See due process of law.
DUE PROCESS OF LAW
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 notice [State 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 chance in any progressive society [Rochin v California 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396].
Once 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 hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.”
See day in court; deprivation without due process; hearing; law of the land; life, liberty, and property; life, liberty, and the pursuit of happiness.
- What ought to be paid; what may be demanded. It differs from owing in this, that, sometimes, what is owing is not due; a note, payable thirty days after date, is owing immediately after it is delivered to the payee, but it is not due until the thirty days have elapsed.
- Bills of exchange, and promissory notes, are not, due until the end of the three days of grace, (q.v.) unless the last of these days happen to fall on a Sunday, or other holyday, when it becomes due on the Saturday before, and not on the Monday following [Story, P.N. 440; 1 Bell’s Com. 410 Story on Bills, 283; 2 Hill, N.Y.R. 587; 2 Applet. R. 264]
- Due also signifies just or proper; as, a due presentment, and demand of payment, must be made [See 4 Rawle, 307; 3 Leigh, 389; 3 Cranch, 300].
- Just; proper; regular; lawful; sufficient; as in the phrases “due care,” “due process of law,” “due notice.”
- Owing; payable; justly owed. That which one contracts to pay or perform to another; what which law or justice requires to be paid or done.
- Owed or owing, as distinguished from payable. A debt is often said to be due from a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived.
- A bill or note is commonly said to be due when the time for payment of it has arrived.
- The word “due” always imports a fixed and settled obligation or liability, but with reference to the time for its payment there is considerable ambiguity in the use of the term, as will appear from the foregoing definitions, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at some time in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived. But commonly, and in the absence of any qualifying expressions, the word “due” is restricted to the first of these meanings, the second being expressed by the term “overdue,” and the third by the word “payable.” [see Feeser v; Feeser, 93 Md. 716, 50 Atl. 406; Ames v. Ames, 128 Mass. 277; Van Hook v. Walton, 28 Tex. 75; Leggett v. Bank, 24 N. Y. 286; Scudder v. Scudder, 10 N.J. Law 345; Barnes v. Arnold, 45 App. Div. 314, 61 N. Y. Supp. 85; Yocum v. Allen, 58 Ohio St. 280, 50 N. E. 909; Gies v. Bechtner, 12 Minn. 284 (Gil. 183); Marstiller v. Ward, 52 W. Va. 74, 43 S. E. 178].
- Due care: just, proper, and sufficient care, so far as the circumstances demand it; the absence of negligence. This term, as usually understood in cases where the gist of the action is the defendant’s negligence, implies not only that a party has not been negligent or careless, but that he has been guilty of no violation of law in relation to the subject-matter or transaction which constitutes the course of action. Evidence that a party is guilty of a violation of law supports the issue of a want of proper care; nor can it be doubted that in these and similar actions the averment in the declaration of the use of due care, and the denial of it in the answer, properly and distinctly put in issue the legality of the conduct of the part as contributing to the accident or injury which forms the groundwork of the action. No specific averment of the particular unlawful act which caused or contributed to produce the result complained of should, in such cases, be deemed necessary [See Ryan v. Bristol, 63 Conn. 26, 27 Atl. 309; Paden v. Van Blarcom, 100 Mo. App. 185, 74 S.W. 124; Joyner v. Railway Co., 26 S.C. 49, 1 S.E. 52; Nicholas v. Peck, 21 R.I. 404, 43 Atl. 1038; Railroad Co. v. Yorty, 158 Ill. 321, 42 N.E. 64; Schmidt v. Sinnott, 103 Ill. 165; Butterfield v. Western R. Corp., 10 Allen (Mass.) 532, 87 Am. Dec. 678; Jones v. Andover, 10 Allen (Mass.) 20]/
- Due course of law: this phrase is synonymous with “due process of law,” or “the law of the land,” and the general definition thereof is “law in its regular course of administration through courts of justice;” and, while not always necessarily confined to judicial proceedings, yet these words have such a signification, when used to designate the kind of an eviction, or ouster, from real estate by which a party is dispossessed, as to preclude thereunder proof of a constructive eviction resulting from the purchase of a paramount title when hostilely asserted by the party holding it [see Alder v. Whitbeck, 44 Ohio St. 569, 9 N.E. 672; In re Dorsey, 7 Port. (Ala.) 404; Backus v. Shipherd, 11 Wend. (N.Y.) 635; Dwight v. Williams, 8 Fed. Cas. 187].
- Due notice: no fixed rules can be established as to what shall constitute “due notice.” “Due” is a relative term, and must be applied to each case in the exercise of the discretion of the court in view of the particular circumstances [Lawrence v. Bowman, 1 McAll. 420, 15 Fed. Cas. 21; Slattery v. Doyle, 180 Mass. 27, 61 N.E. 264; Wilde v. Wilde, 2 Nev. 306].
- Due process of law: law in its regular course of administration through courts of justice [3 Story, Const. 264, 661]. “Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and 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.” [Cooley, Const. Lim. 441]. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution – that is, by the law of its creation – to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of the process within the state, or his voluntary appearance [Pennoyer v. Neff, 95 U.S. 733, 24 L. Ed. 565]. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law [Zeigler v. Railroad Co., 58 Ala. 599]. These phrases in the constitution do not mean the general body of the law, common and statute, as it was at the time the constitution took effect; for that would seem to deny the right of the legislature to amend or repeal the law. They refer to certain fundamental rights, which that system of jurisprudence, of which ours is derivative, has always recognized [Brown v. Levee Com’rs. 50 Miss. 468]. “Due process of law,” as used in the constitution, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property [Embury v. Conner, 3 N.Y. 511, 517, 53 Am. Dec. 325; Taylor v. Porter, 4 Hill (N.Y.) 140, 40 Am. Dex. 274; Burch v. Newbury, 10 N.Y. 374, 397; and see, generally, Davidson v. New Orleans, 96 U.S. 104, 24 L. Ed. 616; Adler v. Whitbeck, 44 Ohio St. 539; Duncan v. Missouri, 152 U.S. 377, 14 Sup. Ct. 571, 38 L. Ed. 485; Cantini v. Tillman (C.C.) 54 Fed. 975; Griffin v. Mixon, 38 Miss. 458; East Kingston v. Towle, 48 N.H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174; Hallenbeck v. Hahn, 2 Neb. 377; Stuart v. Palmer, 74 N.Y. 191, 30 Am. Rep. 289; Bailey v. People, 190 Ills. 28, 60 N.E. 98, 54 L.R.A. 838, 83 Am. St. Rep. 116; Eames v. Savage, 77 Me. 221, 52 Am. Rep. 751; Brown v. New Jersey, 175 U.S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; Hagar v. Reclamation Dist., 111 U.S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Wynehamer v. People, 13 N.Y. 395; State v. Beswick, 13 R.I. 211, 43 Am. Rep. 26; In re Rosser, 101 Fed. 567, 41 C.C.A. 497].