1

and intention of which, certainly is, that no man shall be dcprived of his property, without being first heard in his own defence." Chief Justice Ruffin says: "This clause does not mean an act of the legislature, for that construction would abrogate all restriction on legislative authority. The clause means that statutes which would deprive a citizen of the rights of person or property, without a regular trial according to the course and usage of the common law, would not be the law of the land in the sense of the Constitution." 2 In Brown v. Hummel,3 it is said by the judge delivering the opinion of the court, that," By the law of the land is meant, the law of an individual case, as established in a fair open trial, or an opportunity given for such trial, in open court, and by due course and process of law; not a bill of attainder, in the shape of an act of assembly, whereby a man's property is swept away from him without a hearing, trial, or judgment, or the opportunity of making known his rights, or producing his evidence.”

Again, the same court, in Ervine's Appeal, state, that this clause "Is an affirmation of a great doctrine contained in Magna Charta: Neither will we pass upon any one, but by the lawful judgment of his peers, or by the law of the land;' and Lord Coke says, that the words per legem terræ, mean by due process of law, and being brought into court to answer according to law. If government is interdicted from taking private property, even for public use, without just compensation, how can the legislature take it from one man, and dispose of it as they think fit? The great principle is, that a man's property is his own, and that he shall enjoy it according to his pleasure, injuring no other man,- until it is proved, in due process of law, that it is not his, but belongs to another." Judge Pope affirms the same general principle in Arrowsmith v. Burlingim.5

1 Kinney v. Beverley, 3 Henning & Munford, 336.

2 Hoke v. Henderson, 4 Devereux, 15.

8 6 Barr, 87.

44 Harris, 256.

6 4 McLean, 498.

Upon a careful review of all the authorities, it may be safely affirmed as a principle of constitutional law, that the clause in question requires judicial as well as legislative action, before any person can be deprived of his life, liberty, or property. Even those who have questioned the correctness of this construction, admit that it was so construed in England, and the only reason assigned for not adhering to the same construction in this country, is, that many acts of the legislature would be inconsistent with it, and, therefore, this cannot be its true meaning; thus bringing the Constitution to the test of legislation, instead of legislation to the test of the Constitution. Such a position amounts to a virtual abrogation of all constitutional restraints upon the power of the legislature, and makes that body as omnipotent as Parliament itself. On the other hand, the power of the legislature, as limited by the weight of authorities, consists in the power to pass general laws for the peace, safety, and happiness of the people, directing what they may do or omit, and declaring the consequences of a violation of such laws. Here their power ceases. The application of those laws to the cases of individuals, is assigned to other agents; consequently the legislature has no power, by its own mere action, to deprive any citizen of his property.

Such are the securities which the people, in the exercise of their inherent powers, have provided against legislative spoliation. It will be seen that every individual has, in the Constitution, an absolute, complete, and perfect protection in the quiet use and enjoyment of his property, until it shall be judicially ascertained that he has violated some general law of the land, which authorizes a seizure and divestiture of his right thereto, for such violation. This is most clearly the true reading and exposition of the text of the Constitution. If, however, the requirements of the Constitution must yield to legislative usage, in direct violation thereof, then, of necessity, all legislative acts which conflict with these great fundamental principles, should be held, in their construction and application, to the most rigid scrutiny.

In concluding this branch of the subject, it may not be con

sidered improper to make a few suggestions in relation to the constitutional mode of enforcing the collection of taxes.

The power to levy a tax properly belongs to the legislative power. The collection of it involves the exercise of judicial and executive functions. The legislature levy the tax-direct that a demand shall be made upon the owner of the land for the tax charged against it, and if payment is refused, authorize the collector to seize the body or goods of the delinquent, and in case satisfaction is not had in one or the other of these modes, power is conferred upon the collector to sell and convey the land itself. Now before the power to sell the land can exist under the law, the fact of the levy and non-payment of the tax, the demand, and return of no goods, or that the body cannot be found, must exist. These facts must be ascertained to exist before the power of sale attaches. Whether the power to decide the question of delinquency is vested by law in the regularly constituted judicial tribunals, or in those specially instituted for that purpose, or in the collector himself, can make no kind of difference; it is the exercise of judicial power, and the officer who sells performs an executive function; so that, in point of fact, the legislative, judicial, ayd executive departments of the government, all aid in the execution of the taxing power. The legislature declare what facts shall constitute a cause of forfeiture; the judiciary ascertain the facts, apply the rule of law prescribed, and pronounce a judgment of condemnation.

