this, the preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense. The want of power in the one case and its existence in the other are essential to due process, to preserve in the one and to apply and enforce in the other. In its ultimate conception, therefore, the power exerted below was like the authority to default or to take a bill for confessed because of a failure to answer, based upon a presumption that the material facts alleged or pleaded were admitted by not answering, and might well also be illustrated by reference to many other presumptions attached by the law to the failure of a party to a cause to specially set up or assert his supposed rights in the mode prescribed by law. As pointed out by the court below, the law of the United States, as well as the laws of many of the States, afford examples of striking out pleadings and adjudging by default for a failure to produce material evidence, the production of which has been lawfully called for."

§ 463. Appeal not Essential to Due Process.

Due process of law does not require the provision of a right of appeal from a trial to a superior court. In McKane v. Durston21 the court declared that " a review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not row a necessary element of due process of law." 22 In Pittsburgh, etc., R. Co. v. Backus,23 with reference to a right of appeal in a matter of tax assessment, the court say: "If a single hearing is not due process, doubling it will not make it so."

21 153 U. S. 684; 14 Sup. Ct. Rep. 913; 38 L. ed. 867.

22 This is quoted with approval in Reetz v. Michigan, 188 U. S. 505; 23 Sup. Ct. Rep. 390; 47 L. ed. 563; also in Andrews v. Swartz, 156 U. S. 272; 15 Sup. Ct. Rep. 389; 39 L. ed. 422; Fallbrook v. Bradley, 164 U. S. 112; 17 Sup. Ct. Rep. 56; 41 L. ed. 369.

23 154 U. S. 421; 14 Sup. Ct. Rep. 1114; 38 L. ed. 1031.

§ 464. Confronting Witnesses.

It is not essential to due process of law that in criminal causes the accused shall be confronted at the time of trial with the witnesses against him. This is specifically required by the Sixth Amendment in the federal courts, but in West v. Louisiana24 it is held that the Fourteenth Amendment does not lay this obligation. upon the States. In this case the court admitted a deposition of a witness not present at the trial, but which had been given at a preliminary examination at which the accused was present and had had an opportunity to cross-examine.25

§ 465. Trial in Courts of Law not Essential.

It is not essential to due process of law that proceedings and adjudications, though admittedly of a judicial nature, should be had in courts of law. It not infrequently happens that administrative. boards or officers in the discharge of their duties are compelled to consider and decide upon matters of a judicial character, and, provided an adequate opportunity is offered to the parties to appear and defend, due process of law is not denied by making the administrative determinations they reach conclusive and not open to further consideration in the courts, except, of course, as to the matter of the jurisdiction of the officers or boards in question, or as to whether adequate notice and opportunity to 24 194 U. S. 258; 24 Sup. Ct. Rep. 650; 48 L. ed. 965.

25 The court say: "We are of opinion that no federal right of the plaintiffs in error was violated by admitting this deposition in evidence. Its admission was but a slight extension of the rule of the common law, even as contended for by counsel. The extension is not of such a fundamental character as to deprive the accused of due process of law. It is neither so unreasonable nor improper as to substantially affect the rights of an accused party, or to fundamentally impair those general rights which are secured to him by the XIV Amendment. The accused has, as held by the state court in such case, been once confronted with the witness, and has had opportunity to cross-examine him, and it seems reasonable that when the State cannot procure the attendance of the witness at the trial, and he is a non-resident and is permanently beyond the jurisdiction of the State, that his deposition might be read equally as well as when his attendance could not be enforced because of death or of illness, or his evidence given by reason of insanity."

defend has Leen given the parties affected. In short, “ due process is not necessarily judicial process." 26 This subject is more fully discussed in Chapter LXIV of this treatise.

§ 466. Unessential Statutory Formalities.

The mere failure to comply with certain formalities prescribed by a state law is not, without reference to what those formalities are, a denial of due process. "When, then, a state court decides that a particular formality was or was not essential under a state statute, such decision presents no federal question, providing always that the statute as thus construed does not violate the Constitution of the United States by depriving of property without due process of law. This paramount requirement being fulfilled, as to other matters the state interpretation of its own law is controlling and decisive." 27

§ 467. Fixed Interpretation of Laws not Guaranteed.

