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Amdt5.5.2 Historical Background on Due Process

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The concept of due process developed long before the Framers met in Philadelphia to draft the Constitution. Due process is a “historical product” 1 of the 1215 Magna Carta, in which King John of England promised his barons that “[n]o free man” would be deprived of his life, liberty, or property “except by the lawful judgment of his peers or by the law of the land.” 2 The phrase “due process of law” first appeared in a 1354 statutory rendition of Magna Carta provisions: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.” 3

Although the Magna Carta resulted from a struggle between the King and his barons,4 its language influenced the writings of English jurists relied upon by the Constitution’s Framers.5 The Framers’ understanding of due process derived in major part from Sir Edward Coke, who in his Second Institutes explained that the term “by law of the land” was equivalent to “due process of law.” 6 Coke’s writings described aspects of both procedural and substantive due process,7 which the drafters of colonial charters and declarations of rights relied upon when incorporating due process rights into those instruments, particularly in provisions safeguarding accused persons’ rights.8

Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). back
Text and commentary on this chapter may be found in W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 375–95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, 139–59. As expanded, it read: “No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.” See also J. Holt, Magna Carta 226–29 (1965). The 1225 reissue also added to chapter 29 the language of chapter 40 of the original text: “To no one will we sell, to no one will we deny or delay right or justice.” This 1225 reissue became the standard text thereafter. back
28 Edw. III, c. 3. See F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629, 86–97 (1948), recounting several statutory reconfirmations. back
W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow, 2d rev. ed. 1914); J. Holt, Magna Carta (1965). back
F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (1948). back
Sir Edward Coke, Institutes of the Laws of England, Part II, 50–51 (1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see, e.g., A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (1968). back
See sources cited supra note 6. back
The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the “law of the land” phrase in a separate article, 3 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section guaranteeing procedural rights in criminal cases. 7 id. at 3813. New York, in its constitution of 1821, was the first state to incorporate the phrase “due process of law” with inspiration from the United States Constitution. 5 id. at 2648. back