\2\Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).|
\3\Text 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, and see 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 (Cambridge: 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
\4\28 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\W. McKechnie, Magna Carta--A Commentary on the Great Charter
of King John (Glasgow: 2d rev. ed. 1914); J. Holt, Magna Carta
\6\F. Thompson, Magna Carta--Its Role in the Making of the
English Constitution, 1300-1629 (Minneapolis: 1948).
\7\Sir Edward Coke, Institutes of the Laws of England, Part II,
50-51 (London: 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).
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\
\8\The 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.
Scope of the Guaranty.--Standing by itself, the phrase ``due
process'' would seem to refer solely and simply to procedure, to process
in court, and therefore to be so limited that ``due process of law''
would be what the legislative branch enacted it to be. But that is not
the interpretation which has been placed on the term. ``It is manifest
that it was not left to the legislative power to enact any process which
might be devised. The article is a restraint on the legislative as well
as on the executive and judicial powers of the government, and cannot be
so construed as to leave congress
free to make any process `due process of law' by its mere will.''\9\ All
persons within the territory of the United States are entitled to its
protection, including corporations,\10\ aliens,\11\ and presumptively
citizens seeking readmission to the United States,\12\ but States as
such are not so entitled.\13\ It is effective in the District of
Columbia\14\ and in territories which are part of the United States,\15\
but it does not apply of its own force to unincorporated
territories.\16\ Nor does it reach enemy alien belligerents (note the three
simultaneous conditions...Dad) tried by military tribunals outside
the territorial jurisdiction of the United States.\17\
\9\Murray's Lessee v. Hoboken Land and Improvement Co. 59 U.S.
(18 How.) 272, 276 (1856). Webster had made the argument as counsel in
Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518-82
(1819). And see Chief Justice Shaw's opinion in Jones v. Robbins, 74
Mass. (8 Gray) 329 (1857).
\10\Sinking Fund Cases, 99 U.S. 700, 719 (1879).
\11\Wong Wing v. United States, 163 U.S. 228, 238 (1896).
\12\United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon
Quon Poy v. Johnson, 273 U.S. 352 (1927).
\13\South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966).
\14\Wight v. Davidson, 181 U.S. 371, 384 (1901).
\15\Lovato v. New Mexico, 242 U.S. 199, 201 (1916).
\16\Public Utility Comm'rs v. Ynchausti & Co., 251 U.S. 401, 406
\17\Johnson v. Eisentrager, 339 U.S. 763 (1950); In re
Yamashita, 327 U.S. 1 (1946). Justices Rutledge and Murphy in the latter
case argued that the due process clause applies to every human being
[and I too think all God's children are entitled to "due process" in the spirit
of the Constitution and the Declaration of Independence, Dad], including