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The substance of this provision as to "the law of the land," or its equivalent "due process of law," is of universal application throughout the United States as a constitutional limitation upon the powers of government, and it is to be found not only in the Constitution of the United States but in the constitution of every state of the Union. It is now firmly established in American and English constitutional law, and it is familiar knowledge, that the terms "the law of the land" and "due process of law" are exactly equivalent in meaning and in legal force and effect. The earliest use of the phrase "due process of law" in American constitutions seems to have been in the fifth amendment to the Constitution of the United States, ratified in 1791. None of the state constitutions then in existence contained that term, but nearly all of them used the phrase "the law of the land." The phrase "due process of law" will be found in the New York bill of rights of 1787.

Until recent years, it had been assumed that the term "the lawful judgment of his peers" in Magna Carta meant trial by jury according to the modern understanding of that term, and that the term "the law of the land" meant laws conforming to those fundamental principles of justice which protect every individual in the full enjoyment of life, liberty and property secure from the arbitrary exercise of the powers of government. That is still the technical legal meaning of these two terms both in England and in America, although their practical effect and operation are different with us, because of our system of written constitutions which the legislative branch may not disregard or violate. Both of these meanings, however, are now challenged by certain critics as being without foundation in either the provisions or the history of the Great Charter.