To the student of American institutions it must appear singularly
impressive and instructive that the members of the Constitutional
Convention of the state of New York have paused in their important
work to celebrate the seven-hundredth anniversary of the Great
Charter of English Liberties and to look back reverently through the
centuries to the sources of our constitutional law and to the days
when our ancestors were laying the foundations of civil liberty and
political justice. It is, indeed, no exaggeration to assert that
Magna Carta marked the greatest political epoch in the history of our
race, in that it saved England from becoming one of the arbitrary and
degrading despotisms which arose in Europe after the overthrow of the
feudal system, and that from its principles sprang representative and
constitutional government, with all that these terms have grown to mean
to Americans. This ceremony must again emphasize the great truth that
everything which has power to win the obedience and respect of men must
have its roots deep in the past, and that the more slowly institutions
have grown, so much the more enduring are they likely to prove.
Two hundred and eighteen years ago the royal governor of New York is
reported to have exclaimed to the legislature of the colony: "There
are none of you but are big with the privileges of Magna Carta." And
to-day, Mr. President, can it not be said with equal force and pride
that there are no Americans but are big with the privileges of Magna
Carta? Long may that continue to be true! To provide that the spirit
of these privileges shall endure forever, so far as lies in human
power, is the highest and noblest duty of every American constitutional
convention.
Other speakers will treat of the historical and political aspects of
Magna Carta and of its reissues and confirmations by king after king
and parliament after parliament. I am to speak of the legal value of
some of the cardinal features of the Great Charter as antecedents of
principles which are closely connected with our present political life
and which continue to invigorate our system of constitutional law. But
my treatment of this large and important aspect of the subject must
necessarily be inadequate, in view of the limited time at your disposal.
It is undoubtedly true that Magna Carta contained much that was old in
1215 and much that subsequently became antiquated because inapplicable
to changed conditions; yet it then crystallized and served to
perpetuate the fundamental principles of the liberties of Englishmen.
Solemnly confirmed no less than thirty-seven times by seven kings of
England, it naturally became in the eyes of Englishmen the embodiment
of their deepest and most firmly rooted rights and liberties and their
great and stirring battle-cry against tyranny. The reissue of 1225
still remains on the English statute books as in full force and effect,
so that, as an English historian has recently said, every act appearing
on the statute rolls is in a sense an act amending Magna Carta.
The spirit of Magna Carta, as it thus survived, has for centuries
inspired Englishmen and Americans, even though its letter may be dead
and most of its provisions may long ago have become obsolete and their
exact meaning hidden beneath the ruins of the past. Indeed, provisions
of the Great Charter were frequently violated by king and parliament
after 1215, and were allowed to fall into neglect for generations at a
time; but it cannot be doubted that, if the principles they embodied
had been observed, they would have secured permanent political liberty
and constitutional government to England long before the seventeenth
century, and that only disregard of those principles made possible the
five centuries of tyranny and oppression recorded by English history.
It may likewise be true, as some historians of the scientific school
are now contending, that the framers of the Great Charter and the
representatives of the English church, baronage and people gathered on
the meadows at Runnymede on the 15th day of June, 1215, had little or
no grasp of the science of politics or of constitutional principles
as we understand them. It is probably true that they had no very
definite conception of the theory of representative government, or of
the separation of governmental powers, or of those inalienable rights
of the individual which our Declaration of Independence was later to
proclaim, just as it is probably true that very few of them could even
read the language in which the charter was written. But statesmen and
lawyers, in dealing with the practical problems of constitutional
government, will not minimize the value of Magna Carta, and our debt
to the generation that forced it from King John, merely because the
underlying principles may not have been fully grasped by its framers
and its traditions may be based on legends and myths. It is enough that
the charter contained the germ and the spirit of civil liberty and
political justice.
It may be conceded that the framers of Magna Carta builded better than
they knew, and likewise that many of the traditions as to the intent,
meaning and scope of its provisions--traditions which were so potent
and inspiring during the seventeenth and eighteenth centuries--were
founded, as is now asserted, upon legends and myths. Yet, these legends
and traditions, growing up and clustering around Magna Carta, served
to keep alive and perpetuate its spirit. They generated the sentiment
which impelled men to patriotic and heroic sacrifice in the cause of
liberty; they sustained generation after generation in the recurring
struggles for political justice and equality before the law; they
formed and preserved a public morality which prevented violations of
the principles of the Great Charter, and they were of incalculable
inspiration and encouragement to Englishmen and Americans, if not to
the whole world. The great traditions of Magna Carta have made its
heritage peculiarly valuable and its service to humanity immortal. It
is because of these traditions that Magna Carta is doubly sacred to us,
as it was to our forefathers.
