HARRIS, J.,
delivered the opinion of the court.
The plaintiff brought his action of ejectment in the court below to recover a tract of land alleged to have been forfeited to the State under the Act of 1850, for the non-payment of taxes; and seeks to derive title under such forfeiture, by virtue of the Acts of [434]*4349th March, 1850, and the 16th March, 1852, and his purchase from the State.
The question involved is, whether the legislature had power, by simple act of legislation, to vest the title to lands, delinquent for non-payment of taxes, in the State of Mississippi.
Independent of written constitutions, as early as the seventeenth century it was said by Lord Coke, when Chief Justice of the King’s Bench, in Dr. Bonham’s case, “ that the common law doth control acts of Parliament, and adjudges them void when against common right and reason.” Lord Chief Justice Hobart, a few years after, in Day v. Savage, declared that an act of Parliament made against natural equity (as to make a man judge in his own case) was void ; and Lord Chief Justice Holt is reported to have said, in relation to the declaration of Lord Coke, cited above, that it “ was not extravagant, but was a very reasonable and true saying.” City of London v. Wood, 12 Mod. 687, and 10 Mod. 118.
Ethical writers, as well as learned judges, of a much more modern date, are not wanting to enforce by their authority, as well as elucidate by their wisdom, these same doctrines of civil liberty which have been fully adopted into our written constitutions.
Such were the views of Mr. Justice Chase in Calden v. Bull, 3 Dallas Rep. 386. So Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch, 87, declared, that “it may well be doubted whether the nature of society and government does not prescribe some limits to the legislative power ; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation ?”
“ To the legislature, all legitimate power is granted; but the question whether the act of transferring the property of an individual to the public, be in the nature of legislative power, is well wmrthy of serious reflection.”
And Justice Patterson, in 2 Dallas, 313, speaking of the appropriation of private property for public use by the legislature, uses this forcible and appropriate language : “ The English history does not furnish an instance of the kind. The Parliament, with all their boasted omnipotence, never committed such an outrage on private property; and if they had, it would have served only to display the dangerous nature of unlimited authority; it would have been an [435]*435exercise of power and not of. right. Such an act would be a monster in legislation, and shock all mankind. The legislature, therefore, had no authority to make an act divesting one citizen of his freehold, and vesting it in another without a just compensation” (nor even with it, except for yuhlie use, he afterwards adds). “ It is inconsistent with the principles of reason, justice, and moral rectitude ; it is incompatible with the comfort, peace, and happiness of mankind. It is contrary to the principles of social alliance in every free government; and lastly, it is contrary to both the letter and spirit of the Constitution.” And again : “ Omnipotence in legislation is despotism. According to this doctrine, we have nothing we can call our own, or are sure of, a moment. We are all tenants at will, and hold our landed estates and property at the mere pleasure of the legislature.”
So in The University of Maryland v. Williams, 9 Gill. & J. 365, Chief Justice Buchanan says: “Independent of that instrument (the Constitution of the United States), and of any express instructions in the Constitution of the State, there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact (in this country at least), in the character and genius of our government, — the causes from which they spring, and the purposes for which they were established, — that rises above, and restrains, and sets bounds to the powers of legislation, which the legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty, and property of the citizen from violation in the unjust exercise of legislative power.
“ To say that the legislature possesses the power to pass capriciously, or at pleasure, a valid act, taking from one his property and giving it to another, would be in this age, and in this State, a startling proposition, to which the assent of none could be yielded.”
The same doctrines are powerfully stated, and argued, by Mr. Justice Bronson, in Taylor v. Porter, 4 Hill N. Y. Rep. 146; by Tracy, Senator, in Bloodgood v. The Mohawk and Hudson River Railroad Company, 18 Wend. 56; and by Chancellor Walworth, in Variek v. Smith, 5 Paige R. 159.
