LECTURE XXXVIII. The Fifth and Fourteenth Amendments forbid the Deprivation of Life, Liberty, or Property without Notice or a Hearing by some duly constituted Tribunal. — The Legislature cannot adjudicate or retroactively declare the Meaning of a Statute. The Law of the Land is the Rule existing when the Right in Question was acquired, as interpreted and applied by the Courts. Acts ordering a Re-hearing or New Trial are Invalid. - The Want of Jurisdiction cannot be cured retroactively by a Statute. Either Branch of Congress may make Rules for the Preservation of Order and punish a Violation of them as Contempt. The House of Representatives or Senate cannot compel the Production of Papers or the Attendance of Witnesses in Civil Cases, although the Interests of the United States are involved. — Their Power in this Regard in the Preparation and Trial of an Impeachment, or the Investigation of Charges which may lead to the Expulsion of a Member. - THE Constitutional provision that no person shall be deprived of life, liberty, or property without due process of law, or, in other words, without a day in court and opportunity for being heard, obviously requires that questions of right shall be determined by the judicial department of the government; and hence a statute declaring the land or goods in suit are the plaintiff's, or that a deed to him from the defendant is valid, will be equally inoperative whether it is or is not in conformity with the truth, which will remain open for decision as though no such legislation had intervened.1 The legislature may provide retroactively that conveyances of a certain kind shall be good, notwithstanding technical or clerical errors or defects, but they cannot declare that a particular conveyance is valid, or enforce it against the grantor.2 1 The Mayor v. Scott, 1 Pa. 309; Lambertson v. Hogan, 2 Id. 22, 25; Davidson v. New Orleans, 96 U. S. 97, 102. 2 Norman v. Heist, 5 W. & S. 171; Taylor v. Porter, 4 Hill, 146; Westervelt v. Gregg, 12 N. Y. 209; Wynehamer v. The People, 13 Id. DUE PROCESS OF LAW. 845 The words "due process of law" cannot mean less than a prosecution or suit instituted and conducted according to the customary forms and solemnities for ascertaining guilt or determining the title to property. Life, liberty, and property are classed in the same category, and the same measure of protection is extended to each; and if property can be divested without a trial and judgment, there is no security for life or liberty. If the legislature may take the property of A and bestow it on B, they may take A himself and imprison him or put him to death. The law of the land is the rule existing when the right in question was acquired, as interpreted and applied by the courts.2 It must be ascertained judicially that the citizen has committed some offence which renders him amenable to the criminal law, or that some one has a better title than himself, before he can be deprived of what he holds or owns, or so hindered in the exercise of his natural rights as to abridge his freedom. Such a conclusion may be drawn from the tenor of the Constitutions of the several States and the genius of a system which has for its object the maintenance of individual rights as well as to render the people as a whole politically free, and is a necessary inference from the clause under consideration in this lecture.3 In Norman v. Heist, Ann Ottinger died leaving two brothers, to whom her estate came under the existing law, and a natural son, Christopher Norman, who was not capable of inheriting from either parent. He died, and the legislature enacted that his children should be as able and capable to 395, 419, 468; Norris v. Beyea, Id. 273, 288; Rockwell v. Nearing, 35 Id. 302. 1 Palairet's Appeal, 67 Pa. 479, 485; Westervelt v. Gregg, 12 N. Y. 209. 2 Wynehamer v. The People, 13 N. Y. 378, 393; Hake v. Henderson, 4 Devereux, 15. Calder v. Bull, 3 Dallas, 386; Regents v. Johnson, 9 Gill & J. 365; Wilkinson v. Leland, 2 Peters, 657; Welch v. Wadsworth, 30 Conn. 149, 155; Burch v. Newbury, 10 N. Y. 374; Lambertson v. Hogan, 2 Pa. 22, 25. 4 5 W. & S. 171. 846 THE LEGISLATURE CANNOT inherit and transmit the estate of the said Ann Ottinger as though he had been born in lawful wedlock. The decision was that if the statute divested the estate which had descended to Ann Ottinger's brothers at her, death, it was a deprivation without "due process," but that it should be interpreted as meant to give Christopher Norman the inheritable blood which the common law denies to persons whose parents are not married, and enable his children to take whatever property might subsequently descend to them through him on the mother's side. Such statutes, it was observed, must be read in the light of the constitutional provision "that no citizen shall be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land.” "What law? Undoubtedly a pre-existent rule of conduct declarative of a penalty for a prohibited act, not an ex post facto sentence or decree made for the occasion. The design is to exclude arbitrary power from every branch of the government; and there would be no exclusion of it if such rescripts were allowed to take effect in the form of a statute." 