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English law, and which were in familiar use when the Constitution was adopted. These summary measures generally, though not universally, form a part of that mass of regulations which many juridical writers term Police, and which relate to the preservation of public quiet, good order, health, and the like. The regular judicial proceedings, which thus constitute due process of law, differed in different courts, but they were all well known and acknowledged. They all required a judicial trial to determine the rights of parties, a public charge, an opportunity to answer, and a verdict of jury or decision of judge. It must not be understood that trial by jury is an essential element in due process of law. Courts of equity and admiralty dispensed with this method of determining the facts in litigations; while in common law cases, and in criminal trials, it was in general use.
The summary measures which may form a part of due process of law are those which have been admitted from the very necessities of the case, to protect society by abating nuisances, preserving health, warding off imminent danger, and the like, when the slower and more formal proceedings of the courts would be ineffectual. Such measures of administration have been common in England since the epoch of Magna Charta, and in this country from the colonial times. Still, no statute of Congress or of a state legislature authorizing such summary methods would be in accordance with due process of law, unless these methods were substantially identical with those in existence when the Constitution was framed, and which might, therefore, be considered as within the meaning and intent of the people who adopted the organic law.
$ 247. The cases which have given a definition or illustrations of due process of law are exceedingly nuwerous; and, as they substantially agree in their conclusions, I shall only refer to a few, in which the judges have expressed themselves with great clearness, precision, and accuracy. Mr. Webster thus defined the phrase : “ 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, and property, under the protection of general rules which govern society. Every thing which may pass under the form of an enactment is not the law of the land.”
Mr. Justice Bronson, certainly one of the ablest jurists that ever sat on the Supreme Bench of New York, thus defined the phrase in Porter v. Taylor :1 “The words by the law of the land' 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 meaning of the section seems to be, that no member of the state shall be deprived of his rights and privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. The words, due process of law, cannot mean less than a prosecution or suit according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property."
§ 248. This language must be taken with the important limitation, that the forms and solemnities required must be such as were essentially in existence at the time of forming the Constitution, as a part of the ordinary means of administering justice. Different courts employed different methods of procedure, and were appropriate for the determination of different classes of rights. But the essential elements in all judicial proceedings were the same. The legislature may change the outward form, the mere practice, but cannot alter the substance without interfering with the due process of law.
But the definitions and descriptions quoted would give a one-sided view of the phrase under consideration, unless it be remembered that they refer to one branch only of due process of law,— that which consists in orderly judicial proceedings, and do not apply to the more summary and quasi-judicial modes which are also supported by the constitutional requirement. The legality of these latter is sustained by the highest authority. § 249. The following language was used in Wynehammer v. The People, a case decided with great consideration by the court of last resort in New York : " I doubt whether this clause necessarily imports a jury trial as a part of all due process of law. If it does, then it is difficult to say on what ground equity proceedings, in which trial by jury is quite unusual, and by which men are often deprived of property, can be sustained.”
14 Hill's R. 140.
In Murray's Lessee v. The Hoboken Land Co.,? the Supreme Court of the United States examined this whole subject with great care, and gave an authoritative interpretation to the clause. The case was somewhat peculiar. The controversy related to the title to a certain tract of land. The land had been formerly owned by a person who was a public officer of the United States. In accordance with a general statute of Congress authorizing the proceeding, this land had been seized and sold by a process called a distress warrant, issued by the Secretary of the Treasury against this public officer, on account of an alleged balance due from him to the United States, although this balance had not been ascertained by any trial, nor had the warrant been issued in any judicial investigation. One of the parties to the suit claimed the land by virtue of this sale. The original owner subsequently transferred the land, and the other party succeeded to the rights thus created. The question to be decided was, whether the statute of Congress and the summary proceeding of seizure and sale under it were in accordance with the clause of the Constitution requiring due process of law. After stating that the phrase was equivalent to the other words, “ the law of the land," and that its meaning was to be ascertained from the practice of the English legislature and courts subsequent to the time of Magna Charta, and after referring to many statutes of England and of the American states similar to the one under review, Mr. Justice Curtis concludes as follows: “ Though due process of law generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled judicial proceedings, yet this is not universally true. There may be, and we have 1 3 Kernan's R. 425.
2 18 Howard's R. 272.
seen that there are, cases under the law of England after Magna Charta, 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 officers without any such trial.” The statute of Congress was held to be valid. This case fully and necessarily sustains the position, that methods which had been known to the English and American law, and were familiar to the people at the time when the Constitution was adopted, although not judicial in their character, do constitute a portion of the due process of law by which a person may be deprived of life, liberty, or property.
$ 250. The limitation under consideration has been applied in numberless instances. Of course it forbids any act of legislature or of executive which takes one person's property and gives it to another; or which would imprison or otherwise punish a person without any of the forms of judicial procedure. The difficulty of its application arises in two classes of cases: (1) in those where a semblance of regular judicial action has been preserved, while its substance has perhaps been abandoned; and (2) in those instances where property is taken or destroyed, or persons restrained in a summary manner, and the contention is whether these acts can be fairly included among those measures of police which have been allowed by the English and American law from time immemorial.
$ 251. 7. Private property shall not be taken for public use without just compensation. A similar provision is found in the state constitutions.
The nation, or the state, may take private property in virtue of two capacities inhering in the body politic, — the right of taxation, and the right of eminent domain. The subject of the taxing power will be considered at large in the succeeding chapter. I will now only remark that it is not at all curtailed or restrained by the clause in the Bill of Rights under examination. In levying all taxes the government is assumed to make compensation to the payer, in the security which is afforded by a well-ordered administration. Every individual is charged with a duty to contribute towards the support of
the government his share of the public expenses, and, as will be shown, the government rests under no restriction as to the amount which it may claim.
$ 252. But the right of eminent domain rests upon different principles. The government, in the exercise of this attribute, takes, not the proportionate share which every individual is bound to contribute, but something over and above his share, and is therefore bound to return to him not only the general compensation which it gives to all persons who pay taxes, but particular compensation for the property seized. These principles are very clearly stated and illustrated by Mr. Justice Ruggles in the case of Griffin v. The Mayor of Brooklyn, in which case it was held that local assessments made upon property-holders by the municipal authorities of cities and villages to defray the expenses of opening and improving streets, are not made by virtue of an exercise of the right of eminent domain, but by virtue of the taxing power, and are not, therefore, in derogation of the clause which forbids the taking of private property for public use without just compensation.
$ 253. The power to take private property for public use is often, and indeed quite generally, delegated to corporations which form no part of the government, but which are constituted for the purpose of constructing some works of public utility, as canals, railways, turnpikes, bridges, and the like. It may seem somewhat startling that private persons, associated only for private ends, for their own private gains, should be permitted to wield a power which by its very nature belongs to the government, simply because the works which they construct may incidentally be a benefit to the community at large. The rule permitting such a transfer of functions from the state or nation to private individuals was not adopted without a struggle ; but it is now too well settled to admit of any question, although the power is plainly liable to abuse.
§ 254. It may be asked whether the United States may not, in any conceivable case, take the private property of its citizens without making compensation. May not military
14 Comstock's R. 419.