10 Discussion activity………………………………………………………………… 11 READING FIVE Magna Carta: An Introduction……………………………….. 12 Discussion activity………………………………………………………………… 16 EXERCISE 2………………………………………………………………………. 17 EXERCISE 3………………………………………………………………………. 17 READING SIX The Powers and Functions of the Prime Minister…………… 18 READING SEVEN Legislative Branch. The British Parliament……………… 21 Differences between Parliament and Government……………………………. 27 EXERCISE 4………………………………………………………………………. 27 EXERCISE 5………………………………………………………………………. 28 EXERCISE 6………………………………………………………………………. 29 EXERCISE 7………………………………………………………………………. 29 EXERCISE 8………………………………………………………………………. 30 EXERCISE 9………………………………………………………………………. 30 READING EIGHT The Courts. The British Government: A Brief Overview.. 31 The Supreme Court………………………………………………………………. 35 EXERCISE 10…………………………………………………………………….. 36 EXERCISE 11…………………………………………………………………….. 36
PART TWO: ORIGINS OF AMERICAN LAW 37 READING ONE A History of American Law…………………………………… 37 READING TWO The 13 Colonies: World Events that Influenced Colonial America…………………………………………………………………………….
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EXERCISE 1………………………………………………………………………. 39 READING THREE READING THREE The Influence of English Law in the American Colonies………………………………………………………………..
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READING FOUR The Declaration of Independence…………………………. 46 Discussion activity………………………………………………………………… 47 EXERCISE 2………………………………………………………………………. 48 Information of the Ages of the History of the United States………………….. 49 Colonial Times…………………………………………………………………….. 50 Unification of the Colonies……………………………………………………….. 51 EXERCISE 3………………………………………………………………………. 52 READING FIVE The Articles of Confederation………………………………… 53 EXERCISE 4………………………………………………………………………. 55 EXERCISE 5………………………………………………………………………. 56 READING SIX The Need for a new constitution………………………………. 57
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Discussion activity………………………………………………………………… 61 Sources of law…………………………………………………………………….. 62 Statues…………………………………………………………………………….. 63 Court interpretation……………………………………………………………….. 64 y 65 Administrative law…………………………………………………………………. 66 EXERCISE 6………………………………………………………………………. 67 Departments……………………………………………………………………….. 68 y 69 The power of the executive branch……………………………………………… 70 READING SEVEN The legislative branch of US government………………. 71 EXERCISE 7………………………………………………………………………. 72 The legislative branch……………………………………………………………. 73 The judicial branch……………………………………………………………….. 74 The United States Federal Courts……………………………………………… 75 PART THREE: AMERICAN LEGAL PROCEDURES AND INSTITUTIONS 76
Discussion Activity………………………………………………………………… 76 READING ONE Procedure of the Criminal Justice System………………….. 76 Steps in the Federal Criminal Process………………………………………….. 80 EXERCISE 1………………………………………………………………………. 80 EXERCISE 2………………………………………………………………………. 81 READING TWO Rights of the Accused………………………………………… 82 EXERCISE 3………………………………………………………………………. 87 Rights of the Accused…………………………………………………………….. 88 Double Jeopardy………………………………………………………………….. 89 The Due Process of Law…………………………………………………………. 90 READING THREE Contracts Private Regulation of Affairs. Obligations Assumed by Private Agreement………………………………………………….
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Discussion Activity………………………………………………………………… 92 READING FOUR Tort Law in the United States………………………………. 93 EXERCISE 4………………………………………………………………………. 101 READING FIVE Consumer Protection in the United States. An Overview… 102 EXERCISE 5………………………………………………………………………. 103 READING SIX The Law of Corporations. The Classic American Corporations…. 104 ANSWER KEY. EXERCISES PART ONE……………………………………… 106 ANSWER KEY. EXERCISES PART TWO……………………………………... 111 ANSWER KEY. EXERCISES PART THREE………………………………….. 120 BIBLIOGRAPHY……………………………………………………………………
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INTRODUCTION
The materials included in this manual aim to serve as a complement of the traditional book teachers of Common law courses use during the term. The purpose is for students to do readings in English so that they get practice with the second language and acquire useful legal terminology. It has been divided in three parts. The first one is about the English common law, its main features, origins and continues with the branches of the English government. The second part is devoted to the American legal system, the context in which it was created. It also describes the history of the founding documents of this Nation. The final part explains the American legal procedures and institutions. It describes the criminal procedure and other important legal figures such as contracts, torts and consumer protection procedures. It consists of readings, discussion activities, exercises, figures and charts that students can use in their learning process making it more visual, dynamic and conversational. Hopefully it is a useful tool for both professors and students.
The Autor
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READING ONE
The Common Law and Civil Law Traditions
By R.C. Van Caenegem
Most nations today follow one of two major legal traditions: common law or civil
law. The common law tradition emerged in England during the Middle Ages and
was applied within British colonies across continents. The civil law tradition
developed in continental Europe at the same time and was applied in the colonies
of European imperial powers such as Spain and Portugal. Civil law was also
adopted in the nineteenth and twentieth centuries by countries formerly possessing
distinctive legal traditions, such as Russia and Japan, that sought to reform their
legal systems in order to gain economic and political power comparable to that of
Western European nation-states. To an American familiar with the terminology and
process of our legal system, which is based on English common law, civil law
systems can be unfamiliar and confusing. Even though England had many
profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition
developed differently from that of the continent for a number of historical reasons,
and one of the most fundamental ways in which they diverged was in the
establishment of judicial decisions as the basis of common law and legislative
decisions as the basis of civil law. Before looking at the history, let’s examine
briefly what this means. Common law is generally uncodified. This means that
there is no comprehensive compilation of legal rules and statutes. While common
law does rely on some scattered statutes, which are legislative decisions, it is
largely based on precedent, meaning the judicial decisions that have already been
made in similar cases. These precedents are maintained over time through the
records of the courts as well as historically documented in collections of case law
known as yearbooks and reports. The precedents to be applied in the decision of
each new case are determined by the presiding judge. As a result, judges have an
enormous role in shaping American and British law. Common law functions as an
adversarial system, a contest between two opposing parties before a judge who
moderates. A jury of ordinary people without legal training decides on the facts of
the case. The judge then determines the appropriate sentence based on the jury’s
verdict. Civil Law, in contrast, is codified. Countries with civil law systems have
comprehensive, continuously updated legal codes that specify all matters capable
of being brought before a court, the applicable procedure, and the appropriate
punishment for each offense. Such codes distinguish between different categories
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of law: substantive law establishes which acts are subject to criminal or civil
prosecution, procedural law establishes how to determine whether a particular
action constitutes a criminal act, and penal law establishes the appropriate penalty.
In a civil law system, the judge’s role is to establish the facts of the case and to
apply the provisions of the applicable code. Though the judge often brings the
formal charges, investigates the matter, and decides on the case, he or she works
within a framework established by a comprehensive, codified set of laws. The
judge’s decision is consequently less crucial in shaping civil law than the decisions
of legislators and legal scholars who draft and interpret the codes. The following
sections explore the historical roots of these differences.
EXERCISE 1:
1.- Form groups of three and discuss with your partner what you understand
by a law tradition. Write your conclusions.
………………………………………………………………………………………………
………………………………………………………………………………………………
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2.- Write the differences between common law and civil law in the following
table:
United Kindom Legal System
EXERCISE 2:
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READING TWO
Origin of Case Law
Extract taken from An Introduction to European Legal History,1985
by O.F. Robinson, T.D. Fergus and W.M. Gordon.
The origin of the idea of judge-made law can be traced back to the time when the
king himself presided as judge, earning for himself the title of, "Dispenser of
Justice‖ or "The Fountain of Justice. In England, although the kings gave up the
practice of presiding as Chief Judge very early, the courts always followed the king
in his travels throughout the country, until the Magna Carta in 1215 enacted that
the Royal Courts should be fixed in one particular place for the convenience of the
public. Case law grew up in England because of the accident of the early English
judges being Normans. They were foreigners to England. They were bound
together by an esprit de corps. The binding element made early judges in England
respect each other's decisions, especially when these decisions dealt with matters,
which were strange and unfamiliar to them. In England, the Norman judges when
they used to meet at the Temple discussed their cases, and started the practice of
following each other‘s decisions. Once the Bar discovered that the best argument
in favor of a particular case was the decision of a brother judge in a similar case,
they began to take notes of cases by these judges. And in that manner law
reporting came into existence. Law reporting became an established practice in
this manner. And now the opinions of one judge are regarded as an authority
binding on the other judges. The growth of case law in England was also
accelerated by the reaction that set in against the reception of Roman law. On the
continent, particularly in countries like Germany and France, the indigenous or
local law was found to be unsatisfactory as society progressed. And whenever a
complex case came up, to which the local law could supply no remedy, it was the
practice of the judge to apply Roman law. In England also, the local law was found
to be unsatisfactory with the advance of civilization. The same remedy of
introducing Roman law was attempted. But the common lawyers resisted it. In
order to meet the exigencies of the situation, the judges resorted to a fiction. The
fiction stated that there was no legal problem that could not be solved by the
application of customary law. Every judge carried about in his brains a complete
body of such law ''of amplitude sufficient to furnish principles which would apply to
conceivable combination of circumstances.'' A judgment or declaration of a judge
was supposed to be in conformity with the custom of the land. When subsequent
judges followed such declarations for the sake of conformity, there grew up in
England the practice of following precedents. It is possible that the judges were
influenced by Roman law principles. And that they borrowed in large quantities
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from the Roman law, but that they did not rest the authority of their decisions on
the Roman law. They based their decisions on the fiction that their judgments
indicated the custom of the land.
READING THREE
Common law tradition. The English style
By Muradu Abdo
The English legal system is principally interested in precedents and types of
case. The English legal system is devoted to the careful and realistic discussion of
live problem. The English legal system seeks deal with concrete and historical
terms than think systematically or in abstract. The well-known expression of the
American judge Holmes: ``the life of the law has not been logic; it has been
experience`` is true of other systems. But this 6 Id. chilot.wordpress.com Legal
History & Traditions, September 2008 128 expression was created for the Anglo-
American legal system. Some legal systems are more consciously tied to their past
than others, more attached to traditional forms of legal thinking despite social and
economic changes. No country has clung as firmly as England to its own style of
law throughout the centuries. Many areas in Germany accepted Roman law in its
entirety. Roman law had an essential influence on the principles of the law in
France. The influence of Roman law on the common law of England has been
minor. England was not affected in practice by the idea of codification. The idea
was born of the law of nature and the Enlightenment. Codification can be stated as
the idea that the disorderly historical growth of law could be refined and planned
into a generally comprehensible form as a result of deliberate and planned
legislation used on a rational system. England never had an explosive political
upheaval such as the one occurred in France in 1789. In France, one of the
principal effects of the Revolution was to overturn the legal system of the old
regime and replace it by a radically new system. Such a thing has never happened
to English law. In the middle of 11th century, William I succeeded to create a tight,
integrated, rather simply organized feudal system. He made himself the supreme
feudal overlord. He took land from his opponents. He distributed land to his
supporters in return for rendering services so that his political power would tilt
towards the center. The most influential barons were relegated to the peripheries to
protect the borders against the hostile Scots Welsh. The invaders place tax laws
and implementing institution in place. Fiscal reasons also justified the increasing
intervention by the central royal administration in civil and criminal law to protect
the biggest land owning class. The Royal courts emerged. The royal courts applied
more modern and progressive rules. These progressive rules gradually led to the
disappearance of local laws. The prestige and authority of the royal judges
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increased. England very early enjoyed a unified law. England created the common
law in the 14th century. This was not develop in France until 19th or in Germany
until 19th and even then only in theory of the Pandectists School. Thus, there
never existed in England one of the essential factors behind the idea of
codification. These factors on the Continent were the practical need to unify the law
as well as on the philosophy of the Enlightenment and the thinking of natural
lawyers. Roman and England gave judicial protection to rights only if the plaintiff
could obtain a particular document of claim. The very similar ways in which
litigation was initiated in English and Roman law led legal practitioners in Rome
and England to think not so much in terms of rights. Legal practitioners in England
and Roman system thought in terms of types of action. Roman law and medieval
common law were both dominated by procedural thinking. In both systems, the
rules of substantive law emerged later from procedural law.
READING FOUR
The Role of Equity
Extract taken from An Introduction to European Legal History,1985
by O.F. Robinson, T.D. Fergus and W.M. Gordon.
Towards the end of the 14th century, the legal creativity of the royal court
gradually began to decrease. It became clear that the procedure of those courts
was in many respects too crude. The procedure was also rather formalistic and
that the applicable law was too rigid and incomplete. Cases were being lost
because of technical errors. Cases were lost because witnesses had been bribed.
Cases were lost also because of the opponent‘s political influence. Thus, in 14th
century parties who had lost a lawsuit in the king‘s courts on one of the grounds or
who could not obtain appropriate writ petitioned the king for an order compelling his
adversary to do as morality and good conscience required. The king entertained
such petitions through the Chancellor. The decisions he made developed into
complex special rules called ―equity‖. The purpose of the hearing before the
Chancellor was to discover whether, as the petitioner complained, the defendant
had behaved in a way contrary to morals and good conscience. Equity is not meant
a group of maxims of fairness. Equity is a part of substantive law distinguished
from the rest by the fact that it was developed by the decisions of a particular court,
the Court of Chancellor. The rules of Equity did not openly contradict those of the
common law. The rules of equity did not seek to replace the common law. Instead,
equity supplements to the common law. Equity is chilot.wordpress.com Legal
History & Traditions, September 2008 131 often extremely important; and
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sometimes goes so far as effectively to neutralize the common law rule. Equity was
not a system but common law was or is. In the 14th century, the nature of English
law and the course of its development were fundamentally affected. The main
factor for such development was the fact that very early in its history, there arose a
class of jurists who organized themselves in a kind of guild and so exercised a very
great influence. In the continent, legal education has always been the task of
universities. Legal education in the continent was rather theoretical and remote
from practice. In England, legal education was the monopoly of the Inns of laws
throughout the whole middle Age and until the 19thc. In these circumstances, legal
education would tend to be primarily practical and the device of a professional skill
than a scholarly science. The Inns shaped court procedures through moot courts,
court proceedings, character shaping, disciplinary power, etc. Beginning from the
13th c, there had been a tendency to choose the judges of the royal courts from
the ranks of lawyers without any intervention by the kings. The character of English
law has unquestionably been deeply marked by the fact that the leading lawyers
have never been professors or officials but legal practitioners. They lived, judges
and barristers alike, in the closest social and professional contact at the central
seat of the major courts. They were strongly organized in powerful professional
bodies. The Inns of Court not only saw to the recruitment of new lawyers and
admitted them to the profession but also had a monopoly over their legal
education. In the 10th and 17th centuries, the common law faced the threat of
being entirely ousted or at least pushed into the wings by Roman law; this was the
time of great conflict between parliament and the English kings who wanted an
absolute monarchy. In this dispute, Roman law had a great appeal for the royalists
for it alone could support the political claim that whatever it pleased the king had
the force of law. The kings moved to establish the Star Chamber, a special court,
as there was a favorable intellectual climate from lawyers and churchmen who
were not practitioners and educated on Roman law.
Spread of British laws
Originated in 11th century, the English legal tradition expanded itself
predominately through colonialism. The expression ``the sun never sets in the
British Empire`` has attained the level of a saying. In addition to some other
meanings, the expression suggests the extent of the spread of the British law. The
English law was transported to North America (the United States of America and
Canada), Asia and Africa. England transported legal ideas, legal methods, and
legal institutions of the common law to countries in these continents. Britain also
carried the substantive and procedure laws to these parts of the world. These parts
of the world also reflect the English court system and the structure of the legal
profession.
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DISCUSSION ACTIVITY
Form small groups and discuss the answer to the following question:
1. The main reason for the wide spread of the English legal system is:
A) Colonialism
B) Voluntary reception
C) Capitulation
D) Trade
E) Migration
2. The British legal system was taken to one of the following areas:
A) Areas controlled by natives without developed political organizations.
B) Areas controlled by ex-colonial powers such as the Dutch in South Africa.
C) Areas controlled by princes with more or less developed political organizations
as well as legal systems.
D) All of the above (If you do not know the answers, research on this topic).
3. One of the following is true about the common law during and after its formation
time.
A) It was highly flexible.
B) Equity was developed to correct its defects.
C) Equity was applied to override the common law.
D) During its formation the contribution of scholars was very significant.
E) A,C and D
4. Describe the situations in which equity applied in the history the English legal
system.
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READING FIVE
Magna Carta: an introduction
by: Claire Breay and JulianHarrison
Magna Carta, meaning ‘The Great Charter’, is one of the most famous
documents in the world. Originally issued by King John of England (r.1199-1216)
as a practical solution to the political crisis he faced in 1215, Magna Carta
established for the first time the principle that everybody, including the king, was
subject to the law. Although nearly a third of the text was deleted or substantially
rewritten within ten years, and almost all the clauses have been repealed in
modern times, Magna Carta remains a cornerstone of the British constitution. Most
of the 63 clauses granted by King John dealt with specific grievances relating to his
rule. However, buried within them were a number of fundamental values that both
challenged the autocracy of the king and proved highly adaptable in future
centuries. Most famously, the 39th clause gave all ‘free men’ the right to justice
and a fair trial. Some of Magna Carta’s core principles are echoed in the United
States Bill of Rights (1791) and in many other constitutional documents around the
world, as well as in the Universal Declaration of Human Rights (1948) and the
European Convention on Human Rights (1950).
In 1215 Magna Carta was a peace treaty between the King and the rebel barons.
In that respect it was a failure, but it provided a new framework for the relationship
between the King and his subjects. The 1225 version of Magna Carta, freely issued
by Henry III (r.1216-72) in return for a tax granted to him by the whole kingdom,
took this idea further and became the definitive version of the text. Three clauses
of the 1225 Magna Carta remain on the statute book today. Although most of the
clauses of Magna Carta have now been repealed, the many divergent uses that
have been made of it since the Middle Ages have shaped its meaning in the
modern era, and it has become a potent, international rallying cry against the
arbitrary use of power.
Although Magna Carta contained 63 clauses when it was first granted, only three of
those clauses remain part of English law. One defends the liberties and rights of
the English Church, another confirms the liberties and customs of London and
other towns, but the third is the most famous:
No free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any
other way, nor will we proceed with force against him, or send others
to do so, except by the lawful judgement of his equals or by the law of
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the land. To no one will we sell, to no one deny or delay right or
justice.
This clause gave all free men the right to justice and a fair trial. However, ‘free
men’ comprised only a small proportion of the population in medieval England. The
majority of the people were unfree peasants known as ‘villeins’, who could seek
justice only through the courts of their own lords.
Buried deep in Magna Carta, this clause was given no particular prominence in
1215, but its intrinsic adaptability has allowed succeeding generations to reinterpret
it for their own purposes. In the 14th century Parliament saw it as guaranteeing trial
by jury; in the 17th century Sir Edward Coke (1552-1634) interpreted it as a
declaration of individual liberty in his conflict with the early Stuart kings; and it has
echoes in the American Bill of Rights (1791) and the Universal Declaration of
Human Rights (1948).
