The common law has always guarded with great jealousy the personal liberty of the citizen. The Great Charter gave a guarantee that this right should not be invaded, except in accordance with the law of the land. The written constitutions of the various States likewise provide generally, that a citizen shall be free to pursue his own pleasure, except so far as his liberty may be restrained by the "law of the land," or "by due process of law." And the Constitution of the United States, by the fourteenth Amendment, has extended its control over the States, by declaring that no State shall "deprive any person of life, liberty, or property without due process of law." The phrases "due process of law" and "the law of the land" have been construed generally to mean the same thing. Perhaps as accurate and comprehensive a definition of this expression as can be given is the one used by Mr. Webster in the Dartmouth College Case. He says: "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, lib

erty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." In determining, therefore, in a particular case, whether the citizen has been unjustly deprived of his liberty, the inquiry must ascertain whether the enactment under which he is tried is constitutional, and whether the mode of trial has been in accordance with the rules of the common law and our constitutional guarantees. And in the inquiry as to what is due process of law, the answer must depend upon principles and not upon mere matters of form.

Due process, so far as the method of trial where one is accused of a crime or misdemeanor is concerned, requires that the accused shall have the legal preliminary hearing after proper arrest; that he must be confronted with the witnesses against him; shall have assistance of counsel; shall have the question of his guilt determined by a jury; shall be entitled to a speedy and public trial; shall be convicted upon legal evidence; shall not be compelled to testify against himself. Where the law

has been changed so as to allow a prisoner to testify in his own behalf, a question has arisen as to what inference may be drawn from his refusal to so testify. In some States the statute provides that no legal inference shall be drawn against the criminal from this refusal. In some cases the courts have directed that no such inference can be drawn, while others have held that such act of the prisoner might be taken into consideration by the jury in coming to their conclusion as to his guilt or innocence. These principles have been repeated frequently in various cases: Wynekamer v. People, 12 N. Y. 378; State v. Allen, 2 McCord (S. C.) 55; Sears v. Cottrell, 5 Mich. 251; Taylor v. Porter, 4 Hill, 140; Hoke v. Henderson, 4 Dev. 1; Janes v. Reynolds, 2 Texas, 251; Kinnard v. Louisiana, 92 U. S. 480; Murray v. Hoboken Co., 18 How. 272; Dartmouth College v. Woodward, 4 Wheat. 518 (Mr. Webster's argument); Brown v. Hummel, 6 Penna. St. 86; Norman v. Heist, 5 W. & S. (Pa.) 171; State v. Cleares, 59 Me. 298; People v. Tyler, 36 Cal. 522; Cooley's Const. Lim. 356.

The Constitution of the United States, in its fourteenth Amendment, does not create nor confer any new rights, but merely provides that no State shall illegally interfere with the rights already possessed, and that where a State, from local prejudice or other cause, has deprived any person of his rights under the law, redress may be obtained by resort to the Courts of the United States. In explaining the meaning of the phrase "due process of law," as contained in the fifth Amendment, the Supreme Court of the United States, in Murray v. Hoboken Co., 18 How. 272, decide that this expression "does not necessarily imply a regular proceeding in a Court of justice or after the manner

of such Court." The Court has, however, been frequently called upon to interpret this expression since the adoption of the fourteenth Amendment. They have, however, never given an exhaustive definition of it, but have simply said what it did or did not mean in the case before them. Justice MILLER, in his opinion in Davidson v. New Orleans, 96 U. S. 97, in justification of this course, says: "It must be confessed, however, that the constitutional meaning or value of the phrase, 'due process of law,' remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several States and of the United States. *** It would seem from the character of many of the cases before us that the clause under consideration is looked upon as a means of bringing to the test, of the decisions of this Court, the abstract opinions of every unsuccessful litigant in a State Court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other Court to any part of the fundamental law. But apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclu

sion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded."

Somewhat different considerations will influence the Court in the interpretation of the clause, " without due process," when they are deciding questions of United States law, as enforced in the United States Courts, or when, on the other hand, they are deciding whether a State has offended against the fourteenth Amendment. An enactment, which might violate some of the general principles of constitutional law which the Court could enforce, in the former case, might not, if passed by a State Legislature, deprive a person of due process, within the meaning of the fourteenth Amendment. A State has a right, within certain limits, of altering the mode of judicial proceeding without violating this provision. The principle is expressed by the Court, in Davidson v. New Orleans (supra), in this language: "It is not possible to hold that a party has, without due process of law, been deprived of his property when, as regards the issue affecting it, he has, by the laws of the State, a fair trial in a Court of justice according to the modes of proceeding applicable to such a case." In this case the State had made an assessment upon real estate in New Orleans to pay the expense of draining swamps in that city. It was held that the requirement of due process of law had been complied with when the State statute had provided that such assessment, before it became effectual, must be submitted to a Court of justice, with notice to the owners of the property, all of whom had the right to appear and contest the assessment.

An erroneous decision by a State Court is not such deprivation of property without due process as will sup

port an appeal to the United States Court: Arrowsmith v. Harmoning, Adm'r, etc., 118 U. S. 194. This case holds that a State has performed its constitutional duty in this regard when it enacts laws for the government of its Courts, while exercising their respective jurisdictions, which, if followed, will furnish parties with the constitutional guarantees of life, liberty, and property.

