in the federal sense, and in the sense in which those words are used in the fifth amendement to the federal constitution, means that "law of the land" which derives its authority from the legislaive powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. The words "due process of law," in judicial proceedings, mean a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement 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 per sonal liability of the defendant, he must be brought within the jurisdiction by service of process within the state, or his voluntary appearance.50 By "due process of law" is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. There can be no proceeding against life, liberty or property which

Comms. 50 Miss. 468; State v. Staten, 6 Coldw. 234, 244; Green v. Brigs, 1 Curtis, 311; Ervine's Appeal, 16 Pa. St. 256; Parsons v. Russell, 11 Mich. 129; Banning v. Taylor, 16 Pa. St. 292.

"That the law might extend to all, it is said per legem terræ, by the law of the land" (2 Coke Inst. 50)

"By the law of the land is most clearly intended the general law; a law which hears before it con. demns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the gen

eral rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. 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." (Mr. Webster in Dartmouth College case, 4 Wheat. 519.)

49 Hurtado v. California, 110 U. S. 625 (40:1097).

50 Pennoyer v. Neff, 95 U. S. 714 (24:565).

may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights.51

§ 117. The federal rule for determining what is "due process of law."-It is manifest that it was not left to the legislative power to enact any process which it might devise. The constitutional provision securing due process is a restraint on the legislative, as well as the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process "due process. To ascertain whether any given process is "due process," the court will (1) examine the constitution itself, to see whether the process be in conflict with any of its provisions; and (2) if not found to be so, it will then look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown. not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. If the process conforms to these, it is "due process of law." 52 And it has been accordingly held that, inasmuch as there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues, an act of congress authorizing a warrant to issue, without oath, against a public debtor, for the seizure of his property, was valid; that the warrant was conclusive evidence of the facts recited in it, and that the proceeding was due process of law in such cases." 53 A warrant issued by a United States tax collector, under authority of an act of congress, authorizing a sale of property under such warrant, to enforce the collection of taxes due the government, being conformable to the constitution and the usages of the common law, is "due process of law." 5+ The rule obtaining in the federal courts, requiring a

51 Hagar v. Reclamation Dist. 111 U. S. 701 (28:569).

52 Murray v. Hoboken Land Co., 18 How. 274 (15:373); Springer v. United States, 102 U. S. 586 (26:253).

53 Murray v. Hoboken Land Co., 18 How. 274 (15:373).

54 Springer v. United States, 102 U. S. 586 (26:253).

resort to the settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, is further illustrated by the doctrine of the supreme court of the United States, as to the necessity of arraignment and plea in criminal cases. That court holds, and it derives it from the English common law, that "due process of law" requires that a person accused of crime, at least in felony cases, must be arraigned and plead to the indictment, or if he stand mute or refuse to plead, the court must enter a plea of not guilty on his behalf, before his trial can rightfully proceed; and, unless such arraignment and plea affirmatively appear from the record, a judgment of conviction cannot be sustained.55 The rule is further illustrated in the determination of the supreme court, that a denial, by act of congress, of the right to bring an action at law to recover duties paid under an alleged excessive valuation of dutiable merchandise, is not depriving the importer of his property without due process of law, placing the decision upon the ground that by the settled usage and proceeding of the English common law there has always been a summary remedy for the collection of the public revenues.56 § 118. Same-Controlling force of the federal constitution.In all cases where the federal constitution has declared the requisites of any process or proceeding, that instrument is absolutely controlling in the ascertainment and determination of what is "due process of law;" but, as the provisions of the constitution are written in the language of the common law, it is interpreted in the light of the principles of that system.57 The same rule applies in cases where congress has, in the exercise of the powers conferred upon it by the constitution, prescribed the form and requisites of any process or proceeding.58 § 119. Same-Same-Decision of administrative officers as to right of foreigners to enter the United States.—It is an ac

55 Crain v. United States, 162 U. S. 625 (40:1097).

56 Hilton v. Merritt, 110 U. S. 97 (28:83).

57 Ex parte Bain, 121 U. S. 1, 14 (30:849); Ex parte Wilson, 114 U. S. 418 (29:89); Mackin V. United States, 117 U. S. 348 (29:909); Ex parte Lange, 18 Wall. 163 (21:872); Ex parte

Parks, 93 U. S. 18 (23:787); Parkinson v. United States, 121 U. S. 281 (30:959); United States v. De Walt, 128 U. S. 393 (32:485).

58 Ekin v. United States, 142 U. S. 651 (35:146); Murray v. Hoboken Land Co., 18 How. 272 (15:372); Hilton v. Merritt, 110 U. S. 97 (28:83).

cepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States, this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the president and senate, or through statutes enacted by congress, upon whom the constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to declare war, and to provide and maintain armies and navies; and to make all laws which may be necessary and proper for carrying into effect those powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.

The supervision of the admission of aliens into the United States may be entrusted by congress either to the department of state, having the general management of foreign relations, or to the department of the treasury, charged with the enforcement of the laws regulating foreign commerce; and congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the secretary of the treasury, to collectors of customs, and to inspectors acting under their authority.

And congress may, if it sees fit, authorize the courts to investigate and ascertain the facts on which the right to land depends. But, on the other hand, the final determination of those facts may be intrusted by congress to executive officers; and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to re-examine or controvert the sufficiency of the evidence on which he acted. It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor

acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within the powers expressly conferred upon them by congress, are due process of law.5 59

§ 120. The "due process of law" of the English constitution embodied in the amendments to the federal constitution-The great and fundamental principles of the common law and the English constitution, and which in fact constitute the "due process of law" of the English nation, securing the rights of life, liberty and property of the English people, are embodied in the first ten amendments to the federal constitution, and constitute to a very large extent the "due process of law" of the federal government, and stand as permanent limitations and restraints upon the exercise of federal power. Hence it is, that the substantive principles of what is called "due process of law," are largely defined by, and embraced in, the provisions. of the federal constitution, and are, therefore, not subject to change by federal legislation. The first ten amendments are, in the federal sense, "due process of law;" true, indeed, they do not embrace all that is comprehended in the subject, but they do embrace the great and controlling principles.60

§ 121. Unreasonable search and seizure.-The fourth amendment to the federal constitution is: "The right of the people to be secure in their persons, houses, papers and effects shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly de

59 Ekin v. United States, 142 U. S. 651 (35:1146).

60 Entick v. Carrington, 19 Howell, St. Tr. 1029; Money v. Leach, 3 Burr. 1743; Semayne's Case, 5 Coke, 91; Wilkes' Case, 2 Wils. 151, s. c. 19 St. Tr. 1405; Story on Const., secs. 1901, 1902; 2 May's Constitutional History of England, 1-47; 15 Hansard's Parl. Hist. 1398, 1418; Boyd v. United States,

116 U. S. 616, 641 (29:746); Ex parte Bain, 121 U. S. 1, 14 (30:849); Ex parte Wilson, 114 U. S. 418 (29:89); Mackin v. United States, 117 U. S. 348 (29:909); Parkinson V. United States, 121 U. S. 281 (30:959); Brown v. Walker, 161 U. S. 591 (40:819); Bram v. United States, 168 U. S. 532, 573 (42:568).