On Monday, I wrote about the upcoming 800th anniversary of the Magna Carta.  The California Assembly recently took note of the upcoming octocentennial and is considering adoption of a commemorative concurrent resolution.  The resolution, ACR 76, provides a fairly accurate description of the historical events and key clauses of the Magna Carta.  However, I do bristle a bit at the Britishism of omitting the “the” when referring to the great charter.  Is the legislature going to start referring to people “going to hospital” rather than “going to the hospital”?

The following recital in the resolution, however, caught my eye:

WHEREAS, The phrase “due process of law” first appeared as a substitute for Magna Carta’s phrase “law of the land” in a 1354 statute of King Edward III that restated Magna Carta’s guarantee of liberty of the subject and, therefore, Magna Carta created a precedent in guaranteeing “due process of law” that was later embodied in the Fifth and Fourteenth Amendments to the United States Constitution, the sources of key constitutional liberties for Americans;

The phrase “law of the land” appears in clause 39 of the charter:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

No free man may be seized, or imprisoned, or dispossessed, or outlawed, or exiled, or in any way ruined, nor will we go against him, nor will we send upon him, except through lawful judgment of his equals or through the law of the land.

According to the Assembly’s proposed resolution this reference to the legem terre (“law of the land”) was the progenitor of the phrase “due process of law” in a statute enacted nearly 140 years later under the Plantagenet King Edward III (King John was the last of the Angevin kings).  I thought I would check out this claim, and this is what I found.

The statute in question was originally entitled Statutum apud Weftmonafterium de libertatibus Londoniarum (Statute at Westminster concerning the Liberties of London), 1354 CHAPTER 3 28 Edw 3.

Here’s what the statute actually said:

Item, a nul home, de quel estate ou condicion quil soit, ne soit oste de tre ne de ten, ne pris, nemprisone, ne shite, ne mis a la mort, saunz estre mesne en respons p due pces de lei.

This is an English statute, but it hardly qualifies as English.  According to British National Archives, this means:

ITEM, That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.

Thankfully for non-Francophones, such as myself, the Parliament a few years later also enacted the Pleadings in English Act of 1362, 36 Edw. III, c. 15.  That statute required that all pleas “shall be pleaded, shewed, defended, answered, debated and judged in the English Tongue”, the act required that they be “entered and inrolled” in Latin.  Almost four centuries would pass before the Proceedings in Courts of Justice Act of 1730, 4 Geo. II, c.26, mandated English (instead of Latin or French) in all courts of England.