THE REVIVAL OF NATURAL LAW CONCEPTS A Study of the Establishment and of the Interpretation of Limits on Legislatures with special reference to the Development of certain phases of American Constitutional Law BY CHARLES GROVE HAINES Professor of Political Science, University of California at Los Angeles HARVARD UNIVERSITY PRESS CAMBRIDGE, MASSACHUSETTS 1930 LONDON : HUMPHREY MILFORD OXFORD UNIVERSITY PRESS PREFACE THE investigation of the practice of the review of legislative acts by the courts to test their conformity with the provisions of written constitutions has involved the consideration of theories of natural law and of ideas of superior fundamental laws. These theories and ideas are closely related to doctrines of higher or superior laws which have accompanied the growth of legal systems. Due to the importance of such ideas in public law and in the development of limits on the different branches of modern governments, a study has been made of the main stages in the evolution of higher law concepts. A considerable part of the study is devoted to the significance of natural law ideas in the interpretation of the state and federal constitutions in the United States, where natural law doctrines have been extensively applied. The review of the growth of natural law ideas and the presentation of representative opinions of European publicists are intended to aid in the interpretation of American theories and as a perspective to evaluate some modern tendencies in constitutional development in the United States. It is evident that the concepts of natural law and of fundamental law are frequently associated. Though natural law may be thought of with little relation to the notion involved in fundamental laws, and fundamental laws may be conceived unrelated to natural law, it is customary at various stages of such analyses for one idea to merge into the other. Carlyle, in speaking of the views of the Roman jurists on natural law, doubted whether any of the lawyers had very clear conceptions upon the matter. As a matter of fact all theories of natural law have a singular vagueness which is both an advantage and disadvantage in the application of the theories. Philosophers emphasize the fact that such a term as natural law is a value concept and the result of an attitude -- an attitude which presupposes certain psychic processes. Such value concepts are in one sense subjective, and in another sense they have a normative objectivity. It is beyond the scope of this treatise to deal with the philosophical and psychological processes which underlie natural law thinking. The purpose is to present different types of theories in their legal development and to note their applications by jurists and lawyers. Articles by the writer relating in part to this subject have appeared in the Yale Law Journal, Illinois Law Review, and the Texas Law Review. The portions used from these articles have been rewritten in a continuous account with the exception of extracts from the Texas Law Review which are reprinted with some minor changes by permission of the editors. In the presentation of ideas relating to natural law in European countries, I have received invaluable assistance from Professor Georgio del Vecchio, Rector of the University of Rome, and Professor Louis Le Fur of the Faculty of Law of the University of Paris, who have favored me with very useful Italian and French publications relating to natural law. In addition I have been accorded the privilege by authors and publishers to translate and reprint portions of the works of European authorities on natural law. I take pleasure in expressing my appreciation for aid received from Dean Roscoe Pound, who has frequently indicated in books and in articles the influence of natural law concepts in the development of American law. CHARLES GROVE HAINES Los ANGELES, CALIFORNIA November, 1929 CONTENTS PART I A SURVEY OF THE DEVELOPMENT OF NATURAL LAW DOCTRINES I. ANCIENT AND MEDIAEVAL NATURAL LAW THEORIES . . 3 1. Graeco-Roman Concepts ............ 4 2. Natural Law in the Middle Ages ......... 12 3. Theories following the Reformation ........ 17 4. Types of Natural Law Ideas in Ancient and Mediaeval Times ................. 24 II. ENGLISH HIGHER LAW DOCTRINES .......... 28 1. Natural Law Ideas and English Doctrines relating to Fundamental Laws .............. 29 2. Natural Law and the Doctrine of the Supremacy of the Law ................... 32 3. Evidences of Natural Law Ideas in Judicial Decisions 39 4. Types of Natural Law Theories applied in English Law..................... 43 5. Differences between the Anglo-American and the Continental Legal Points of View ........ 44 III. AMERICAN AND FRENCH NATURAL LAW DOCTRINES . . 49 1. Transition from Natural Law Doctrines to Theories of Natural Rights ................ 49 2. American Theories of Natural Law and of Inalienable Rights ................... 52 3. French Natural Law Concepts .......... 59 4. The Decline of the Natural Rights Philosophy ... 65 PART II THE ACCEPTANCE OF NATURAL LAW OR SUPERIOR LAW CONCEPTS IN THE PUBLIC LAW OF THE UNITED STATES IV. JUDICIAL CONSTRUCTION or IMPLIED LIMITS ON AMERICAN LEGISLATURES ................. 75 1. Denial of the Application of Natural Law Concepts . 75 2. Natural Law Theories in the Formative Period of American Law ................ 