Much of the remainder of Magna Carta dealt with specific grievances regarding the
ownership of land, the regulation of the justice system, and medieval taxes with no
modern equivalent (such as ‘scutage’ and ‘socage’). It demanded the removal of
fish weirs from the Thames, the Medway and throughout England; the dismissal of
several royal servants; the standardisation of various weights and measures; and
so on.
Magna Carta stated that no taxes could be demanded without the ‘general consent
of the realm’, meaning the leading barons and churchmen. It re-established
privileges which had been lost, and it linked fines to the severity of the offence so
as not to threaten an individual’s livelihood. It also confirmed that a widow could
not be forced to remarry against her wishes.
In 1214, a mercenary army raised by King John was defeated by the French at the
Battle of Bouvines in northern France. This army had been paid largely by the tax
known as ‘scutage’, a payment made to the Crown in place of providing knights for
military service, and the focus of much baronial discontent.
King John’s reign was also marked by his strained relationship with the Church.
John had rejected the election of Stephen Langton (1150-1228) as Archbishop of
Canterbury, and in 1208 the Pope issued a decree (known as an ‘Interdict’),
prohibiting people in England from receiving the sacraments or being buried in
consecrated ground. King John was excommunicated by Pope Innocent III (1161-
1216) in 1209, and the Interdict remained in place until John surrendered his
kingdom to the overlordship of the Pope in 1213.
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In 1213, a party of rebel barons met with Archbishop Stephen Langton and
the papal legate (a representative of the Pope) to air their grievances against the
King. They also urged that John should agree to confirm the coronation charter
issued by his ancestor, King Henry I, in 1100, which had promised ‘to abolish all
the evil customs by which the kingdom of England has been unjustly oppressed’. In
early 1215, the dispute escalated when King John refused to meet the barons’
demands. In May many barons renounced their oaths of allegiance to him,
choosing Robert fitz Walter (1162-1235) as their leader. Their capture of the city of
London that same month was a turning point in their campaign.
Once London was in the barons’ hands, John had no option but to negotiate with
them. The two sides met at Runnymede, on the River Thames near Windsor in the
south of England, in June 1215. The demands of the barons were recorded in the
document known as the Articles of the Barons. Following further discussions with
the barons and clerics led by Archbishop Langton, King John granted the Charter
of Liberties, subsequently known as Magna Carta, at Runnymede on 15 June
1215. On 19 June the rebel barons made their formal peace with King John and
renewed their oaths of allegiance to him.
The King’s clerks set about drawing up copies of the agreement for distribution
throughout the kingdom. It is not certain how many copies of the 1215 Magna
Carta were originally issued, but four copies still survive: one in Lincoln Cathedral;
one in Salisbury Cathedral; and two at the British Library. Like other medieval royal
charters, Magna Carta was authenticated with the Great Seal, not by the signature
of the king.
Although King John agreed the terms of Magna Carta and the barons renewed
their oaths of allegiance, the settlement did not last long. Aggrieved by the manner
in which Magna Carta was to be enforced, John sent messengers to the Pope (the
overlord of the kingdoms of England and Ireland) in the summer of 1215,
requesting that the charter be annulled. In turn, the barons refused to surrender the
city of London to the King until Magna Carta had been implemented. Pope
Innocent III was alarmed by the charter’s terms, and on 24 August 1215 he issued
a document known as a papal bull, describing Magna Carta as ‘illegal, unjust,
harmful to royal rights and shameful to the English people’, and declaring the
charter ‘null and void of all validity for ever’.
In September 1215, civil war broke out between King John and his barons. The
King raised an army of mercenaries to fight his cause, while the barons renounced
their allegiance to him, and invited Prince Louis (1187-1226), son of the King of
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France, to accept the English crown. Louis invaded England in 1216, and England
was still at war when John died of dysentery on the night of 18 October 1216.
Magna Carta was effectively dead, but it gained new life in the early years of the
reign of the next king, Henry III. Henry was just nine years old when he succeeded
to the throne, and in November 1216 a revised version of Magna Carta was issued
in his name, in order to regain the support of the barons. Another version of Magna
Carta was granted in the following year, after the French army had been expelled
from England. In 1225, on reaching the age of 18, Henry reissued a much revised
version of Magna Carta which was later enrolled on the statute book by King
Magna Carta is sometimes regarded as the foundation of democracy in England. In fact, most of its terms applied only to a small proportion of the population in 1215, and the implementation of the charter in subsequent centuries remained open to the interpretation of the courts.
Revised versions of Magna Carta were issued by King Henry III (in 1216, 1217 and
1225), and the text of the 1225 version was entered onto the statute roll in 1297.
Magna Carta had limited the circumstances under which the King could raise
money without the consent of the people. The 1225 version of Magna Carta had
been granted explicitly in return for a payment of tax by the whole kingdom, and
this paved the way for the first summons of Parliament in 1265, to approve the
granting of taxation.
In the 17th century, opponents of King Charles I (1625-49) used Magna Carta to
regulate the arbitrary use of royal authority. Sir Edward Coke, declared that ‘Magna
Carta is such a fellow, that he will have no sovereign’, and in 1628 he helped to
draft the Petition of Right, which limited royal power and made explicit reference to
Magna Carta. When King Charles was himself put on trial in 1649, it was argued
that his attempts to halt the proceedings contravened the clause of Magna Carta
which prohibited the delay of justice.
Magna Carta has consequently acquired a special status as the cornerstone of
English liberties. This is despite the fact that the vast majority of its clauses have
now been repealed, or in some cases superseded by other legislation such as the
Human Rights Act (1998). Magna Carta nonetheless retains enormous symbolic
power as an ancient defence against arbitrary and tyrannical rulers.
To expand information also check:
https://www.bl.uk/magna-carta/articles/magna-carta-an-
introduction#sthash.m76ZfxYv.dpuf
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DISCUSION ACTIVITY
After doing the readiong on la Carta Magna.Form groups of three and answer the
following questions.
1. What is Magna Carta. Why was it created?
2. What does it say, and why has it become one of the most celebrated documents in history?
3. What is Magna Carta?
4. Why does Magna Carta matter today?
5. What does Magna Carta say?
6. Why was Magna Carta created?
7. Was Magna Carta effective in the short term?
8. What was the long-term impact of Magna Carta?
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EXERCISE 2:
Read the following link and answer the questions bellow:
https://www.gov.uk/government/how-government-works
1.What is the UK government structure? Use a diagram to answer the
question.
EXERCISE 3:
2. The Government is responsible for deciding how the country is run and for managing things, day to day. They set taxes, choose what to spend public money on and decide how best to deliver public services, such as:
the National Health Service the police and armed forces welfare benefits like the State Pension the UK’s energy supply __________________________________ __________________________________ __________________________________ __________________________________
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READING SIX:
The Powers and Functions of the Prime Minister
By Graham P. Thomas
The prime minister as head of government
Appointing and dismissing ministers. Perhaps the most significant power of the
Prime Minister is that of appointing and dismissing. The Prime Minister’s control
over Cabinet even extends to apparently trivial matters such as the seating
arrangements, which involve complex considerations of power and precedence, as
well as more human elements.
The precise manner in which Prime Ministers deal with their Cabinets will vary
considerable. This depends partly on personal style, partly on political
circumstances and can vary over the period in office of any particular Premier. The
Prime Minister is also responsible for ensuring that collective responsibility is
observed, not only in the Cabinet but in all ranks of administration.
Cabinet committees
The Prime Minister appoints all members of Cabinet committees and decides their
terms of reference. It is clear that many decisions are in practice taken by
committees and then presented to Cabinet for ratification. So the ability of the
Prime Minister to decide who sits on which committees and what matters are
discussed is obviously of crucial importance. Recent Premiers have even gone
outside the official structure of Cabinet committees to ensure that certain matters
are dealt with by those sympathetic to his or her position.
The machinery of government
Prime Ministers must also involve themselves in highly complex and often
controversial issues regarding the organization of government business, ranging
from the structure of central departments to the establishment of executive
agencies in the Civil Services and the creation of new quangos (quasi-autonomous
nongovernmental organizations). Though these matters rarely hit the headlines
they raise issues of the greatest importance for the public good and engage the
Prime Minister as head of the government, concerned to serve the public interest
not just in the present but to take decisions which will have an impact long after the
Prime Minister has departed his or her office. Decisions taken now about the
structure of the education service, the debate about the organization of the
National Health Service, the extent to which government functions are carried out
by the executive agencies (involving a much-reduced central departmental core)
19
are all examples of decisions which have long-term consequences for the people
of this country and in which the Prime Minister must have a possibly crucial input.
The Civil Service
The Prime Minister is responsible for appointments to the tow most senior grades
in the Home Civil Service and for the highest positions in the Diplomatic Service. In
making domestic appointments, the Prime Minister is advised by the Head of the
Home Civil Service. For post if the Foreign Service, advice, will be given by the
Foreign Secretary, the Permanent Secretary to the Foreign Office and Foreign
Office Senior Selection Board. Traditionally, the Prime Minister would accept
official advice and select from a short list.
Patronage
The Prime Minister is responsible, directly and indirectly, for a host of appointments
in British Public life. They include senior judges, the archbishops and bishops of
the Anglican Church, senior military officers, the Governor of the Bank of England,
members of the governing bodies of the BBC and the IBA and many others. This
power of appointment extends to certain university posts in the gift of the crown.
Although some of these appointments are in theory made by other ministers, the
Prime Minister’s power to influence them is considerable; it is unlike that a minister
would resist a clearly expressed ages to more humble honours such as the MBE,
although in theory emanating from the monarch, in reality is dominated by the
advice of the Prime Minister.
Military and security matters
The chiefs of the armed forces are appointed by the Prime Minister and retain the
right of appeal to him or her over matters relating to defence expenditure. Some
Prime Ministers have taken a close and direct interest in military matters. During
Second World War Churchill was also Minister of Defence and he again took the
post for the first few months of his peacetime administration.
The Prime Minister is head of Britain’s security services and since 1989 has been
responsible for the appointment of a Commissioner to oversee the security
services. Successive Premiers have refused to give a public account of this aspect
of their responsibilities, but it is clear that in both formal and informal terms the
Prime Minister is in overall control of their activities.
Parliamentary duties
Although the Prime Ministers will be expected to speak in the debate in answer to
the Queen’s Speech at the start of each session of Parliament and in No
20
Confidence debates and to make Statements, for example after attending
international conferences, interventions by the Prime Ministers in other debates are
becoming increasingly rare. The Prime minister has to attend the Commons for
short period son Tuesday and Thursday afternoons to answer Prime Minister’s
Questions, although he or she can delegate the responsibility when ill or out of the
country. These are now the high pint of the parliamentary week and often attract
attention in the media, unlike the usual fun of parliamentary debate.
The Prime Minister and the Monarch
The Prime Minister is the sovereign’s principal adviser. Although he or she no
longer writes a letter summarising the Cabinet’s proceedings, the Prime Minister,
while Parliament is in session, still has a weekly audience with the Queen and is
likely to be invited to spend some time with the Royal Family of the Queen’s
Balmoral state.
The Prime Minister as a party leader
A marked trend in British politics in recent decades has been the domination of the
governing party’s election campaign by the Prime Minister. The Prime Minister,
especially in the case of the Conservative Party, takes responsibility of the writing
of the manifiesto, tends to monopolise media coverage and attempts to determine
the nature and direction of the contest. Much of the media portray the election as a
battle between the Prime Minister and the Leader of the Opposition, rather than as
one between parties.
A Labour Prime Minister has a more formal connection with the party machine
outside Parliament in that, as party leader, he is ex officio a member of the NEC
and attends its monthly meetings.
The Prime Minister as national leader
In a constitutional monarchy the Prime Minister must walk something of a tightrope.
He or she must know when to week the limelight and when it is more proper to
leave it to the titular head of state. The Prime Minister will have a number of roles
of symbolic importance when he or she needs clearly to express the feelings and
aspirations of the whole nation. Occasions such as royal weddings or funerals
require the Prime Minister to move a Loyal Address in the Commons and it fell to
John Mayor to announce the separation of the Prince and Princess of Wales. The
Prime Minister also is expected to sum up the publics’ feelings when some disaster
happens. Of greater significance is the role of Prime Minister now plays in
international Diplomacy, a comparatively recent addition to his or her tasks.
21
READING SEVEN:
Legislative Branch. The British Parliament
How Parliament Works. Robert Rogers, Rhodri
Walters. Pearson/Longman, 2006
Nobody set out to create Parliament. It developed naturally out of the daily
political needs of the English King and his government. Nor did it develop
continuously over time, but went through short periods of rapid growth.
Origins
In November of 1236, Henry III (1216-1272) adjourned a law case to a ‘parliament’
which was due to meet in January of 1237, this was the first occasion the term
‘parliament’ was recorded in an official document of the English Crown.
But this didn’t mark the birth of parliament. The use of the term in 1236 was new,
but it described a type of assembly which had existed for many centuries.
English kings had always discussed the affairs of the realm with their subjects, but
under the Norman and Angevin kings these meetings had been described by
contemporaries as ‘councils’.
The use of the term ‘parliament’ signalled that important changes were happening.
The council, made up of the King's closest advisors, would always remain at the
heart of Parliament, but from the 1240’s the assembly began to acquire
characteristics which made it clearly distinguishable from these older gatherings.
The real driving force behind this development was parliament’s role in granting
taxation to the King. Henry III was the first monarch to ask his subjects for taxation
on a regular basis, because the income from crown lands was no longer sufficient
on its own to fund the King's military expenditure.
Since the principle of common consent to such impositions had been enshrined in
Magna Carta, increasing pressure was placed on the King to invite a greater
selection of his subjects to attend Parliament.
At first, assent to taxation was given by the barons, but increasingly as the 13th
century progressed, Henry III was forced in addition to negotiate directly with the
representatives of the counties, towns and lower clergy (later to be known as the
‘Commons’).
22
Parliament therefore became synonymous with an enlarged gathering of the
kingdom's political elite.
In the reign of Edward I (1272-1307) parliament became a more consistent part of
political life, brought together as and when the King required it, which usually was
when the crown needed taxation.
This meant that the annual gatherings were infrequently meeting twice or
sometimes three times a year. The length of each parliamentary session varied,
depending on the nature of the business to which it attended.
Most assemblies met at Westminster, but it was not uncommon for Parliament to
be held elsewhere in order to accommodate the King's itinerary. In October 1290,
Parliament was summoned to meet at Clipstone in Nottinghamshire, a popular
royal hunting lodge.
In 1292, as Edward I was campaigning in the North against the Scots, an assembly
met at Berwick.
Emergence of the Commons
As late as 1311, the barons had regarded themselves as the defenders of the
‘community of the realm’ in political discussion or confrontation with the king, but in
the 1320’s this role had come to be firmly associated with MP’s.
A political treatise written anonymously during this decade stated that the barons in
parliament could speak only for themselves. It was the knights, citizens and
burgesses who represented ‘the whole community of England’ and who alone
should grant taxation on behalf of the people.
The incessant warfare between England and Scotland, and then France, in the
14th century cemented the place of the Commons in parliament, as the Crown
regularly looked to MP’s to provide the funds necessary for defence and military
campaigning.
At the start of Edward III's reign (1327-1377) the Commons contained two distinct
elements:
The ‘Knights of the Shire’, who represented the counties.
The ‘Burgesses’, who represented towns or cities.
The knights were usually members of the landed gentry while the burgesses
mostly rich merchants or lawyers.
23
Although burgesses significantly outnumbered the knights of the shire, the latter
were probably the more politically dominant because of their social standing and
political connections.
Knights were paid four shillings a day for service in parliament, with burgesses
receiving two shillings. At a time when the average daily wage for a peasant was
just two pence, this was a very generous provision and represented a heavy
financial burden for the constituencies to carry.
King, Lords and Commons
The Lords had developed from a small group of councillors in the 13th century to a
much greater body of men that would later, in the early 14th century, be described
as the ‘peerage’ (dukes, earls, barons, bishops and abbots).
The king also summoned all the key officers of state to attend the upper house.
These included the Chancellor of the Exchequer, the treasurer, the senior royal
judges and key members of the royal household.
The concentration of these men in the Lords reflected the fact that this was where
the main business of parliament was decided. The King appointed a mixture of
peers and administrators, or judges, to sit on committees to decide the outcome to
petitions, drawing on their advice to respond to general matters of policy.
The relationship between the Lords and Commons was summed up by MP’s in
1399 when they declared that whereas they were merely ‘petitioners and suitors’,
all judgements of parliament ‘belong solely to the King and Lords’.
Parliament itself was organised by the administrative personnel of the lords. The
Chancellor normally acted as the King's spokesman. He was responsible for
opening parliament with a speech declaring the reasons for holding the session
and he read out the answers to common petitions.
What Parliament Does
The main work of Parliament is to make laws, debate topical issues and look at
how the taxes are spent to help run the country. The issues discussed in
Parliament affect all the population: health, the environment, transport, jobs,
schools, crime.
24
Who gets to work in Parliament?
They live in a democratic country, which means that all have a say in how the
country is run. They do this by electing Members of Parliament (MP’s) to represent
their views in the House of Commons. This part of Parliament has the greatest
political power. The second part of Parliament is the House of Lords, whose
unelected members complement the work of the House of Commons. The third
and final part of Parliament is the Monarch, the Queen, who signs the laws that
Parliament votes for.
Where is Parliament?
The Houses of Parliament, also known as the Palace of Westminster, is in the
centre of London. As well as the home of the UK Parliament, it is also a royal
palace and former residence of great kings. The Palace is one of the most iconic
buildings in the world and includes the green-coloured House of Commons
Chamber and the red-coloured House of Lords Chamber where political decisions
are made to this day. It also includes the famous Clock Tower, popularly known as
Big Ben.
The UK Parliament has devolved (given away) to the people of Scotland, Wales
and Northern Ireland some of its powers to other national and regional bodies. In
Scotland, for example, there is the Scottish Parliament which has elected members
who make some decisions for Scotland. Wales and Northern Ireland have their
own Assemblies and there is also a London assembly.
Members of Parliament, Lords and the Monarch
The Lords
The Lords started off as a kind of advisory council to the King. They met up at
Westminster every now and then to discuss matters of state, but in 1215 King
John, was forced to sign the Magna Carta sharing power with the nobility. Trade
became more and more important, leading to the rise of a new merchant class.
By the 14th century, Edward III had two groups of advisors divided into chambers,
the Lords and the Commons, made up of lesser knights and merchants. This is
why they have two houses in parliament. As time passed, the Commons became
increasingly dominant and the King became less powerful. In 1649 King Charles
was even executed by the Commons.
The balance of power between the houses swung firmly towards the Commons.
From that day on, inheriting seats made the people feel like the Lords were only for
the privileged.
25
The Lords act of 1999 reduced the number of hereditary peers in the house and
stopped Lords passing their seat to their own family. A panel was made to help the
Prime Minister decide who was brought into the house, so that now the house is
made up of people from all walks of life, political peers, cross-bench peers, as well
as hereditary peers and bishops.
The House of Lords is currently the second busiest legislative chamber in the
world, right after the Commons. Each chamber is laid out in the same way as the
Commons, the government party on the one side, the opposition on the other.
Peers who don’t belong to any political party are known as cross-benchers, as they
sit on the cross benches opposite the wool sack. The wool sack is the Lord
Speaker’s seat.
The Lords is different to the Commons because there’s no majority for any political
party. The party in power does not necessarily have the most seats. As the Lords
are not elected, they’re less caught up in party politics and can concentrate on their
three main functions.