And Mr. Justice Story, in Wilkinson v. Leland, 2 Peters, 654, delivering the opinion of the Supreme Court of the United States, [436]*436after an able argument by Mr. Webster, asserting these doctrines, said, “ he held that, in a government professing to regard the great rights of personal liberty and of private property, and which like this was required to legislate in subordination to the general laws of England, it would not be presumed, slightly, that the general principles of Magna Charta were to be disregarded, or that the estates of-its subjects were to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided, by the charter of the General Assembly of Rhode Island, as an exercise of transcendental sovereignty, before the Revolution, it could scarcely be imagined that that great event could have left the people of that State subject to its uncontrolled and arbitrary exercise. He was of opinion, that that government could scarcely be deemed free, where the rights of property were solely dependent on the will of the legislature, without any restraint. The fundamental maxims of a free government seemed to require, that the rights of personal liberty and private property should be held sacred; at least, that no court of justice, in this country, could be warranted in assuming, that the power to violate and disregard them, — a power so repugnant to the common principles of justice and civil liberty, — lurked under any general grant of legislative authority, or ought to be implied, from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expressions of intention.”
“We know of no case,” he adds, “in which a legislative act, to transfer the property of A. to B., without his consent, has ever been held a constitutional exercise of legislative power, in any State in the Union. On the contrary, it has been constantly resisted, as inconsistent with just principles, by any political tribunal in which it has been-attempted to be enforced. We are not prepared, therefore, to admit, that the people of Rhode Island have ever delegated to their legislature the power to divest the vested rights of property, and transfer them without the consent of the parties.”
If upon general principles, the power of the legislature is thus restricted, how much more important is it under the guarded provisions of our Constitution, that wre should scrutinize the act in question by which the land of this defendant, without notice,— [437]*437actual or constructive, — without his consent, without compensation, without necessity for public us.e, and without “ due course of law,” is attempted to be wrested from him, and, for a nominal consideration, vested by the power of legislation alone in this plaintiff. It is not to be presumed, that such a power exists, in this State, at this day, under our Constitution.
It is for those who claim to derive a right, under a power so extraordinary, to inform us whence it is derived, and where it may be found; or in what moment of folly or infatuation, an intelligent people, desiring rational liberty, cautious of restraint, and zealous of power, have thus abandoned one of the cardinal rights for^the protection of which free governments are instituted.
We are told, by counsel for appellant, that “it is now too-late to question the power of the legislature to pass laws to enforce the collection of the revenues of the State, and for this purpose to deprive the citizen of his property, by ex parte proceedings.” This we do not question; at least we do not question the power of the legislature to pass laws, providing for the collection of taxes in the most summary manner, without the tedious formalities which ordinarily environ the private creditor, who seeks to do the same thing (collect his debt) “by due course of law.” But in doing so, no private right, no constitutional provision, no great principle which lies at the foundation of our political system, need be, or must be violated.
That the legislature may provide for the assessment of taxes, and create officers, — executive and judicial, — in a summary manner to levy and collect taxes, nobody ever doubted. This has been prac-tised, under our Constitution, without objection, since the organization of our State government. In doing'so, the legislature creates a court, and provides for notice, where parties can be heard, judgment rendered, execution issued, and property sold, according to the just provisions of a known law, — organic as well as legislative. It is done without form, but when examined, there will be found in its hasty and informal character, all the essential elements of a court and its attendant officers, &c. No jury trial is specially provided for, nor is it necessary. Trial by jury, as known to our Constitution and known to the common law, was never employed, from its earliest history, in these summary proceedings; and hence [438]*438it “ remains inviolate,” as practised at the adoption of our Constitution. Such is the case cited from 6 Monroe, Ky. Rep. 643.
But that the legislature, without notice or demand, — upon the failure of the citizen to pay his taxes, — and without giving him the opportunity to show that he has paid them, may adjudge his lands forfeited to the State, and then transfer them to another, is a practice neither “ derived from Magna Charta,” nor known in this State, until the passage of the act in question. It is not, therefore, “ founded in necessity;” as suggested: for the State had existed for more than a quarter of a century without its aid, under a written constitution, and the jealousy of the people’s representatives allowed it but a temporary existence after its first inauguration here, in 1850, before it was repealed.
