Amicus Curiae Brief — Walters v. National Assn. of Radiation Survivors

G)) FILED

: FEB 13 1985

Case No. 84-571

DER L STEVASs

SUPREME COURT OF THE UNITED yore

CLERK

October Term 1984

HARRY N. WALTERS, Administrator of the

Veterans Administration, et ale,

Appellants,

VSe

NATIONAL ASSOCIATION OF RADIATION

SURVIVORS, 2a California non-profit

corporation, et Ble,

Appellees,

and THE AMERICAN G.I. FORUM, 2@ National

non-profit corporation,

Intervenor-Appellee.

On Direct Appeal from

The United States District Court for

The Northern District of California

Amicus Curise Brief of Andrew Groza

In Support of Appellee

JAMES JOSEPH LYNCH, JR.

Attorney at Law

P.O. Box 15766

Sacramento, CA 95852

(916) 924-9382

Attorney for

Amicus Curiae

ANDREK GROZA

an,

Case No. 84-571

SUPREME COURT OF THE UNITED STATES

October Term i984

HARRY N. WALTERS, Administrator of the

Veterans Administration, et al.,

Appellants,

VSe

NATIONAL ASSOCIATION OF RADIATION

SURVIVORS, a California non-profit

corporation, et ale»,

Appellees,

and THE AMERICAN G.I. FORUM, a National

non-profit corporation,

Intervenor-Appellee.

On Direct Appeal from

The United States District Court for

The Northern District of Celifornia

Amicus “urise Brief of Andrew Groza

In Support of Appellee

JAMES JOSEPH LYNCH, JR.

Attorney at Law

P.O. Box 15766

Sacramento, CA 95852

(916) 924-9382

Attorney for

Amicus Curize

ANDREW GROZA

Table of Contents

Table of Contents «+ + «+ «+ «© #¢ # «

Table of Authorities «+ «+ + «+ + « (ii)

INTEREST OF AMICUS CURTAE

° J e

SUMMARY OF ARGUMENT . + + + © @ ¢@

ARGUMENT « «© © © © © © © © © @ *

I

Il

IV

CONCLUSION .

STARE DECISIS IS NOT CONTROLLING

STANDARDS OF CONSTITUTIONAL

CONSTRUCTION « «+ «© © © © @ *

VETERANS’ HAVE A FIRST AMEND-

MENT RIGHT TO REDRESS GRIEVANCES

38 U.S.C. 3404(c) IMPERMISSIBLY

INHIBITS A VETERAN’S CHOXCE OF

COUNSEL . . . . a J e . e ® °

>

2

*

bd

*

-

dl

7

*

7

SIGNATURE ° ° ° ° ° * . * J e *

FOOTNOTES «+ + + + © © © © @ © @ *

APPENDIX

MAGNA CHARTA OF 1215

(i)

Table of Authorities

CASES

Adams vs. Storey

1 Paine (U.S) 79>,

i Fed.Case. p@a 66 (1817) 7

Bank of United States vs- Deveaux

5 Cranch (9 U.S.) 61,

3 L.Ed. 38 (1809) 7

Barton ve Geiler,

108 U.S. 161, 2 S.Ct. 387,

27 L.Ed. 687 é

Brotherhood of R:Te ve Yirginia

377 U.Ss 1, 94 S.Ct. 1113, 12 L.Ed.

2d B89, 11 AwL«ReBd 1196 (1964) 9

utz ve Economou,

438 U.S. 478, 98 S.Ct. 2894,

57 L.Ed.2d 895 (1978) 22

California Motor Transportation Ca»

ve Trucking Unlimited,

404 U.S. 508, 92 S.Ct. 409,

30 L.Ed.2d 642 (1972) 9

Dred Scett vy» Sanford

60 U.S. (19 How.) 393,

15 L.Ed. 691 (1857) 22

Eastern RR. Presidents Conf. ve

Noerr Motors Ereight

365 U.S. 127, 81 S.Ct. 523,

5 L.Ed.2d 464 (1961) 9

Gendron v+ Levi

423 U.S. 802, 96 S.Cte P>

46 L.Ed.2d 23 (1975) 5

(ii)

Motors Corp. v» City of New York

501 F.2d 639 (2nd Cire, 1974) 15

ve Ogden

22 U.S- (9 Weat.?) 1,

6 L.Ed. 23 (1824) 8

Goldberg ye

Kelly

397 U.S. 254, 90 S.Ct. 1011,

25 L.Ed.2d 287 (1970) 12, 13, 16, 17

ve Veterans” inist

415 U.S. 391, 94 SeCte. 1177,

39 L.Ed.2d 412 (1974) 9

ve Lowers

305 U.S. 85, 59 S.Ct. 31,

83 L.Ed. 56 (1938) 17

ve VeAs

444 F.2d 192 (3rc Cire, 1971) 17

v» United States,

352 F. Supp. 175 (S.D. Oh. 1972),

afm’d w/o op. 477 F.2d 690

(6th Cir.), cert. dem.

414 U.S. 1023 (1973) 21

Tool Co. vy» Transworld Airlines»

409 U.S. 363, 93 S.Ct. 647,

34 L.Ed.2d 577 21

+ Wright,

430 U.S 651, 97 S.Ct. 1401,

Si L.Ed.2d 711 (1977) 19

vy» Robison

415 U.S. 361, 94 S-Ct. 1160,

39 L.Ed.2d 389 (1974) 9, 13, 14

Locke yS+ New Orleans

4 Wall (71 U.S.) 172,

18 L.Ed. 482 (1866) 8

(iii)

’ BEST AVAILABLE COPY

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

Lunch v» States,

292 U.S. 571, 54 S.Ct. 840,

78 L.Ed. 1434 (1934)

Margolin v. United States

269 U.S. 93, 46 S.Ct. 64,

70 L.Ed. 176 (1925)

Mathews v» Eldrige

424 U.S. 319, 96 S.Ct. 893,

47 L.Ed.2d4 18 (1973)

NAACP ve ’

371 U.S. 415, 83 S.Ct. 328,

9 L.Ed.2d 405 (1963)

NeL RB. vs Johnson

310 F.2d 550 (éth Cir., 1962)

ton vs. New York.

445 U.S. 573, 100 S.Ct. 1371,

63 L.Ed.2d 639 (1983)

v>+ Perales

402 U.S. 389, 91 S.Ct. 1420,

28 L.Ed.2d 842 (1971)

Rosen vs Walters

719 F.2d 1422 (9th Cir., 1983)

weiker vy. McClure,

456 U.S. 188, 102 S.Ct. 1665,

72 LeEd.2d 1 (1982)

Tuler yv-» Campbell,

106 U.S. 322, 1 S.Ct. 293,

27 L.Ed. 162 (18 )

United States vs. Block

4 Sawy (U.S.) 211,

24 Fed.Cas. 14,609 (1877)

(iv)

17

17

12

16

16

21

19

States ys. Boyer

85 F. 425 (1898)

United States vs»

Classic

313 U.S. 299, 61 S.Ct. 1031,

65 L.Ed. 1368

United States vs. Harris

1 Abb. (U.S.) 110,

26 Fed.Cas. 15,312

States y+ Kras,»

409 U.S. 434, 93 S.Ct. 631,

34 L.Ed.2d 621

United tes vy» Mendoza

se U.S. Tn 104 S.Ct. 568,

78 L.Ed.2d 379 (1984)

States v. Pierce Freight Lines

327 U.S. 515, 66 S.Ct. 687,

90 L.Ed. 821 (1946)

ye St

Oil Co.

