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that the Court could have done would have been to free the individual from the force of the commonwealth, could not have forced the commonwealth in his behalf. It is also true that the Congress might provide other instrumentalities than the courts for the vindication of the individual immunities here established. We have seen that the Congress did do so in regard to the execution of the thirteenth amendment.

The Congress has enacted laws in enforcement of this provision;1 but it is extremely doubtful whether it has created any other means of meeting the hostile acts of the commonwealths than the judicial. In section thirteenth of the first of these acts, viz; that of May 31, 1870, it is provided "that it shall be lawful for the President of the United States to employ such part of the land or naval forces of the United States or of the militia as shall be necessary to aid in the execution of judicial process issued under this act." This is certainly only declaratory of the constitutional power of the President in such a case, and does not create any new power for the President. The same act also re-enacts the Civil Rights Act of April 9th, 1866, (which, as I have pointed out, does contain other means of enforcement than the judicial,) and in the re-enacting clause the act of 1870 provides that its sixteenth and seventeenth sections shall be enforced according to the provisions of the measure of 1866.2 These sections of the act of 1870 are but little more than a repetition of the first and second sections of the act of 1866. The act of 1875 provides no other means than the judicial for its enforcement.

The supreme judicial power has interpreted the meaning of those terms employed in this clause of the constitutional provision upon which all the important issues under the same

1 United States Statutes at Large, vol. 16, 140; United States Statutes at Large, vol. 18, part 3, 336.

2 United States Statutes at Large, vol. 16, 144, sec. 18.

turn. In the case of Ex parte Virginia,1 the Court held that the word "state" (commonwealth) signifies any of the offi. cers or agents by whom the powers of the commonwealth are exerted. The exact language of the Court is "that whoever, by virtue of public position under a State" (commonwealth) "government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name of and for the State" (commonwealth), "and is clothed with the State's" (commonwealth's) "power, his act is that of the State" (commonwealth). "This must be so or the constitutional prohibition has no meaning. Then the State" (commonwealth) "has clothed one of its agents with the power to annul or to evade it." That is to say, a commonwealth cannot avoid the interference of the general government in behalf of an individual, whose immunity under this provision of the constitution shall have been infringed by some agent or officer of the commonwealth, upon the plea that that agent or officer has acted ultra vires. The Court will not go into that question. It is enough that the commonwealth has clothed its agent with official power, and that he, by means of it, has infringed the immunity of the individual established by this constitutional provision. The later case of Arrowsmith v. Harmoning2 seems to modify this doctrine somewhat, in that it declares a commonwealth guiltless of a violation of "due process of law" when one of its courts renders an erroneous decision under a commonwealth statute, which statute, if correctly interpreted, would furnish the parties with the necessary constitutional protection. The rule would thus seem to be that when a commonwealth clothes an officer with discretionary power, and he, in the exercise of such power, violates due process of law, then the commonwealth itself is guilty. Of course it is guilty if

1 100 U. S. Reports, 339.

2 118 U. S. Reports, 194

a legislative enactment violates due process. I shall treat of this point a little more fully further on.

In the case of Yick Wo v. Hopkins, the Court defines the word "person" to be any human being, whether citizen or alien, without regard to race, color or nationality; and in the case of the Pembina Mining Co. v. Pennsylvania,2 it places under the term persons also private corporations legally existing within the commonwealth. It is the widest possible term of private law for designating parties who may be affected by any governmental act or the act of any governmental agent or official.

The words "life," and "liberty," refer to physical freedom from violence and restraint, inflicted or imposed by government or the agents or officials thereof. The first of these words is self-defining, and the second has been defined in the discussion of the terms slavery and involuntary servitude. The meaning of the word "property" will be considered under division II.

The phrase, "due process of law," which we here, for the first time, find directed against the commonwealths occurs, as we know, in another part of the constitution as descriptive of an immunity of the individual against the general government. In that case we know from the constitution itself exactly what it means: viz; the special warrant for arrest; the privilege of habeas corpus and of bail; indictment by grand jury; trial by petty jury in open court; full knowledge of the subject of the accusation; opportunity to confront witnesses supporting the accusation; power to compel the attendance of witnesses rebutting the accusation, etc. The question here is: does the phrase have the same significance when directed against the commonwealths? The first general definition given to it by the Supreme Court when aimed at the commonwealths is to be found in the case of Pennoyer v.

1 118 U. S. Reports, 356.

2 125 U. S. Reports, 181.

Neff. The exact words of the Court are that due process of law, as required by the fourteenth amendment, means, when applied to judicial proceedings, "a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." We should not be able to determine from this definition whether all the specifications of due process contained in the immunity against the general government were also requisite in the proceedings of the commonwealth courts; but the Supreme Court of the United States has at last cleared up this question definitely in the case of Hurtado v. California,2 by deciding that due process of law, as required of the commonwealths by the constitution does not prevent a commonwealth from authorizing its courts to prosecute for crime by information; i.e. to prosecute without the intervention of the grand jury. Due process of law as directed against the commonwealths. is, then, not to be considered as defined at all in the constitution of the United States or in the laws of the United States made in accordance therewith, but as defined in the constitution, laws and customs of the commonwealths, subject, however, to review in each case by the courts of the United States. It will be, therefore, as defensive of individual liberty as the disposition of those courts, acting with full discretion, may choose to make it. This is an immense power, and the hands into which it is entrusted should be selected with the most scrupulous care. No narrow spirit can be endured in such a position. Civil liberty is in its nature, at the narrowest, national, and manifests, with the widening of political organization, the tendency to become human. The local control of this subject must be placed under strongest limitations if we would hold our public law up to the demands of our political science, i.e. of our true political conditions.

195 U. S. Reports, 714.

2 110 U. S. Reports, 516.

Again, the supreme judicial power has decided, in the case of Barbier v. Connolly,1 that the fourteenth amendment was not designed to interfere with the police power of the commonwealths. This opens a very wide field of discussion. What is the police power? Who is authorized to fix its final limitations? Who is to decide how far it shall be permitted to infringe individual rights before the defense of "due process of law" can be successfully invoked against it? I can find no satisfactory definition of this phrase, “police power," in the decisions of the Supreme Court itself. The earlier decisions make it identical with the whole internal government of the commonwealth. In the case of the City of New York v. Miln2 the Court declared, "we should say that every law came within this description which concerned the welfare of the whole people of a State" (commonwealth), "or any individual within it, whether it related to their rights or their duties; whether it respected them as men, or as citizens of the State" (commonwealth); "whether in their public or private relations; whether it related to the rights of persons, or of property, of the whole people of a State" (commonwealth) "or of any individual within it, and whose operation was within the territorial limits of the State" (commonwealth), "and upon the persons and things within its jurisdiction." The recent case of Barbier v. Connolly, cited above, does not evince very great advance in the analysis of this subject. The Court, in this case, defines the police power of the commonwealth to be its power "to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries. of the State" (commonwealth), "develop its resources, and add to its wealth and prosperity." The distinction between the two definitions consists in this: that while the former identifies the police power with the whole power of internal 1113 U. S. Reports, 27.

2 U. S. Reports, 11 Peters, 102.

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