77 3. Higher Law Theories as a Sanction for the Establishment of the Review of Legislative Acts by Courts 80 4. Limits on Legislatures resulting from the Nature of the Social Compact and from the Nature of Free Republican Governments ............ 86 5. Construction of Limits on Legislatures to protect Vested Rights ................ 88 6. The Main Purpose of the Establishment of Express and Implied Limits on Legislative Powers .... 95 7. A Reaction from the Federalist Doctrine of Limiting Legislative Activities ............. 97 8. The Return to the Former Natural Law Theories . . 99 V. NATURAL LAW THEORIES AND DUE PROCESS OF LAW . . 104 1. Divergent Views on the Meaning of Due Process of Law..................... 104 2. Due Process of Law as applied by the Justices of the State Courts prior to 1870 ........... 108 3. Cooley's Efforts to extend the Meaning of Due Process of Law........ ......... 116 4. Economic and Legal Bases for a Revival of Natural Law Thinking ................ 117 5. Due Process of Law made an Agency for the Maintenance of Reactionary Tendencies ........ 122 PART III THE FOURTEENTH AMENDMENT AND NATURAL LAW THEORIES VI. THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION AND DUE PROCESS OF LAW ...... 143 1. Period of Restricted Interpretation ........ 145 2. Economic and Political Pressure brings about a Change in Supreme Court Decisions .......... 149 3. Reversal of the Former Opinions on the Meaning of Due Process of Law .............. 154 (a) Due Process of Law applied to the Procedure in the Regulation of Public Utilities ...... 154 (6) Due Process of Law and Liberty of Contract . . 160 VII. THE DEVELOPMENT OF A GENERAL RULE OF REASON TO DETERMINE THE VALIDITY OF LEGISLATIVE ACTS . . 166 1. Arbitrary Legislative and Administrative Acts are Void .................... 166 2. Acts Contrary to Fundamental Rights are Void . . 172 3. Police Regulations must be Reasonable ...... 177 4. Results of the Extension of the Meaning of Due Process of Law ................ 182 5. Some Examples of Higher Law Concepts in Recent Supreme Court Decisions ........... 185 VIII. NATURAL LAW DOCTRINES AID IN CHANGING THE BASIS FOR JUDICIAL REVIEW OF LEGISLATIVE ACTS ..... 196 1. Conservative Doctrines and Judicial Review of Legislation .................... 198 2. Underlying Purpose of the Revival of the Natural Law Philosophy in American Constitutional Law . 210 3. Types of Natural Law applied in the United States . 216 Appendix ... ............... 232 PART IV THE REVIVAL OF DROIT NATUREL, NATURRECHT, AND SUPERIOR LAW DOCTRINES IN THE JURISTIC PHILOSOPHY OF EUROPEAN WRITERS IX. THE BACKGROUND FOR RECENT THEORIES OF NATURAL LAW AND THE GERMAN DOCTRINE OF A "RECHTSSTAAT" 237 1. Continuance of Natural Law Theories in Europe . . 237 2. German Doctrine of a Rechtsstaat ......... 245 3. Current Views Relating to Natural Law in Germany 246 X. FRENCH THEORIES RELATING TO SUPERIOR LAW: HIGHER LAW DOCTRINES OF KRABBE .......... 252 1. Views of Saleilles and Charmont ......... 252 2. Views of Duguit and Hauriou .......... 260 3. Higher Law Doctrines of Krabbe ......... 274 XI. REVIVAL OF NATURAL LAW IN METAPHYSICAL AND THEOLOGICAL SPECULATIONS; NATURAL LAW THEORIES AND INTERNATIONAL LAW ............ 278 1. Natural Law Doctrines of Del Vecchio ....... 279 2. Theological Interpretation of Natural Law by Victor Cathrein .................. 286 3. Metaphysical Doctrines of Geny ......... 288 4. Natural Law Theories and International Law ... 294 5. Theories of Natural Law Prevalent in Europe ... 302 PART V SIGNIFICANCE OF THE REVIVAL OF HIGHER LAW CONCEPTS IN THE PUBLIC LAW OF EUROPE AND OF AMERICA XII. OBJECTIVES IN THE MODERN REVIVAL OF NATURAL LAW THINKING .................. 309 1. Natural Law as a Device to introduce Ethical Concepts into the Law .............. 310 2. Natural Law as an Ideal or Philosophical Standard . 316 3. Higher Laws to guide Judges as Legislators..... 323 4. Higher Law Theories as a Basis for Limits on State Sovereignty .................. 331 5. Limits on the Power to amend Constitutions in America due to Fundamental Principles and Rights 336 6. Concluding Comments ............. 342 BIBLIOGRAPHY ..................... 353 TABLE OF CASES .................... 373 INDEX ........................ 381 PART I A SURVEY OF THE DEVELOPMENT OF NATURAL LAW DOCTRINES CHAPTER I ANCIENT AND MEDIAEVAL NATURAL LAW THEORIES THE conviction that there are superior principles of right, or higher laws to which the ordinary civil rules made by man must conform and which necessarily place limits on the operation of such rules, is one of the most persistent ideas in the evolution of legal thought. There have been times when the import of higher law concepts has been discredited or their directive force in legal growth has been concealed by a different terminology. But legal ideas have seldom been free from superior law influences. Though the significance of this conviction in the growth of systems of law has been examined frequently by exponents or critics of natural law theories, the consideration of the ideas therein involved never ceases to be of interest. Current tendencies in the legal thought of Europe and of America render it appropriate to review once more certain applications of these higher law concepts, and to consider their purport in giving direction to various processes of modern legal adjustments. Only some representative uses of these ideas in Europe may be considered as a basis for comparison and contrast with their pervasive applications in the public law of the United States. The best-known and most influential form of the higher law doctrines centers around the term "natural law" or "law of nature."