136 F.Supp. 345 (SeDeNeVos 1955)

Camera Corps v+ Neb» R-Be

340 U.S. 474, 71 S.Ct. 454,

95 L.Ed. 456 (1750)

ie Bank. vs. Eenno

8 Wall (75 U.S.) 533,

19 L.Ed. 482 (1869)

Wolff v» McDonald,

418 U.S. 539, 94 S.Ct. 2963,

41 L.Ed.2d 935 (1974)

Wright yv- United St

302 U.S. 583, 58 S.Ct. 395,

82 L.Ed. 439 .(1938)

Cy)

22

21

16

15

16

i8

UNITED STATES CONSTITUTION

Preamble

Article I, 49 & 4 10

ist Amendment 3, 4, 8, 10, 12,

Sth Amendment 13,

6th Amendment

Bth Amendment

9th Amendment

10th Amendment

UNITED STATES CODES

5 U.S.C. @ 8591, et seq.

& 1004(d)

i8 U.S.C. 44 201 - 218

22 U.S.C. & 801, et seq.

38 U.S.C. @ 10142) & (8)

4 211¢a) 2»

& 211¢b)

@ 3404(c) 2, 3, S, 11-13,

42 U.S.C. & 401, et seq,

4 1651, et seq.

4 1751, et seq.

(vi)

10

10

CODE OF FEDERAL REGULATIONS

20 CFR 404.975 and .976 (1979) 13

CODES OF PROFESSIONAL RESPONSIBILITY

American Bar Association, DR 5-101 15

DR 5-107 i5

DR 7-102 17

DR 9-101¢A) 15

DR 9-101¢(C) 15

California, Rule 2-110¢1), (2) i8

HISTORICAL DOCUMENTS

Maane Carta (1215) 3, 9, 10, 21, 22,

Appendix

MISCELLANEOUS

Davis, K.

Administrative Law Text, 4 28.04. 2i

Davis, K

Administrative Law Text 2nd, 21

Encylopedia Britannica,

Volumnm 14 (1971) 22

Farrand, Max., The Records of the

Federal Convention, Vol 4 22

Hamilton, The Federalist Papers,

No. €4 22

Howard, A.E. Dick, MAGNA CARTA, Text

and Commentary Appendix

(vii)

McKechnie, William Sherp.

Maqna Carta. A Commentary on

the Great Charter of King John 22

Schwartz, Bernard, —

The Bill of Rights: A Documentary

History. Volumn I, pp 21 22

United States Senate Document # 92-82

(1973) The Constitution of the

United States of America; Analysis

and Interpretation 10

United States Attorney General,

Opinions Of (Volumnm 5) (1852) 8

U.S. Supreme Court Digest (L.Ed.)

Vol. 2 Appeal & Error 4 910.8 21

West’ California Annotated Codes,

Constitution, Volumn 3 22

(viii)

Case No. 84-571

SUPREME COURT OF THE UNITED STATES

October Term 1984

HAFRY N. WALTERS, Administrator of the

Veterans Administration, et al.»

Appellants

VS

NATIONAL ASSOCIATION OF RADIATION

SURVIVORS, et ale,» Appellee,

and THE AMERICAN G.I. FORUM, etc.,

Intervenor~-Appellee,.

On Girect Appeal from

The United States District Court for

The Northern District of California

Amicus Curiae Brief of ANDREW GROZA

In Support of Appellee

INTEREST OF AMICUS CURIAE

Amicus curisze, Andrew Groza, is a

veteran of World War II within the mean-

ing of 38 U.S.C. 4 10142) & (8), by vir-

tue of active military service from June

19, 1943 to July 8, 1944,

Appellant found that he had a disa-

AMICUS CURIAE BRIEF, page 1.

bility based on a heart condition, but

that it was not service connected.

Amicus Curiae brought a suit in the

United States District Court for the

Eastern District of California, Groza yv.

The Veterans’ Administrator, et al., #

Civ. S-82-679-MLS, alleging, inter alia,

thet the decision was arbitrary and ca-

pricious, not supported by the evidence,

active concealment of military records

and challenging the Constitutionality of

38 U.S.C. 4 211¢(a) and 4 3404(c). Defen-

dants brought motions on the pleadings

which were granted and the action dis-

missed with prejudice. micus curise

appealed. United States Court of Ap-

peals, Ninth Circuit, No. 84-1783. That

case was heard on oral arqument on De-

cember 14, 1984, and is mow pending.

The decision of this court may be

determinative as to the constitutionali-

ty of 38 U.S.C. 4& 3404(c).

AMICUS CURIAE BRIEF, page 2.

SUMMARY OF ARGUMENT

1. Stare decisis does not control

constitutional issues}; widespread prac-

tice cannot shield conduct from scruti-

m4} decisions in this court sere sparse,

and in one case without opinion; this

court should re-examine the matter,

2. The constitution is construed as

other legal instruments} each word and

phrase must be given meaning; meaning is

derived from the intent of framers;

where two meaninas are possible, the one

which gives effect to the provision is

preferred over one which would defeat

the purpose of the provision,

3. Veterans have a First Amendment

Right to petition for the redresss of

erievances which can be traced back to

rights found in the magna charta, and

includes the right to defend their pro-

perty interest in a@ pension.

4. Section 3404(c) is in violation

AMICUS CURIAE BRIEF, page 3.

of a right constitutionally delegated to

the Veteran; it impermissibly impairs

ist Amendment Rights; it violates equal

protection of the laws; the government

has an unfair advantage because it has a

lawyer; the United St-v.es Attorney can-

not represent two parties; the govern-

ment can show no compelling justifica-

tion for the restriction in light cf the

experience of other agencies.

Conclusion. Based upon the forego-

ine, this court shovld affirm National

Rediation Survivors vy. Walters, United

States District Court for the Northern

District of California, # C-83-1861-MHP,

and remand for further proceedings.

ARGUMENT

I

STARE DECISIS IS NOT CONTROLLING

Neither the doctrine of collateral

estoppel nor stare decisis, has been an

absolute bar to litigating constitution-

AMICUS CURIAE BRIEF, page 4.

al issves affecting broad, important

social issues. Generally, United States

v+ Mendoza, --- U.S. ---, 104 S.Ct. 568,

574, 78 L.Ed.2d 379, 386-387 (1984).

This court has recognized that even

longstanding widespread practice is not

immune from scrutiny. EsQe» Payton ve

New York, 445 U.S. 573, 100 S.Ct. 1371,

63 L.Ed.2d 639 (1983) (Finding warrant-

less arrests in a@ home unconstitutional

notwithstanding practice in 23 states).

Gendrom v» Levis, 423 U.S. 802, 96

S.Ct. 9, 46 L.Ed.-2d 23 (1975) is the

last case on this issve in this Court

and it was a per curiam decision without

opinion affirming an appeal on a

challenge to 38 U.S.C. & 3404(c).

However, this court has cautioned that

per curium decisions are often mo more

than decisions on the facts and ought

not to be considered binding on lower

courts in the absence of an opinion.

AMICUS CURIAE BRIEF, page 5.

Tyler ve Campbell, 1046 U.S. 322, 1 S.Ct.

293, 27 L.Ed. 1623 Barton vy. Geiler, 108

U.S. 161, 2 S.Ct. 387, 27 L.Ed. 687.

This Court has never held 38 U.S.C.

& 211¢a) constitutional. In Lymch ve U-

mnited States, 292 U.S. 571, 54 S.Ct.

