CHAPTER III

FIFTH AMENDMENT AND ITS CONSTRUCTION (1896-1917)

§ 47. Hovey v. Elliott-Fifth Amendment limits the judicial as well as legislative power of the Federal Government. On February 12, 1878, the Supreme Court of the District of Columbia at general term made the following decree: "The answer of defendants having been removed from the files for their contempt in refusing to obey the order of the court and deposit in registry the sum of $49,279.50, it is now ordered, adjudged and decreed that the bill be taken pro confesso against them. On April 17, 1878, that order was made absolute by another order or decree, which, after reciting material allegations in the complainants' bill as 'standing without denial on the part of defendants,' ordered and adjudged 'that the complainants have a lien upon the claim of Augustine R. McDonald against the United States . . . of $197,190, and upon any draft, money, evidence of indebtedness, or proceeds thereof." The court held that a decree pro confesso entered, after removing defendants' answer from the files as a punishment for their contempt in refusing to obey an order of the court, was a denial of due process, because the power to withhold a favor or privilege from one in contempt does not include the power to refuse to such a one the right to defend on the merits in the principal case. Counsel for plaintiff in error contended that "The Fifth Amendment to the Constitution of the United States provided that no person shall be deprived of his 'property without due process of law.' This means process adapted to the character of the case. It does not mean that the practice in common law cases shall be the

1-167 U. S. 409.

102

DUE PROCESS OF LAW

§ 47

constitutional right of a defendant who is sued in a court of admiralty or equity. Defendants had ten months' time to comply with the order of the court for the deposit of the money, and over three months to apply to have the answer reinstated. This was due process of law. Since the English court of chancery began to exercise its powers there never was a time when a defendant in such circumstances had the right to be heard upon the merits of his alleged defense." In passing adversely upon that contention the court said: "Story, in his treatise on the Constitution (vol. 2, 1789), speaking of the clause in the Fifth Amendment, where it is declared that no person 'shall be deprived of life, liberty, or property without due process of law,' says: "The other part of the clause is but an enlargement of the language of Magna Carta, 'Nec super eum ibimus, nec super eum mittimus, nise per legale judicium parium suorum, vel per legem terrae' (neither will we pass upon him, or condemn him, but by the lawful judgment of his peers, or by the law of the land). Lord Coke says that these latter words, per legem terrae (by the law of the land), mean by due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law. So that this clause in effect affirms the right of trial according to the process and proceedings of the common law.' Can it be doubted that due process of law signifies' a right to be heard in one's defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution. If such power obtains, then the judicial department of the government sitting to uphold and

enforce the Constitution is the only one possessing a power to disregard it. If such authority exists then in consequence of their establishment, to compel obedience to law and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent. . . . The necessary effect of the judgment of the supreme court of the District of Columbia was to decree a portion of the award made in favor of the defendant, in other words his property belonged to the complainants in the cause. The decree therefore awarded the property of the defendant to the complainant upon the hypothesis of fact that by contract the defendant had transferred the right to this property to the complainant. If the court had power to do this, by denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process? The power to violate fundamental constitutional safeguards securing property exists, and if they may be with impunity set aside by courts on the theory that they do not apply to proceedings in contempt, why will they not also apply to proceedings against the liberty of the subject? Why should not a court in a criminal proceeding deny to the accused all right to be heard on the theory that he is in contempt, and sentence him to the full penalty of the law? No distinction between the two cases can be pointed out."

§ 48. Scranton v. Wheeler 2-Riparian owner deprived of access to navigable stream. In this case it was held that a riparian owner is not entitled to any compensation under the guarantee of the Fifth Amendment declaring that private property shall not be taken for public use, without just compensation, despite the fact that he is permanently denied access to a navigable stream by a pier, erected by the Federal government merely for the improvement of navigation, on land submerged under navigable water, the title to which is vested in such ripa

2-179 U. S. 141.

rian owner, for the reason that no matter whether the title to the land is vested in the riparian owner or the state, it was so vested subject to the public right of navigation in such stream. The court said: "Undoubtedly compensation must be made or secured to the owner when that which is done is to be regarded as a taking of private property for public use within the meaning of the Fifth Amendment of the Constitution; and of course in its exercise of the power to regulate commerce Congress may not override the provision that just compensation must be made when private property is taken for public use. Is the broad power with which Congress is invested burdened with the condition that a riparian owner whose land borders upon a navigable water of the United States shall be compensated for his right of access to navigability whenever such right ceases to be of value solely in consequence of the improvement of navigation by means of piers resting upon submerged lands away from the shore line? We think not. The question before us does not depend upon the inquiry whether the title to the submerged lands on which the new south pier rests is in the state or in the riparian owner. It is the settled rule in Michigan that 'the title of the riparian owner extends to the middle line of the lake or stream of the inland waters.' Webber v. Pere Marquette Boom Co., 2 Mich. 636, and authorities there cited. But it is equally well settled in that state that the rights of the riparian owner are subject to the public easement or servitude of navigation. Lorman v. Benson, 8 Mich. 18; Ryan v. Brown, 18 Mich. 195, 207. So that, whether the title to the submerged lands of navigable waters is in the state or in the riparian owners, it was acquired subject to the rights which the public have in the navigation of such waters."

§ 49. Wight v. Davidson 3-Meaning of due process in the District of Columbia. In this case was involved the constitutionality of the act of March 3, 1899, entitled

3-181 U. S. 371.

"An Act to Extend S Street in the District of Columbia, and for Other Purposes," under which was made an assessment upon lands of the appellees for alleged benefits accruing from the opening of certain streets adjoining such lands. The act was held to be valid upon the ground that Congress has the power to legislate for the District of Columbia in such a way as to provide for the assessment, on abutting lands and lands benefited, of one half or more of the damages resulting from such condemnation. The Court said: "In the present case is involved the constitutionality of an act of Congress regulating assessments on property in the District of Columbia, and in respect to which the jurisdiction of Congress, in matters municipal as well as political, is exclusive, and not controlled by the provisions of the Fourteenth Amendment. No doubt, in the exercise of such legislative powers, Congress is subject to the provisions of the Fifth Amendment to the Constitution of the United States, which provide, among other things, that no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation. But it by no means necessarily follows that a long and consistent construction put upon the Fifth Amendment, and maintaining the validity of the acts of Congress relating to public improvements within the District of Columbia, is to be deemed overruled by a decision concerning the operation of the Fourteenth Amendment as controlling state legislation. However, we need not pursue this suggestion, because we think the court of appeals, in regarding the decision in Norwood v. Baker, [172 U. S. 269], as overruling our previous decisions in respect of congressional legislation in respect to public local improvements in the District of Columbia, misconceived the meaning and effect of that decision. There the question was as to the validity of a village ordinance which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the open