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. Chicago3 due process of law was held to prevent the States from taking private pr6perty for a public use without just compensation, despite the fact that this is specifically forbidden in the Fifth Amendment.

1The 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.

3 166 U. S. 226; 17 Sup. Ct. Rep. 581; 41 L. ed. 979.

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 of Twining v. New Jersey,4 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.6 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 rules established in our system of jurisprudence for the security of private rights."

4 211 T. 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.

6 111 U. S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 569.

"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. Tiernan9 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. Humes10 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."