but how far it may be in the power of the legislature to regulate the right we shall not undertake to say, as happily there neither has been, nor perhaps is likely to be, much occasion for a discussion of that question by the courts.1

1 In Bliss v. Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and the State. But see Nunn v. State, 1 Kelly, 243; State v. Jumel, 13 La An. 399; Owen v. State, 31 Ala. 387; Cockrum v. State, 24 Tex. 394; Andrews v. State, 3 Heis. 165; s. c. 8 Am. Rep. 8, and note. A statute prohibiting the open wearing of arms upon the person was held unconstitutional in Stockdale v. State, 32 Geo. 225. And one forbidding carrying either publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol, or revolver, was sustained, except as to the lastmentioned weapon; and as to that it was held that, if the weapon was suitable for the equipment of a soldier, the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thompson 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition" to a white person was unconstitutional. And see in general, Bishop on Stat. Crimes, Chap. 36, and cases cited.

[405]

OF THE PROTECTION TO PROPERTY BY “THE LAW OF THE LAND."

THE protection of the subject in the free enjoyment of his life, his liberty, and his property, except as they might be declared by the judgment of his peers or the law of the land to be forfeited, was guaranteed by the twenty-ninth chapter of Magna Charta, "which alone," says Sir William Blackstone, "would have merited the title that it bears of the Great Charter." The people of the American States, holding the sovereignty in their own hands, have no occasion to exact pledges from any one for a due observance of individual rights; but the aggressive tendency of power is such, that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re-enact this guaranty, and thereby adopt it as a principle of constitutional protection. In some form of words, it is to be found in each of

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1 4 Bl. Com. 424. The chapter, as it stood in the original charter of John, was: Ne corpus liberi hominis capiatur nec imprisonetur nec disseisietur nec utlagetur nec exuletur, nec aliquo modo destruatur, nec rex eat vel mittat super eum vi, nisi per judicium parium suorum, vel per legem terræ." No freeman shall be taken or imprisoned or disseised or outlawed or banished, or any ways destroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the law of the land. In the charter of Henry III. it was varied slightly, as follows: "Nullus liber homo capiatur vel imprisonetur, aut disseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ." See Blackstone's Charters. The Petition of Right - 1 Car. I. c. 1-prayed, among other things," that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of Parliament; that none be called upon to make answer for refusal so to do; that freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the king's special command, without any charge." The Bill of Rights-1 Wm. and Mary, § 2, c. 2—was confined to an enumeration and condemnation of the illegal acts of the preceding reign; but the Great Charter of Henry III. was then, and is still, in force..

1

the State constitutions; and, though verbal differences

* appear in the different provisions, no change in language, [* 352]

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process of

The following are the constitutional provisions in the several States: Alabama: " that, in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself, or be deprived of his life, liberty, or property, but by due process of law." Art. 1, § 8. - Arkansas: "That no person shall . . be deprived of his life, liberty, or property, without due process of law." Art. 1, § 9. - California: Like that of Alabama. Art. 1, § 8. Connecticut: Same as Alabama, substituting course of law" for " law." Art. 1, § 9. — Delaware: Like that of Alabama, substituting for " process of law," ,""the judgment of his peers, or the law of the land." Art. 1, § 7.Florida: Like that of Alabama. Art. 1, § 9. Georgia: "No person shall be deprived of life, liberty, or property, except by due process of law." Art. 1, § 3. -Illinois: " No person shall be deprived of life, liberty, or property, without due process of law." Art. 1, § 2. Iowa, the same. Art. 1, § 9. — Kentucky: Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land." Art. 13, § 12. Maine: "Nor be deprived of his life, liberty, property, or privileges, but by the judgment of his peers, or the law of the land." Art. 1, § 6. Maryland: "That no man ought to be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." Declaration of Rights, § 23. — Massachusetts: No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Declaration of Rights, Art. 12. Michigan: No person shall . . . be deprived of life, liberty, or property, without due process of law." Art. 6, § 32.- Minnesota: Like that of Michigan. Art. 1, § 7.- Mississippi: The same. Art. 1, § 2. Missouri: Same as Delaware. Art. 1, § 18.- Nevada: "Nor be deprived of life, liberty, or property, without due process of law." Art. 1, § 8.- New Hampshire: Same as Massachusetts. Bill of Rights, Art. - New York: Same as Nevada. Art. 1, § 6. North Carolina: "That no person ought to be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, § 17. Pennsylvania: Like Delaware.

