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Chapter 7: The Fourteenth Amendment--Terms of Art
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Chapter Seven. The Fourteenth Amendment--Terms of Art

 

The Fourteenth Amendment contains two expressions which were not only found already in the original Constitution, but had before that been technical terms of long standing in the common law. The phrase "privileges and immunities" was found in Article IV Section 2, and was commonly used in charters and grants under the common law. "Due process of law" was found in the Fifth Amendment. Its inspiration could be traced back to the 29th Chapter of Magna Carta, and its specific language to the stuatue of 28 Edward III. The third, "equal protection of the laws," was virtually non-existent as a common law term of art. It was, however, in widespread circulation in abolitionist propaganda, and was foreshadowed by similar language among seventeenth century Levellers and republicans.

 

Privileges and Immunities were conventional terms used in corporate charters, grants, and letters patent, often in a series with other terms such as "franchises," "liberties," "royalties," etc. These and like terms referred to the specified rights granted to members of a corporation. As such, they were treated as positive rights, without regard one way or the other to their fundamental status or ultimate grounding in natural law. The terms can be found, in instances too numerous to cite, in American colonial charters. More to our purpose, the privileges and immunities granted in colonial charters were often defined as equivalent to those of English municipal corporations; the typical form was to give the officers of the corporation the privileges and immunities appertaining to the Bishop of Durham in the county palatine of Durham. [Thorpe 70, 1627, 1679, 2763 (1909)]

The New Jersey Constitution of 1776 used the phrase in a similar comparative sense, guaranteeing to every Protestant inhabitant the full and free enjoyment of "every privilege and immunity, enjoyed by others their fellow subjects." [Thorpe 2597-98] The Pennsylvania Constitution of 1776 guaranteed to all eleemosynary corporations "the enjoyment of the privileges, immunities and estates which they were accustomed to enjoy or could of right have enjoyed, under the laws and former constitutions of this state." [Thorpe 3091]

The term "privileges and immunities" was used in the Articles of Confederation in this same sense of defining the rights of certain persons in terms of the rights granted to others in a particular jurisdiction. Article IV provide, in part:

The better to secure and perpetuate mutual friendship and intercourse, among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively.... [9 Journals of the Continental Congress 909 (1777)]

In other words, each State was bound to grant to citizens of other States sojourning within its borders, the same civil rights which it granted to its own citizens. Article IV, like its same-numbered counterpart in the 1787 Constitution, concerned matters of comity between the States; along with this provision, the article contained provisions for extradition and "full faith and credit" similar to those in its successor. Raoul Berger, in quoting this article, placed stress upon the phrases "free ingress and egress" and "privileges of trade and commerce," emphasizing that its concern was not with the absolute rights of citizens, but with the relative rights of strangers (especially merchants) in another State. [Berger (1986) 31-32]

Thomas Jefferson, in his service on the Committee of Revision of the common and statue law of Virginia, drafted "A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth," which incorporated Article IV of Confederation (as yet unratified). Among its provisions was the following:

The free white inhabitants of every of the states, parties to the American Confederation, paupers, vagabonds and fugitives from justice accepted, shall be intitled to all rights, privileges, and immunities of free citizens in this commonwealth, and shall have free egress, and regress, to and from the same, and shall enjoy therein, all the privileges of trade, and commerce, subject to the same duties, impositions and restrictions as the citizens of this commonwealth. [2 Papers of Thomas Jefferson 477 (Boyd edition 1950)]

This draft bill, as an example of a contemporary construction of the fourth article of Confederation, strongly suggests that Jefferson understood it in terms of the comparative rights defined under State law, and not substantive rights of citizens of the United States as such.

The 1787 Constitution, whose Article IV was also a grab-bag of provisions relating to interstate comity, included in Section 2 a clause loosely based on the analogous provision in the old Articles:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

It is worthy of notice that Alexander Hamilton, writing in Federalist No. 11 on a matter completely unrelated to this part of the Constitution, used the terms "privileges" and "immunities" in reference to a comity in rights granted under different jurisdictions. He wrote in the context of the bargaining power which a single national policy concerning the "immunities [of foreign merchants] in our markets" would give the U.S. for obtaining similar "privileges in the markets [of the West Indies]." [Rossiter's Federalist 85-87]

In discussing Article IV Section 2 itself, in Federalist No. 80, Hamilton tied it to the diversity of citizenship jurisdiction of the Supreme Court.