For these reasons it has been suggested by an eminent lawyer of Illinois, who has great experience in questions of this character, that "No valid sale of land, for the non-payment of a tax, having the effect of divesting the owner of his estate, can legally take place, unless each of the three great departments of the government concur in the condemnation." It was in accordance with this suggestion that the Legislature of Illinois, in 1839, passed a new revenue law, levying an uniform tax, requiring a personal demand of the owner, and directing, that in case payment of the tax was neglected or refused, the goods and chattels of the delinquent should be

seized and sold in satisfaction.

The collector was required to

report a list of the delinquents who had no goods and chattels in the county, out of which the tax could be levied, to the Circuit Court of the county, and apply for judgments against their lands, first giving notice in a newspaper of his intention to make the application. Upon filing his report, and a copy of the advertisement, certified by the printer, if no objection was taken to the regularity or legality of the proceedings, the court was authorized to render a judgment for the taxes, and order a sale of the land. After judgment, the clerk was required to make out, under the seal of the court, and deliver to the collector, a precept containing a copy of the report and the order of the court thereon, which constituted the authority of the officer to sell. This continues substantially the law of Illinois to this day.

Similar statutes were in force in Tennessee, Ohio, and Indiana. No such power as that of selling land for the non-payment of taxes, is to be found in the revealed, natural, civil, or common law. But there are analogous powers to be found in the common-law code, and in the statute law of every civilized nation; for example, the power to condemn land for public uses, and in other cases where power is exercised over the estates of the citizen, such as the sale of land for the payment of the debts of the owner. In all of these cases judicial proceedings intervene. The Constitution declares that private property may be taken for public use, upon making just compensation. The legislature direct the laying out of a public highway. Before the title of the owner is divested, a regular judicial inquiry takes place. The questions, whether the use is a public one, or whether it is a mere legislative pretence to divest the title of the owner, and confer it upon a favorite, and what compensation shall be made to the owner, as an equivalent for the loss of his estate, are all inquired into and judicially decided, after due notice and a hearing. So in every case where the title to real or personal property is sought to be divested under the general laws of the land, judicial proceedings always intervene. There is no difference in principle,

between the power of taking land for public use, and the power to tax, and enforce its collection by a sale of the land. In both cases the land is taken for the use of the public; they differ only in degree. Why, then, should not the same solemn forms be pursued in the one case as the other? The only answer is, state necessity and immemorial usage. The former demands, and the latter sanctions, this departure from the letter and spirit of the Constitution. It is said in Parham v. Decatur County, that "the sovereign right to lay and collect taxes grows out of the necessities of the government an urgent necessity which admits no property in the citizen while it remains unsatisfied. The right to tax is coeval with all governments. It springs out of the organization of the government. All property is a pledge to pay the necessary debts and expenses of the government." The Supreme Court of Tennessee decided, that their summary tax laws were constitutional, holding this language: "It is certainly true that they have the character of summary proceedings, and it is equally true, that they must, of necessity, be so; for if the government were necessitated to take the cautious and tedious steps of the common law, in giving personal notice, making up regular pleadings, and having a trial by jury, judgment and execution, it would cease to exist, for want of money to carry on its necessary operations; loss of credit, and a total extinction of the national faith, the basis of all regular governments, must be the inevitable consequence." 2 In the case of The State v Allen, the court in commenting upon the lex terræ of the Constitution, as applied to these summary tax laws, say: "We think that any legal process, which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is embraced in the alternative, law of the land."" And in Harris v.

19 Georgia, 352.

2 McCarroll v. Weeks, 2 Overton, 215.

8 2 McCord, 56.