This term has been the subject of numerous scholarly works and judicial decisions over the years. Usually the English term is used, but sometimes the Latin:
lex terrae, or
legem terrae in the accusative case (i.e. when the term is being used as the object in a sentence). 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. 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. English jurists, writing of
legem terrae in reference to 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." In this context, "custom" refers only to
local custom, because general custom of England was considered part of the common law. Coke also said, as
Chief Justice of the Common Pleas in the 1610
Case of Proclamations, that dictates of the King are excluded from the law of the land: "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them." In the same year, he decided ''
Dr Bonham's Case'', and the
U.S. Supreme Court later discussed how the term "law of the land" should be understood in view of Coke's decision in that case: [B]ills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason.
Littleton Powys, a judge of the
King's Bench, wrote in 1704 with reference to Magna Carta: "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...." In 1975, political scientist Keith Jurow asserted that the term "law of the land", as understood by Lord Coke, includes
only the common law, but that assertion by Jurow was called "manifestly wrong" in a 1990 article by
Brigham Young Law School professor Robert Riggs.
Equivalence to due process In 1606, Lord Coke 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...."
Massachusetts Supreme Court Justice
Lemuel Shaw wrote in 1857 that, "Lord Coke himself explains his own meaning by saying 'the law of the land,' as expressed in Magna Charta, was intended due process of law, that is, by indictment or presentment of good and lawful men." However, in 1884, the U.S. Supreme Court called this a misunderstanding, saying Coke never meant that
indictment by a
grand jury is "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used." The Court added: However, by allowing an alternative to grand jury review in the
Hurtado case, the Court permitted a procedural reform that departed from the common law. In doing so, the Court said the law of the land in each state should conform with "fundamental principles of liberty and justice". He also said that the power and jurisdiction of parliament is, "so transcendent and absolute as it cannot be confined either for causes or persons within any bounds," and that not even Magna Carta would prevent subsequent statutes contrary to that great charter. In the eighteenth-century, the English jurist
William Blackstone likewise 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." ==See also==