change in legal effect, and the precise form which the guaranty assumes is therefore unimportant to our discussion. Indeed, the language employed is always nearly identical, except that the phrase "due process [or course] of law" is sometimes employed, and sometimes "the law of the land," and sometimes both; but the meaning is the same in every case.1

What then is meant by "due process of law," and "the law of the land," in the constitutional provisions which we have referred to, as they are applied to the protection of rights in property, and in what cases can legislative action be annulled as not being "the law of the land," or judicial or ministerial action set aside as not being "due process of law" in the constitutional sense?

The definitions of these terms to be found in the reported cases are so various that some difficulty arises in fixing upon one which shall be accurate, complete in itself, and at the same time applicable to all cases. The diversity of definition is not surprising, when we consider the diversity of cases in which it has been attempted, and reflect that a definition which is sufficient for one case, and applicable to its facts, may be altogether insufficient or entirely inapplicable in another.

No definition, perhaps, is more often quoted than that by Mr. Webster in the Dartmouth College case: 2 "By the law of the land is most clearly intended the general 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

9, § 2. Tennessee: Same as Florida. Art. 1, § 8. Texas: "No citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land." Art. 1, § 16. - West Virginia: "No person, in time of peace, shall be deprived of life, liberty, or property, without due process of law." Art. 2, § 6. In the remaining constitutions, a phrase of similar import is not found; but it is believed equivalent protection is afforded under provisions to be found in all.

1 2 Inst. 50; Bouv. Law Dic., “Due process of law," "Law of the land State v. Simons, 2 Spears, 767; Vanzant v. Waddell, 2 Yerg. 260; Wally's Heirs v. Kennedy, Ibid. 554; Matter of John and Cherry Streets, 19 Wend. 659; Greene v. Briggs, 1 Curt. 311; Murray's Lessee v. Hoboken Land Co., 18 How. 276, per Curtis, J.; Parsons v. Russell, 11 Mich. 129, per Manning, J.; Ervine's Appeal, 16 Penn. St. 256.

2 4 Wheat. 519.

general rules which govern society. Everything which may pass under the form of an enactment is not the law of the land."

The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they "proceed upon inquiry," and "render judgment only after trial." It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. The words "by the law of the land," as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two houses: "You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong, unless you choose to do it." But there are many cases where the title to property may pass from one person to another, without the intervention of judicial proceedings, properly so called, and we have already seen that special legislative acts designed to accomplish the same end have also been held valid in

1 Taylor v. Porter, 4 Hill, 140, per Bronson, J. See also Jones v. Perry, 10 Yerg. 59; Ervine's Appeal, 16 Penn. St. 256; Arrowsmith v. Burlingim, 4 McLean, 498; Lane v. Dorman, 3 Scam. 238; Reed v. Wright, 2 Greene (Iowa), 15; Woodcock v. Bennett, 1 Cow. 740; Kinney v. Beverley, 2 H. & M. 536. "Those terms, law of the land,' do not mean merely an act of the General Assembly. If they did, every restriction upon the legislative authority would be at once abrogated. For what more can the citizen suffer than to be taken, imprisoned, disseised of his freehold, liberties, and privileges; be outlawed, exiled, and destroyed, and be deprived of his property, his liberty, and his life,' without crime? Yet all this he may suffer if an act of the Assembly simply denouncing those penalties upon particular persons, or a particular class of persons, be in itself a law of the land within the sense of the Constitution: for what is in that sense the law of the land must be duly observed by all, and upheld and enforced by the courts. In reference to the infliction of punishment, and divesting the rights of property, it has been repeatedly held in this State, and it is believed in every other of the Union, that there are limitations upon the legislative power, notwithstanding these words; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually laws of the land' for those purposes." Hoke v. Henderson, 4 Dev. 15.

some cases. The necessity for "general rules," therefore, does not preclude the legislature from establishing special rules for particular cases, provided the particular cases range themselves under some general rule of legislative power; nor does the requirement of judicial action demand, in every case, a hearing in court.1

On the other hand, we think we shall find that general rules may sometimes be as obnoxious as special, when in their results they deprive parties of vested rights. While every man has a right to require that his own controversies shall be judged by the same rules which settle those 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 application. It is not the partial character of the rule, so much as its arbitrary and unusual nature, which condemns it as unknown to the law of the land. Mr. Justice Edwards says: 2 "Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights." And we know of no single sentence that embodies more tersely and accurately the legal view of the principle we are considering, than the following from an opinion by Mr. Justice Johnson of the Supreme Court of the United States: "As to the words from Magna Charta incorporated in the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.'