It may be esteemed the basis of the Union that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority it will follow that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles in which it is founded. [Rossiter's Federalist 478]

Hamilton's reference to "equality of privileges and immunities," taken by itself, could plausibly be taken either as a reference to equality in substantive national rights, or to equality of rights of citizens and strangers under the laws of a single State. But the fact that he treats the clause in an extended consideration of the judiciary, in the context of the diversity jirisdiction, when the rights of when the rights of one State's citizens are infringed by another State, implies that the latter construction is more probable.

James Wilson, in his 1791 lecture "Of Man, As a Member of a Confederation," discussed the clause in the light of Bacon's Abridgement on the mutual naturalization between the citizens of States party to a confederation. Bacon's context was the doctrine of Calvin's Case that the subjects of England and Scotland born after the accession of James I were mutually naturalized, even before the Act of Union.

Among these [the "general rights and privileges" which "should be diffused indiscriminately among" members of a confederation], the rights and privileges of naturalization hold an important place. Of such consequence was the intercommunicatoin of these rights and privileges in the opinion of my Lord Bacon, that he considered them as the strongest of all bonds to cement and to preserve the union of states. "Let us take a view," says he, "and we shall find, that wheresoever kingdoms and states have been united, and that union incorporated by a bond of mutual naturalization, you shall never observe them afterwards, upon any occasion of trouble or otherwise, to break and sever again.".... This important subject has received a proportional degree of attention in forming the constitution of the United States. [1 Works of James Wilson 313 (Andrews edition 1896)]

The emphasis on mutual naturalization between States clearly implies that the provision concerns the status, within a State, of the citizens of her sister republics; they are to be treated, at least for some purposes, as having been naturalized under her own laws.

This section of the Constitution was construed extensively in a number of State and federal court decisions up until the Civil War. The dominant tendency was to read the clause as guaranteeing, under the laws of each State, equal rights to residents from other States. Some decisions, however, seem to take it as protecting substnative rights common to all citizens of the United States. A few others either vacillate between the two, or are altogether unclear in their meaning.

Perhaps the most incoherent opinion is that of Maryland Chief Justice Samuel Chase in Campbell v. Morris (1797). It contains this enigmatic passage:

The object of the convention in introducing this clause into the constitution, was to invest the citizens of the different states with the general rights of citizenship; that they should not be foreigners, but citizens. To go thus far was essentially necessary to the very existence of a federate government, and in reality was no more than had been provided for by the first confederation in the fourth article.

But it could never have been the intention of the framers of our national government, to melt down the states into one common mass; to put the citizens of each in the exact same situation, and confer on them equal rights: this principle would have been wholly destructive of the state government.

The expressions, however, of the fourth article convey no such idea. It does not declare that "the citizens of each state shall be entitled to all privileges and immunities of the citizens of the several states. [?]" Had such been the language of the constitution, it might, with more plausibility, have been contended that this act of assembly was in violation of it; but such are not the expressions of this article [!]; it only says that "The citizens of the several states shall be entitled to all privileges and immunities of citizens in the several states. [egad!]" Thereby designing to give them the rights of citizenship, and not to put all the citizens of the United States upon a level; consequently, the injury [sic], as to the effect of a law of any state, will not be whether it makes a discrimination between the citizens of the several states, but whether it infringes upon any civil right, which a man as a member of civil society must enjoy. [3 Harr. & McH. 535 (Md. 1787), in 4 Kurland The Founders' Constitution 490]

One hardly knows what to make of this. The reference in the first sentence to not being "foreigners" to each other, taken with the denial that the intent was to endow the citzens of all States with equal rights, seems to imply that the main concern is the relative status under State law of residents of other states. But the last sentence quoted clearly implies certain substantive rights inherent in federal citizenship, apparently to be deduced from a priori principles (this is, after all, the same Samuel Chase later renowned as a U.S. Chief Justice for his "great first principles of the social compact" in Calder v. Bull); but somehow without melting down the States into one mass or putting all United States citizens on a level. He also managed, in a foreshadowing of Congressman Bingham's creative editing, so to rewrite the clause as to impose on it a radically different meaning.