The Commons
In early fifteenth century, there were more than 250 members of the commons.
More were steadily added by statue and royal charter, and by 1673 the
membership of the House stood at 513. Union with Scotland in 1707 added 45
members and 100 came from Ireland with the Union of 1801, making 658. The
post-devolution reduction in Scottish seats at Westminster went from 72 to 59,
meant that there were 646 members of Commons in 2005. But in 2010 with
General Election the numbers increased to 650 members.
The House of Commons is governed by a group of MPs (Members of
Parliament) who make up the House of Commons Commission. The day to day
running of the House is delegated to senior officials on the House of Commons
Executive Committee.
Members of Parliament are the ‘elected representatives’: In a democracy like the UK, citizens elect other citizens to make decisions about how the country should be governed. Every MP in the House of Commons got his or her place by winning an election in their area of the country, called a ‘constituency’.
Almost everyone is eligible to become an MP
If you are British, Irish citizen, 18 or over, you can stand for election in the UK. But if you're in prison, you can't be a Member of Parliament; also, you can't be an MP if you're a member of the House of Lords.
26
Who can vote in elections?
There is no property qualification, since 1928 no sex discrimination, there are voting rights for Britons who live abroad and choose to register Commonwealth and Irish citizens resident in Britain. Are excluded to vote those under 18 years, convicted offenders still in prison, people determined under mental health and anyone with a seat in the House of Lords.
MPs play an important part in making laws for the UK Any changes to the country's laws must be approved by Parliament. The government proposes most of the changes to the law and makes its case to MPs in the House of Commons, who vote on whether to approve the change or not, and The House of Lords must also approve.
The Monarch. Queen Elizabeth visits the Houses of Parliament around once a
year, arriving in grand style to open a new session of Parliament.
In the past Britain's kings and queens were incredibly powerful. They controlled the
decisions that affected everyone in the country. Today, most of the important
decisions that affect the people are made by MPs and Members of the House of
Lords.
The UK Parliament has the power to pass laws for the country. It's formed of
representatives from three parts: 650 MPs in the House of Commons, over 750
Members of the House of Lords and the Queen, who represents the monarchy.
Queen Elizabeth signs her name to every Act of Parliament before it can become the law of the land. It would be very unusual for her to refuse. No monarch has refused Parliament's wishes for over 300 years.
MPs and Lords don't meet in Parliament every day of the year. There are some
breaks. It falls to the monarch to open each new meeting (or ‘session’) of
Parliament.
The Queen officially appoints the Prime Minister after a general election, although
she doesn't choose the Prime Minister herself. By tradition, she appoints the leader
of the political party that wins a majority of the seats in Parliament.
The Queen doesn’t get involved in running the government. Nor does she publicly say what she thinks about political issues.
27
Differences between Parliament and Government
PARLIAMENT GOVERNMENT
Also known as the ‘Legislature’ Also known as the ‘Executive’
Doesn't get into the business of running the country.
The government runs the country.
It has responsibility for checking the work of government and examining, debating and approving new laws.
It has responsibility for developing and implementing policy and for drafting laws. Also decide how the taxes are spent.
To pass a new law both the House of Commons and the House of Lords must agree it is a good idea.
Different government departments have responsibility for separate áreas of business.
Members of Parliament are also responsible for keeping an eye on the work of the government, to make sure it's doing a good job.
Led by the Prime Minister, UK government is formed by political party (or coalition of parties). Representation in the House of Commons.
To expand information also check:
How Parliament Works. Robert Rogers, Rhodri Walters.
(https://books.google.com.mx/books?isbn=1317550285)
http://www.parliament.uk/
http://www.bbc.co.uk/history/british/middle_ages/birth_of_parliament_01.sht
ml
EXERCISE 4:
What is Parliament?
Parliament is there to represent our interests and make sure they are taken into account by the Government. The Government cannot make new laws or raise new taxes without Parliament’s agreement.
Parliament is made up of people the population has elected and people who have been appointed. They sit in two separate Houses:
28
Select the true options:
The House of Commons whose members serve indefinitely. Some of them inherit their seats in Parliament.
The House of Commons, where all the people that have been elected at the General Election work, as Members of Parliament, for the next five years. This includes people in other political parties, as well as those in the winning party who were not chosen to be ministers.
The House of Lords, whose members are mostly appointed for life rather than elected. They have often been chosen because of their achievements and experience. Many do not belong to a political party.
The House of Lords scrutinizes bills that have been approved by the House of Commons. It regularly reviews and amends Bills from the Commons.
Both Houses of Parliament hold debates in which Members discuss government policy, proposed new laws and topical issues of the day.
EXERCISE 5:
Which is true? Which is false?
The functions of the UK Parliament are to: “T” “F”
Check and challenge the work of the Government (scrutiny)
Guide the law-making process with the goal of enacting the legislative agenda of their political party.
Make and change laws (legislation)
Debate the important issues of the day (debating)
Act as the public "face" and "voice" of Her Majesty's Government, both at home and abroad.
Check and approve Government spending (budget/taxes)
Exercise many statutory and prerogative powers, including high judicial, political, official and Church of England ecclesiastical appointments
Examine and challenge the work of the government through questioning ministers
29
Hold the position of First Lord of the Treasury
EXERCISE 6:
A Bill is a proposal for a new law, or a proposal to change an existing law that is presented for debate before Parliament.
Answer the following questions:
1. What are Public Bills? 2. What are Private Members' Bills? 3. What are Private Bills? 4. What are Hybrid Bills? 5.
EXERCISE 7:
The House of Lords is the second chamber of the UK Parliament. It is independent from, and complements the work of, the elected House of Commons. The Lords shares the task of making and shaping laws and checking and challenging the work of the government.
Circle around the Lords three main roles:
Making laws
Is the lower house of the Parliament of the United Kingdom
In-depth consideration of public policy
Holding government to account.
Introduce controversial bills
30
EXERCISE 8:
Making laws
Bills start in either the House of Lords or House of Commons. They go through set
stages of approval in both Houses before they become an Act of Parliament.
Find out and write more about the role and work of the House of Lords.
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
EXERCISE 9:
Work in groups and complete
1. The UK public elects Members of Parliament (MPs) to represent __________________________in the House of Commons.
2. During an election everyone eligible to cast a vote in a constituency (constituents) selects _______________ to be their Member of Parliament.
3. Members of Parliament can assist their constituents in a variety of ways, from_____________________, to _____________________________.
4. The UK has many political parties, which are represented in______________ and __________________.
5. (Nearly all)/ (All) /(None) MPs represent political parties.
31
READING EIGHT
The Courts
The British Government: A Brief Overview
Information courtesy of The British Information Services
Criminal.Courts Courts:
Summary or less serious offences, which make up the vast majority of
criminal cases, are tried in England and Wales by unpaid lay magistrates -
justices of the peace (IPs), although in areas with a heavy workload there
are a number of full-time, stipendiary magistrates. More serious offences are
tried by the Crown Court, presided over by a judge sitting with a jury of
citizens randomly picked from the local electoral register. The Crown Court
sits at about 90 centres and is presided over by High Court judges, full-time
'circuit judges' and part-time recorders.
Appeals from the magistrates' courts go before the Crown Court or the High Court.
Appeals from the Crown Court are made to the Court of Appeal (Criminal Division).
The House of Lords is the final appeal court in all cases.
Civil.Courts Courts
Magistrates' courts have limited civil jurisdiction. The Y70 county courts have a
wider jurisdiction; cases are normally tried by judges sitting alone. The 80 or so
judges in the High Court cover civil cases and some criminal cases, and also deal
with the appeals. The High Court sits at the Royal Courts of Justice in London or at
26 district registries. Appeals from the High Court are heard in the Court of Appeal
(Civil Division), and may go on to the House of Lords, the final court of appeal.
The.Home.Secretary Home Secretary
The Home Secretary has overall responsibility for the criminal justice system in
England and Wales and for advising the Queen on the exercise of the royal
prerogative of mercy to pardon a person convicted of a crime or to remit all or part
of a penalty imposed by a court. The Home Secretary can also send a case back
to the Court of Appeal if fresh evidence emerges after a conviction has been made.
Scotland
The principles and procedures of the Scottish legal system (particularly in civil law)
differ in many respects from those of England and Wales.
32
Criminal cases are tried in district courts, sheriff courts and the High Court of
Justiciary. The main civil courts are the sheriff courts and the Court of Session.
The Secretary of State for Scotland recommends the appointment of all judges
other than the most senior ones. He or she also appoints the staff of the High Court
of Justiciary and the Court of Session, and is responsible for the composition,
staffing and organisation of the sheriff courts. District courts are staffed and
administered by the district and islands local authorities.
Northern.Ireland Ireland
The legal system of Northern Ireland is in many respects similar to that of England
and Wales. It has its own court system: the superior courts are the Court of Appeal,
the High Court and the Crown Court, which together comprise the Supreme Court
of Judicature. A number of arrangements differ from those in England and Wales.
A major example is that those accused of terrorist-type offences are tried in nonjury
courts to avoid any intimidation of jurors.
Tribunals
Tribunals are a specialized group of judicial bodies, akin to courts of law. They are
normally set up under statutory powers which also govern their constitution,
functions and procedure.
Tribunals often consist of lay people, but they are generally chaired by a legally
qualified person. They tend to be less expensive, and less formal, than courts of
law. Some tribunals settle disputes between private citizens. Industrial tribunals, for
example, play a major role in employment disputes. Others, such as those
concerned with social security, resolve claims by private citizens against public
authorities. A further group, including tax tribunals, decide disputed claims by
public authorities against private citizens. Tribunals usually consist of an uneven
number of people so that a majority decision can be reached.
Members are normally appointed by the government minister concerned with the
subject, although the Lord Chancellor (or Lord President of the Court of Session in
Scotland) makes most appointments when a lawyer chairman or member is
required. In many cases there is a right of appeal to a higher tribunal and, usually,
to the courts. Tribunals do not normally employ staff or spend money themselves,
but their expenses are paid by the government departments concerned. An
independent Council on Tribunals exercises general supervision over many
tribunals.
33
The UK does not have a single body of law applicable throughout the realm.
Scotland has its own distinctive system and courts; in Northern Ireland, certain
spheres of law differ in substance from those operating in England and Wales. A
feature common to all UK legal systems, however—and one that distinguishes
them from many continental systems—is the absence of a complete code, since
legislation and unwritten or common law are all part of the "constitution."
The main civil courts in England and Wales are 218 county courts for small cases
and the High Court, which is divided into the chancery division, the family division,
and the Queen's Bench division (including the maritime and commercial courts), for
the more important cases. Appeals from the county courts may also be heard in
the High Court, though the more important ones come before the Court of Appeal;
a few appeals are heard before the House of Lords, which is the ultimate court of
appeal for civil cases throughout the United Kingdom. In Scotland, civil cases are
heard at the sheriff courts (corresponding roughly to the English county courts) and
in the Outer House of the Court of Session, which is the supreme civil court in
Scotland; appeals are heard by the Inner House of the Court of Session. Trial by
jury in civil cases is common in Scotland but rare in the rest of the United Kingdom.
Criminal courts in England and Wales include magistrates' courts, which try less
serious offenses (some 96% of all criminal cases) and consist most often of three
unpaid magistrates known as justices of the peace, and 78 centers of the Crown
Court, presided over by a bench of justices or, in the most serious cases, by a High
Court judge sitting alone. All contested cases receive a jury trial. Cases involving
persons under 17 years of age are heard by justices of the peace in specially
constituted juvenile courts. Appeals may be heard successively by the Crown
Court, the High Court, the Court of Criminal Appeal, and in certain cases by the
House of Lords. The supreme criminal court is the High Court of Justiciary, where
cases are heard by a judge sitting with a jury; this is also the ultimate appeals
court.
All criminal trials are held in open court. In England, Wales, and Northern Ireland,
12-citizen juries must unanimously decide the verdict unless, with no more than
two jurors dissenting, the judge directs them to return a majority verdict. Scottish
juries of 15 persons are permitted to reach a majority decision and, if warranted, a
verdict of "not proven." Among temporary emergency measures passed with the
aim of controlling terrorism in Northern Ireland are those empowering ministers to
order the search, arrest, and detention of suspected terrorists and permitting
juryless trials for terrorist acts in Northern Ireland.
34
Central responsibility for the administration of the judicial system lies with the lord
chancellor (who heads the judiciary and also serves as a cabinet minister and as
speaker of the House of Lords) and the home secretary (and the secretaries of
state for Scotland and for Northern Ireland). Judges are appointed by the crown, on
the advice of the prime minister, lord chancellor, or the appropriate cabinet
ministries. The UK accepts the compulsory jurisdiction of the International Court of
Justice with reservations.
35
Sources: http://new.justcite.com/kb/editorial-policies/terms/uk-court-structure/
http://www.nationsencyclopedia.com/Europe/United-Kingdom-JUDICIAL-SYSTEM.html#ixzz4Cowvz7nz
36
EXERCISE 10:
Answer the following questions:
1. Who tries serious crimes?
2. What Courts try less severe offenses in England and Wales?
3. How is the judicial procedure in Scotland?
4. How do tribunals make a decision?
5. Who pays the tribunals expenses?
EXERCISE 11:
Match the following columns
a) it deals with serious criminal cases ( ) appeal
b) summary offences may only be dealt with in ( ) The Court of Appeal
c) deals with civil (non-criminal) matters. ( ) Crown Court
d) if you disagree with the magistrate court’s verdict, you may be able to
( ) The County Court
e) is the highest court within the Senior Courts of England and Wales
( ) the magistrates' court
37
READING ONE
A history of American Law
By Lawrence M. Friedman
In the first generation of independence, the civil-law domain, vast but sparsely
settled, encircled the domain of the common law. Civil law-French and Spanish-
governed along the Mississippi and the river bottoms of its tributaries; in
Kaskaskia, St. Louis, New Madrid, and St. Charles; in the bustling port of New
Orleans; in the Floridas, and in Texas. When this empire became American
property, it fell subject to American government and law. A massive invasion of
settlers doomed the civil law everywhere, except in Louisiana. The new judges and
lawyers were trained in the common-law tradition. They supplanted judges of
French and Spanish background. The United States did not disturb rights of
property that had vested under civil law. American courts wrestled for years with
civil-law problems of land law, family law, laws of descent and inheritance. Among
Thomas Rodney's papers, from the Natchez district, are case records in which
points at issue were resolved by reference to Spanish law or jurisprudence,
translated for the benefit of jury and court. The Northwest Ordinance, after
prescribing its own rules about wills and inheritance, promised to preserve, for "the
French and Canadian inhabitants, and other settlers of the Kaskaskies, Saint
Vincents, and the neighboring villages," the benefit of "their laws and customs now-
in force among them, relative to the descent and conveyance of property." But
American policy insisted, for the long haul, that the law must be thoroughly
Americanized. Around the old river town of St. Louis, Spanish law was technically
in force, supplemented by French customs. From the very first, however, American
officials aimed "to assimilate by insensible means, the habits and customs of the
American and French inhabitants; by interweaving some of the regulations of the
latter into our Laws, we procure a ready obedience, without violence or complaint."
As the American population increased, more direct action was used in addition to
these gentle and "insensible means." A statute of 1807, applicable to what later
became Missouri Territory, repealed the civil law on wills and inheritance, and
introduced American intestacy laws and laws about wills. American lawyers lobbied
successfully for a law which made the common law of England the basis of law in
Missouri Territory (1815- 16). When it entered the Union, Missouri had little left of
its civil-law past, except some tangled land titles, and a passion for procedural
simplicity. The French in Illinois were similarly doomed. The guarantee of the
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Ordinance applied only to laws of succession. The French were immediately
subjected to an elaborate county and township organization, on the model
developed in the British colonies, despite the fact that they had "retained in their
isolation the political and economic traditions of the France of Louis XIV, of
common fields and manorial organization." American officials had no particular
sympathy for the culture of French settlers. Judge John C. Symmes, who came to
Vincennes in 1790, reacted to the French with chauvinistic disgust. They "will not
relish a free government," he wrote. "They say our laws are too complex, not to be
understood, and tedious in their operation-the command or order of the Military
commandant is better law and speedier justice for them and what they prefer to all
the legal systems found in Littleton and Blackstone. It is a language which they say
they can understand, it is cheap and expeditious". It was natural for these settlers
to resent the coming of Americans. The French lost their influence, and with it, their
law. Traces of French costumes lingered on briefly in family law. Gradually, French
law and language disappeared. An indigenous law, without prestige, and in a
minority status, can hardly survive. The sheer mass of American settlers easily
conquered Spanish law in Florida, where the original population was sparse. In
1821 Andrew Jackson imposed, by proclamation, common-law procedure in
criminal cases, including the right to trial by jury. But Spanish law had gained only
a temporary reprieve for civil cases. In 1829, a statute established the common 1;
w, and English statutes passed before 1776, as norms of decision in the territory.
The Spanish period left behind, in the end, only a few archeological traces in
Florida's law. Spanish-Mexican law left a much greater imprint on Texas. Partly this
was because Texas was rather fully formed, as a polity, before it passed into
American hands. Here, too, however, trial by jury was an early import. The
constitution of Coahuila and Texas (1,827), during the Mexican period, exhorted
the legislature, as one of its "principal subjects," to enact legislation "to establish, in
criminal cases, the trial by jury, extending it gradually, and even adopting it in civil
cases, in proportion as the advantages of this precious institution may be
practically developed." American settlers probably pressed for this enactment. The
Texas government later enacted a form of trial by jury, but not exactly in the
American mold. The constitution of the republic of Texas (1836), in its declaration
of rights, affirmed the right of an accused "to a speedy and public trial, by an
impartial jury. And the right of trial by jury shall remain inviolate." The Texas
Constitution also contemplated wholesale adoption of the common law.
"Congress," it said, "shall, as early as practicable, introduce, by statute, the
common law of England, with such modifications as our circumstances, in their
judgment, may require" (art. IV, sec. 13). But Texas never really "received" English
law, in any literal or classical sense. Rather, the republic adopted a Texas
subdialect of the American dialect of law. There was thoroughgoing acceptance of
trial by jury, "that ever-to-be prized system of jurisprudence," as the supreme court
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of Texas called it in 1840. But from the very start, law and equity were merged in
court organization and procedure. The constitution of 1845 specifically gave to the
district courts’ jurisdiction "of all suits without regard to any distinction between law
and equity." In 1840, the civil law was formally abolished; but even then Texas did
not introduce the full rigors of common-law pleading. Rather, it preferred to retain
"as heretofore" the civil-law system of "petition and answer." Procedure, then,
conformed neither to common-law nor civil-law norms. It was a hybrid system.
Judges and lawyers, in the early years, seemed genuinely ambivalent about the
two rival systems. On the one hand, civil law was alien, and few lawmen could
cope with it. The law of 1840, by keeping some parts of civil-law pleading, forced
courts (as one judge said) to look for "principles and criteria in a language
generally unknown to us." As a result, "Constant perplexities annoy and delay us at
each step." But in a later case, another Texas judge condemned some aspects of
common-law pleading as Bold, craft. Still a third judge took a middle view:
“The object of our statutes on the subject of pleading is to simplify as much as
possible that branch of the proceedings in courts, which by the ingenuity and
learning of both common and civil law lawyers and judges had become so refined
in its subtleties as to substitute in many instances the shadow for the substance”
In the long run, the civil-law tradition was too alien and inaccessible to survive. But
it did undermine the inevitability-and therefore the legitimacy-of strict common-law
pleading. What resulted was a procedure that used common-law terms and some
common-law attitudes, but was considerably more streamlined and rational.
