What Is The Law Of The Land?

After posting my previous entry, I received several communications, of which this one was typical:

Rock,

I loved your explanation of what it really means to follow the law of the land. I think every member of the church should read it because it would do away with a lot of confusion in the church.  The only problem is I can't forward it to my father because if he senses anything that isn't completely adoring about Mitt Romney, he will stop reading and go no further.  Also, I think your choice of a title was unfortunate, because I think that will also keep some people from reading it.  Is there some place I can direct people to so they can learn about the law of the land without all that controversial baggage?

Well, first off, don't blame me for the title.  Those were my mother's words, not mine. (Although I must admit my own wife counseled against my use of them.) 

But this reader has a good point. I think this topic deserves to stand alone so that others can link to it.  Indeed, when I write future posts regarding our political responsibilities as latter-day Saints, I think it would be helpful to point to an exegesis on the law of the land that was not buried inside another piece that has only a limited shelf life.

So with that in mind, I've decided to rework the pertinent parts of that last essay into this new one, so that we have a kind of standalone explanation of what it really means to follow "the law of the land."  Those who have already read the last piece will find much here they have already seen, but although I have had to truncate the essay in some places, I've added some new information that demonstrates how far afield we have come from God's original intent.  Also, I've added an addendum for those who just can't get enough legal citations in their lives. 

So Here we go:


The Most Misquoted Phrase In The Church
We hear the phrase, "The Law of the Land" bruited about quite a bit within the church, often by members who shrug in resignation over some legislation they disagree with, saying, "What can we do? It's the law of the land now, so we are commanded by God to obey it."

Most members who believe that way usually can't even reference the scripture.  Here is the pertinent part in Doctrine & Covenants 58: 19-21:

19. For verily I say unto you, my law shall be kept on this land... 21. Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land. (Emphasis mine.)

So what does this mean? Could it really be that every statute, act, ordinance, rule, and regulation passed by the legislature represents "the law of the land," and therefore the law of God which must be obeyed?

Not hardly.  The law of the land always trumps the laws of governments, as the law of the land embodies God's protection for all his children.

When Joseph Smith wrote down that revelation, he was well aware that the phrase "laws of the land" (also rendered in the singular as "law of the land") had a specific meaning which everyone living at that time fully understood. Sadly, it is a meaning not one person in a thousand is aware of today, least of all a good many of those members of the church who are so fond of bringing it up.


As far back as Runymede, the phrase "law of the land" had a very specific meaning under the common law which was well known to everyone. Joseph Smith was familiar with it, as were our founding fathers and everyone who lived in their day.  To follow the laws of the land did not mean obedience to all the laws that operated within a particular country.  Quite the contrary.  Derived from the latin Rex Terrae, "The law of the land" might be more accurately rendered as "the designation of procedural laws that operate to protect a person living on the land."  The law of the land came to represent, according to The Encyclopedia of the American Constitution, "that body of fundamental law to which appeal was made against any oppression by the sovereign."

In plain English, "the law of the land" didn't mean you were obligated to obey every whim of government. It actually protected you from being harmed by every whim of government.

If, after spending a lifetime of carrying around in your head a mistaken idea about what is actually meant by "the law of the land" and you're having a tough time wrapping your head around that simple definition, it may be instructive to examine the opposite meaning of the phrase.

What is the opposite of the law of the land? That would be the law of the sea, of course.

Welcome Aboard, Matey! Just Stow Yer Rights At The Dock
If you were an English freeman in the 17th and 18th centuries and decided to sign on as a shipmate to sail the seven seas, you would have understood that you were also signing away your rights as a free man upon the land. Once at sea you could no longer claim any of the basic rights that naturally accrued to you as a citizen of the crown. And there were some very sensible reasons for why that was.

A rickety wooden ship in the middle of the ocean is a very dangerous place to be, so there was little room for careful legal deliberations when neglect occurred. One unfortunate slip-up could put the entire crew in deadly peril.  The Captain's close supervision and precise execution of every detail was what was meant by "running a tight ship." All hands were assigned specific duties that had to be performed with precision, often down to the second, and if your job was to hoist the mainsail or batten down the hatches, and by some fluke you managed to inadvertently raise the mizzenmast and lower the boom on some other poor sailor, your punishment would be swift and harsh.  There was no due process shipboard guaranteeing you a trial by jury of your sailor peers. Whatever went wrong may not have even been your fault, but someone had to be punished, and out there at sea, one bloke was as good as another.  On the high seas, there was no shared "common" law. The word of the Captain was the law.

To take an example from the notorious Captain Queeg, suppose someone had stolen strawberries from the ship's galley.  Under the system of law that operated on the land, an attempt might be made to find the actual culprit and carefully and methodically bring the thief to justice. But under the law of the high seas, justice wasn't expedient; what was important was that someone be punished for the crime immediately, if for no other reason than to set an example.  It could be the guilty party who gets punished, or it could be pretty much anyone else. Sometimes the whole crew would be punished for the crime of one man, a system of law I call My Father's Law, who often announced to us kids, "I guess I'll just have to spank all of you just so I know I got the right one."

What mattered most at sea was that someone was made an example of so that everyone else would think twice before helping themselves to the strawberries. Actual guilt or innocence was not the prime directive at sea; what was important was that the captain ran a tight ship.

