quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court can not so apply them." 7 Pet. 243. See also Smith v. Maryland, 18 How. 76; Pervear v. Mass., 5 Wall. 480; Twitchell v. Penn, 7 Wall. 325; Edwards v. Elliott, 21 Wall. 557; U. S. v. Cruikshank, 92 U. S. 552; Spies v. Illinois, 123 U. S. 166; O'Neil v. Vermont, 144 U. S. 360; Brown v. Walker, 161 U. S. 606; Brown v. New Jersey, 175 U. S. 174; Twining v. New Jersey, 211 U. S. 78.

§ 25. Fox v. Ohio-Involving a state law as to counterfeiting. In the case in question it was held that a state law punishing the offense of passing counterfeit coin was not unconstitutional, because of the difference between the offense of counterfeiting the coin, a crime directly against the Federal Government, and the offense of passing counterfeit money, a private, wrong, by which that Government may be injured only indirectly, if at all. The Court said: "We think it manifest that the language of the Constitution, by its proper signification, is limited to the facts, or to the faculty in Congress of coining and of stamping the standard of value upon what the Government creates or shall adopt, and of punishing the offense of producing a false representation of what may have been so created or adopted. The imposture of passing a false coin creates, produces, or alters nothing; it leaves the legal coin as it was-affects its intrinsic value in nowise whatever. The particular offense described in the statute of Ohio, and charged in the indictment against the plaintiff in error, is deemed by this court to be clearly within the rightful power and jurisdiction of the state. So far, then, neither the statute in question, nor the conviction and sentence founded upon it, can be held as violating either the Constitution or any law of the United States made in pursuance thereof."

5 How. 410. See also U. S. v. Marigold, 9 How. 560; Smith v. Maryland, 18 How. 76; Ex parte Wilson, 114 U. S. 423. Justice McLean dissented, however, upon the ground "that the power to punish for passing counterfeit coin is clearly in the Federal Government. Can this same power be exercised by a state? I think it can not." He therefore concluded that a person might be put twice in jeopardy for the same offense, despite the amendment in question, because "the punishment under the state law would be no bar to a prosecution under the law of Congress."

§ 26. Murray v. Hoboken Land Co.-Due process defined. Not until 1855 did the due process clause of the amendment come before the Supreme Court in the case in question, in which it was held that a distress warrant, issued under the act of May 15, 1820, by the solicitor of the treasury, against a delinquent collector of customs for a balance found to be due his accounts, was "due process of law." In the words of the Court: "It must be admitted that, if the auditing of this account, and the ascertaining of its balance, and the issuing of this process, was an exercise of the judicial power of the United States, the proceeding was void; for the officers who performed these acts could exercise no part of that judicial power. They neither constituted a court of the United States, nor were they, or either of them, so connected with any such court as to perform even any of the ministerial duties which arise out of judicial proceedings. The question whether these acts were an exercise of the judicial power of the United States can best be considered under another inquiry, raised by the further objection of the plaintiff, that the effect of the proceedings authorized by the act in question is to deprive the party against whom the warrant issues of his liberty and property 'without due process of law,' and therefore is in conflict with the fifth article of the amendment of the Constitution. To what principles, then, are we to resort

to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process can be in conflict with any of its provisions. If not found to be so, we must 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 to have been unsuited to their civil and political condition, by having been acted on by them after the settlement of this country. We apprehended 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. It is difficult at this day to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. That they were summary and severe, and had been used for purposes of oppression, is inferable from the fact that one chapter of Magna Carta treats of their restraint. It is certain that this diversity in the law of the land between public defaulters and ordinary debtors was understood in this country and entered into the legislation of the colonies and provinces, and more especially of the states, after the Declaration of Independence and before the formation of the Constitution of the United States. Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the states at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 can not be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the Government from a Collector of Customs, unless there exists in the Constitution some other provision which restrains Congress from authorizing such proceedings. For, though 'due process of law' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according

to some settled course of judicial proceedings (2 Inst. 47, 50; Hoke v. Henderson, 4 Dev. N. C. 15; Taylor v. Porter, 4 Hill 146; Van Zandt v. Waddel, 2 Yerg. 260, 599; State Bank v. Cooper, Ibid. 599; Jones' Heirs v. Perry, 10 Yerg. 59; Green v. Briggs, 1 Curtis), yet, this is not universally true. There may be, and we have seen that there are, cases under the law of England after Magna Carta, and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands and goods of certain public debtors without any such trial."

Such was the process of reasoning by which the court convinced itself that the case of Swartwout, who was found to be indebted to the Government in the sum of $1,374,119.65, by mere administrative officers armed with no kind of judicial power, was an exception to the general rule of due process, including "actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings," because of a "diversity in 'the law of the land' between public defaulters and ordinary debtors." 18 How. 272. In other words, when mere auditing officers ascertain the fact that a collector of the public revenue is a defaulter, and issue final process for the collection of the balance so ascertained against him, he is ipso facto deprived of the due process which the law of the land would otherwise guarantee him in any other case. An exhaustive examination of that entirely unfounded assumption will be made hereafter.

§ 27. Withers v. Buckley-Conflict of state law with state constitution. In this case the court held that it had no jurisdiction either to declare a state law void, as in conflict with the state constitution; nor to review the judgments or decrees of state courts as to the construction of state laws,-the state legislation involved not being repugnant to the provisions of the Fifth Amendment, which is not applicable to or restrictive of state

laws. The Court said that it "never has and does not assume the right to pronounce authoritatively upon the wisdom or justice of the legislation of the states, when operating upon their own citizens and upon subjects of property clearly within their own territory and appropriate cognizance, except so far as the Constitution of the United States expressly or by inevitable implication, may have made it the duty of this court to control the action of the state governments. Nor has it been deemed the province of this court to abrogate or overrule the interpretation put upon their own respective statutes by the courts of the several states, whether such interpretation had reference to the ordinary rights of person or property, or to the nature and extent of the legislative powers vested by the constitutions of the several states, and their coincidence with acts of legislation performed under the delegation of those powers. These are the functions wisely and necessarily left by this court untouched in the state tribunals, the assumption of which by the federal judiciary, as it would embrace every matter upon which the government of the states could operate, would, in effect, amount to the annihilation of those governments." 20 How. 84. It was also held that as the state of Mississippi possessed as a sovereign the inherent right to improve her navigable rivers, her act designed for that purpose was not in conflict with the act of Congress, admitting the state into the Union, which guaranteed the free navigation of the Mississippi river.

§ 28. Ex-parte Milligan and the triumph of legality. What may be called the first epoch in the history of the Fifth Amendment ended in 1866, with a notable triumph for "the law of the land" in Ex-parte Milligan, 4 Wall. 2, a case in which the material facts, as stated by the Court, were as follows: "On the 10th day of May, 1865, Lambdin P. Milligan presented a petition to the Circuit Court of the United States for the District of Indiana, to be discharged from an alleged unlawful imprisonment. The

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