[1] 1. Graeco-Roman Concepts. Few terms in the history of law have had such a variety of meanings as the "law of nature" or "natural law." This phrase is not only used differently by writers in the same period but is also not infrequently employed in either a confused sense or with varying connotations by the same writer.[2] And, as with most legal expressions, it has conveyed divergent ideas in various stages of legal history. Because of the variety of meanings attributed to the term, efforts have often been made to discredit its use and to discard references to it in relation to legal phenomena. Thereby it was thought clear thinking might be facilitated. It remains to be seen whether such efforts have attained the desired object. A summary of some of the more common uses of this term forms a necessary background for a consideration of the modern revival of natural law thinking. There have been times when the term "law of nature" has been thought of as comprising a customary law of divine origin. Such a divine origin of law tended in early Greece to foster a distinction between laws which were fundamental as in accordance with nature or ancient custom, and the conventional rules resulting from ordinary human enactments.[3] The historical background of natural law concepts has been so frequently analyzed that it seemed unnecessary to attempt to retrace it again, and it is not the purpose of this study to treat in detail the evolution of such ideas. A succinct summary will indicate the stages through which natural law concepts have passed since the time of the Greeks. The distinction between the laws made by man and laws which are in accordance with nature or of divine origin may be traced in the works of many Greek writers.[4] Throughout much of Greek thought there was a contrast between fusiV (or phusis) -- a process of growing in the physical sense, and nomoV (or nomos) -- man's formulation of rules regarding such growth.[5] Early Greek philosophers speculated chiefly about the physical universe, but the Sophists directed attention toward the state and its relations to individuals.[6] With the Sophists the man-made nomoi were likely to be contrasted with the universal laws emanating from the gods.[7] Sophocles, who refers at various times to the notion of higher laws, has Antigone say, in defence of the charge that she had wilfully disobeyed the king's orders: "Nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of today or yesterday, but for all time, and no man knows when they were first put forth."[8] The distinction between natural law, which is universal and divine, and positive law, which is local and human, is attributed to Hippias by Plato in the Protagoras.[9] As politics and ethics were to the Greeks nothing more than two phases of the same formula it was to be expected that chief interest would be manifested in the ethical phases of the natural law concept. The Greek idea of law being primarily "a coherent interpretation and reasoned revision of custom" it was inevitable that principles and rules of reason should predominate in this interpretation.[10] Aristotle put the distinction between fundamental and ordinary laws into a standard formula which has greatly influenced subsequent legal thought. To Aristotle justice was either natural, as in accordance with nature, and hence universal; or local and conventional, as applicable to a particular place.[11] The higher law, as Aristotle conceived it, was unwritten, universal, eternal and immutable, and in accordance with nature. He divided law into that which is common, being in accordance with nature and in force everywhere, and that which is peculiar to each separate community. When an advocate was pleading a cause and found the positive law was against him, Aristotle suggested that he might then appeal to the law of nature as rendering the act void.[12] Thus a basis was laid in philosophic thought for a dualism between the customary, natural, and universal in law, and the local, conventional, and ordinary enactments of a separate group of men. It was this dualism to which mediaeval thinkers recurred when they sought to contrast the natural and divine laws with the civil laws of a particular time and place, and to which later jurists have turned when some standard was sought to test the value or efficacy of existing positive laws. The Greeks perceived rather vaguely the ideal of fundamental laws as now understood and they instituted a unique plan for the guardianship of such laws. This was in the form of an action against the proponent of a measure or an action to secure annulment of the act. If the action was instituted within one year of the enactment of the law, proceedings could be brought against the proponent of the measure, but if instituted later the process applied only to the annulment of the law. The action might be brought "for infringement of legal rules, neglecting forms of procedure or some regulation bearing on the legislative process."