English in Law. Том 2

78 Pages·1.103 MB·English-Russian

by  Тарасова Т.И.

UNIT 1
THE HISTORY OF THE CONSTITUTION

TEXT 1
THE NEED FOR A NEW CONSTITUTION

PRE-READING TASK: 1) Was the U.S. Constitution the first one in history?
2) Were there other early Constitutions?
1. For most of modern history the word constitution has meant the entire legal framework
of a nation. For example, the English "constitution" includes the Magna Charta of 1215,
which was the first written set of restrictions on kingly power, the Petition of Right of 1628,
the English Bill of Rights of 1689, the Reform Bills of 1832 and 1867, many statutes,
judicial decisions, and royal pronouncements, as well as common law and established
government customs and usages. Thus, the English constitution is both much less than and
much more than a written constitution such as the American one. In fact, a written
constitution – setting forth a plan of government, establishing its institutions, and
proclaiming the rights of citizens – is a relatively new development.
2. Although claims have been made for the Mayflower Compact of 1620, the 1630
Charter of the Massachusetts Bay Colony, and the 1639 Fundamental Orders of Connecticut,
many scholars agree that the first written constitution of government was England's 1653
Instrument of Government. The Instrument, which set out a new, republican form of
government, and its 1657 successor, the Humble Petition and Advice, were swept away by
the Restoration of Charles II in 1660 and had almost no influence on either English or
American constitutional development, but they did presage many later reforms in England.
3. The English colonists in North America regarded themselves as Englishmen possessing
all the rights of Englishmen, even though they lived thousands of miles away from the
mother country. Each colony had some form of written instrument of government by the
eighteenth century, usually a royal charter. Originally, there were three types of colonies:
joint-stock companies, organized as economic ventures under a charter granted by the
Crown conferring certain privileges, as with trade (for example, Virginia and Massachusetts
Bay); compacts, agreements reached by and among the colonists themselves (Plymouth;
Providence, R.I.; Fundamental Orders of Connecticut); and proprietary colonies, in which
the Crown granted the land composing the colony to one or more landholders known as
proprietors. By the mid-eighteenth century, most of the colonies were royal colonies, in
which the former joint-stock company or compact form had been replaced by direct royal
authority residing in the governor. In Maryland, Pennsylvania, and Delaware, the proprietors
(not the Crown) appointed the governors; in Connecticut and Rhode Island, the surviving
charter colonies, the colonists themselves chose their governors. Each colony also had a
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two-house, or bicameral, legislature; the lower house was elected by those colonists who
could meet qualifications based on the amount of real or personal property they had, while
the upper house was selected by the lower house. The upper house, or council, had both
legislative and executive powers and duties, in that it also advised the governor on a daily
basis. The royal charters that most colonies possessed became the focus of disputes between
the colonists and their governments, with the colonials challenging what they saw as
arbitrary and unconstitutional exercises of power.
4. The initial stages of the American Revolution were moves and counter-moves in an
intricate but fierce struggle to determine the limits of Parliamentary authority. Parliament
retained supreme legislative power over the colonies, while at the same time other key
agencies, such as the Privy Council, the Secretary of State, the Treasury, the Admiralty, and
the Board of Trade, also had responsibility for colonial affairs, with the result that for most
of the seventeenth and eighteenth centuries British administration of the colonies was
entangled in bureaucratic infighting and prey to incompetence and mismanagement.
5. In May of 1776, anticipating its action two months later in the Declaration of
Independence, the Second Continental Congress passed a resolution calling upon the
colonies to prepare new, written constitutions in case it became necessary for them to
separate from England. A few colonies merely modified their old charters, deleting all
references to the king and England, but within the next few years most prepared entirely
new, republican constitutions. These reflected the Americans' concern with arbitrary power,
particularly arbitrary executive power. Pennsylvania's constitution of 1776 even did away,
with a separate executive, establishing instead a Supreme Executive Council chosen by and
under the thumb of its one-house legislature. Other states provided for a weak governor and
a powerful two-house legislature. Still others, notably New York in 1777 and Massachusetts
in 1780, created an independent governor, who was armed with veto power over legislation
(although New York's constitution granted only a qualified veto power to a council of
revision composed of the governor and several state judges), and a system of checks and
balances among the legislative, executive, and judicial branches of government.
Massachusetts's most significant contribution to American constitutional thought was a
stipulation mandating ratification of its constitution by the people in special conventions
called for that purpose. Previous state constitutions merely went into effect after being
adopted by their legislatures. The Massachusetts idea recognized the distinction between
constitutions and mere statutes. Its constitution - chiefly the work of John Adams - and the
New York one – largely that of John Jay - were important models and sources for the
subsequent framing of the U.S. Constitution.
NOTES TO THE TEXT
John Jay (1745 - 1829)
John Adams – (1735 - 1826), the second president of the United States (1797–1801),
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Mayflower – the ship in which the Pilgrim Fathers sailed from Southampton to the New World in 1620.

