Page:Harvard Law Review Volume 32.djvu/254

218 2i8 HARVARD LAW REVIEW DUE PROCESS OF LAW — TO-DAY* WHILE trying to avoid didactic excerpts from the historical library that has grown around the phrase "due process of law," I ask leave for some reference to history, as prefacing and perhaps explaining contemporary thought. My excuse for this address is a belief that the ancient words do not (various courts to the contrary notwithstanding) speak to us with the same voice, or connote the same mental assumptions, or suggest the same backgrounds, political and social, as they did two generations ago, or even when my generation at the bar took the professional oath. For present purposes it makes no difference whether Coke was right or wrong in identifying due process with the law of the land, and thereby giving to a phrase twice inserted in our national Con- stitution, and in substance appearing in that of every state, an ancestry emerging into script in Magna Charta. That King John's agreement not to "go against" (whatever that meant) any free- man, except by the judgment of his peers, or (not and) per legem terrae, in due time begot our constitutional guarantees, may not be true, but it is accepted legal history, and lies at the bottom of all our classic legal writing. May I remind you that the phrase is of convenient vagueness; forty years ago our highest court said that it could not be defined, or at all events definition was declined, because it was better to ascertain meaning in each case by a process of judicial inclusion and exclusion.^ This reservation of mental liberty for succeeding courts has often since been insisted on,^ and exercised. It is putting the same thought in another way to say that the historical test is not final, for to hold that what was once due proc- ess must always remain so "would stamp upon our jurisprudence Cornell University. ^ Davidson v. New Orleans, 96 U. S. 97, 104 (1877). 2 Holden v. Hardy, 169 U. S. 366, 389 (1898); Orient Co. v. Daggs, 172 U. S. 557, 563 (1869).
 * The Annual Lecture on the Frank Irvine Foundation, delivered May 3, 1918, at