due process – the conduct of legal proceedings according to established rules, forms, and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case

     This page is continued from Legal Precepts Adopted into U.S. Law (from Europe) through the Constitution >>>> Roman “Civil Republic” State Law >>>> State Law Consists of Two Parts >>>> Adjective Law >>>> Procedure >>>> Process:


due process:

1. The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. — aka due process of law; due course of law. [1]

1. A phrase impossible of precise definition; one which asserts a fundamental principle of justice rather than a specific rule of law. 16 Am J2d Const L § 545.

Law in the regular course of administration through courts of justice according to those rules and forms which have been established for the protection of private rights.  Endicott-Johnson Corp. v Smith, 266 US 291, 69 L Ed 293. 45 S Ct 63.

“Due process of law” implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding by hearing upon noticeState ex rel. Sweezer v Green, 360 Mo 1249, 232 SW2d 897, 24 ALR2d 340.

“Due process of law” requires in each case an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, and on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in any progressive society.  Rochin v Califomia, 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396.

One of the most famous and perhaps the most often quoted definition of “due process of law” is that given by Daniel Webster in his argument in the Dartmouth College case. (Dartmouth College v Woodward (US) 4 Wheat 518, 4 L Ed 629), wherein he declared that by due process of law is meant “the law which bears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. [2]

1. Law administered through courts of justice, equally applicable to all under established rules that do not violate fundamental principles of fairness.  Whether a person has received due process of law can only be determined on a case-by-case basis.  In all criminal cases, however, it involved, at the very least, the right to be heard by a fair and impartial tribunal, the defendant’s right to be represented by counsel, the right to cross-examine witnesses against him, the right to offer testimony on his own behalf, and the right to have advance notice of trial and of the charge sufficient in detail and the point of time to permit adequate preparation for trial.  Due process requirement for criminal prosecutions are considerably more rigorous  than those for civil cases.  “Due process of law is guaranteed by both the Fifth Amendment and the Fourteenth Amendment. [3]

    Excerpt from Alexander Hamilton’s Remarks on an Act for Regulating Elections (1787):

     “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.”  [4]

     Excerpt from Murray’s Lessee v. Hoboken Land & Improvement Co. (1856):

     “The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta.[5]

     Excerpt from Thomas M. Cooley’s A Treatise on the Constitutional Limitations(1868):

     “Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.[4]

Essential Elements Intrinsic to Due Process:

due notice – often required by law or agreement, a notice ensure a person

(1) has actual knowledge of it;
(2) has received information about it;
(3) has reason to know about it;
(4) knows about a related fact;
(5) is considered as having been able to ascertain it by checking an official filing or recording. 

     Excerpt from Mullane v. Central Hanover Bank & Trust Co (1950):

     “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . .  The notice must be of such nature as reasonably to convey the required information.[5]


Various Forms of Due Process:

procedural due process – a regular course of justice, which is not unreasonable or arbitrary, with minimal requirements of notice and a hearing especially if the deprivation of a significant life, liberty, or property interest may occur, in pursuance of an effective remedy secured by the law and the state.

substantive due process – the doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective, and the freedom from arbitrary or capricious in making, interpreting, or enforcing the law.

  • economic substantive due process – the doctrine that certain social policies, such as the freedom of contract or the right to enjoy property without interference by government regulation, exist in the Due Process Clause of the 14th Amendment, particularly in the words “liberty” and “property.”

Due Process Clause:

1. Constitutional law. The constitutional provision that prohibits the government from unfairly or arbitrarily depriving a person of life, liberty, or property.  *  There are two Due Process Clauses in the US. Constitution, one in the 5th Amendment applying to the federal government, and one in the 14th Amendment applying to the states (although the 5th Amendment’s Due Process Clause also applies to the states under the incorporation doctrine).

due-process rights:

1. The rights (as to life, liberty, and property) so fundamentally important as to require compliance with due-process standards of fairness and justice. [1]

     See day in court; deprivation without due process; hearing; law of the land; life, liberty and property; life, liberty and the pursuit of happiness. [2]

fundamental fairness doctrine:

1. The rule that applies the principles of due process to a judicial proceeding.  *  The term is commonly considered synonymous with due process. [1]

Related Terms:

process – the means of compelling a defendant to appear in court (civil or criminal cases), and all the acts of the court from the beginning to the end of an action or proceeding.

abuse of process – improper, intentional, tortious use of civil or criminal process to obtain a result that is either unlawful or beyond the purpose for which such process was designed. — aka abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law.


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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]: Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly, 6 Feb. 1787, in 4 Papers of Alexander Hamilton 34, 35 (Harold C. Syrett ed., 1962).

[5]: Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856).

[6]: Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868). ‘

[7]: Mullane v. Central Hanover Bank & Trust Co., 339 U.S.. 306, 314, 70 S.Ct. 652, 657 (1950).


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