Page:Harvard Law Review Volume 8.djvu/167

151 POWER TO DIVERT AN INTERSTATE RIVER. 151 give up all these rights under the Constitution and receive nothing in return ? A resort to the judicial tribunals of the Union must certainly be left to her and to her citizens. She may litigate dis- putes with the aggressive State; and her citizens may have reme- dies against the citizens of the other State who have committed torts under the unfounded assumption that they had valid State authority for their doings. The Federal tribunals must say that, inasmuch as, under the Constitution, the States cannot make war upon eachother, they cannot constitutionally do to each other such acts as would be occasion for war between independent nations. Thus far we have not relied upon the Fourteenth Amendment to the United States Constitution. We have maintained, and we be- lieve, that the Constitution as it stood before the passage of that amendment prohibits State legislation of this description. But if this position is held erroneous, it would certainly seem that the Fourteenth Amendment must be construed as prohibitive of such legislation. That amendment is in part as follows : " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdic- tion the equal protection of the la^^■s." This amendment was intended to afford national protection to property rights in all States, as against aggression attempted under State statutes. There is no sufficient reason for considering it as intended to protect property rights in any particular State only as against the aggression of that State, and not as against the aggression of any other State. There is no ground for limiting the words "any person " in the clause prohibiting deprivation of property to . persons within the territorial jurisdiction of the State (as in the following clause which says "any person within its jurisdiction "). It is settled that the requirement of "due process of law" is not satisfied by the formal enactment of a statute ; it must be a valid statute, one which the legislature had power to enact. The legis- lature of one State has not power to compel a citizen of another State to part with his property rights in that other State for a price to be fixed by third persons. Hence a statute providing for such compulsory extra-territorial purchase is not "due process of law." If the foregoing views are correct, it follows that New Hampshire riparian proprieters have effective remedies in the United States Circuit Court for the District of Massachusetts ; remedies either 21