B40, 78 Le-Ed. 1434 (1934) this court

only found, in obitur dicta, that it was

not relevant to the issues presented,

Therefore, the issve before the

court is ripe for re-examination on the

basis of the historical quarantees and

protections afforded by the constitu-

tion, giving weight to the intent of the

framers and the source of our liberties

as defined and expounded in the Magna

Charta of 1215.

II

STANDARDS OF CONSTITUTIONAL

CONSTRUCTION

In the solution of constitutional

questions the same rule of interpreta-

AMICUS CURIAE BRIEF, page 4,

tion, and sources of judicial informa-

tion, may be resorted to as in the con-

struction of statutes and other § instru-

ments granting power. Adams ve Storey, 1

Paine. (U.S.) 79, 1 Fed. Cas. page 141,

145 (1817). The constitution and the law

are to be expounded without leaning one

way or the other, according to those

general principles which usually govern

the construction of fundamental or

other laws. Bank of the United States vy.

Deveaux, 5 Cranch (9 U.S.) 61, 85, 3

L.Ed. 38 (1809). No word or clause can

be rejected as superfluous or unmeaning,

but each must be given its due force and

appropriate meaning, Wright ve United

States, 302 U.S. 583, 588, 58 S.Ct. 395,

82 L.eEd. 439 (1938). Words and terms are

to be taken in the sense they were used

and understood at common law and at the

time the constitution and the amendments

were adopted. Veazie Bank y+ Femno, 8

AMICUS CURIAE BRIEF, page 7.

Wall (75 U.S.) 533, S542, 19 L.Ed.482

(1869); Locke v» New Orleans, 4 Wall (71

U.S.) 172, 18 L-Ed. 334 (1866)3 Gibbons

vy» Ogden, 9 Weat.e. (22 U.S.) 1, 188-189,

6 L.Ed. 23 (1824)3 United States v- Har-

ris, 1 Abb. (U.S.) 110, 26 Fed. Ca. No.

15, 312 (1844)$ United States vy.» Block,

4 Sawy. (Ue«S.) 211, 24 Fed.Cas. 14,609

(1877); Pardoning Power of the Presi-

dent, S Opinion U.S. Atty. Gen. 532, 535

(1852). Where there are several possible

meanings of the words of the constitu-

tion, that meaning which will defeat

rather than effectuate the constitution-

al purpose cannot rightly be preferred,

United States vy. Classic, 313 U.S. 299,

3146, 61 S.Ct. 1031, 85 L.Ed. 1368.

IitI

VETERANS’ HAVE A FIRST AMENDMENT

RIGHT TO REDRESS GRIEVANCES

ist Amendment rights have always

been recoaqnized as embracing the right

AMICUS CUKIAE BRIEF, page 8.

of access to administrative agencies and

demand for am exercise by the government

of its powers in furtherance of the in-

terest and prosperity of the petitioner,

Eastern RR. Presidents Conf. ve Noerr

Motors Frei ht, 365 U.S. 127, 137, 81

§.Ct. 523, 5S L-Ed.2d 464 (19461); Cali-

fornia Motor Trams. Coe ve Trucking Un-

limited, 404 U.S. 508, 510 (1972)3 NAA-

CP ve Button, 371 U.S. 415, 83 S.Ct.

328, 9% L.Ed.2d 405 (1963)3 Brotherhood

of R«Ts ve Virginia, 377 U.S. 1, 5-7, 94

S.Ct. 1113, 12 L.Ed.2d 89, 11 AWL.R.3d

1196 (1964). Generally, Johnson ve Robi-

som, 415 U.S. 361, 346fn-B, 974 S.Ct.

11460, 39 L.Ed.2d 389 (1974)3 Hernandez

v+ Veterans Administration, 45 U.S. 391,

94 S.Ct. 1177, 39 L.Ed.2d 412 (1974).

Veterans’ Rights were expressly

recognized in the Magna Charter of

1215, to include benefit rights. Magna

Charta, Article 2 (Benefits), appendix

AMICUS CURTAE BRIEF, page 9.

Pe 63 Art. 16 (Excessive Service), ap-

pendix p. 103 Arte. 61 (Right of Review),

appendix, pep. 20. The Magna Charter is

recognized as the antecedent of ist A-

mendment Rights. U.S. Senate Document #

92-82 (1974) The Constitution of the

United States of America; Analysis and

Interpretation, page 1030ff,.

The pension scheme enacted is not a

mere gratuity, but the just compensation

for the permanent taking of ~a veteran’s

ability to work which the Sth and 13th

Amendment demands, and is constructively

a form of worker’s compensation. E.Q-s>

5S U.S.C. @ 8501, et seq} 22 U.S.C. & 801

et seq.}; 42 U.S.C. @ 401, et seqe, &

1651, et seq and 1751, et seq,

Given the foregoing ist Amendment

and Magna Charta history, Veterans have

@ right to judicial review of decisions

affecting their pensions.

AMICUS CURIAE BRIEF, page 10,

IV

38 U.S.C. &@ 3404(c) IMPERMISSIBLY

INHIBITS A VETERAN’S CHOICE OF COUNSEL

The United States Constitution pro-

vides in relvant part?

The enumeration in the Con-

stitution, of certain rights,

shall not be construed to deny or

disparage others retained by the

people.

9th Amendment. And,

The powers not deleagsted to

the United Staies by the Consti-

tution, mor prohibited by it to

the States, are reserved to the

States respectively or to the

people.

10th Amendment.

The Coristitution does not delegate

to the national government the right to

determine who may or may not have coun-

sel. Indeed, the right to retain counsel

hes been expressly reserved to the accu-

sed in criminal prosecutions. 6th Amend-

ment. Reading the 9th and 10th Amend-

ments in pari materia, the right to re-

tain counsel of one’s own choice remains

AMICUS CURIAE BRIEF, page 11.

with the People,” unless the Government

show a compelling justification for

Generally,

83 S.Ct.

curtailment.

NAACP vs

Button, 371 U.S.

L.Ed.2d 405 (1963).

While this court has never required

adminis~

the appointment of counsel in

trative hearinas, it has held that the

right to retain counsel an adminis-

trative earine is an important and ne-

legitimate

Goldberg

90 S.Ct.

cessary right in protecting

claims against the government.

ve Kelly, 397 U.S. 254,

25 L.Ed.«2d 287 (1970). Stated otherwise,

impediment to the acquisition of

counsel would unduly restrict ist Amend-

ment Riqhts. In the context of the czse

at bench, 4 3404(c) unduly restricts 2

Anendment

Veteran’s exercise

Right to redress grievances predicated

om denial of pension rights thea’

have, and is therefore unconstitutional.

AMICUS CURIAE BRIEF, page 12.

Alternatively and cummulatively,

there is implied in the due process

clause of the Sth Amendment a right to

equal protection of the law (Johnson,

supra, 415 UsS+e, at 364fn4).

In Goldberg ve Kelly, supra, 397

U.S. at 269-270, 90 S.Ct. 1011, 25 Le-

Ed.2d 287 this Court rejected the notion

that mere desire to protect the public

purse was sufficient to override the

individuals meed for due process of law

and the Assistance of Counsel im Social

Security Cases. Social Security Cases

have required the assistance of counsel

with reasonable compensation ever since

with mo apparent ill effects. 20 CFR

404.975 and .9746 (1979). That Veterans

who have defended the very concept of

due process should have less rights than

those accorded welfare recepients whose

benefits are unrelated to service in

defense of their country smacks of a

AMICUS CURIAE BRIEF, page 13.

denial of equal protection of the laws

(Johnson, supra, 415 U.Se, at 364fn4),

or denial of due process of law for not

being rationally related to furthering a

legitimate governmental object, vis se-

curing @ just result free from arbitrary

and capricious decision making. Johnson,

supra, 415 U.S., at 374-375.

