Page:Popular Science Monthly Volume 52.djvu/834

812 liberty, or property, except in conformity with such laws as it may enact."

The general meaning of the phrase "due process of law," and of the synonymous expression "law of the land," has, however, been made so often the subject of discussion and legal decision as to be in no sense a matter of doubt. Mr. Webster, in the Dartmouth College case, defined these terms as follows: "By the law of the land 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, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not the law of the land." And in commenting on this definition, Justice Cooley, in his treatise on Constitutional Limitations, uses this language: "This definition of Mr. Webster is apt and suitable as applied to judicial proceedings, which can not be valid unless they proceed upon inquiry, and render judgment only after trial. It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. The words 'by the law of the land,' as used in the Constitution, do not mean a statute passed for the purpose of working wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. Due process of law," therefore, continues Judge Cooley, after reviewing the interpretations of various other authorities, means "such an exertion of the powers of the Government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as these maxims prescribe."

"The very idea of taxation, the very elements of the terms tax—taxation—implies that it is an imposition or levy upon persons or property in due course or order, treating all alike in the same condition and circumstances. The burden of taxation must be equalized by this mode in order to preserve its character. It is in any view taking private property for public use; and it can not be so taken without an equivalent both as to the Government or the citizens. It is not competent for the Government to convert private property to public use, by way of taxation and without compensation, any more than by any other mode."—Redfield.

Now, the exact applicability of the fourteenth amendment in restraining the several States in the exercise of their so-called "taxing powers" would appear to be this:

Taxation implies protection. It is held by every authority to be the equivalent for the protection which the Government affords to the property of its citizens. When, therefore, a State (like