Due process of law as the law of the land

  1. In the history of Anglo-American Law, the conception of ‘due process of law’ or what is considered to be its equivalent ‘law of the land’ traces its lineage far back into the beginning of the 13th century A. D. The famous 39th Chapter of the Magna Charta provides that

“no free man shall be taken or imprisoned or disselzed or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send and upon him but by the lawful judgment of his Peers and by the law of the land.”

Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmation (28 Ed. III, Chap. 3) known as ‘Statute of Westminster of the liberties of London’, that the expression ‘due process of law’ for the first time appears. Neither of these phrases was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by Peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made:vide Willoughby on the Constitution of the United States, Vol. III, p 1087. These concepts came into America as part of the rights of Englishmen claimed by the colonists. The expression in one form or other appeared in some of the earlier state constitution and the exact phrase ‘due process of law’ came to be a part of the Federal, Constitution by the Fifth Amendment which was adopted in 1971 and which provided that “no person shall . . . . . be deprived of life, liberty or property without due process of law.” It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1858.

183.  What ‘due process of law’ exactly means is difficult to define even at the present day. The Constitution contains to description of what is ‘due process of law,’ nor does it declare the principle by application of which it could be ascertained. In Twining vs. New Jersey, 211 U. S. 79, the Court observed:”

Few phrases in the law are so elusive of exact apprehension as this . This Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise.”

It is clear, however, that the requirement of ‘due process of law’ in the United States’ Constitution imposes a limitation upon all the powers of Government, legislative as well as executive and judicial. Applied in England only as protection against excutive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation:vide Hurtado vs. People of California, 110 U. S. 516 at p. 532. As it is a restraint upon the legislative power and the object is to protect citizens against arbitrary and capricious legislation, it is not within the competence of the Congress to make any process a ‘due process of law’ by its mere will; for that would make the limitation quite nugatory. As laid down in the case cited above, “it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power. “ It means and signifies the general law of the land the settled and abiding principles which inhere in the Constitution and lie at the root of the entire legal system. To quote the words of Daniel Webster in a famous argument before the Supreme Court:vide Darmouth College case, (supra):

“By the law of the land is most clearly intended the general law – a law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. “

184.   What these principles of general law are nobody has ever attempted to enumerate. To a large extent they are the principles of English common law and modes of judicial proceedings obtaining in England, the traditions of which came along with the settlers in America. Some Judges seem to have alluded to the principles of natural justice in explaining what is meant by general law or ‘law of the land’, though the doctrine of a law of nature did not obtain a firm footing at any time. In Wynehamer vs. New York, 133 N. Y. 379, Hubbard J. declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of higher law or first principles of natural right outside of the Constitution. Coke’s dictum of a supreme fundamental law which obviously referred to principles of English common law certainly did exercise considerable influence upon the minds of the American Judges: vide Willis on Constitutional Law, p. 647, and there are observations in some cases which go to suggest that the principles of natural justice were regarded as identical with those of common law, except where the rules of common law were not considered to be of fundamental character or were not acted upon as being unsuited to the the progress of time or conditions of the American Society:see Cooley’s Constitutional Limitations, vol. II, p. 739 , 40. In the case of Loan Association vs. Topeka, 20 wall, 655, it was observed that there are limitations upon powers of Government which grow out of the essential nature of free Governments – Implied reservations of individual rights without which the social compact could not exist and which are respected by all Governments entitled to the name. What is hinted at, is undoubtedly the old idea of a social compact under which political institutions were supposed to come into being; and the suggestion is that when the Americans formed themselves into a State by surrendering a portion of their rights which they possessed at that time and which presumably they inherited from their English ancestors, there were certain rights of a fundamental character still reserved by them which no State could possible take away.

185.  As has been said already, ‘ due process of law’ has never been defined by Judges or Jurists in America. The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs; see Cooleys Constitutional Limitations, Vol. II, p. 741.

186.  In the actual application of the clause relating to ‘due process of law’ to particular cases the decisions of the Supreme Court of America present certain peculiar and unusual features and there is total lack of uniformity and consistency in them. Ever since the appearance of the clause in the Fifth Amendment and down to the middle of the 19th century, it was interpreted as a restriction on procedure, and particularly the judicial procedure, by which the Government exercises its powers. Principally it related to the procedure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in compliance with well established criminal proceedings. The same principle applied to the machinery or proceeding by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised. During this period it was not considered to have any bearing on substantial law at all.


A. K. Gopalan-AIR 1950 SC 27 : (1950) SCR 88 : (1950) CriLJ SC 1383