1900. ] HASTINGS—POLICE POWER OF THE STATE. 433 
to time ordain and establish;’’ and further that such judicial 
power should extend ‘‘ to all controversies to which the United 
States should be a party.”’ 
The resolution by Judge Curtis of the question thus raised is so 
typical of the American way of dealing with such problems and of 
the whole development of our subject that it deserves analyzing 
in this connection. After admitting that the provision vesting all 
judicial power in the courts was conclusive, if the act of adjusting 
the account and ascertaining the balance due that might be levied 
for was a judicial act, he turns entirely away from that question 
until he shall first have answered the other, as to whether the dis- 
tress warrant and the sale under it were due process of law. To 
settle this, of course, he turns back to the English precedents and 
shows, first, that the phrase as we have it is simply Lord Coke’s 
version of ‘‘law of the land’’ in Magna Charta. Then he 
examines further to see whether under the old precedents similar 
proceedings were a part of the law of the land in England, and, of 
course, as the proceedings were simply copied from English 
practice, he finds no difficulty there. Then he finds in the laws in 
nearly all the states evidence that this difference in the proceedings 
against public defaulters from those against ordinary debtors was 
well known and long practiced in this country. Therefore, it 
must have been a due process of law when the constitution was 
adopted and to have been forbidden by it needed to be expressly 
mentioned. 
So much is easy ; and is exactly the process by which in Massa- 
chusetts *Soper vs. Harvard College, ? Nightingale’s case and 
§’Goddard’s case, and in Maine ‘Pierce vs. Kimball, and in New 
York ° Vanderbilt vs. Adams and ° Coates vs. Mayor, were decided, 
and the exercise of summary powers by magistrates, and the laws 
conferring such powers, sustained against the general language of 
the state constitutions. The practices were in existence; they 
were well known; if it was intended to do away with them, it 
would have been done in express terms. Above all, they were 
needed. So, although it is admitted by Justice Curtis that due 
process of law, in cases requiring a trial, demands that there be 
regular parties, a tribunal and a course of procedure assuring a 
LT ALTA Col fe 49 Me., 54. 
271 Pick., 168. 57 Cow., 348. 
316 Pick, 504. 6 7@., 585. 
