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History of the Due Process Clause

  • Date Submitted: 10/09/2010 11:05 AM
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The Fifth Amendment to the United States Constitution includes a clause called Due Process Clause and it is stated in the passage “no person… shall be deprived of life, liberty, or property, without due process of law.”   The historical background has its origins in the Article 39 of the Magna Carta, which states that “no 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.” This British clause from 1215 was designed to protect the private interests of the noble class against arbitrary actions of the king, submitting this last one to the principle of legality. In a first moment, these rights applied only for landowners and not for common citizens.
After many changes in Magna Carta, the expression “Due Process of Law” appears for the first time in 1354 statute, that says “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." The legal meaning of “Due Process of Law” in this document is that the accused person has the right to a process based in an appropriate writ. This bureaucratic significance lasted until the XVIII Century.
In the United States, by the time the Fifth Amendment was incorporated in the Bill of Rights, eight states constitutions already had clauses regarding due process. In the amendment, the world “due process” replaced the term “law of land”. This fact shows that the founding generation was heavily influenced by the commentaries of Sir Edward Coke about the Magna Carta, in 1608. Coke considered that law of land and due process were equivalent words.   Alexander Hamilton however, tried to give a strict definition to the term “due process”: "The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of...

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