But in another passage in the same opinion, Chase states, without obfuscation, the conventional view of the provision:

The court are of of opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State, in the same manner as the property of the citizens of the State is protected. It means, such property shall not be liable to any taxes, or burdens which the property of the citizens is not subject to. It may also mean, that as creditors, they shall be on the same footing with the State creditor, in the payment of the debts of a deceased debtor. It serves and protects personal rights. [Id., in Fairman (1949) 5, 13-14]

This passage implies that the provision's guarantee is merely relative or procedural, requiring the equal application of State laws, whatever they are, to citizen and non-citizen alike.

The combined effect of both passages taken together is comparable to that of a Zen koan; given the personality of Mr. Chase, one might imagine his purpose have been to paralyze the faculties of his colleagues on the bench, as a prelude to perpetrating some swindle on them. Assuming for the moment that his purpose was to communicate a coherent opinion, this is the most plausible reconciliation of the entire passage we can manage: the rights of "man as member of a civil society" identifies only the kinds of rights (e.g. the "advantage of acquring and holding real as well as personal property") falling under the comity clause; what the clause requires is merely that the rights included in the category of fundamental rights of citizenship, however they are defined, be equally afforded to all within a State.

The Supreme Court of Delaware, in Douglass v. Stephens (1821), imputed a substantive meaning to "privileges and immunities," but was very vague as to how the rights covered could be determined.

The privileges and immunities to be secured to all citizens of the United States are such only as belong to the citizens of the several States, which includes the whole United States, and must be understood to mean, such privileges as should be common, or the same in every State; and this seems to limit the operation of the clause in the Constitution to federal rules; and to be designed to restrict the powers of Congress as to legislation, so that no privilege or immunity should be granted by it to one citizen of the United States, but such as might be common to all. The language is not that the citizen in any State shall be entitled to all the privileges of citizens in each State....

The privileges and immunities... are not enumerated or described; but they are all privileges common in the Union, --which certainly excludes those privileges which belong only to citizens of one or more States, and not to those in every other State.

Perhaps the most widely cited opinion is that of Justice Washington in Corfield v. Coryell (1823), in the federal circuit court of the eastern district of Pennsylvania.

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expression of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate the mutual friendship and intercourse among the people of the different states of the Union." [6 Fed. Cas. 546, 551-52, no. 3230 (Circuit Court E. D. Pennsylvania, April Term, 1823)]

This opinion can be read plausibly in either substantive or comparative terms. Michael Curtis interpreted it "as protecting a set of basic national liberties...." [Curtis (1986) 67] Raoul Berger rejected this view, citing specifically the fact that Washington inquired into privileges and immunities "of citizens in the several States," not of the United States, and referred specifically to the right of ingress and egress. [Berger (1986) 36]

In fact, the opinion contains several terms which lend themselves to a comparative interpretation: the reference, cited by Berger, to privileges and immunities "in the several states"; the definition of general rights of life, liberty, property, and the pursuit of happiness under positive laws enacted by the State police power ("such restraints as the government may justly prescribe"); the specific reference to residence in another State; the reference to access to State courts; the standard of equality with State citizens in matters of taxation; the qualification of the elective franchise by the State police power; the phrase "enjoyment of them by the citizens of each state, in every other state"; and the citation of the fourth article of Confederation's "mutual friendship and intercourse among the peoples of the several states...."

We might remark in passing, that Corfield is unique in including the elective franchise among these rights. Campbell v. Morris explicitly excepted it, andit was also foresworn by expositors of the Fourteenth Amendment's "privileges and immunities" clause in the Thirty-Ninth Congress, as we shall see later. The implications of all these considerations is that Corfield does not list substantive rights of national citizenship, but rather lists rights which, however they are defined in positive law, are to be guaranteed by each State on the same terms to citizen and non-citizen alike.

Abbot v. Bayley (Massachusetts 1827) argued that, because the States remained foreign to each other "in most respects," in all cases of jurisdiction reserved to themselves, the Constitution therefore made explicit the international law of comity between them.