Punishment at sea was often more extreme than punishment for crimes committed on land. They almost never matched the crime, which was a requirement of the common law on land.  If you were lucky, you would just be thrown in the brig.  But most likely you would be tied to the mast and flogged with a Cat o' Nine Tails, a whip with sharp pieces of bone embedded in the ends which would tear the flesh off your back in tiny chunks.

Although a ship's captain had almost complete carte blanche under the law of the sea, rarely was he permitted to summarily execute men under his command. But if he wanted, he could punish a man by having him keelhauled, a torturous ordeal that nearly always resulted in the agonizing death of the victim.

Truth be told, although the safety of his crew was important to the Captain, their safety paled in importance to the safety of the ship itself and its valuable cargo.  A ship's captain had a fiduciary responsibility to the company of investors for whom he answered, and there was absolutely nothing of more paramount importance to the captain of any ship than to return that ship and its cargo safely to port.  If he were to lose his ship, he could be thrown in irons, his personal estates taken as recompense as well as the property of his mother, father, brother, sisters, uncles, aunts and cousins throughout the land, after which they might also be put in irons, too.

This is why you've heard the saying "the captain always goes down with the ship." It had nothing to do with the captain being brave and heroic. If a ship ran aground or crashed on the rocks, the rest of the crew might escape in the lifeboats, but every British captain knew that drowning at sea was far preferable to returning to England and trying to explain to the board of the East India Company how he managed to return to England while his ship and its cargo did not.

So that's why the captain was the first and final word at sea, and his word was law.  It was self protection over everything else. And you may have guessed that it was the moneyed interests behind the crown such as the East India Company who supported this system -which the people on the land would not have stood still for- in order to protect their own commercial interests.

This law of the sea was known, under various permutations, as the law of Admiralty, Maritime, Military Law, Commercial Law, or a variety of other names, but what it came down to was expediency.  Justice was not the object, expediency was.  Whereas on land the object is that before you exact punishment on a man you want to carefully make very sure you got the right guy, on the high seas there was no such compunction.  A guess was as good as a a mile.

On the high seas you had no right to face your accusers and challenge their testimony, no right to counsel, no right to examine evidence against you, no jury of your peers -none of the rights you had on land. Under Admiralty Law the aim was to punish without proof, as that was simpler and more expedient for the governing body to deal with.

Which is why kings and tyrannical governments have, since ancient times, constantly tried to sneak Admiralty Law back up onto the shore. It's way more convenient than having to abide by that pesky law of the land.

The Perfect Law of Liberty
Here is how Law of the Land is defined in Bouvier's law dictionary, the first dictionary of American law, and the only law dictionary given official weight by an act of congress. Bouvier's definition is pertinent because it was first published in 1839, during the lifetime of Joseph Smith. If you wish to have an understanding of what "Law of the Land" meant to those living in Joseph Smith's day, Bouvier's is the place to look:

Law of the Land. The general law; A law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, and property and immunities under the protection of the general rules which govern society.

When attempting to ascertain the meaning of words and phrases in common use during a certain period, it's always best to refer to sources close to that period. Thus, if we wish to know what the founders meant by their use of the phrase "law of the land," a good authority would be Lord Edward Coke, a 17th century English barrister whose works were a major influence on the men who drafted our constitution. Coke defined "law of the land" as synonymous with "due process of law" and further clarified that due process was the divine, god-given right of all men everywhere, not just those living in England.

This is consistent with what the Lord revealed to Joseph Smith in 1833 when he affirmed the "law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me." -D&C 98:5 (Emphasis mine.)

This declaration from the Lord stands in stark contrast to the opinions of many politicians today who insist that only American citizens are entitled to due process, and therefore our government is justified in locking away foreign nationals indefinitely in torture dungeons such as Guantanamo and Abu Ghraib. Of course, if these politicians are averse to taking their counsel from LDS scriptures, they could at least consult the fifth amendment to the constitution, which agrees with God that NO PERSON, not just American citizens, shall be deprived of their liberty without due process of law.

The Law Of The Sea-On The Land
The American colonists at the time of the revolution did not envision themselves as some new breed of persons called Americans. They thought of themselves as Englishmen living on the American continent, and as Englishmen, they were entitled to the same treatment under the law as anyone who actually lived in England.

But King George did not treat the colonists as Englishmen on the land.  He treated the thirteen colonies as if they were thirteen ships anchored somewhere far across the sea.  In the mind of the king, the people in the colonies existed to serve England, to provide her people with raw materials such as lumber, cotton, silk, sugar, and tobacco.  Were they not originally chartered for these purposes by the king's predecessors? Then they should just tote that barge, lift that bale, shut the hell up and obey their captain.

When Thomas Jefferson wrote the Declaration of Independence, he structured it as a legal Complaint, formally laying out the specific ways in which the king had, in effect, been applying the Law of Admiralty on the land where it didn't belong.  The Declaration of Independence was the colonist's demand for their rights to the law as normally applied on land under English common law, not this strange, illicit hybrid of Roman/Babylonian/Clipper ship bullcrap the king was using to rule over them.  The colonists lived on the land. They should not be ruled by the law of the sea.

The Constitution was created to embrace, embody, and codify the law that was properly applied to those living on the land, its purpose being the protection of the rights of the individuals on the land against the encroachment of government.  The constitution even included within itself a clause that identified it as the supreme law of the land.  That meant that any subsequent ruling proposed by government would be required to undergo the process of being measured against that document. No longer would kings and tyrants be able to shove the law of Admiralty up onto the land, where men were recognized as being free from maritime restrictions. The supreme law of the land forbade that from ever happening again.

