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Brewer v. Department of Fish and Wildlife5/10/2000
udicial decisions.
In that regard, Coke's language deserves more careful scrutiny. I note especially that his focus was not on the guarantee of any particular substantive right but on the availability of impartial justice to "every Subject of this Realm." According to Coke, "every Subject * * * may take his remedy by the course of the Law." But the emphasis is not on the "remedy." Instead, it is the fact that such remedy as the "due course of the Law" affords is available to "every Subject * * * be he Ecclesiastical, or Temporal, Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception." (Emphasis added.)
Similar concerns occupied lawyers in colonial America, who faced repeated interference with their courts by the Crown. Not surprisingly, those lawyers, well aware of Coke's Institutes and the conditions that engendered them, looked to him in expressing their concerns. Resort to Coke first found expression in the Delaware Constitution of 1776, which provides:
"That every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land." Del Decl of Rights, art XII (1776).
That this provision was addressed to open access and not to any limitation of the legislature's authority was confirmed by other provisions of the constitution, among them one that expressly adopted the common law of England "unless they shall be altered by a future law of the Legislature." Del Const of 1776, art 25. Other states followed suit, enacting variations on the same theme. Oregon's Article I, section 10, plainly is patterned after such provisions as Delaware's, although the precise language is slightly different.
I have found nothing in the history of Article I, section 10, or its counterparts in any of the 35 other state constitutions that contain similar provisions, suggesting an intention to guarantee a right to a particular remedy. What seems clear to me is that, in the light of Coke's concerns expressed in his famous Institutes, and in the light of the similar concerns of the framers of early state constitutions, the language that made its way into Article I, section 10, historically was understood to guarantee open access to a fair and impartial court, not to guarantee that the legislatures would not alter the substance of rights and remedies in the future. Thus, the relevant history simply will not support the practice of the Oregon courts in treating the language of Article I, section 10, as two separate provisions, one assuring an open and impartial court and the other ensuring a remedy for every wrong.
I hasten to add that neither the analysis nor the conclusion that I assert is particularly revolutionary. The history of Article I, section 10, for example, has been noted by other courts and is set out in various scholarly works. Particularly enlightening is Hoffman's excellent By the Course of Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1291 (1995). Indeed, a number of other states have consulted the language and history of their similarly worded open courts provisions and concluded that they guarantee only access, not substantive rights. The comments of the Supreme Court of Montana in Stewart v. Standard Pub. Co., 102 Mont 43, 55 P2d 694, 696 (1936), are representative:
"A reading of the [state remedy clause] discloses that it is addressed exclusively to the courts. The courts are its sole subject matter, and
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