So also it has been held that due process of law does not protect the individual who, in obedience to an interpretation given by executive officers to a statute, takes action which is later held by the courts to be unwarranted by that statute. Thus, with reference to a state tax law the court in Thompson v. Kentucky28 declare: "Due process of law does not assure to a taxpayer the interpretation of laws by the executive officers of a State as against their interpretation by the courts of a State, or relief from the consequences of a misinterpretation by either. It is the province of the courts to interpret the laws of the State, and he who acts under them must take his chance of being in accord with the final decision. And this is a hazard under every law, and from which or the consequences of which we know of no security."

26 Reetz v. Michigan, 188 U. S. 505; 23 Sup. Ct. Rep. 390; 47 L. ed. 563. See also Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. 616; Murray's Lessee v. Hoboken Land Co., 18 How. 272; 18 L. ed. 372; Wilson v. North Carolina, 169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 L. ed. 865.

27 Castillo v. McConnico, 168 U. S. 674; 18 Sup. Ct. Rep. 229; 42 L. ed. 622. See also French v. Taylor, 199 U. S. 274; 26 Sup. Ct. Rep. 76; 50 L. ed. 189.

2 209 U. S. 340; 28 Sup. Ct. Rep. 533; 52 L. ed. 822.

§ 468. Due Process and Substantive Rights.

In the discussion thus far had as to the meaning of due process, only its procedural or adjective side has been emphasized. We turn now to examine in how far substantive rights are secured to the individual by the process clauses.29

§ 469. Per Legem Terrae.

It is quite plain that the phrase due process of law is historically related to and derived from the phrase "per legem terrae of Magna Charta, and that the provisions of that fundamental document were intended, and have since been treated as a limitation not on the legislature but upon the executive and the courts. The provision per legem terrae thus means in the English law that the individaul shall not be deprived of his life, liberty or property by arbitrary acts, unsupported by existing law, whether common or statutory, by the King or his courts. But that the law is subject to change at the will of Parliament is not and has not been doubted.30 The property rights of the individual were thus at the time of the adoption of our Constitution, and have since remained, subject to the plenary legislative power of Parliament.

There is thus some historical ground for holding that, in the absence of explicit provision to the contrary, the due process clauses of the federal Constitution were not intended as a restraint, the one upon Congress, and the other upon the state legislatures.

§ 470. Distinction between English and American Constitutional Doctrines.

Upon the other hand, however, the general purpose of written constitutions in the United States, if not originally in all cases, has come to be quite different from that of Magna Charta. In

29 See University of Penn. Law Review (LVIII: 191), article "The Due Process Clauses and the Substance of Individual Rights," and American Law Review (XLIII: 926) for arguments that due process should have been restricted in its application to matters of procedure.

30 The very few dicta to the contrary, as for example, that of Coke in Bonham's Case (8 Coke, 115) are without weight.

this country our written instruments of government and their accompanying Bills of Rights have for their aim the delimitation of the powers of all the departments of government, the legislative as well as the executive and judicial, and it is, therefore, quite proper to hold that the requirement of due process of law should not only prohibit executive and judicial officers from proceeding against the individual, except in conformity with the procedural requirements which have been mentioned in the earlier part of the chapter, but also operate to nullify legislative acts which provide for the taking of private property without compensation, or life or liberty without cause, or, in general, for executive or judicial action against the individual of an arbitrary or clearly unjust and oppressive character.

In 1869 in Hepburn v. Griswold 31 the Supreme Court took definitely the view that Congress was restrained by the due process clause of the Fifth Amendment.

With reference to the inhibitions of the Fourteenth Amendment there was never any doubt that they restrained the legislative power of the States. In Ex parte Virginia32 it was held that these inhibitions might be violated by a state court which, though not directed so to do by a state statute, should in fact in its procedure or by its orders impair the rights sought to be protected; and the flat doctrine is laid down that all the departments of the state governments are restrained by the Fourteenth Amendment. The court say: "A State acts by its legislature, and its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position, under a state 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."

In Hurtado v. California,33 decided in 1884, the argument that

31 8 Wall. 603; 19 L. ed. 513.

32 100 U. S. 339; 25 L. ed. 676.

33 10 U. S. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232.