But would-be tyrants do not police themselves. "The price of liberty," as the saying goes, "is eternal vigilance."

In the addendum below I am including the full excerpts from The Encyclopedia of the American Constitution which define both Law of the Land and Due Process of Law.  You'll notice that included in the  definition of the former is the statement that "it has...become commonplace to think of decisions of the Court as the law of the land."

Those of us seeking to understand God's word as given in the early 19th century should not be concerned with modern assumptions of the meaning of those words.  You will notice that the Courts themselves have always defined "Law of the Land" correctly, but it has been ignorant people making their own assumptions about its meaning that has led to the incorrect modern interpretation, especially among latter-day Saints.

Such ignorantly applied usage is one reason we find even LDS general authorities teaching astonishing falsehoods that contradict both scripture and common sense, such as when James E Faust declared at the July Fourth Freedom Festival in 1995:

"I was drafted for three years during World War II and served because it was the law of the land...My father served in the American Army during World War I because it was the law of the land of his citizenship. His German cousins were in the same position, serving in the German Army because it was the law of their land."

Incredibly, Elder Faust was declaring that members of the Lord's Church were somehow obligated to obey any law promulgated by legislature or dictator, even if the foreseeable outcome of that law had resulted in his father being killed by his own cousins! Common sense alone would whisper that God would not require any man to violate conscience or religion, yet Faust was convinced the arbitrary laws of man superseded morality.

Faust went on to describe a conversation he had with a new convert who advocated protesting against abortion:

"I told him that it was our belief that even though we disagreed with the law, and even though we counseled our people strongly against abortion, and even though we bring into question the membership of those involved in abortion, we are still obliged to recognize the law of the land until it is changed." 

Such a gross misinterpretation of "law of the land" would horrify the saints in Joseph Smith's day, not to mention America's founders, whom President Faust was ostensibly present at that July 4th event to pay homage to.  Elder Faust had been an apostle for 29 years, and before that he was a lawyer (!), but his sophistic attempts to shoehorn man's law into an awkward fit with God's law simply illustrates how pervasive and deeply ingrained this false interpretation has become in the church.

Any thoughtful latter-day Saint reading about the law of the land as promoted by the Lord should instantly recognize that His law is not the kind of law that can be changed or improved upon at the whim of dictators, presidents, judges or legislatures.  The "law of the land" is not a collection of statutes that you and I are required to obey. It has nothing whatsoever to do with positive law of the sort that can be imposed on a people against their will and which the people are required to meekly endure.

Rather, it is procedural law which God expects to be followed by governments for the purpose of protecting His children from abuse.

We Mormons are fond of declaring our devotion to "the law of the land." Wouldn't it be helpful if we simply understood what that phrase actually means?

                                                   *****                

Addendum
I was recently drawn into a Facebook debate with a member of the church who simply refused to accept my explanation for the meaning of the law of the land as laid out above.  He demanded I provide him additional proof of my assertions.  Believe me, I understand his cognitive dissonance.  For most of us, our entire lives in the church were spent in the belief that we were required to obey every single demand the government made of us without question. Rolling over and doing what we are told is what makes us model citizens and exemplary latter-day Saints.

But I had a suggestion for this member.  He could do what I did twenty years ago when I found the conventional interpretation appeared to contradict God's word at every turn. He could look up the meaning for himself.

Another, less strident correspondent asked if I could provide further information on the subject because he was having difficulty fully understanding it.  So to satisfy these two brothers, and anyone else inclined to further research on the subject, I have included here some excerpts from various legal authorities.  Since "law of the land" is synonymous with "Due Process," I'm including some definitions of the meaning of the latter also for those who may not be fully aware of what that means.  But first, a brief explanation on sources.

There are two major encyclopedias on American law: American Jurisprudence, and Corpus Juris.  Both are now available digitally, but unless you have a subscription to the legal research service Lexis-Nexis, you'll probably have to go down to your county law library to access them.  Even the smallest county library should still have the hard copy sets on the shelves, consisting of about a hundred and sixty large volumes each. As a citizen of your county, you have free access to your county law library, which you'll usually find adjacent to your county courthouse.

As lengthy as this section is, I've included only a small sampling of what's available on the topic, but it should provide a starting place for those inclined to further study.   Although the citations at the end of the articles are highlighted, those links will not work for you as they are tied in to Nexis/Lexis.  I include them for those who might want to go to the law library and do further legwork.

For those interested in digging into older books, I once held a dusty old tome called Pope's Dictionary of the Law, but I've not seen it since and find no reference to it online. Bouvier's has been reprinted in both the 1856 and 1914 editions, so you should be able to find them. The early editions of Black's Law Dictionary define Law of the Land as it has traditionally been understood, but recent editions are beginning to also include a definition more reflective of modern usage side by side next to the actual one. This is unfortunate, but inevitable I guess, as dictionaries tend to reflect changes in word meanings no matter how far they stray from their roots.

Among the works I had hoped to get to but didn't was the 20-odd volume set of West's Words and Phrases, which is a wonderful resource for looking up practically any legal term or maxim of law ever uttered.  Again, that should be available at your local law library, but you'll find that most definitions of Law of the Land and Due Process use many of the same sources over and over, going back to English and American antiquity, so there's a lot of redundancy anywhere you look.

