Table of Abbreviations Preface Introduction Part I: The Emergence of the Concept of Unreasonable Search and Seizure, to 1642 English Thought on Search and Seizure to 1642 Search and Seizure in England Before 1485 The English Law of Search and Seizure, 1485-1642 The English Practice of Search and Seizure, 1485-1642 Part II: The Emergence of the General Warrant as an Unreasonable Search and Seizure English Thought on Search and Seizure, 1642-1700 The General Warrant in Intellectual and Political Perspective Search and Seizure in England, 1642-1700: The Legal Background to the English Critique of General Warrants Colonial Thought Respecting Search, Seizure, and the Illegitimacy of General Warrants, to 1760 Colonial Legislation Regarding Search and Seizure, to 1760 Colonial Search Warrants and Their Enforcement, to 1760, in Relation to the Search Warrant Clause of the Fourth Amendment Colonial Searches by the Customs Services of England and Great Britain Part III: The Evolution of the S.
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SSRN Electronic Journal
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Columbia Law Review
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In the 1985 case of United States v. Hensley, the Supreme Court ruled that the Fourth Amendment permits police officers to perform warrantless investigatory stops for completed felonies. However, Hensley explicitly declined to address whether the Fourth Amendment allows such stops to investigate suspicion of completed misdemeanors. Since then, courts have ruled inconsistently on this issue, creating uncertainty in this important area of search and seizure law. This Note attempts to settle this uncertainty by examining the Fourth Amendment's text, history, and jurisprudence. It argues that warrantless stops to investigate completed misdemeanors are constitutional when the underlying crime presents an ongoing danger.
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Ohio State Journal of Criminal Law
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P. Costa, D. Zolo (eds), The Rule of Law: History, Theory and Criticism, Springer
The rule of law and "the liberties of the English". The interpretation by Albert Venn Dicey 1. Law and the liberties of the English At the close of the seventeenth century, following the Glorious Revolution and the victory of the Parliamentarians, it was widely believed among the English that the 'rule of law' had been established and that individual liberty would therefore be assured. Jurists and political theorists began to maintain that judicial procedures, the public nature of trials, the rules relating to evidence together with the role of the jury, ensured solid legal guarantees to those accused of any crime, thereby protecting the fundamental rights of their countrymen. The rhetoric accompanying the battle fought in seventeenth-century England against monarchical absolutism did not put direct emphasis on subjective rights and freedom, but raised the banner of objective law. Sir Edward Coke' arguments best exemplify this attitude. In his works the cry for liberty is drowned by his exultation of the 'law' as the primary condition for freedom itself: "the law is the surest sanctuary, that a man can take, and the strongest fortress to protect the weakest of all" 1. The objective application of the laws and the action of the courts grant the individual protection, Coke's 2 "birth right", enabling everyone to keep safe his goods, lands, wife, heirs, body, life and honour. The law invoked by Coke was none other than 'common law'. Common law was considered to be the source of liberty: along with the legal process it was credited with limiting the power of the monarch and with protecting personal freedom. Whig 3 rhetoric owed its legitimacy to the fact that during the course of the seventeenth century common law had almost virtually eliminated the feudal differences of status, ensuring the near equality of the English subjects before the law with the notable exception of women. The relationship between feudal lords and tenants had by then come to be based on abstract rights as defined by the Royal Courts, and were beyond the landlord's jurisdiction and discretion 4. Certainly, as Douglas Hay 5 has pointed out, the conquests of the revolution proved to be essential for the protection of the gentry, the newly-enriched merchant class who, in the course of the seventeenth century, had begun to rival landowners for the control of English society, against the greed and tyranny of the monarch. One of the main victories of the revolutionaries was the establishment of a normative framework guaranteeing the protection of basic rights in fundamental areas such as the transfer of property, inheritance laws, contracts, wills and writs. The fact that these achievements were grafted onto the well-established tradition of common law lent them stability. Since its very early stages, common law had been characterised by a system of writs designed to safeguard agreements and arrangements between citizens dealing with each other on a par. A seventeenth-century Englishman might well have had the impression of conducting his life within the framework of horizontal legal relationships with his countrymen, in so far as citizens were formally recognised as equal before the law. The vertical dimension was based on the relationship between the citizen and his sovereign, who could not, by definition, damage or encroach upon the rights of his subjects. But it was this very definition that made it impossible for him to be called to judgement or to answer for his actions. In theory, then, citizens' rights were not guaranteed in the case of arbitrary action by the sovereign. But the sovereign's immunity was soon neutralised by the Courts, which elaborated the doctrine according to which, as
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