The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
So in the Hurtado case, which has been described at length, no
description of due process of law was found better and none is
better than that given by Webster so many years before in the
Dartmouth College case. The Supreme Court of New Hampshire, from
whose judgment that cause came up by writ of error, had held--and
on that point its decision was final--that the change in the
college charter was no violation of the bill of rights embodied
in the Constitution of that state. This, following _Magna
Charta_, provided (Part I, Art. 15) that no subject should be
"despoiled or deprived of his property, immunities, or
privileges, put out of the protection of the law, exiled, or
deprived of his life, liberty or estate, but by the judgment of
his peers or the law of the land." _Magna Charta_ was wrung
from a tyrant king. So, said the State court, this article was
inserted to protect the citizens against the abuse of the
executive power. When it speaks of the law of the land it means
the law of New Hampshire, and that is whatever the legislature of
New Hampshire chooses to enact, so long as it contravenes no
other constitutional provision.
Webster, in paving the way toward his claim that the charter was
a contract, and, as a vested right of property, inviolable by a
State, alluded to the sacredness of all rights under the
guaranties to be found in our American system of constitutional
government. It was not surprising that the Constitution of the
United States should protect them in the way he asserted. All
the States, and New Hampshire among them, had done the same in
placing the great features of _Magna Charta_ in their bills
of rights. What, he asked, was this law of the land by which all
things were to be tried and judged? This was his answer: "By the
law of the land is most clearly intended the general law; a 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
therefore to be considered the law of the land. If this were so,
acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments,
decrees and forfeitures in all possible forms, would be the law
of the land."[Footnote: "Works of Daniel Webster," V, 486.]
Public-domain text, read in full here on John Shaqi.
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