LANGUAGE PRACTICE AND COMPREHENSION CHECK
CHALLENGING VOCABULARY

to presage, humble, to entangle (in), prey (to), venture, proprietary, stipulation,
arbitrary, intricate

TASK I. a) Match the words to their definitions:

1. to presage a. be seized by, caught by, harmed or affected in a bad way by
2. to entangle b. foretell, be a sign of
(in)
3. prey (to) c. put or get into difficulties, in unfavorable circumstances
4. venture d. having many complexly interrelating parts or elements
5. humble e. not restrained or limited in the exercise of power
6. intricate f. a material condition or requirement in an agreement; provision
7. arbitrary g. owned or controlled by, held as property
8. proprietary h. an undertaking involving chance, risk, or danger
9. stipulation i. reflecting, expressing, or offered in a spirit of deference or
submission

b) Use the above words to complete the following sentences:
1. An artificially strong euro may … strong problems for the country.
2. The refugees fell … to criminal gangs.
3. The Court articulated several … that had to be met to sustain a political
gerrymandering claim.
4. A tax incentive violates the commerce clause when it has the effect of providing
lower tax rates to in-state businesses than those imposed on out-of- state … .
5. The law …the interests of church and state by seeking “the symbolic and
financial support of government to achieve a religious purpose.”
6. Holmes was both proud and …about his war service.
7. The ruling in Board of Regents v. Roth … subsequent cases that did expand the rights
of terminated employees.
8. Federal funding for private universities may come with congressional … protecting
student rights.
9. The courts have upheld the constitutionality of the death penalty but looking more
closely at how it is applied, held that an … or discriminatory application would be
unconstitutional.
10. The Court ruled that it was not a violation of the due process clause of the Fourteenth
Amendment for the state legislature to regulate the price of a necessary good such as milk,
as long as the regulation was not … or unreasonable.
11. The policy would … the nation in conflicts that could easily lead to war.
12. There are few … regarding qualifications for becoming a senator, as is the case for
representatives.
13. Initially, the father had extensive powers over the family, including the power of life
and death; until Justinian's time, the father alone in his familia had … capacity.
14. Hylton v. United States case is important historically, as it … MARBURY V.
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MADISON.
15. True … rights are 'binding on the world' in the lawyer's traditional phrase.

c) Translate the following sentences:
1. On the other hand, the highly-debated establishment by Congress of a process by
which independent special prosecutors could be established to investigate and prosecute
cases of alleged corruption in the Executive Branch was sustained by the Court in a opinion
that may presage a judicial approach in separation of powers cases more accepting of some
blending of functions at the federal level.
2. For the Court, Justice Douglas observed that the interests of a State for purposes of
invoking the original jurisdiction of the Court were not to be confined to those which are
proprietary but rather ‘‘embrace the so called ‘quasi-sovereign’ interests which are
‘independent of and behind the titles of its citizens, in all the earth and air within its
domain.”
3. However, the States did in a number of instances engage in commercial activities that
would be regulated by federal legislation if the enterprise were privately owned; the Court
easily sustained application of federal law to these state proprietary activities.
4. Chief Justice Taft uttered some cautionary words to guide trial judges in the
utilization of their contempt powers. ‘‘The power of contempt which a judge must have and
exercise in protecting the due and orderly administration of justice and in maintaining the
authority and dignity of the court is most important and indispensable. But its exercise is a
delicate one and care is needed to avoid arbitrary or oppressive conclusions.
5. That the Fourth Amendment was intended to protect against arbitrary arrests as well
as against unreasonable searches was early assumed by Chief Justice Marshall and is now
established law.
6. Marshall sold real estate and entered other business ventures to afford his public
service and, in order to provide for his family, often turned political office down.
7. In every stage of these Oppressions We have Petitioned for Redress in the most
humble terms: Our repeated Petitions have been answered only by repeated injury. A
Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to
be the ruler of a free people. (Declaration on Independence, 1776)
8. The royal charters that most colonies possessed became the focus of disputes
between the colonists and their governments, with the colonials challenging what they saw
as arbitrary and unconstitutional exercises of power.

