fourteenth amendment did not affect her citizenship any more than it did that of men.

Is the right of suffrage a necessary privilege of a citizen of the United States? It is nowhere made so in express terms by the Constitution.

"The [fourteenth] amendment did not add to the privi leges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the states, but it operates for this purpose, if at all, through the states and the state laws, and not directly upon the citizen.

"It is clear. . . that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted."

Was suffrage coextensive with citizenship at the time the Constitution was adopted? Upon a review of the requirements for suffrage in the different states at that time, the chief justice concludes from these, and from the Constitution, Art. IV. Sec. II. and elsewhere, that suffrage was not a privilege of citizenship. The history of the admission of the states shows the same thing.

"For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage."

§ 256 i. Privilege of Trial by Jury. In Walker v. Sauvinet, 92 U. S. 90, it was held that "a trial by jury in suits at common law pending in the state courts is not a privilege or immunity of national citizenship, which the states are forbidden by the fourteenth amendment to abridge. A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Murray's Lessee v. Hoboken Land

Co., 18 How. 280. Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state."

The action was a civil one by Sauvinet against Walker for damages. Proceedings were in accordance with the laws of Louisiana, where the case arose. Field and Clifford, JJ.,

dissented.

So a statute providing that when the defendant is out of the state, the Statute of Limitations shall not run against the plaintiff, if the latter resides in the state, but shall, if he resides out of the state, is not in conflict with the Constitution providing that the citizens of each state shall be entitled to all the "privileges and immunities," etc.1

§ 256 j. The second Section of Art. IV., that the "citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states," does not vest in the citizens of one state any interest in the common property of the citizens of another state. Each state, with the citizens thereof, owns the bed of all tide-waters within its jurisdiction, and may appropriate them for the use of its own citizens as a common for taking and cultivating fish and oysters, and therefore a state law prohibiting citizens of other states from planting oysters in the soil covered by tidewater in another state is not unconstitutional.2 And Waite, C. J., there said that "the question is whether the state of Virginia can prohibit the citizens of other states from planting oysters in Ware River, a stream in that state where the tide ebbs and flows, when its own citizens have that privilege."

A state owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. Smith v. Maryland, 18 How. 74. It also owns the tide-waters and the fish in them so far as they are capable of ownership. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign

1 Chemung Canal Bank v. Lowery, 93 U. S. 72. ED.

2 McCready v. Virginia, 94 U. S. 391. And see Boggs v. The Commonwealth, 15 Rep. 446; 76 Va. 989. ED.

and inter-state commerce, has been granted to the United States. Fisheries remain under the exclusive control of the state, which can make of the beds of tide-waters a common for the taking of fish so far as such action does not obstruct navigation. The right which the citizens of the state thus acquire is a property right.

The statute of California prohibiting all aliens incapable of becoming electors of the state (i. e. the Chinese) from fishing in the waters of the state is in violation of the fourteenth amendment.1 So are the provisions of Art. XIX. of the Constitution of California prohibiting the employment of the Chinese.2

Due Process of Law.

§ 256 k. The meaning of this phrase as it occurs in the fifth Article of the Constitution was considered at some length in previous pages (§ 245 and post), but since the fourteenth amendment the question has attained additional importance, and the most interesting decisions upon it are here stated.

§ 256 1. Use of Private Property. The phrase "due process of law" was elaborately examined in Munn v. Illinois,3 which was under advisement for more than a year. "The question," said Waite, C. J., "is whether the general assembly of Illinois can fix by law the maximum of charges for the storage of grain in warehouses in Chicago and other places in the state having not less than 100,000 inhabitants. It is claimed that the law is repugnant to the fourteenth amendment." The Chief Justice then gave a valuable historical sketch of this provision of the fourteenth amendment: "From this it is apparent," said he, "that, down to the time of the adoption of the fourteenth amendment, it was not supposed that statutes regulating the use,

1 In re Ah Chong, 6 Sawyer, 451. ED.

2 Parrott's Case, 6 Sawyer, 349. ED.

8 94 U. S. 113. See also the same volume, pp. 155-164-179, 180, 181; and Shields v. Ohio, 95 U. S. 319; Ex parte Koehler, 23 Fed. Rep. 530. ED.

or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the states from doing that which will operate as such a deprivation." Then follows a sketch of the principles on which this power of regulation rests, with references to English authorities. "Enough has been already said," continued he, "to show that, when private property is devoted to a public use, it is subject to public regulation." Do the warehouses of plaintiffs in error come within the operation of this principle? It was held they did. "It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial, and not a legislative question. As has already been shown, the practice has been otherwise."

It was held to be for the legislature to determine what is reasonable.

A dissenting opinion by Field, J. (Strong, J., concurring), holds that the warehouses are private property, and that the state cannot fix the compensation to be derived from their use. The opinion is very interesting, and covers the same ground as the opinion of the Chief Justice.

6

§ 256 m. Judicial Proceedings. In Pennoyer v. Neff,1 Field, J., said: "The terms due process of law,' when applied to judicial proceedings, mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. 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; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary ap pearance."

1 95 U. S. 714. ED.

And in the same case it was held that "while the courts of the United States are not foreign tribunals in their relations to the state courts, they are tribunals of a different sovereignty, and are bound to give to a judgment of a state court only the same faith and credit to which it is entitled in the courts of another state.".

§ 256 n. Taxation.-Taxing one's property without giving him any opportunity to be heard upon the validity of the taxation, and taking his property thereon, has been held unconstitutional, as taking his property without "due process of law." But the contrary may be considered as the better rule.2

And the Federal courts hold that the revenue laws of a state may be in harmony with the fourteenth amendment, although they do not provide that a person shall have an opportunity to be present when a tax is assessed against him, or that suit must be brought to collect the same: especially if he may stay the collection by injunction.3

4

In Davidson v. New Orleans, an assessment of certain real estate in New Orleans for draining the swamps in that city was resisted in the state courts, and by writ of error brought into the United States court on the ground that the proceeding deprived the owner of his property without due process of law. In the opinion by Mr. Justice Miller, he says: "It must be confessed, however, that the constitutional meaning or value of the phrase "due process of law" remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the Constitutions of the several states and of the United States." The words do not necessarily imply a regular proceeding in a court of justice. Murray's Lessee v. Hoboken Land Co. 18 How. 272. As contributing to this mode [i. e. by judicial

1 The Railroad Tax Case, 8 Sawyer, 274; Stuart v. Palmer, 74 N. Y. 188. ED.

2 See The Railroad Tax Cases, 92 U. S. 575. ED.

8 McMillen v. Anderson, 95 U. S. 37. ED.

4 96 U. S. 97. And see In re Ziebold, 23 Fed. Rep. 792. ED.