So far from it being true, as remarked by the able and ingenious counsel who employ it, that the power to appropriate a man’s whole estate for default in the payment of a few dollars tax by a simple act of legislation, without more, “ is founded in necessity and consecrated by time,” Senator Tracy, in a case already cited, said truly: “It has never been allowed to be a rightful attribute of sovereignty in any government professing to be founded upon fixed laws, however despotic the form of government might be, to take the property of one individual, or subject, and bestow it upon another.” And this is admitted in the case cited from 7 Peters, 669. This power, instead of being acknowledged, was expressly repudiated by the Roman law as the height of imperial despotism.
Even Hobbes, the most ingenious of all the advocates of despotic power, does not claim such a power: and no approved writer on public law will be found to go as far as Hobbes in vindicating the unqualified right of the sovereign to assume at will the property of the subject.
Under our Constitution, the legislative, the executive, and judicial departments of the State, all owe their existence to that instrument. Their powers are all derived from and limited by it. They can do nothing without its sanction; they can exercise no power not properly belonging to their respective departments.
Written constitutions are in every instance limitations upon the powers of government in the hands of agents; there never was a republican constitution which delegated to functionaries all the [439]*439latent powers of government which lie dormant in every nation: which are boundless in extent and incapable of definition.
Our Constitution, in its first breath, thus speaks the voice of a' free people: “That the general, great, and essential principles of liberty and free government, may be recognized and established, we DECLARE” — (that is, that there may be no dispute between government and citizen; that the great and essential rights of each individual member of this public compact may be “ established” thereby, and “ recognized” by their mutual agents and only deposi-taries of the general powers of government; it is declared, among other things), “ that all political power is inherent in the people, and all free governments are founded on their authority, and established for their benefit.”
For the purpose of more effectually guarding and protecting the personal liberty, and personal security, and private property of the citizen, specific limitations on the general powers of government thereby delegated are expressly provided in our Constitution. Among those designed to secure life and liberty may be mentioned the equality of rights secured by the 1st section to all freemen. The sovereignty of the people, and the subserviency of government to their interests and happiness, as declared in the 2d section. Religious toleration, secured by the 3d section and the 4th. Freedom of opinion, in the 5th, 6th, 7 th, and 8th sections. Security from seizure, search, trial, or arrest, except according to law, and in the forms thereby prescribed, as provided in the 9th, 10th, 11th, and 12th sections. Protection against excessive bail and illegal detention, in the 16th, 17th, and 18th sections. The right to bear arms in defence of himself, or the State, in the 23d section.
And to secure inviolate the right of private property against invasion from the government thus established for protection, in an especial manner did the framers of our Constitution stipulate in that instrument:
1. Against the deprivation of “ life, liberty, or property, but by due course of law.”
2. “ Nor shall any person’s property be tahen or applied to public use, without the consent of the legislature, and without just compensation being first made therefor.”
3. “ That all courts shall be open, and every person for an injury [440]*440done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.”
4. “ No conviction for any offence shall work corruption of blood, ox forfeiture of estate'. The legislature shall pass no bill of attainder, ex post facto law, or law impairing the obligation of contracts.”
5. “ The right of trial by jury shall remain inviolate.”
6. “ No person shall be debarred from prosecuting or defending any civil cause, for or against him or herself, before any tribunal in this State, by him or herself, or counsel, or both.”
And lastly, these powers are excepted out of the general powers of government, forever to remain inviolate ; and all laws contrary to these reservations and prohibitions are declared void.
The Constitution then proceeds to divide the powers of government intended to be granted, into three separate departments, and to forbid either from the exercise of the powers belonging to the other. If, after this, we are to be told that the legislature of this State has any right over private property, more than any individual, except when it is taken or applied to public use upon just compensation first made, or in virtue of the powers conferred by the Constitution, to create inferior courts, then written constitutions are not worth the paper they have occupied; and the freedom of the people from arbitrary despotism is but a delusion at last.
The theory of our Constitution is at war with this whole doctrine of eminent domain or pre-eminent dominion, which presupposes that the government of Mississippi has granted something, or everything, to the people; that the State had an absolute original ownership of the whole property possessed by the individual members antecedent to their acquisition; and that every citizen thus deriving his property from the State, upon the tacit condition and reservation that he will allow the State to take, apply, or use his property as her convenience or necessity may require; the State may terminate or extinguish his right at her will or pleasure. This is what was anciently denominated “ eminent domain.” Vattel, Law of Nations, p. Ill, § 244. And it is just what our Constitution intended to abolish, destroy, and wholly overturn.