The privileges and immunities secured to the people of each State in every other State, can be applied only in cse of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office.... They shall have the privileges and immunities of citizens, that is, they shall not be deemed aliens, but may take and hold real estate, and may, according to the laws of each State, eventually enjoy the full rights of citizenship without the necessity of being naturalized. [6 Pick. 89 (Mass. 1827), in Fairman 13n, 14-15]

Likewise, Crandall v. the State of Connecticut (1834) held that the provision's "plain and obvious meaning" was "to secure to the citizens of all the states, the same privileges as are secured to our own, by our own state laws." [10 Conn. 339 (1834), in 4 Kurland 508]

Joseph Story, in his Commentaries, followed this same conventional interpretation. He took the clause in pari materia "with the exclusive power of naturalization in the national government," finding "its object... not easily to be mistaken."

It is obvious that if the citizens of each State were to be deemed aliens to each other, they could not take or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances. [2 Story's Commentaries 581-82]

As we shall see later, advocates of "anti-slavery constitutionalism" like Jacobus ten Broek would not have us forget that an unorthodox, substantive reading of "privileges and immunities" was current in certain abolitionist circles. Nevertheless, as a legal term of art, the dominant interpretation in the federal courts was still procedural as late as 1868, two years after the Fourteenth Amendment was drafted. In Paul v. Virginia, Justice Field wrote for the majority:

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizen of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. [75 U.S. (8 Wall.) 168, 180 (1868)]

Thus, as it was conventionally read, the expression "privileges and immunities" simply forbade a State to discriminate between its citizens and residents from other States in the civil liberties defined under its laws, and in the adjective rights to defend them in court. Recourse to this same expression would seem to occur naturally, therefore, to a Republican of 1866 who wished to correct the substantial legal disabilities imposed upon freed blacks and resident northerners, vis a vis their own white citizens, under the laws of southern States.

Charles Fairman surmised as much, speculating that the operation of Article IV Section 2 was expanded to fill certain gaps left by the original Constitution.

So far as civil rights were concerned, the mischief to be remedied was, first of all, discrimination against the Negro by the government of the state wherein he resided.... This was an evil against which Article IV, Section 2 had nothing to say: how the state treated its own inhabitants was beyond the purview of that provision. Far less important, though listed as a subsidiary point, was the mistreatment that at times had been meted out in the Southern States to visitors from out-of-state; South Carolina's action in excluding Samuel Hoar of Massachusetts [and abolitionist lawyer retained by the Commonwealth to test a South Carolina statute detaining black seamen in jail while their ships were in port] in 1844 was the stock example. This latter type of discrimination was forbidden by Article IV, Section 2; but here the difficulty was that Congress had been given no specific power to compel obedience. Evidently a constitutional amendment that (1) required the state to accord to all its inhabitants the equal protection of its laws, and then (2) gave Congress power to enforce this requirement as well as Article IV, Section 2, would have substantially met both evils. In effect, the rights enjoyed by the white citizen in any state would be the measure of the rights of the local Negro and of the citizen of a sister state. [Fairman (1949) 21-22]

Just as, we might note, Article IV originally did define the rights of the citizen of a sister State in terms of the rights granted to the citizens of a State, or as a colonial charter defined the rights of corporate officers in terms of the rights of the Bishop of Durham in his county palatine. The continuity in usage of these terms over two and a half centuries of Anglo-American legal history is remarkable.

 

Due process of law is, if any expression may rightfully be so called, the holy of holies of the common law tradition. That specific phrase goes back only to 28 Edward III (1354), but it may be treated as a continuation of the history of the phrase "law of the land," found in Chapter 29 of Magna Carta.

Magna Carta was originally issued in the reign of King John, but it first appears in the English statutes as renewed in 9 Henry III (1225). Chapter 29 provided that

No freeman shall be taken, or imprisoned, or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwide destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. (2) We will sell to no man, we will not deny or defer to any man either Justice or Right. [9 Henry 3 Staat 1 C. 29 (1225), 1 Statutes at Large 7-8]

5 Edward III (1331), in part, reconfirmed that provision of Magna Carta, promising "That no Man from henceforth shall be attached by any Accusation, nor forejudged of Life or Limb, nor his Lands, Tenements, Goods, nor Chattels seised into the King's Hands, against the Form of the Great Charter, and theLaw of the Land. [5 Edw. 3 Cap. IX (1331), 1 Statutes at Large 209]

In 1350, 25 Edward III elaborated on what was entailed in the phrase "law of the land," making it clear that it was identifed with the ordinary processes of the common law.

