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 of them can be taken from him. It cannot be done by mere legislation." So, of the phrase "due process of law," it was said, "It cannot mean less than a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities for asserting guilt or determining the title to property. 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. If the legis lature 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."* In North Carolina and Tennessee, the term law of the land has received the same construction.+ In New York, the subject has been again recently considered, in reference to the temperance laws. An act, passed in 1855 (9th April), entitled An Act * Taylor vs. Porter, per Bronson, J., 4 Hill, 140. Nelson, J. dissented, on the ground of the antiquity of the system of laying out private roads in the State of New York, and the universal acquiescence in its propriety. + Hoke vs. Henderson, 3 Dev., 12; Jones vs. Perry, 10 Yerg., 59. See also, in Iowa, Reed vs. Wright, 2 Greene, Iowa, 22. In Texas, James vs. Reynolds, 2 Texas, 251, In Pennsylvania, Brown vs. Heummel, 6 Barr, 87, and Ervine's Appeal, 16 Penn. R., 256; Kinney vs. Beverly, 2 Hen. & Munf., 336; Arrowsmith vs. Burlingim, 4 M'Lean R., 498; and Blackwell on Tax Titles, 27, 34. for the prevention of intemperance, pauperism, and crime, declared substantially that intoxicating liquor should not be sold, or kept for sale, except for medical, sacramental, chemical, and mechanical purposes; and a violation of this provision was declared a misdemeanor, punishable by fine and imprisonment. It was further enacted that, upon complaint of a violation of this prohibition, liquor illegally kept should be seized, and if found to be kept in violation of the act, or if not claimed, should be adjudged forfeited and destroyed. Proof of the sale of liquor was to be considered sufficient to sustain an averment of an illegal sale, and proof of delivery to be prima facie evidence of sale. No person was to be allowed to maintain an action to recover for any liquor sold or kept by him, unless he could prove that the liquor was lawfully sold or kept within the act; and finally, it was declared that all liquor kept in violation of the act should be deemed a public nuisance. Toynbee and Berberich having been found guilty of violating the act, appealed to the Supreme Court; and the act was held to be in conflict with the constitutional provision above cited. It was considered that the object of the statute was to prohibit the common and ordinary use of a species of property long and familiarly known; that liquor came clearly within the definition of property; that the prohibition of its sale worked a virtual deprivation of property; that to do this by fines, forfeitures, and imprisonment, coupled with a presumption against nuisance, was not due process of law; that the right of protection belonging to the citizen was seriously impaired by requiring him, preliminarily, to prove that the liquor was lawfully kept; that it was not competent for the legislature to declare any recog nized species of property a nuisance; and that the whole act was void as being an arbitrary interference with the rights of property guaranteed by the constitution.* Some other decisions may be noticed. The vested interest of a husband in a legacy bequeathed to his wife cannot be altered by subsequent legislation; and the act of 1848, by which it was attempted so to operate retrospectively, is unconstitutional on the ground that it takes away property without due process of law.t We have already had occasion to notice that certain summary administrative proceedings, have been sustained against the objection that they did not conform to the law of the land. So, in Louisiana, the constructive service of a tax bill, by advertisement in the official newspaper, without any personal service whatever, has been held not to conflict with the provision in the State constitution that "no person shall be deprived * People vs. Berberich & Toynbee, 11 Howard Pr. R. 289. Mr. Justice Brown delivered the leading opinion. Mr. Justice Strong, concurring with him, adverted to the invasion of the rights of property effected by the abolition of slavery, and observed that the question whether it was competent for the legislature to prohibit the manufacture of liquors, was not before them. Mr. Justice Rockwell concurred in the reversal on a minor point— that of the defendant being tried at the special sessions; but dissented from his brethren in their general views of the constitutionality of the act, holding it to be a legitimate exercise of the discretion of the legislature, founded on considerations of public policy tending to promote the morals, health, and safety of the community. The whole discussion is very able, and of great interest to all persons investigating the fundamental principles of our government. The decision has been affirmed on appeal, and has been reported while these pages are passing through the press. Wynehamer vs. The People, 3 Kernan, 378. Westervelt vs. Gregg, 2 Kernan, 202. of life, liberty or property, without due process of law."* The Superior Court of New Hampshire has said, "There is no doubt of the great fundamental principle that parties shall be heard before judgment shall be passed against them; but when the legislature have fixed the particular time and manner of giving notice to parties, it is not for us to set aside the statute unless it is clearly unconstitutional."+ Trial by Jury.-The trial by jury is very dear to the race to which we belong. There can hardly be named any institution which has survived so many changes, or existed under such various forms of government. Nullus liber homo capietur, vel imprisonetur, nisi per legale judicium parium suorum, are the words of Magna Carta, more than six centuries ago. When this country threw off the government of England, the passionate attachment of our people to this form of procedure was repeatedly and energetically declared; and the constitution of the youngest State of the American confederacy adopts the trial by jury as a part of its fundamental law. Springing up under the feudal despotism of the Plantagenets, it has survived alike their rule, that of the house of Tudor, and of the house of Stuart, and now flourishes with all its original vigor under the mildest and wisest form of monarchy of which history makes mention; while during the same period, transplanted to a different hemisphere, it has struck deep its roots into the new soil, and is, perhaps, the most cherished institution of the greatest exemplar of free and intelligent government that the world has ever seen. * City of New Orleans vs. Cannon, 10 La. Ann. R., 764. Webster vs. Alton & N. D., 9 Foster, 369, 384. The Declaration of Rights made by the first Continental Congress, in The following extracts from some of the State constitutions, will give a sufficient idea of the manner in which this institution has been incorporated into the fundamental law of the several States. It is proper to remark that the clauses here given apply, as a general rule, to civil cases, and that the State constitutions contain special provisions in regard to the trial by jury in criminal cases : Maine. "In all civil suits and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right may be heard by himself and his counsel, or either, at his election."* New Hampshire." In all controversies concerning property, and in all suits between two or more persons, excepting in cases wherein it hath been heretofore otherwise used and practiced, the parties have a right to a trial by jury, and this right shall be deemed sacred and inviolable; but the legislature may by the constitution be empowered to make such regulations as will prevent parties from having as many trials by jury in the same suit or action, as hath been heretofore allowed and practiced, and to extend the civil jurisdiction of justices of the peace to the trials of suits where the sum demanded in damages doth not exceed four pounds, saving the right of appeal to either party. But no such regulations shall take away the right of trial by jury, in any case not in this article before excepted, unless in cases respecting mariners' wages."t Vermont." That when an issue in fact, proper for the cognizance of a jury, is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." 1774, declares that "the respective colonies are entitled to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of the common law." And the Declaration of Independence, in its eloquent recital of the causes of separation, commemorates among others, "acts of legislation for depriving us, in many cases, of the benefits of trial by jury." Shepard's Const. Text Book, p. 262. * Constitution of Maine, art. i., § 20. + Constitution of New Hampshire, part i., § 20. Constitution of Vermont, ch. i., § 12. |