LIBRA

DUE PROCESS OF LAW

AND THE

EQUAL PROTECTION OF THE LAWS

INTRODUCTION

THE ORIGIN AND GROWTH OF DUE PROCESS

§1. Henry II and the reign of law. The distinctive feature of the Norman period, so far as English constitutional history is concerned, is the development of the new system of central administration with the source of its strength in the royal authority. That new system of central administration was superimposed as a Norman creation upon the Old English system of local self-governing communities represented by the township, the hundred and the shire. Out of the fusion between the two has grown the modern constitution. During the Norman period, embracing the reigns of the four Norman kings, the great mass of foreign elements and influences were infused into the blood, the language, the laws, the political institutions of the English nation; during the Angevin period, embracing the reigns of Henry II and his sons, the foreign elements were worked together into a new combination that retained the strongest elements of both. The most striking single fact revealed by an analysis of the result is, that in the new combination the superstructure is Norman, the substructure Old English. Under the pressure of common calamities and through the agency of frequent intermarriage the work of fusion

Due Process-1

advanced so rapidly that by the time of Henry II it was impossible, without a careful examination of pedigree, fo ascertain who was Norman and who was English. So soon as that condition of things was reached, in which it was difficult to distinguish an Englishman from a Norman, all legal distinctions of one race as against the other passed out of view. Thus was paved the way for the epoch-making policy that contemplated not only the establishment of the reign of law, but the reduction of all orders of men to a state of legal equality before the same system of law, inaugurated by Henry II, "whose statesmanlike activity, whose power of combining and adapting that which was useful in the old system of government with that which was desirable and necessary under the new, gives to the policy which he initiated in England almost the character of a new creation." Stubbs, Const. Hist., i, 336. See also the author's Origin and Growth of the English Constitution, i, 284-333.

§ 2. Richard I and John-The struggle for the charters. Henry II was succeeded by his son Richard I, a spendthrift knight errant, who strained to the utmost the new system of taxation his thrifty father had devised in order to provide vast sums of money to be expended in crusades. By the steady and persistent pressure of taxation upon every class during Richard's reign, the clergy, the baronage, and the commons were each in turn aroused to more or less positive resistance. With the wanton and irritating pressure of the royal authority upon every class in the reign of Richard I, the struggle for the charters really begins. That struggle was intensified after the accession of John by the shameless pressure of taxation, by acts of wanton despotism in individual cases, and by constant demands upon the baronage for military service in fruitless expeditions which were never carried out. The royal authority reached the limit of its growth when both Richard and John, accepting the imperialist theories of Glanville, held that the will of the prince was

the law of the land. The reckless attempts made by John to enforce that theory finally brought about the armed conflict between the king and the nation, divided now into clergy, baronage and commons as a part of a general movement known as the estate system whose growth constitutes an important epoch in the constitutional history of Europe. The nation thus marshaled in the ranks of the three estates claimed that the law of the land was not the will of the prince, but the immemorial laws of the English Kingdom, with such modifications and amendments as those laws had suffered through the results of the Norman conquest. It is therefore plain that when the barons seized upon the charter of Henry I as the basis of national action and demanded of the king that he should enter into a treaty with the nation upon the lines it defined, it simply amounted to a demand upon their part that the legal and constitutional relations between the king and the nation should henceforth be regulated by the Old English code of customary law, subject to such changes in that code as the results of the conquest had brought about. The effort was to fix the limits of innovation, to define the extent to which the centralizing and feudalizing processes to which the conquest gave birth should be permitted to abridge the immemorial freedom in the time to come. In that vital question each estate was interested as a corporate entity, and the nation as a whole was also interested as a corporate entity.

§3. The Great Charter of 1215 a treaty between the crown and the estates. An analysis of the Great Charter, when made in the light of the circumstances attending its execution, clearly reveals the fact that, although issued in the form of a royal grant, it was in substance a treaty or compact entered into between the royal authority on the one hand and the nation marshaled in the ranks of the three estates on the other. As the clergy, the baronage, and the general commonalty of freemen all participated in the movement that brought about the

making of the convention, and as all three orders participated equally in its fruits, the great act at Runnymede was in the fullest sense of the term a national act, and not the mere act of the baronage in behalf of their own special privileges. The winning of the charter was in fact the final consummation of the work of union. In the words of a master: "It is the first great act of the English nation after the descendants of Norman conquerors and Norman settlers had fully become Englishmen, after all thought of any distinction between the king's men, French and English, had passed away from the thoughts of men." Freeman, Norm. Conq., Vol. V., p. 475. Each estate enters into a covenant with the king as to its own special rights and privileges, while the nation in its corporate person covenants as to those general rights and immunities which are to be secured to the whole body of freemen, irrespective of their division into estates or orders.

§ 4. Chapter 39 of the Great Charter. Foremost among the guaranties given by the charter to the nation as a whole were those embracing reforms in the judicial system. In addition to the provisions touching the character and appointment of judicial officers, the framers of the charter were careful to announce a series of practical rules, both general and special, for the government of all courts in the administration of justice. First among those general rules stands the famous chapter 39, which provides that, "No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land." A recent and able commentator, in speaking of the "main object" of that chapter, has said: "It has been usual to read it as containing a guaranty of trial by jury to all Englishmen; as absolutely prohibiting arbitrary commitment; and as undertaking solemnly to dispense to all and

sundry an equal justice, full, free, and speedy. (See, e. g., Coke, Second Institute, 55.) The traditional interpretation has thus made it, in the widest terms, a promise of law and liberty, and good government to every one. (Thus Blackstone, Commentaries, iv, 424.) A careful analysis of the words of the clause, read in connection with its historical genesis, suggests the need for modifications of this view. It was in accord with the practical genius of this great document that it should direct its energies, not to the enunciation of vague platitudes and well-sounding generalities, but to the reform of a specific and clearly defined group of abuses. Its main object was to prohibit John from resorting to what is sometimes whimsically known in Scotland as 'Jeddart justice.' It forbade him for the future to place execution before judgment." McKechnie, Magna Carta, p. 439. John often proceeded, or threatened to proceed (under the theory that the will of the prince is the law of the land) by force of arms against those assumed to be guilty, without waiting for legal procedure. "The practice of granting writs of execution without trial in the courts appears to have been common." Bigelow, History of Procedure, p. 155. The primary purpose of chapter 39 was to demand not only legal procedure, prior to execution, but an ascertainment of guilt or liability "by the lawful judgment of his peers and by the law of the land." Mr. Webster had that basic idea clearly in mind when, in defining "due process of law" and "the law of the land," in the Dartmouth College Case, he said: "By the law of the land is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.”

Nothing can be clearer, in the light of our present knowledge, than the fact that "nisi per legale judicium parium suorum vel per legem terrae" meant nothing more than the right to make "proof" according to one of the then existing modes of legal procedure. In the words of a great historical jurist: "The expression 'per