The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-11-04
what m 9 by Due Process Of Law.

what N Meant by Due Process of Lawg
A question that must often have pressed
itself upon readers Of our Federal Constitu-
ton il: What is the precise Specification Of
the phrase due process Of law" which
occurs twice in that instrument The
question Is answered in a volume OF some
four hundred pages entitled Due Process
of Lao Under the Federal Constitution, by
LUCIus Polk McGEHEE, professor Of law
in the University Of North Carolina ed
ward Thompson Company, Northport, n.
". The object Of this study il to present
the views Of the subject entertained by the
United States Supreme Court. upon which
devolves the final decision Of questions OF
due process, in proceedings both by the
Federal authorities and by State authori-
ties. 1t follows that the material Of this
volume il primarily the decisions Of the
tribunal named. The author has aimed to
include all the decisions Of the court up to
and including 100 u. s. Reports. The
decisions rendered by other tribunals have
been used only 40 far "a they seemed likely
to round out from a historical or logical
point Of view the discussion Of the questions
involved.
We have said that the words due process
OF law" oocur in but W places in the Fed
eral Constitution; first, in the Fifth. and
secondly, in the Fourteenth Amendment to
our Federal organic law. A clause of the
Fifth Amendment provides thai no person
shall be deprived Of life, liberty or prop
erty without due process OF law" The first
clause Of the Fourteenth Amendment pro-
vides that no State shall deprive any per-
son of life. liberty or property without u
process Of law" Light will, Of course be
thrown on the meaning Of the phrase il
we call to mind the circumstances under
which the two amendments were passed.
Our author reminds us that the first ten
amendments represented concessions to
the fears of a generation which had taken
part in the Revolution. The struggle with
England for rights held to be the sacred in
heritance of all free English subjects had
left the States and the people of the country
keenly alive to the value OF. liberty and pro-
foundry distrustful of centralized power.
The feeling was widespread that, under
the Constitution al proposed. the States
were weakened and that opportunity was
given for encroachments which might in
time end in their absorption into the Fed
eral Government. Under the circumstances
ratification Of the Constitution by the requi-
site number Of States was secured only by
an understanding that amendments would
be adopted declaring the rights OF the
people and restricting the powers of the
general Government. Il was in pursuance
Of this understanding that the first ten
amendments were framed by the first
Congress and ratified by the requisite num-
Der Of States in December. 1871. 1t should
60 without saying that these ten amend
ments did not affect the powers Of the
States with regard to their respective citi-
zens, but limited the lowers Of the general
Government alone. II follows that each
State was left to determine for itself under
its own Constitution and laws what should
constitute due process Of law.
II was under very different conditions
Of national life that the Fourteenth Amend
ment of the Federal Constitution was
adopted. The provision for due process
Of law in the Fourteenth Amendment ap-
plies to all d~eprivations Of life, liberty or
property since its passage, and IL has been
held to prohibit a taking Of property without
due process, by proceedings under a statute
enacted before the passage OF the amend
ment. That due process Of law" under
this amendment is a right OF all classes of
persons. colored as well az white, is now
undisputed, though in the Slaughter
House Cases" in ls72-the first Instance
in which this amendment came before the
Supreme Court-the majority Of the Jus
tees seemed inclined to give il a narrower
operation. In that case Mr.. Justice Miller.
writing the opinion for the court, observed:
We doubt very much whether any action
Of a State not directed by way Of discrimi-
nation against the negroes as a class. or
on account Of their race, will ever be held
to come within the purview Of this pro-
vision. II is so clearly a provision for that
race and that emergency that a strong case
would be necessary for its application In
any other" Our author points out that
the course Of ven has contradicted this
forecast to such an extent that he Same
court could say in 1893 that the mn ior;tv
Of cases which had arisen under the Four
teenth Amendment had turned not unon
a denial to the colored race Of rights there;p
secured TO them but upon alleged discrimi-
nations in matters entirely outside Of tha
political relations Of the parties asRrieved.
In 1901 the court, having occasion to con-
slider the meaning Of due process" In the
Fifth and Fourteenth Amendments. asId.
While h language OF these amendment.
Ia the same, yet as they were engrafted
the Constitution at different tins.
and in widely different circumstance. =,
our national life IL may be that questions
may arise in which different construotIon.
and applications Of their provisions NAV
be proper" In the decision OF the CO..
before IL, however, the court proceeded
on the assumption that the legal import
Of the phrase due process Of law" is the
in both amendments.
Another fact. however, should not be
lost sight OF. Before the passage Of the
Fourteenth Amendment the security OF
the citizens OF the several States for dus
process OF law In proceedings by a given
state lay ir the institutions Of that state
alone. Even II due process was denied
the Federal Government had no riRht 10
interfere. The Fourteenth Amendment
changed this condition OF Affairs. That
amendment made II a matter OF national
concern that the State should not denv