Many of us, however, venture to believe that the unknown author of the
original Articles of the Barons or of the Great Charter itself--if
it was not the learned Stephen Langton, who had been educated at the
University of Paris and was familiar with Roman and canonical law and
the charters of liberties which the kings of France had been granting
to their subjects--knew far more of the underlying and vivifying
principles of jurisprudence and politics than some of our modern
critics are willing to attribute to that generation. Be this as it
may, the political instinct of our race must have guided the framers
to the eternal truths upon which the Great Charter of Liberties was
based, even though they imperfectly comprehended these truths, or
did not comprehend them at all. A single phrase like "the law of the
land" in a political document is often wiser than is realized, not
merely by the masses who acclaim it, but even by the leaders who write
it. It may happily serve to preserve and compress into very small
compass the relics of ancient wisdom, notwithstanding the fact that
later generations are frequently puzzled to decipher the contents
and discover the meaning. Such a phrase, as has been well said of
the language of a nation, "sometimes locks up truths which were once
well known, but which in the course of ages have passed out of sight
and been forgotten. In other cases it holds the germs of truths, of
which, though they were never plainly discerned, the genius of its
framers caught a glimpse in a happy moment of divination, ... and often
it would seem as though rays of truths, which were still below the
intellectual horizon, had dawned upon the imagination as it was looking
up to heaven."[2]
First and foremost among the cardinal principles of Magna Carta was
the idea, then beginning again to germinate throughout Europe, that
the individual has natural rights as against the government, and that
those rights ought to be secured to him by fundamental laws which
should be unalterable by king or council. No one can study the history
of European politics during the great constructive thirteenth century
without being impressed by the fact of the revival of this conception
in men's minds, not only in England, but on the Continent, where it
manifested itself in varying forms and in different connections. I say
revival, because the same conviction had prevailed hundreds of years
before in both Greece and Rome; but it had been lost for centuries.
The idea that the fundamental laws of the land--the pious and good old
laws of Alfred and of Edward, as the English called them, or _les lois
fondamentales_, as the French were then calling them--were unalterable
and that any governmental regulation, or edict, or statute to the
contrary should be treated as void and null, is plainly enunciated in
the first chapter of Magna Carta, where King John grants to the freemen
of the kingdom "all the underwritten liberties, to be had and held by
them and their heirs, of us and our heirs forever," and in chapter
sixty-one, where the king covenants that he "shall procure nothing from
any one, directly or indirectly, whereby any part of these concessions
and liberties might be revoked or diminished; and if any such thing
has been procured, let it be void and null." It is certain that during
the thirteenth and fourteenth centuries the theory generally prevailed
in England that the concessions and liberties of the Great Charter
had been granted forever and were unalterable by the king, or even by
parliament. Thus, we find parliament enacting in 1369, with the consent
of Edward III., that the Great Charter of Liberties should be "holden
and kept in all points, and if any statute be made to the contrary,
that shall be holden for none."
One of the scholarly critics of Magna Carta suggests that this
enactment of 1369 was quite an "illogical theory" on the part of
parliament, because, to quote his language, "if parliament had power
to alter the sacred terms of Magna Carta, it had power to alter the
less sacred statute of 1369 which declared it unalterable."[3] The
conclusive answer to this kind of reasoning, at least as it must
seem to statesmen and lawyers, is that Magna Carta was then regarded
as something very different from and much higher than any ordinary
statute. The people of that day would have protested, if the logic
of parliament had then been challenged by the learned, that Magna
Carta was a permanent charter of liberties and as such not subject to
amendment or nullification by mere statute. But logical or illogical
as the act of 42 Edward III. may have been at the time, or may seem to
be to the logicians of the twentieth century, it serves to show that
in the fourteenth century the English people understood and intended,
and the king and parliament expressly agreed and conceded, that the
liberties guaranteed by the Great Charter, then being again and again
confirmed, were unalterable, and that any statute to the contrary
should be "holden for none."
