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.1 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. ? 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

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| 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."

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, bis 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

а

which the title to property may pass from one person to another, without the intervention of judicial proceedings, properly so called ; and we have already seen that special legislative acts designed

to accomplish the like end have also been held valid in [* 355] * some cases. The necessity for “ general rules," there* .

fore, does not preclude the legislature from establishing special rules for particular cases, provided the particular cases range themselves under some general rule of legislative power ; nor is there any requirement of judicial action which demands that, in every case, the parties interested shall have a hearing in court.1

On the other hand we shall find that general rules may sometimes be as obnoxious as special, if they operate to deprive individual citizens of vested rights. While every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the

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Constitution; for what is in that sense the law of the land must be duly observed by all, and upheld and enforced by the courts. In reference to the infliction of punishment and devesting the rights of property, it has been repeatedly held in this State, and it is believed in every other of the Union, that there are limitations upon the legislative power, notwithstanding these words; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually • laws of the land' for those purposes.” Hoke v. Henderson, 4 Dev. 15. Mr. Broom says: “It is indeed an essential principle of the law of England, that the subject bath an undoubted property in his goods and possessions; otherwise there shall remain no more industry, no more justice, no more valor; for who will labor? who will bazard his person in the day of battle for that which is not his own?' The Banker's Case, by Turnor, 10. And therefore our customary law is not more solicitous about any thing than to preserve the property of the subject from the inundation of the prerogative.' Ibid.” Broom's Const. Law,

p.

228. See Wynehamer v. People, 13 N. Y. 432, per Selden, J. In James v. Reynolds, 2 Texas, 251, Chief Justice Hemphill says: " The terms law of the land'.. are now, in their most usual acceptation, regarded as general public laws, binding upon all the members of the community, under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals.” And see Vanzant v. Waddell, 2 Yerg. 269, per Peck, J.; Hard v. Nearing, 44 Barb. 472. Nevertheless there are many cases, as we have shown, ante, pp. 97, 109, in which private laws may be passed in entire accord with the general public rules which govern the State; and we shall refer to more cases further on.

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whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operation. It is not the partial nature of the rule, so much as its arbitrary and unusual character, which condemns it as unknown to the law of the land. Mr. Justice Edwards has said in one case : “Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights.” And we have met in no judicial decision a statement that embodies more tersely and accurately the correct view of the principle we are considering, than the following, from an opinion by Mr. Justice Johnson of the Supreme Court of the United States : “As to the words from Magna Charta incorporated in the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, — that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” 2

* The principles, then, upon which the process is based [* 356] are to determine whether it is “ due process

or not, and not any considerations of mere form. Administrative and remedial process may change from time to time, but only with due regard to the landmarks established for the protection of the citizen. When the government through its established agencies interferes with the title to one's property, or with his independent enjoyment of it,

! Westervelt v. Gregg, 12 N. Y. 209. See also State v. Staten, 6 Cold. 233.

? Bank of Columbia v. Okely, 4 Wheat. 235. " What is meant by the law of the land'? In this State, taking as our guide Zylstra's Case, 1 Bay 384 ; White v. Kendrick, 1 Brev. 471; State v. Coleman and Maxy, 1 McMull. 502, there can be no hesitation in saying that these words mean the common law and the statute law existing in this State at the adoption of our constitution. Altogether they constitute a body of law prescribing the course of justice to which a free man is to be considered amenable for all time to come." Per O'Neill, J., in State v. Simons, 2 Speers, 767. See also State v. Doherty, 60 Me. 509. It must not be understood from this, however, that it would not be competent to change either the common law or the statute law, so long as the principles therein embodied, and which protected private rights, were not departed from.

and its action is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by rules that pertain to forms of procedure merely. In judicial proceedings the law of the land requires a hearing before condemnation, and judgment before dispossession; but when property is appropriated by the government to public uses, or the legislature interferes to give direction to its title through remedial statutes, different considerations from those which regard the controversies between man and man must prevail, different proceedings are required, and we have only to see whether the interference can be justified by the established rules applicable to the special case. Due process of law in each particular case means, such an exertion of the powers of 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.2

Private rights may be interfered with by either the legislative, executive, or judicial department of the government. The executive

department in every instance must show authority of law [* 357] for its action, and occasion does not often arise for an examination of the limits which circumscribe its powers. The legislative department may in some cases constitutionally authorize interference, and in others may interpose by direct action. Elsewhere we shall consider the police power of the State, and endeavor to show how completely all the property, as well as all the people within the State, are subject to control under it, within certain limits, and for the purposes for which that power is exercised. The right of eminent domain and the right of taxation will also be discussed separately, and it will appear that under each the law of the land sanctions devesting individuals of their prop

1 Vanzant v. Waddell, 2 Yerg. 260; Lenz v. Charlton, 23 Wis. 478.

2 See Wynehamer v. People, 13 N. Y. 432, per Selden, J. In State v. Allen, 2 McCord, 56, the court, in speaking of process for the collection of taxes, say: "We think that any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be considered an exception to the right of trial by jury, and is embraced in the alternative law of the land."" And see Hard v. Nearing, 44 Barb. 472; Sears v. Cottrell, 5 Mich. 251; Gibson v. Mason, 5 Nev. 302.