Peripheral Texas was, in short, free to do what other states could do only by
breaking with habit and tradition. But in Texas, divergences from the common law
did not look like reforms; they looked like civil-law survivals. In a sense they were;
what survived, however, survived because it suited the needs and wants of Texas
jurists.
Source: http://www.stephankinsella.com/wp-content/uploads/texts/friedman_history.pdf
EXERCISE 1:
Complete the following paragraph using the information of reading one.
1. A massive invasion of settlers doomed the civil law everywhere, except in
Louisiana. The new judges and lawyers were trained in_______________.
2. Around the old river town of St. Louis, Spanish law was technically in force,
supplemented by ________________.
40
3. A massive invasion of settlers doomed the civil law everywhere, except in
Louisiana. The new judges and lawyers were trained in the _____________.
4. The sheer mass of American settlers easily conquered Spanish law in _______,
where the original population was sparse.
5. The constitution of Coahuila and Texas, during the Mexican period, exhorted the
legislature, as one of its principal subjects, to enact legislation to establish, in
criminal cases, ______________.
READING TWO
The 13 Colonies: World Events that Influenced Colonial
America
By: National Paralegal College
Restoration of the English Monarchy
Even though there was an ocean between them, European politics shaped the
development of American culture, ignited some feelings of unity across the
colonies and set the stage for self-government.
First, let's go back to the beginning. All of the 13 colonies had been established
under different circumstances, and each of their governments had been chosen by
the founders. Soon after Massachusetts was founded, civil war broke out in
England, so there was very little oversight of the earliest colonies. Then, in 1660,
the monarchy was restored and the new king wasted no time in attempting to put
all of the existing colonies under his control, starting with the attempted
enforcement of the Navigation Acts. Back in 1651, Parliament had passed the first
of a series of laws that restricted colonial manufacturing and trade. The goal was to
discourage economic competition. However, many of the new laws had gone
unenforced. Massachusetts, especially, ignored many of the provisions of the
Navigation Acts. Besides the fact that the restrictions would have hurt New
England's economy, the founders of Massachusetts weren't the type of people to
simply accept regulations and circumstances they didn't like. In many ways, it was
a battle of wills. The recently-crowned King Charles II needed to prove he was in
control, and in 1684, he revoked the Massachusetts charter, making the colony
subject to direct royal authority.
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The Dominion of New England
But then King Charles II died and his brother, James II, took the throne.
Dissatisfied with the way Massachusetts flaunted his authority and concerned
about French and Indian threats, King James II created the Dominion of New
England. In 1686, the Dominion consolidated Massachusetts Bay, Plymouth, New
Hampshire and several independent settlements into one large colony. It was to be
ruled by a president with an appointed council and no elected representatives.
The colonists were in an uproar. The first president was a Massachusetts
native, but upon taking office, he complained that the Puritan leaders became even
more resistant to royal authority. Many of the councilors he appointed refused to
serve, as did military officers. Soon after, the president was replaced by the
extremely unpopular Edmund Andros from England.
Andros set about making everyone in New England angry. First, he demanded
that Puritan churches hold services for the Church of England; they refused him.
Then, he unified the tax system across all of the colonies. This raised taxes for
residents of some colonies. Even though the new taxes were actually lower for
Massachusetts, many towns refused to even appoint assessors. In return, Andros
restricted town meetings. He attempted to certify all land titles in order to charge
rent, but New Englanders were characteristically uncooperative.
In 1687, Rhode Island grudgingly agreed to join the Dominion, but Connecticut
was more resistant and continued to operate its colonial legislature. When Andros,
himself, visited the colony to resolve the matter of handing over the colony's
charter, the document mysteriously disappeared. In 1688, New York and New
Jersey were added to the Dominion of New England, but due to their distance from
the seat of power in Boston, the Dominion had less effect on those colonies other
than helping to align New York's political sympathies with those of New England.
Andros's attempts to negotiate peace following Indian conflict infuriated the
residents of present-day Maine.
The Glorious Revolution
In England, King James II and his officials weren't too popular either - especially
because the king was Catholic. Many people were waiting until the day he died and
his Protestant daughter, Mary, would take the throne and bring back the Church of
England. So, when the king's wife had a son in 1688, citizens feared a catholic
dynasty would be created. What followed is now called England's Glorious
Revolution. Influential members of the government invited Mary and her Dutch
husband to rule England under the condition that they sign a Bill of Rights. They
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agreed. Facing a Dutch army, King James II fled the country. William and Mary
assumed the throne of England jointly and signed the English Bill of Rights,
transferring a great deal of power from the monarch to Parliament.
News of the Glorious Revolution reached Boston a few months later. Local
leaders arrested Andros and shipped him back home to England. As the news
spread, former colonial leaders deposed royal governors and assumed control of
their governments. The Dominion collapsed, and its failure convinced many
English authorities that salutary neglect of the colonies might be the best policy.
Source:http://study.com/academy/lesson/colonial-governments-mercantilism-and-
the-navigation-acts.html
READING THREE
The Influence of English Law in the American Colonies
By Leonard Woods Labaree
Royal colonies were those that in the absence or revocation of a private or
proprietary charter came under the direct, everyday governmental control of the
English monarchy. It is important to emphasize that the Crown and not Parliament
held sovereignty over royal colonies. In theory their purpose, from the royal
perspective, was in some ways similar to that of a medieval fiefdom. That is, the
foremost function of a royal colony was to benefit the English Crown. Although
most colonies started out as private or proprietary ventures, the majority became
royal usually through revoked or time-limited charters well before the Revolutionary
era. By the mid eighteenth century eight of the thirteen mainland colonies were
royal: Massachusetts, New Hampshire, New York, New Jersey, Virginia, North
Carolina, South Carolina, and Georgia. Of these, only New Hampshire actually
started out as a royal province and then only after Charles II annexed it from the
then-privately chartered Massachusetts Bay Colony. New
York, after its English takeover from the Dutch in 1664, if not technically then in
practical function, started out as a royal colony since Charles II granted it to his
brother, James, the duke of York, who would succeed Charles to the throne in
1685.
Instability. Some colonies became royal by the lack of proprietary governments’
ability to provide stability. North and South Carolina, for instance, started out as
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one colony under eight proprietors. During the first two decades of the eighteenth
century proprietary control steadily waned due to French, Spanish, and Indian
threats. In 1719 South Carolina (regional distinction in the Carolinas had evolved
by the eighteenth century) colonists deposed the proprietary governor Robert
Johnson and appointed an interim. In 1721 South Carolina became a royal colony
with the king’s appointment of Francis Nicholson as governor. Once the proprietors
sold their interests in 1729 North Carolina became a royal colony as well. In 1732
trustees received a twenty-one year royal charter for Georgia, which had belonged
to the Carolina proprietors until 1729. With the expiration of this charter in 1752
Georgia became a royal colony (last of the thirteen colonies formed). Virginia,
originally chartered under the Virginia Company, became a royal colony in 1624
upon that charter’s revocation. Upon the Board of Trade’s recommendation New
Jersey, a proprietary colony since 1664, came under the Crown in 1702.
Dominion of New England. James II forced royal rule over Massachusetts in
1685. Boston became the headquarters for the centralizing efforts of this Dominion
of New England under appointed Gov. Sir Edmund Andros. All the New England
colonies, along with New York and New Jersey, were under Andros’s royal regime
for a time. With the fall of James II in 1688 and the ensuing Glorious Revolution in
1688, the Dominion of New England ended.
Commission and Instructions. The royal governor’s role was in many ways
precarious. First and foremost he was officially the king’s representative in the
colony. Although he bore the title His Excellency, he did not have the free will of a
king. The governor’s actions were not to originate with him but with the Crown,
whose wishes were issued through a general commission (varying little from
governor to governor) and subsequent instructions, which were outlined
periodically in accordance to circumstances unique to a given colony. Unlike the
commission, which was often read at the governor’s induction ceremony, the
instructions were not for public consumption. On occasion the council members
had limited access, but generally the detailed contents of administrative policy and
procedure contained therein were completely secret to all but the governor. The
governor’s instructions gave him and his council control of appropriations. Yet the
general assemblies usually were successful hindrances to the effective execution
of this power.
Judiciary. The governor had significant judicial powers as well. He, along with
the council, had oversight of lower courts. Most important, the governor-in-council
was the highest colonial court. Any appeals to this body’s decisions were referred
to the Privy Council in England. As legislative head of the council and assembly the
governor had sovereign veto power, a power the Crown expected him to use with
44
vigor for the advancement of British interests. But the governor who ignored
provincial concerns, especially those expressed through the assembly, did so at
his own political peril. A compromise between carrying out royal instructions and
serving local interests was often an extremely difficult but necessary medium to
attain. Sir Thomas Robinson’s words, written in 1747 upon his recall as governor of
Barbados, clearly express a royal governor’s typical dilemma: “If a governor lies
under the fatal necessity of disobliging a majority of representatives by doing his
duty on one hand, or on the other of gaining their favor by a breach of duty, his
doom is fixed, since he must either fall a victim to the unjust rage of those men for
what is right or to his Majesty’s just displeasure for doing what is wrong.” In 1701
Gov. Christopher Codrington Jr. of the Leeward Islands summed it up well. It was
as if, he said, he “were walking between red hot irons.”
Decline. Given the delicate diplomacy required to successfully govern a royal
colony, it is not so surprising that the governors began to decline in effective rule,
as it I is remarkable that they succeeded at all. The fact that governors were
usually chosen for who they knew rather than for what they could do makes their
relative longevity even more impressive. It should not be forgotten that colonists in
such provinces as South Carolina and Maryland saw proprietary governorship as
insufficient for stability and consequently discarded it for royal rule. Excluding, of
course, the often-cited exceptions, it is to the royal governors’ credit in finding a
flexible medium that prior to 1763 Americans rarely expressed the notion to break
away from the empire of Great Britain. But decline in royal governorship did
eventually come, especially after the mid-eighteenth century mark. That decline did
not come about, however, so much from personal inabilities as it did from
underlying forces beyond immediate control, forces that were moving long before
the governors’ decline, was a discernable reality. None of the forces were more
significant than the ever-increasing power of local colonial assemblies.
Royal Council. The men who made up the royal councils were usually
provincials recommended by the governor, chosen by the Board of Trade, and
appointed by the king. They ideally served for life, and the average number per
council was twelve. Councilors received no pay for their services, but their position
of power often secured them other paying positions within the government. Most
councilmen were already men from families of considerable wealth. It was not
uncommon for several relatives to serve on one council.
Problem of a Quorum. Five made up a quorum on island colonies and three on
the continent in emergencies. One of the most acute problems for a governor was
keeping a quorum. Absentee councilors became such a problem that after 1720 all
governors were authorized to suspend a councilor if he was absent from the colony
45
for twelve months without permission. Few governors acted on the instruction,
however, even as problems of prolonged absenteeism were rampant by the mid
eighteenth century. One thing that caused much consternation within the colonies
was the immense power the council had in relation to its meager quorum
requirement. Outside the governor, three men could determine the fate of
legislation passed by an entire assembly. This, along with problems of
absenteeism, caused voters to trust and support the elected assembly over the
aristocratic governor and council.
Responsibilities. From the British perspective the most important governmental
entity, apart from the royal governor, was the royal provincial council. It served both
as a check and theoretically as an allied partner to the governor in practically every
aspect of his duties. The council held judicial, legislative, and executive powers. It
was the highest appeals court—the upper legislative house—as well as the
governor’s chief advisory board. With the council’s advisory role it also held
considerable power in certain areas where the governor could not execute his will
apart from its consent. Legislatively and judicially the council was somewhat a
replica of the House of Lords (the nonrepresentative upper house in England’s
Parliament), and in its executive role it had similar powers to the Privy Council in
England. When the council served in its executive and judicial capacity, the
governor was the presiding officer. But in its legislative role the council and
governor were initially to be separate, especially since the governor held absolute
veto power.
Intrusion. Even so, by the eighteenth century governors began to preside over
the council’s legislative functions, sometimes to that body’s chagrin. In 1703 the
Virginia Council complained about Gov. Francis Nicholson’s undue control: “He is
not only constantly present, but takes upon him to preside and debate, and state
the question, and overrule as if he were still in council, which the said house takes
to be a great encroachment on their liberties and privileges.” Early on, virtually all
royal governors’ commissions gave the power, provided there was “good and
sufficient cause,” to remove councilors from active service. Due to the unusual
control this gave to governors, the Board of Trade began to curb this power, as in
1698 when Nicholson’s instructions set limitations to prevent “arbitrary and
illgrounded recalls” from the council. After 1715 governors generally could not
remove members of the council apart from a majority vote within that body. It
should be added, however, that overall the governor and council worked in
considerable harmony toward their shared ideals of royal and personal interests.
The real effectiveness of the council, however, is debatable. Even with its varied
legislative, judicial, and executive functions it was relatively powerless apart from a
consenting governor. And as time progressed the governor’s position of power
46
increased while the council’s power decreased. Nevertheless, over time both
became victims of the elected assembly.
READING FOUR
The Declaration of Independence
By Office of the Historian, Bureau of Public Affairs. US Department of State
By issuing the Declaration of Independence, adopted by the Continental
Congress on July 4, 1776, the 13 American colonies severed their political
connections to Great Britain. The Declaration summarized the colonists’
motivations for seeking independence. By declaring themselves an independent
nation, the American colonists were able to confirm an official alliance with the
Government of France and obtain French assistance in the war against Great
Britain.
Throughout the 1760s and early 1770s, the North American colonists found
themselves increasingly at odds with British imperial policies regarding taxation
and frontier policy. When repeated protests failed to influence British policies, and
instead resulted in the closing of the port of Boston and the declaration of martial
law in Massachusetts, the colonial governments sent delegates to a Continental
Congress to coordinate a colonial boycott of British goods. When fighting broke out
between American colonists and British forces in Massachusetts, the Continental
Congress worked with local groups, originally intended to enforce the boycott, to
coordinate resistance against the British. British officials throughout the colonies
increasingly found their authority challenged by informal local governments,
although loyalist sentiment remained strong in some areas.
Despite these changes, colonial leaders hoped to reconcile with the British
Government, and all but the most radical members of Congress were unwilling to
declare independence. However, in late 1775, Benjamin Franklin, then a member
of the Secret Committee of Correspondence, hinted to French agents and other
European sympathizers that the colonies were increasingly leaning towards
seeking independence. While perhaps true, Franklin also hoped to convince the
French to supply the colonists with aid. Independence would be necessary,
however, before French officials would consider the possibility of an alliance.
Throughout the winter of 1775–1776, the members of the Continental Congress
came to view reconciliation with Britain as unlikely, and independence the only
course of action available to them. When on December 22, 1775, the British
47
Parliament prohibited trade with the colonies, Congress responded in April of 1776
by opening colonial ports—this was a major step towards severing ties with Britain.
The colonists were aided by the January publication of Thomas Paine’s
pamphlet Common Sense, which advocated the colonies’ independence and was
widely distributed throughout the colonies. By February of 1776, colonial leaders
were discussing the possibility of forming foreign alliances and began to draft
theModel Treaty that would serve as a basis for the 1778 alliance with France.
Leaders for the cause of independence wanted to make certain that they had
sufficient congressional support before they would bring the issue to the vote. On
June 7, 1776, Richard Henry Lee introduced a motion in Congress to declare
independence. Other members of Congress were amenable but thought some
colonies not quite ready. However, Congress did form a committee to draft a
declaration of independence and assigned this duty to Thomas Jefferson.
DISCUSION ACTIVITY
1. Why did the American colonists resist the British imperial policy after 1763?
________________________________________________________________
2. Describe the feelings of the writers of the American Declaration of
Independence
_____________________________________________________________________
3. What were the complaints of the American colonists?
________________________________________________________________
4. Imagine that you are a colonist living in Philadelphia in 1774. How might you feel
about having a revolution?
48
EXERCISE 2
Find the words in the puzzle
Taken from www.studenthandouts.com
49
Info
rmat
ion
of
the
Age
s o
f th
e H
isto
ry o
f th
e U
nit
ed S
tate
s
Colonial Times
Unification of the Colonies
Independence
Confederation Experience
Federation
The Pioneers, Frontiers and Civil War
Modern Conflicts and Social Changes
50
Co
lon
ial T
ime
s
The Spanish and Portuguese centuries-old experience of conquest and colonization during the Reconquista, coupled with new oceanic ship navigation skills, provided the tools,
ability, and desire to colonize the New World.
These efforts were managed respectively by the Casa de Contratación and the Casa da Índia. Those countries have a
more territory in America than French and England.
English entrepreneurs gave their colonies a base of merchant-based investment that seemed to need much less government support. Initially, matters concerning the colonies were dealt
with primarily by the Privy Council and its committees.
Mercantilism was the basic policy imposed by Britain on its colonies from the 1660s. Mercantilism meant that the government and merchants based in England became
partners with the goal of increasing political power and private wealth, to the exclusion of other empires and even
merchants based in its own colonies.
The government protected its London-based merchants by trade barriers, regulations, and subsidies to domestic
industries in order to maximize exports from and minimize imports to the realm. The government had to fight smuggling, especially by American merchants, some of whose activities
were classified as such by the Navigation Acts.
The United State’s territory was the most difficult territory for colonized, because de north of New Spain was desert and
hostile place and a lot of explorers from Spain, England and Portugal were dead. Spain And France had Territory in the
actual USA’s territory.
The diversity in USA was born in this colonies, a lot of European immigrants was arrive here.
51
Un
ific
atio
n o
f th
e C
olo
nie
s
One event that reminded colonists of their shared identity as British subjects was the War of the Austrian Succession (1740–1748) in Europe. This conflict spilled over into the colonies, where it was known as "King George's War". The major battles took place in Europe, but American colonial troops fought the French and their Indian allies in New York, New England, and Nova Scotia with the Siege of Louisbourg (1745).
At the Albany Congress of 1754, Benjamin Franklin proposed that the colonies be united by a Grand Council overseeing a common policy for
defense, expansion, and Indian affairs.
While the plan was thwarted by colonial legislatures and King George II, it was an early indication that the British colonies of North America were headed towards unification. Benjamin Franklin had made an interesting picture; a snake cut in thirteen parts with initials of the North American
colonies, he says “Join or Die…”
The French and Indian War (1754–1763)
The Parliament attempted a series of taxes and punishments which met more and more resistance: First Quartering Act (1765); Declaratory Act
(1766); Townshend Revenue Act (1767); and Tea Act (1773). In response to the Boston Tea Party Parliament passed the Intolerable Acts:
Second Quartering Act (1774); Quebec Act (1774); Massachusetts Government Act (1774); Administration of Justice Act (1774); Boston
Port Act (1774); Prohibitory Act (1775).
By this point the 13 colonies had organized themselves into the Continental Congress and began setting up shadow governments and
drilling their militia in preparation for war.
52
EXERCISE 3:
1.- Draw a timeline indicating the most important events in the colonial times
of the United States of America.
