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Due Process

Due Process refers to the requirements of the law that state a country has to respect its citizens’ legal rights. This right of man offsets the powers of the nation’s laws of the land. It safeguards individuals from them. As governments elect to harm or suppress a individual without proceeding according to the law’s proper course, experts call this a violation of the due process. Such violations transgress the sacred idea of the rule of law for which democratic societies are famous.

The idea of Due Process limits both the power of the laws and the proceedings of courts and actions of law enforcement. It allows legislators, judges and others to guarantee and pass judgment on what constitutes liberty, justice, and fair play. This interpretation of the concept has been fraught with controversy over the centuries. This legal right is originally drawn from the Magna Carts (Great Charter) document of England. Ironically modern day British constitutional law does not specifically treat it with the same high regard as does the American ideas behind this Due Process. The American idea contains a number of ideas neither found in the original medieval or modern versions in England. This is to say that English common law and American law slowly diverged over the past more than two centuries. It has not been upheld in cases of English law, while it did become an important part of the United States’ Constitution.

Due Process ideas originally came out of the 39th clause of the Magna Carta in England. It states that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” King John promised (then later rescinded) this pledge in the 1215 issued charter. Although he tried to nullify the document which he signed under pressure of an armed baronial revolt, the Magna Carta almost instantly became a core part of the common law of the land in England following his death.

This law limited the authority of the kings in Clause 61 that created an elected body comprised of 25 different barons who would hold majority votes to decide what the King had to do to make good any offense he carried out “in any respect against any man.” This meant that the Magna Carta established early concepts of Due Process by insisting the monarch had to obey the same laws of the land as everyone else, by restricting the ways he could alter the land’s laws, and by insisting that he could not jail people on a whim without just and legal cause. Interestingly though the original provision mainly applied to land owners in England, it eventually evolved to include the other disenfranchised members of society.

The actual phrase “due process” only finally appeared when English jurist Edward Coke wrote in his 1608 treatise extensively about the meanings of the ideas found in the Magna Carta. Coke stated that no man could be deprived except by the law of the land, “that is, by the common law, statute law, or custom of England… by the due course, and process of law…”

Eventually English law diverged from its American legal counterpart in the 1700’s and 1800’s. England ultimately disavowed the concept of due process as less important that Parliamentary Supremacy. Meanwhile, the colonies drew upon their ideas from prior British legal traditions and the Magna Carta to articulate a unique due process in the new fledgling nation of the United States. Both the Fourteenth and Fifth Amendments to the Constitution of the United States come with Due Process clauses and protections not found in the same regard anywhere else in the world.

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