Item, Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land; (2) it is accorded, assented, and stablished, That from henceforth none shall be taken by Petition, or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same Neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Commmon Law; (3) nor that none be out of his Franchises, nor of his Freeholds, unless he be duly brought into Answer, and forejudged of the same by the Course of the Law.... [25 Edw. 3 Cap. IV (1350), 1 Statutes at Large 262]

As Keith Jurow characterized the statute, it "sought to prohibit the king's council from summoning parties to appear before them by methods other than the usual procedures of the common law." [Jurow (1975) 265, 268]

This identification of the law of the land with common law procedure was made still more explicit in 28 Edward III (1354), which for the first time replaced the expression "law of the land" in Chapter 29 of Magna Carta with "due process of law": "Item, That no Man of what Estate or Condition that he be, 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 the Law." [28 Edw. 3 Cap. III (1354), 1 Statutes at Large 285]

Jurow attributed this statute to the commons' grievances concerning persons put in exigend in counties in which they did not reside, and subsequently outlawed without their knowledge. The purpose of the act was to prohibit the outlawing of any person until he had been summoned to answer the charges against him. As evidence of this conjecture, he cited the same parliament's annulment of the attainder of Roger Mortimer on the grounds that he had suffered loss of life and estate without any formal accusation or opportunity to answer the charges. [Jurow 266-67] As an illustration of the specific content of due process, as parliament understood it, he referred to Chapter 10 of the same statute:

II. And if the Mayors, Sheriffs, and Aldermen be by such Inquests... indicted, they shall be caused to come by due Process before the King's Justices, ...before whom they shall have their Answer, as well to the King as to the Party.... (5) And because that the Sheriffs of London be Parties to this Business, the Constable of the Tower, or his Lieutenant, shall serve in the Place of the Sheriffs, to receive the Writs, as well Originals of the Chancery as Judicial, under the Seal of the Justices, to do thereof Execution in the said City. (6) And Process shall be made by Attachment and Distress, and by Exigent, if Need be; so that at the King's Suit the Exigent shall be awarded after the first Capias returned, and at the third Capias returned at the suit of the Party. (7) And if the Mayor, Sheriffs, and Aldermen have Lands or Tenements out of the City, Process shall be made against them by Attachments and Distresses in the same Counties where the Lands or Tenements be. [28 Edw. 3 Cap. 10 (1354), 1 Statutes at Large 287]

The implication, as Jurow saw it, is that Chapter 3 "seems merely to require that the appropriate writ be used to summon the accused before the court to answer the complaints against him." [Jurow 297]

42 Edward III Chapter 3 (1368) forbade the trial of any man before the Council without indictment by a grand jury.

Item, At the Request of the Commons by their Petitions put forth in this Parliament, to eschew the Mischiefs and Damages done to divers of his Commons by false Accusers, ...which accused Persons, some have been taken, and sometimes caused to come before the King's Council by Writ, and otherwise upon grievous Pain against the Law: (2) it is assented and accorded, for the good Governance of the Commons, That no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Writ original, according to the old Law of the Land.... [42 Edw. 3 Cap. 3 (1368), 1 Statutes at Large 324]

Jurow took this statute, together with 28 Edward III, to identify "due process" with "the method of summoning the person to appear before the Council to answer the accusations made against him." The specific objections--"caused to come before the King's Council by Writ," etc.--was to an expanded judicial role for the Council, "us[ing] methods that differed markedly from those of the common law courts." The writ quibusdam certis de causis, first used under Edward III, "summoned the person to appear without specifying... the causes against him." It was issued under the privy seal, rather than out of Chancery under the Great Seal, as were ordinary common law writs. When the phrase "et hoc subpoena centum librarum nullatenus omittas" was added, the writ acquired the common name of subpoena. [Jurow 270]

The effect of this writ, and of the procedures peculiar to the Council, was to deprive the subject of the procedural guarantees of the common law. The Council's writ of subpoena was used to evade the restrictions of 28 Edward I that "no writ... that toucheth the Common Law, [shall] go forth under any of the petty Seals." [28 Edw. I State. 3 Cap. 6 (1300), 1 Statutes at Large 143] And proceedings in the Council, begun by means of this writ, included examination under oath without being informed of the charges against oneself. The objections of the commons therefore were not to "the judicial activity of the council," per se, but to "the extraordinary procedure used by the council." These statutes of Edward III were intended "to secure common law procedure for the judicial proceedings of the council." [Jurow 270-71] (Jurow provided a series of examples through the sixteenth century to demonstrate that "process" continued to be identified with common law writs. The reports of Dyer and Anderson in the reign of Elizabeth listed under "process" such writs as summons, attachment, warrants for appearance, and subpoena. [Id. at 272-73])