Hence the unqualified “ declaration” that all “ political power is inherent in the people, and all free governments are founded on [441]*441their authority and established for their benefit.” Instead, therefore, of the people deriving their rights of property from the government of Mississippi, or being in any manner Its tenants upon conditions express or implied, the people made it, what it is, from an unorganized territory, the property of distant owners. The people gave it being: it is, therefore, the creature and agent, and not the superior and sovereign'oí the people.
Neither in theory, nor in fact, do the people of this State hold their property by grant from the State. Hence the total absurdity of the doctrine of eminent domain, or implied conditions, under a supposed grant: when our Constitution declares to the contrary, as the fundamental and unalterable law of her existence.
Such are the doctrines of republican orthodoxy held by Senator Tracy in Bloodgood v. The Mohawk and Hudson R. R. Company, 18 Wend. 56, already cited; and such are the view's expressed by Justice Bronson, in Taylor v. Porter, 4 Hill N. Y. R. 140. Mr. Smith, in his Commentaries, citing this case with approbation, § 828, says: “ In another case, the doctrine was held by Justice Bronson, that private property could not be taken for private use; that the statutes of New York, which authorized the laying out a private road over the lands of another, are unconstitutional. He discussed, in a very able manner, the constitutionality of such an act, under our Constitution, and as to what was to be implied under the general grant of legislative power contained in the Constitution. He held, under our Constitution, the legislature is not supreme; it is only one of the organs of that absolute sovereignty which resides in the whole body of the people. We nowhere find a delegation of power to the legislature, to take the property of one and give it to another, either with or without compensation. Only one clause in the Constitution could be cited in support of the power, and that was the first section of the first article, which declared ‘ the legislative power of this State shall be vested in a Senate and Assembly.’ He admitted that the two houses, subject only to the qualified negative of the governor, possessed all the legislative power ,of the State. But the question presented itself, — What was that ‘legislative power,’ and how far did it extend? He held, that it did not reach to the life, liberty, or property of a citizen who was not charged with a transgression of the laws, and when [442]*442the sacrifice was not demanded by a just regard for the public welfare. The security of life, liberty, and property, lay at the very foundation of the social compact.
“ To say that this grant of ‘legislative power’ included the right to attach private property, was equivalent to saying that the people had delegated to their servants the power of defeating one of the great ends for which the government was established. Without one word of qualification in the whole instrument, he should feel great difficulty in bringing his mind to the conclusion, that the clause he then had under consideration, had clothed the legislature with despotic power. That such would be the extent of their authority, if they could take the property of one citizen and give it to another, either with or without compensation. Pie also held, in that case, that this question, under the then Constitution, did not necessarily turn on the section granting legislative power; but that it contained negative words, under the clause, ‘ No member of the 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.’ That the meaning of this section was, that no member of this State should be disfranchised, or deprived of his rights or privileges, unless the matters should be adjudged against him, upon trial had, according to the course of the common law. That it must be judicially ascertained that he had forfeited his privileges, or that some one else had a superior title to his property, before either of them could be taken from him. It could not be done by legislation.”
These just views, in relation to the Constitution of New York, and the powers of the legislature under it, apply with increased stringency here, where our Constitution, embracing the same, objects, is expressed in still stronger and more guarded language.
In 3 Paige, 173, and 5 Paige, 179, Chancellor Walworth gives expression to similar views.
When the Constitution declares that the citizen shall not be deprived “of his life, liberty, or property, but by due course of law,” it means what Magna Charta meant by “the law of the land,” what the Constitution of the United States means by “ due process of law.” “ They are,” says Judge Bronson, in Taylor v. Porter, “synonymous terms;” and so it is held in White v. White, 5 Bar[443]*443bour, N. Y. R. 481-8. Lord Coke says, “that to judge a man in a civil or criminal case, without affording him an opportunity of being heard, would be against this provision in Magna Charta.”