A State may provide a different mode of trial than by jury, in a civil case: Walker v. Sauvinet, 92 U. S. 90.

Most of the State enactments, which bear upon the personal liberty of the citizen, and which have come before the Supreme Court of the United States for a decision of their constitutionality, have grown out of the exercise of the police power of the State. Blackstone, Lib. 4, page 162, defines the police power to include "the due regulation and domestic order of the kingdom, whereby the individuals of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." Cooley says, "The police of a State, in a comprehensive sense, embraces its whole system of internal regulations, by which the State seeks not only to preserve the public order and to prevent offences against the State, but also to establish, for the intercourse of a citizen with citizens, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own so far as it is reasonably consistent with a like enjoyment of rights by others." Numerous cases have presented to the United States Supreme Court for decision the question how far the States

have violated the fourteenth Amendment by the exercise of their police power. This Court has frequently announced that the Amendment did not deprive a State of the exercise of this power. The State has the same right to the lawful exercise of this power that it ever had. The United States Court will, however, see that the State enactment is a fair and legal exercise of this power and not a mere pretence for infringing the liberty of the citizen.

In Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, it was held that an appropriation, by Congress, of money to be expended in the improvement of a navigable river is no assumption of police power over it; nor does the conferring of the privileges of a port of entry come in conflict with the police powers of a State which have been exercised in bridging its own navigable rivers below such port.

In the Slaughter-house Cases, 16 Wall. 36, the Court decided that the State had the right to grant to a corporation, formed under the State's authority, the exclusive privilege of maintaining a slaughter-house and slaughtering cattle therein. That in doing this, the Commonwealth was properly exercising its police power, and such exercise was no infringement of the provisions of the fourteenth Amendment. And in Munn v. Illinois, 94 U. S. 113, the right of the State to prescribe regulations for the carrying on of the business of warehouses, exclusively within her limits, was affirmed. And it was held that among the powers inherent in every sovereignty was that of regulating the conduct of citizens towards each other, and the manner in which each shall use his own property; that an owner of property who devotes it to a public use grants in effect to the public an interest in such use, and must, there

fore, to that extent submit to the public's control.

The right of a State to legislate in behalf of the public health, economy and morals has been affirmed in the most emphatic manner. In one of the most recent cases, Powell v. Pennsylvania, 127 U. S. 678, it is declared "that the prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk, of an article designed to take the place of butter or cheese produced from pure unadulterated milk; or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with intent to sell the same, as an article of food, is a lawful exercise by the State of the power to protect by police regulations the public health." And further, "whether the manufacture of such article is, or may be conducted in such a way, or with such skill or secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health, as to require, for the protection of the people, the entire suppression of the business, rather than its regulation, in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy, which belong to the legislative department to determine."

In Mugler v. Kansas, 123 U. S. 623, an exercise of the police power of the State, even more extreme than that of the preceding case, was justified. The State had prohibited the manufacture and sale of liquor for general use, as a beverage; and had declared that any place kept and maintained for the illegal manufacture and sale of liquor should be deemed a common

nuisance and be abated. The Supreme Court of the United States upheld this law. They held that such prohibition was fairly adapted to protect the community against the evils of intemperance: that forbidding the use of property for purposes of manufacture, etc., of liquor was not a taking for the public benefit, and the destruction of such property, in the abatement of a nuisance, does not deprive the owner of it without due process of law. The principles upon which the Supreme Court will act in determining whether a State has improperly exercised her police power are well expressed by Justice HARLAN, who delivered the opinion. He says: "It does not follow that every statute enacted ostensibly for the promotion of these ends, is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, the Courts must obey the Constitution, rather than the law-making department of government, and must, upon their own responsibility, determine whether in any particular case, these limits have been passed. The Courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty-indeed, are under a solemn duty-to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to these objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the Courts to so adjudge and thereby give effect to the

Constitution. They (the Courts) have nothing to do with the mere policy of legislation. And so, if, in the judgment of the Legislature, the manufacture of intoxicating liquors, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the Courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question." See, also, Barbier v. Connolly, 113 U. S. 27.

A State has the right to regulate its mode of criminal procedure within proper limits, and by doing so, will not infringe the fourteenth Amendment. In Hurtado v. California, 110 U. S. 516, it was held that "due process of law" in this amendment did not require an indictment by a grand jury in a prosecution by a State for murder. The State statute provided for a hearing by a magistrate, with the right of the accused to be present with counsel and to cross-examine ;. and upon such hearing, he could be held for trial by a jury. The Supreme Court decided that an indictment or presentment by a grand jury was not, under the common law of England, essential to "due process of law." In Spies v. Illinois, 123 U. S. 131; s. c. 27 AMERICAN LAW REGISTER, 23, the State law, upon the subject of the selection of jurors, contained the following provision: "In the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression, based upon rumor or newspaper statements (about the truth of which he has expressed no opinion), shall not disqualify him to serve as a juror in such case, if he shall upon oath state that he believes he can fairly and impartially render a verdict therein in accordance with the law