Thus, we can trace the origins of the term "due process" to Parliament's attempts under Edward III to restrict the unbridled power of prerogative courts. The Five Knights Case (1627), one of the milestones in the seventeenth century struggle against Stuart absolutism, was the fulfillment of this heritage. [Five Knights Case. Proceedings on the Habeas Corpus, brought by Sir Thomas Darnel, Sir John Corbet, Sir Walter Earl, Sir John Heveningham, and Sir Edmund Hampden, at the King's-Bench, in Westminster-Hall; 3 Charles I, A.D. 1627. 3 Howell's State Trials 1 (1627)]

The central issue in the Five Knights Case was whether imprisonment by royal command, without any specific charge against the prisoner, met the requirement of due process. [Id. at 1-2] Of the "many gentlemen who were imprisoned throughout England" for refusal to subscribe to Charles I's forced loan, only five petitioned for writs of habeas corpus. The Warden of the Fleet, in his return upon the writ, stated that the accused were held "per speciale mandatum domini regis"--by special command of the lord king. [Id. at 3, 6]

Sergeant Bramston, counsel for Sir John Heveningham, argued that the writ of habeas corpus required a specific cause of imprisonment, along with the statement "that it was by presentment or indictment, and not upon petition made to the king and lords...." As his authorities he appealed to 25 Edward III c. 4 and 42 Edward III c. 3. [Id. at 7]

Mr. Noye, counsel to Sir Walter Earl, defined the "Lex terrae," on the basis of its exposition in acts of Parliament, as "the process of the law, sometimes by writ, sometimes by the attachment of the person...." As evidence that commitment by special command of the king violated this requirement, he put forward two petitions of 36 Edward III, in which the commons complained that the Great Charter and the Charter of the Forests had been "broken" by arrest by special command. The king's response to both had been to grant the petitions and prohibit such arrests. [Id. at 14-15]

Mr. Calthrop, the counsel for Sir John Corbet likewise identified due process, on the authority of 25 Edward III, with "indictment or presentment of his good and lawful neighbors, where such deeds are done in due manner, or by process made by writ original at the common law...." None was to be arrested by petition or suggestion to the king or his council without such process. [Id. at 23]

The most famous argument in the case was that of Mr. Selden, counsel for Sir Edmund Hampden:

The statute of Magna Charta, cap. 29, that statute if it were fully executed as it ought to be, every man would enjoy his liberty better than he doth. The law saith expressly, "No freeman shall be imprisoned without due process of the law;" out of the very body of this act of parliament, besides the explanation of other statutes, it appears, "Nullus liber homo capiatur vel imprisonatur nisi per legem terrae." My lord, I know these words "legem terrae," do leave the question where it was, if the interpretation of the statute were not. But I think under your lordship's favour, there it must be intended by due course of law, to be either by presentment or indictment. [Id. at 18]

The Petition of Right was brought in 1628 in response to the same royal abuses involved in the Five Knights Case. [Petition of Right. 3 Howell's State Trials 59 (1628)] After recounting the usual statutory protections against takings without consent ("statutum de tallagio non concedendo," 34 Edw. 1; 25 Edw. 3; 1 Edw. 3), the commons complained:

V. Nevertheless, against the tenor of the said statutes, and other good laws and statutes of your realm, to that end provided, divers of your subjects have of late been imprisoned, without any cause shewed; and when for their deliverance they were brought before your justices, by your majesty's Writs of Habeas Corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer; no cause was so certified, but that they were detained by your majesty's special command, signified by the lords of your privy-council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law....

VII. [Despite 25 Edw. 3]: nevertheless, of late divers commissioners, under your majesty's great seal, have issued forth, by which certain persons having been assigned and appointed commissioners with power and authority to proceed, within the land, according to the justice of martial law, against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever; and by such summary course and orders as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death, according to the martial law.