So, if you're a hopeless Obsessive-Compulsive like me, dig in.  The rest of you can skip down to the comment section, which I expect you'll find more interesting.

To begin, let's look at a handful of citations from various U.S. Federal Courts:

The phrase “due process of law” is synonymous with phrase “according to the law of the land”.  Fleenor v Hammond, Circuit Court of Appeals, Sixth Circuit. January 13, 1941 116 F.2d 982 

 “Law of the land” includes established principles of procedure and equity Owens v Battenfield, Circuit Court of Appeals, Eighth Circuit. June 4, 1929 33 F.2d 753

 “Due process of law,” within Const. Amends. 5 and 14, is equivalent to the “law of the land,” and is intended to protect the citizen against arbitrary action, and to secure to all persons equal and impartial justice  U.S. v Yount District Court, W.D. Pennsylvania. October 21, 1920 267 F. 861

 Fundamental principles of liberty and justice constitute “law of the land” Alexander v Dougherty United States District Court D. Wyoming. September 12, 1960 189 F.Supp. 956

Due process of law, under the Fifth and Fourteenth Amendments, requires that action by a state through any of its agencies must be consistent with fundamental principles of liberty and justice which lie at base of our civil and political institutions and which not infrequently are designated as the law of the land. Colon-Rosich v People of Puerto Rico United States Court of Appeals First Circuit. June 5, 1958 256 F.2d 393

“Due process of law,” guaranteed in both the fifth and fourteenth amendments to the Constitution, U.S.C.A., means the law of the land. The guaranty implies the administration of equal laws according to established rules by competent tribunals having jurisdiction and proceeding upon notice and hearing. U.S v Billings Circuit Court, S.D. New York. March 8, 1911 190 F. 359

“Due process of law” is process due according to the law of the land. Walker v Sauvinet Supreme Court of the United States October 1, 1875 92 U.S. 90

The words, “the law of the land,” in Const.R.I. art. 1, § 10, mean due process of law, in which is included the right to contest the charge, and be discharged, unless it is proved. Green v Briggs Circuit Court, D. Rhode Island. November 1, 1852 1 Curt.C.C. 311

U.S.C.A.Const. art. 1, § 10, prohibiting a deprivation of property or liberty except by the law of the land, refers to due process of law, which includes a right to contest a criminal charge, and to be discharged unless it is proved. Green v Briggs, Supra 

Encyclopedia of the American Constitution. Ed. Leonard W. Levy and Kenneth L. Karst. Vol. 4. 2^nd ed. Detroit: Macmillan Reference USA, 2000. p1571-1572.

Page 1571

LAW OF THE LAND

The phrase "law of the land" has two connotations of constitutional dimension. In general usage it refers to a HIGHER LAW than that of COMMON LAW declaration or legislative enactment. As a result of the SUPREMACY CLAUSE, the Constitution is such a higher law; it is the "supreme law of the land." In the exercise of JUDICIAL REVIEW, the SUPREME COURT claims the office of ultimate interpreter of the Constitution. It has thus become commonplace to think of decisions of the Court as the law of the land.
A second connotation has a specialized meaning that reaches far back into English history and leaves its indelible mark on American constitutional law. In 1215, the barons of England forced King John to sign MAGNA CARTA, pledging his observance of obligations owed to them in return for their fealty to him. Among the provisions was one that declared (in translation from the Latin): "No freeman shall be taken or imprisoned or dispossessed or outlawed or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the judgment of his peers, or by the law of the land." Magna Carta was necessarily a feudal document, but this provision was so worded that it retained meaning long after feudalism gave way to the modern constitutional state.

The term "law of the land" consequently continued in English usage, representing that body of FUNDAMENTAL LAW to which appeal was made against any oppression by the sovereign, whether procedural or substantive. By 1354 there had appeared an alternate formulation, "due process of law." In his Second Institute of the Laws of England (1642), Sir EDWARD COKE asserted that "law of the land" and "due process of law" possessed interchangeable meanings; nevertheless, the older version was not thereby supplanted. The PETITION OF RIGHT (1628) played no favorites with the two terms, demanding "that freemen be imprisoned or detained only by the law of the land, or by due process of law and not by the king's special command, without any charge."

In the politically creative period after Independence, American statesmen preferred "law of the land" to "due process," apparently because of its historic association with Magna Carta. All eight of the early state CONSTITUTIONS incorporating the guarantee in full or partial form employed the term "law of the land"; and the same was true of the NORTHWEST ORDINANCE (1787). The first appearance of "due process of law" in American organic law occurred in the Fifth Amendment to the United States Constitution (1791). But that switch of usage did not displace "law of the land." Throughout the nineteenth century state constitutions and state courts spoke in one voice or the other, or even both. As of 1903 a listing by THOMAS M. COOLEY of state constitutions incorporating the legacy from Magna Carta showed "law of the land" outrunning "due process of law." The trend subsequently has been to the latter phrase; yet a 1980 count found eleven states still expressing the guarantee as "law of the land."

The Glorious Revolution of 1688, embodying the political theory that parliamentary enactment was the practical equivalent of the "law of the land," presented a dilemma in interpretation when the versions of the guarantee were introduced into American thought and incorporated  into most American constitutions. Legislative supremacy was unacceptable in the New World; the American view was that when sovereignty changed hands the English concept of limitations upon the crown now applied to the legislative as well as the executive branch. It followed that to construe the guarantee as forbidding deprivation of life, liberty, or property except by legislative enactment would be to render its protection meaningless. The puzzlement of American judges is understandable; only in the latter part of the nineteenth century had the concept been fully disentangled from the related concepts of regularized legislative process and SEPARATION OF POWERS.

