1394 THE GEORGETOWN LAW JOURNAL [Vol. 60:1381 Law of the land must of necessity be understood in the nation, to be due process of law, and not the law of the land generally, or otherwise it would comprehend bond-men [whom we call Villain] who are excluded by the word 'Liber'; for the general law of the land doth allow their lords to imprison them at their pleasure without cause, wherein they only differ from the freemen in respect of their persons, who cannot be imprisoned without a cause.71 All through the debate, it was apparent that law of the land was no longer clearly understood. But they all understood due process of law as a procedural term. The controversy was merely whether due process of law included only the procedure of the common law, as some wanted it interpreted, or, as the Attorney General maintained, "any due and regular proceedings of law.” 72 Under this "The Law of the Land" and "Due Process of Law" in American Constitutions. The American colonists were given the "rights of Englishmen" in the earliest charters of colonization." blanket provision they claimed the protection of the Magna Carta, although none of its privileges and rights seems to have been expressly granted by the King. It is, however, interesting that the language of the Great Charter's chapter 39 began to appear in colonial laws.75 74 At the time of the adoption of the United States Constitution, eight of the original 13 states had included provisions based on chapter 39 of the Magna Carta in their constitutions. Some of them followed the version of 9 Henry 3, chapter 2977 almost verbatim. Massachusetts and 71 3 HOWELL 86. 72 Id. at 151-53. 73 R. MOTT, DUE PROCESS OF LAW 8 (1926). 74 Id. at 8-9. 75 Id. at 9-13. 76 MD. DECLARATION OF RIGHTS art. XXI (1776), reprinted in 3 F. THORPE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 1688 (1909) [hereinafter cited as THORPE]; MASS. DECLARATION OF RIGHTS art. XII (1780), reprinted in 3 THORPE 1891; N.H. BILL OF RIGHTS art. XV (1784), reprinted in 4 THORPE 2455; N.Y. CONST. art. XIII (1777), reprinted in 5 THORPE 2632; N.C. DECLARATION OF RIGHTS art. XII (1788), reprinted in 5 THORPE 2788; PA. DECLARATION OF RIGHTS art. IX (1776), reprinted in 5 THORPE 3083; S.C. CONST. art XLI (1778), reprinted in 6 THORPE 3257; VA. BILL OF RIGHTS § 8 (1776), reprinted in 7 THORPE 3813. 77 See 9 Henry 3, c. 29 (1225). Maryland's Declaration of Rights provided "[t]hat 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." MD. DECLARATION OF RIGHTS art. XXI (1776), reprinted in 2 THORPE 1688. North and South Carolina's provisions were identical. See note 76 supra. 1184 regni . . . .” 243 | The court consi.. the power to com”) case. If a definite c but if no cause were mitment by the King This case led to pre to the Petition of K the first one among contrary to a stature loans to the King ag charges, people ha the King, and upon to them contrary to the privy council, a' divers other charges 243 3 HOWELL 37. 244 Id. 245 Id. 246 Id. at 39. 247 Id. at 53, 58. See als 248 3 Car. 1, c. 1 (1628) teater and anenter our each of these amendmens arent mar treamed the wire anrene ere states * See some 34 mars and accompanying The second paragrund af nick st The Constitution, and the Laws of the United States which shall be made See, eg, Free v. Bland, 369 US. 663, 566 19. Frankhir Nor? Bank New York 347 US. 373, 374 (1954); Gibbons v. Ogden, 22 US When, 1, 21 # See Meyer, mapra note 3", at 1:30-04. * They were the same states which had proposed the prohibition of excreme de See id. Evidently they were the states with the greatest cancers for proceda pea tections on the federal level. #E. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS Toner 201 20 200 (195). 1972] PRETRIAL DETENTION 1395 New Hampshire78 had similar provisions in slightly more modern language. Pennsylvania and Virginia simply said “that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.' "79 All these states had in common that the place of those provisions was among articles, or even in the very same article, providing for procedural protections.80 The New York constitution of 1777 also had a provision using some of the language of chapter 39 of the Magna Carta.81 It was obviously connected with political rights.82 But without exception, all the constitutions of the original states which contained provisions based on chapter 39 of Magna Carta used the term law of the land. The Northwest Ordinance of July 13, 1787, also contained a provision in section 14, article two, that “[n]o man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land. . . .” However, the same article also assured the inhabitants of the territory that they would always be entitled to the benefits of judicial proceedings according to the course of the common law.83 When on May 29, 1787, the first draft of the Federal Constitution, prepared by Charles Pinckney, was placed before the Federal Convention, article six contained the following words: All acts made by the legislature of the United States, pursuant to this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land; and all judges shall be bound to consider them as such in their decisions. On June 15, 1787, William Patterson offered another draft which, as was mentioned in the debates, had the purpose of stressing the sovereignty of the states. In four subsequent sessions the provision was 78 See note 76 supra. 79 See note 76 supra. 80 Massachusetts, New Hampshire, Pennsylvania, and Virginia placed these provisions in the same article granting procedural protections. See note 76 supra. 81 Article 13 of the New York constitution of 1777 provided "That no member of this state shall be "disfranchised, or deprived of any 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." N.Y. CONST. art XIII (1777), reprinted in 5 THORPE 2632. 82 See 1 C. LINCOLN, CONSTITUTIONAL HISTORY OF NEW YORK 173, 522 (1906); notes 104-111 infra. 831 Stat. 52 (1787). 845 J. ELLIOT, DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 131 (1907). 85 It contained the following provision: 6. Resolved, That all acts of the United States in Congress, made by virtue 1396 THE GEORGETOWN LAW JOURNAL [Vol. 60:1381 debated and amended, but each of those amendments agreed upon retained the words "supreme law of the respective states." However, on September 17, 1787, when the Convention adopted the final version of the Constitution, it returned to the expression "law of the land" as used in the first draft.87 There is no doubt what was meant by this expression in article six. It comprised all the laws of the entire land, federal as well as state, and among them, the United States Constitution, the acts of Congress and the treaties were to be "supreme" so as to supersede inconsistent laws of the states.88 90 Soon after the adoption of the United States Constitution, eight states submitted proposals for its amendment. Four of them, Pennsylvania, Virginia, New York, and North Carolina, proposed provisions containing the Magna Carta clause. The proposals of Pennsylvania and North Carolina were almost replicas of their respective constitutional provisions. Virginia split section eight of its bill of rights in two, de 91 of the United States shall be the supreme law of the respective states, so Id. at 191-93. 86 Id. at 322, 375. In later versions, the phrase "respective states" was replaced with the phrase "several states." Id. at 379, 467. The last amendment which used this phrase was agreed upon on August 23, 1787, and read as follows: This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States, shall be the supreme law of the several states, and of their citizens and inhabitants; and the judges of the several states shall be bound thereby in their decisions, any thing in the constitutions or laws of the several states to the contrary notwithstanding. Id. at 467. 87 See note 84 supra and accompanying text. The second paragraph of article six now reads: This Constitution, and the Laws of the United States which shall be made U.S. CONST. art. VI. 88 See, eg, Free v. Bland, 369 U.S. 663, 666 (1962); Franklin Nat'l Bank v. New York, 347 U.S. 373, 374 (1954); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824). 89 See Meyer, supra note 37, at 1190-94. 90 They were the same states which had proposed the prohibition of excessive bail. See id. Evidently they were the states with the greatest concern for procedural protections on the federal level. 91 E. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 183, 184, 190, 200 (1957). wwww |