VIII. By pretext whereof some of your majesty's subjects have been, by some of the said commissioners, put to death; when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might and by no other ought to have been adjudged and executed. [Id. at 222-23]

In 1640, by which time the king's position had deteriorated considerably, Charles I assented to an act abolishing the Court of Star Chamber, appendant to the Council. This signalled the ascendancy of the parliamentary construction of due process, and the eclipse, at least until the Restoration, of the power of the prerogative courts. After reciting the usual statutes guaranteeing and defining due process of law, the act went on:

II. And forasmuch as all Matters examinable or determinable before the said Judges, or in the Court commonly called the Star-Chamber, may have their proper Remedy and Redress, and their due Punishment and Correction, by the Common Law of the Land, and in the ordinary Course of Justice elsewhere; ...(3) and the Proceedings, Censures and Decrees of that Court, have by Experience been found to be an intolerable Burthen to the Subjects, and the Means to introduce an arbitrary Power and Government; (4) and forasmuch as the Council-Table hath of late Times assumed unto it self a Power to intermeddle in Civil Causes and Matters only of private Interest between Party and Party, and have adventured to determine of the Estates and Liberties of the Subject, contrary to the Law of the Land and the Rights and Privileges of the Subject, by which great and manifold Mischiefs and Inconveniences have arisen and happened, and much Incertainty by Means of such Proceedings hath been conceived concerning Mens Rights and Estates; for settling whereof, and preventing the like in Time to come,

III. Be it ordained and enacted by the Authority of this present Parliament, That the said Court commonly called the Star-Chamber, and all Jurisdiction, Power and Authority belonging unto... be... clearly and absolutely dissolved, taken away and determined.... [16 Car. 1 Cap. 10 (1640), 3 Statutes at Large 133-34]

Sir Edward Coke, a contemporary of and occasional participant in these constitutional struggles, discoursed at length upon due process in the second volume of his Institutes. He identified the law of the land as the common law of England, and treated it as equivalent in meaning to due process.

1. That no man be taken or imprisoned, but per legem terrae, that is, by the common law, statute law, or customs of England....

2. No man shall be disseised..., unless it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the law of the land (that is, to speak it once for all) by the due course, and process of law. [2 Coke's Institutes 46]

Coke later elaborated upon what due process entailed in case of process by arrest or attachment:

Now here it is to be knowne, in what cases a man by the law of the land, may be taken, arrested, attached, or imprisoned in case of treason or felony, before presentment, indictment, &c. Wherein it is to be understood, that porcess of law is two fold, viz. By the king's writ, or by due proceeding, and warrant, either in deed, or in law without writ [as examples, he gave arrest by hue and cry, or by an ordinary subject on the basis of "common fame" that one was guilty of treason or felony]. [Id. at 51]

Process by arrest or attachment, however, itself had to meet certain requirements for due process.

Now seeing that no man can be taken, arrested, attached, or imprisoned, but by due processe of law, and according to the law of the land, these conclusions hereupon doe follow.

First, that a commitment by lawfull warrant, either in deed or in law, is accounted due processe or proceeding of law, and by the law of the land, as well as by processe by force of the king's writ.

2. That he or they, which doe commit them have lawfull authority.

3. That his warrant, or mittemus be lawful, and that must be in writing under his hand and seale.

4. The cause must be contained in the warrant....

5. The warrant or mittemus containing a lawfull cause, ought to have a lawfull conclusion, viz. and him safely to keep, until he be delivered by law, &c. and not untill the party committing doth evidently appeare by writs of habeas corpus.... [Id. at 52]

A further requirement of due process, taken from Chapter 29 of Magna Carta, is access to the courts, without any harassment or other impediment, for redress of grievances.

And therefore every subject of this realme, for injury done to him in bonis, vel persona, by any other subject... may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely and without sale, fully without deniall, and speedily without delay. [Id. at 55]

Jurow considered Coke's account of lawful arrest, "almost identical to the argument of the five knights," to be "probably the most important part of Coke's commentary on Magna Carta for his contemporaries." [Jurow at 277]

Moving forward more than a century, we find that Blackstone identified due process with regular common law judicial proceedings; no statute of general applicability could be a violation of due process. For example, he defined liberty as

the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. Concerning which we make the same observations as upon the preceding article [personal security]; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws [Here Blackstone proceeded to quote Magna Carta and subsequent statutes requring "legal indictment, or the process of the common law" as prerequisites for imprisonment]. [1 Blackstone's Commentaries 130-31 (1765)]

The last clause is as good an encapsulation as any of the traditional common law understanding of due process: that the executive magistrate could not arrest anyon or seize his property, except by the process prescribed by the legislative branch, and for an offence against known law.

