Law of the land

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This article is about the legal concept. For the Australian TV series, see Law of the Land. For the Undisputed Truth album, see Law of the Land (album).

The phrase law of the land is a legal term, equivalent to the Latin lex terrae (or legem terrae in the accusative case). It refers to all of the laws in force within a country or region, including both statute law and common law.

Use in the Magna Carta[edit]

In the year 1297 this term was used in the Magna Carta. Perhaps the most famous clause of Magna Carta states:

No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.[1]

This is sometimes called the "law of the land clause".

Emulation of the Magna Carta[edit]

Half a millennium later, following the American Revolution, legislators looked to Magna Carta for inspiration, and emulated some of Magna Carta's language. Versions of it can be found in the Virginia Constitution of 1776,[2] the North Carolina Constitution of 1776,[3] the Delaware Constitution of 1776,[4] the Maryland Constitution of 1776,[5] the New York Constitution of 1777,[6] the South Carolina Constitution of 1778,[7] the Massachusetts Constitution of 1780,[8] and the New Hampshire Constitution of 1784.[9]

In 1787, the Continental Congress adopted the Northwest Ordinance for governance of areas in the United States outside of the individual states. Congress wrote: "No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land."[10]

Use in the United States Constitution[edit]

This term was used in 1787 to write the Supremacy Clause of the United States Constitution. The Supremacy Clause states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land...."[11] The term was not used in the U.S. Constitution to emulate Magna Carta, and instead an equivalent (due process) phraseology was used.

Meaning and interpretation[edit]

This term has been the subject of numerous scholarly works and judicial decisions over the years. The Latin term is lex terrae, or legem terrae in the accusative case (i.e. when the term is being used as the object in a sentence).[12]

What it includes[edit]

English jurists, writing of legem terrae in reference to the Magna Carta, stated that this term embraces all laws that are in force for the time being within a jurisdiction. For example, Edward Coke, commenting upon Magna Carta, wrote in 1606: "no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England."[13] Likewise, Justice Powys of the King's Bench wrote in 1704: "lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law...."[14]

British Chief Justice John Fineux stated in 1519 that "the Law of God and the Law of the Land are all one" in the sense that they both protect the public good.[15][16] British Chief Justice John Vaughan further explained in 1677 that whenever the law of the land declares by a legislative act what divine law is, then the courts must consider that legislation to be correct.[17][18]

Without reference to Magna Carta, the term appears in the Year Books,[19] where William Bereford, Justice of the Common Pleas, is recorded as saying in 1308 that the then-existing law of the land required one to be summoned by two summoners.

Equivalence to due process[edit]

Lord Coke also equated this term to due process of law: "But by the Law of the Land. For the true sense and exposition of these words, see the Statute of 37 Edw. 3 cap. 8 where the words, by the law of the Land, are rendered, without due process of Law...."[13]

How it changes[edit]

In eighteenth-century England, William Blackstone wrote that the law of the land "depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.... Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament."[20]

See also[edit]

Footnotes[edit]

  1. ^ Magna Carta (1297).
  2. ^ Virginia Constitution of 1776, Section 8: "[N]o man be deprived of his liberty, except by the law of the land or the judgment of his peers."
  3. ^ North Carolina Constitution of 1776, Section XII:"That no freeman ought to be taken, 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 law of the land."
  4. ^ Farrand, Max. "The Delaware Bill of Rights of 1776", The American Historical Review, Vol. 3, No. 4 (Jul., 1898), pp. 641-649: "That every freeman for every injury done him in his goods, lands, or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay, according to the law of the land."
  5. ^ Maryland Constitution of 1776, Sections XVII and XXI: "That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land....That 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."
  6. ^ New York Constitution of 1777, Section XIII: "And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that no member of this State shall be disfranchised, or deprived of any the 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."
  7. ^ South Carolina Constitution of 1778, Section XLI: "That no freeman of this State be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, 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."
  8. ^ Massachusetts Constitution of 1780, Article XII: "And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."
  9. ^ New Hampshire Constitution of 1784, Section XV: "And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land."
  10. ^ Northwest Ordinance, 1787.
  11. ^ WikiSource: Constitution of the United States of America (1787).
  12. ^ Black, Henry. A Law Dictionary, page 709 (West Publishing 1910).
  13. ^ a b Coke, Edward. Institutes of the Laws of England (1606).
  14. ^ Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704).
  15. ^ Cromartie, Alan. The constitutionalist revolution: an essay on the history of England, 1450-1642, p. 44 (Cambridge University Press 2006). See also Keil. 191.
  16. ^ Black, Henry. A Law Dictionary, page 704 (West Publishing 1910): "The law of God and the law of the land are all one; and both preserve and favor the common and public good of the land".
  17. ^ House of Commons papers, Volume 28: "Whatsoever the law of the land declares to be God’s law must be held to be such in all courts of judicature...." See also Hill v. Good (Case 182), The English reports, Volume 89, page 122: "When an Act of Parliament declares a thing to be forbid by God’s law, it is To be so taken by us…."
  18. ^ Gage, Matilda.  Woman, Church and State: A Historical Account of the Status of Woman through the Christian Ages, page 356 (Chicago : C.H. Kerr, 1893).
  19. ^ 1 Ed. 2 fol. 5
  20. ^ Blackstone, William. Commentaries on the Laws of England, Volume 1, pages 137-138 (Univ. of Chicago Press 1979).