for a public use without just compensation, despite the fact that this is specifically forbidden in the Fifth Amendment.

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 case of Twining v. New Jersey, 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

6

In Hagar v. Reclamation Dist. 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

4211 U. 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. 6111 U. S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 569.

rules established in our system of jurisprudence for the security of private rights."

"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. Tiernan 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. Humes 10 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."

§ 461. Historical Inquiry not Conclusive.

In large measure, the specific contents of the phrase "due process of law" are to be ascertained by " an examination of those

7 Dartmouth Coll. v. Woodward, 4 Wh. 518; 4 L. ed. 629.

8 Pennoyer v. Neff, 95 U. S. 714; 24 L. ed. 565.

9148 U. S. 657; 13 Sup. Ct. Rep. 721; 37 L. ed. 599. 10 115 U. S. 512; 6 Sup. Ct. Rep. 110; 29 L. ed. 463.

settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." 11

But this historical method of determining the meaning of the phrase is not to be exclusively resorted to, or when restorted to, the court concluded thereby. That is to say, the fact that a given procedure is not to be found accepted in English and prior American practice is not to be held as conclusively determining it not to be due process of law. If the procedure under examination can be shown to preserve the fundamental characteristics and to provide the necessary protection to the individual, which the Constitution was intended to secure, its novelty will not vitiate it. Thus in Hurtado v. California,12 in which substitution by the State of prosecution by information in lieu of indictment was recognized as valid, the court declare that a true philosophy of American personal liberty and individual right permits " a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give from time to time new expression and greater effect to modern ideas of selfgovernment;" and that "this flexibility or capacity for growth and adaptation is the peculiar boast and excellence of the common law." "It follows," the argument concludes, "that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." And in Twining v. New Jersey13 the court declare that to adopt the principle that a procedure established in English law at the time of the emigration and brought to this country and practised here by our ancestors is necessarily an element in due process of law would be to fasten

11 Twining v. New Jersey, 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. 12 110 U. S. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232.

13 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97.

the procedure of the first half of the seventeenth century upon American jurisprudence like a straight jacket which could only be unloosened by constitutional amendment. It would be, as declared by Justice Matthews in Hurtado v. California, "to deny every quality of the law but its age, and to render it incapable of progress or improvement." 14

§ 462. Rules of Evidence and Procedure May Be Changed.

Thus it has been held that, so long as the fundamental rights of litigants to a fair trial, as regards notice, opportunity to present evidence, etc., and adequate relief are provided, and specific requirements of the Constitution are not violated, Congress has a full discretion as to the form of the trial or adjudication, and the character of the remedy to be furnished. Thus, the States not being bound by the Fifth, Sixth and Seventh Amendments, grand and petit juries may be dispensed with by them.15 So also, within limits, legislatures may determin what evidence shall be received, and the effect of that evidence, so long as the fundamental rights of the partics are preserved.16

No person has a vested right to a particular remedy. "The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the federal Constitution." 17 Statutes of limitations, if reasonable, are not unconstitutional as denial of property or contractural rights. The 14 See also Holden v. Hardy, 169 U. S. 366; 18 Sup. Ct. Rep. 383; 42 L ed. 780.

15 Hurtado v. California, 110 U. S. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232; Maxwell v. Dow, 176 U. S. 581; 20 Sup. Ct. Rep. 448; 14 L. ed. 597.

16 See Fong Yue Ting v. United States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905, and authorities there cited. In Adams v. New York (192 U. S. 585; 24 Sup. Ct. Rep. 372; 48 L. ed. 575), it was held that due process of law was not denied by a state law making possession of policy slips prima facic evidence of " possession thereof knowingly," and as such a crime.

17 Brown v. New Jersey, 175 U. S. 172; 20 Sup. Ct. Rep. 77; 44 L. ed. 119.

authorities as to this are so uniform and numerous as not to need citation.

In Twining v. New Jersey18 it is declared that due process of law does not include exemption of an accused from compulsory self-incrimination.

In Hammond Packing Co. v. Arkansas19 it was held that due process of law is not denied by a state court striking from the files the answer of a foreign corporation and rendering a judg ment by default against it, as permitted by state law when the defendant disobeys an order to secure the attendance as witnesses of certain of its officers and agents, and the production of papers and documents in their possession or control.

The case was distinguished from that of Hovey v. Elliott20 in which it had been held a denial of due process for a court, as a punishment for contempt, based upon a refusal to obey an order of the court, to deny a right of the defendant to defend, and to give judgment without more ado to the plaintiff. The court in the Hammond case say: "Hovey v. Elliott involved a denial of all right to defend as a mere punishment. This case presents a failure by the defendant to produce what we must assume was material evidence in its possession, and a resulting striking out of an answer and a default. The proceeding here taken may, therefore, find its sanction in the undoubted right of the lawmaking power to create a presumption of the fact as to the bad faith and untruth of an answer to be gotten from the suppression or failure to produce the proof ordered, when such proof concerned the rightful decision of the cause. In a sense, of course, the striking out of the answer and default was a punishment, but it was only remotely so, as the generating source of the power was the right to create a presumption flowing from the failure to produce. The difference between mere punishment, as illustrated in Hovey v. Elliott, and the power exerted in this, is as follows: In the former, due process of law was denied by the refusal to hear. In

18 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97.

19 212 U. S. 322; 29 Sup. Ct. Rep. 370; 53 L. ed. 530. 20 167 U. S. 409; 17 Sup. Ct. Rep. 841; 42 L. ed. 220.