Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-08

away in this country without due process 4
law. Unless this tribunal furnishes due pr
cess of law it finds itself butting against ii
Constitution of the United States it hnC
itself contending with a superior power
finds itself exercising powers forbidden by
higher law which this State is bound to reco.
nizs. This special proceeding is not due prt
cess Of law. Due process of law, as used in th
Constitution, simply means such general, ,legl
forms and course of proceedings as were know
either to the common law or as were genel
ally recognized in this country st the time G
| the adoption of the Constitution. Aud ia
question then for Us to determine in thi
tribunal. in the decision of this case, is abou
this +: Was there st the time of the adoptio
OF the Constitution anything which woul
have recognized this as a process by whic
| the rights Of individuals could be denied O
taken from them? And if this be answsre,
in the negative, by the construction uniyer
sally given since the Hotoken land case III
| to the present time, this provision must fall
| this constitutional provision must fall if il
opfiict. The words ''dua process of law
were undoubtedly intended to convey tn,
| same meaning as the words, eth
law of the land in Magma Charts
Lord Coke says they mean "dus process;
of law" And it is universal rule of construc
tion by Courts that where a term or word
is used in Constitution which, in the coun
try where it has been used, has received 6
Judicial construction, it is adopted into the
Constitution with the construction which II
bsd previously received. So, | say when the
fourteenth amendment of the United States
Constitution used the term "due process Of
law" it used it with the construction that
had been given to it before. The Court
in tbs case cited of Murray Lessus Va. Ho-
boken Land Company, says: "The article
is s restraint on the legislative as well as
on the executive and judicial powers of the
Government, and cannot bs so construed as
to leave Congress free to make any due pro-
cess of law by its mere will. We must ex.
anime the Constitution itself to see whether
this process be in conflict with any of its pro-
visions. Ii not found to be SO, VIC must look
to those settled usages and modes OF proceed
ing existing in the common and statute laws
OF England before the emigration of our an
cestors.
Now you can examine the coemon and
statute law of England and you will find
nothing in that country which approaches the
conferring of powers of this nature upon an
executive officer. And indeed I may say to
your Honors that had niau stepped into
the Constitutional Convention that framed
the Federal Constitution, and made a PROPOSE
tion to confer upon the President of the
United States the power to thus determine,
and act upon his own determination, he
would probably have been invited to Iesve
tbs hall. To have adopted such ar idea would
have been to have adopted the idea of
monarchy. The trainers of the Constitution,
in speaking of due process OF law, were look
ing to the liberties Of the people, to the prop
erty rights of the people, and they were
undertaking then the establishment of just
rules of procedure in Courts and tribunals
established for that purpose, which should
involve sn opportunity to be heard in
tribunal in watch the party might be heard,
place where he might demand full hear
ing. where all the machinery of the law, the
process for contempt for failure of witnesses
TO answer, might be svailed cf. sNVhy, as the
best illustration to me of the fact that this is
not due process Of law is the get of rules
adopted by this tribunal. One of the rules
is that when witness becomes contumacious
and refuses to answer, the whole of his testi-
mony shall be stricken out.
The Court-You haven't demurred to tie
rules.
Mr.. Hart-No, sir; simply refer to this
as demonstrating the lack OF power, and not
fer the purpose of criticisiDg the rule, because
it is the best that could be done. In Judge
Wsllace's Court in Nspa, if witness became
c)ntumacious and refused to answer ques-
Jail. By doing this Judge Wallace would be
recognizing the fundamental rights of every
individual charged with either civil or
criminal offense-that of being confronted by
his witnesses and having full scope in the
of the witnesses. Now the
very best witness that we may produce here,
not being under our control, may become
contumacious. This Court will strike out
his testimony, and the result will be the loss
Of the testimony to u.s. A tribunal exercising
such powers is not competent Court.
l have here case on that subject, the
Bank of Tennessee VS.. Cooper, 24th
American Decisions, page 524, which is
clear upoa tLis question. Apply these
principles to tho cage before the Court. A
particular description of the debtors of the
bauk Of the Stale are assumed to be in de-
fault and to have incurred liabilities to the
bank. TIE right Of action has already ac-
cfusd, and the Courts Of common law have
clearly exclusive jurisdiction. Here the de-
PENDANTS would have been entitled TO trisl
by jury snd to an appeal to thu Supreme
Colrt. La this state Of the case the Legisla
ture passed the Act under consideration,
giving to this Court the jurisdiction of those
particular causes only; direct the mode Of
trial to be acco-diug to the principles of
Court of equity (wnIch is without jary), and
declare that there should be no appeal, at
the same time the law, as it regards all
others, remaining ~ changed.
This law cnly acts upon indiyiiua Ceases
and is the same in principle as if the law had
bean passed in favor of soine one merchsnt,
enabling him, by the method therein pre-.
scrihed, TO take judgment against his debtors
wi;hout the hight of appeal. TIE interest
which the people have 10 the bank is suf-
ficiant reason why the Legislature should
feel deep solicitudo to secure iss funds, bu.
is no res5oa why thsy should ovetstep the
limits of legislative authority to effec3 this
end. Nor is it any reason why the Court
should enforce an Act, passed without suf-
fcient delibefation. which infrinles, as We
believe, the Constitution. Two important
priyileges-the trial by jury, and the right of
appeal-sre by this Act taken away in these
special cases, while eTery other member Of
the community, having incurred simiiar lia-
bilities, enjoys them.
TIE fact that the persons embraced in this
Act form class OF the debtors to the bank,
tends no more to give it the character of
general law than if the Act had operated On
one Individual debtor only, whose case might
have some popularity, Distinguishing it from
that of sll other debtors. O.her banks, and
many merchants, and many other members
OF the community, have contrac.s similar to
the one set out in this bill. La order TO have
avoided the force of the objection to this
Act, it should have operated equally on all
these and, because it has not done SO, it is
no. the law of the land"
These opinions were rendered by the
Judges, and they all held to the general doc
trine that you cannot create special tribunal
for the trial of the rights of individuals. So,
under tbs Constitution of the United States,
requiring that every man shall be entitled to
che equal protection of the law, and that 10
man shall be deprived of life, liberty, or
property without due process Of law, COM
hined with common law principles. require
the existence # 8 compstert tribunal, pos-
sessed of full powers, and also require that
these laws passed by the Legislature, or by
the Constitution. making people, shall have an
uniform operation. and shall protect the
rights of all individuals alike.
0ee other matter | wish to refer to, and
thss is that this provision Of the Constisntion
is not sxecatipg. TIE best evidence that
Il is not seli-executiDg is that this tribunsl
has already found It necessary 60 legislste
rules for itseIf. Tniz tribunal has confessed
70 the opinion thst there ia no provision in
the law providing suth sient machinery to put
this provision into operation. Now. II we
are to srgue this cass upon the theory asserted
BIZ the other side, that i. Is intended IN this
instance that the Governor shall exercise
judicial powers. the Governor has no Judicial
powers. He cannot go back to the common
law to ascertain how Executives exercised
judicial powers. There sra no precedents to
guide him, either in England or America /;
whereas, sometimes when Courts exercise
powers, they may go to similar Courts in
similar proceedings and pursue remedies given
TO them by common law. Now, conceding
that this is Court il Is not Court OF gen.