The guarantee inherited from Magna Carta is unusual among constitutional limitations. On its face it is not absolute but conditional. The government may not act against persons except by the law of the land or by due process. The thrust is arguably procedural, suggesting original intent may have been to guarantee the protection of a trial. But it can carry substantive meanings as well; those meanings emerged early and had fully developed in England by the late seventeenth century.

Although the wording and position of the state constitutional guarantees varied—some using "law of the land," others "due process of law"; some appending the guarantee to a list of procedural rights, others making it a separate provision—the variation made little difference in judicial response at the procedural level. Not so, however, with respect to substantive content. Where, as in the constitutions of the Carolinas, Illinois, Maryland, and Tennessee, the wording was close to a literal translation of Magna Carta, the guarantee was extended to VESTED RIGHTS, independently of the criminal provisions of the procedural connotation. On the other hand, Connecticut and Rhode Island courts sustained PROHIBITION laws in the 1850s, holding that the phrase "due process of law" in their state constitutions was so enmeshed with entitlements of the criminally accused as to preclude inclusion of substantive right. A third series of cases, from Massachusetts, New Hampshire, New York, and Pennsylvania, read substantive content into the guarantee despite close interrelation with procedural protections. WYNEHAMER V. NEW YORK (1856) requires special consideration. In that case the state's highest court invalidated a prohibition law, insofar as it destroyed property rights in existing liquor stocks, resting its decision on separate constitutional guarantees of both "due process" and "law of the land." Contrary to the opinion of some scholars, Wynehamer was not overruled by Metropolitan Board v. Barrie (1866); the former case applied to a law with retroactive application, the latter to one that was purely prospective.

The Fifth Amendment associates "due process" with other constitutional guarantees clearly procedural in character, and separates the guarantee of due process from the RIGHT AGAINST SELF-INCRIMINATION only by a comma. Yet in major decisions, DRED SCOTT V. SANDFORD (1857), Hepburn v. Griswold (1870), and Adair v. United States (1908), the Supreme Court found substantive content in the clause.

In the FOURTEENTH AMENDMENT, due process is not linked to criminal procedure protections, but resembles those state constitutional provisions that had been held in state courts to have substantive content. However, the Supreme Court has disregarded the distinction between the two due process clauses in the federal Constitution. The Court has been abetted by numerous COMMENTATORS ON THE CONSTITUTION who, intent on denying the substantive element in due process, have ignored or misinterpreted the history of state constitutional guarantees of "due process" and "law of the land." The freedom from procedural connotation of Fourteenth Amendment due process made easier the path of substantive content from dissent in the SLAUGHTERHOUSE CASES (1873), to reception in Chicago, Milwaukee & St. Paul Railway Company v. Minnesota, (1890), to full embrace in LOCHNER V. NEW YORK (1905). The Court's acceptance of the INCORPORATION DOCTRINE, with consequent reading into the Fourteenth Amendment of the various procedural protections enumerated in the BILL OF RIGHTS, largely equates the content of the two due process clauses. This development has written the final chapter in the reinterpretation of "law of the land."

FRANK R. STRONG (1986)  
Bibliography

HOWARD, A.E. DICK 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.

REMBAR, CHARLES 1980 The Law of the Land: The Evolution of Our Legal System. New York: Simon and Schuster.

Source Citation

STRONG, FRANK R. "Law of the Land." Encyclopedia of the American Constitution. Ed. Leonard W. Levy and Kenneth L. Karst. 2nd ed. Vol. 4. Detroit: Macmillan Reference USA, 2000. 1571-1572. 

Encyclopedia of the American Constitution   Ed. Leonard W. Levy and Kenneth L. Karst. Vol. 2. 2^nd ed. Detroit: Macmillan Reference USA, 2000. p828-829. LEONARD W. LEVY

Due Process of Law 

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 accused to trial in MISDEMEANOR and FELONY cases.

In the American colonies the usage was similar. In deference to Magna Carta, the "law of the land" formulation was by far the most common, although a variety of paraphrases existed. The MASSACHUSETTS BODY OF LIBERTIES (1641) guaranteed that one's life, liberty, and property could not be deprived except by "some expresse law of the Country warranting the same, established by a generall Court and sufficiently published"—that is, by known, standing law. West New Jersey protected the same substantive rights by a clause guaranteeing "due trial and judgment passed by twelve good and lawful men." New York in 1683 sought a charter that incorporated the famous chapter of Magna Carta with a clause requiring "by due course of law." Probably the first American reference to "due process of law" was in a Massachusetts act of 1692 endorsing chapter 29 of Magna Carta.

During the controversy with Great Britain leading to the American Revolution, Americans frequently spoke of trial by jury, FUNDAMENTAL LAW, the law of the land, no TAXATION WITHOUT REPRESENTATION, and a gamut of CIVIL LIBERTIES, but rarely referred to due process of law. Their references to the "law of the land" had no fixed or single meaning. They meant by it a variety of safeguards against injustice and abuses of CRIMINAL PROCEDURE; they equated it with NOTICE, hearing, indictment, trial by jury, and, more generally, with regular forms of common law procedure and even the fundamental law itself or constitutional limitations on government. The "law of the land" was an omnibus phrase whose content ranged from specific writs to the concept of CONSTITUTIONALISM, and the phrase connoted protection of substantive rights—life, liberty, and property—as well as various precedural rights. Later, due process inherited all the content and connotations of law of the land.