TASK II. Use the following binominals to describe the way colonies were governed:
Customs and usages Arbitrary and unconstitutional
Real or personal Moves and countermoves
Legislative and executive Incompetence and mismanagement
Powers and duties

TASK III. a) Compare the meanings of phrasal verbs:
set forth – to state, to explain in a clear, organized way = to expound (a plan, a system,
principles, ideas, purposes, objectives, etc.) – formal use;
set out – to give all the details of something or to explain something clearly, especially
in writing;
set down – to record as a law or regulation, to state in an official document how
something must be done; lay down;
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set up – to make arrangements, preparations, provisions so that something can happen,
exist and operate.

b) Use set down, had set up, set out, set forth, set down, set up, set out, sets forth in
the following:
1). The newspaper correctly reported that the government … an investigation.
2). The first thing to do in the new constitution was to … effective central government.
3). The UN Resolution … the plan of settlement between the conflicting nations.
4). Your contract will … all the terms of your employment.
5).There are laws which attempt to … standards whereby the animal is properly
protected.
6). It was proposed that passengers’ rights be … in a separate charter.
7). Should legislators adopt the principles … in Roth v. United States when many of the
justices now rejected that standard? If not, what could they substitute for it?
8). The Court observed: “The contract … in the pleadings was made for the purpose of
instituting this suit.”

c) Compare the meanings of phrasal verbs:
call upon – to officially ask someone to do something – formal use
call for – demand that it should be done (action), be held, convened, conducted
(conference, meeting, elections, investigation)

d) Use call for or call upon in the following:
1. The Security Council Resolution … an immediate cease-fire.
2. The Prime Minister may … a new election before the end of the term of office.
3. The Constitutional Convention was … to make and propose to the states a new
constitution.
4. The army is in a state of readiness in case it should … to resolve the ethnic
conflict.
5. The weaknesses in the system soon became apparent, and the Congress issued a
… a convention to meet in May 1787 in Philadelphia “for the sole and express purpose of
revising the Articles of Confederation.”
6. New York and Virginia probably would not have agreed to the Constitution
without the bill of rights, and Virginia even … a second constitutional convention for that
purpose.
7. From the very nature of their judicial duties, state judges would be … to
pronounce the law applicable to the case in judgment.
8. The doctrine of prior restraint was … by the Court as it struck down a series of
loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and
to distribute literature, with uncontrolled discretion in the licensor whether or not to issue
them.
9. The New Jersey Plan also … the supremacy of the national government, making
all state laws subordinate to the laws and directions imposed by the central government.

TASK IV. Match the nouns to their definitions or synonyms:
1.statute a. chamber
2.pronouncement b. the authority to do smth
3.government c. power
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4.house d. official appointed to govern the province
5.governor e. declaration
6.authority f. an act of legislature
6.stipulation g. authority; conduct of state affairs
7.mandate h. prerequisite, requirement

TASK V. Combine the verbs and the nouns and use them to describe the colonial
governments:
1. to confer a) a plan
2. to set forth b) qualifications
3. to retain c) institutions
4. to advise d) a charter
5. to appoint e) an agreement
6. to grant f) privileges
7. to select g) a governor
8. to meet h) power
9. to proclaim i) a house
10. to establish j) a form of government
11. to reach k) rights
12. to determine l) the limits

TASK VI. Combine the adjectives and the nouns and use them to describe the British
administration of colonies:
1) kingly a) authority
2) judicial b) infighting
3) royal c) legislature
4) common d) decisions
5) economic e) house
6) a two-house or bicameral f) exercise of power
7) the lower g) struggle
8) real or personal h) property
9) arbitrary and unconstitutional i) pronouncements
10) intricate but fierce j) ventures
11) Parliamentary k) power
12) bureaucratic l) law

TASK VII. a) Sum up the proper paragraph to describe the following:
 British administration of the colonies
 New republican constitutions
 The role of England's Instrument of Government
 Colonial types and governments
 From the entire legal framework of a nation to a single document

b) Answer the following questions:
 Why do nations need constitutions?
 How has the idea of the constitution changed over the centuries?
 What role did the Instrument of government play?
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 What other documents may be regarded as first written constitutions?
 When was the first constitution adopted in your country?
 Was there only one constitution in your country?

