Law of the land

The phrase law of the land is a legal term, equivalent to the Latin lex terrae, or legem terrae in the accusative case.[1] It refers to all of the laws in force within a country or region,[2][3][4][5] including statute law and case-made law.[6]

Use in Magna Carta

In the year 1215, this term was used in Magna Carta. Perhaps the most famous clause of Magna Carta states:

No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.[7]

This is sometimes called the "law of the land clause". Magna Carta was originally written in Latin, and the Latin term is lex terrae, or legem terrae in the accusative case (i.e. when the term is being used as the object in a sentence).[1]

Emulation of Magna Carta

Half a millennium later, following the American Revolution, legislators looked to Magna Carta for inspiration, and emulated its "law of the land" language. Versions of it can be found in the Virginia Constitution of 1776,[8] the North Carolina Constitution of 1776,[9] the Delaware Constitution of 1776,[10] the Maryland Constitution of 1776,[11] the New York Constitution of 1777,[12] the South Carolina Constitution of 1778,[13] the Massachusetts Constitution of 1780,[14] and the New Hampshire Constitution of 1784.[15]

In 1787, the Continental Congress adopted the Northwest Ordinance for governance of areas in the United States outside of the individual states. Congress wrote: "No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land."[16] Following adoption of the United States Constitution, Congress re-adopted the Northwest Ordinance in 1789.[17]

Use in the United States Constitution

This term was used in 1787 to write the Supremacy Clause of the U.S. Constitution, which states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land...."[18] The Supremacy Clause is the only place in the Constitution where this exact term was used.

Meaning and interpretation

This term has been the subject of numerous scholarly works and judicial decisions over the years. Usually the English term is used, but sometimes the Latin: lex terrae, or legem terrae in the accusative case (i.e. when the term is being used as the object in a sentence).[1]

What it includes

Judges and barristers have said for many centuries that the words "law of the land" refer to particular legal requirements. For example, William Bereford, Justice of the Common Pleas, said in 1308 that the then-existing "law of the land requires" a tenant to be summoned by two summoners.[19] In 1550, it was said by John Pollard, who was a serjeant-at-law and later Speaker of the House of Commons, that beating and wounding a man is generally "against the law of the land" (subject to exceptions).[20]

British Chief Justice John Fineux stated in 1519 that "the Law of God and the Law of the Land are all one" in the sense that they both protect the public good.[21][22] British Chief Justice John Vaughan further explained in 1677 that whenever the law of the land declares by a legislative act what divine law is, then the courts must consider that legislation to be correct.[23][24]

English jurists, writing of legem terrae in reference to the Magna Carta, stated that this term embraces all laws that are in force for the time being within a jurisdiction. For example, Edward Coke, commenting upon Magna Carta, wrote in 1606: "no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England."[25][26] In this context, "custom" refers only to local custom, because general custom of England was considered part of the common law.[27][28]

Coke also said, as Chief Justice of the Common Pleas in the 1610 Case of Proclamations, that dictates of the King are excluded from the law of the land: "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them."[29] In the same year, he decided Dr Bonham's Case, and the U.S. Supreme Court later discussed how the term "law of the land" should be understood in view of Coke's decision in that case:[30][31]

[B]ills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason.

Littleton Powys, a judge of the King's Bench, wrote in 1704 with reference to Magna Carta: "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...."[32][33] In 1975, political scientist Keith Jurow asserted that the term "law of the land", as understood by Lord Coke, includes only the common law,[34] but that assertion by Jurow was called "manifestly wrong" in a 1990 article by Brigham Young Law School professor Robert Riggs.[35]

Equivalence to due process

In 1606, Lord Coke equated this term to due process of law: "But by the Law of the Land. For the true sense and exposition of these words, see the Statute of 37 Edw. 3 cap. 8 where the words, by the law of the Land, are rendered, without due process of Law...."[25] Justice Powys likewise stated in 1704: "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."[32]

In 1855, the U.S. Supreme Court said, "The words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land,' in Magna Charta."[36]

