In the days of Robin Hood, Friar Tuck, Maid Marian, and the Sheriff of Nottingham, there was a very bad English King. He took charge while his brother was off to the Crusades. So naturally the question came up:

WHAT PROCESS IS DUE TO WHOM, WHEN, WHY?

Magna Carta (1215 AD) was a deal between the nobility and King John. He was the worst ever English king. He was in deep trouble. He barely kept his crown, and perhaps his life, by making 63  promises to the Barons at Runnymede.

Rights owed by government to everyone (except slaves)

(39) 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 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.

Why do we care what happened 810 years ago? In 1776 William Blackstone’s Commentaries on the Laws of England was the principle law book for colonial thinkers and lawyers. Blackstone and the revolutionaries used Magna Carta to explain the rights of the English everywhere and then used it against King George III.

It is no accident that this language appears as the most ancient part (1776) of the North Carolina Declaration of Rights. Article I Section 19 of the North Carolina Constitution now reads: “No person shall be taken, imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.”

Article I Section 21 states that: “Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the restraint if unlawful, and that remedy shall not be denied or delayed. The privilege of the writ of habeas corpus shall not be suspended.”

The writ of habeas corpus is an ancient, but also current, order from a judge to an executive officer saying, “show and tell me why you have Mr. X in custody.”

The authors of our Constitution knew the difference between “citizen” and “person.”

Article I Section 5 reads: “Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.”

Back to Magna Carta.

Rights owed by government to everyone

(40) To no one will we sell, to no one deny or delay right or justice.

Due Process for enemy alien merchants even in time of war

(41) All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too.

When is due process owed to any man?

(52) To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgment of his equals, we will at once restore these. In cases of dispute the matter shall be resolved by the judgment of the twenty-five barons referred to below in the clause for securing the peace (§61). In cases, however, where a man was deprived or dispossessed of something without the lawful judgment of his equals by our father King Henry or our brother King Richard (the Lionheart), and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in full.

Magna Carta addresses separation of powers.  North Carolina was the first state to place that principle of separation of powers in its constitution, on instruction from the inhabitants of Orange County to the Provincial Assembly in 1776 (Bayard v Singleton (1787)).  What is the remedy for usurpation of power by a Chief Executive like King John?  Even King John was entitled to Due Process. But his immunity was limited to his own person and the person of the queen and his children. He had to swear to God and give security to keep his promises.

(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security: The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter. If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us. Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command. If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were. In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear. The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power. We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

Magna Carta suggested a unique consequence.  This requires a paraphrase:

“If we, or our Attorney General, Pam Bondi, offend in any respect against any man, and offense is made known to the Senate, they shall come to us or to the Attorney General – to declare it and claim immediate redress.  If we, or the Attorney General make no redress within 40 days the Senate may then subpoena every piece of paper in the White House with the support of the Congress and mainstream media, by seizing the White House, Camp David, Air Force One, and anything else, except only our own body and that of Melania and Barron, until they have secured such redress as they have determined upon. And having secured that redress the Senate may then resume its normal obedience to us.”

THE DECLARATION OF INDEPENDENCE

Action of Second Continental Congress, July 4, 1776

The Unanimous Declaration of the thirteen united States of America

But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

            FOR transporting us beyond Seas to be tried for pretended Offences:

         FOR  abolishing the free System of English Laws (as described  by Blackstone) in a neighbouring Province (Canada), establishing therein an arbitrary Government, and enlarging its Boundaries, so as to render it at once an example and fit Instrument for introducing the same absolute Rule into these Colonies.

Magna Carta and Blackstone inspired much of the individual rights in:

THE CONSTITUTION OF THE UNITED STATES OF AMERICA (1787)

Article I.

Section. 9. – clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it.

Article. III.

Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution the Laws of the United States, and treaties made, or which shall be made, under their Authority.

BILL OF RIGHTS (1791)

Amendment VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed: which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment IX. (1791)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (As delineated at length by Blackstone)

Amendment XIV. (1868)

different rights for citizens and other persons

Section 1. (second sentence) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What process is due depends on the circumstances. I have heard it said that if we had to give “due process” to ten or twenty million of those illegally here, it would be impossible to have so many “trials.” Due Process does not frequently require a trial – much less a jury trial. If it did, our justice system, both criminal and civil, would collapse.

What due process always requires is sufficient and timely notice and specificity of whatever the charge is, so that the person entitled to due process has a meaningful opportunity to be heard, so that an unbiased decision maker can act properly.