1 As the legislative department cannot determine which of two contending parties has the right, so they cannot accomplish the same result by declaring the meaning of a pre-existing law contrary to the interpretation which it has received from the judiciary. The legislature enacts, the courts construe; and as the one cannot say what the law shall be, the other cannot declare what it is.2 In Greenough v. Greenough, the Supreme Court of Pennsylvania had decided that a mark was not a signature within the Pennsylvania Statute of Wills, and the legislature subsequently enacted" that every will and testament heretofore made or hereafter to be made. . . to which the testator hath 1 Darmouth College v. Woodward, 4 Wheaton, 519; Hoke v. Henderson, 4 Div. 151; Norman v. Heist, 5 W. & S. 171, 173. 2 Lambertson v. Hogan, 2 Pa 22; Reiser v. The Savings Fund, 39 Id. 137, 145; Haley v. Philadelphia, 68 Id. 45; West Branch Boom Co v. Dodge, 31 Id. 285. 8 11 Pa. 489. made his mark or cross, shall be deemed and taken to be valid;" and it was held that so far as this statute attempted to define the effect of the pre-existing law on the estates of persons who had died before its passage, it was a usurpation of the judicial province, and as such unconstitutional, and equally so if regarded as an arbitrary deprivation of a vested right. "The legislative, executive, and judicial functions might, if the people so willed, be performed by a single organ, but the people of Pennsylvania had not so willed." They had ordered that the judicial power should be vested in the existing courts and in such other courts as the legislature might from time to time establish. The judicial power of the Commonwealth was its whole judicial power, and the legislature could not exercise any part of it. What the statute under consideration attempted to do was to establish that the mark which the court had declared not to be the signature required by the act of 1833, was such a signature. A mandate that a statute should be interpreted in a particular way relative to a past act, was clearly an exercise of judicial power. The doctrine of Bender v. Brownfield,1 that the legislature may order a rehearing in a case which has been already considered and adjudged, or that a judgment which has been entered by confession shall be opened and the case sent to a jury, is virtually overruled by this decision and by the judgment in McCabe v. Emerson.2 It is established, in accordance with these authorities, that as the legislature cannot enter judgment or decide an issue of fact, so they cannot direct that a verdict or judgment shall be set aside and the case reconsidered. "If anything is self 1 2 W..& S. 280. 2 18 Pa. 112, and Baggs's Appeal, 43 Id. 512. * Morrell v. Sherburne, 1 N. H. 199; Taylor v. Place, 4 R. I. 324; Miller v. The State, 8 Gill, 145; De Chastellux v. Fairchild, 15 Pa. 18. In Louisiana v. New Orleans, 109 U. S. 285, the Supreme Court of the United States held that a judgment of damages for a tort may be indirectly impaired by abrogating the means through which it can be enforced, without violating any constitutional provision; but it would seem clear that taking away the remedy for a chose in action is as contrary to 848 WANT OF JURISDICTION CANNOT evident in the structure of our government, it is that the legislature has no power to order a new trial or to direct the court to order it, either before or after judgment. The power to order new trials is judicial, but the power of the legislature is not judicial. . . . The legislature has gone no farther than to order a re-hearing on the merits; but it is not more intolerable in principle to pronounce an arbitrary judgment against a suitor than it is injurious in practice to deprive him of a judgment which is essentially his property, and subject him to the risk, expense, and vexation of another contest." An interference on their part or on that of the executive with the administration of justice is contrary to the spirit and forbidden by the letter of the Constitution, and not less objectionable now than when James I. endeavored to influence and overawe Lord Coke.1 In like manner, a judgment which fails for want of jurisdiction cannot be rendered valid subsequently by a statute, because such an enactment substitutes the legislature for the courts, contrary to the due course of law required by Magna Charta and the Bill of Rights.2 Accordingly, when the name of one of several heirs did not appear in the proceedings for the partition of the ancestor's estate, the court held that the decree was invalid as to the party so omitted, and that an act of assembly passed to obviate the defect was unconstitutional. The principle was recognized in Nelson v. Lane,* though the case was held not to be within its scope. Agreeably to the view taken in this instance, where the orphans' court of a county has jurisdiction of the accounts of an ad the Fifth and Fourteenth Amendments as the actual taking of a chose in possession (see the dissenting opinion of Mr. Justice Bradly, and De Chastellux v. Fairchild, 15 Pa. 18). A recovery of damages in trover is the substitute given by the law for the thing of which the owner has been deprived; and in denying the power to carry the judgment into execution, the legislature become the accomplice of the wrongdoer and render the spoliation irremediable. 1 See 12 Coke, 63; also ante, p. 164. 2 Prior v. Downey, 50 Cal. 388; Demy v. Matoon, 2 Allen, 361. 3 Richards v. Rote, 68 Pa. 248. 4 79 Pa. 407. |