Page:Popular Science Monthly Volume 52.djvu/833

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PRINCIPLES OF TAXATION.

individual rights, without which the social compact could not exist, and which are respected by all free governments entitled to the name. Among these is the limitation of the right of taxation." (Loan Association vs. Topeka, 20 Wallace, 658).

In connection with this general subject, the opinion expressed by Chief-Justice Marshall is also historically worthy of notice. It had its origin in the case of Baron vs. The Mayor of Baltimore, in which the city of Baltimore, in the exercise of its corporate authority over the harbor, etc., so diverted certain streams of water that they made deposits of sand and gravel near the plaintiff's wharf, and thereby prevented the access of vessels to it. A writ of error was taken from the judgment of the Maryland Court of Appeals, refusing damages, to the Supreme Court of the United States, on the ground that this decision was in violation of the fifth amendment to the Constitution of the United States, which prohibits the taking of public property for private use without just compensation; the plaintiff contending further, "that this amendment, being in favor of the liberty of the citizens, ought to be so construed as to restrain the legislative power of a State, as well as that of the United States." The court, however, by Chief-Justice Marshall, held that this amendment of the Constitution "is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States"; which was equivalent to saying, viz., that if the several States choose to arbitrarily take or confiscate the property of any of its citizens, there was no higher sovereignty to restrain them.

At the close of the late civil war, however, when it was deemed desirable by Congress to impose some restrictions on the reconstructed States, so as to prevent the former disloyal element of their population, in the event of the contingency of regaining legislative power, from dealing arbitrarily or unjustly with any class of their fellow-citizens who might happen to be obnoxious, the following clause was made a part of the fourteenth amendment, and through its adoption has become the supreme law of the land: "Nor shall any State deprive any person of life, liberty, or property without due process of law."

Now, the force of this amendment obviously depends upon the meaning of the last clause, "due process of law"; and it is also clear that "due process of law" does not mean a procedure in conformity with any law which a State legislature might enact, or with any provision which the people of a State might put in their Constitution; for if such be the interpretation of this phrase, then this clause of the fourteenth amendment referred to would practically read as follows: "Nor shall any State deprive any person of life,