by a jury of six freeholders, and declared that the road should, when laid out, be for the use of the applicant and his assigns; the interposition of a grand jury. Rowan v. State, 30 Wisc. 129. See this case for a very elaborate discussion of the meaning of due process of law. Unreasonable Conditions.-The Legislature cannot impose unreasonable conditions upon the assertion of rights to property or person. Thus it has been held that the Legislature cannot make payment of redemption money a condition precedent to the owner's setting up his paramount title against a void tax sale. Conway v. Cable, 37 Ill. 82; Reid v. Tyler, 56 Ill. 288. But a law requiring defendant in an action by holder of a tax certificate to make deposit of the tax was held valid. Smith v. Smith, 19 Wisc. 615. And an act requiring thirty per centum of the taxes paid by the purchaser since the sale to be paid by the owner as a condition of redemption from the tax sale, is valid. Mulligan v. Hintrager, 18 Iowa, 170. And a statute requiring the plaintiff in ejectment against the holder under a tax title, where taxes have been paid and improvements made by the latter, to make an affidavit that he has tendered the taxes, costs, interest and value of improvements to the holder and has been refused, as a condition to prosecuting the action, was sustained in Pope v. Macon, 23 Ark. 644; Craig v. Flanagin, 21 Ark. 319. A statute prescribing the forfeiture of twenty-five per centum of the amount of his taxes as a penalty on a delinquent tax payer was also upheld in Scott v. Watkins, 22 Ark. 556. An act requiring the whole land to be sold irrespective of whether the tax could be made by a sale of less, is, it seems, unconstitutional. Martin v. Snow, den, 18 Gratt. 100. A statute requiring an oath of loyalty from attorneys was held valid in Cohen v. Wright. 22 Cal. 293; but see Cummings v. Missouri, 4 Wal. 277; and Ex parte Garland, Id. 333; and see, also, "Ex Post Facto Laws." Rules of Evidence.-Although the power of the Legislature over rules of evidence is a large one, and extends in general to their alteration, and to the application of the new rules to existing suits and causes of action, yet it cannot be so exercised as to disturb vested rights of property or to take away property, for this would be a violation of the guaranty of due process of law. Thus the Legislature has no power to make a tax deed conclusive evidence of matters vital to the validity of the proceedings. Corbin v. Hill, 21 Iowa, 70; Abbott v. Lindenbower, 42 Mo. 162; and see Wright v. Cradlebaugh, 3 Nev. 341. But otherwise as to mere matters of regularity, but nonessentials. Hurley v. Powell, 31 Iowa, 64; and see note "Curative Statutes." A statute authorizing a judge in proceedings to restore records destroyed by fire to rely upon his own recollection in determining facts, was held invalid in Kimball v. Connor, 3 Kans. 414. Limitations of Actions.—The principle of limitations of actions cannot be so applied by the Legislature as to take away property without due process of law. Upon this ground an act making a tax deed conclusive after five years, irrespective of possession, was held invalid in Groesbeck v. Seeley, 13 Mich. 329 (Martin, C. J., dissenting); Baker v. Kelly, 11 Minn. 480; Harding v. Butts, 18 Ill. 502; but see Newland v. Marsh, 19 Ill. 376; Stearns v. Gittings, 23 Ill. 387. But certain laws based partly on the doctrine of escheats and partly on the presumptions growing out of a lapse of time, are valid, e. g., a law directing clerks of courts after money has remained in their offices a specified time to the credit of pri and in an action of trespass the validity of this statutory provision came up for consideration. The Constitution of the State, as it then stood, provided, "that no member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers" (Cons. of 1821, art. vii, § 1); and also, that "no person shall be deprived of life, liberty, and property, without due process of law" (Ib. § 7). After showing that the act worked a transfer of property from one individual without his consent to another, the Supreme Court held that no such legislation was compatible with "the law of the land," nor such a proceeding compatible with "due process of law." They said, "The words 'by the law of the land,' as used in the Constitution, do not mean a statute passed for the pur pose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two Houses, 'You shall be vested with the legis lative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for the purpose.' In other words, You shall not do the wrong unless you choose to do it." "The meaning of the section is, that no member of the State shall be disfranchised or deprived of any of his rights and privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation." So, of the phrase "due process of law," it was said, "It cannot mean less than a prosecution or a suit, instituted and conducted according to the prescribed forms and solemnities for asserting guilt or determining the title to property. The same measure of protection against legislative encroachment is extended to life, liberty, and property; and if * * vate persons to pay the same into the county treasury. Deaderick v. County Court, 1 Cold. 202. the latter can be taken without a forensic trial and judgment, there is no security for the others. If the Legislature can take the property of A and transfer it to B, they can take A himself, and either shut him up in prison or put him to death. But none of these things can be done by mere legislation. There must be due process of law." In North Carolina and Tennessee, the term law of the land has received the same construction. + In New York, the subject has been again recently consid ered, in reference to the temperance laws. An act, passed in 1855 (9th April), entitled An act for the prevention of intemperance, pauperism and crime, declared substantially that intoxicating liquor should not be sold, or kept for sale, except for medical, sacramental, chemical, and mechanical purposes; and a violation of this provision was declared a misdemeanor, punishable by fine and imprisonment. It was further enacted that, upon complaint of a violation of this prohibition, liquor illegally kept should be seized, and if found to be