Until recent years, it had been assumed that the term "the lawful judgment of his peers" in Magna Carta meant trial by jury according to the modern understanding of that term, and that the term "the law of the land" meant laws conforming to those fundamental principles of justice which protect every individual in the full enjoyment of life, liberty and property secure from the arbitrary exercise of the powers of government. That is still the technical legal meaning of these two terms both in England and in America, although their practical effect and operation are different with us, because of our system of written constitutions which the legislative branch may not disregard or violate. Both of these meanings, however, are now challenged by certain critics as being without foundation in either the provisions or the history of the Great Charter.
Some historians contend that the familiar provision of Magna Carta could not have meant trial by a jury of twelve and a unanimous verdict, because such a jury, according to our present knowledge, did not exist until the second half of the fourteenth century. But it is quite immaterial whether the exact form of our jury-trial existed in England in 1215, or when the Great Charter was subsequently reissued or confirmed, provided that the foundations of the system had then been laid. It is sufficient for us that the antecedents of the modern jury system in all its three forms of grand jury, criminal jury and civil jury existed at the time of Magna Carta and were preserved by it. As the jury system developed, with the changes inevitably attending all such institutions of legal procedure and machinery, the form for the time being, whatever its exact nature, became "the lawful judgment of his peers" within the intent and meaning of the Great Charter. In any event, the latest confirmations of that instrument occurred at a time when the jury system as now in force was being firmly established. It is, therefore, easy to understand how the provision "the lawful judgment of his peers" in the course of time came to be regarded as intended to guarantee the common-law jury of twelve with unanimity in verdict.
Thus many, if not most, of our constitutional provisions now apply to conditions not at all contemplated by their framers although clearly within the principle enunciated and the spirit of the language used. Much of the efficacy of our federal and state bills of rights, or of any similar provisions which this Convention may embody in the new constitution, would be practically nullified if the language used were to be interpreted as being limited to the particular conditions existing when they were adopted. It is the spirit and the expanding principles of constitutional provisions which should always control. The letter killeth.
A charter of liberties, a bill of rights, or a constitution is not an ephemeral enactment designed to meet only the conditions existing at the time of its adoption. It embodies and perpetuates permanent principles. It is designed to endure "forever," in the language of Magna Carta, and "to approach immortality as nearly as human institutions can approach it," in the lofty phrase of Marshall, the great Chief Justice of the United States. Under any other rule of interpretation, Magna Carta would have become antiquated long before the discovery of America.
By the phrase "the law of the land," in chapter thirty-nine, the fundamental principles and axioms of the existing law were perpetuated. Exactly what those fundamental principles and axioms were then understood to be is not now capable of accurate exposition. The judges and the people of those days certainly had some definite ideas of reasonably just and fixed rules of conduct adequate for the solution of the simple questions arising in the controversies then being submitted for adjudication. Had the judges been pressed for a comprehensive or philosophical definition of "the law of the land," they might have said that they would not attempt to define the term any more than they would attempt to define justice itself, and that, as the Supreme Court of the United States declared only a few years ago, it is better to ascertain the intent of such an important phrase in a great constitutional document by the gradual process of judicial inclusion and exclusion as practical experience may dictate and as the cases presented for decision may require; in other words, that their decisions would in time sufficiently declare and perpetuate the principles of the law of
"A land of settled government,
A land of just and old renown,
Where freedom slowly broadens down
From precedent to precedent."
The phrase "the law of the land," as used in Magna Carta, must have been intended at the time to include procedure as well as substantive law, but the term "due process of law," now its current equivalent, originally related only to procedure. A very early, if not the earliest, use of the term "due process of law" will be found in a statute of the year 1354, 28 Edward III., in which it was provided that no person should be condemned without being first brought to answer by due process of the law, the exact wording in the quaint Norman-French of the day being "saunz estre mesne en respons par due proces de lei." As at the same time the Great Charter was being expressly confirmed "to be kept and maintained in all points," the provision in regard to due proces de lei in the act of 1354 was undoubtedly intended to be supplemental to the provisions of the Great Charter and to apply only to persons being brought to trial in a court of justice. It is true that in the seventeenth century Lord Coke used the phrase "due process of law" as the equivalent of "the law of the land," but in the contemporaneous Petition of Right of 1628 mention is made specifically of the "Great Charter of the Liberties of England" and its provision as to "the law of the land," and reference is made separately to the act of 28 Edward III. and its provision that no man should be prosecuted "without being brought to answere by due process of lawe."
The same distinction in the use of these terms will be found in the history of the Plymouth colony as early as 1636 and also in the early history of the state of New York. The New York charter of liberties and privileges of 1683 speaks of "being brought to answere by due course of law," the words evidently being taken either from the act of Edward III. of 1354, or from the Petition of Right of 1628. The New York constitution of 1777 used the term "the law of the land" but did not use the term "due process of law." In the New York bill of rights of 1787, we find the phrases "the law of the land," "due process of law" and "due course of law," and in one section the phrase "due process of law according to the law of the land." Both terms, "the law of the land" and "due process of law," are used with evidently the same meaning in the present constitution of the state of New York, that is to say, "the law of the land" is used in section I of Article I. and "due process of law" in section 6. The separate history of each section, the former first appearing in the constitution of 1777 and the latter in the constitution of 1821, will account for the difference in terminology.
It would be interesting to trace the varying uses of these terms in our forty-eight state constitutions, but that must be left for some other occasion. A majority of the state constitutions, including most of the recent constitutions, now contain the term "due process of law." As that term is the one used in the fourteenth amendment, which is applicable to all the states, it might be preferable, for the sake of uniformity and certainty, to adopt that form as less likely to confuse. Moreover, the phrase "due process of law" lends itself readily to a more comprehensive and inclusive definition if we define the word "due" to mean just and appropriate and the word "process" to mean substantive provision as well as procedure.
Finally, it may be of interest to notice the sanction and security devised for enforcing the covenants of Magna Carta. A body or tribunal of twenty-five barons, called executors, was created by chapter sixty-one, who were to "be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them," and who were to have power to compel the king himself, even by force, to keep the promises he had made. The clause providing this security or legal sanction was crude, but it was not necessarily an impracticable innovation. Although the plan utterly failed, it remained of immense value in principle. That principle established the right of the subjects to compel the king of England to obey a body of fixed laws outside and beyond his will; it justified revolution for just cause, and it inspired our forefathers in their struggle against George III. The influence of this idea upon public sentiment as justifying revolution, particularly during the seventeenth and eighteenth centuries, cannot well be over-estimated. The ineffectiveness of this provision of Magna Carta served also to demonstrate the futility of such a tribunal and security, and to lead the English people to look thereafter solely to the courts of justice and to parliament for the protection of their rights and liberties. The founders of our own republican governments may have been warned by the failure of this sanction that it would be unwise to create any political body with power to enforce constitutional provisions, and it may have been for this reason that they left the enforcement of constitutional limitations and the protection of the individual and minorities to an independent non-political forum composed of impartial judges learned in the law and meaning "to observe it well," according to the spirit of Magna Carta.