53
READING FIVE
The Articles of Confederation
By Office of the Historian, Bureau of Public Affairs. US Department of State
The Articles of Confederation served as the written document that
established the functions of the national government of the United States after it
declared independence from Great Britain. It established a weak central
government that mostly, but not entirely, prevented the individual states from
conducting their own foreign diplomacy.
The Albany Plan an earlier, pre-independence attempt at joining the colonies into a
larger union, had failed in part because the individual colonies were concerned
about losing power to another central institution. As the American Revolution
gained momentum, however, many political leaders saw the advantages of a
centralized government that could coordinate the Revolutionary War. In June of
1775, the New York provincial Congress sent a plan of union to the Continental
Congress, which, like the Albany Plan, continued to recognize the authority of the
British Crown.
Some Continental Congress delegates had also informally discussed plans for a
more permanent union than the Continental Congress, whose status was
temporary. Benjamin Franklin had drawn up a plan for “Articles of Confederation
and Perpetual Union.” While some delegates, such as Thomas Jefferson,
supported Franklin’s proposal, many others were strongly opposed. Franklin
introduced his plan before Congress on July 21, but stated that it should be viewed
as a draft for when Congress was interested in reaching a more formal proposal.
Congress tabled the plan.
Following the Declaration of Independence, the members of the Continental
Congress realized it would be necessary to set up a national government.
Congress began to discuss the form this government would take on July 22,
disagreeing on a number of issues, including whether representation and voting
would be proportional or state-by-state. The disagreements delayed final
discussions of confederation until October of 1777. By then, the British capture of
Philadelphia had made the issue more urgent. Delegates finally formulated the
Articles of Confederation, in which they agreed to state-by-state voting and
proportional state tax burdens based on land values, though they left the issue of
state claims to western lands unresolved. Congress sent the Articles to the states
for ratification at the end of November. Most delegates realized that the Articles
54
were a flawed compromise, but believed that it was better than an absence of
formal national government.
On December 16, 1777, Virginia was the first state to ratify. Other states ratified
during the early months of 1778. When Congress reconvened in June of 1778, the
delegates learned that Maryland, Delaware and New Jersey refused to ratify the
Articles. The Articles required unanimous approval from the states. These smaller
states wanted other states to relinquish their western land claims before they would
ratify the Articles. New Jersey and Delaware eventually agreed to the conditions of
the Articles, with New Jersey ratifying on Nov 20, 1778, and Delaware on Feb 1,
1779. This left Maryland as the last remaining holdout.
Irked by Maryland’s recalcitrance, several other state governments passed
resolutions endorsing the formation of a national government without the state of
Maryland, but other politicians such as Congressman Thomas Burke of North
Carolina persuaded their governments to refrain from doing so, arguing that
without unanimous approval of the new Confederation, the new country would
remain weak, divided, and open to future foreign intervention and manipulation.
Meanwhile, in 1780, British forces began to conduct raids on Maryland
communities in the Chesapeake Bay. Alarmed, the state government wrote to the
French minister Anne-César De la Luzerne asking for French naval assistance.
Luzerne wrote back, urging the government of Maryland to ratify the Articles of
Confederation. Marylanders were given further incentive to ratify when Virginia
agreed to relinquish its western land claims, and so the Maryland legislature
ratified the Articles of Confederation on March 1, 1781.
The Continental Congress voted on Jan 10, 1781, to establish a Department of
Foreign Affairs; on Aug 10 of that year, it elected Robert R. Livingston as Secretary
of Foreign Affairs. The Secretary’s duties involved corresponding with U.S.
representatives abroad and with ministers of foreign powers. The Secretary was
also charged with transmitting Congress’ instructions to U.S. agents abroad and
was authorized to attend sessions of Congress. A further Act of Feb 22, 1782,
allowed the Secretary to ask and respond to questions during sessions of the
Continental Congress.
The Articles created a sovereign, national government, and, as such, limited the
rights of the states to conduct their own diplomacy and foreign policy. However,
this proved difficult to enforce, as the national government could not prevent the
state of Georgia from pursuing its own independent policy regarding Spanish
Florida, attempting to occupy disputed territories and threatening war if Spanish
officials did not work to curb Indian attacks or refrain from harboring escaped
slaves. Nor could the Confederation government prevent the landing of convicts
55
that the British Government continued to export to its former colonies. In addition,
the Articles did not allow Congress sufficient authority to enforce provisions of the
1783 Treaty of Paris that allowed British creditors to sue debtors for pre-
Revolutionary debts, an unpopular clause that many state governments chose to
ignore. Consequently, British forces continued to occupy forts in the Great Lakes
region. These problems, combined with the Confederation government’s ineffectual
response to Shays’ Rebellion in Massachusetts, convinced national leaders that a
more powerful central government was necessary. This led to the Constitutional
Convention that formulated the current Constitution of the United States.
EXERCISE 4
READING COMPREHENSION QUESTIONS
1. Who produced the “Articles of Confederation and Perpetual Union” in 1776?
________________________________________________________________
2. The Articles of Confederation provided for a powerful federal government.
_________________________________________________________________
3. What Massachusetts farmer, a former army captain, led a rebellion against the growing number of judgments for debt?
__________________________________________________________________
4.What was the responsibility of the Confederation Secretary foreign affairs?
__________________________________________________________________
5. What type of government created the Confederation?
__________________________________________________________________
56
EXERCISE 5
Complete the sentences and fill out the crossword puzzle
Taken from www.studenthandouts.com
57
READING SIX
The need for a new constitution
America’s first constitution, the Articles of Confederation, was ratified in
1781, a time when the nation was a loose confederation of states, each operating
like independent countries. The national government was comprised of a single
legislature, the Congress of the Confederation; there was no president or judicial
branch. The Articles of Confederation gave Congress the power to govern foreign
affairs, conduct war and regulate currency; however, in reality these powers were
sharply limited because Congress had no authority to enforce its requests to the
states for money or troops.
Soon after America won its independence from Great Britain with its 1783 victory in
the American Revolution, it became increasingly evident that the young republic
needed a stronger central government in order to remain stable. In
1786, Alexander Hamilton (1757-1804), a lawyer and politician from New York,
called for a constitutional convention to discuss the matter. The Confederation
Congress, which in February 1787 endorsed the idea, invited all 13 states to send
delegates to a meeting in Philadelphia.
Forming a More Perfect Union
On May 25, 1787, the Constitutional Convention opened in Philadelphia at the
Pennsylvania State House, now known as Independence Hall, where the
Declaration of Independence had been adopted 11 years earlier. There were 55
delegates in attendance, representing all 13 states except Rhode Island, which
refused to send representatives because it did not want a powerful central
government interfering in its economic business. George Washington, who’d
become a national hero after leading the Continental Army to victory during the
American Revolution, was selected as president of the convention by unanimous
vote.
The delegates (who also became known as the “framers” of the Constitution) were
a well-educated group that included merchants, farmers, bankers and lawyers.
Many had served in the Continental Army, colonial legislatures or the Continental
Congress (known as the Congress of the Confederation as of 1781). In terms of
religious affiliation, most were Protestants. Eight delegates were signers of the
Declaration of Independence, while six had signed the Articles of Confederation.
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At age 81, Pennsylvania’s Benjamin Franklin (1706-90) was the oldest delegate,
while the majority of the delegates were in their 30s and 40s. Political leaders not
in attendance at the convention included Thomas Jefferson (1743-1826) and John
Adams (1735-1826), who were serving as U.S. ambassadors in Europe. John
Jay(1745-1829), Samuel Adams (1722-1803) and John Hancock (1737-93) were
also absent from the convention. Virginia’s Patrick Henry (1736-99) was chosen to
be a delegate but refused to attend the convention because he didn’t want to give
the central government more power, fearing it would endanger the rights of states
and individuals.
Reporters and other visitors were barred from the convention sessions, which were
held in secret to avoid outside pressures. However, Virginia’s James
Madison(1751-1836) kept a detailed account of what transpired behind closed
doors. (In 1837, Madison’s widow Dolley sold some of his papers, including his
notes from the convention debates, to the federal government for $30,000.)
Debating the Constitution
The delegates had been tasked by Congress with amending the Articles of
Confederation; however, they soon began deliberating proposals for an entirely
new form of government. After intensive debate, which continued throughout the
summer of 1787 and at times threatened to derail the proceedings, they developed
a plan that established three branches of national government–executive,
legislative and judicial. A system of checks and balances was put into place so that
no single branch would have too much authority. The specific powers and
responsibilities of each branch were also laid out.
Among the more contentious issues was the question of state representation in the
national legislature. Delegates from larger states wanted population to determine
how many representatives a state could send to Congress, while small states
called for equal representation. The issue was resolved by the Connecticut
Compromise, which proposed a bicameral legislature with proportional
representation of the states in the lower house (House of Representatives) and
equal representation in the upper house (Senate).
Another controversial topic was slavery. Although some northern states had
already started to outlaw the practice, they went along with the southern states’
insistence that slavery was an issue for individual states to decide and should be
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kept out of the Constitution. Many northern delegates believed that without
agreeing to this, the South wouldn’t join the Union. For the purposes of taxation
and determining how many representatives a state could send to Congress, it was
decided that slaves would be counted as three-fifths of a person. Additionally, it
was agreed that Congress wouldn’t be allowed to prohibit the slave trade before
1808, and states were required to return fugitive slaves to their owners.
Ratifying the Constitution
By September 1787, the convention’s five-member Committee of Style (Hamilton,
Madison, William Samuel Johnson of Connecticut, Gouverneur Morris of New
York, Rufus King of Massachusetts) had drafted the final text of the Constitution,
which consisted of some 4,200 words. On September 17, George Washington was
the first to sign the document. Of the 55 delegates, a total of 39 signed; some had
already left Philadelphia, and three–George Mason (1725-92) and Edmund
Randolph (1753-1813) of Virginia, and Elbridge Gerry (1744-1813) of
Massachusetts–refused to approve the document. In order for the Constitution to
become law, it then had to be ratified by nine of the 13 states.
James Madison and Alexander Hamilton, with assistance from John Jay, wrote a
series of essays to persuade people to ratify the Constitution. The 85 essays,
known collectively as “The Federalist” (or “The Federalist Papers”), detailed how
the new government would work, and were published under the pseudonym
Publius (Latin for “public”) in newspapers across the states starting in the fall of
1787. (People who supported the Constitution became known as Federalists, while
those opposed it because they thought it gave too much power to the national
government were called Anti-Federalists.)
Beginning on December 7, 1787, five states–Delaware, Pennsylvania, New
Jersey,Georgia and Connecticut–ratified the Constitution in quick succession.
However, other states, especially Massachusetts, opposed the document, as it
failed to reserve undelegated powers to the states and lacked constitutional
protection of basic political rights, such as freedom of speech, religion and the
press. In February 1788, a compromise was reached under which Massachusetts
and other states would agree to ratify the document with the assurance that
amendments would be immediately proposed. The Constitution was thus narrowly
ratified in Massachusetts, followed by Maryland and South Carolina. On June 21,
1788, New Hampshire became the ninth state to ratify the document, and it was
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subsequently agreed that government under the U.S. Constitution would begin on
March 4, 1789. George Washington was inaugurated as America’s first president
on April 30, 1789. In June of that same year, Virginia ratified the Constitution, and
New York followed in July. On February 2, 1790, the U.S. Supreme Court held its
first session, marking the date when the government was fully operative.
Rhode Island, the last holdout of the original 13 states, finally ratified the
Constitution on May 29, 1790.
The Bill of Rights
In 1789, Madison, then a member of the newly established U.S. House of
Representatives, introduced 19 amendments to the Constitution. On September
25, 1789, Congress adopted 12 of the amendments and sent them to the states for
ratification. Ten of these amendments, known collectively as the Bill of Rights,
were ratified and became part of the Constitution on December 10, 1791. The Bill
of Rights guarantees individuals certain basic protections as citizens, including
freedom of speech, religion and the press; the right to bear and keep arms; the
right to peaceably assemble; protection from unreasonable search and seizure;
and the right to a speedy and public trial by an impartial jury. For his contributions
to the drafting of the Constitution, as well as its ratification, Madison became
known as “Father of the Constitution.”
To date, there have been thousands of proposed amendments to the Constitution.
However, only 17 amendments have been ratified in addition to the Bill of Rights
because the process isn’t easy–after a proposed amendment makes it through
Congress, it must be ratified by three-fourths of the states. The most recent
amendment to the Constitution, Article XXVII, which deals with congressional pay
raises, was proposed in 1789 and ratified in 1992.
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DISCUSSION ACTIVITY
Form small groups and discuss the answer to the following question:
1. Why did King George III decided to take more control over the colonies than he
had before?
__________________________________________________________________
____________________________ _____________________________________
2. Did all the colonists think that it was time to be independent from England?
Explain.
__________________________________________________________________
______ ___________________________________________________________
3. Do you think you would have been willing to risk death by signing the declaration
of independence? Why, or why not? _____________________________________
__________________________________________________________________
4. What are some rights and responsibilities you think citizens should have?
__________________________________________________________________
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Sou
rce
s o
f La
w
Constitution: Document that establishes the government of a nation or a state. A constitution defines how the government is to be organized and the
extent of its powers and responsibilities. A constitution can also serve to protect individual liberties.
Statute: Federal or state law enacted by elected members of the legislature.
Case law: Law created by the judiciary as a result of interpreting existing laws.
Administrative law: Law created by administrative agencies, including regulations, policies
and procedures, hearings and appeals heard by the agencies.
The primary sources of law in the United States are the United States Constitution, state constitutions, federal and state statutes, common
law, case law, and administrative law.
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Stat
ute
s Statutes are created by the federal, state and local legislatures, which are comprised of elected officials who, under the applicable constitutions, have the power to create laws. Courts must apply statutes, if available, to the facts of a case. If no statute exists, courts defer to common law (see below). Statutes control over common law where two conflict.
The process through which an idea becomes a law is long and complicated. Although the federal and state procedures can be quite different, they are, at their most basic levels, similar. A lawmaker introduces a bill in either the Senate or House of Representatives (or their equivalents at the state level). After the bill is introduced, it is reviewed by the appropriate committee and/or subcommittee. The subcommittee reviews the bill, holds hearings and makes amendments that it deems necessary. Once the subcommittee is satisfied with the bill, it presents the new version to the full committee. If the full committee approves of the bill, the bill goes to the full chamber in which it was originally introduced (Senate or House), for debate and final vote. If the first chamber passes the bill, the bill is presented to the other chamber, where it is reviewed in similar fashion. Both chambers must approve the bill in identical form. If the bill is not approved by both chambers, it may be sent to a conference committee to resolve issues where the chambers disagree.
Once approved by both chambers, the bill is presented to the President (or Governor) for signature. Once signed, the bill becomes a law and is effective, as the legislature has prescribed. The President or Governor can also refuse to sign the bill, an action known as a "veto." This prevents the bill from becoming law, although vetoes can often be overridden by supermajority votes by the legislatures (under the federal system, a 2/3 majority of both houses of Congress is required to override a presidential veto). The federal government and many state governments have provisions whereby if the President or Governor does not sign the bill within a certain number of days while the legislature is in session, the bill automatically becomes a law.
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Court Interpretation
Because legislatures cannot write laws for every possible factual scenario, laws are written broadly
enough to be applicable to a variety of situations. To what situations a law may apply, however, is not always clear. This is when courts must engage in
statutory interpretation to determine the legislature’s intent. There are many things courts will consider:
Binding precedent: If a court with direct appellate jurisdiction over the court considering the issue has
interpreted the law in a certain manner, that interpretation must be used by the court.
Actual language: Most legislation is the result of careful planning and consideration. Therefore, courts
give great deference to the actual words the legislature has chosen to use.
Legislative history: When the language is ambiguous, courts will often review the statute’s legislative
history, if available. As explained above, statutes are usually debated before passed; these debates are
often recorded. Committee and subcommittee reports are included in the legislative history. Recent
legislative history is readily available at the federal level; at the state level, however, it can be quite
sparse.
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Court Interpretation
Context, general and specific: Courts will often consider the context in which the statute was enacted, its purpose, and
other existing statutes that may be similar. Why the statute was enacted at
the time it was enacted may also be important in determining public policy.
Treatment by other courts: If the statute has not been construed or interpreted by the appellate courts, no precedent binds
the trial courts. Other trial courts, however, may have considered the same issue; these
decisions may be helpful to the court currently considering the issue, and the
court will often review other similar decisions. These decisions may be from the same jurisdiction or a different jurisdiction,
although decisions from foreign jurisdictions are less persuasive. Where an appellate court is considering an issue for the first
time, it may also review other courts’ decisions, even if they are from other
jurisdictions.
Legal treatises and other scholarly literature: Because statutes are often
analyzed by legal scholars before they are considered by the courts, many courts find such analysis helpful in their own
interpretation.
Common law: Where a statute codifies a principle of the common law, decisions
analyzing the common law may be helpful.
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Ad
min
istr
ativ
e La
w
As regulation becomes more pervasive, the body of administrative law has become increasingly important. Administrative law refers to the regulations created by administrative agencies. Administrative agencies are created by the legislature by what are called “enabling” statutes. See City of Albuquerque v. New Mexico Public Regulation Com'n, 79 P.3d 297, 305-06 (N.M., 2003) (“The separation of powers doctrine directs administrative agencies to their duty of implementing legislation. The Legislature grants agencies the discretion of promulgating rules and regulations which have the force of law.”).
The administrative agencies are part of the executive branch and are charged with the administration of government functions. See City of Albuquerque v. New Mexico Public Regulation Com'n, 79 P.3d 297, 305 (N.M., 2003) (“It is also true that [a]n act of an administrative agency which is authorized by the [L]egislature has the force and effect of law.”).
For example, Congress has charged the Environmental Protection Agency (“EPA”) with the protection of the environment, and Congress has also enacted legislation concerning the environment, such as the Clean Air Act and the Clean Water Act. It is up to the EPA to enforce those laws as created by Congress. Congress has also allowed the EPA to create its own regulations to enforce legislation Congress has enacted. For example, if Congress enacted legislation that mandated that all motor vehicle emissions be reduced by 30% by 2010 and authorized the EPA to determine how to achieve such a goal, the EPA would write regulations to comply with the law. States have similar administrative agencies.
A person aggrieved by an agency’s decision can usually appeal to an appellate tribunal within the agency. One may often appeal the appellate tribunal’s decision to a federal or state court.
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EXERCISE 6:
ANSWER THE FOLLOWING QUESTIONS:
1.- What are the sources of law in United States of America?
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
……………………………………………………………………………………………….
2.- What is the importance of the statutes?
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
3. What is the relevance of case law?
………………………………………………………………………………………………
………………………………………………………………………………………………
……………………………………………………………………………………………….
4. What is the role of the judiciary in interpreting the law?
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
5.- What are administrative agencies in charge of?
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
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DEP
AR
MEN
TS
Department of Agriculture
The U.S. Department of Agriculture (USDA) develops and executes policy on farming, agriculture, and food. Its aims include meeting the needs of farmers and ranchers,
promoting agricultural trade and production, assuring food safety, protecting natural resources, fostering rural communities, and ending hunger in America and abroad.
The Department of Commerce is the government agency tasked with improving living standards for all Americans by promoting economic development and technological
innovation.
The mission of the Department of Defense (DOD) is to provide the military forces needed to deter war and to protect the security of our country. The department's
headquarters is at the Pentagon.