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15,

Art. 9, § 9. - Rhode Island: Like Delaware. Art. 1, § 10. South Carolina: Like that of Massachusetts, substituting "person" for "subject." Art. 1, § 14. Tennessee: "That no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of Art. 1, § 8. his peers, or the law of the land.” Texas: No citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land." Art. 1, § 16.-West Virginia: "No person, in time of peace, shall be deprived of life, liberty, or property, without due process of law." Art. 2, § 6. Under

it is thought, has in any case been made with a view to [* 353] essential * change in legal effect; and the differences in phraseology will not, therefore, be of importance in our discussion. Indeed, the language employed is generally nearly identical, except that the phrase "due process [or course] of law" is sometimes used, sometimes "the law of the land," and in some cases both; but the meaning is the same in every case. And, by the fourteenth amendment, the guaranty is now incorporated in the Constitution of the United States.2

If now we shall ascertain the sense in which the phrases" due process of law" and "the law of the land" are employed in the several constitutional provisions which we have referred to, when the protection of rights in property is had in view, we shall be able, perhaps, to indicate the rule, by which the proper conclusion may be reached in those cases in which legislative action is objected to, as not being "the law of the land;" or judicial or ministerial action is contested as not being "due process of law," within the meaning of these terms as the Constitution employs them.

If we examine such definitions of these terms as are met with in the reported cases, we shall find them so various, that some difficulty must arise in fixing upon one which shall be accurate, complete in itself, and at the same time appropriate in all the cases. The diversity of definition is certainly not surprising, when we consider the diversity of cases for the purposes of which it has been attempted, and reflect that a definition that is sufficient for one case and applicable to its facts may be altogether insufficient or entirely inapplicable in another.

Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case: " By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders

each of the remaining constitutions, equivalent protection to that which these provisions give, is believed to be afforded by fundamental principles recognized and enforced by the courts.

1 2 Inst. 50; Bouv. Law. Dic. “Due process of Law," "Law of the land; State v. Simons, 2 Spears, 767; Vanzant v. Waddell, 2 Yerg. 260; Wally's Heirs v. Kennedy, ib. 554; Greene v. Briggs, 1 Curt. 311; Murray's Lessee v. Hoboken Land Co., 18 How. 276, per Curtis J.; Parsons v. Russell, 11 Mich. 129, per Manning, J.; Ervine's Appeal, 16 Penn. St. 256; Banning v. Taylor, 24 Penn. St. 292; State v. Staten, 6 Cold. 244; Huber v. Reiley, 53 Penn. St. 112. 2 See ante, p. 11.

judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. [* 354] Every thing which may pass under the form of an enactment is not therefore to be considered the law of the land." 1

The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they "proceed upon inquiry" and "render judgment only after trial." It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. "The words by the law of the land,' as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two houses: You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it.'"2 But there are many cases in

1 Dartmouth College v. Woodward, 4 Wheat. 519; Works of Webster, Vol. V. p. 487. And he proceeds: "If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country."

2 Per Bronson, J., in Taylor v. Porter, 4 Hill, 140. See also Jones v. Perry, 10 Yerg. 59; Ervine's Appeal, 16 Penn. St. 256; Arrowsmith v. Burlingim, 4 McLean, 498; Lane v. Dorman, 3 Scam. 238; Reed v. Wright, 2 Greene (Iowa), 15; Woodcock v. Bennett, 1 Cow. 740; Kinney v. Beverley, 2 H. & M. 536; Commonwealth v. Byrne, 20 Grat. 165. "Those terms, law of the land,' do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated. For what more can the citizen suffer than to be taken, imprisoned, disseised of his freehold, liberties, and privileges; be outlawed, exiled, and destroyed, and be deprived of his property, his liberty, and his life, without crime? Yet all this he may suffer if an act of the assembly simply denouncing those penalties upon particular persons, or a particular class of persons, be in itself a law of the land within the sense of the