All the first state constitutions used the "law of the land" phraseology, as did the NORTHWEST ORDINANCE OF 1787. No state constitution included a due process clause until New York's of 1821, although Mississippi's constitution of 1817 referred to "due course of law." Before the Civil War, only five state constitutions referred to "due process of law." All others had the older "law of the land" equivalent.

The first American constitution to include a due process clause was the Constitution of the United States in its Fifth Amendment, ratified in 1791. The clause reflected JAMES MADISON'S preference. For reasons unknown, he recommended that no person should be "deprived of life, liberty, or property without due process of law." The four states which had ratified the Constitution with recommendations for a comprehensive BILL OF RIGHTS urged versions of chapter 29 of Magna Carta, although only one, New York, referred to "due process of law" rather than "law of the land." The due process clause of the Fifth Amendment was ratified without any discussions that illumine its meaning. Although every clause of the Constitution is supposed to have its own independent meaning, rendering no clause tautological, the due process clause was an exception. It pacified public apprehensions, bowed toward Magna Carta, and reinforced specific rights such as trial by jury.

When the Supreme Court construed the due process clause of the Fifth Amendment for the first time in MURRAY V. HOBOKEN LAND COMPANY (1856), it declared that although due process limited all branches of the government, it had only the procedural connotations that derived from the settled usages and modes of proceeding which characterized old English law suited to American conditions. Chief Justice ROGER B. TANEY'S opinion in DRED SCOTT V. SANDFORD (1857) passingly employed SUBSTANTIVE DUE PROCESS OF LAW, which had cropped up in some state decisions and in ABOLITIONIST CONSTITUTIONAL THEORY as well as proslavery theory. The FOURTEENTH AMENDMENT'S due process clause, taken verbatim from the Fifth's, proved to be the turning point in the national acceptance of "due process of law" as the common usage rather than the "law of the land" usage. In the last third of the nineteenth century, state constitutions finally substituted "due process" for "law of the land," and judicial decisions, state and federal, as well as legal treatises, expounded "due process of law," making it the most important and influential term in American constitutional law.

LEONARD W. LEVY(1986)  
Bibliography

HOWARD, A.E. DICK 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.

JUROW, KEITH 1975 Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law. American Journal of Legal History 19:265–279.

MOTT, RODNEY 1926 Due Process of Law. Indianapolis: Bobbs-Merrill.

Source Citation 

LEVY, LEONARD W. "Due Process of Law." Encyclopedia of the American Constitution. Ed. Leonard W. Levy and Kenneth L. Karst. 2nd ed. Vol. 2. Detroit: Macmillan Reference USA, 2000. 828-829. 

16B Am. Jur. 2d Constitutional Law § 952

American Jurisprudence, Second Edition

Constitutional Law

§ 952. Synonymity of "due process" and "law of the land"

The term "due process of law" as used in the United States Constitution has been repeatedly declared to be the exact equivalent of the phrase "law of the land,"¹ as used in the Magna Carta,² and in some state constitutions.³  

 Footnotes

1

Motor Equipment Co. v. Winters, 146 Kan. 127, 69 P.2d 23 (1937); Jordan v. Gaines, 136 Me. 291, 8 A.2d 585 (1939); State v. Ballance, 229 N.C. 764, 51 S.E.2d 731, 7 A.L.R.2d 407 (1949); State v. McClintick, 23 Ohio Misc. 194, 51 Ohio Op. 2d 298, 52 Ohio Op. 2d 188, 255 N.E.2d 885 (C.P. 1970).

2

Wichita Council No. 120 of Security Ben. Ass'n v. Security Ben. Ass'n, 138 Kan. 841, 28 P.2d 976, 94 A.L.R. 629 (1934); Ex parte Sizemore, 110 Tex. Crim. 232, 8 S.W.2d 134, 59 A.L.R. 430 (1928).

3

Anne Arundel County Com'rs v. English, 182 Md. 514, 35 A.2d 135, 150 A.L.R. 842 (1943) (overruled on other grounds by, Weaver v. Prince George's County, 281 Md. 349, 379 A.2d 399 (1977)).

The "law of the land" guaranteed by the North Carolina Constitution is synonymous with "due process of law." State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R.2d 804 (1961).

16C C.J.S. Constitutional Law § 1438

Corpus Juris Secundum

Constitutional Law

XVIII. Due Process of Law

§ 1438. Particular definitions and equivalent terms—Law of the land

"Due process of law" is synonymous or interchangeable with, or equivalent to, "law of the land," a phrase appearing in many state constitutions.¹ The phrases "law of the land" within the meaning of a state constitution and "due process of law" as used in the Fourteenth Amendment to the Federal Constitution, are legal equivalents.²

"Law of the land" implies a general public law, equally binding on every member of the community,³ and it includes established principles of procedure and equity.⁴

Courts have sometimes made use of expressions which would indicate a view that the term "the law of the land," as used in the state constitutions, refer to some particular body of laws then in existence;⁵ but its meaning cannot be so limited, for that would deny any power in a legislature to amend or repeal old laws or to enact new ones.⁶  

Footnotes

1

N.H.—Bragg v. Director, New Hampshire Div. of Motor Vehicles, 141 N.H. 677, 690 A.2d 571 (1997).