The spirit of that declaration still lives in every American
constitution. We certainly have here the antecedent of the great
controlling principle underlying the whole structure of American
constitutional law, that any statute in conflict with the fundamental
laws, so far as we see fit to perpetuate them in constitutional
provisions, shall be void and null, in the language of the Great
Charter, or holden for none, in the language of the time of Edward III.
Chief Justice Marshall in the great case of Marbury _vs_. Madison, in
1803, was but following these ancient declarations when, speaking for
the Supreme Court of the United States, he settled--we hope for all
time--the beneficent and indispensable doctrine that a statute contrary
to an American constitution must be treated by the courts as void and
null and holden for none.
I do not overlook the fact that this idea of fundamental laws
unchangeable by statute long slumbered in England, and that the
contrary--the legal supremacy of parliament--was subsequently
established. In studying this aspect of the Great Charter, we must
recall that the conditions of life in England during the thirteenth and
fourteenth centuries were very much simpler than those existing later,
and that it was not then realized, or at most only vaguely and dimly,
that the legislative power could change the laws regulating the rights
and duties of individuals as among themselves or in their relation to
the government. The modern habit of imagining that in legislation is to
be found the panacea for all ills and of measuring the efficiency of
a government by the number of statutes it has produced was unthought
of. Probably the only legislative function in the minds of Englishmen
during the thirteenth and fourteenth centuries was taxation, and as yet
men hardly realized the necessity for broader regulative or legislative
powers.
Nevertheless, the doctrine that the permanent fundamental principles of
the law of the land guaranteed by Magna Carta were inviolable prevailed
in England long after the fourteenth century, and in fact was declared
in the English courts as late as the seventeenth century. Bonham's case
is the most familiar instance of the recognition of that doctrine. The
views of English lawyers, judges and statesmen have changed in this
respect, and it is now settled that parliament is supreme and that it
can amend or repeal Magna Carta in any respect it may see fit. The
changed view undoubtedly met with ready acquiescence, partly because of
the necessity for amendments of the law in order to cope with changing
conditions, partly because of the unwillingness of the English people
to leave questions of constitutional power to the courts, in view of
the dependence of the judges upon the crown, but principally because
of the confident belief that parliament existed primarily for the very
purpose of upholding and protecting the rights and liberties secured to
the people by the Great Charter of Liberties, and that the people could
rely upon parliament never to consent to the violation of those rights
and liberties.
Repeatedly from the seventeenth century to our own day legislation
has been criticized in Great Britain and Ireland on the ground that
it was in conflict with Magna Carta, and always the strongest and
most effective argument against proposed legislation has been that
it would violate the principles of the Great Charter of Liberties.
During the past thirty years thoughtful observers of English politics
have remarked that private property in England is, on the whole, less
secure from attack on the part of the government in our day than
it was at the time of the Stuarts. Whenever the increase of class
legislation and attacks on private property shall lead Englishmen to
place checks and restraints upon the power of temporary majorities, so
as more effectively to protect personal and property rights--an event
which, I believe, must inevitably come to pass sooner or later--then
the stirring battle-cry will again be Magna Carta, and the result
may be a return to the spirit of the declarations of Magna Carta and
of the statute of Edward III., that any statute contrary to the law
of the land guaranteeing the fundamental rights and liberties of the
individual shall be void and null and holden for none. And to make that
ancient, sound and honest principle really an effective protection to
the individual and to minorities, the courts of justice of England may
at last be empowered, as they are with us, to refuse to give force
and effect and to hold for none any statute in conflict with the
fundamental law of the land.
Of an importance no less vital than the idea of a permanent law of
the land safeguarding the fundamental rights and liberties of the
individual, was the express declaration in the first chapter of Magna
Carta that the English church, _Anglicana ecclesia_, should be free
from interference on the part of the crown and that her rights should
be entire and her liberties inviolable. In this provision we have the
germ of an independent church and the idea of the separation of Church
and State.
