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Due Process: by Jurisdiction

Due process is a legal requirement that the government must respect all legal rights owed to persons and balance its power with protecting individual rights. It originated from clause 39 of the Magna Carta, which established the rule of law in England. While due process was not upheld in later English law, it became incorporated into the US Constitution to limit government overreach and guarantee fundamental fairness. Due process requires the government to not abuse persons physically or unfairly and instead bring individuals to answer legal charges through proper legal procedures and authorities as outlined in common law, statutes, or custom.

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43 views2 pages

Due Process: by Jurisdiction

Due process is a legal requirement that the government must respect all legal rights owed to persons and balance its power with protecting individual rights. It originated from clause 39 of the Magna Carta, which established the rule of law in England. While due process was not upheld in later English law, it became incorporated into the US Constitution to limit government overreach and guarantee fundamental fairness. Due process requires the government to not abuse persons physically or unfairly and instead bring individuals to answer legal charges through proper legal procedures and authorities as outlined in common law, statutes, or custom.

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krithika
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© © All Rights Reserved
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Due process

From Wikipedia, the free encyclopedia


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For other uses, see Due process (disambiguation).
Due process is the legal requirement that the state must respect all legal rights that are owed to a
person. Due process balances the power of law of the land and protects the individual person from
it. When a government harms a person without following the exact course of the law, this constitutes
a due process violation, which offends the rule of law.
Due process has also been frequently interpreted as limiting laws and legal
proceedings (see substantive due process) so that judges, instead of legislators, may define and
guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial.
Analogous to the concepts of natural justice, and procedural justice used in various other
jurisdictions, the interpretation of due process is sometimes expressed as a command that the
government must not be unfair to the people or abuse them physically. The term is not used in
contemporary English law, but two similar concepts are natural justice, which generally applies only
to decisions of administrative agencies and some types of private bodies like trade unions, and the
British constitutional concept of the rule of law as articulated by A. V. Dicey and others.[1] However,
neither concept lines up perfectly with the American theory of due process, which, as explained
below, presently contains many implied rights not found in either ancient or modern concepts of due
process in England.[2]
Due process developed from clause 39 of Magna Carta in England. Reference to due process first
appeared in a statutory rendition of clause 39 in 1354 thus: "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."[3] When English and American law gradually diverged,
due process was not upheld in England but became incorporated in the US Constitution.

Contents

 1By jurisdiction
o 1.1Magna Carta
o 1.2English law and American law diverge
o 1.3United States
o 1.4Others
 2See also
 3Notes
 4Further reading
 5External links

By jurisdiction[edit]
Magna Carta[edit]
In clause 39 of Magna Carta, issued in 1215, John of England promised: "No free man shall be
seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of
his standing in any other way, nor will we proceed with force against him, or send others to do so,
except by the lawful judgment of his equals or by the law of the land."[4] Magna Carta itself
immediately became part of the "law of the land", and Clause 61 of that charter authorized an
elected body of 25 barons to determine by majority vote what redress the King must provide when
the King offends "in any respect against any man."[4] Thus, Magna Carta established the rule of
law in England by not only requiring the monarchy to obey the law of the land but also limiting how
the monarchy could change the law of the land. However, in the 13th century, the provisions may
have been referring only to the rights of landowners, and not to ordinary peasantry or villagers.[5]
Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39 of
Magna Carta was renumbered "29."[6] The phrase due process of law first appeared in a statutory
rendition of Magna Carta in 1354 during the reign of Edward III of England, as follows: "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."[7]
In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of
Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land,
"that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all)
by the due course, and process of law.."[8]
Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during
the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty.[9] In that case,
the British House of Commons had deprived John Paty and certain other citizens of the right to vote
in an election and committed them to Newgate Prison merely for the offense of pursuing a legal
action in the courts.[10] The Queen's Bench, in an opinion by Justice Powys,[clarification needed] explained the
meaning of "due process of law" as follows:
[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of
the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the
other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there
the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law;
and the meaning of the statute is, that all commitments must be by a legal authority; and the law of
Parliament is as much a law as any, nay, if there be any superiority this is a superior law.[9]

Chief Justice Holt dissented in this case because he believed that the commitment had not in fact
been by a legal authority. The House of Commons had purported to legislate unilaterally, without
approval of the British House of Lords, ostensibly to regulate the election of its members.[11] Although
the Queen's Bench held that the House of Commons had not infringed or overturned due process,
John Paty was ultimately freed by Queen Anne when she prorogued Parliament.

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