§ 1783. The other part of the clause is but an enlargement of the language of magna charta, "nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terræ," neither will we pass upon him, or condemn him, but by the lawful judgment of his peers, or by the law of the land. Lord Coke says, that these latter words, per legem terræ (by the law of the land,) mean by due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law.[1] So that this clause in effect affirms the right of trial according to the process and proceedings of the common law.[2]
§ 1784. The concluding clause is, that private property shall not be taken for public use without just compensation. This is an affirmance of a great doctrine established by the common law for the protection of private property.[3] It is founded in natural equity, and is laid down by jurists as a principle of universal law.[4] Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers.[5]
- ↑ 2 Inst. 50, 51; 2 Kent's Coram. Lect. 24, p. 10, (2d edit. p. 13); Cave's English Liberties, p. 19; 1 Tucker's Black. Comm. App. 304, 305.
- ↑ Id.
- ↑ 1 Black. Comm. 138, 139.
- ↑ 2 Kent's Comm. Lect. 24, p. 275, 276, (2d. edit. p. 339, 340); 3 Wilson's Law Lect. 203; Ware v. Hylton, 3 Dall. R. 194, 235; S. C. 1 Peters's Cond. R. 99, 111; 1 Black. Comm. 138, 139, 140.
- ↑ See 1 Tuck. Black. Coram. App. 305, 306; Rawle on Const. ch. 10, p. 133. See also Van Horne v. Dorrance, 2 Dall. 384.