TASK VIII. Consult reference books or Glossary to explain the following notions:
 legal framework of a nation
 government custom and usage
 royal pronouncement
 direct royal authority
 republican constitution
 republican form of government
 instrument of government
 joint-stock company
 proprietary colony
 qualified veto power
 system of checks and balances
 bicameral legislature – one-house legislature

TASK IX. Discuss the following passages from Joseph Story’s Commentaries on
the Constitution (1833):
Plantations or colonies in distant countries are either, such as are acquired by
occupying and peopling desert and uncultivated regions by emigrations from the
mother country; or such as, being already cultivated and organized, are acquired by
conquest or cession under treaties. There is, however, a difference between these two
species of colonies in respect to the laws, by which they are governed, at least
according to the jurisprudence of the common law. If an uninhabited country is
discovered and planted by British subjects, the English laws are said to be immediately
in force there; for the law is the birthright of every subject. So that wherever they go,
they carry their laws with them; and the new found country is governed by them.
This proposition, however, though laid down in such general terms by very high
authority, requires many limitations, and is to be understood with many restrictions.
Such colonists do not carry with them the whole body of the English laws, as they then
exist; for many of them must, from the nature of the case, be wholly inapplicable to
their situation, and inconsistent with their comfort and prosperity. There is, therefore,
this necessary limitation implied, that they carry with them all the laws applicable to
their situation, and not repugnant to the local and political circumstances, in which
they are placed.
Even as thus stated, the proposition is full of vagueness and perplexity; for it
must still remain a question of intrinsic difficulty to say, what laws are, or are not
applicable to their situation; and whether they are bound by the present state of things,
or are at liberty to apply them in future by adoption, as the growth or interests of the
colony may dictate. The English rules of inheritance, and of protection from personal
injuries, the rights secured by Magna Charta, and the remedial course in the
administration of justice, are examples as clear perhaps as any, which can be stated, as
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presumptively adopted, or applicable. And yet in the infancy of a colony some of
these very rights, and privileges, and remedies, and rules, may be in fact inapplicable,
or inconvenient, and impolitic. It is not perhaps easy to settle, what parts of the
English laws are, or are not in force in any such colony, until either by usage, or
judicial determination, they have been recognized as of absolute force.
In respect to conquered and ceded countries, which have already laws of their
own, a different rule prevails. In such cases the crown has a right to abrogate the
former laws, and institute new ones. But until such new laws are promulgated, the old
laws and customs of the country remain in full force, unless so far as they are contrary
to our religion, or enact any thing, that is malum in se; for in all such cases the laws of
the conquering or acquiring country shall prevail. This qualification of the rule arises
from the presumption, that the crown could never intend to sanction laws contrary to
religion or sound morals. But although the king has thus the power to change the laws
of ceded and conquered countries, the power is not unlimited. His legislation is
subordinate to the authority of parliament. He cannot make any new change contrary
to fundamental principles; he cannot exempt an inhabitant from that particular
dominion, as for instance from the laws of trade, or from the power of parliament; and
he cannot give him privileges exclusive of other subjects.
Mr. Justice Blackstone, in his Commentaries, insists, that the American colonies
are principally to be deemed conquered, or ceded countries. His language is, "Our
American Plantations are principally of this latter sort, [i.e. ceded or conquered
countries,] being obtained in the last century either by right of conquest and driving
out the natives, (with what natural justice I shall not at present inquire,) or by treaties.
And, therefore, the common law of England, as such, has no allowance or authority
there; they being no part of the mother country, but distinct, though dependent
dominions."
TASK X. Compare the following forms of social agreements:
A. A compact was a mutual agreement or understanding that was more in the nature
of a standing rule. If it did not always have the status of law, it often had a similar
effect. A compact implied an agreement that in some way affected the entire
community or relations between communities. The word's root meaning was knitting
together or bringing the component parts closely and firmly into a whole. A compact,
therefore, was an agreement creating something that we would today recognize as a
community.
In the seventeenth and eighteenth centuries, a compact was an agreement between a
large group of people creating a new community based upon their own consent.
Locke consistently used compact to describe the Foundation agreement.
If a people in a given situation had to draw up a mutual agreement but found it
impossible to obtain the king's official sanction, they could call upon God as a witness
to bind those signing until the royal seal could be secured. If a people reached a mutual
agreement but they chose to call upon neither God nor the king, they must have for
some reason, considered themselves competent to establish the document's force. In
this latter instance, legitimacy rested upon the authority of the people, indicating an
understanding of popular sovereignty. A compact was just such an agreement. For this
reason Blackstone could say: "A compact is a promise proceeding from us, law is a
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command directed to us." (Sir William Blackstone, Commentaries on the Laws of
England)
Those in a contractual relationship would be inclined toward legalistic wrangling
over the meaning and intent of specific words and phrases. The emphasis upon the
letter rather than upon the spirit of the agreement would destroy the sense of
community as implied by a compact and would result in something less – an
association for specific, limited ends. True compacts, without any contractual
elements, are communitarian in their orientation, but contractual variants are more
legalistic.
The early state constitutions adopted in 1776 could be viewed as compacts, since
they usually summarized and codified what the colonists of the respective states had
developed over the years.
B. The word charter is derived from the Latin for a papyrus leaf, a writing, a
document. Often this legal document or deed, written on a single piece of paper,
confirmed or ratified grants, sessions, contracts, and other transactions. Or it was a
document by the sovereign or the legislature to grant privileges to, or recognize the
rights of, an entire people, a certain class, or specific individuals. Such was Magna
Carta, a charter of rights for the nobility. In his Leviathan, Hobbes says that charters
are not laws but exemptions from the laws. Charters also granted pardon and created
or incorporated boroughs, universities, companies, or other organizations. These
written instruments or contracts applied especially to documents or deeds relating to
the conveyance of property. The word charter was also a linguistic substitute for
privilege, immunity, or publicly conceded right. To say that something was chartered
was to say that it was founded, privileged, or protected. Charters and letters patent
were similar, though the latter could refer to any authoritative document. A charter
was invariably a patent, but a patent was not necessarily a charter. In addition, a
charter effectively constituted a contract between the authority granting it and the
person(s) to whom it was granted. However, unlike a simple contract, a charter often
included many general statements. Contract, for example, would not be an appropriate
description for a document saying that "and the proprietors shall establish a
government whereby differences among the planters may be settled." Virtually all
colonial charters granted by the king of England had this sentence or one like it, and
on its strength the colonists designed their own forms of local government. A true
contract could not have included such a historically important provision. The
peculiarity of a charter, then, was that it often contained strong contractual elements
linked to many or most of what we would recognize as elements of a founding
document like a constitution.