[13] In their efforts to establish a rule of law based on the ancient customary rules the Greeks regarded certain laws of such permanence that it was a matter of serious public concern to change them.[14] The idea of the sovereignty of law was one of the fundamental principles of Greek thought;[15] it prevailed widely during the Middle Ages; and it was transmitted to modern times in the form of theories of the supremacy of law or of the reign of law. Though the Greeks were among the first to formulate ideas of natural law the Romans made more use of such theories and put their views along this line into more enduring forms. The first indications of the application of this concept are to be found in the work of the praetors. In the development of a law relating to the commercial dealings between citizens and aliens, where formerly only the principle of bona fides or good faith prevailed, the praetor peregrinus gradually built a legal system based on reason and common sense.[16] The praetor, by means of the edict and through his right to refuse an action worked out an equitable law -- the jus gentium -- which tended to displace the rigors of the jus civile.[17] It was in this connection that the doctrine of jus naturale became associated with the growth of the Roman law. Though jus naturale was seldom used in this period of Roman law the term served to give sanction to the jus gentium as a universal system of law which was gradually superseding the jus civile.[18] Thus principles of natural law or natural justice found their expression in the hands of the judge and the practical administrator rather than in the writings of political philosophers. It is interesting to see that at times when legal thinkers attached little weight to such principles they formed convenient sources for the extraction of new legal ideas by those who found the law too harsh and too formalistic in its applications. As the Roman law developed into a coherent system the three main sources of its growth were legislation, administrative edicts, and juristic reasoning. It was in juristic reasoning that natural law concepts were extensively used, for the authority of the opinions of the jurists in their responses depended upon the reasonableness of their comments. As a basic concept for a jus gentium or universal law, natural law was extensively applied in connection with the Stoic philosophy and with the application of Stoic principles in the Roman law.[19] Zeno, the founder of Stoicism, has a remarkable passage extolling natural law as the eternal and universal law of God governing and directing all things. The Stoics emphasized the ethical side of Aristotle's conception of natural justice and considered it as a guiding principle immanent in the universe. This immanent principle was reason and its expression was natural law.[20] To Cicero, who became an advocate of Stoic doctrines, the law of nature became the source and limit of all rights.[21] The best exposition of Cicero's view is as follows: Of all these things respecting which learned men dispute there is none more important than clearly to understand that we are born for justice, and that right is founded not in opinion but in nature. There is indeed a true law (lex), right reason, agreeing with nature and diffused among all, unchanging, everlasting, which calls to duty by commanding, deters from wrong by forbidding.... It is not allowable to alter this law nor to deviate from it. Nor can it be abrogated. Nor can we be released from this law either by the senate or by the people. Nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter; but the same law, everlasting and unchangeable, will bind all nations and all times; and there will be one common lord and ruler of all, even God, the framer and proposer of this law.[22] To Cicero civil laws were merely the application of this eternal natural law. He also emphasized the natural equality of men in contrast with the Aristotelian theory of inequality and thus foreshadowed one of the interesting ideas of the Roman jurists. The Ciceronian conception of the law of nature was to exert a formative influence on legal thought for the succeeding centuries, but it was modified in its transmission by the form into which the concept was put by the Roman jurists and incorporated in the Digest and Institutes of Justinian. The Roman lawyers accepted the Greek conceptions of natural justice and natural law and applied them as a means of legal reform. To these conceptions may be traced some of the significant ideas of the Roman law relating to equity. Gaius considered the jus naturale as virtually equivalent to the jus gentium, which was recognized through reason as a body of principles, universal and equitable in their applications.[23] For him natural law was a body of principles recognized through the reason as useful and just. Ulpian and other Roman jurists seemed vaguely to distinguish between the jus naturale and the jus gentium, the former partaking more of the primitive and instinctive rules applicable to all life, and the latter, of the conventional rules of mankind at a given time and place.