The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law Page: 6 of 59
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destroyed ... except by the legal judgment of his peers or by the law of the land."'
Subsequent legislation in the reign of Edward III explained that this precluded
punishment by the King except "in due Manner . .. or by Process made by Writ...
[or] by Course of the Law,"2 or as later more simply stated, except "by due Process
of the Law."3 Three hundred years after the passage of the Edwardian statutes, Lord
Coke and other members of Parliament read these due process and law of the land
requirements to include a broad prohibition against the use of martial law in
peacetime, an interpretation they compelled King Charles I to acknowledge.4
Magna Carta, ch. 39 (1225)[ch.29 in the Charter of King John (1215)], reprinted in
SWINDLER, MAGNA CARTA: LEGEND AND LEGACY 315-16 (1965)("No freeman shall be
taken, or imprisoned, or be disseised of any freehold, or liberties, or free customs, or
outlawed, or banished, or in any other way destroyed, nor will we go or send against him,
except by the lawful judgment of his peers or by the law of the land" (language added to ch.29
of the Charter of King John in the reissuance by King Henry III appears in italics). Although
the Magna Carta in the modified version of King Henry remains in effect, the language quoted
above is generally cited as "chapter 29," see e.g., THOMPSON, MAGNA CARTA: ITS ROLE IN
THE MAKING OF THE ENGLISH CONSTITUTION 1300-1629 68 (1948); HALE, THE HISTORY OF
THE COMMON LAW OF ENGLAND 49 (1716 ed.); I COKE, THE SECOND PART OF THE
INSTITUTES OF THE LAWS OF ENGLAND 45 (1797 ed.); I BLACKSTONE, COMMENTARIES ON
THE LAWS OF ENGLAND 400 (1765 ed.).
2 25 Ed.III. Stat.5, ch.4 (1352), reprinted in, 1 STATUTES OF THE REALM, 1231-1377 321
(1993)("Whereas it is contained in the Great Charter of the Franchises of England, that none
shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless
it be by the Law of the Land; It is accorded assented, and established, That from henceforth
none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council,
unless it be by Indictment or Presentment of good and lawful People of the same
neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ
original at the Common Law; nor that none be out of his Franchises, nor of his freeholds,
unless he be duly brought into answer, and forejudged of the same by the Course of the Law;
and if any thing be done against the same, it shall be redressed and holden for none").
3 28 Ed.III. chs. 1, 3 (1354), reprinted in 1 STATUTES OF THE REALM, 1231-1377 345
(1993)("the Great Charter ... [shall] be kept and maintained in all Points.... No Man of
what[ever] Estate or Condition that he be, shall be put out of land or Tenement, nor taken, nor
imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due
Process of the Law").
4 See, THOMPSON, MAGNA CARTA: ITS ROLE IN THE MAKING OF THE ENGLISH
CONSTITUTION, 1300-1629, 347-50 (1948); Engdahl, Soldiers, Riots, and Revolution: The
Law and History of Military Troops in Civil Disorders 51 IOWA LAW REVIEW 1 (1971).
Coke's Institutes make the same point; proceedings under martial law are not
proceedings under the "law of the land" (lex terrae), I COKE, THE SECOND PART OF THE
INSTITUTES OF THE LAWS OF ENGLAND 50 ("And so if two English men doe goe into a foreine
kingdome, and fight there, and the one murder the other, lex terrae extendeth not hereunto, but
this offense shall be heard, and determined before the constable, and marshall [i.e. at martial
law], and such proceedings shall be there, by attaching of the body, and otherwise, as the law,
and custom of that court have been allowed by the lawes of the realme, [13 H.IV. ch.5
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The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law, report, June 1, 2000; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc810022/m1/6/: accessed April 23, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.