Moreover, the practice is offensive

to procedural notions of a fair hearing

quaranteed under the Sth Amendment. The

Administrator has the right to Counsel,

and may refer questions of law to his

legal advisor. 38 U.S.C. @ 211¢b),.

It is, therefore, unfair to re-

strict compensation in a manner which

prevents a Veteran from retaining coun-

sel of his own because it is most cer-

tain that om questions of law, the Ad-

ministrator will give areater weight to

the opinion of a trained lawyer before

he listens to a Veteran untrained in

AMICUS CURIAE BRIEF, page 14,

law and unaided by counsel, thus relega-

tine him to the acceptance of whatever

opinions adverse counsel has. Such a sys-

tem is inherently unfair in violation of

the Sth Amendment due process clause,

Moreover, the Attorney General can-

not effectively, or ethically, represent

both parties. All lawyers have a duty of

loyaity. American Bar Association, Code

of Professional Responsiblity CABA, CPRI

DR 5-101 to DR 5-107. E.@., General Mo-

tors Corp ve» City of New York, 501 F.2d

639 (2nd Cir., 1974)$ United States vy.

Standard Oil Co., 136 F. Supp. 345 (S.-

D.N.Y., 1955). ABA, CPR, DR 9-101(A)$ DR

9-101(C). See, 18 U.S.C. 44 201-218 (fe-

deral anti-conflict of interest law).

The need for legal assistance can-

not be overstated, Appellants do not

make a factual showing that medical per-

sonnel are not used as a part of the

decision making process as alleged by

AMICUS CURIAE BRIEF, page 15.

Amicus Curige in the Courts below.

A fundamental rule of administra-

tive agency law is that an administra-

tive agency must confine itself to the

record before it and afford an opportu-

nity to make a showing contrary to which

judicial notice has been taken. 5 U.S.C.

4 1006(d). NeL-Re-Be ve Johnson, 310 F.2d

550 (6th Cire, 1962)3 United States y.

Pierce Freight Lines, 327 U.S. 515, 64

S.Ct. 687, 90 L.Ed. 8213 Universal Ca-

mera Corpes ve NebeRe Ber 340 US 474,

71 S.Ct. 456, 95 L.Ed. 456 (1951)$ Gold-

berg vs Kelly, 397 U.S. 254, 970 S.Ct.

1011, 25 L-Ed.2d 287 (1970).

Without the assistance cf counsel,

it is clear that the Board, through one

of its panel members, can take judicial

notice of matters without affording the

Veteran an opportunity to "“cross-ex-

amine. Cf-, Richardson y- Perales, 402

U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d

AMICUS CURIAE BRIEF, page 164.

842 (1971), with Mathews vy. Eldrige, 424

U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18

(1973). It is clear that an attorney can

recommend, and select, where appropri-

ate, the right expert to assist the ve-

teran in making @ record, and curtail

the utilization of an expert not subject

to cross-examination. Goldberg, supra,

397 U+sSe, at 269-270.

The chief grounds Appellants can

muster in defense of 4 3404(c) is that

it discourages the promotion of invalid

Claims. Margolin vy. United States, 249

UsS» 973, 46 S.Ct. 64, 70 L.Ed. 176

(1925); es ve» Lowry, 305 U.S. 85, 59

S.Ct. 31, 83 L.Ed. 56 (1938)3 Hoffmaster

Ve VeAss 444 F.2d 192 (3rd Cir., 1971).

There is no evidence that has been the

experience is Social Security Cases.

Moreover, attorney’s have ABA and State

Ethical Standards which prevent advoca-

tine frivolous claims. ABA, CPR, DR 7-

AMICUS CURIAE BRIEF, page 17,

102(A)(1), (2)$ California Rules of Pro-

fessional Responsibility, Rule 2-110(1),

(2). There is no evidence that the per-

sons chosen by Congress have ethical

standards.” In view of potential for

conflicts of interest inherent in having

office furniture provided by Appellant,

lack of legal training, and no compensa-

tion, the opposite is true. And it is

conceivable meritorious claims will be

lost for lack of competent counsel.

Appellant would also reduce Veter-

ans who have defended the concept of due

process of law to the status of convict-

ed felons and school childrens Appel-

lant’s Brief, pp.» 26 - 28. However, this

court has recognized that convicted fe-

lons have a substantially reduced 1li-

berty interest protected only by the 8th

Amendment. Wolff ve McDonnell, 418 U.S.

539, 569-570, 94 S.Ct. 2963, 41 L.Ed.2d

435 (1974). Therefore, denial of counsel

AMICUS CURIAE BRIEF, page 18,

to convicted felons is mot a legal ba-

sis for denying counsel to Veterans.

Similarly, this Court recognized

that at common law, school children had

substantially less due process rights

than others and was unwilling to change

the common law. Ingraham ve Wright, 430

UsS-+ 651, 97 S.Ct. 1401, Si L.Ed.2d 711

(1977). At common law, Veterans had sub-

stantial due process rights regarding

their pensions, supra Point III. There-

fore, denial of counsel to school chil-

dren is not a legal basis for denying

counsel to Veterans,

A third type of case cited by Ap-

pellant, Schwiker v- McClure, 456 U.S.

i188, is not about the right to counsel,

but hearing officer qualifications,

Hence, that case affords mo legal justi-

fication for the denial of counsel,

CONCLUSION

In view of the foregoing arquments,

AMICUS CURTAE BRIEF, page 19.

thie court should find that the restric-

tion on compensating counsel are uncon-

stitutional because it constitutes ei-

ther a denial of rights retained by the

Feople, an wnreasonable restraint or

inhibition on ist Amendment Petition

Riahts, 2a denial of due process of law,

or a denial of equal protection of the

laws, that the government has not sus-

tained its burden of proving a compel-

ling governmental justification, affirm

the decision of the District Court and

remand for further proceedings mot in-

consistent with this Court’s decision.

P.O. Box 15766

Sacramento, CA 95852

(916) 924-9382

Attorney for Amicus Curizse

In Support of Appellee

Footnotes:

1. Rosen ve Walters, 719 F.2d 1422 (9th

AMICUS CURIAE BRIEF, page 20.

Cir.s, 1983) did not address the ist A-

mendment riaghts to petition or trace its

history first found in the Magna Carta.

Holly ve United States, 352 F. Supp. 175

(S.D. Oh» 1972), affirmed without opin-

ion 477 F.2d 600 (6th Cir.), cert. den.

414 U.S. 1023 (1973) was not a decision

on the merits}; the court merely refused

to invoke a three judge panel as requir-

ed at the time, holding at page 176 and

citing a mumber of this Court’s deci-

sions that Congress could withhold judi-

cial review. In fact not one single case

cited by Holly supports that conclusion.

Each of this Court’s cited cases merely

construed a Statute Congress had passed

toi (1) determine whether or not con-

gress had withheld judicial review; and,

if mot, (2) what that review was to be.

In each case, this Court held that Con-

gress had not foreclosed judicial re-

view. It also cited K. Davis, Adminis-~-

trative Law Text, 4 28.04 (see now, K,.

Davis Administrative Law Text 2nd). That

treatise does not cite any ist Amendment

Right cases, or any case that Congress

has the right to withhold judicial re-

view, but does trace a history of this

Court’s retreat from a judicial philoso-

phy of no judicial review. Finally, it

is well settled that the denial of cer-

tiorari imports NO implicaton or infer-

ence concerning the court’s views of the

merits. United States v- Kras, 409 U.S.