[24] Thus the later Roman jurists regarded slavery as contrary to the jus naturale, since men by the law of nature are born free and equal,[25] but as sanctioned by the jus gentium. By the time of Justinian the jus naturale had come to mean a body of ideal principles which men could rationally apprehend and which included the perfect standards of right conduct and of justice.[26] The compilers of the Institutes attempted to discriminate between the rules and instincts common to animals -- the jus naturale; rules common to all mankind -- the jus gentium; and the particular rules of a community -- jus civile. This classification, though merely suggested by Roman commentators, was followed with scrupulous care by certain mediaeval jurists.[27] Later civilians, like the older jurists, used natural law vaguely and sometimes in an ambiguous way, referring perchance to rules arising from animal instincts, to a common law created by man and corresponding to the jus gentium, or in Christian thinking to the laws of the Bible. But from some statements in Justinian's Institutes Carlyle concludes that "by the sixth century the phrase was certainly taking that meaning which it has throughout the Middle Ages and later -- that is, that the jus naturale means that body of principles of justice and reason which men can rationally apprehend, and which forms the ideal norm or standard of right conduct and of the justice of social institutions."[28] All were agreed that natural law was immutable and not subject to change by civil enactments. It is well to note that two ideas which become prominent in the later stages of the growth of natural law concepts, namely, a primitive state of nature and, arising therefrom, a natural freedom and a natural equality, are the peculiar results of Roman legal thought in the Lower Empire. It was not until the mediaeval period, however, that the philosophy of natural law was given a dominant place in legal thinking. 2. Natural Law in the Middle Ages. A significant development of the concept of natural law is to be found in the Middle Ages, when the theories of Cicero and of the Roman jurists were adapted to the teachings of Christianity. In the writings of the philosophers and of the jurists of this period the concept of natural law was uppermost. The theory gained in significance by its association with the concept of a state of nature which had been recognized by some of the later Roman jurists.[29] Primary consideration was given at this time to divine laws or to what were regarded as the eternal laws of the universe, over which man had no control. But subordinate to these divine and eternal laws was the law of nature. That the theory of natural law was given an important place in early Christian thought may be gathered from the writings of Origen, St. Ambrose, and St. Jerome. Referring to a passage of St. Paul (Rom. ii, 12-14) they spoke of natural law as equivalent to the law of God and as universal in contrast with the written laws made by man.[30] But it was Isadore of Seville who formulated a view of natural law which through the Decretum of Gratian became a part of the Canon Law. He recurred to the analysis of Ulpian and the Roman jurists and classified law as jus naturale, jus civile, and jus gentium with this difference, that jus naturale became the common law of nations without any reference to animal instincts.[31] In other respects he followed closely the Roman doctrines of the Code and the Institutes and thus gave these doctrines a primary position in mediaeval legal thought. Gratian introduced a distinction which became basic in the Canon Law -- natural law was identified with divine law and human law with custom; the jus gentium and the jus civile were included under the latter.[32] "To the mediaeval canonist, then, as to the Fathers," says Carlyle, "the jus naturale is identical with the law of God, it is embodied in the 'law and the Gospel,' for it represents the general moral principles which God has implanted in human nature, and it is, in its essential character, immutable." It is true that it is set aside by some of the legitimate institutions of society, but this is to be explained as a necessary accommodation to the corrupt state of human nature, and is justified by the ultimate purpose of setting forward the principles of the jus naturale. The jus naturale is to the canonists the norm by which any law or institution must be justified.[33] The great philosopher of the Middle Ages, Thomas Aquinas, distinguished the eternal and divine laws as forming a part of the universe and as emanating from God, from natural laws which were the result of the participation of man as a rational creature in applying to human affairs the eternal law by which he distinguished between good and evil. To Aquinas the particular rules of the lex naturalis were not immutable. As rational laws designed for human ends, they were subject to change as human conditions varied.[34] The mediaeval churchmen invariably identified nature and reason with a personal God and law and rights emanated from his will. Following the method of Thomas Aquinas, the current divisions of law were: divine, natural, and positive. Mediaeval jurists usually accepted the tripartite division of law, suggested by Roman thinkers, into natural law, law of nations, and civil law. Through commentaries on the Institutes, such as that of Azo, the Roman classification was applied to the peculiar conditions of the Middle Ages. In the main they used the phrase jus naturale as meaning a body of principles, which may be rationally comprehended and which are immutable. In due course the jus gentium was thought of as the customary law of mankind and the jus civile as the customs of a particular community. Mediaeval legal doctrines were based essentially on superior legal concepts which regarded law in its origin as of equal rank with the state and as not depending on the state for its existence. The idea persisted for centuries that the end of the state is the attainment of justice and that civil authorities act legitimately only when they follow the principles of justice. Mediaeval thinkers believed that it was the purpose of the state to realize the ideas of law and "it was never doubtful that the highest Might, were it spiritual or were it temporal, was confined by true limitations."[35] Customs as well as enactments in order to be valid in mediaeval times were expected to be reasonable, which for the standards of that day meant in harmony with divine reason. Estimates of reasonableness were made by a triple standard applied with varying degrees of effectiveness: (a) revelation or the laws regarded as given directly from God; (b) church law, as embodied in the papal decrees or the canonical codes; and (c) natural law, conceived as common to the natural sentiments of man. As strengthening the mediaeval concept of the law of nature as law, it is important to recognize that in this age there was little legislation in the modern sense. Enactments were usually designed to affirm existing rules or customs or to remedy abuses in administration.[36] To the mediaeval jurists and theologians, with such exceptions as St. Augustine and St. Gregory, law was an expression of the principles of justice and all governmental agencies were subservient to these principles. So important was this factor in mediaeval life that to understand legal thought it is regarded necessary to disregard the ordinary conception of a sovereign, the commands of whom are considered as law.[37] Civilians thought of law, not as the creation of human will, but as the application of principles or customs. Along with the almost universal belief in the divine origin of political power and with the insistence on unlimited obedience to civil rulers because their authority came from God, there was a growing demand that for kings to be assured obedience they must rule justly and according to law.[38] Such political theorists as John of Salisbury and Althusius developed the distinction between a king who ruled legitimately according to law and a tyrant, who was guided by his individual whims.[39] A theory of the election of rulers was advocated which would render it possible to depose a tyrant. In the theory of the election of the ruler and in the requirement that he govern justly lay the germs of the later notion of a social contract, as the foundation of civil government. There was prevalent at this time a conception of an inflexible code, emanating from the divine will interpreted and applied through the light of reason, and from this conception came the doctrine that the higher laws of reason or of nature controlled the lower laws or enactments of man. Sometimes a distinction was made between certain immutable principles and rules derived therefrom, which were subject to change.[40] In practice natural law might be referred to as a guide to interpretation or in certain instances it might be appealed to where no rule of law had been declared. All laws in conflict with natural law, it was urged, must be considered void.[41] A change in viewpoint preceding the period of the Reformation may be illustrated by William of Ockham's classification of natural law as (a) Universal rules of conduct dictated by natural reason. (b) Rules which would be accepted as reasonable without any positive law. (c) Rules which are arrived at by deduction from the precepts of the law of nature and are liable to change by positive enactments.[42] Rules of the third class were eventually referred to as the secondary laws of nature. 3. Theories following the Reformation. Not until after the Reformation were philosophers able to detach natural law theories from ideas of God and to find their source in an impersonal human reason. This detachment was hastened and the doctrine of natural law was given wider currency through the writings of Albertis Gentilis[43] and of Hugo Grotius. Spanish jurists in the sixteenth and seventeenth centuries, antedating the work of Grotius,[44] formulated a theory of a supreme and immutable law of nature, changeless by God himself and based on "a state of nature antecedent to the state of corruption, and thus affording the type of perfection for all actual societies."[45] The mediaeval theological concept of the law of nature had its culmination in the philosophy of Saurez wherein the law of nature became an inflexible code willed by God and interpreted by reason. All enactments civil or religious which contravened this law were ipso facto void.[46] The Spanish jurists also fostered the belief in the natural rights of man, which it was the duty of the state to protect. These rights were thought to arise from a natural condition of equality in which the faculties inherent in men were to have a free opportunity for development.