and 3 Dallas, 388; and Sweet v. Hulburt, in the supreme toi this state, before referred to, and commented upon, not appealed to the court of dernier resort. Did our limits permit, we should gladly transfer the able exposition of the law of constitutional interpretation, given in the opinions of the courts of these western states, to which we have referred in this work. It may be sufficient however, briefly to refer to the points of agreement and of departure, in the views of con struction of the constitution of those states and our own.

1. They agree with us, that taxation for the purpose of taking the private property of one person, to bestow it upon another, is unconstitutional and void.

2. They agree with us, that the legislature do possess the power to grant the right to take private property for public purposes.

3. While they agree, that the legislature may grant the right to take property by the exercise of eminent domain, to a railroad corporation, and though they agree to the grant of power by the legislature to tax for public purposes, yet they hold, that a railroad corporation, whose road is constructed by itself, is exclusively private property, owned, controlled, and operated by a private corporation, for the benefits of its own members, and that it is for the judiciary, and not for the legislature to determine whether or not the purpose is a public one; that an act of the legislature declaring the purpose of such a railroad to be public, and authorizing taxation in its aid, is unconstitutional and void. In this, it is seen, the cases are in direct conflict with the New York authorities. People v. Lawrence, 36 Barb. 177; supra and other cases cited, where it is held that the power, wisdom, or justice of taxation upon persons benefited by such improvements, is not a subject of judicial inquiry, but belongs to the legislative department. This is the first great point of divergence.

It is no part of our purpose to compare the soundness of the opinions of the judiciary of one sovereign state with those of another. The difference in their local constitutions may be sufficient to account for the difference in results. The right of eminent domain and the taxing power are entirely different, the one from the other, in the method of exercising their respective powers, though each is called into use for public purposes. Nor is it any part of our design here to enquire into the reason, or to explain the apparent inconsistency in the proposition, that the legislative department do possess the authority and may declare the purpose of a railroad corporation to be public, so as to enable them to exercise the right of eminent domain in taking private property; but have no power to declare the purpose of the same project public, so as to authorize taxation upon the persons to be benefited by the construction of their road. The curious searcher for information on these points, will seek the explanation in the adjudications, as manifested in the able enunciation of the reasons contained in the opinions referred to, upon which these different sovereignties seem to have adopted as their respective state policies.

CHAPTER XIII.

OF THE CONSTITUTIONAL PROTECTION, THAT LIFE, LIBERTY, AND PROPERTY BE NOT TAKEN WITHOUT DUE PROCESS OF LAW.

LIFE, liberty, and property of a citizen may be forfeited and lost, but not without due process of law. This protection is contained in both the national and state constitutions. a It originated in Magna Charta, b and constitutes one of its fundamental articles, in which it is declared, that "no free man shall be taken, or imprisoned, or dissiezed of his freehold, or liberties, or free customs, or be out-lawed, or exiled, or otherwise destroyed, nor will we pass upon him nor condemn him, but by lawful judgment of his peers, or by the law of the land." "The judgment of his peers," was by the law of England, the trial of a man by a jury of his equals, and in this country, means a trial by jury, who are called the peers of the party accused. This question was briefly and partially, but indirectly considered in a former chapter.

Our ancestors brought these privileges with them to America as their birthright and inheritance, and as a part of the common law, which then interposed its guardianship, and threw around them on every side, its protection against the approaches of arbitrary power. These privileges, as rights, are now incorporated not only into all our constitutions state and national, but will be found in all the statutes of the states made in subordination to the fundamental law, recognizing and confirming these rights in the citizen; and all statutes are void, and without effect, which are found to be obnoxious to these solemnly secured privileges.

"That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal

a Const. United States amendment 1, Art. 4; Const. New York, Art. 1, § 6. 9 Hen. III, ch. 29.

liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legisiative authority, or, ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressions of such an intention." a

The term, right, in civil society, Chanceller Kent defines to be, b "that which any man is entitled to have, or to do, or to require from others within the limits prescribed by law." The absolute rights of individuals may be resolved into the right of personal security-the right of personal liberty-and the right to acquire and enjoy property. These rights have been justly considered and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, conducive to the general welfare."

