contract is void as in violation of the amendment; but that where such breach involves deliberate fraud, as for example, where prepayment for the services has been made and received, the law will be sustained, even though the effort may be, by intimidation, to compel the performance of the promised services. Equity courts would also undoubtedly feel themselves justified in issuing orders restraining servants from quitting work at a time that will endanger human life or limb, or, indeed, will cause unnecessary or irremediable pecuniary loss to the employer. Thus, for example, the train hands of a railway company might be forbidden to leave their employment before bringing their train to its destination, or at least to some station where additional hands might be obtained to operate the train.40 40 Freund, Police Power, §§ 333, 452. See especially Toledo, etc., R. Co. v. Penn. Co., 54 Fed. Rep. 730; Arthur v. Oakes, 63 Fed. Rep. 310. CHAPTER XLVI. DUE PROCESS OF LAW. $460. Due Process of Law: Definition of. By the Fifth Amendment the prohibition is laid upon the Federal Government that "no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." By the Fourteenth Amendment a similar prohibition with reference to the deprivation of life, liberty or property is laid upon the States.1 In almost every chapter of this treatise it has been necessary to discuss the meaning of these prohibitions with reference to the exercise of specific powers by the federal or state governments. In the present chapter, therefore, the attempt will be made to determine simply the general intent and scope of the phrase "due process of law." 2 The specific enumeration in the Fifth Amendment of other personal rights furnishes possible ground for arguing that such enumerated rights are not included within the general provision. as to due process of law, but it is sufficiently established that this is not the case. In other words, the scope of due process of law is to be determined independently of the specific guarantee of other rights. Thus in Chicago, etc., R. Co. v. Chicago" due process of law was held to prevent the States from taking private property 1 The meaning of the phrase "due process of law" as employed in the Fifth and in the Fourteenth Amendments, would seem to be the same. It is true that in French v. Barber Asphalt Co. (181 U. S. 324; 21 Sup. Ct. Rep. 625; 45 L. ed. 879), the court say that "it may be that questions may arise in which different constructions and applications of their provisions may be proper," but so far as the author is aware, such a contingency has not yet arisen, and it is difficult to see how one may arise. 2 For a general treatise on this subject see McGehee, Due Process of Law, published in 1906. 3166 U. S. 226; 17 Sup. Ct. Rep. 581; 41 L. ed. 979. for a public use without just compensation, despite the fact that this is specifically forbidden in the Fifth Amendment. No complete and rigid definition of due process of law has been given by the Supreme Court. Indeed, it is questionable whether it is possible to give one. "Few phrases in the law are so elusive of exact apprehension as this," the court declare in the recent case of Twining v. New Jersey, and add: "This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise." The court, however, go on to say: "There are certain general principles, well settled, however, which narrow the field of discussion, and may serve as helps to correct conclusions. These principles grow out of the proposition universally accepted by American courts on the authority of Coke, that the words 'due process of law' are equivalent in meaning to the words 'law of the land,' contained in that chapter of Magna Charta which provides that no freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or any wise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers, or by the law of the land.” ” 5 In Hagar v. Reclamation Dist. it is said: "It is sufficient to say that by due process of law is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law, it must be adapted to the end to be attained, and whenever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justness of the judgment sought. The clause, therefore, means that there can be no proceeding against life, liberty, or property which may result in deprivation of either, without the observance of those general 4211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. 5 Citing Muray v. Hoboken Land Co., 18 How. 272; 15 L. ed. 372; Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. 616; Jones v. Robbins, 8 Gray, 329; Cooley, Const. Lim., 7th ed., 500; McGehee, Due Process of Law, 16. 6111 U. S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 569. rules established in our system of jurisprudence for the security of private rights." 66 By the law of the land," says Webster in a much quoted paragraph, "is most clearly intended the general 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, liberty and property and immunities under the protection of general rules which govern society. Everything which may pass under the form of an enactment is not law of the land." 7 Due process of law requires the adjudicating court to have jurisdiction both of the parties and of the subject-matter. "To give such proceedings any validity, there must be a tribunal competent by its constitution, that is, by the law of its creation, to pass upon the subject-matter of the suit." 8 In Giozza v. Tiernan the court say: "Due process of law within the meaning of the Amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government." In Missouri Pacific Ry. v. Humes1o the court, with reference to the limitations laid by the due process clause of the Fourteenth Amendment upon the States, say: "If the laws enacted by a State be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty or property without due process of law." § 461. Historical Inquiry not Conclusive. In large measure, the specific contents of the phrase "due process of law" are to be ascertained by "an examination of those 7 Dartmouth Coll. v. Woodward, 4 Wh. 518; 4 L. ed. 629. 8 Pennoyer v. Neff, 95 U. S. 714; 24 L. ed. 565. 9148 U. S. 657; 13 Sup. Ct. Rep. 721; 37 L. ed. 599. 10 115 U. S. 512; 6 Sup. Ct. Rep. 110; 29 L. ed. 463. settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." "1 11 12 But this historical method of determining the meaning of the phrase is not to be exclusively resorted to, or when restorted to, the court concluded thereby. That is to say, the fact that a given procedure is not to be found accepted in English and prior American practice is not to be held as conclusively determining it not to be due process of law. If the procedure under examination can be shown to preserve the fundamental characteristics and to provide the necessary protection to the individual, which the Constitution was intended to secure, its novelty will not vitiate it. Thus in Hurtado v. California, in which substitution by the State of prosecution by information in lieu of indictment was recognized as valid, the court declare that a true philosophy of American personal liberty and individual right permits "a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give from time to time new expression and greater effect to modern ideas of selfgovernment;" and that "this flexibility or capacity for growth and adaptation is the peculiar boast and excellence of the common law." "It follows," the argument concludes, "that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legis lative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." And in Twining v. New Y Jersey13 the court declare that to adopt the principle that a procedure established in English law at the time of the emigration and brought to this country and practised here by our ancestors is necessarily an element in due process of law would be to fasten 11 Twining v. New Jersey, 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. 12 110 U. S. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232. 13 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. |