Massachusetts Supreme Court Justice Lemuel Shaw wrote in 1857 that, "Lord Coke himself explains his own meaning by saying 'the law of the land,' as expressed in Magna Charta, was intended due process of law, that is, by indictment or presentment of good and lawful men."[37] However, in 1884, the U.S. Supreme Court called this a misunderstanding, saying Coke never meant that indictment by a grand jury is "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."[30] The Court added:[30]

Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

Nineteenth-century lawyers sometimes identified the law of the land with the common law, to the exclusion of other law.[38] However, by allowing an alternative to grand jury review in the Hurtado case, the Court permitted a procedural reform that departed from the common law. In doing so, the Court said the law of the land in each state should conform with "fundamental principles of liberty and justice".[38]

How it changes

In seventeenth century England, Lord Coke wrote that if common law "be not abrogated or altered by parliament, it remains still...."[27][39] He also said that the power and jurisdiction of parliament is, "so transcendent and absolute as it cannot be confined either for causes or persons within any bounds,"[40][41] and that not even Magna Carta would prevent subsequent statutes contrary to that great charter.[42][43]

In the eighteenth-century, the English jurist William Blackstone likewise wrote that the law of the land "depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.... Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament."[44]

See also

Footnotes

  1. 1 2 3 Black, Henry. A Law Dictionary, page 709 (West Publishing 1910).
  2. ↑ Merriam-Webster’s Dictionary of Law, p. 282 (Merriam-Webster 1996): “The established law of a nation or region”.
  3. ↑ Hill, Gerald and Hill, Kathleen. Nolo’s Plain-English Law Dictionary (2009): “The body of rules, regulations, and laws that govern a country or jurisdiction. The United States Constitution declares itself 'the supreme law of the land.'"
  4. ↑ Wild, Susan. Webster's New World Law Dictionary (Wiley 2010): “The laws effective in a particular nation.”
  5. ↑ Joshi, Sudhanshu. Dictionary on Legal Terms, p. 98 (Excel Books India 2011): “slang term for existing laws”.
  6. ↑ Blacks Law Dictionary, p. 1020 (10th ed. 2014) (defining law of the land as "The law in effect in a country and applicable to its members, whether the law is statutory, administrative, or case-made.")
  7. ↑ Magna Carta Archived 2007-09-05 at the Wayback Machine. (1297).
  8. ↑ Virginia Constitution of 1776, Section 8: "[N]o man be deprived of his liberty, except by the law of the land or the judgment of his peers."
  9. ↑ North Carolina Constitution of 1776, Section XII:"That no freeman ought to be taken, imprisoned, or disseized of his freehold liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land."
  10. ↑ Farrand, Max. "The Delaware Bill of Rights of 1776", The American Historical Review, Vol. 3, No. 4 (Jul., 1898), pp. 641-649: "That every freeman for every injury done him in his goods, lands, or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay, according to the law of the land."
  11. ↑ Maryland Constitution of 1776, Sections XVII and XXI: "That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land....That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."
  12. ↑ New York Constitution of 1777, Section XIII: "And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land, or the judgment of his peers."
  13. ↑ South Carolina Constitution of 1778, Section XLI: "That no freeman of this State be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, exiled or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or by the law of the land."
  14. ↑ Massachusetts Constitution of 1780, Article XII: "And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."
  15. ↑ New Hampshire Constitution of 1784, Section XV: "And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land."
