[rekeying in progress]

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:

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:

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:

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.

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.

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:

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:

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.

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.

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.

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."

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:

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.

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

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.

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:

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.

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 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:

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:

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.

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

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

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.

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 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

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.

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.

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.

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

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.

Raoul Berger. The Fourteenth Amendment and the Bill of Rights (Norman, Okla. and London: University of Oklahoma Press, 1986).

William Blackstone. Commentaries on the Laws of England (1765-69).

Edward Coke. Second Part of the Institutes of the Laws of England (1641).

Michael Kent Curtis. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986).

Charles Fairman. "Does the Fourteenth Amendment Incorporate the Bill of Rights?" 2 Stanford Law Review (1949).

The Founders' Constitution. Edited by Philip B. Kurland (University of Chicago, 1986).

Alexander Hamilton, James Madison, John Jay. The Federalist Papers. Edited by Clinton Rossiter (New York and Scarborough, Ont.: Mentor Books, 1961).

Journals of the Continental Congress. 34 vols. (Washington, D.C.: U.S. GPO, 1904-1937).

Keith Jurow. "Untimely Thoughts: A Reconsideration of the Origin of Due Process of Law," 19 American Journal of Legal History (1975).

Francis Norton Thorpe, ed. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, 1492-1908 (Washington: U.S. GPO, 1909).

Papers of Thomas Jefferson. Boyd edition (1950).

Statutes at Large. 31 vols (1215-1761).

Joseph Story. Commentaries on the Constitution of the United States fifth edition (Boston: Little, Brown, and Co., 1891).

Hannis Taylor. "Due Process of Law" 24 Yale Law Journal 353-69 (March 1915).

Works of James Wilson. Andrews edition (1896).