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Subject Area: Law
Topic: The American Revolution and Constitution

§ 28.: Due process of law.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 28.

Due process of law.—

But the forfeiture of rights is limited and controlled by constitutional restrictions, and it may be stated as a general proposition, that such a forfeiture, as a punishment for crime, can only be effected after a judicial examination and a conviction of the crime charged. In the Magna Charta, in the charter of Henry III., in the Petition of Right, in the Bill of Rights, in England, and in this country in all the constitutions, both State and national, it is substantially provided that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land. In some State constitutions, the clause “without due process of law” is employed in the place of “the judgment of his peers or the law of the land;” but the practical effect is the same in all cases, whatever may be the exact phraseology of this constitutional provision.5 Perhaps the scope of the limitation cannot be better explained than by the words of Mr. Webster: “By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, 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. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country.”1

[5]Cooley Const. Lim. *352, *353.

[1]Dartmouth College Case, 4 Wheat. 519; Webster’s Works, vol. V., p. 487. For a full and exhaustive discussion and treatment of this constitutional limitation, see Cooley Const. Lim. *351-*413.