TASK XI. Compare the following definitions of constitution including the ones
given in the text:
A) BLACK’S LAW DICTIONARY
The organic and fundamental law of a nation or state, which may be written or
unwritten, establishing the character and conception of its government, laying the basic
principles to which its internal life is to be conformed, organizing the government, and
regulating, distributing, and limiting the functions of its different departments, and
prescribing the extent and manner of the exercise of sovereign powers. A charter of
government deriving its whole authority from the governed.
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In a more general sense, any fundamental or important law or edict; as the Novel
Constitutions of Justinian; the Constitutions of Clarendon.

B) MARRIAM WEBSTER’S DICTIONARY OF LAW
[Latin constitutio system, fundamental principles (of an institution), from
constituere to set up, establish] 1: the basic principles and laws of a notion, state, or
social group that determine the powers and duties of the government and guarantee
certain rights to the people in it 2: a written instrument containing the fundamental
rules of a political or social organization esp, cap : the U.S. Constitution.

TASK XII. Contribute to the subject and prepare a talk on one of the following:
 Magna Charta of 1215
 the Petition of Right of 1628
 Instrument of Government of 1653
 the Humble Petition and Advice of 1657
 the English Bill of Rights of 1689
 the Reform Bills of 1832 and 1867
 John Jay (1745–1829)
 John Adams (1735–1826)

TASK XIII. Comment on the following statement by Joseph Story:
A People who mean to be their own governors must arm themselves with the
power which knowledge gives.

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