For the true sense and exposition of these words, see the statute f 37 Edw. III., cap. 8, where the words, by the law of the land, are rendered without due process of law; for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold, without process of the law; that is, by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.
"Without being brought in to answer but by due process of the common law."
"No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, according to the old law of the land." 2 Inst. 50.
The foregoing interpretations of the words nisi per legem terrae are corroborated by the following statutes, enacted in the next century after Magna Carta.
"That no man, from henceforth; shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king's hands, against the form of the Great Charter, and the law of the land." St, 5 Edward III., Ch. 9. (1331.)
"Whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs, unless it be by the law of the land; it is accorded, assented, and established, that from henceforth none shall be taken by petition, or suggestion made to our lord the king, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original at the common law; nor that none be put out of his franchises, nor of his freehold, unless he be duly brought into answer, and forejudged of the same by the course of the Law; and if anything be done against the same, it shall be redressed, and holden for none." 8t. 95 Edward III., Ch. 4. (1350.)
"That no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisond, nor disinherited, nor put to death, without being brought in answer by due process of law." 8t. 28 Aboard III., Ch. 3. (1354.)
"That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land. And if anything from henceforth be done to the contrary, it shall be void in law, and holden for error." 8t. 42 Edward IIL, Ch. 3. (1368.)
The foregoing interpretation of the words nisi per legem terrae that is, by due process of law including indictment, &c;., has been adopted. as the true one by modern writers and courts; as, for example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the Supreme Court of New York, (19 Wendell, 6T6; 4 Hill, 146.) The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that "no person shall be deprived of life, liberty, or property, without due process of law." [28]
Whether the word VEL should be rendered by OR, or by AND.