It is reasonable to assume and, in view of the surrounding
circumstances and the language then employed, it is highly probable
that, under the lead of Langton, who was born of English parents and
intensely patriotic, probably himself the author of the clause, the
churchmen of that day conceived that the religion of the English people
ought to be free from governmental control, and that the English church
had interests and privileges independent of the crown and independent
likewise of the interests and policies of Rome. At that very time
the English churchmen, in cooperating with the barons and people of
England to secure Magna Carta, were acting against the will of Rome;
indeed, as we know, the Pope promptly denounced the Great Charter
and the patriot primate, because the Pope considered that the Great
Charter was derogatory to the dignity of King John as a vassal of the
Holy See. In this provision of Magna Carta relating to the English
church, even though it was disregarded for centuries, we recognize
the idea of religious liberty and the American political principle
of the separation of Church and State, as also, though vaguely, the
great principle underlying the noble declaration in our own state
constitution that "the free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall
forever be allowed in this state to all mankind."
The provisions of the Great Charter relating to the administration
of justice were undoubtedly those which were of chief concern to
the people at large, as they were certainly, if observed, those most
essential for the security of their liberties. The framers knew that
it was in the courts that the king of England would keep his promises,
if at all, and that the king's government would only be as good as his
judges were learned, independent and impartial. In these provisions of
Magna Carta we find the principle of the separation and independence
of the judicial power and the soundest and highest conceptions of the
administration of justice, conceptions far in advance of those to be
found in any other document or enactment of that age.
The framers had grasped the great truth that jurisprudence is a
science, that the law must be administered by men learned in that
science and bound to obey its rules and follow its precedents, that
uniformity and certainty are essential to the administration of
justice, and that the highest political liberty is the right to justice
according to law and not according to the will of the judge or the
judge's master, or according to the judge's individual discretion, or
his notions of right and wrong. They had also arrived at the conclusion
that every Englishman was entitled as of absolute right to a day in a
court which would hear before it condemned, which would proceed upon
notice and inquiry, and which would render judgment only after a fair
trial. The plain people of England knew full well that the struggle
for their old laws--the laws of their land, pious, good, fixed and
permanent, as they devoutly believed them to be--would be fruitless
unless they secured permanent courts and learned, independent and
impartial judges; and they instinctively felt, if they did not clearly
perceive, that the law is infinitely wiser than those who may be called
upon to administer it, and that, as Aristotle had declared fifteen
hundred years before, "to seek to be wiser than the laws is the very
thing which is by good laws forbidden."
It was Magna Carta that established in England the doctrine of the
rule of law administered in fixed courts by learned and independent
judges bound to obey the law; and it was Magna Carta that established
the greatest of all the English constitutional doctrines, that of
the supremacy of the law over every official however high. When the
Great Charter was being translated and explained in the cathedrals,
churches and monasteries of England, the people fully understood the
tremendous significance and value to them, determined as they were to
establish a rule of law and put an end to arbitrary decrees, of the
famous covenant in chapter forty-five that the king would "appoint as
justices, constables, sheriffs, or bailiffs only such as know the law
of the realm and mean to observe it well," and of the covenants in
chapter seventeen that the "common pleas shall not follow our court,
but shall be held in some fixed place"--in chapter eighteen that the
petty assizes should be held in the county court--in chapter thirty-six
that the writ of inquisition should be freely "granted, and never
denied"--in chapter forty that "to no one will we sell, to no one
will we refuse or delay, right or justice," which in time came to be
interpreted as a universal guaranty of free and impartial justice to
all classes high and low.
For many generations in England and in America it was believed that
the writ of habeas corpus, justly esteemed the great bulwark of
personal liberty, had its direct guaranty or at least its antecedent
in Magna Carta. Such was the contention of counsel in the Five Knights
case of 1627, and such was the declaration of the Petition of Right
of 1628. This view is now being challenged on the ground that the
exact procedure subsequently developed was not provided for in Magna
Carta and was not in the minds of its authors. Even if this be so,
the underlying principle of chapter thirty-six and its promise that
the writ of inquisition should be freely "granted, and never denied"
naturally led in time, after the passing of trial by combat, to the
right of speedy inquisition by grand jury and trial by petit jury.
At all events, the principle of the writ of habeas corpus was for
centuries assumed to be embodied in Magna Carta.