Department of Education
The mission of the Department of Education is to promote student achievement and preparation for competition in a global economy by fostering educational excellence
and ensuring equal access to educational opportunity.
Department of Energy
The mission of the Department of Energy (DOE) is to advance the national, economic, and energy security of the United States.
The Department of Health and Human Services (HHS) is the United States government's principal agency for protecting the health of all Americans and providing essential human
services, especially for those who are least able to help themselves.
The missions of the Department of Homeland Security are to prevent and disrupt terrorist attacks; protect the American people, our critical
infrastructure, and key resources; and respond to and recover from incidents that do occur.
The Department of Housing and Urban Development (HUD) is the federal agency responsible for national policies and programs that address America's housing needs, that improve and develop the nation's communities, and that
enforce fair housing laws. .
The Department of the Interior (DOI) is the nation's principal conservation agency. Its mission is to protect America's natural resources, offer recreation opportunities, conduct scientific research, conserve and protect fish and wildlife, and honor our
trust responsibilities to American Indians, Alaskan Natives, and our responsibilities to island communities.
Department of Justice
The mission of the Department of Justice (DOJ) is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against
threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and
to ensure fair and impartial administration of justice for all Americans.
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DEP
AR
TMEN
TS
Department of Labor
The Department of Labor oversees federal programs for ensuring a strong American workforce. These programs address job training, safe working conditions, minimum hourly wage and overtime pay,
employment discrimination, and unemployment insurance.
Department of State
The Department of State plays the lead role in developing and implementing the President's foreign policy. Major responsibilities include United States representation abroad, foreign assistance,
foreign military training programs, countering international crime, and a wide assortment of services to U.S. citizens and foreign
nationals seeking entrance to the U.S.
Department of Transportation
The mission of the Department of Transportation (DOT) is to ensure a fast, safe, efficient, accessible and convenient
transportation system that meets our vital national interests and enhances the quality of life of the American people.
Department of the Treasury
The Department of the Treasury is responsible for promoting economic prosperity and ensuring the soundness and security of
the U.S. and international financial systems.
Department of Veterans Affairs
The Department of Veterans Affairs is responsible for administering benefit programs for veterans, their families, and
their survivors. These benefits include pension, education, disability compensation, home loans, life insurance, vocational
rehabilitation, survivor support, medical care, and burial benefits. Veterans Affairs became a cabinet-level department in 1989.
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THE POWER OF THE EXECUTIVE BRANCH
The President is responsible for implementing and enforcing the laws written by Congress and,
to that end, appoints the heads of the federal agencies, including the Cabinet.
The President is both the head of state and head of government of the United States of America, and Commander-in-Chief of the armed forces.
The Vice President is also part of the Executive Branch, ready to assume the Presidency should
the need arise.
The primary responsibility of the Vice President of the United States is to be ready at a
moment's notice to assume the Presidency if the President is unable to perform his duties.
This can be because of the President's death, resignation, or temporary incapacitation, or if
the Vice President and a majority of the Cabinet judge that the President is no longer able to
discharge the duties of the presidency.
The Cabinet is an advisory body made up of the heads of the 15 executive departments.
Appointed by the President and confirmed by the Senate, the members of the Cabinet are
often the President's closest confidants.
In addition to running major federal agencies, they play an important role in the Presidential
line of succession after the Vice President, Speaker of the House, and Senate President pro tempore, the line of succession continues with
the Cabinet offices in the order in which the departments were created.
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READING SEVEN
The Legislative Branch of US Government By Phaedra Trethan
Every society needs laws. In the United States, the power to make laws is given to Congress, which represents the legislative branch of government.
The Source of Laws
The legislative branch is one of three branches of the U.S. government – the executive and judicial are the other two -- and it is the one charged with creating the laws that hold our society together. Article I of the Constitution established Congress, the collective legislative body made up of the Senate and the House. The primary function of these two bodies is to write, debate and pass bills and to send them on to the president for his approval or veto. If the president gives his approval to a bill, it immediately becomes law. However, if the [president vetoes the bill, Congress is not without recourse. With a two-thirds majority in both houses, Congress may override the presidential veto. Congress may also rewrite a bill in order to win presidential approval; vetoed legislation is sent back to the chamber where it originated for reworking.
Investigative Duties
Congress can also investigate pressing national issues and it is charged with supervising and providing a balance to the presidential and judicial branches as well. It has the authority to declare war; in addition, it has the power to coin money and is charged with regulating interstate and foreign commerce and trade. Congress also is responsible for maintaining the military, though the president serves as its commander in chief.
Why Two Houses of Congress?
In order to balance the concerns of smaller but more populated states against those of larger but more sparsely populated ones, the framers of the Constitution formed two disparate chambers. The Senate has 100 members, with each state allowed two representatives, regardless of size or population. The House of Representatives currently has435 members, with each state's representation dependent upon its population. Each member of the House represents a specific geographic district within the state, while senators represent their whole state.
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Unique Duties and Powers
Each house has some specific duties as well. The House can initiate laws that require people to pay taxes and can decide whether public officials should be tried if accused of a crime. Representatives are elected to two-year terms.
The Senate can confirm or reject any treaties the president establishes with other nations and is also responsible for confirming presidential appointments of Cabinet members, federal judges and foreign ambassadors. The Senate also tries any federal official accused of a crime after the House votes to impeach that official. Senators are elected to six-year terms. The vice president presides over the Senate and has the right to cast his vote in the event of a tie.
EXERCISE 7: Answer the following questions
What are the powers and responsibilities of Congress? ______________________________________________________________________________________________________________________________________________________________________________________________________ __________________________________________________________________
What legislative powers does the president of the United States have? ______________________________________________________________________________________________________________________________________________________________________________________________________ _________________________________________________________________
What are the 3 branches of the U.S. government? ______________________________________________________________________________________________________________________________________________________________________________________________________ __________________________________________________________________
What responsibilities does the president of the US have? ______________________________________________________________________________________________________________________________________________________________________________________________________ _________________________________________________________________
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The Legislative Branch
SEPARATION OF POWERS
the political authority of the state is divided into LEGISLATIVE, executive and judicial powers.
ALL ESPECIFICATIONS
Members are usually affiliated to the Republican Party or to the Democratic Party, and only rarely to a third-party or as independents. Congress has 535 voting members: 435
Representatives and 100 Senators.
THE SENATE
The Senate has 100 members. Each state has two Senators.
Senators are elected every 6 years.
SPECIFICALLY LEGISLATIVE BRANCH
The Legislative Branch is also called the Congress. There are two parts that make up Congress: the House of
Representatives and the Senate.
REPRESENTATIVES
There are 435 total Representatives in the House. Each state has a different number of representatives
depending on their total population. States with more people get more representatives.
Representatives are elected every two years.
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THE JUDICIAL POWER IN THE UNITED STATES OF AMERICA
Judicial Review
A power of the Supreme
Court
Consists on the ability of the Court to declare and
Executive or Legislative act in violation of the
Constitution.
Established by the Court in the case of Marbury v.
Madison in 1803
The Judicial Branch
How it is formed
- Appointed by the president
- 9 Justices
- Must be approved by the Senate
Powers
- Decides whether laws are constitutional or not
- Can overturn rulings by other judges
- Interprets the law
Comprised of
- Supreme Court
- Courts of appeal
- Federal Courts
- District courts
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76
DISCUSSION ACTIVITY
1. Talk about the factors that you think were most important in leading to the
concentration of power in the executive branch today?
2. In your opinion, does the executive branch today have too much power
relative to the other two branches of government? Why or why not?
3. Do you think any specific recent exercises of presidential power have been
problematic.
READING ONE
Procedure of the Criminal Justice System
By Cornell University
In the US criminal justice system, those who have been arrested and
charged with a crime usually go through three phases: the police or law
enforcement, and corrections trial or imprisonment.
Police authority
Judicial system
Jail or prison
Stage: police or authority responsible for applying the law
Typically, a police officer or officer of another police agency similar government
does not know who has committed a crime until a citizen denounces the fact. In
some cases, before a person be formally arrested, a warrant based on probable
cause is required. A neutral magistrate must approve the order, since it constitutes
the legal basis to arrest that person.
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After the arrest, the person is registered, which usually involves taking
photographs, fingerprints and personal information request.
If charges are filed, the accused is released.
If charges are filed, it is possible that the accused person be eligible to participate
in an appropriate program of diversion, such as alcoholism rehabilitation. However,
if the person participates in such a program and do not follow their rules, it will
continue processing at the next stage of the criminal justice system. At this point,
the accused person goes through both the police stage and initial judicial phase of
the criminal justice system.
Stage of the judicial system
Hours after being arrested, the accused is brought before a judge or magistrate
where you are informed if you receive the right to be released before trial on bail or
after posting bail. The courts decide whether a deposit is required and what their
amount based on the severity of the crime of which he is accused, the risk that the
accused would flee to avoid trial and the criminal record of the accused. In many
cases, the accused persons, especially those wealthy and well known, is also
asked to surrender his passport to the court. If the defendant has no lawyer, the
court will appoint one who will be paid by the state.
Next, the defendant must appear at a preliminary hearing or questioning, in which
the judge decides whether a crime was committed and whether there is the
possibility that the accused committed it. According to the state where charges are
filed, the prosecutor may make an indictment as a result of the preliminary hearing.
Or, in some states, you can ask to convene a grand jury to formalize the charges
against the accused.
Once the prosecutor or making a grand jury indictment, the accused were
presented in a hearing where he is established a bond or ordered the arrest.
Although generally it granted bail in cases of misdemeanors, not so when crimes
are committed with considerable violence or premeditated intent.
Then the accused should face the audience of formal presentation of charges, for
which he is informed of the charges against him, according to the indictment filed
by the prosecutor or the grand jury. In this session, the defendant must plead
guilty, not guilty or "no contest" which means that neither opposes nor accepts the
charge. If the judge believes that the accused was not sincere in pleading guilty,
you will be recorded, however, who pleaded innocent.
Most people accused of a crime accept a plea agreement proposed by the
prosecutor and not take their case to trial. But the Sixth Amendment of the US
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Constitution guarantees every accused person the right to a jury trial, if the crime
he is charged with more than a misdemeanor.
Judgment
If the defendant chooses to go to trial, the criminal procedural rules governing the
way in which it is held.
During the trial, defendants have the right to confront the witnesses against him
and to force those present witnesses in their favor. The Fifth Amendment gives
every accused person the right to refuse to testify against himself. If the defendant
cannot afford an attorney, the court will appoint one.
At trial, the parties may submit relevant evidence and not only tend to create
prejudice against the accused (p. Ex. Witnesses, photographs, letters).
Documentary evidence must be authenticated and the testimony of witnesses
should be considered credible.
The public prosecutor has the obligation to submit a case to prove and convince
the jury that the defendant is guilty "beyond a reasonable doubt." If the defendant
is found guilty, this would be the last stage of the criminal justice system. It is free.
On the other hand, if the defendant is convicted of one or more offenses, will
remain in prison until his sentence issued or to be released on bail.
Sentencing
Some judges will apply to officials responsible for supervising the probation pre-
sentence reports. These documents help judges to learn about the social
background of the defendant, legitimate explanations for their behavior and
criminal record.
Although the application of a mandatory sentence is required in the case of some
crimes, judges have discretion in issuing a sentence. In a trial, convicted persons
are entitled to file his statement during the sentencing stage.
Once the judge has decided to issue one or more penalties apply determine
whether concurrent or consecutive. Some of the people who commit a first offense
and petty offenders may be eligible for probation, which is suspended prison
sentence and thus, the accused is allowed to return to the community under
supervision or without it.
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Appeal
The defendant does not plead guilty during the trial always has the right to appeal.
However, the prosecution did not always have it. If the judge issued the verdict in
the trial, the parameter review on appeal is the "abuse of discretion". This means
that the judge's decision will be revoked only if it clearly abused that power.
If a jury returned a verdict in the trial, the appellate court will review all requests,
pre- and post-judgment, to determine whether a new trial be granted.
Stage imprisonment or imprisonment
Although many defendants appeal their sentences, almost all (except some
criminals financial crimes) are detained for the time it takes to appeal his case.
Commonly, convicted offenders are assigned to jail or prison by the nature of their
crimes and their criminal record in general. If possible, inmates are assigned to
prisons close to their families.
When a prisoner serving a sentence with good behavior, you may become eligible
for parole. When an inmate acquires parole, he is paroled from prison, but not legal
custody. If the crime was violent, the family of the victim often attend parole
hearings where they are allowed to declare their opposition to the release of the
prisoner.
To expand informations see also http://espanol.getlegal.com/legal-info-center/el-
procedimiento-del-sistema-de-justicia-penal/
80
EXERCISE 1:
After reading the criminal procedure in the United States, explain what happens in
the following stages?
1. Investigation:______________________________________________
2. Charging :________________________________________________
3. Initial Hearing/Arraignment:___________________________________
4. Discovery:________________________________________________
5. Plea Bargaining:___________________________________________
6. Preliminary Hearing:________________________________________
7. Pre-Trial Motions:__________________________________________
8. Trial_____________________________________________________
9. Post-Trial Motions:_________________________________________
10. Sentencing:_______________________________________________
11. Appeal:__________________________________________________
Ste
ps
In
Th
e F
ed
era
l C
rim
inal
Pro
ces
s
1. Investigation
2. Charging
3. Initial Hearing/Arraignment
4. Discovery
5. Plea Bargaining
6. Preliminary Hearing
7. Pre-Trial Motions
8. Trial
9. Post-Trial Motions
10. Sentencing
11. Appeal
81
EXERCISE 2:
Using the information in the following chart, describe the criminal law procedure in the
United States:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
____________________________________________________________________
82
READING TWO
Rights of the Accused
By the United States Department of Justice
The Framers of the Constitution had fresh memories of a government that accused
people of crimes they did not commit and then convicted them in unfair trials.
Consequently, they went to great lengths to assure that the new government they
established would not engage in such practices. Toward that end, the Constitution and the
Bill of Rights guarantee a series of important protections for individuals accused of
committing crimes in the United States.
Given the high rates of crime in this nation, some have suggested that the rights of the
accused be curtailed. There have been, in fact, several efforts at the national level and in
the states to enact "victims' rights" laws, to limit the number of appeals that can be brought
by convicted criminals and to make the penalties for crime more severe. In terms of
balancing liberty and order, these efforts are clearly aimed at promoting more order. The
Constitution, however, keeps the balances tipped decidedly in favor of the accused. In this
nation's criminal judicial system, the assumption is that mistakes will be made. Instead of
erring on the side of punishing the innocent, however, it is a system that is more likely to
let a guilty person go unpunished.
Protections for the Accused
When an individual is arrested and charged with a crime, he or she is guaranteed a variety
of rights aimed at insuring that the legal proceedings which follow will be fair.
The Writ of Habeas Corpus
From the outset, the burden of proof is on the government to justify the arrest and
detention of a suspect in a crime. Article I, Section 9 of the Constitution guarantees the
privilege of a writ of habeas corpus. One of the most serious abuses of governmental
power that the Framers sought to prevent was the imprisonment or detention of citizens
without an indication of why they were being held. Habeas corpus is a Latin term literally
meaning "you have the body." A writ of habeas corpus is a directive from a court requiring
the government to justify the imprisonment of a citizen. Because of the writ of habeas
corpus guarantee, an individual cannot be held for more than a short period of time without
being formally charged with a crime.
Of the habeas privilege, the Supreme Court has declared that the "government must
always be accountable to the judiciary for a man's imprisonment: if the imprisonment
cannot be shown to conform with the fundamental requirements of law, the individual is
83
entitled to his immediate release". Indeed, a large number of criminal conviction appeals
are raised under the habeas corpusprivilege. Individuals who have been convicted of
crimes in spite of their professed innocence or a purportedly flawed trial may demand that
the government justify his or her physical confinement. To justify the incarceration, it is
often necessary to review the record of the trial that produced the guilty verdict as well as
the evidence that was presented. In some cases, a court may conclude that an individual
is being wrongfully imprisoned and his or her "immediate release" will be ordered
Trial by Jury
One of the most important rights of an individual formally charged with a "serious crime" is
the right to a jury trial. This right is guaranteed in Article III of the Constitution and by
the Sixth Amendment. Persons accused of crimes have the right to have their guilt or
innocence determined by a panel of fellow-citizens. In federal cases, formal charges
cannot even be filed unless a grand jury is convened and issues an indictment. The jury
trial and grand jury guarantees are intended to protect private citizens from over-zealous
police officers, prosecutors and judges. By interjecting the wisdom and judgment of other
private individuals into the process, an effective check on law enforcement and on the
judicial system is maintained.
In its rulings, the Supreme Court has recognized the importance of jury trials and has set a
high threshold for maintaining the impartiality of jurors. In one famous case, a bailiff was
overheard by some members of a jury to say, "Oh that wicked fellow, he is guilty." The
Court ruled that the comment had unfairly biased the jury against the defendant and a new
trial was ordered (see Parker v. Gladden(1966)).
While jury trials are guaranteed by the Constitution, there are several instances in which a
trial is conducted without a jury. First, persons accused of crimes can waive their right to a
jury trial, perhaps believing that a judge will be more understanding of the situation.
Additionally, the Court has ruled that "serious crimes" are only those that carry a possible
penalty of at least a $500 fine or six months in jail.
Self-Incrimination
In addition to the guarantee of a jury trial, the Fifth Amendment states that no person "shall
be compelled in a criminal case to be a witness against himself." The accused, however,
cannot simply avoid testifying because of potential embarrassment. Rather, they must
have a legitimate concern that their testimony will contribute to their conviction of a crime.
Persons accused of crimes or witnesses in legal proceedings will often invoke this right by
"pleading the Fifth" or by "claiming their Fifth Amendment rights."
Most Americans (at least those who have watched any "cop" shows), know that when
someone is arrested, they must be "read their rights." The "reading of rights" to an
accused individual is often referred to as the "Miranda warning." (The warning is named
after an individual who maintained that he was not aware of his Fifth Amendment rights
84
when he confessed to a crime immediately after being arrested.) In Miranda v. Arizona, the
Supreme Court concluded:
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and
the expedient of giving an adequate warning as to the availability of the privilege so
simple, we will not pause to inquire in individual cases whether the defendant was aware
of his rights without a warning being given. Assessments of the knowledge the defendant
possessed, based on information as to his age, education, intelligence, or prior contact
with authorities, can never be more than speculation; a warning is a clearcut fact. More
important, whatever the background of the person interrogated, a warning at the time of
the interrogation is indispensable to overcome its pressures and to insure that the
individual knows he is free to exercise the privilege at that point in time.
In many instances, a prosecutor or investigator would rather hear what an individual has to
say than attempt to prosecute them based on their testimony. In such cases, individuals
may be granted immunity in exchange for providing information about a crime. For
example, in the investigation of President Clinton's relationship with Monica Lewinsky,
Lewinsky was granted immunity in exchange for her testimony about her relationship with
Clinton. Prosecutors commonly grant immunity to persons suspected of committing lesser
crimes if their testimonies might help convict a more prominent suspect of a more serious
crime.