kept in violation of the act, or if not claimed, should be adjudged for feited and destroyed. Proof of the sale of liquor was to be considered sufficient to sustain an averment of an illegal sale, and proof of delivery to be prima facie evidence of sale. No person was to be allowed to maintain an action to recover for any liquor sold or kept by him, unless he could prove that the liquor was lawfully sold or kept within the act; and finally, it was declared that all liquors kept in violation of the act should be deemed a public nuisance. Toynbee and Berberich having been found guilty of violating the act, appealed to the Supreme Court; and the act was held to be in conflict with the constitutional provision above cited. It was considered that the object of the statute was to prohibit the common and ordinary use of a species of property long and familiarly known; that liquor came clearly within the definition of property; that Taylor v. Porter, per Bronson, J., 4 Hill, 140. Nelson, J., dissented, on the ground of the antiquity of the system of laying out private roads in the State of New York, and the universal acquiescence in its propriety. Hoke v. Henderson, 3 Dev. 12; Jones v. Perry, 10 Yerg. 59. See also, in Iowa, Reed v. Wright, 2 Greene, Iowa, 22. In Texas, James v. Reynolds, 2 Texas, 251. In Pennsylvania, Brown v. Heummel, 6 Barr, 87, and Ervine's Appeal, 16 Penn. R. 256; Kinney v. Beverly, 2 Hen. & Munf. 336; Arrowsmith v. Burlingim, 4 M'Lean R. 498; and Blackwell on tax Titles, 27, 34. the prohibition of its sale worked a virtual deprivation of property; that to do this by fines, forfeitures, and imprisonment, coupled with a presumption against nuisance was not due process of law; that the right of protection belonging to the citizen was seriously impaired by requiring him, prelimina rily, to prove that the liquor was lawfully kept; that it was not competent for the Legislature to declare any recognized species of property a nuisance; and that the whole act was void as being an arbitrary interference with the rights of property guaranteed by the Constitution.* Some other decisions may be noticed. The vested interest of a husband in a legacy bequeathed to his wife cannot be altered by subsequent legislation; and the act of 1848, by which it was attempted so to operate retrospectively, is unconstitu tional on the ground that it takes away property without due process of law.† We have already had occasion to notice that certain summary administrative proceedings, have been sustained against the objection that they did not conform to the law of the land. So, in Louisiana, the constructive service of a tax bill, by advertisement in the official newspaper, without any personal service whatever, has been held not to conflict with the provision in the State Constitution that "no person shall be deprived of life, liberty or property, without due process of law." | The Superior Court of New Hampshire has said, "There is no doubt of the great fundamental principle that parties shall be heard before judgment shall be passed against them; but when the Legislature have fixed the particular time and manner * People v. Berberich & Toynbee, 11 Howard Fr. R. 289. Mr. Justice Brown delivered the leading opinion. Mr. Justice Strong, concurring with him, adverted to the inva sion of the rights of property effected by the abolition of slavery, and observed that the question whether it was competent for the Legislature to prohibit the manufacture of liquors, was not before them. Mr. Justice Rockwell concurred in the reversal on a minor point-that of the defendant being tried at the special sessions; but dissented from his brethren in their general views of the constitutionality of the act, holding it to be a legitimate exercise of the discretion of the Legisla ture, founded on considerations of public poli- Westervelt v. Gregg, 2 Kernan, 202. City of New Orleans v. Cannon, 10 Le. Anu. R. 764. of giving notice to parties, it is not for us to set aside the stat ute unless it is clearly unconstitutional." * Trial by Jury.-The trial by jury is very dear to the race to which we belong. There can hardly be named any institution which has survived so many changes, or existed under such various forms of government. Nullus liber homo capietur, vel imprisonetur, nisi per legale judicium parium suorum, are the words of Magna Carta, more than six centuries ago. When this country threw off the Government of England, the passionate attachment of our people to this form of procedure was repeatedly and energetically declared; and the Constitution of the youngest State of the American Confederacy adopts the trial by jury as a part of its fundamental law. Springing up under the feudal despotism of the Plantagenets, it has survived alike their rule, that of the house of Tudor, and of the house of Stuart, and now flourishes with all its original vigor under the mildest and wisest form of monarchy of which history makes mention; while during the same period, transplanted to a different hemisphere, it has struck deep its roots into the new soil, and is, perhaps, the most cherished institution of the greatest exemplar of free and intelligent government that the world has ever seen. † The following extracts from some of the State Constitutions, will give a sufficient idea of the manner in which this institution has been incorporated into the fundamental law of the sev eral States. It is proper to remark that the clauses here given apply, as a general rule, to civil cases, and that the State Constitutions contain special provisions in regard to the trial by jury in criminal cases. (a) *Webster v. Alton & N. D. 9 Foster, 369, to the course of the common law." And the Declaration of Independence, in its eloquent recital of the causes of separation, commemorates among others, “acts of legislation for depriving us, in many cases, of the benefits of trial by jury."-Shepard's Const. Text Book, p. 262. 384. (a) Since the text was written great changes have been made in the organic law of many of the States. New Constitutions have been adopted and old ones modified. The following is a complete list of all the clauses to be found in the present State Constitutions, directly referring to the jury trial, either in criminal or in civil causes. |