had under the New Jersey statute authorizing persons indicted for murder to plead guilty and submit the degree of their guilt to the determination of the court, are due process the Court said: "In Re Kemmler, 136 U. S. 436, a fruitless effort was made to induce this Court to hold that a statute of the State of New York, providing that punishment of death should be inflicted by an electrical apparatus, was void under the Fourteenth Amendment, and it was said: "The enactment of this statute was in itself within the legitimate sphere of the legislative power of the state and in the observance of those general rules prescribed by our system of jurisprudence; and the Legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We can not perceive that the state has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process of law.' Applying the principles of these decisions to the case before us we are readily brought to the conclusion that the appellant, in voluntarily availing himself of the provisions of the statute and electing to plead guilty, was deprived of no right or privilege within the protection of the Fourteenth Amendment." In Giozza v. Tiernan, 148 U. S. 657, the Court said: "The amendment does not take from the states these powers of police that were reserved at the time the original constitution was adopted. Undoubtedly it forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights; but it was not designed to interfere with the power of the state to protect the lives, liberty, and property of its citizens, and to promote their health, morals, education, and good order. Barbier v. Connolly, 113 U. S. 27, 31; Re Kemmler, 136 U. S. 436. Nor in respect of taxation was the amendment intended to compel the state to adopt an iron rule of equality; to prevent the classification of property for taxation at different rates; or to prohibit legislation in that regard,

special either in the extent of which it operates or the objects sought to be obtained by it. It is enough that there is no discrimination in favor of one against another of the same class. In Scott v. McNeal, 154 U. S. 34, in which it was held that "No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party"-the Court reaffirmed the definition of "due process of law" as given by Mr. Justice Field in Penoyer v. Neff, 95 U. S. 714. In Holden v. Hardy, 169 U. S. 366, it was held that a state statute limiting the period of employment of working men in underground mines, or in the smelting, reduction, or refining of ores or metals, to eight hours a day and making its violation a misdemeanor, is a constitutional exercise of the police power-the Court said: "This Court has never attempted to define with precision the words 'due process of law,' nor is it necessary to do so in this case. It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his defense." In Reetz v. Michigan, 188 U. S. 505, in which it was held that due process requires no special provision for granting a hearing to applicants for registration by the board of registration in medicine when provision is made for meetings of the board at specified times at the state capitol-the Court, adopting the language of Mr. Justice Matthews in Hurtado v. California, 110 U. S. 516, said: "It follows that any legal proceeding enforced by public authority, whether sanctified by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.' Neither is the right of appeal essential to due process of law. In nearly every state are statutes giving, in criminal cases of a minor

nature, a single trial, without any right of review." In the recent and important case of Ochoa v. Hernandez, 230 U. S. 139, in which the construction of the due process clause of the Fifth Amendment was involved the Court, speaking through Mr. Justice Pitney, said: "Without the guaranty of 'due process' the right of private property can not be said to exist, in the sense in which it is known. to our laws. The principle, known to the common law before Magna Carta, was embodied in that Charter (2 Coke, Inst. 45, 50), and has been recognized since the Revolution as among the safest foundations of our institutions. Whatever else may be uncertain about the definition of the term 'due process of law,' all authorities agree that it inhibits the taking of one man's property and giving it to another, contrary to settled usages and modes of procedure, and without notice or an opportunity for a hearing." This long procession of definitions, or rather descriptions of the elements that constitute due process, will end with definitions of due process given by three famous text writers which have received general approval. Mr. Justice Story in his Commentary on the Constitution (5 ed. 1945), has said: "Due process 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 being dealt with belongs." Kent, in his Commentaties (II, 3) says: "It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseised of his freehold, or liberties, or estates, or exiled or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, by the law of the land, as used in Magna Carta, in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the

true sense and exposition of those words." Judge Cooley in his Constitutional Limitations (354-55) says: "Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case [4 Wheat. 518] 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 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.' 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 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, that condemns it as unknown to the law of the land."

§ 131. Difficulties in the way of a complete and authoritative definition-The rule of inclusion and exclusion. No critical mind can examine the foregoing definitions of due process, if such they may be called, without being impressed with the fact that the basic difficulty in the way of a complete and authoritative definition applicable to all cases consists of the radical differences existing between the many subject-matters to which it must be applied. A proceeding in which the taking is enforced by the sovereignty of a state through the power of taxation, or through that of eminent domain, where the process does not require the same kind of a tribunal or the same kind of a notice as is required in a suit at law, certainly differs very widely from a litigation between private individuals in a court whose jurisdiction

must be perfect, and in which equal law must be administered after adequate legal notice and a hearing conducted according to traditional law. In the words of Mr. Justice Bradley, in two notable cases: "In judging what is 'due process of law' respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law;' but, if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law."" Davidson v. New Orleans, 96 U. S. 97. Concurring opinion. Again: "The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain. It involves no violation of due process of law, when it is executed according to customary forms and established usages, or in subordination to the principles which underlie them." Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232. In the presence of such difficulties rendering impossible any comprehensive and explicit definition equally applicable to an ever changing series of widely different subject-matters, the Court, in Davidson v. New Orleans, 96 U. S. 97, wisely resolved to adopt, as the only practical expedient, the rule of inclusion and exclusion, stated in the following form: "But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded." In other words, when a given case is presented, it must first be classified, before the question can be asked whether or no due process has been denied when the deprivation is