Mr. Webster says: “ By the law of the land is most clearly intended, the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment- only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of general rules which govern society. Everything which may pass under the form of an enactment, is not therefore to be considered as the law of the land. If this were the case, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the ‘ law of the land.’ Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. The administration of justice would be an empty form, an idle ceremony, and judges would sit to execute legislative judgments and decrees, not to declare the law, and administer the justice of the country.” (Argument in the Dartmouth College Case.)
Judge Bronson says of this provision, in the case of Taylor v. Porter: “ The meaning of this section, then, seems to be, that no member of the State shall be disfranchised, or deprived of any of his rights or 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 can be taken from him. It cannot be done by mere legislation.”
He further says: “ It will be seen that the same measure of protection against legislative encroachment is extended to life, liberty, and property, and if the latter can be taken without a forensic trial and judgment, there is no security for the others.” See Smith’s Com. T22, § 593-4.
Judge Story says: “ This clause in effect affirms the right of trial according to the process and proceedings of the common law.” [444]*444Chancellor Kent says: “ The words, ‘by the law of the land,’ as used in Magna Charta, are understood to mean, ‘ due process of law.’ ” Justice Johnson, in The Bank of Columbia v. Oakey, 4 Pet. Cond. R. 443, says: “After volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, — that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained, by the established principles of private right and distributive justice.”
Judge Woodworth, in Woodcock v. Burnett, 1 Cowen, 740, says, “ It is one of the great principles upon which our security depends, under a government of laws, that no person shall be put out of his freehold or lose his goods or chattels, unless he be duly brought to answer, or be forejudged of the same by “ due course of law.”
Judge Tucker, in Kenny v. Beverly, 3 Hen. & Munf. 336, declares that the meaning and intention of the words is, “ that no man shall be deprived of his property without first being heard in his own.defence.”
Chief Justice Ruffin, in Hoke v. Henderson, 4 Devx. R. 15, affirms the same doctrine. And in Brown v. Hummel, 6 Barr, Penn. R. 87; and in Ervin's Appeal, 16 Penn. State R. 256, the Supreme Court of Pennsylvania most distinctly and forcibly lay down the rule as follows :
“By ‘ the law of the land’ is meant the law of an individual case, as established in a fair open trial, or an opportunity given for such trial in open court, and by due process of law. Not a bill of attainder, in the shape of an act of Assembly, whereby a man’s property is swept away from him without a hearing, trial, or judgment, or the opportunity of making known his lights or producing his evidence.”
And, in Ervin’s case, the same court adds: “ And Lord Coke says, that the words per legem terree-mean, by due process of law, and being brought into court to answer according to law. If government is interdicted from taking private property for public use, even without just compensation, how can the legislature take it from one man, and dispose of it as they think fit ? The great principle is,,that a man’s property is his own, and that he shall enjoy it ac[445]*445cording to his pleasure — injuring no other man — until it is proved, in due course of law, that it is-not his, but belongs to another.”
In Aaron Smith v. Burlingame, 4 McLean R. 498, the same principles are announced.
Mr. Blackwell, in his learned treatise upon Tax Titles, concludes his able review of the authorities on this point by saying, “It may be safely affirmed, as a principle of constitutional law, that the clause in question requires judicial, as well as legislative, action, before any person can be deprived of his life, liberty, or property.” See Blackwell on Tax Titles, 85-87.
Lord Coke says, that in all statutes declaring forfeitures, “ it is intended upon office found ; incidents are ever supplied by intendment.” 2 Inst. 201; Doulin’s case, 3 Coke’s R. 10; and Page’s case, 5 Coke R. 82. And the same doctrine was recognized in Fairfax v. Hunter, 7 Cranch, 603, 621.
Private property may be taken for public use only in one of two ways : by taxation, which becomes a debt to be enforced by “ due process of law,” or by just compensation first made; and this by virtue of our Constitution. See Thompson v. The Grand Grulf Railroad and Banking Company, 8 How. Miss. R. 246 ; The People v. The Mayor of Brooklyn, 4 Comstock, 422-424.
Lord Coke says, in commenting on Magna Charta: “Law' of the land means due course and process of law,” . . . . “ by indictment or presentment,” . . . “ or by original writ of the common law.” Institutes, 45-50; Smith Const. Law, § 594, p. 723.