434, 93 S.Ct. 631, 34 L.Ed.-2d 621;

Hughes Tool Co. ve Transworld Airlines,

409 U.S. 363, 93 S-Cte. 647, 34 L.Ed.2d

577. Generally, 2 U.S. Supreme Court

Digest (L.Ed.> Appeal & Error 4 910.8.

2. A true copy is set out im the ap-

pendix. Reissue Charters vary in text,

however the following resources have

AMICUS CURIAE BRIEF, page 21.

preserved the original text! McKechnie,

William Sharpe, Magna Carta; A Commen-

tary on the Great Charter of King John.

Schwartz, Bernara, The Bill of Rights! A

Documentary History, Volumn 1, page <1}

14 Encyclopedia Britannica (1971), page

5783; West’s Annotated California Codes,

Constitution, Volumn 3, page 759.

3. The Preamble does not create any sub-

tantive rights, but it does define for

whom the rights were created. United

States vs. Boyer, 85 F. 425 (1898). It

has always been recoaqnized as reposing

sovereianty in the People. Hamilton,

The Federalist Papers, No. 84, Dred

Scott vs. Sanford, 60 U.S. (19 How.)

404, 15 L.Ed. 691. See also, U.S. Con-

stitution, Art. I, & 9% and @10, a-~

bolishing nobility, and, inferentially,

abolishing common law concepts of so-

vereianty. Farrand, Max, The Constitu-

tional Debates, Volumn 4, pages 29 - 33.

4. This Court has held that protection

from deprivation of federally protected

rights is the same whether the conduct

involves state or federal action. Gener-

ally, Butz ve Economow, 438 U.S. 478, 78

S.Ct. 2894, 57 L.Ed.2d 895 (1978).

5S. It appears that Disabled American

Veterans has breached a duty of loyalty

to arque in its Brief that members ought

not to have the right to retain counsel

of their choice. There is no showing of

an organizational vote. The short answer

to the DAV is that retained counsel

shifts advocacy costs from DAV, support-

ed by appellant, to the Veteran only if

the Veteran so chooses, and it gives the

Veteran the opportunity to discover mal-

practice in the representation.

AMICUS CURIAE BRIEF, page 22,

i lads F.

ae A.E.DICK HOWARD

; AGNA CARTA

oT AND COMMENTARY

A

a

r

~

owe

“ vy?

*. ‘

§: bens, -Mead

7 a s

-RsitY OF

CON

UNIVE

McGEORGE

> te

; A

- 5 oe

‘ A

te

‘ “s

, ae

: ty

‘4

‘t: ree’ ISHED FOR THE MAGNA CAKTA COMMISSION

ey

‘ 1% a" UNIVERSITY PRESS OF VIRGINIA, CHARLOTTESVILLE

rs

S. Wee

APPENDIXPG@ 4

Magna Carta Essays

CON TENTS

1 COMMENTARY

3 King John and the Barons

8 The Provisions of Magna Carta

9 Feudal relationships

12 Courts and the administration of justice

16 Abuses of local officials

18 Correction of the King’s past wrongs

18 Forest clauses

Magna Carta

Text and Commentary 18 Towns and trate

19 Debts and estates

20 Church and state

A. E. Dick Howard

Associate Professor of Law

University of Virginia

20 Security for the keeping of the Charter

21 General clauses

22 Magna Carta’s Influence

3 NOTE

363 THe Text or Macna Carta

Published for

The Magna Carta

Commission The University Press of Virginia

of Virginia Charlottesville

53 BIBLIOGRAPHICAL NOTE

APPEND! y PG 2 APPENDIX PG @ 9

33

Joun, by the grace of God, King of England,

Lord of Ireland, Duke of Normandy and

Aquitaine, ana Count of Anjou: To the Arch-

bishops, Bishops, Abbots, Earls, Barons, Jus-

ticiaries, Foresters, Sheriffs, Reeves, Ministers,

and all Bailifis and others, his faithful sub-

jects, Greeting. Know ye that in the presence of

God, and for the health of Our soul, and the

souls of Our ancestors and heirs, to the honor

of God, and the exaltation of Holy Church,

and amendment of Our kingdom, by the advice

of Our reverend Fathers, Stephen, Archbishop

of Canterbury, Primate of all England, and

Cardinal of the Holy Roman Church; Henry,

Archbishop of Dublin; William of London,

Peter of Winchester, Jocelin of Bath and Glas-

tonbury, Hugh of Lincoln, Walter of Worces-

APPENDIXPG @ 4

Preamble

The English

Church shal!

be free; grant

of liberties

to free men

of the

kingdom

MAGNA CARTA 34

ter, William of Coventry, and Benedict of

Rochester, Bishops; Master Pandulph, the

Pope’s subdeacon and familiar; Brother Ay-

meric, Master of the Knights of the Te.nple in

England; and the noble persons, William Mar-

shal, Earl of Pembroke; William, Earl of Sal-

isbury; William, Earl of Warren; William,

Earl of Arundel; Alan de Galloway, Con-

stable of Scotland; Warin Fitz-Gerald, Peter

Fitz-Herbert, Hubert de Burgh, Seneschal of

Poitou, Hugh de Neville, Matthew Fitz-Her-

bert, Thomas Basset, Alan Basset, Philip Dau-

beny, Robert de Roppelay, John Marshal, John

Fitz-Hugh, and others, Our liegemen:

1 We have, in the first place, granted to God,

and by this Our present Charter confirmed for

Us and Our heirs forever-That the English

Church shall be free and enjoy her rights in

their integrity and her liberties untouched. And

that We will this so to be observed appears

from the fact that We of Our own free will,

before the outbreak of the dissensions between

Us and Our barons, granted, confirmed, and

procured to be confirmed by Pope Innocent III

the freedom of elections, which is considered

most important and necessary to the English

Church, which Charter We will both keep

Ourself and will it to be kept with good faith

by Our heirs forever. We have also granted to

all the free men of Our kingdom, for Us and

Our heirs forever, all the liberties underwrit-

ten, to have and to hold to them and their

heirs of Us and Our heirs. [pp. 20, 21]

APPENDIx PG @ 5

THE TEXT 35

2 If any of Our earls, barons, or others who

hold of Us in chief by knight’s service shall

die, and at the time of his death his heir shall

be of full age and owe a relief, he shall have

his inheritance by ancient relief; to wit, the

heir or heirs of an earl of an entire earl’s

barony, £100; the heir or heirs of a baron of an

entire barony, £100; the heir or heirs of a

knight of an entire knight’s fee, 100s. at the

most; and he that owes less shall give less,

according to the ancient custom of fees. [p. 10]

3 If, however, any such heir shall be under

age and in ward, he shall, when he comes of

age, have his inheritance without relief or fine.

[p. 10]

4 The guardian of the land of any heir thus

under age shall take therefrom only reasonable

issues, customs, and services, without destruc-

tion or waste of men or property; and if We

shall have committed the wardship of any such

land to the sheriff or any other person answer-

able to Us for the issues thereof, and he com-

mit destruction or waste, We will take an

amends from him, and the land shall be com-

mitted to two lawful and discreet men of that

_ fee, who shall be answerable for the issues to

Us or to whomsoever We shall have assigned

them. And if We shall give or sell the ward-

ship of any such land to anyone, and he commit

destruction or waste upon it, he shall lose the

wardship, which shall be committed to two

lawful and discreet men of that fee, who shall,

APPENDIy PG 6

Reliefs

for inheritance

Duties

of

guardians

Heir under

age Marriage

of heirs

Rights of ,

Rights of

wares widows

emarriage

of widows

MAGNA CARTA 36

in like manner, be answerable unto Us as has

been aforesaid. [p. 10]

5 The guardian, so long as he shall have the

custody of the land, shall keep up and maintain

the houses, parks, fishponds, pools, mills, and

other things pertaining thereto, out of the

issues of the same, and shall restore the whole

to the heir when he comes of age, stocked with

ploughs and tillage, according as the season

may require and the issues of the land can

reasonably bear. [p. 10]

6 Heirs shall be married without loss of sta-

tion, and the marriage shall be made known to

the heir’s nearest of kin before it be contracted.

