Due Process of Law

Author:Leonard W. Levy

Page 828

A 1354 act of Parliament reconfirming MAGNA CARTA paraphrased its chapter 29 as follows: "That no man ? shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in Answer by due Process of Law." This was the first reference to due process in English legal history. Chapter 29 of the 1225 issue of Magna Carta originally concluded with the phrase "by the LAW OF THE LAND." Very probably the 1354 reconfirmation did not equate "the law of the land" with "due process of law"; the two were not synonymous. Due process in the 1354 enactment, and until the seventeenth century, meant an appropriate COMMON LAW writ.

In the Five Knights Case (see PETITION OF RIGHT), JOHN SELDEN, the great parliamentarian, said in defense of the accused that "No freeman shall be imprisoned without due process of law," meaning that the "law of the land" was an equivalent for "either INDICTMENT or PRESENTMENT." Sir EDWARD COKE, in his commentary on Magna Carta, also equated due process with the law of the land, meaning regularized courses of proceeding in common law prosecutions for crime. Coke's primary claim was that the law of the land was the common law, one of several rival systems of law then prevalent in England. When abolishing the courts of High Commission and Star Chamber, Parliament in 1641 quoted the due process phraseology of the act of 1354 and added that trials by "ordinary Courts of Justice and by the ordinary course of law" protected property right against arbitrary proceedings. JOHN LILBURNE and his Levellers agreed, but they also asserted that due process signified a cluster of procedural protections of the criminally accused, including TRIAL BY JURY, the RIGHT TO COUNSEL, and the RIGHT AGAINST SELF-INCRIMINATION. By the mid-seventeenth century due process and the law of the land referred to PROCEDURAL DUE PROCESS in both civil and criminal cases. The "law of the land" usage, however, was the dominant one, and "due process" continued to be used in the very limited sense of a writ appropriate to a legal proceeding. A century later WILLIAM BLACKSTONE discussed various processes?original, mesne, and final?without discoursing on due process of law per se. After referring to indictment in capital cases and the principle that "no man can be put to death without being brought to answer by due process of law," Blackstone referred to the different writs that summoned an...

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