Professor Dicey lecturing at Oxford on "The Law of the Constitution"
has well remarked that, although the English Habeas Corpus acts declare
no principle and define no rights, they are for practical purposes
worth a hundred constitutional articles guaranteeing individual
liberty. As in England, so with us. Without the writ of habeas corpus
there would be no liberty worthy of the name and no rights of personal
freedom of any practical value. We have only to read the leading cases
in our courts to realize how great a part the writ has played and still
plays in securing and rendering effective the fundamental principles of
American liberty.
Chapters twelve and fourteen of Magna Carta dealt with the subject of
taxation, and they laid the foundation of our representative system
and of the separation of the legislative from the executive power. As
has been suggested, the only legislative function that the people of
England in the thirteenth century contemplated as closely affecting
them or as likely to create any pressing grievance was that of
taxation. It was, therefore, expressly provided in the Great Charter
that, aside from the three existing feudal aids, more or less fixed,
the power to impose taxes should not be exercised without the consent
of the _commune consilium_. This common council is the body that fifty
years later developed into the famous parliament of Simon de Montfort
of 1265.
In the controversies in regard to taxation subsequently arising,
whether in parliament, in the courts, or in the forum of public
opinion, it was always insisted that Magna Carta prevented taxation
without the consent of parliament, just as in the eighteenth century
our ancestors contended that Magna Carta prevented taxation without
representation, that is, prevented the imposition of taxes except by
a legislative body in which the taxpayers were represented. We have
only to refer to the arguments in the great constitutional cases before
the courts of England in the seventeenth century, such as the famous
case of Impositions in the reign of James I. and the still more famous
case of Ship-Money in the reign of Charles I., to realize how much
the people relied upon Magna Carta as establishing the doctrine that
parliament alone could impose taxes.
The counsel for Bate in the former case and for Hampden in the
latter case may not have apprehended the philosophical theory of the
separation of governmental powers elaborated by Montesquieu in the next
century, and they may not have contended that taxation was essentially
a legislative function and, therefore, could not be exercised by the
king; but in final analysis they affirmed these principles when they
asserted that parliament alone could impose taxes. The judgment of a
majority of the court in the Ship-Money case, as had been the judgment
in the case of Impositions, was in favor of the crown, but the appeal
to the country cost Charles I. his head and ultimately resulted in
vesting in parliament the exclusive power to legislate and hence to
tax. If England had then had an independent judiciary charged with
the duty of enforcing the fundamental law of the land, the levying of
the taxes in both of these cases would have been held contrary to the
letter, as it was certainly contrary to the spirit, of Magna Carta.
It is no answer to say that the parliament of to-day finds its
prototype not in the old common council referred to in Magna Carta,
but in the parliament of 1265, nor is it an answer to say that the idea
of taxation in its abstract form is essentially modern and was quite
unknown in 1215. I do not suggest that the people of England in 1215 or
even in 1265 understood the virtues of the representative system, or
the principles of taxation or of the separation of powers. The point
is that the direct consequence of the provisions of Magna Carta was a
parliament based, theoretically at least, on the representative idea as
well as on the principle that there could be no legislation without the
consent of parliament.
The most famous of all the chapters of Magna Carta and the most
important and far-reaching from a juridical point of view is
undoubtedly the thirty-ninth, which provides that "no freeman shall be
taken or imprisoned or disseised 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."
The substance of this provision as to "the law of the land," or its
equivalent "due process of law," is of universal application throughout
the United States as a constitutional limitation upon the powers of
government, and it is to be found not only in the Constitution of the
United States but in the constitution of every state of the Union. It
is now firmly established in American and English constitutional law,
and it is familiar knowledge, that the terms "the law of the land" and
"due process of law" are exactly equivalent in meaning and in legal
force and effect. The earliest use of the phrase "due process of law"
in American constitutions seems to have been in the fifth amendment to
the Constitution of the United States, ratified in 1791. None of the
state constitutions then in existence contained that term, but nearly
all of them used the phrase "the law of the land." The phrase "due
process of law" will be found in the New York bill of rights of 1787.
