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384 DOI: 10.7330_9780874219203.c017 17 Conclusion No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. —Magna Carta, June 15, 1215 T his book has endeavored to avoid use of the term “vigilante justice.” Vigilantism, by definition, deprives or at least curtails an accused’s due process. The denial or curtailment of due process is not a form of justice. The term “vigilante justice” is therefore a misnomer, a contradiction in terms. The vigilantism that occurred in Montana in the 1860s and beyond cannot be fully understood without discussing its history in the context of due process. “Due process” is a concept that holds great importance in American jurisprudence . It has its origin in the Magna Carta, which provided, in clause 39, that “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” The concept was raised for the first time in the United States when the State of New York proposed a due process amendment to the Constitution at the time its ratification was being considered by the individual states. The New York amendment read, “No person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Liberty or Property but by due process of Law.1 James Madison studied the amendments proposed by the various states and included due process language in the Fifth Amendment in the form that we are familiar with today.2 The Fifth Amendment to the US Constitution provides that no person shall “be deprived of life, liberty, or property, without due Conclusion 385 process of law,” which is a simpler, streamlined version of the language found in the Magna Carta and in the New York proposal. Courts have filled volumes of legal texts with decisions interpreting the meaning and extent of due process. Some decisions have assumed landmark importance and have been referenced in this narrative, such as Miranda v. Arizona, Mapp v. Ohio, Gideon v. Wainwright, Escobedo v. Illinois, and Brady v. Maryland. Why is due process important? Many explanations can be given. The most basic explanation, however, is that if government cannot deprive a citizen of life, liberty, or property without due process of law, the absence of due process means that government may act unchecked in taking a citizen’s life, liberty, and property. In criminal cases property is at stake if a defendant may be compelled to pay fines or restitution as part of a sentence. Liberty is at stake if a defendant may be incarcerated while unable to make bail pending trial, or as part of sentence upon a plea of guilty or a trial conviction. A defendant’s life is at stake in capital cases in which the death penalty is authorized by law and sought by the prosecution. In Montana in the 1860s vigilante activity could affect in every case the prisoner’s life, liberty, and property. Any absence of due process by the vigilantes rendered their own powers unchecked. Unchecked power at the hands of a vigilance committee should be as much of a concern as, or of more concern than, unchecked power at the hands of a government. Because due process is a cornerstone of American jurisprudence, it is a subject that is of importance. Its importance is not just present-day. Due process is a concept that is important to our past and to what it says about our national history. Due process has two essential components. One component is the process and procedures that guide the investigation, arrest, prosecution, conviction, sentence, and appellate remedies associated with an individual’s legal cases. The second component addresses the amount of process that is due and owing to the individual. Defining the process is qualitative. The amount of process that is due is quantitative. The merger of the qualitative and quantitative aspects of due process in court proceedings assures that the system of justice followed in our country is constitutionally legitimate and fair to all parties. For generations , when Americans have had civil disputes among themselves, they have not resolved the disputes by means of knives, guns, or fights in the street, where...

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