fact that our American states adopted it with the meaning attached to it in England, not at the time of the emigration, but at the time of the severance from the mother country in 1776. The first notable extension given to the old formula in the new land was that which resulted from its application to all three departments of state power, including of course the legislative. The founders of our state systems were careful to abolish the idea of an omnipotent parliament and the possible spoliation or arbitrary denial of personal rights upon the part of the executive under the maxim that "the King can do no wrong." In the words of a great jurist: "In this country written constitutions were deemed essential to protect the rights of the people against the encroachments of power delegated to their governments, and the provisions of Magna Carta were incorporated into Bills of Rights. They were limitations upon all the powers of government, legislative, as well as executive and judicial.

In the Fourteenth Amendment, by parity of reason, it (due process) refers to that law of the land in each state, which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure." Hurtado v. California, 110 U. S. 516. And yet despite the fact that all of the states drew the famous formula from a common source; that all of them accepted it with the meaning attached to it in the mother country in 1776; that all of them so expanded it as to embrace all three departments of state power, it never has secured to all persons the benefit of the same laws and same remedies in every state. As each state has always possessed the power to give local color to its own conception of "due process," no violation of the formula occurs so long as the law of a particular state is executed according to its customary forms or

established usages. Therefore the Court said in Bowman v. Lewis, 101 U. S. 22: "The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line may be a right of trial by jury, and the other side no such right. Each state prescribes its own modes of judicial proceeding." In the prior case of Walker v. Sauvinet, 92 U. S. 90, the Court had said: "The states, so far as this amendment (Art. VII) is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship, which the states are forbidden by the Fourteenth Amendment to abridge. A state can not deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met, if the trial is had according to the settled course of judicial proceedings. Murray v. Hoboken Land & I. Co., 18 How. 280. Due process of law is process according to the law of the state. This process in the state is regulated by the law of the state. Our power over the law is only to determine whether it is in conflict with the supreme law of the land; that is to say, with the constitution and laws of the United States made in pursuance thereof, or with any treaty made under the authority of the United States." In Davidson v. New Orleans, 96 U. S. 97, the Court said: "it is not possible to hold that where by the laws of the state the party aggrieved has, as regards the issues affecting his property, a fair trial in a court of justice, according to the modes of proceeding applicable to such case, that he has been deprived of that property without due process of law." In Kennard v. Louisiana, 92 U. S. 480, where the question was whether a mode of trying the title to an office, in which there was no pro

vision for a jury, was due process of law, its validity was affirmed. The Court said: "From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the state, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the constitutional objections urged against the validity of the act." And yet the fact that due process of law is process according to the system of law obtaining in each state, and not according to any general law of the United States, does not imply that the right of a state to prescribe its own laws and procedure is without limitations. In Hurtado v. California, 110 U. S. 516, the Court said: "But it is not to be supposed that these (state) legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. The Supreme

Court of Mississippi, in a well considered case of Brown v. Comrs., 50 Miss. 468, speaking of the meaning of the phrase 'due process of law,' says: "The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty or property, then the deprivation has not been by 'due process of law.' 'It must be conceded,' said this Court, speaking through Mr. Justice Miller, in Loan Ass'n v. Topeka, 20 Wall.

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655-662, 'that there are such rights in every free government beyond the control of the state."" In emphasizing the same principle the Court said in Wynehamer v. The People, 13 N. Y. 378: "To say, as has been suggested, that 'the law of the land,' or 'due process of law,' may mean the very act of legislation which deprives the citizen of his rights, privileges or property, leads to a simple absurdity. The constitution would then mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away. Where rights of property are admitted to exist, the legislature can not say they shall exist no longer; nor will it make any difference, although a process and a tribunal are appointed to execute the sentence. If this is the law of the land,' and 'due process of law,' within the meaning of the constitution, then the legislature is omnipotent. It may, under the same interpretation, pass a law to take away liberty or life without a pre-existing cause, appointing judicial and executive agencies to execute its will. Property is placed by the constitution in the same category with liberty and life." Thus it appears that while each state is given a wide latitude and broad discretion as to the forms and modes in which it may regulate judicial procedure and the rights of property within its limits, all such state regulation offends against the Federal constitution when it fails to provide due process by ignoring "certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized."

§ 130. Notable attempts to define due process. The gravest desideratum in English and American law is and has ever been a clear, comprehensive and authoritative definition of the elements which, under all circumstances and conditions, constitute due process of law, as a guaranty of "certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always

recognized." The mother country, from which the doctrine of due process was drawn, furnished no such definition to the colonies; and, after they were transformed into sovereign states, each armed with a wide discretion as to the form in which and the extent to which due process should be recognized, they naturally failed to evolve a definition sufficiently authoritative to win the acceptance of all. Not until the guaranty of due process passed into the Federal constitution, first, in the Fifth Amendment as a limitation on the powers of the Federal government; second, in the Fourteenth Amendment, as a limitation on the powers of the state governments,-did the hope arise of an authoritative definition from a single tribunal armed with the power to enforce its mandates. The good work began in earnest when in the Dartmouth College case, 4 Wheat. 518, involving the validity of an act of a state legislature taking away franchises and rights vested in the college by a prior charter, the contention was made that such act violated that provision of the New Hampshire constitution which declared that no one shall be deprived of "property, privileges or immunities but by the judgment of his peers or the law of the land." Mr. Webster, in defining the term due process in its relation to substantive rights as well as procedure, in a case in which the act, in the nature of a judgment operating on rights already acquired, was directed against a single corporation, and passed without giving to it a legal opportunity to defend, said: "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 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. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this act were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring