XIV on the ground that due process has not been observed and that CHAP. loss has been suffered on that account; and the thing that the court is called upon to determine is, not the scope of due process in general, but whether the action in question was or was not, so far as it went, due process. Due process, however, plainly means that there can be no proceeding against life, liberty, or property without observance of the general rules established in our system of jurisprudence for the security of private rights. In relation to procedure, this means the hearing of every issue, before it is decided, by an authority vested with the appropriate power. It does not mean necessarily a trial by jury, or even a judicial trial at all; the states (though not the national government) may dispense with grand and petty juries, and they may entrust determinations, although admittedly of a judicial nature, to administrative officers or boards. Due process does not necessarily include exemption of an accused person from compulsory self-incrimination, or the right of the accused to be confronted at the time of trial with the witnesses against him, or an opportunity to appeal from a lower to a higher court. In civil matters, the requirements of due process are regarded as having been met if the regular, recognized, course of judicial proceedings has been observed. 3 Questions of due process are most frequently raised by actions performed by states, or by their agents, in the exercise of the police power. Here again, however, it is impossible to generalize. The courts refuse to define the police power, preferring to decide when controversy arises whether any given act is to be construed as coming within the scope of that power. Broadly considered, the power includes the exercise of all regulatory authority which is designed to promote the general well-being rather than special privilege, e.g., protection of life and property, guardianship of public morals, and improvement of public health. In the exercise of this sort of power, the state is not unlikely to restrict the freedom of corporations and of individuals to enter into agreements pertaining to labor and other matters; and this may well raise the question whether liberty has not been taken away without due process of law. When, for example, the legislature of New York passed an 1 Hagar v. Reclamation District, 111 U. S., 701 (1884). 'Twining v. New Jersey, 211 U. S., 78 (1908). 'West v. Louisiana, 194 U. S., 258 (1904). This right exists in the federal courts under the Sixth Amendment, but not in the state courts. 'McKane v. Durston, 153 U. S., 684 (1894). What due process means in practice Due process and the police power act forbidding employees to work in bakeries more than sixty hours a week or ten hours a day, the Supreme Court held the measure void on the ground that it transcended the police power of the state and was an "unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to labor" which is covered in the guarantee of due process contained in the Fourteenth Amendment. In the defense of due process, the Supreme Court thus imposes many restraints on the exercise of police power by the states, and accordingly wields large control over industrial and other economic legislation, both of the states and of Congress. REFERENCES A. B. Hart, Actual Government as Applied under American Conditions (New F. A. Cleveland, Organized Democracy (New York, 1913), Chaps. vII-IX. W. W. Willoughby, Constitutional Law of the United States (New York, 1910), J. W. Burgess, Political Science and Comparative Constitutional Law (Boston, E. McClain, Constitutional Law in the United States (New York, 1905), Chaps. J. B. Thayer, Cases on Constitutional Law (Cambridge, 1895), I, 1-47. F. J. Stimson, The American Constitution (New York, 1908), Chap. v. T. M. Cooley, Treatise on the Constitutional Limitations which Rest upon the E. Freund, The Police Power (Chicago, 1904). F. Van Dyne, Citizenship of the United States (Rochester, 1904). The Law of Naturalization of the United States (Washington, 1907). J. S. Wise, Treatise on American Citizenship (Northport, 1906). H. Brannon, The Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution (Cincinnati, 1901). L. P. McGehee, Due Process of Law under the Federal Constitution (Northport, 1906). Z. Chafee, Freedom of Speech (New York, 1921). 1 Lockner v. New York, 198 U. S., 539 (1905). CHAPTER XV PRIVILEGES OF CITIZENSHIP: THE SUFFRAGE privileges We have thus far dealt with the citizen's claims upon the Nature of government for protection and with his immunities from certain kinds of government control-in other words, with the positive rights which the citizen possesses by virtue of the national and state constitutions under which he lives. In addition, there are privileges, which belong to the citizen, not by any constitutional and enforceable right, but only as a result of special conferment, and only in so far as they have been actually granted. Rights as such are guaranteed and maintained primarily for the benefit of the individual; privileges, and their correlative duties, have in view, rather, the public good. It is, for example, by privilege rather than right that A. practices medicine, or B. teaches school, or C. runs a motor car. With a view to the public interest, the state requires that persons who follow certain professions and trades shall have the requisite training, which is tested by some form of examination. A. has no inherent right to practice medicine; he has only the privilege of doing so, provided he can satisfy the authorities of his state that he is qualified. Furthermore, a license conferred by one state is good only within the bounds of that state, except in so far as other states, out of considerations of comity, are willing to recognize it. But it is not simply the practice of the licensed professions and trades that rests upon privilege rather than right. Jury service is a privilege and a duty, not a right which the United States citizen can ipso facto claim. There is no such thing as an individual right to hold office; there is only a privilege, conferred by law. It is true that a person who has been duly elected to a public office is usually recognized by the courts as having a property right to the emoluments attached to the position as long as he holds it; and he can be removed only by impeachment or other proceeding authorized (expressly or by proper inference) by law. But he had no original right to be elected or appointed to the office, only a privilege; and, unless there is some constitutional restriction, he Privileges often mis taken for rights CHAP. XV The suffrage a privilege, Suffrage provisions of the na stitution will have no recourse if the office is suddenly abolished and his tenure is thereby prematurely ended. Another political activity which is a privilege rather than a right is the exercise of the electoral franchise. It is true that advocates of suffrage extension have always been prone to represent voting as a natural, if not a constitutional, right.1 This argument was heard repeatedly during the long campaign for the enfranchisement of women in our own country. But political scientists are substantially agreed that the composition of the electorate is, in the United States no less than in other lands, a matter to be determined by considerations of expediency, and not on the theory that any particular class or classes of the people have an inherent right to be included; and the courts have repeatedly and unanimously held that the suffrage is not a right necessarily arising out of either national or state citizenship. Nothing is more obvious than that there is, and can be, no necessary and fixed relation between citizenship and voting: children are citizens, but not voters; women are citizens, but until 1920 they were not voters in the majority of states. On the other hand, four states, as we have seen, allow persons to vote who are not citizens. 993 The national constitution deals with the subject very briefly and simply. Until 1870, its sole provision was that persons voting tional con- for members of the lower house of Congress in each state should have "the qualifications requisite for electors of the most numerous branch of the state legislature. The Fifteenth Amendment, adopted in the year mentioned, imposed the first constitutional restraint upon the states in this matter by forbidding any state (or the United States) to deny or abridge the "right" of citizens of the United States to vote "on account of race, color, or previous condition of servitude." The Nineteenth Amendment, adopted in 1920, laid a further restriction by forbidding any state (or the United States) to deny or abridge the "right" to vote "on account of sex.' No uniform suffrage system The framers of the constitution might conceivably have provided for a uniform national suffrage, quite distinct from the suffrage systems maintained by the several states, as did the makers 1 W. J. Shepard, "The Theory of the Nature of the Suffrage,” Proceedings of Amer. Polit. Sci. Assoc., VII, 106-136 (1913). 'United States v. Anthony, Fed. Cases 14459; Minor v. Happersett, 21 Wallace, 162. These decisions were rendered, in 1873 and 1874, in cases in which the question at issue was the right of women as citizens to vote. 3 Art. I, § 2, cl. 1. XV of the constitution of the federally organized German Empire in CHAP. 1867-71. But they chose, as did the framers of the constitution of the Swiss Confederation in 1848, to utilize for national purposes such electoral arrangements as each state had made, or should subsequently make, for its own use. There is, accordingly, no single suffrage system which covers the entire country. Limited only by the two restrictions that have been mentioned, every state, by means of its own constitution and laws, regulates suffrage qualifications as it desires. The two amendments tend to produce uniformity as far as they go. But outside of their scope unlimited latitude for variation remains. 1 The history of the suffrage, particularly in the older states, is in the main a record of intermittent extensions of voting privileges to new groups of people-non-property-holders, small taxpayers, ex-slaves, women-although recent enfranchisements have been offset to some extent by new or increased restrictions. As we have seen, the suffrage in the states in the period of the adoption of the national constitution was commonly confined to propertyholders, with occasionally a religious test in addition. In consequence, only a minority-in some cases a very slender minorityof the adult male population could vote. Vermont, whose earliest constitution (1777) quaintly provided that every freeman might vote "who has a sufficient interest in the community," was admitted in 1791 as a manhood suffrage state; Kentucky followed in 1792; and in the same year New Hampshire gave up her tax-paying requirements. On the other hand, Tennessee, Ohio, and Louisiana, although western states, entered the Union with property or tax qualifications, and in 1799 Kentucky gave indication of the looming race problem by disfranchising negroes, mulattoes, and Indians. Thus, up to the War of 1812, the country as a whole showed no very decided change in suffrage matters.2 changes, The period from 1815 to the Civil War, however, saw a gen- Suffrage eral triumph of democratic principles. Appointive offices became 1815-60 elective. Requirements for office-holding were relaxed. Above all, the suffrage was broadened. Conditions of life in the newer communities of the expanding West made political democracy inevitable there; and the older states were gradually led to the same policy by the growth of restless urban populations, by the impatience of the manufacturing and mercantile classes with free 1 See p. 113. 'K. H. Porter, History of Suffrage in the United States, Chap. II. |