In Janes v. Rey

1 See Wynehamer v. People, 13 N. Y. 432, per Selden, J. nolds, 2 Texas, 251, Chief Justice Hemphill says: "The terms' law of the land' are now, in their most usual acceptation, regarded as general public laws, binding upon all the members of the community, under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals." And see Vanzant v. Waddell, 2 Yerg. 269, per Peck, J.; Hard v. Nearing, 44 Barb. 472.

2 Westervelt v. Gregg, 12 N. Y. 209.

* Bank of Columbia v. Oakley, 4 Wheat. 235. "What is meant by the law of the land? In this State, taking as our guide Zylstra's case, 1 Bay, 384; White v. Kendrick, 1 Brev. 471; State v. Coleman & Maxy, 1 McMull. 502, there can

The principles, then, upon which the process is based are to determine whether it is "due process" or not, and not any considerations of mere form. Administrative and remedial process may change from time to time, but only with due regard to the old landmarks established for the protection of the citizen. When the government, through its established agencies, interferes with the title to one's property, or with his independent enjoyment of it, and its act is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional defence which have become established in our system of law, and not by any rules that pertain to forms of procedure merely. In judicial proceedings the law of the land requires a hearing before condemnation, and judgment before dispossession;1 but when property is appropriated by the government to public uses, or the legislature attempts to control it through remedial statutes, different considerations prevail from those which relate to controversies between man and man, different proceedings are required, and we have only to see whether the interference can be justified by the established rules applicable to the case. Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.2

Private rights to property may be interfered with by either the legislative, the executive, or the judicial department of the government. The executive department in every instance must show authority of law for its action; and occasion does not often arise

be no hesitation in saying that these words mean the common law and the statute law existing in this State at the adoption of our constitution. Altogether they constitute the body of law prescribing the course of justice to which a free man is to be considered amenable in all time to come." Per O'Neill, J., State v. Simons, 2 Speers, 767.

1 Vanzant v. Waddell, 2 Yerg. 260.

See Wynehamer v. People, 13 N. Y. 432, per Selden, J. In State v. Allen, 2 McCord, 56, the court, in speaking of process for the collection of taxes, say: "We think that any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be considered an exception to the right of trial by jury, and is embraced in the alternative, 'law of the land."" And see Hard v. Nearing, 44 Barb. 472; Sears v. Cottrell, 5 Mich. 251.

for an examination of the limits which circumscribe its powers. The legislative department may in some cases constitutionally authorize interference, and in others may interpose by direct action. Elsewhere we shall consider the police power of the State, and endeavor to point out how completely all the property of the State, and every person, are subject to control under it, within certain limits, and for the purposes for which that power exists. The right of eminent domain and the right of taxation will also be discussed separately, and it will appear that under each the law of the land. sanctions divesting individuals of their property against their will. In every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they often surround it with safeguards to prevent abuse. The restraints are, that when specific property is taken, a pecuniary compensation agreed upon or determined by judicial inquiry must be paid; and in other cases it can only be taken for the support of the government, and each citizen can only be required to contribute his just proportion to that end. But there is no rule or principle known' to our system under which private property can be taken from one man and transferred to another for the private use and benefit of such other person, whether by general laws or by special enactment. The purpose must be public, and must have reference to the needs of the government. No reason of general public policy will be sufficient to protect such transfers where they operate upon existing vested rights.1

Nevertheless, in many cases and ways, remedial legislation may affect the control and disposition of property, and, in some cases may change rights, give remedies where none existed before, and even divest titles in case the legal and equitable rights do not concur in the same person.

1

The chief restriction is that vested rights must not be dis

1 Taylor v. Porter, 4 Hill, 140. In Matter of Albany St. 11 Wend. 149, it is intimated that the clause in the constitution withholding private property from public use except upon compensation made, of itself implies that it is not to be taken for individual use. And see Matter of John and Cherry Streets, 19 Wend. 676. A different opinion seems to have been held by the Supreme Court of Pennsylvania, when they decided, in Harvey v. Thomas, 10 Watts, 63, that the legislature might authorize the laying out of private ways over the lands of unwilling owners, to connect the coal-beds with the works of public improvement; the constitution not in terms prohibiting it.