him an opportunity to be heard in his own defence, would be against this provision." 1

That this was the meaning of the expression, "LAW OF THE LAND," as used in the great charter of English rights, seems to have been the opinion of all the common-law jurists in that country; but that it means the same thing in our own Constitution, has not been so universally agreed. Some judges have been greatly perplexed in attempting to ascertain its true meaning, and have given judgment in entire disregard of it. One judge, at least, admitting that it did mean and require a "judgment," obviated its force by saying it applied only to criminal cases, and that, unless the clause was so restricted, it would be in opposition to legislative usage.2 The Supreme Court of New Hampshire, in the Dartmouth College case, dccided "That all statutes, not repugnant to any other clauses of the Constitution, seem always to have been considered as 'the law of the land,' within the meaning of this clause." 3 But their judgment was reversed by the Supreme Court of the United States. In another case, where the validity of a statute authorizing an arrest in a criminal case, without oath or warrant, came in question, the same court held the following language: "No subject shall be arrested but by the law of the land,' - that is, by due process of law warranted by the Constitution, by the common law adopted by the Constitution, or by statutes passed in pursuance of the Constitution." 5

*On the other hand, Judge Bronson says that these *19 words "Do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction 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." "6

1 Sullivan's Lectures, ch. 39 and 40. 3 1 N. H. 130.

5 Mayo v. Wilson, 1 N. H. 53.

2 Rhinehart v. Schuyler, 2 Gilm. 520. 4 4 Wheat. 518.

6 Taylor v. Porter, 4 Hill, 146.

6

C. J. Hemphill says, "The terms, law of the land,' have often been construed, and somewhat variously defined. When first used in the Magna Charta of the kings of England, they probably meant the established law of the kingdom, in opposition to the civil or Roman law, which was about being introduced into the land, to the exclusion of the former laws of the country. They 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." The conjecture of Judge Hemphill, that it was the common, as contradistinguished from the civil law, intended by this clause, is not a very reasonable one, when it is remembered that Sullivan, in his lectures, and all of the English jurists, agree that judgments in the ecclesiastical and maritime courts, which proceed upon the principles, and in conformity to the practice, of the civil law, are regarded as valid under this clause; and when it is further remembered that such a construction of the term law, would confine the people of England to the old black-letter law, without the legislative power of modifying and improving it, to meet the progressive demands of modern civilization.

*

Judge Catron remarks, that "the clause, 'law of the land,' means a general and public law, equally binding upon *20 every member of the community. The right to life, liberty, and property, of every individual, must stand or fall by the same rule or law that governs every other member of the body politic, or land,' under similar circumstances; and every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community, who made the law, by another. The idea of the people, through their representatives, making laws whereby are swept away the life, liberty, and property of one, or of a few citizens, by which neither the representative nor their 1 James v. Reynolds, 2 Texas, 251, 252.

other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has a name.”1 This doctrine is advanced by Judge Peck, in the same case, in these words: A law which is partial in its operation, intended to affect particular individuals alone, or to deprive them of the benefit of the general law, is unwarranted by the Constitution, and void."2 The principle was again affirmed in Jones v. Perry. In this case the court held that the sale of the estate of a ward, by his guardian, under a special act of the legislature, no judicial proceedings intervening, was not a sale according to the "law of the land." The same principle was applied by the Supreme Court of Illinois, upon this state of facts: The legislature passed a special act authorizing A. to sell and convey the lands of an intestate, or a sufficiency thereof, to raise the sum of $1,008.87, together with interest and costs; and directed that the proceeds should be applied to the extinguishment of the claims of A. and B. against the estate of the decedent, for moneys advanced, and liabilities incurred by them on account of the estate. The court held the law unconstitutional, because it was an exercise of judicial power by the legislature, and also, to use the *21 language of the court, it "disseises the freehold of the

*

heirs of the ancestor, without a hearing upon an ex parte application and ex parte evidence. It will not, we suppose, be seriously contended that such an act, thus passed, under such a state of facts, is the lex terræ meant, or the judgment of one's peers, intended by the Constitution." 4

The same construction is given to this clause by the Supreme Court of Tennessee, in two other cases.5 In the latter case it was held, that an act of the legislature, declaring it a felony for a servant to embezzle the funds of a particular bank, while the same crime, under the general law, was a simple misdemeanor, was contrary to this clause, and void. The same principle was applied by the Supreme Court of Massachusetts,

5 State Bank v. Cooper, 2 Yerg. 605, 606; Budd v. State, 3 Humph. 483.

to a special act of the legislature, suspending the operation of a general limitation law, in favor of a particular class of creditors. In South Carolina they hold that the Constitution guarantees to the citizen "a trial according to the course of the common law, which," says Judge O'Neall, "I understand to be the meaning of the words 'the law of the land.'" 2 Again, in Byrne v. Stewart, Chancellor Watties remarks: "It has been determined by the Constitutional Court, in several cases, that the lex terræ contemplated by our Constitution, not only means the common law, which is unquestionably the sense in which it is understood in Magna Charta, but also comprehends all acts in force at the time of making the Constitution." 3

Such a construction of the clause is evidently too narrow and confined, as it would tie up the hands of the legislature, and prevent them from enacting laws which the imperative necessities of society may from time to time require.

*22

*The masterly and comprehensive definition of this clause by Daniel Webster, is, perhaps, the true one, and sustained with more unanimity by the authorities than any other: "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 his life, liberty, property, and immunities, under the protection of general rules which govern society. Every thing which may pass under the form of an enactment is not, therefore, to be considered as the law of the land. If this were the case, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance, completely inoperative and void. The administration of justice would be an empty form and idle 1 Holden v. James, 11 Mass. 396.

2 Burger v. Carter, 1 McMull. 413; State v. Simons, 2 Speers, 767; Zylstra's Case, 1 Bay, 384; White v. Kendrick, 1 Brev. 471; State v. Coleman, 1 McMull. 502.

8 3 Dessaussure, 478.

ceremony, and judges would sit to execute legislative judg ments and decrees, not to declare the law and administer the justice of the country." 1

In Taylor v. Porter, Judge Bronson says of this provision: "The meaning of this section, then, seems to be, that no member of the State shall be disfranchised, or deprived of any of his rights or 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 can be taken from him. It cannot be done by mere legislation." Again he remarks: "It will be seen that the same measure of protection against legislative encroachment, is extended to life, liberty, and property; and if the latter can be taken without a forensic trial and judgment, there is no security for the others." He concludes that "the law of the land" * 23 and "due process of law," are synonymous terms. Α similar decision was made in White v. White. The doctrine of Webster and Bronson is adopted, in its fullest extent, by the Supreme Court of Iowa.1

Judge Story says that "this clause, in effect, affirms the right of trial according to the process and proceedings of the common law." 5 Chancellor Kent says, "The words, 'by the law of the land,' as used in Magna Charta, &c., are understood to mean due process of law."6 Justice Johnson, in delivering the opinion of the court in the Bank of Columbia v. Okely, and speaking of these words, says, that "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."

The clause in question accomplishes this intention com

1 Argument in the Dartmouth College Case, 5 Webster's Works, 487, 488. 2 4 Hill, 146.

4 Reed v. Wright, 2 Greene, 22, 24. 62 Kent's Com. 13.

3 5 Barb. 481-483.

5 Story on the Constitution, sec. 1783. 7 4 Wheat. 244.