Blackstone made a similar equation of "course of law" with "laws of the land" in his comments on the right of property. It was subject to no control or diminution

save only by the laws of the land.... The laws of England are... extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of antient statutes it is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, unless he be duly brought to answer, and be forejudged by course of law. [Id. at 134-35]

Hence, as Blackstone understood it, due process was a limitation on the caprice of the crown and its servants, including judicial magistrates. Blackstone, like Coke, identified as a requirement of due process that the courts be open to all and free from corruption and irregularities, quoting the 29th Chapter of Magna Carta that justice should not be for sale, or denied or delayed. [Id. at 137] And the substance of regular judicial process was the right to be "brought to answer" at a personal appearance. [4 Blackstone 313(1769)]

The law of the land, above all, was the common law subject to exposition and modification by act of Parliament. Due process was the course of judicial proceedings prescribed by Parliament.

It were endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and whatever the law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament....

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament. [1 Blackstone 137-38]

In short, due process and the law of the land were defined by Parliament; they could only be violated by the executive and judicial branches; any legislative act, by definition, was the law of the land.

Herein lies the weakness of the traditional reading of due process in Blackstone's time. It was only useful as a restraint on the executive when there was an executive power distinct from the legislative. Britain retained the vestiges of a separation of powers under the late Stuarts, through the reign of Queen Anne. But under the Hannoverians, the Whig oligarchy transformed the Britsh constitution into its modern form of legislative-executive fusion under a parliamentary system. George III made some feeble attempts to restore the crown as a genuinely independent executive, rather than a mere head of state presiding over a ministry controlled by Parliament. But his attempts at informal favor toward one minister at another's expense placed him in a political minefield; and his successors came to terms with their largely ceremonial role. The result that, in modern Britain, the notion of "due process" as a restraint on the government is a historical curiosity.

The significance of the constitutional changes did not go unnoticed. By Blackstone's time, there were growing apprehensions that the omnipotence of Parliament might endanger the liberties of the subject. Although Parliament might be bound by no fundamental positive law superior to its own statutes, it was as capable as the crown of morally impermissible actions against the subject. Any laws not of universal applicability, such as attainders of treason and other special acts against individuals, were a violation of the spirit of due process.

[Municipal law] is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, doth not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. [1 Blackstone 44]

Parliament could, by such capricious and arbitrary acts, punish a subject for an act which was no offense under general, preexisting laws, and deprive him of the ordinary modes of defense available in court under the common law. Although such acts were not technically violations of due process, they affected subjects in a manner analogous to royal infringements on due process. While Blackstone considered such acts morally questionable, and violations of the spirit of the rule of law, he refused to set legal limits on the omnipotence of Parliament. Special acts of Parliament, not being general laws, were outside the scope of a treatise on law.

As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro re nata, and by no means an executio of such as are already in being. [4 Blackstone 256]

Overall, as Hannis Taylor put it, the traditional English understanding of due process could be contrasted to the civil law concept of administrative law:

...due process of law stands as the anti-pole of what French jurists call droit administratif, which rests upon the assumption that the government and each of its servants possesses a body of special rights and privileges as against private citizens to be fixed on principles different from those defining the legal rights and duties of one citizen toward another. Under that theory, speaking generally, the ordinary tribunals have no concern with the administrative law (droit administratif), as applied by administrative courts (tribunaux administratifs), at the head of which stands the Council of State. [Hannis Taylor 353]

It remained for the Americans to establish due process on an authority superior to that of the legislature, and to treat it as a restraint on legislative as well as executive power.

The common law of the American colonies and States was a direct continuation and outgrowth of the English heritage detailed above. The colonists saw their provinces as new English realms; the common law was their patrimony, belonging of right to the transplanted Englishmen who carried it with them. Accordingly, the Americans from the time of earliest settlement embodied the English heritage of "due process" and the "law of the land" (which they largely followed Coke in treating as interchangeable) in their fundamental laws and statutes.

Taking the original thirteen colonies/States in their traditional geograhic order, we start with the New Hampshire Constitution of 1784, in its Bill of Rights, Article XVI, which directly quoted Chapter 29 of Magna Carta.

 

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