  16. ↑ Northwest Ordinance, 1787.
  17. ↑ Van Zee, Amy. Dred Scott v. Sandford: Slavery and Freedom before the American Civil War, p. 37 (ABDO Publishing Company, 2012).
  18. ↑ WikiSource: Constitution of the United States of America (1787).
  19. ↑ 1 Ed. 2 fol. 5
  20. ↑ Reniger v. Fogossa, 75 Eng. Rep. 1 (1550).
  21. ↑ Cromartie, Alan. The constitutionalist revolution: an essay on the history of England, 1450-1642, p. 44 (Cambridge University Press 2006). See also Keil. 191.
  22. ↑ Black, Henry. A Law Dictionary, page 704 (West Publishing 1910): "The law of God and the law of the land are all one; and both preserve and favor the common and public good of the land".
  23. ↑ House of Commons papers, Volume 28: "Whatsoever the law of the land declares to be God’s law must be held to be such in all courts of judicature...." See also Hill v. Good (Case 182), The English reports, Volume 89, page 122: "When an Act of Parliament declares a thing to be forbid by God’s law, it is To be so taken by us…."
  24. ↑ Gage, Matilda. Woman, Church and State: A Historical Account of the Status of Woman through the Christian Ages, page 356 (Chicago : C.H. Kerr, 1893).
  25. 1 2 Coke, Edward. The Second Part of the Institutes of the Laws of England: Containing the Exposition of Many Ancient and Other Statutes, Cap. XXIX (Brooke, 1797).
  26. ↑ Hand, Learned. "Due Process of Law and the Eight-Hour Day", Harvard Law Review, Vol. 21, Issue 7 , p. 495 (1907-1908).
  27. 1 2 Coke, Edward. The First Part of the Institutes of the Laws of England: Or, A Commentary Upon Littleton, Part 1, Sect. 170 (Brooke, 1789).
  28. ↑ Boyer, Allen. Sir Edward Coke and the Elizabethan Age, p. 86, n. 6 (Stanford University Press, 2003).
  29. ↑ Thompson, Brian and Gordon, Michael. Cases and Materials on Constitutional and Administrative Law, p. 42 (Oxford University Press 2014).
  30. 1 2 3 Hurtado v. California, 110 U.S. 516 (1884).
  31. ↑ Taylor, Hannis. Due Process of Law and the Equal Protection of the Laws: A Treatise Based, in the Main, on the Cases in which the Supreme Court of the United States Has Granted Or Denied Relief Upon the One Ground Or the Other, pp. 15-16 (Callaghan, 1917).
  32. 1 2 Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704).
  33. ↑ Re, Richard. "The Due Process Exclusionary Rule," Harvard Law Review, Vol. 127, pp. 1885, 1908 (2014).
  34. ↑ Jurow, Keith. "Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law", 19 American Journal of Legal History 265 (1975): "Coke was trying to show that only the common law was the law of the land...."
  35. ↑ Riggs, Robert. "Substantive Due Process in 1791", Wisconsin Law Review, Vol. 1990, Issue 4 (1990), pp. 941-1006: "Jurow seems manifestly wrong...since Coke expressly defined [the law of the land] to include statute and custom as well...."
  36. ↑ Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. 272 (1855).
  37. ↑ Jones v. Robbins, 8 Gray 329, 74 Mass. 329 (1857).
  38. 1 2 Dripps, Donald. About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure, pp. 4-6 (Greenwood Publishing Group, 2003).
  39. ↑ Lesser, Eli. "The Founders’ Library: Thinking as a Founding Father", National Constitution Center, p. 9 (2006).
  40. ↑ Coke, Edward. The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts, p. 36 (Brooke, 1797).
  41. ↑ Burgess, Glenn. Absolute Monarchy and the Stuart Constitution, p.175 (Yale University Press, 1996).
  42. ↑ Coke, Edward. The Second Part of the Institutes of the Laws of England: Containing the Exposition of Many Ancient and Other Statutes, p. 17 (Brooke, 1797).
  43. ↑ Goldberg, B. "Interpretation of Due Process of Law--A Study in Irrelevance of Legislative History", Pacific Law Journal, Vol. 12, pp. 621, 640 (1981). See also MacKay, R. "Coke--Parliamentary Sovereignty or the Supremacy of the Law", Michigan Law Review, Vol. 22, pp. 215, 233-234 (1924).
  44. ↑ Blackstone, William. Commentaries on the Laws of England, Volume 1, pages 137-138 (Univ. of Chicago Press 1979).
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