(p. 11]

7 <A widow, after the death of her husband,

shall immediately and without difficulty have

her marriage portion and inheritance. She shall

not give anything for her marriage portion,

dower, or inheritance which she and her hus-

band held on the day of his death, and she may

remain in her husband’s house for forty days

after his death, within which time her dower

shall be assigned to her. [p. 11]

8 No widow shall be compelled to marry so

long as she has a mind to live without a hus-

band, provided, however, that she give security

that she will not marry without Our assent, if

she holds of Us, or that of the lord of whom

she holds, if she holds of another. [p. 11]

APPENDIX PG m@ 7

THE TEXT 37

9 Neither We nor Our bailiffs shall seize any

land or rent for any debt so long as the debt-

or’s chattels are sufficient to discharge the

same; nor shall the debtor’s sureties be dis-

trained so long as the debtor is able to pay the

debt. If the debtor fails to pay, not having the

means to pay, then the sureties sha'] answer

the debt, and, if they desire, they shall hold

the debtor's lands and rents until they have

received satisfaction of the debt which they

have paid for him, unless the debtor can show

that he has discharged his obligation to them.

[p. 19]

*10 If anyone who has borrowed from the

Jews any sum of money, great or small, dies

before the debt has been paid, the heir shall

pay no interest on the debt so long as he re-

mains under age, of whomsoever he may hold.

If the debt shall fall into Our hands, We will

take only the principal sum named in the bond.

[p. 20]

*:1 And if any man dies indebted to the

Jews, his wife shall have her dower and pay

nothing of that debt; if the deceased leaves

children under age, they shall have necessaries

provided for them in keeping with the estate

of the deceased, and the debt shall be paid out

of the residue, saving the service due to the

deceased’s feudal lords. So shall it be done

with regard to debts owed persons other than

Jews. [p. 20]

APPENDIX PGB 8

Debtors and No aids

sureties sane b9

common

counsel

Liberties

of London

and other

towns

Interest

on debts

Calling of

council to

consent to

aids

Rights of

widows and

heirs as

against

creditors

MAGNA CARTA 38

*12 No scutage or aic shall be imposed in

Our kingdom unless by common counsel

thereof, except to ransom Our person, make

Our eldest son a knight, and once to marry Our

eldest daughter, and for these only a reason-

able aid shall be levied. So shall it be with re-

gard to aids from the City of London.

[p. 11]

13 The City of London shall have all her

ancient liberties and free customs, both by land

and water. Moreover, We will and grant that

all other cities, boroughs, towns, and ports

shall have all their liberties and free customs.

[p. 19]

*14 For obtaining the common counsel of the

kingdom concerning the assessment of aids

(other than in the three cases aforesaid) or of

scutage, We will cause to be summoned, sever-

ally by Our letters, the archbishops, bishops,

abbots, earls, and great barons; We will also

cause to be summoned, generally, by Our sher-

iffs and bailiffs, all those who hold lands di-

rectly of Us, to meet on a fixed day, but with at

least forty days’ notice, and at a fixed place.

In all letters of such summons We will explain

the cause thereof. The summons being thus

made, the business shall proceed on the day

appointed, according to the advice of those

who shall be present, even though aot all the

persons summoned have come. [p. 11]

APPENDIX PG @ g

THE TEXT 39

*15 We will not in the future grant permis-

sion to any man to levy an aid upon his a

men, except to ransom his person, make a

eldest son a knight, and once to marry s

eldest daughter, and on each of © * ~ occasions

only a reasonable aid shall be ‘ce [p. 11]

form

16 No man shall be compell » per

more service for a knight’s fe: other free

tenement than is due therefrom 11]

17. Common Pleas shall not ollow Our

Court, but shall be held in some tain place.

[p. 12]

Recognizances of novel disseisin, mort

enamel darrein presentment shall be

taken only in their proper counties, and in ye

manner: We or, if We be absent from the

realm, Our Chief Justiciary shall send two jus-

ticiaries through each county four times a ne

and they, together with four knights elect ~

out of each county by the people thereof, sha

hold the said assizes in the county court, on

the day and in the place where that court meets.

[p. 12]

19 If the said assizes cannot be held on the

day appointed, so many of the knights and free-

holders as shall have been present on that day

shall remain as will be sufficient for the admin-

istration of justice, according as the business to

be done be greater or less. [p. 13]

APPENDIX¥PG B 10

Limit on

other

lord’

aids

Knight's

fee

Justice to

be had ata

fixed place

Land dis putes

to be tried

in their

counties

Conclusion

of assizes

MAGNA CARTA 40

Fines tobe 20 A free man shall be amerced for a smal]

measured by fault only according to the measure thereof,

the offense; and for a great crime according to its magni-

livelihoods tude, saving his position; and in like manner a

notto be merchant saving his trade, and a villein saving

destroyed his tillage, if they should fall under Our mercy.

None of these amercements shall be imposed

except by the oath of honest men of the neigh-

borhood. [p. 13]

Same for 21 Earls and barons shall be amerced only

barons by their peers, and only in proportion to the

measure of the offense. [p. 13]

Same for 22 No amercement shall be imposed upon a

clergymen clerk’s lay property, except after the manner

of the other persons aforesaid, and without

regard to the walue of his ecclesiastical bene-

fice. [p. 13]

Obligations 23 No village or person shall be compelled to

to build build bridges over rivers except those bound by

bridges ancient custom and law to do so. [p. 16]

Unauthorized 24 No sheriff, constable, coroners, or other

persons not to of Our bailiffs shall hold pleas of Our Crown.

hold trials [p.15]

Ceiling on *25 All counties, hundreds, wapentakes, and

rents tithings (except Our demesne manors) shall

remain at the ancient rents, without any in-

crease. [p. 17]

THE TEXT 41

26 If anyone holding a lay fee of Us shall

die, and the sheriff or Our bailiff show Our

letters patent of summons touching the debt

due to Us from the deceased, it shall be lawful

for such sheriff or bailiff to attach and cata-

logue the chattels of the deceased found in the

lay fee to the value of that debt, as assessed by

lawful men. Nothing shall be removed there-

from until Our whole debt be paid; then the

residue shall be given up to the executors to

carry out the will of the deceased. If there be

no debt due from him to Us, all his chattels

shall remain the property of the deceased, sav-

ing to his wife and children their reasonable

shares. [p. 20]

*27 If any free man shall die intestate, his

chattels shall be distributed by his nearest kin-

folk and friends, under supervision of the

Church, saving to each creditor the debts owed

him by the deceased. [p. 20]

28 No-constable or other of Our bailiffs shall

take corn or other chattels of any man without

immediate payment, unless the seller volun-

tarily consents to postponement of payment.

[p. 17]

29 No constable shall compel any knight to

give money in lieu of castle-guard when the

knight is willing to perform it in person or (if

reasonable cause prevents him from perform-

ing it himself) by some other fit man. Further,

if We lead or send him into military service,

Debts owed

the Crown

Intestacy

Compensation

for taking

of private

property

Castle-

guard

APPENDIx PG @ J 2

No taking

of horses

without

consent

No taking

of wood

without

consent

Lands of

felons

Removal of

fishweirs

Writ of

praccipe

Uniform

weights and

measures

MAGNA CARTA 42

he shall be quit of castle-guard for the time he

shall remain in service by Our command.

