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.
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        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

[[Page 1345]]
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 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).