abridged or denied. The Federal courts have nothing whatever to do with the expediency or policy of state laws, nor is the hardship or injustice of such laws necessarily an objection against their constitutional validity. "The rule, briefly stated, is that whenever an act of the legislature is challenged in court the inquiry is limited to the question of power, and does not extend to the matter of expediency, the motives of the legislators, or the reasons which were spread before them to induce the passage of the act." Angle v. Chicago, St. Paul, etc., Railway, 151 U. S. 1. The amendment does not attempt to deprive the states of their police powers nor does it "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 there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding." Bowman v. Lewis, 101 U. S. 22. In speaking of due process as applied to legal proceedings the Supreme Court has said that it means "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 personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance." Pennoyer v. Neff, 95 U. S. 714, quoted in Scott v. McNeal, 154 U. S. 46.

§ 18. Due process of law as embodied in the Fourteenth Amendment. The leading case just quoted emphasizes with a clearness and force that can not be surpassed, the all important fact that what the amendment does guar

antee, primarily and in terms that can not be misunderstood, is that kind of legal proceedings contemplated by chapter 39 of the Great Charter, as the same was understood in England at the time of the separation from the mother country. Unfortunately in applying that seminal principle of the English Constitution as a limitation upon the powers of the states the Supreme Court, speaking through a great judge, fell into the error, as heretofore explained, of appealing to Coke's commentary on Magna Carta, published in 1632, as the true key to its meaning instead of the "Commentaries" of Blackstone, put in their present form in 1758, after the meaning of due process had been vastly widened by the results of the Revolutions of 1640 and 1688. In Davidson v. New Orleans, 96 U. S. 97 (1877), the court, speaking through Mr. Justice Miller, said: "The equivalent of the phrase 'due process of law,' according to Lord Coke, is found in the words 'law of the land,' in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guaranties of the rights of the subject against the oppression of the Crown. In the series of amendments to the Constitution of the United States, proposed immediately after the organization of the Government, which were dictated by the jealousy of the states as further limitations upon the power of the Federal Government, it is found in the Fifth, in connection with other guaranties of personal rights of the same character. Among those are protection against prosecutions for crimes unless sanctioned by a grand jury; against being twice tried for the same offense; against the accused being compelled in a criminal case, to testify against himself; and against taking private property for public use without just compensation when, in the year of grace 1868, there is placed in the Constitution of the United States a declaration that 'No State shall deprive any person of life, liberty, or property without due process of law,' can a State make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is

to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is affected under the forms of state legislation." The Court added that "A most exhaustive judicial inquiry into the meaning of the words 'due process of law,' as found in the Fifth Amendment, resulted in the unanimous decision of this court, that they do not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts. Murray v. Hoboken Land Co., 18 How. 272 (1855)." In that case the Court, falling into the same historical error, said: "The words 'due process of law,' were undoubtedly intended to convey the same meaning as the words 'by the law of the land,' in Magna Carta. Lord Coke, in his commentary on those words (2 Inst., 50), says, they mean due process of law. The Constitution which had been adopted by the several States before the formation of the Federal Constitution, following the language of the Great Charter more closely, generally contained the words 'but by the judgment of his peers, or the law of the land.'”

As time went on the Court perceived that the draftmen of the State Constitutions, to which Mr. Justice Curtis referred in the case last cited, never dreamed of founding American constitutional law upon the ancient English constitution as it existed in 1632—with the Star Chamber and High Commission intact-and not upon the reformed English constitution, as Blackstone described it in the first book of his famous "Commentaries," put in their present form in 1758. The departure from the old and mischievous misconception dates from 1884 when in Hutardo v. California, 110 U. S. 516, Mr. Justice Matthews was the first to perceive that the old rule of construction, based on English Constitutional theory as it existed in Coke's time, was at once unsound and impractical. In rejecting the old rule, he said: "It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians. This would be all the more singular and surprising, in this

quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Carta stood for very different things at the time of the separation of the American colonies from what they represented originally." The good work thus begun was materially advanced in 1896 when in Lowe v. Kansas, 163 U. S. 81, Mr. Justice Gray said: "Whether the mode of proceeding prescribed by this statute, and followed in this case was due process of law, depends upon the question whether it was in substantial accord with the law and usage of England before the Declaration of Independence, and in this country since it became a nation, in similar cases." But the end was not reached until 1908 when in Twining v. New Jersey, 211 U. S. 78, Mr. Justice Moody, a jurist of rare promise, said: "It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a straight jacket only to be loosed by constitutional amendment."

The foregoing definitions of the due process of law guaranteed by the amendment in question, as formulated by Justices Matthews, Gray and Moody, are happy expressions of the fundamental principle of the Historical School of Jurisprudence which has established the momentous conclusion that law, in its final analysis, is neither the command of an outside sovereign, nor a collection of abstract principles in force by the nature of things for all ages. Law is a living and growing organism which changes as the relations of society change. As Mr. Justice Holmes has expressed it: "The law is always approaching, and never reaching consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will

become entirely consistent only when it ceases to grow." The Common Law, p. 36. Only so long as a constitution continues to be a living and growing organism, which changes as the relations of society change, can it continue to adapt itself to the ever increasing wants of a progressive society. Mr. Justice Moody grasped the fact that the problem of problems for those who create judge made law is to find a way through which the "straight-jacket" put on a progressive state, in the form of a written constitution or code, can be made sufficiently elastic to adapt itself to all the changing conditions of the aftergrowth. That problem has been engaging English jurists ever since chapter 39 of the Great Charter was formulated in 1215. They have interpreted the due process principle it embodies in each succeeding age according to its needs and aspirations; and in that way it has been made to mirror for each age its own peculiar conception of civil liberty. After it had been broadened and adapted to modern conditions by the Revolutions of 1640 and 1688 it passed into the Constitution of the United States as a limitation on the powers of the Federal Government after the adoption of the Fifth Amendment in 1790; and as a limitation on the powers of the state government after the adoption of the Fourteenth Amendment in 1868.

819. Equal protection of the laws as embodied in the Fourteenth Amendment. The draftsmen of the amendment in question were prompted to add the final clause of Section 1-"nor deny to any person within its jurisdiction the equal protection of the laws"-by the peculiar political conditions by which they were surrounded. Millions of slaves of African descent had been suddenly lifted to the condition of freedmen, and there was a grave apprehension expressed upon the part of their liberators that the legislatures of the Southern States, if not restrained by a constitutional limitation, would enact discriminating statutes designed to remand these freedmen to a condition of virtual slavery. It was said, and right