Until recent years, it had been assumed that the term "the lawful
judgment of his peers" in Magna Carta meant trial by jury according
to the modern understanding of that term, and that the term "the law
of the land" meant laws conforming to those fundamental principles of
justice which protect every individual in the full enjoyment of life,
liberty and property secure from the arbitrary exercise of the powers
of government. That is still the technical legal meaning of these
two terms both in England and in America, although their practical
effect and operation are different with us, because of our system of
written constitutions which the legislative branch may not disregard or
violate. Both of these meanings, however, are now challenged by certain
critics as being without foundation in either the provisions or the
history of the Great Charter.
Some historians contend that the familiar provision of Magna Carta
could not have meant trial by a jury of twelve and a unanimous verdict,
because such a jury, according to our present knowledge, did not
exist until the second half of the fourteenth century. But it is
quite immaterial whether the exact form of our jury-trial existed in
England in 1215, or when the Great Charter was subsequently reissued or
confirmed, provided that the foundations of the system had then been
laid. It is sufficient for us that the antecedents of the modern jury
system in all its three forms of grand jury, criminal jury and civil
jury existed at the time of Magna Carta and were preserved by it. As
the jury system developed, with the changes inevitably attending all
such institutions of legal procedure and machinery, the form for the
time being, whatever its exact nature, became "the lawful judgment of
his peers" within the intent and meaning of the Great Charter. In any
event, the latest confirmations of that instrument occurred at a time
when the jury system as now in force was being firmly established.
It is, therefore, easy to understand how the provision "the lawful
judgment of his peers" in the course of time came to be regarded as
intended to guarantee the common-law jury of twelve with unanimity in
verdict.
Thus many, if not most, of our constitutional provisions now apply to
conditions not at all contemplated by their framers although clearly
within the principle enunciated and the spirit of the language used.
Much of the efficacy of our federal and state bills of rights, or of
any similar provisions which this Convention may embody in the new
constitution, would be practically nullified if the language used
were to be interpreted as being limited to the particular conditions
existing when they were adopted. It is the spirit and the expanding
principles of constitutional provisions which should always control.
The letter killeth.
A charter of liberties, a bill of rights, or a constitution is not
an ephemeral enactment designed to meet only the conditions existing
at the time of its adoption. It embodies and perpetuates permanent
principles. It is designed to endure "forever," in the language
of Magna Carta, and "to approach immortality as nearly as human
institutions can approach it," in the lofty phrase of Marshall, the
great Chief Justice of the United States. Under any other rule of
interpretation, Magna Carta would have become antiquated long before
the discovery of America.
By the phrase "the law of the land," in chapter thirty-nine, the
fundamental principles and axioms of the existing law were perpetuated.
Exactly what those fundamental principles and axioms were then
understood to be is not now capable of accurate exposition. The
judges and the people of those days certainly had some definite
ideas of reasonably just and fixed rules of conduct adequate for the
solution of the simple questions arising in the controversies then
being submitted for adjudication. Had the judges been pressed for a
comprehensive or philosophical definition of "the law of the land,"
they might have said that they would not attempt to define the term
any more than they would attempt to define justice itself, and that,
as the Supreme Court of the United States declared only a few years
ago, it is better to ascertain the intent of such an important phrase
in a great constitutional document by the gradual process of judicial
inclusion and exclusion as practical experience may dictate and as
the cases presented for decision may require; in other words, that
their decisions would in time sufficiently declare and perpetuate the
principles of the law of
"A land of settled government,
A land of just and old renown,
Where freedom slowly broadens down
From precedent to precedent."
The phrase "the law of the land," as used in Magna Carta, must have
been intended at the time to include procedure as well as substantive
law, but the term "due process of law," now its current equivalent,
originally related only to procedure. A very early, if not the
earliest, use of the term "due process of law" will be found in a
statute of the year 1354, 28 Edward III., in which it was provided that
no person should be condemned without being first brought to answer by
due process of the law, the exact wording in the quaint Norman-French
of the day being "_saunz estre mesne en respons par due proces de
lei_." As at the same time the Great Charter was being expressly
confirmed "to be kept and maintained in all points," the provision
in regard to _due proces de lei_ in the act of 1354 was undoubtedly
intended to be supplemental to the provisions of the Great Charter
and to apply only to persons being brought to trial in a court of
justice. It is true that in the seventeenth century Lord Coke used the
phrase "due process of law" as the equivalent of "the law of the land,"
but in the contemporaneous Petition of Right of 1628 mention is made
specifically of the "Great Charter of the Liberties of England" and its
provision as to "the law of the land," and reference is made separately
to the act of 28 Edward III. and its provision that no man should be
prosecuted "without being brought to answere by due process of lawe."