[p. 17]

30 No sheriff or other of Our bailiffs, or any

other man, shall take the horses or carts of

any free man for carriage without the owner's

consent. [p. 17]

31 Neither We nor Our bailiffs will take

another man’s wood for Our castles or for any

other purpose without the owner’s consent.

(p37),

32 We will retain the lands of persons con-

victed of felony for only a year and a day, after

which they shall be restored to the lords of the

fees. [p. 12]

33 All fishweirs shall be entirely removed

from the Thames and Medway, and through-

out England, except upon the seacoast. [p. 19]

34 The writ called “praecipe” shall not in

the future issue to anyone respecting any tene-

ment if thereby a free man may not be tried in

his lord’s court. [p. 16]

35 There shall be one measure of wine

throughout Our kingdom, and one of ale, and

one measure of corn, to wit, the London quar-

ter, and one breadth of dyed cloth, russets,

and haberjets, to wit, two ells within the sel-

vages. As with measures 80 shall it also be with

weights. [p. 19]

APPENDIx PG g 1 3

THE TEXT 43

36 Henceforth nothing shall be given or

taken for a writ of inquisition upon life or

limbs, but it shall be granted gratis and not be

denied. [p. 16]

37. If anyone holds of Us by fee farm, socage,

or burgage, and also holds land of another by

knight's service, We will not by reason of that

fee farm, socage, or burgage have the ward-

ship of his heir, or the land which belongs to

another man’s fee; nor will We have the ward-

ship of such fee farm, socage, or burgage un-

less such fee farm owe knight’s service. We will

not have the wardship of any man’s heir, or the

land which he holds of another by knight's

service, by reason of any petty serjeanty which

he holds of Us by service of rendering Us

daggers, arrows, or the like. [p. 11]

38 In the future no bailiff shall upon his own

unsupported accusation put any man to trial

without producing credible witnesses to the

truth of the accusation. [p. 16]

39 No free man shall be taken, imprisoned,

disseised, outlawed, banished, or in any way

destroyed, nor will We proceed against or

prosecute him, except by the lawful judgment

of his peers and by the law of the land.

[p. 14]

40 To no one will We sell, to none will We

deny or delay, right of justice. [p. 15]

APRENDIX PG @ 14

Writs upon

life or

limbs

Crown

wardship

No man to be put

to his trial upon

unsupported

accusation

Free men

guaranteed

“law of the

land”

Guarantee of

equal justice

Free

movement for

merchants

Freedom to

leave and

reenter the

kingdom

Escheats

MAGNA CARTA 44

41 All merchants shall have safe conduct to

go and come out of and into England, and to

stay in and travel through England by land

and water for purposes of buying and selling,

free of illegal tolls, in accordance with ancient

and just customs, except, in time of war, such

merchants as are of a country at war with Us.

If any such be found in Our dominion at the

outbreak of war, they shall be attached, with-

out injury to their persons or goods, until it be

known to Us or Our Chief Justiciary how Our

merchants are being treated in the country at

war with Us, and if Our merchants be safe

there, then theirs shall be safe with Us. [p. 19]

*42 In the future it shall be lawful (except

for a short period in time of war, for the com-

mon benefit of the realm) for anyone to leave

and return to Our kingdom safely and securely

by land and water, saving his fealty to Us. Ex-

cepted are those who have been imprisoned or

outlawed according to the law of the land,

people of the country at war with Us, and

merchants, who shall be dealt with as afore-

said. [p. 19]

43 If anyone die holding of any escheat, such

as the honor of Wallingford, Nottingham,

Boulogne, Lancaster, or other escheats which

are in Our hands and are baronies, his heir

shall not give any relief or do any service to

Us other than he would owe to the baron, if

such barony had been in the hands of a baron,

and We will hold the escheat in the same man-

ner in which the baron held it. [p. 12]

APPENDIX PG @ ji 5

THE TEXT 45

44 Persons dwelling outside the forest need

not in the future come before Our justiciaries

of the forest in answer to a general summons

unless they be impleaded or are sureties for

any person or persons attached for breach of

forest laws. [p. 18]

*45 We will appoint as justiciaries, consta-

bles, sheriffs, or bailiffs only such men as know

the law of the land and will keep it well.

[p. 16]

46 All barons who have founded abbeys, evi-

denced by charters of English kings or ancient

tenure, shall, as is their due, have the wardship

of the same when vacant. [p. 12]

47 All forests which have been created in

Our time shall forthwith be disafforested. So

shall it be done with regard to rivers which

have been placed in fence in Our time. [p. 18]

*48 All evil customs concerning forests and

warrens, foresters and warreners, sheriffs and

their oficers, or riverbanks and their conserva-

tors shall be immediately inquired into in each

county by twelve sworn knights of such county,

chosen by honest men of that county, and shail

within forty days after the inquest be com-

pletely and irrevocably abolished, provided al-

ways that the matter shall have been previously

brought to Our knowledge, or that of Our

Chief Justiciary if We Ourself shall not be in

England. [p. 18]

APPENDIx PG @ 16

Forest Return of

laws hostages

Ouster of

Poitevin

Appointment only favorites

of those who

know the law

W ardship

_—— Banishment

of mercen-

aries

Forest

boundaries

Restoration

of lands

and rights

Evil

forest

customs

MAGNA CARTA 46

*49 We will immediately return all hostages

and charters delivered to Us by Englishmen as

security for the peace or for the performance

of loyal service. [p. 18]

*so We will entirely remove from their baili-

wicks the kinsmen of Gerard de Athyes, so

that henceforth they shall hold no bailiwick in

England: Engelard de Cigogné, Peter, Guy,

and Andrew de Chanceaux, Guy de Cigogné,

Geoffrey de Martigny and his brothers, Philip

Mark and his brothers, and Geoffrey his

nephew, and all their followers. [p. 18]

*s1 As soon as peace is restored, We will

banish from Our kingdom all foreign knights,

bowmen, attendants, and mercenaries, who

have come with horses and arms, to the king-

dom’s hurt. [p. 18]

*sz 1f anyone has been disseised or deprived

by Us, without the legal judgment of his peers,

of lands, castles, liberties, or rights, We will

immediately restore the same, and if any dis-

pute shall arise thereupon, the matter shall be

decided by judgment of the twenty-five barons

mentioned below in the clause for securing the

peace. With regard to all those things, however,

of which any man was disseised or deprived,

without the legal judgment of his peers, by

King Henry Our Father or Our Brother King

Richard, and which remain in Our hands or are

held by others under Our warranty, We shall

have respite during the term commonly allowed

APPENDIX PG M@ 17

THE TEXT 47

to the Crusaders, except as to those matters on

which a plea had arisen, or an inquisition had

been taken by Our command, prior to Our tak-

ing the Cross. Immedately after Our return

from Our pilgrimage, or if by chance We

should remain behind from it, We will at once

do full justice. [p. 18]

*53 Likewise, We shall have the same respite

in rendering justice with respect to the disaf-

forestation or retention of those forests which

Henry Our Father or Richard Our Brother

afforested, and to wardships of lands belonging

to another’s fee, which We hitherto have held

by reason of the fee which some person has

held of Us by knight’s service, and to abbeys

founded in another’s fee than Our own, whereto

the lord of that fee asserts his right. When We

return from Our pilgrimage, or if We remain

behind from it, We wil! forthwith do full

justice to the complainants in these matters.