"Double Jeopardy"
Persons accused of crimes are also protected from what is called "double jeopardy." In the
words of the Fifth Amendment, no person shall "be subject for the same offence to be
twice put in jeopardy of life or limb." If the result of a jury trial is an acquittal (the jury finds
the defendant "not guilty"), there can be no further legal action taken against the defendant
for that crime. One exception to this rule occurs when a defendant challenges his or her
guilty conviction and is granted a new trial (typically because of some procedural error in
the original trial). In this case, the "jeopardy" posed by the first trial is eliminated and a new
trial can be convened, putting the defendant in jeopardy as if for the first time for the
alleged crime.
Another exception to the double jeopardy provision is really not an exception. It is possible
for an individual, to be tried in criminal court for a crime and then be sued in civil court for
damages caused by the same criminal act. The laws and rules that apply to the two
different legal systems are sufficiently different that, for the purposes of the Fifth
Amendment, they are considered distinct. Additionally, an individual may also be tried for
different crimes committed in the course of one action or set of actions.
No Excessive, Cruel or Unusual Fines or Punishments
The Eighth Amendment forbids the government from imposing excessive bail, fines or
"cruel and unusual" punishments. Given the era during which the Eighth Amendment was
85
drafted and ratified, one of its obvious intents was to prohibit torture. Under the limitations
imposed by the Constitution, penalties for crimes may include fines or incarceration, but
not excessively painful or physically harmful penalties such as whippings or branding, both
common practices in the 1700s. The Court has also interpreted the Eighth Amendment to
prohibit imprisonment in unsanitary or inhumane conditions. However, the Court has been
reluctant to define such conditions too broadly. In Rhodes v. Chapman (1981), the Court
reversed a lower court's decision that declared "double celling," the housing of two
prisoners in one small cell, was unconstitutional:
The double celling made necessary by the unanticipated increase in prison population did
not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase
violence among inmates or create other conditions intolerable for prison confinement.
Although job and educational opportunities diminished marginally as a result of double
celling, limited work hours and delay before receiving education do not inflict pain, much
less unnecessary and wanton pain; deprivations of this kind simply are not punishments.
We would have to wrench the Eighth Amendment from its language and history to hold
that delay of these desirable aids to rehabilitation violates the Constitution.
One of the most important standards the Court has used in determining whether a
punishment or fine violates the Eighth Amendment is a test of proportionality. The Court
has ruled that, under certain circumstances, the death penalty may be a "cruel and
unusual" punishment, but only where it is not proportionate to the crime committed.
Search Warrants
The Fourth Amendment forbids the search or seizure of an individual's private property
without a warrant. In practice, this means that a police officer or other government agent
cannot enter your home to search it and seize evidence unless he or she has the
permission of a judge to do so. When a law enforcement official is investigating a crime, he
or she must assemble enough evidence to convince a judge that the violation of a
suspect's privacy and property is "warranted." The standard for demonstrating the need for
a warrant is that the government must show that it has "probable cause".
The "Due Process of Law"
The Constitution and the Bill or Rights guarantee several specific rights of the accused,
many of which have been discussed above. In addition to these narrowly defined rights,
the Fifth and Fourteenth Amendments also provide the broad guarantee that no one shall
be deprived of "life, liberty, or property, without due process of law."
The "due process" guarantee includes the rights outlined in the Constitution as well as
others not specifically mentioned. In fact, some observers have referred to the due
process clauses as the "wild card" of the Constitution because of the opportunity they
provide for the judiciary to interpret individual rights expansively. In the most simple terms,
however, the due process guarantees of the Constitution guarantee that individuals
86
accused of crimes will be given a fair trial. This includes the guarantee of a jury trial, the
right against self-incrimination and others already discussed. Other specific due process
guarantees include the right of the accused to confront their accusers and to compel
favorable witnesses to testify in their behalf (Sixth Amendment).
Perhaps the most significant expansion the Supreme Court has made to the due process
rights of the accused came in its landmark decision in Gideon v. Wainwright. Gideon had
been charged with breaking and entering and, appearing before a Florida judge, requested
a court appointed attorney because he did not have the money to hire one himself. Under
Florida law at the time, public defenders could only be provided for capital offense cases,
cases in which the accused be sentenced to death if found guilty.
Gideon defended himself as best he could but was convicted nonetheless. In a later
appeal of his conviction, the Supreme Court ruled that Gideon's due process rights had
been violated when he was not granted his request for legal counsel. Commenting on its
ruling, the Court observed:
That government hires lawyers to prosecute and defendants who have the money hire
lawyers to defend are the strongest indications of the widespread belief that lawyers in
criminal courts are necessities, not luxuries. The right of one charged with crime to counsel
may not be deemed fundamental and essential to fair trials in some countries, but it is in
ours. From the very beginning, our state and national constitutions and laws have laid
great emphasis on procedural and substantive safeguards designed to assure fair trials
before impartial tribunals in which every defendant stands equal before the law. This noble
ideal cannot be realized if the poor man charged with crime has to face his accusers
without a lawyer to assist him.
On the basis of this ruling, all persons accused of felonies must be provided court
appointed attorneys if they cannot afford to hire them on their own. This ruling is
emblematic of a system which extends a significant menu of rights to persons accused of
crimes in the United States of America. Through these rights, the people of this nation are
provided significant protections from unfair and unjust accusations and punishments.
87
EXERCISE 3:
Write down the Amendment that establishes the following rights of the accused:
CRIMINAL PROCEDURE
____ Amendment *Due process
*DOUBLE JEOPARDY *Right to be silent
___Amendment * Right to Jury Trial
Rights of the accused
(CONSTITUTION)
___ Amendment *Against irrational searches
____Amendment * Speedy Trial * Right to jury trial * Right to a lawyer * Right to examine
witnesses
____ Amendment * Cruel and unusual
punishments No excesive bailment
_____Amendment * Due process
88
Rights of the Accused
The Constitution, however, keeps the balances tipped decidedly in
favor of the accused. In this nation's criminal judicial system,
the assumption is that mistakes will be made. Instead of erring on the
side of punishing the innocent, however, it is a system that is more
likely to let a guilty person go unpunished.
Protections for the Accused
When an individual is arrested and charged with a crime, he or she is guaranteed a
variety of rights aimed at insuring that the legal proceedings which follow will be fair.
The Writ of Habeas Corpus
Article I, Section 9 of the Constitution guarantees the privilege of a writ of habeas corpus.
Habeas corpus is a Latin term literally meaning "you have the body." A writ of habeas corpus is a directive from a court requiring the government to justify the imprisonment of a citizen. Because
of the writ of habeas corpus guarantee, an individual cannot be held for more than a short period of time without being formally charged
with a crime.
Trial by Jury
One of the most important rights of an individual formally charged with a "serious crime" is the right to a jury trial. This right is guaranteed in Article III of the Constitution
and by the Sixth Amendment. Persons accused of crimes have the right to have their guilt or innocence determined
by a panel of fellow-citizens. In federal cases, formal charges cannot even be filed unless a grand jury is
convened and issues an indictment. The jury trial and grand jury guarantees are intended to protect private
citizens from over-zealous police officers, prosecutors and judges. By interjecting the wisdom and judgment of other private individuals into the process, an effective check on law enforcement and on the judicial system is maintained.
Self-Incrimination
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an
adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases
whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the
defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact.
More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at
that point in time.
89
"Double Jeopardy"
Persons accused of crimes are also protected from what is called "double jeopardy." In the words of the Fifth Amendment, no person shall "be subject for the same offence to be twice put in jeopardy of
life or limb." If the result of a jury trial is an acquittal (the jury finds the defendant "not guilty"), there can be no further legal action taken
against the defendant for that crime. One exception to this rule occurs when a defendant challenges his or her guilty conviction and is
granted a new trial (typically because of some procedural error in the original trial). In this case, the "jeopardy" posed by the first trial is
eliminated and a new trial can be convened, putting the defendant in jeopardy as if for the first time for the alleged crime.
Another exception to the double jeopardy provision is really not an exception. It is possible for an individual, to be tried in criminal court for a crime and then be sued in civil court for damages caused by the same criminal act. The laws and rules that
apply to the two different legal systems are sufficiently different that, for the purposes of the Fifth Amendment, they are considered distinct. Additionally, an individual may also be tried for different crimes committed in the course of one
action or set of actions.
No Excessive, Cruel or Unusual Fines or Punishments
The Eighth Amendment forbids the government from imposing excessive bail, fines or "cruel and unusual" punishments. Given the era during which the Eighth
Amendment was drafted and ratified, one of its obvious intents was to prohibit torture. Under the limitations
imposed by the Constitution, penalties for crimes may include fines or incarceration, but not excessively painful
or physically harmful penalties such as whippings or branding, both common practices in the 1700s. The Court
has also interpreted the Eighth Amendment to prohibit imprisonment in unsanitary or inhumane conditions.
Search Warrants
The Fourth Amendment forbids the search or seizure of an individual's private property without a warrant. In practice, this means that a police officer or other government agent
cannot enter your home to search it and seize evidence unless he or she has the permission of a judge to do so.
When a law enforcement official is investigating a crime, he or she must assemble enough evidence to convince a judge
that the violation of a suspect's privacy and property is "warranted."
90
The
"D
ue
Pro
cess
of
Law
" The Constitution and the Bill or Rights guarantee several specific rights of the
accused, many of which have been discussed above. In addition to these narrowly defined rights, the Fifth and Fourteenth Amendments also provide the broad
guarantee that no one shall be deprived of "life, liberty, or property, without due process of law."
The "due process" guarantee includes the rights outlined in the Constitution as well as others not specifically mentioned. In fact, some observers have referred to the
due process clauses as the "wild card" of the Constitution because of the opportunity they provide for the judiciary to interpret individual rights expansively. In the most simple terms, however, the due process guarantees of the Constitution guarantee that individuals accused of crimes will be given a fair trial. This includes the guarantee of a jury trial, the right against self-incrimination and others already
discussed.
Perhaps the most significant expansion the Supreme Court has made to the due process rights of the accused came in its landmark decision in Gideon v.
Wainwright. Gideon had been charged with breaking and entering and, appearing before a Florida judge, requested a court appointed attorney because he did not
have the money to hire one himself. Under Florida law at the time, public defenders could only be provided for capital offense cases, cases in which the
accused be sentenced to death if found guilty.
91
READING THREE
Contracts
Private Regulation of Affairs: Obligations Assumed by
Private Agreement
By Charles F. Abernathy
“Contracts” are those voluntary agreements between persons that a court
will enforce. Some such agreements are written as mutual promises: “A and B
agree that A will deliver to B a cow, and B will pay A $100.”. Other such
agreement may be oral: A asks, “will you deliver to me your cow for $100?”; B
says, “Yes.” Almost all such agreements look to a future date or time for
performance fo the mutual promises.
In one sense, therefore, “contracts” are legal obligations imposed not by the states
but by the personas entering the agreement. Contract “law”, therefore enforces a
breadth of agreements almost as wide as the human imagination, especially in the
field of commerce (sale of goods and services). Contracts therefore represent the
private and consensual, no governmental, ordering of life.
Yet courts will not consider all promises and agreements to be “contracts” that aws
will recognize and enforce. Courts use many concepts to define which agreements
and promises are enforceable by courts as “contracts”, but the two most traditional
ones are these:
(i) an actual agreement or mutual exchange of promises, and
(ii) a requirement that the promises exchanged have value. The controlled growth
of contract law has occurred as courts have sometimes insisted upon these
principles, yet sometimes relaxed them Private parties order their affairs with
agreements; courts set the outer boundary marking those agreements that will not
be legally enforced as contracts. And, as shall see, sometimes the law deems
interactions to be contracts even when the personas involved made actual
promises to each other.
92
DISCUSION ACTIVITY
Get in pairs. Each participant has to choose five words and explain their
meaning
• Attorney
• State a claim
• Allegation
• Reversed and remanded
• Jury verdict
• Assault
• Affirm the judgment
• Trial court
• Liability
• Battery
• Consent
• Privacy
• Personal integrity
• Damages
• Complaint
• Intentional Infliction of Emotional Distress
93
READING FOUR
Tort Law in the United States
By Michael R. McCurdy and Jason B. Robinson
The United States of America is unique in that it is comprised of a federal
district and fifty states. As a result, the legal system in the United States is divided
into two separate courts: federal and state courts. The differences between federal
and state courts are defined mainly by jurisdiction, which refers to the types of
cases a court is allowed to decide.
The types of cases heard by courts in the United States can largely be divided into
two areas of law: criminal and civil law. Criminal laws and the supporting judicial
system recognize and enforce violations of laws that exist to protect all of society
from conduct deemed wrongful. Such laws are typically enacted by the elected
legislative branches of government. The purpose of the criminal law system in the
United States is to punish violators and, by way of example, deter others from
committing similar misconduct.
Unlike criminal law, the primary purpose of civil law in the United States is not to
punish misdeeds but, rather, to compensate those individuals whose person or
property has been wrongfully damaged by the conduct of another. In addition to
compensatory damages, remedies available to civil litigants include equitable relief,
such as an injunction, whereby a court orders a wrongdoer to cease its harmful
conduct.
Civil law in the United States encompasses not only breaches of commercial duties
and obligations arising from contracts, but also breaches of duties of care owed to
one another by virtue of being members of society. It is the latter category that
comprises tort law in the United States: i.e., a body of law generally governing
duties that arise by operation of law and not by mere agreement of the parties.
A “tort” is “[a] private or civil wrong or injury, including action for bad faith breach of
contract, for which the court will provide a remedy in the form of an action for
damages.” BLACK’S LAW DICTIONARY 1036 (Abridged 6th ed. 1991). U.S. tort
law has its origin in the British common law system. Much of U.S. tort law was
developed by judges through years of opinions written in specific cases. The body
of law is fluid, literally changing on a daily basis as new cases cause judges to
reconsider and affirm or revise prior opinions, as well as address issues that
previously escaped adjudication.
Tort law in the United States exists to redress damages caused an individual by
the conduct of another that falls below a standard of care defined by the civil
courts.
94
II. TYPES OF TORTS
As noted above, the primary purpose of tort law is to compensate individuals or
entities that suffer personal or property damage because of another’s wrongful
conduct and, when possible, enjoin continuing misconduct. The specific causes of
actions comprising tort law in the United States are too numerous to list, but
include liability arising out of: (1) intentional misconduct; (2) unreasonable conduct;
(3) defects in the design, manufacturing, or marketing of products sold; and (4)
one’s relationship to the tortfeasor.
1. Intentional
“The intent with which tort liability is concerned is not necessarily a hostile intent, or
a desire to do any harm. Rather it is an intent to bring about a result which will
invade the interests of another in a way that the law will not sanction.” WILLIAM L.
PROSSER, LAW OF TORTS 31 (4th ed. 1971).
Determining whether liability exists for an intentional tort focuses on whether the
actor intended his conduct. “The plaintiff need not prove, however, that the actor
intended the harm that actually results.” White v. Muniz, 999 P.2d 814, 819 (Colo.
2000); Mooney v. Carter, 160 P.2d 390 (Colo. 1945) (finding defendant had
sufficient intent when she speeded up her car and swerved for the purpose of
throwing plaintiff from the car).
Perhaps the most common intentional tort to land is trespass. A trespass occurs
when one intentionally enters or causes someone or something to enter upon the
land of another. CJI-Civ. 18:1 (CLE ed. 2010). The owner or lawful possessor of
the land may recover damages for physical damage to the property caused by the
trespass. Id. “A trespass may occur when the defendant originally had permission
to be on the land, but such permission was subsequently revoked or otherwise
terminated and defendant remained on the land.” Id., Notes on Use (citing
RESTATEMENT (SECOND) OF TORTS § 158 (1965)).
Torts similar to trespass exist to allow redress for intentional conduct damaging
personal property. Frequently occurring intentional torts to persons include:
Battery
Assault
False imprisonment
Infliction of emotional distress
Battery occurs when an intentional act causes an unpermitted contact with a
person. WILLIAM L. PROSSER, LAW OF TORTS 35 (4th ed. 1971). An assault
does not require actual contact, but is committed when an intentional act “would
give the victim reason to fear or expect immediate bodily harm.” BLACK’S LAW
DICTIONARY 75 (Abridged 6th ed. 1991). False imprisonment arises when one,
without lawful authority
95
2 (such as an arresting peace officer), restricts the movement of another against
his will. Intentional infliction of emotional distress claims protect against “conduct
exceeding all bounds usually tolerated by decent society, of a nature which is
especially calculated to cause, and does cause, mental distress of a very serious
kind.” WILLIAM L. PROSSER, LAW OF TORTS 56 (4th ed. 1971).
2. Negligence
Negligence is perhaps the most commonly asserted cause of action in the United
States. “Negligence is the failure to use such care as a reasonably prudent and
careful person would use under similar circumstances.” BLACK’S LAW
DICTIONARY 716 (Abridged 6th ed. 1991). Simply, it is conduct below that which
society considers reasonable. When such unreasonable conduct is the proximate
cause of injury to another person or his property, the actor may be liable in tort for
negligence.
What constitutes unreasonable conduct typically is not defined by statute but,
rather, is a question of fact to be determined by the finder(s) of fact. An exception
may exist where instances of misconduct are frequent and so obviously
unacceptable that the law imposes a rebuttable presumption of negligence. For
example, the law may presume that a rear-end motor vehicle accident results from
the negligence of the driver in the car hitting the vehicle in front of him.
In contrast to intentional torts, in negligence cases the actor need not intend the
conduct causing damage. In fact, by definition the tortfeasor is not accused of
acting with intent, but rather for failing to exercise the reasonable degree of care
required by society as expressed through judges and juries. The care required is
that of a fictional reasonable man in similar circumstances. Unreasonable conduct
often is deemed to have occurred when motor vehicle accidents result from
excessive speed or inattention to traffic control devices. Negligence may also be
found in a commercial setting, such as where a designer, manufacturer or seller of
a product does not exercise the reasonable care deemed necessary to prevent a
dangerous product from reaching the consumer.
The essence of every negligence action is that a duty of care is owed to the
plaintiff. Such duties may be found to exist irrespective of a pre-existing
relationship between the parties. Common examples are the duties imposed on
operators of motor vehicles. Other duties exist by virtue of a pre-existing
relationship, such as a doctor-patient relationship, attorney-client relationship, or
clergy-parishioner relationship.
Generally, negligence laws exist as a non-criminal regulator of conduct in society.
Those individuals whose conduct falls below the required minimum standard of
care may be liable for the resulting bodily injury, including death, and property
damage.
96
3. Product Liability
Product liability refers to “the legal liability of manufacturers and sellers to
compensate buyers, users, and even bystanders, for damages or injuries suffered
because of defects in goods purchased.” BLACK’S LAW DICTIONARY 840
(Abridged 6th ed. 1991); see also Model Uniform Product Liability Act, § 102(2)
(1979) (defining product liability to include “all claims or action brought for personal
injury, death or property damage caused by the manufacture, design, formula,
preparation, assembly, installation, testing, warnings, instructions, marketing,
packaging, or labeling of any product”). Thus, this tort action makes a manufacturer
liable if its product has a defective condition that makes it unreasonably dangerous
to the user or consumer. BLACK’S LAW DICTIONARY 840 (Abridged 6th ed.
1991).
The rule of tort liability applicable to commercial sellers and other distributors of
products generally has been stated as follows: “[o]ne engaged in the business of
selling or otherwise distributing products who sells or distributes a defective
product is subject to liability for harm to persons or property caused by the defect.”