The same distinction in the use of these terms will be found in the
history of the Plymouth colony as early as 1636 and also in the early
history of the state of New York. The New York charter of liberties and
privileges of 1683 speaks of "being brought to answere by due course
of law," the words evidently being taken either from the act of Edward
III. of 1354, or from the Petition of Right of 1628. The New York
constitution of 1777 used the term "the law of the land" but did not
use the term "due process of law." In the New York bill of rights of
1787, we find the phrases "the law of the land," "due process of law"
and "due course of law," and in one section the phrase "due process
of law according to the law of the land." Both terms, "the law of
the land" and "due process of law," are used with evidently the same
meaning in the present constitution of the state of New York, that
is to say, "the law of the land" is used in section I of Article I.
and "due process of law" in section 6. The separate history of each
section, the former first appearing in the constitution of 1777 and the
latter in the constitution of 1821, will account for the difference in
terminology.
It would be interesting to trace the varying uses of these terms in
our forty-eight state constitutions, but that must be left for some
other occasion. A majority of the state constitutions, including most
of the recent constitutions, now contain the term "due process of law."
As that term is the one used in the fourteenth amendment, which is
applicable to all the states, it might be preferable, for the sake of
uniformity and certainty, to adopt that form as less likely to confuse.
Moreover, the phrase "due process of law" lends itself readily to a
more comprehensive and inclusive definition if we define the word
"due" to mean _just and appropriate_ and the word "process" to mean
_substantive provision_ as well as procedure.
Finally, it may be of interest to notice the sanction and security
devised for enforcing the covenants of Magna Carta. A body or tribunal
of twenty-five barons, called executors, was created by chapter
sixty-one, who were to "be bound with all their might, to observe
and hold, and cause to be observed, the peace and liberties we have
granted and confirmed to them," and who were to have power to compel
the king himself, even by force, to keep the promises he had made.
The clause providing this security or legal sanction was crude, but
it was not necessarily an impracticable innovation. Although the
plan utterly failed, it remained of immense value in principle. That
principle established the right of the subjects to compel the king of
England to obey a body of fixed laws outside and beyond his will; it
justified revolution for just cause, and it inspired our forefathers
in their struggle against George III. The influence of this idea upon
public sentiment as justifying revolution, particularly during the
seventeenth and eighteenth centuries, cannot well be over-estimated.
The ineffectiveness of this provision of Magna Carta served also to
demonstrate the futility of such a tribunal and security, and to lead
the English people to look thereafter solely to the courts of justice
and to parliament for the protection of their rights and liberties.
The founders of our own republican governments may have been warned
by the failure of this sanction that it would be unwise to create any
political body with power to enforce constitutional provisions, and
it may have been for this reason that they left the enforcement of
constitutional limitations and the protection of the individual and
minorities to an independent non-political forum composed of impartial
judges learned in the law and meaning "to observe it well," according
to the spirit of Magna Carta.
In closing his great commentaries on the Constitution of the United
States, Mr. Justice Story admonished the American people that,
although the whole structure of our constitutional liberty was erected
by architects of consummate skill and fidelity, with its defences
impregnable from without, it might nevertheless perish in an hour by
the folly or corruption or negligence of its only keepers, the people.
It cannot, indeed, be too often declared that, if constitutional
government and fundamental rights are to endure, they must be
maintained and preserved by competent leaders and representatives of
the people constantly teaching the value of the traditions of Magna
Carta and the necessity of adhering to constitutional principles and
observing constitutional morality. The members of this Convention are
not likely to disregard the living spirit of the Great Charter of
English Liberties and its enduring value to Americans. It was Lincoln
who said that "as a nation of freemen we must live through all time,
or die by suicide." But we shall perpetuate free government and civil
liberty only as we adhere to two essential conditions: the one, that
our fundamental rights shall continue to be inviolable by the state,
the other, that they shall be equal. "If not inviolable, they are not
rights, but only enjoyments on sufferance; if not equal, they are but
the privileges of a class, whatever that class may be."[4]