N.C.—Clayton v. Branson, 613 S.E.2d 259 (N.C. Ct. App. 2005).

Tenn.—Mills v. Wong, 155 S.W.3d 916 (Tenn. 2005).

2

Me.—State v. Demerritt, 149 Me. 380, 103 A.2d 106 (1953).

Pa.—Com. v. CSX Transp., Inc., 653 A.2d 1327 (Pa. Commw. Ct. 1995).

3

U.S.—Houston Contractors Ass'n v. Metropolitan Transit Authority of Harris County, 993 F. Supp. 545 (S.D. Tex. 1997).

Tex.—Ex parte Sizemore, 110 Tex. Crim. 232, 8 S.W.2d 134, 59 A.L.R. 430 (1928).

4

U.S.—Owens v. Battenfield, 33 F.2d 753 (C.C.A. 8th Cir. 1929).

5

Wash.—Washington Local Lodge No. 104 of Intern. Broth. of Boilermakers, Iron Ship Builders & Helpers of America v. International Broth. of Boilermakers, Iron Ship Builders & Helpers of America, 33 Wash. 2d 1, 203 P.2d 1019 (1949).

6

Mo.—De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640 (1931).

Nev.—Vineyard Land & Stock Co. v. District Court of Fourth Judicial Dist. of Nevada in and for Elko County, 42 Nev. 1, 171 P. 166 (1918).

Wash.—Washington Local Lodge No. 104 of Intern. Broth. of Boilermakers, Iron Ship Builders & Helpers of America v. International Broth. of Boilermakers, Iron Ship Builders & Helpers of America, 33 Wash. 2d 1, 203 P.2d 1019 (1949).

16B Am. Jur. 2d Constitutional Law § 947 

American Jurisprudence, Second Edition

Constitutional Law

XIV. Due Process of Law

B. Nature and Scope of Guarantee

The guarantee of due process of law is one of the most important to be found in the United States Constitution or any of the amendments thereto.¹ It has been stated that no other phrase known to the American and English law comprehends so much that which is basically vital in the protection of human rights and the redress of human wrongs as the phrase "due process of law."² The notion reflects and describes the concept of ordered liberty.³

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than a mere absence of physical restraint.⁴ For instance, the right to hold a specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the liberty and property concepts of the Fifth Amendment.⁵ Moreover, due process requires that matters have sufficient contacts with a state in order for that state's laws to be applied; the parties' consent to apply the law of a particular forum state is not sufficient standing alone.⁶

Due process of law is the primary and indispensable foundation of individual freedoms. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.⁷ The fundamental guarantee of due process is absolute and not merely relative.⁸ It does not have regard merely to enforcement of the law but searches also the authority for making the law, and it is not merely a political right but is a legal right assertable in the courts.⁹ By reason of this guarantee, everyone is entitled to the protection of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions¹⁰ and that have long been recognized under the common-law system¹¹ and which are not infrequently designated as the "law of the land."¹²

A state's obligations under the 14th Amendment are not simply generalized ones; rather, the state owes to each individual that process which, in light of the values of a free society, can be characterized as due.¹³ In evaluating a due process claim, a court must determine whether a property or liberty interest exists and, if so, what procedures are constitutionally required to protect that right.¹⁴

Observation:

When a particular Bill of Rights provision has been made applicable to the states by the 14th Amendment¹⁵ and provides an explicit textual source of constitutional protection against a particular sort of government behavior, that amendment and not some more generalized notion of substantive due process must be the guide for analyzing claims.¹⁶

 Footnotes

1

Ulman v. City of Baltimore, 72 Md. 587, 20 A. 141 (1890).

2

State ex rel. Hoel v. Brown, 105 Ohio St. 479, 1 Ohio L. Abs. 230, 138 N.E. 230 (1922).

3

Wolf v. People of the State of Colo., 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949) (overruled on other grounds by, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio L. Abs. 513, 84 A.L.R.2d 933 (1961)); Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), reh'g en banc ordered, 2009 WL 2383875 (9th Cir. 2009); Skinner v. City of Miami, Fla., 62 F.3d 344 (11th Cir. 1995).

4

Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 LED 2d 772 (1997).

5

Bruns v. National Credit Union Admin., 122 F.3d 1251 (9th Cir. 1997).

6

Schoffman v. Central States Diversified, Inc., 69 F.3d 215 (8th Cir. 1995).

7

Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

8

Hammond Packing Co. v. State of Ark., 212 U.S. 322, 29 S. Ct. 370, 53 L. Ed. 530 (1909).

9

State v. Henry, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805 (1933).

10

Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 70 S. Ct. 403, 94 L. Ed. 381 (1950) (holding that the Due Process Clause expresses deeply rooted notions of justice); State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, 24 A.L.R.2d 340 (1950) (overruled in part on other grounds by, State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. 1959)); Rein v. Johnson, 149 Neb. 67, 30 N.W.2d 548 (1947).

The test to measure the validity of a state statute under the Due Process Clause of the 14th Amendment is whether the statute is contrary to the fundamental principles of liberty and justice. Petition of Groban, 352 U.S. 330, 77 S. Ct. 510, 1 L. Ed. 2d 376, 76 Ohio L. Abs. 368 (1957).

