Amdt5.4.2 Right to Due Process: Historical Background

Fifth Amendment:

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

It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.1 The content of due process is a historical product2 that traces all the way back to chapter 39 of Magna Carta, in which King John promised that [n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.3 The phrase due process of law first appeared in a statutory rendition of this chapter in 1354. No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.4 Though Magna Carta was in essence the result of a struggle over interest between the King and his barons, 5 this particular clause over time transcended any such limitation of scope, and throughout the fourteenth century parliamentary interpretation expanded far beyond the intention of any of its drafters. 6 The understanding which the founders of the American constitutional system, and those who wrote the Due Process Clauses, brought to the subject they derived from Coke, who in his Second Institutes expounded the proposition that the term by law of the land was equivalent to due process of law, which he in turn defined as by due process of the common law, that is, by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law.7 The significance of both terms was procedural, but there was in Coke’s writings on chapter 29 a rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which was to flower in the United States.

The term law of the land was early the preferred expression in colonial charters and declarations of rights, which gave way to the term due process of law, although some state constitutions continued to employ both terms. Whichever phraseology was used, the expression seems generally to have occurred in close association with precise safeguards of accused persons, but, as is true of the Fifth Amendment here under consideration, the provision also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use. 8


  1.  Jump to essay-1Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting). Due process is violated if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
  2.  Jump to essay-2Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).
  3.  Jump to essay-3Text and commentary on this chapter may be found in W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 375–95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, 139–59. As expanded, it read: No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land. See also J. Holt, Magna Carta 226–29 (1965). The 1225 reissue also added to chapter 29 the language of chapter 40 of the original text: To no one will we sell, to no one will we deny or delay right or justice. This 1225 reissue became the standard text thereafter.
  4.  Jump to essay-428 Edw. III, c. 3. See F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629, 86–97 (1948), recounting several statutory reconfirmations. Note that the limitation of free man had given way to the all-inclusive delineation.
  5.  Jump to essay-5W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow, 2d rev. ed. 1914); J. Holt, Magna Carta (1965).
  6.  Jump to essay-6F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (1948).
  7.  Jump to essay-7Sir Edward Coke, Institutes of the Laws of England, Part II, 50–51 (1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see, e.g., A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (1968).
  8.  Jump to essay-8The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the law of the land phrase in a separate article, 3 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its constitution of 1821 was the first state to pick up due process of law from the United States Constitution. 5 id. at 2648.