Mr. Blackwell, in concluding his chapter on “ the fundamental principles which control the taxing power,” after having discussed the meaning of these phrases : “ law of the land,” “ due course, of lawr,” and “ due process of law,” in the several constitutions where they appear,«and using the language just quoted above, in the next paragraph thus proceeds: “ Such are the securities which the people, in the exercise of their inherent powers, have provided ' against legislative spoliation. ■ It will be seen that every individual has, in the Constitution, an absolute, complete, and perfect protection in the quiet use and enjoyment of his property, until it shall be judicially ascertained that he has violated some general law of the land, which authorizes a seizure and divestiture of his right thereto, for such violation. This is most clearly the true reading and expo[446]*446sition of the text of the Constitution. If, however, the requirements of the Constitution must yield to legislative usage in direct violation thereof, then of necessity, all legislative acts which conflict with these great fundamental principles, should be held in their construction and application to the most rigid scrutiny.
“ In concluding this branch of the subject it may not be considered improper to make a few suggestions in relation to the constitutional mode of enforcing the collection of taxes. The power to levy a tax properly belongs to the legislative power. The collection of it involves the exercise of judicial and executive functions.
“ The legislature levy the tax, direct that a demand shall be made upon the owner of the land for the tax charged against it; and if payment is refused, authorize the collector to seize the body or goods of the delinquent, and if satisfaction is not had in one or the other of these modes, power is conferred upon the collector to sell and convey the land itself. Now, before the power to sell the land can exist, under the law, the fact of the levy and nonpayment of the tax, the demand and return of no goods, or that the body cannot be found, must exist. These facts must be ascertained to exist, before the power of sale attaches. Whether the power to decide the question of delinquency is vested, by law, in the regularly constituted judicial tribunals, or in those specifically instituted for that purpose, or in the collector himself, can make no kind of difference; it is the exercise of judicial power, and the officer who sells, performs a judicial function. So that, in point of fact, the legislative, judicial, and executive departments of the government all aid in the execution of the taxing power. The legislature declare what facts shall constitute a cause of forfeiture; the judiciary ascertain the facts, apply the rule of law prescribed, and pronounce a judgment of condemnation. For these reasons it was suggested, by an eminent lawyer of Illinois, who has great experience in questions of this character, that ‘ no valid sale of land for the nonpayment of taxes, having the effect of divesting the owner of his estate, can legally take place, unless each of the three great departments of the government concur in the condemnation.’ After stating that, in accordance with this suggestion, the legislature of Illinois, in 1839, passed a revenue law, conforming to these requisites, and that similar statutes have been enacted in Tennessee, [447]*447Ohio, and Indiana, the author proceeds to say, ‘ no such power as that of selling land for the non-payment of taxes is to be found in the revealed, natural, civil, or common law. But there are analogous powers to be found in the common law code, and in the statute law of every civilized nation; for example, the power to condemn land for public uses, and in other cases where power is exercised over the estates of the citizens, such as the sale of land for the payment of the debts of the owner. In all these cases judicial proceedings intervene. The Constitution declares, that private property may be taken for public use upon making just compensation. The legislature direct the laying out of a public highway. Before the title of the owner is divested, a regular judicial inquiry takes place; the question, whether the use is a public one, or whether it is a mere legislative pretence, to divest the title of the owner and confer it upon a favorite, and what compensation shall be made to the owner, as an equivalent for the loss of his estate, are all inquired into, and judicially ascertained and decided, after due notice and hearing. So in every case where the title to real or personal property is sought to be divested, under the general laivs of the land, judicial proceedings always intervene. There is no difference, in principle, between the power of taking land for public use, and the power to tax and enforce its collection by a sale of the land. In both cases the land is taken for the use of the public, — they differ only in degree. Why, then, should not the same solemn forms be pursued in the one case as in the other? The only answer is ‘State necessity, and immemorial usage.’ The former demands, and the latter sanctions this departure from the letter and spirit of the Constitution.”