Before the adoption of our American constitutions, the words "by the law of the land," had a well defined meaning at common law, and had been rendered, "due process of law." c Our constitutions adopt the very words of this common law definition, and mean undoubtedly by that, that to work a change of property from one private person to another, some proceeding must be had in a court of justice, or before magistrates; at least that the legislature should have no power to deprive one of his property, and transfer it to another, by enacting a bargain between them, unless it be in the hands of the latter, a trust for public use." d

In a subsequent statute, passed in the reign of Edward III, Magna Charta in this respect, was itself changed. The clause, "but by the law of the land, or the judgment of his peers," was altered to read thus: without being brought to answer by due process of law."

a Wilkinson v. Leland, 3 Peters 657, Per Story J. c 2 Coke's, Inst. 50.

b 2 Com. 1.

d Matter of John and Cherry street, 19 Wend. 676.

The words "due process of law," said Judge Bronson, a cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. 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 forensic trial and judgment, there is no security for the others. If the legislature can take the property of A. and transfer it to B., they can take A. himself, and either shut him up in prison, or put him to death. But none of these things can be done by mere legislation. There must be "due process of law."

What then is due process of law? The definition given of this clause that has been more frequently quoted, or, perhaps adopted by the courts than any other, is that given by Mr. Webster, b who said: "By the law of the land, is most clearly intended the general law, which hears before it condemns, and 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 legislative enactment, is not therefore the law of the land." "A construction that would do this, would render constitutional provisions of the highest importance, completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for man to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country." c

To give this clause, therefore, any value, it must be understood to mean, that no person shall be deprived, by any form of legislation, or governmental action, of either life, liberty, or property, except as a consequence of some judicial proceeding appropriately and legally conducted. It follows, that a law, which, by its own inherent force, extinguishes rights of property, or compels

a Taylor v. Porter, 4 Hill 147; Embury v. Conner, 3 N. Y. 517. Dartmouth College case, 4 Wheat, 519, 581.

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

their destruction, without any legal process whatever, comes directly in conflict with the constitution. a

One of the means attempted by which a citizen is sometimes to be deprived of his property, or of his personal liberty, are ex post facto laws, or laws retrospective in their nature. The New York Code of 1849, section 460, in form, authorized an appeal "in any suit in equity, pending in the Supreme Court on the first day of July 1847." Under this act, a party brought an appeal to the Court of Appeals from a final decree in equity, where the time previously allowed by law for appealing had expired, and the decree had been executed. It was held by Jewitt, J.,b that this statute which contingently deprived a person of property, the right to which was perfect under prior laws, was within the prohibition of the constitution. The direct effect of this provision of the Code, if valid, was the granting of a new trial or hearing upon all the questions both of law and evidence arising in the case, after it had been lost by neglect of the complainant under the provision of law as it existed at the time the decree was made, and after it had become final upon the rights of the parties involved in the suit, and the defendant had acquired possession of the fruits of the litigation by due execution upon it. It was therefore held that the act was invalid as contrary to the clause in article 1 section 6, of the constitution of this state, which provides, that "no person shall be deprived of life, liberty or property, without due process of law.” It was in effect, annulling a complete and final decree by which property had been acquired and possessed. Contingently, it not only deprived such person of the property thus acquired, but compelled him to pay to his adversary, such sum of money, as the appellate court might determine he ought to pay. The money which had been adjudged to be paid by the decree, and received by the defendant under it, was his property in a legal sense, at the time of the passing the act, and though it did not absolutely deprive the party of the money decreed to him, contingently it had that effect.

So an act of congress passed in 1865, requiring attorneys and counsellors at law, to take an oath: First. That he had never voluntarily borne arms against the United States since he was a

• Wyndham v. The People, 13 N. Y. 434.

b Burch v. Newbury, 10 N. Y., 374