Considerations of due process involve common-sense reasoning and fundamental fairness. In re F.C., III, 2009 PA Super 9, 966 A.2d 1131 (2009), appeal granted, 975 A.2d 1082 (Pa. 2009).

11

Butler v. Perry, 240 U.S. 328, 36 S. Ct. 258, 60 L. Ed. 672 (1916); Sinclair v. State, 161 Miss. 142, 132 So. 581, 74 A.L.R. 241 (1931).

12

Bute v. People of State of Ill., 333 U.S. 640, 68 S. Ct. 763, 92 L. Ed. 986 (1948).

As to the synonymity of "due process" and "law of the land," generally, see § 952.

13

Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971).

14

Bzdzuich v. U.S. Drug Enforcement Admin., 76 F.3d 738, 1996 FED App. 0059P (6th Cir. 1996).

Whether an interest is protected by due process depends not on its weight but on its nature. National Collegiate Athletic Assn v. Yeo, 171 S.W.3d 863, 202 Ed. Law Rep. 403 (Tex. 2005).

15

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996) (holding that the First Amendment is made applicable to the states by the Due Process Clause of the 14th Amendment); Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997).

The term "liberty" in the 14th Amendment makes the First Amendment applicable to the states. McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995).

16

Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994); Patel v. Penman, 103 F.3d 868 (9th Cir. 1996); Tri County Industries, Inc. v. District of Columbia, 104 F.3d 455 (D.C. Cir. 1997).

16C C.J.S. Constitutional Law § 1445

Corpus Juris Secundum

Constitutional Law

XVIII. Due Process of Law

C. Constitutional Guaranty

1. General Considerations

§ 1445. Antecedents to constitutional right

The right to due process of law is not a right wholly dependent for its existence upon any statute or constitutional provision, because the right to enjoy life and property is a fundamental right existing prior to the adoption of the United States Constitution.¹ One due process test is to ascertain what were settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence and whether such usages and modes of proceeding were followed in the United States after it became a nation.²

Recognition of the rule that a person shall not be deprived of life, liberty, or property without an opportunity to be heard in defense of his or her right is of ancient origin, being older than written constitutions, and having been interwoven in the common law long prior to the adoption of the Magna Charta.³

The Magna Charta established the right to the preservation of life, liberty and property subject to the "law of the land," which is now more commonly refer to as due process of law.⁴ The proposition that a person shall not be deprived of life, liberty, or property without due process of law is as old as any principle of civilized government and is found in the Magna Charta and in substance, if not in form, in nearly all constitutions adopted by the several states.⁵ Due process is founded on the principles of natural justice,⁶ and it is the foundation of the constitutional guarantees of due process of law.⁷ It was expressed in the provision of the Magna Charta which protected every freeman in the enjoyment of natural rights unless deprived of them "by the Judgment of his Peers, or the Law of the Land,"⁸ and from this original are derived the guarantees expressed in the various American constitutions.⁹

Footnotes

1

U.S.—U.S. v. Bailes, 120 F. Supp. 614 (S.D. W. Va. 1954).

2

Ky.—Ditty v. Hampton, 490 S.W.2d 772 (Ky. 1972).

3

Pa.—Hess v. Westerwick, 366 Pa. 90, 76 A.2d 745 (1950).

Wash.—State v. Cater's Motor Freight System, 27 Wash. 2d 661, 179 P.2d 496 (1947).

4

Ky.—Democratic Party of Kentucky v. Graham, 976 S.W.2d 423 (Ky. 1998), as modified, (Oct. 15, 1998).

As to "due process of law" and "law of the land," see § 1438.

5

Ill.—People ex rel. Harris v. Parrish Oil Production, Inc., 249 Ill. App. 3d 664, 190 Ill. Dec. 780, 622 N.E.2d 810 (5th Dist. 1993).

6

N.Y.—Rosenblum v. Rosenblum, 181 Misc. 78, 42 N.Y.S.2d 626 (Sup 1943).

Secured by Magna Charta and constitutions

Due process is a principle of natural justice secured by the Magna Charta and successive constitutions of the nation and the states.

N.J.—Horsman Dolls v. Unemployment Compensation Commission, 7 N.J. 541, 82 A.2d 177 (1951).

7

U.S.—Munn v. People of State of Illinois, 94 U.S. 113, 24 L. Ed. 77, 1876 WL 19615 (1876).

N.Y.—Rosenblum v. Rosenblum, 181 Misc. 78, 42 N.Y.S.2d 626 (Sup 1943).

8

U.S.—Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124, 66 L. Ed. 254, 27 A.L.R. 375 (1921).

Ohio—Armstrong v. Marathon Oil Co., 32 Ohio St. 3d 397, 513 N.E.2d 776 (1987).

Pa.—Com. v. Davis, 526 Pa. 428, 586 A.2d 914 (1991).

Origin in judicial parlance

The phrase "due process of law" apparently originated in American judicial parlance with Lord Coke, who in construing the language of the Magna Charta "That no man shall be taken or imprisoned—or deprived of life, liberty or property but by the judgment of his peers or the law of the land" said that phrase "law of the land" meant "due process of law."

Utah—Christiansen v. Harris, 109 Utah 1, 163 P.2d 314 (1945).

9

U.S.—Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124, 66 L. Ed. 254, 27 A.L.R. 375 (1921).

Md.—Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949).

N.J.—Camden County v. Pennsauken Sewerage Authority, 15 N.J. 456, 105 A.2d 505 (1954).