The author then proceeds to cite and quote from the cases furnishing this answer, and then adds: “ Thus it will be seen that all of the cases concede, that the summary exercise of this power is against the spirit of the Constitution, but defend it upon the ground of immemorial usage and State necessity. But, to use the emphatic language of the Supreme Court of Missouri, ‘This very necessity begets another necessity, that in the execution of such a power the law shall be strictly and punctiliously complied with, in all of its requirements.’ ”
The author then closes the chapter by showing the distinction [448]*448between a tax and a penalty for the non-payment of taxes. However the former might be justified by “ State necessity,” in the latter “ a jury must decide upon the supposed infraction, before the penalty can be inflicted.”
The concession that the summary exercise of this power, in either case, is against the letter or spirit of the Constitution, would be conclusive against it. We regard these provisions in the Constitution as intended to guard the rights of the people against unlimited power, nowhere more dangerous than in a popular government, and in no particulars so much needing restraint as in those embraced in the ancient doctrine of eminent domain. This whole doctrine of eminent domain had its origin in the system of feudal tenures, in England; a system of servitude and inequality, which, if it had ever had an existence in this country, would have been annihilated by the very first section of our Declaration of Rights. Mr. Kent, in his Commentaries, vol. 4, p. 137 (9th ed.), says: “ The doctrine of estates upon condition, in law, is of feudal extraction, and resulted from the obligations arising out of the feudal relation. The rents and services of the feudatory were considered as conditions annexed to his fief; and, strictly construed: if the vassal Avas in default, by the non-payment of rent or non-performance of’ any feudal duty or service, the lord might resume the fief, and the rents and services Avere implied conditions inseparable from the estate.”
It ay ill be seen, therefore, that a doctrine originating in barbarity and plunder, by Avhich conquering generals allotted or granted to superior officers large parcels or districts of land, and they in turn dealt them out again in smaller parcels, to inferiors, upon condition of services “free” and “base;” a doctrine founded in the subjection of the citizen to almost absolute servitude, by special contract; a doctrine wholly opposed to the principles of personal freedom as Avell as the security of private property, — can have no application, either in fact or theory, to a government like ours. Property here is held by no such tenure; nor is it held of any superior. It is not derived from the State, and if it were, it could be held, under nur system, upon no such conditions. The Constitution, in full vieAv of this whole doctrine of feudal tenures and its degrading incidents, free and base services, forfeitures and villan-age, and their tendency to degrade and impoverish the citizens at [449]*449the will of the sovereign or superior, at one blow overturned the whole system, by constituting every man a part of the sovereign power, establishing equality of rights, and making government the servant, instead of the master of the people. To hold now, under such a constitution, that the citizen who labors for his money and by the arts of enlightenment and civilization purchases a tract of land of the Government of the United States by a written contract, or patent, or derivatively of its vendee or grantee, or even of the State of Mississippi itself, conveying an absolute title for a full consideration paid, without any condition expressed on its face, holds that land upon the condition annexed to every grant by the doctrine of feudal tenures, or upon any condition not expressed in the deed, or grant itself, is a doctrine belonging to the past ages,— of legal fictions and the divine right of kings, and not to this day of written constitutions, declaring the sovereignty of the people and the servitude of governments. Indeed, even under the doctrine of feudal tenures, no such arbitrary power as that set up for the State (by legislation alone, to appropriate to itself the property of the citizen for non-payment of tax), existed. Chancellor Kent says on this subject, vol. 4, p. 138: “ The remedy for breach of the condition was confined to the resumption of the estate, by the donor and his heirs, and that resumption was required by the just interposition of the law, to be by judicial process,” and for this he cites Wright on Tenures, 196, 199, and Butler’s note, 84, to Co. Litt. lib. 3.
I am not insensible of the novelty, in some respects, of the views here presented; nor of the many opinions of able and .experienced jurists, in other States, announcing different views and conclusions. It will be observed, however, that they have all been constrained to abandon the great highway of reason and argument, and at last to plant themselves upon the plea of “ necessity,” or this feudal right of forfeiture, founded on the false assumption of the relation 'of lord and tenant, or feudatory, and the right of resumption of the freehold growing out of it, for breach of the supposed conditions of an original grant, which never existed.