[p. 18]

54 No one shall be arrested or imprisoned

upon a woman’s appeal for the death of any

person other than her husband. [p. 16]

*55 lll fines unjustly and unlawfully given

to Us, and all amercements levied unjustly and

against the law of the land, shall be entirely

remitted or the matter settled by judgment of

the twenty-five barons of whom mention is

made below in the clause for securing the peace,

or the majority of them, together with the

APPENDIy RG 18

Respite

during

Crusade

Women’s

appeals

Remission

of unlawful

fines

Restoration

of Welsh

rights

Respite

during

Crusade

MAGNA CARTA 48

aforesaid Stephen, Archbishop of Canterbury,

if he himself can be present, and any others

whom he may wish to bring with him for the

purpose; if he cannot be present, the business

shall nevertheless proceed without him. If any

one or more of the said twenty-five barons be

interested in a suit of this kind, he or they shall

be set aside, as to this particular judgment, and

another or others, elected and sworn by the

rest of the said bar-~ this occasion only,

be substituted ir vt their stead. [p. 18]

56 If We have disseised or deprived the

Welsh of lands, liberties, or other things, with-

out legal judgment of their peers, in England

or Wales, they shall immediately be restored

to them, and if a dispute shall arise thereon,

the question shall be determined in the Marches

by judgment of their peers according to the law

of England as to English tenements, the law of

Wales as to Welsh tenements, and the law of

the Marches as to tenements in the Marches.

The same shall the Welsh do to Us and Ours.

[p. 18]

*57 But with regard to all those things of

which any Welshman was disseised or deprived,

without legal judgment of his peers, by King

Henry Our Father or Our Brother King Rich-

ard, and which We hold in Our hands or others

hold under Our warranty, We shall have res-

pite during the term commonly allowed to the

Crusaders, except as to those matters whereon

a suit had arisen or an inquisition had been

APPENDly PG @ 19

THE TEXT 49

taken by Our command prior to Our taking the

Cross. Immediately after Our return from Our

pilgrimage, or if by chance We should remain

behind from it, We will do full justice accord-

ing to the Jaws of the Welsh and the aforesaid

regions. [p. 18]

*s8 We will immediately return the son of

Llywelyn, all the Welsh hostages, and the chart-

ers which were delivered to Us as security for

the peace. [p. 18]

*sg With regard to the return of the sisters

and hostages of Alexander, King of the Scots,

and of his liberties and rights, We will do the

same as We would with regard to Our other

barons of England, unless it should appear by

the charters which We hold of William his

father, late Kiuig of the Scots, that it ought to

be otherwise; this shall be determined by judg-

ment of his peers in Our court. [p. 18]

6c All the customs and liberties aforesaid,

which We have granted to be enjoyed, as far

as in Us lies, by Our people throughout Our

kingdom, let all Our subjects, whether clerks

or laymen, observe, as far as in them lies, to-

ward their dependents. [p. 22]

*61 Whereas We, for the honor of God and

the amendment of Our realm, and in order the

better to allay the discord arisen between Us

and Our barons, have granted all these things

aforesaid, We, willing that they be forever en-

joyed wholly and in lasting strength, do give

APPENDIy 2G g 20

Return of

Welsh

hostages

Rights of

Alexander,

King of

Scots

Liberties

to be

granted to

lesser

tenants

Committee of

twenty-five barons

to enforce

Charter

MAGNA CARTA 50

and grant to Our subjects the following se-

curity, to wit, that the barons shali elect any

twenty-five barons of the kingdom at will, who

shall, with their utmost power, keep, hold, and

cause to be kept the peace and liberties which

We have granted unto them and by this Our

present Charter have confirmed, so that if We,

Our Justiciary, bailiffs, or any of Our ministers

offend in any respect against any man, or shall

transgress any of these articles of peace or se-

curity, and the offense be brought before four

of the said twenty-five barons, those four bar-

ons shall come before Us, or Our Chief Justi-

ciary if We are out of the kingdom, declaring

the offense, and shall demand speedy amends

for the same. If We or, in case of Our being

out of the kingdom, Our Chief Justiciary fail

to afford redress within the space of forty days

from the time the case was brought before Us

or, in the event of Our having been out of the

kingdom, Our Chief Justiciary, the aforesaid

four barons shall refer the matter to the rest

of the twenty-five barons, who, together with

the commonalty of the whole country, shall

distrain and distress Us to the utmost of their

power, to wit, by capture of Our castles, lands,

and possessions and by all other possible means,

until compensation be made according to their

decision, saving Our person and that of Our

Queen and children; as soon as redress has been

had, they shall return to their former alle-

giance. Anyone in the kingdom may take oath

that, for the accomplishment of all the afore-

APPENDI®RG @ 9 4

THE TEXT 1

said matters, he will obey the orders of the said

twenty-five barons and distress Us to the ut-

most of his power; and We give public and free

leave to everyone wishing to take such oath to

do so, and to none will we deny the same. More-

over, ail such of Our subjects who shall not of

their own free will and accord agree to swear

to the said twenty-five barons, to distrain and

distress Us togetiver with them, We will com-

pel to do so by Our command in the manner

aforesaid. If any one of the twenty-five barons

shall die or leave the country or be in any way

hindered from executing the said office, the rest

of the said twenty-five barons shall choose

another in his stead, at their discretion, who

shall be sworn in like manner as the others. In

all cases which are referred to the said twenty-

five barons to execute, and in which a difference

shall arise among them, supposing them all to

be present, or in which not all who have been

summoned are willing or able to appear, the

verdict of the majority shall be considered as

firm and binding as if the whole number should

have been of one mind. The aforesaid twenty-

five shall swear t> keep faithfully all the afore-

said articles and, to the best of their power, to

cause them to be kept by others. We will not

procure, either by Ourself or any other, ary-

thing from any man whereby any of these con-

sessions or liberties may be revoked or abated.

If any such procurement be made, let it be null

and void; it shall never be made use of either

dy Us or by any other. [p. 20]

APPENDLx BG 22

Pardon of

ill-will and

trespasses

Oath to

observe rights

of Church

and people

MAGNA CARTA $2

*62 We have also wholly remitted and par-

doned all ill-will, wrath, and malice which has

arisen between Us and Our subjects, both

clergy and laymen, during the disputes, to and

with all men. Moreover, We have fully re-

mitted and, as far as in Us lies, wholly par-

doned to and with all, clergy and laymen, all

trespasses made in consequence of the said dis-

putes from Easter in the sixteenth year of Our

reign till the restoration of peace. Over and

above this, We have caused to be made in their

behalf ietters patent by testimony of Stephen,

Archbishop of Canterbury, Henry, Archbishop

of Dublin, the Bishops above-mentioned, and

Master Pandulph, for the security and conces-

sions aforesaid. [p. 18]

*63 Wherefore We will, and firmly charge,

that the English Church shall be free, and that

all men in Our kingdom shall have and hold all

the aforesaid liberties, rights, and concessions,

well and peaceably, freely, quietly, fully, and

wholly, to them and their heirs, of Us and Our

heirs, in all things and places forever, as is

aforesaid. It is moveover sworn, as well on

Our part as on the part of the barons, that all

these matters aforesaid shall be kept in good

faith and without deceit. Witness the above-

named and many others. Given by Our hand in

the meadow which is called Runnymede, be-

tween Windsor and Staines, on the fifteenth

day of June in the seventeenth year of Our

reign. [pp. 20, 21]

APPENDIy PG g2 3