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 (1998)
(superseding the RESTATEMENT (SECOND) OF TORTS § 402A (1965)); see
also Newton v. Admiral Corp., 280 F. Supp. 202, 203 (D. Colo. 1997) (noting
Section 402A of the RESTATEMENT (SECOND) OF TORTS “in effect implies a
warranty by the seller that the product is free from defects which rendered the
product unreasonably dangerous to the user”).
There is no comprehensive federal scheme governing the law of product liability.
Rather, this area of law varies from state to state and is a creature of statute or has
otherwise become a part of common law (i.e., it has been developed by judges
over the years). Indeed, many states have enacted comprehensive product liability
statutes, some of which are modeled after the Model Uniform Products Liability
Act. See 44 F.R. 62,714–62,750 (Model Uniform Product Liability Act). The Model
Uniform Product Liability Act, published by the United States Department of
Commerce in 1979, was meant to set forth “uniform standards for state product
liability tort law.” Id. at 62,716. Other states have adopted, in whole or in part,
provisions of the Restatement of Law. See RESTATEMENT (THIRD) OF TORTS:
PRODUCTS LIABILITY §§ 1–21 (1998); see also RESTATEMENT (SECOND) OF
TORTS § 402 (1965). However, provisions of the Restatement do not become
rules of law until adopted as such by a court or legislature. Accordingly, it is
imperative for anyone asserting a claim for product liability to understand the
applicable law in the particular jurisdiction in which the claim is asserted.
Liability can occur at any point along the chain of production and distribution.
Indeed, the manufacturer, wholesaler, and retailer can all be held accountable for
injuries caused by a defective product. See RESTATEMENT (THIRD) OF TORTS:
PRODUCTS LIABILITY § 1 cmt. d (1998) (noting “all commercial sellers and
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distributors of products, including nonmanufacturing sellers and distributors such
as wholesalers and retailers, are subject to liability for selling products that are
defective”); § 20(a) (defining commercial product sellers to include manufacturers,
wholesalers, and retailers). However, legislation has been enacted in several
states that effectively immunizes nonmanufacturing sellers or distributors from
strict liability. Thus, particular attention must be paid to the laws of the jurisdiction
in which the product liability claim is asserted.
Liability is limited to defective products. A product is broadly interpreted to include
any “tangible personal property distributed commercially for use or consumption.”
RESTATEMENT (THIRD) TORTS: PRODUCTS LIABILITY § 19 (1998). The defect
of a product can come in several forms: a design defect; a manufacturing defect; or
a marketing defect. Id., § 2. A design defect, which occurs before manufacturing,
arises when the specific product unit conforms to the intended design but the
intended design itself renders the product not reasonably safe. Id., § 1 cmt. a; §
2(b). A manufacturing defect, which occurs during manufacturing, is a physical
departure from the product’s intended design. Id., § 1 cmt. a; § 2(a). An example
would be where the manufacturer uses the wrong materials or fails to use
appropriate quality controls that results in a defective product. Finally, a marketing
defect, which occurs after manufacturing, arises where the sale of a specific
product without adequate instructions or warnings renders the product not
reasonably safe. Id., § 1 cmt. a; § 2(c).
Generally speaking, product liability claims may be based on different theories of
liability, including: strict liability, negligence, misrepresentation, or breach of
warranty. Strict product liability has been described as a “term of art that reflects
the judgment that products liability is a discrete area of tort law which borrows from
both negligence and warranty” but “is not fully congruent with classical tort or
contract law.” See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY
§ 1 cmt. a (1998). Strict product liability focuses on the nature of the product rather
than the conduct of either the manufacturer or the person injured and is premised
on the concept of enterprise liability for casting a defective product into the stream
of commerce. Boles v. Sun Ergoline, Inc., 223 P.3d 724, 727 (Colo. 2010). Under
the Second Restatement of Torts, strict liability could be found under all three
theories of liability: i.e., manufacturing defects; marketing defects; and design
defects. See RESTATEMENT (SECOND) OF TORTS § 402A (1965). Under the
Third Restatement of Torts, however, the only theory that allows for strict liability is
one that is based on a manufacturing defect. See RESTATEMENT (THIRD) OF
TORTS: PRODUCTS LIABILITY § 2 (1998).
Unlike strict product liability, where a product liability action is brought on a
negligence theory the focus is on the conduct of the defendant. To recover under a
negligence theory, a plaintiff must show that the defendant breached a duty of care
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owed to the plaintiff and thereby caused the plaintiff’s injuries. See Section II(2),
supra. Unlike strict liability, in order to prevail on a negligence theory, the plaintiff
must show that the defect resulted from the defendant’s failure to exercise
reasonable care. Id. In some states, as in a negligence action, a plaintiff may rely
on the doctrine of res ipsa loquitor. See RESTATEMENT (SECOND) OF TORTS §
328D (1965).
A product liability claim may also be brought under a theory of breach of warranty,
which may be based on either express or implied warranties, including the implied
warranty of fitness for a particular purpose and the implied warranty of
merchantability. These cases are substantially controlled by the Uniform
Commercial Code, which governs commercial transactions and has been adopted
in whole or substantially by all states. See BLACK’S LAW DICTIONARY 1064
(Abridged 6th ed. 1991). Although a product liability claim based on breach of
warranty is a tort action, the theory
is intertwined with contract law because warranty is based on a contractual
relationship. These contractual issues can make it more difficult for a plaintiff to
succeed on this theory, notwithstanding the fact that the plaintiff is not required to
prove defendant was negligent under this theory. Plaintiff must also provide timely
notice.
Finally, some states allow strict liability for manufacturers for misrepresentation.
See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 9 (1998)
(“One engaged in the business of selling or otherwise distributing products who, in
connection with the sale of a product, makes a fraudulent, negligent, or innocent
misrepresentation of material fact concerning the product is subject to liability for
harm to persons or property caused by the misrepresentation.”); see also
RESTATEMENT (SECOND) OF TORTS § 402B (1965) (superseded by
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 9 (1998)).
4. Vicarious Liability
The types of torts previously discussed have required some degree of misconduct
by the actor. Tort law in the United States also imposes liability on individuals and
entities simply by virtue of their relationship to the tortfeasor. Such liability is
referred to as vicarious liability, meaning “indirect or imputed legal responsibility for
acts of another.” BLACK’S LAW DICTIONARY 1084 (Abridged 6th ed. 1991). A
frequent example of vicarious liability arises in the employer-employee relationship.
If the employee negligently causes an accident while acting within the course and
scope of his employment, the employer — although free of fault — may be liable
for the losses flowing from its employee’s misconduct.
Consistent with the purpose of tort law in the United States — i.e., to compensate
persons for their injuries and damages — vicarious liability generally is imposed on
an employer to provide another source from which to compensate victims.
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Proponents of vicarious liability theories reason that, because the employer was
benefiting from its employee’s actions when the accident occurs, the employer
should also be responsible to those injured as a result of the employee’s
negligence when that negligence is within the scope of the employment
relationship.
The employer-employee relationship is but one example of vicarious liability. Other
examples include the permissive use of a motor vehicle by a motor vehicle owner
to another family member, as well as instances involving the parent-child
relationship and joint venturers.
5. Other Types of Torts
The body of tort law in the United States is so broad and deep that it would be
difficult, if not impossible, to discuss or even identify all torts in this article. The
types of torts addressed above are amongst those most commonly litigated.
However, they are not exhaustive.
Other recognized torts include causes of action for defamation (written or verbal
misstatements of fact), premises liability (governing duties of an owner or
possessor of land to occupants), malicious prosecution and abuse of legal process,
false imprisonment, outrageous conduct, intentional interference with contractual
obligations, bad faith breach of insurance contract, breach of fiduciary duty, civil
conspiracy, invasion of privacy, and wrongful discharge from employment.
III. PROVING LIABILITY
1. Burden of Proof
“Burden of proof” is “[t]he obligation of a party to establish by evidence a requisite
degree of belief concerning a fact in the mind of the trier of fact or the court.”
BLACK’S LAW DICTIONARY 135–36 (Abridged 6th ed. 1991). In civil litigation, the
initial burden of proof is on the plaintiff. Although there are times the burden of
going forward may shift to the defendant, such as where the plaintiff has
established a prima facie case, the plaintiff bears the burden of proof throughout
trial. However, a defendant bears the burden of proof on all affirmative defenses
raised in response to a Complaint.
In civil litigation, a plaintiff must prove his or her case by a “preponderance of the
evidence,” which is defined as “that degree of proof which is more probable than
not.” BLACK’S LAW DICTIONARY 819 (Abridged 6th ed. 1991). This degree of
proof stands in stark contrast to, and represents a crucial departure from, the
degree of proof required in a criminal case in the United States, where the burden
of proof is “beyond a reasonable doubt.” “Beyond a reasonable doubt” means that
“facts proven must, by virtue of their probative force, establish guilt.” Id. at 111. The
standard of proof beyond a reasonable doubt has limited use in civil cases, such as
claims for exemplary damages.
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There are some exceptions to the general rule that a plaintiff must prove his or her
case by a preponderance of the evidence in a civil case, such as where the plaintiff
must prove his or her case by “clear and convincing evidence.” This degree of
proof is “[t]hat proof which results in reasonable certainty of the truth of the ultimate
fact in controversy, requires more than a preponderance of the evidence but less
than proof beyond a reasonable doubt.” BLACK’S LAW DICTIONARY 172
(Abridged 6th ed. 1991).
2. Duty
The term “duty” is used through the Restatement of Torts “to denote the fact that
the actor is required to conduct himself in a particular manner at the risk that if he
does not do so he becomes subject to liability to another to whom the duty is owed
for any injury sustained by such other, of which that actor’s conduct is a legal
cause.” BLACK’S LAW DICTIONARY 349 (Abridged 6th ed. 1991). An actor’s duty
is intertwined with the notion of due care, viewed in terms of an actor’s
reasonableness: i.e., “[t]hat degree of care that a reasonable person can be
expected to exercise to avoid harm reasonably foreseeable if such care is not
taken” or “[t]hat care which an ordinarily prudent person would have exercised
under the same or similar circumstances.” Id. at 345.
3. Proximate Cause
Most torts require that the defendant’s act be the proximate cause of the injury
sustained by the plaintiff. “An injury or damage is proximately caused by an act, or
a failure to act, whenever it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission.” BLACK’S LAW DICTIONARY 853
(Abridged 6th ed. 1991).
IV. DAMAGES
Damages are the means by which a party injured in tort is compensated for the
harm suffered, and an injured party is generally entitled to recover damages for the
natural and probable consequences of the tort. Damages are primarily divided into
two categories: compensatory and punitive. BLACK’S LAW DICTIONARY 270
(Abridged 6th ed. 1991).
The purpose of compensatory damages is to make the injured party whole by
compensating him or her for injuries sustained as a result of the defendant’s
actions. BLACK’S LAW DICTIONARY 270 (Abridged 6th ed. 1991). Compensatory
damages are generally divided into the following categories: economic; non-
economic; and physical impairment or disfigurement. Economic damages typically
refer to the pecuniary harm suffered by an injured party, or those damages that can
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be accurately calculated in monetary terms. Non-economic damages refer to the
non-pecuniary harm suffered by an injured party. Such damages include emotional
distress, pain and suffering, inconvenience, fear and anxiety, and impairment of the
quality of life. Non-economic damages, as well as punitive damages, are often
limited by statute due in large part to the widespread tort reform passed in state
legislatures as a result of excessive damage awards.
Punitive damages, on the other hand, are meant to punish the defendant and make
an example of him or her in order to deter similar conduct. Punitive damages are
similar to non-economic damages in that they are often limited by statute.
In general, attorney fees are not recoverable as damages or costs in civil litigation
unless authorized by contract, statute, or court rule. This general rule, known as
the “American rule” stands in stark contrast to the “English rule,” which provides
attorney fees to the prevailing party. Costs, however, are typically awarded to the
prevailing party.
V. GOVERNMENTAL CONSIDERATIONS
Sovereign immunity is the judicial doctrine “which precludes bringing suit against
the government without its consent.” BLACK’S LAW DICTIONARY 970 (Abridged
6th ed. 1991). This doctrine applies to the federal, state and local governments.
The federal government has generally waived its non-tort action immunity in the
Tucker Act, 28 U.S.C.A. § 1346(a)(2), 1491, and its tort immunity in the Federal
Tort Claims Act, 28 U.S.C.A. § 1346(b), 2674. The Federal Tort Claims Act largely
abrogated the federal government’s immunity from tort liability and established the
conditions for suits and claims against the federal government. See 28 U.S.C.A. §§
1346(b), 2674. However, the Federal Tort Claims Act preserves governmental
immunity with respect to the traditional categories of intentional torts, and with
respect to acts or omissions which fall within the “discretionary function or duty” of
any federal agency or employee. BLACK’S LAW DICTIONARY 426 (Abridged 6th
ed. 1991). Most states have also waived immunity to various degrees at both the
state and local government levels.
EXERCISE 4
1.- Mention the type of torts
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READING FIVE
Consumer Protection in the United States: An Overview
By Spencer Weber Waller, Jillian G.Brady and R.J. Acosta
The history of consumer protection in the United States is the story of
specific formal legal responses to crises and emergencies that generate great
public outrage and require a public response. This pattern began against the
background of the 19th century common law, which emphasized freedom of
contract and caveat emptor (let the buyer beware). Over time, specific crises and
political events led to both the creation of government bureaucracies with
jurisdiction over specific products and practices affecting consumers and a broad
array of private rights of actions where consumers can sue for damages,
injunctions, attorney fees, and litigation costs if they can show harm from the illegal
practice. One of the earliest examples was the deplorable conditions in the
American meat packing industry which were exposed by Upton Sinclair in his best
selling 1905 novel The Jungle. The outrage generated by Sinclair and other
investigative writers led to the creation of the Food & Drug Administration and the
first comprehensive inspection and regulation of food safety in the United States.
The early portion of the 20th Century, including both the Progressive Era and the
New Deal Era of President Franklin Roosevelt, led to a further growth of a large
number of federal, state, and local regulatory agencies and laws, many of which
dealing with consumer protection. However, the modern consumer protection
movement began in the 1960s with reference to a Consumer Bill of Rights by
President Kennedy, the growth of the so-called “Great Society” program of the
Johnson Administration, and the efforts of Ralph Nader and other consumer
advocates to highlight the existence of unsafe products and the need for greater
government regulation. The result is that American consumers are protected from
unsafe products, fraud, deceptive advertising, and unfair business practices
through a mixture of national, state, and local governmental laws and the existence
of many private rights of actions. These public and private rights both protect
consumers and, at a formal level, equip them with the knowledge they need to
protect themselves. Although U.S. mechanisms for consumer protection often exist
separately from each other, what the overall scheme lacks in centralization, it gains
in depth and variety of protection. Its strength is the array of governmental actors,
formal legal rights, and remedies protecting consumers. Its weakness lies in the
unequal reality of who has access to the government and the courts.
Federal Mechanisms for Consumer Protection
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The principal, but not the only, consumer protection agency at the federal level is
the United States Federal Trade Commission (“FTC”). This section outlines the
powers and remedies of the FTC in the consumer protection area and then briefly
describes some of the other federal agencies with significant consumer protection
responsibilities. A. Federal Trade Commission The United States Federal Trade
Commission (FTC) works alone, and in concert with other federal agencies, to
administer a wide variety of consumer protection laws. The overall goal is to afford
consumers a deception-free marketplace and provide the highest quality products
at competitive prices. The FTC is an independent federal agency with five
Presidentially-appointed, Senate-confirmed commissioners who each serve seven-
year terms. No more than three commissioners may be members of the
President’s political party. Created in 1914, the FTC has two principal goals:
1. to protect consumers by preventing fraud, deception, and unfair business
practices in the marketplace and
2. to maintain competition by preventing anticompetitive business practices. The
FTC’s Bureau of Consumer Protection aims to achieve the first goal, and is the
focus of this section.
EXERCISE 5
1.What are Consumers rights?
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2.Find other US federal agencies protecting consumers
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3. What is the Bureau of Consumer Financial Protection
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READING SIX
The Law of Corporations
The Classic American Corporations
By Charles F. Abernathy
Under the concept of corporations, people are natural and free, but their
association together in a coprotation is not natural –it is permitted and defined by
law. Law allows people to assemble together for a business or charitable purpose
and to call themselves a #corporation.” The “corporation” is then treated as an
independent legal person, a fictious person controlled by the real persons who own
it and limited to the goals set out in the corporate charter –the internat “constitution”
of the corporation. Since the corporation is permitted to xist by law, it gains
advantages conferred by law, but it must obedy special restrictions established by
law.
What benefits are conferred by law on corporations? Why would personas wish to
conduct business as “corporation” rather than in their individual names or as
ordinary partners? The principal benefit of the corporate structure s limited liability:
since the corporation is treated by law as a separate legal entity, and corporate
financial losses are limited to the capital or resources of the corporation. If the
corporation is successful, those who own it may distribute the profits to
themselves; if it is unsuccessful, they lose only the capital invested in the
corporation, but none of their personal assets. This feature or corporate status,
Americans believe, benefits not only corporate ownesr,s but all of society: freed of
the fear that business failure will bankrupt them, more people will enter business
and expand jobs and wealth for all of society.
Other benefis or corporate status include ease of management of the business and
ease of transfer of ownership. An incorporator may sell his share in the corporation
to a new investor who will take his place in the corporation, This easy transferability
of “shares” (also called “stock”) allows individual “shareholders” to invest without
undue fear that their money will be “locked” into the business until the entire
business is completed or liquidated. The corporation carries on its separate
existence, even as individual shareholdes enter and leave the corporation. Once
again, Americans believe that a public purpose is served: more people will invest in
corporations, thus providing capital for business ventures, if they can be assured
that they can sell their stock when they need to do so.
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Shareholdes participate in the management of the corporation primarily by electing
the “board of directors,” a small body of personas who control the corporations’
activities. One elected, each director is independent from the shareholders. The
board of directors will usually hire “officers” and other employees who will actually
conduct the corporation’s business along the lines established by te director’s
policies. The board of directors and the officers compromise the “management” of
the corporation. This structure, similar to republican government, separates
ownership (the shareholders) from management (the directors and officers) and
calls on the management to exercise its independent business judgment – but to
do so on behalf of the shareholders.
“Shareholder democracy” does not give each shareholder an exact equal vote, but
it does give an equally weighted vote. A shareholder’s vote is proportionale to the
shares he owns in the corporation, thus giving each shareholder a voice
proportionale to the investment (and thus risk of loss) that he has in the
corporation. As in political elections, some shareholder may have no voice in the
board of directors because their candidate has lost in the corporate election
process. Yet there are two safeguards for such shareholders. First, the directors
must act for the corporate interest, the interest of all shareholers, not in their
personal interest. Secondo, all shareholders receive proportionately equal shares
of profits, even if they are not represented on the board of directors. As a practical
matter in most large corporations the voting influence or individual shareholders is
small, and a shareholder participates in the corporation primarily by passively
receiving his share of corporate profits.
Ownership of corporate shares is now widespread in the United States.
Approximately 25% of Americans own stock directly as individuals; several million
more owns stock indirectly, through participation in stock-owning “funds”. The
funds, such as retirement funds that hold stock to benefit persons later in life or
mutual funds that group together the money of small investors, provide a
mechanism by which those without time or sophistication to follow the stock market
may participate in the benefits of stock ownership.
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