For my own part, with all becoming deference to the great minds, whose province it is not only to enlighten, by their wisdom and learning, but sometimes to enslave, by their authority, my reason [450]*450will not allow me to give my sanction, as a public officer, to doctrines so subversive, in my humble judgment, of the principles and theory of our republican, constitutional governments. It would be an abandonment of duty as well as reason, were I, under such circumstances, to resign my right and obligation .of independent thought and opinion, which, I may add, it is not the least commendation of the noble profession of the law, that it inspires, encourages, demands.
Nor am I less sensible of the weight of legislative precedents, which are invoked to sanction the exercise of the power in question. To bring the Constitution, however, to the test of legislation, instead of legislation to the test of the Constitution, in judicial investigation, would be to abrogate all restraint, and make the Legislature more omnipotent than Parliament. I am equally impressed with the force of the argumentum ab inconvenienti in doubtful cases, where great public inconvenience or damage is to result. But here, in my judgment, it is a plain conflict between constitutional right and legislative power. In such a conflict, indifference, hesitation, timidity, is judicial conspiracy against private right. I cannot therefore yield my conviction of duty to “ public necessity,” if such necessity existed. It is not the province of courts to make, but to construe constitutions and laws.
But, in my judgment, there is no such “ necessity,” no such inconvenience. A plain and ready, even summary mode, for the collection of taxes due the government, is in the power of the legislature, without resort to the extraordinary, arbitrary, and oppressive remedy of taking the land of the citizen, by mere declaration of legislative forfeiture.
The power to levy the tax, undoubtedly belongs to the legislature ; the collection involves the exercise of executive and judicial functions. For this purpose, the Constitution authorizes the legislature to create inferior courts, of special and summary jurisdiction, who give notice as directed, actual or constructive, fix the day for hearing, and decide judicially the charge of delinquency ; also, to create ministerial officers, whose business it shall be, speedily, without delay, to execute the judgments thus pronounced, by a sale of the delinquent’s property. Where, then, the excuse for this claim of “necessity f” That the jurisdiction to hear and deter[451]*451mine, after notice by summons, or publication at a time specified, is vested in the tax assessor, does not make its exercise, the less a judicial power.
In this manner, the Constitution is vindicated and upheld; the “law of the land,” or “due course of law,” or “due process of law,” observed and followed, — a law which hears before it condemns, — which proceeds upon inquiry, and renders judgment only after a trial.
And in this manner, no man’s estate is taken from him without notice, by legislative judgments, decrees, and forfeitures, in the face of a written constitution to the contrary. That a different rule may have obtained in other States, under other and different systems, would not even be persuasive, as precedent, unless it were further shown that their constitutions were in all respects, on this subject, like ours; and even then I confess that, with me, the day has long since passed when such precedents are authoritative, except by the force of the reasoning they employ. I regard it as the crowning merit of legal science, that it measures its judgments by the test of reason; by established principles, having their foundation deep laid in the sanctions of the human mind and human heart, and not by the uncertain standard of a supposed “ public necessity,” unanswerable as an argument, and illimitable as a source of power, because despotic.
The independence and searching analysis of thought it generates; the firm reliance upon reason and established principles it teaches and inspires; the just regard for the rights of the suitor, whether an infant or an empire, which distinguish the judgments of enlightened jurists, — have made the law, as a science, everywhere the companion and friend of constitutional freedom and equality, as well as the efficient agent of constitutional government.
Sanctioned and established by reason-, addressing itself to the enlightened judgment and conscience, precedent is of universal authority and obligation as a guide for judicial action. But when extorted by a supposed “ necessity,” to which reason and established rules are made slaves, they are only to be followed when they cannot be shunned.
Regarding the act in question as an assumption of executive and [452]*452judicial power by the legislature, divesting the defendant of his property, without “due course of law,” or without “just compensation first made,” by a simple act of legislation, without hearing, without inquiry, without notice, it is in my judgment in violation of our organic law, and therefore void.
It follows that the title conveyed to the plaintiff, under and by virtue of this act,’ is also void, and cannot therefore support his . action. The judgment below, in this view, was correct, and should therefore be affirmed, in my judgment.