[47] To Grotius, who put in a form which became more popular the theories of Vittoria, Suarez, and Gentilis, the emphasis was placed on natural right, which was "the dictate of right reason, indicating that any act, from its agreement or disagreement with the rational nature has in it moral turpitude or moral necessity; and consequently that such act is forbidden or commanded by God, the author of nature." Grotius distinguished the law of nature, which was unalterable even by the Deity, from positive law and from the law of nations[48] and divided it into divine rules ordained by God and rules prescribed by man.[49] He and his successors made use of the law of nature theory in formulating the basic principles of international law,[50] and for a long time natural law and the law of nations were thought of as closely related. Building on natural law as a source and sanction of legal rules mediaeval jurists laid the basis for the concept of inborn and indestructible rights belonging to the individual as such. Roman thinkers, such as Seneca, had suggested that men in their natural state were free and equal.[51] The Church Fathers accepted this theory and tried to explain the differences and inequalities in human conditions as due to the fall of man and the consequent conditions of sin. Doctrines of freedom and equality were made an integral part of the law of nature by the canon lawyers. With the development of the sense of individual personality which became a feature of Christian thought during the Middle Ages and was fostered by church reformers, similar ideas were considered a part of an individual's right and heritage. To ecclesiastical thinkers men were equal in the eyes of God; to the anti-clericals they were equal in the eyes of men.[52] In the natural law of this period lurked the germ of revolution, for on the basis of these precepts the whole structure of the state was subjected to criticism from the rationalist point of view. Catholics vied with Protestants in formulating a philosophic background for limiting the powers of the state.[53] To both, the primary rules of natural law were above all earthly rulers. The law of nature used by the church to support the Catholic morals and faith was found to be a convenient weapon to oppose the church in setting over against canonist decrees the rules of life discovered by human reason. In the conflict between the Empire and the Papacy, then, both disputants made frequent use of the law of nature. Mediaevalists agreed on the existence of natural law; they differed merely as to its force and effectiveness. To some a statute or an executive act which violated natural law was void; to others, interested either in the claims of kings and princes to be sovereign in the civil domain or in the idea of popular sovereignty, natural law comprised guiding principles, directive only in the processes of lawmaking. At the same time that men were engaged in discovering new grounds for limiting political authority, an ingenious Frenchman, following the lead of the Italian, Machiavelli, was formulating a theory of sovereignty which was destined to leave small place for the laws of nature. Recognizing a condition wherein the state as represented by an absolute king accountable only to God was claiming omnipotent authority, Jean Bodin developed a theory of sovereignty suitable to the times. To him the sovereign must be absolute and can be fettered by no human laws. He admitted that there were superior laws of morality and religion to which princes were bound but for breaches thereof they were accountable to God alone. Thus Bodin furnished the broad outlines of a theory which was accepted and elaborated upon by Hobbes, Spinoza, and Austin. Later developed by modern schools of legal philosophy it ultimately weakened the respect for, and largely replaced the law of nature theories of mediaeval times.[54] "Natural law," "natural rights," and "natural justice," during most of the Middle Ages, were terms which were often used interchangeably. Thomas Hobbes undertook to distinguish between jus naturale as a natural right and lex naturalis as natural law. To him a natural right was a liberty possessed by every man in a state of nature, of doing what seemed best for the preservation of his existence. Natural law, on the other hand, was a body of principles or restraints which were devised by reason to make life secure. The philosophy of Bodin, Hobbes,[55] and Spinoza tended to discredit the old natural law ideas and to make the state the sole source of law. They repudiated the legal significance of the "idea of natural law which aimed at finding a higher written law, above the rule promulgated by the state, to which this rule must accommodate itself so far as it aims to be, not a mere command of force, but an ordinance of justice."[56] They were formulating a basis for a doctrine of state omnipotence which was eventually to become one of the dominant dogmas of modern political thought. Samuel Pufendorf followed Grotius in separating the law of nature from theology and in regarding most of the law of nature as the dictate of right reason determining what is right and wrong in human conduct. The natural rights philosophy was put into its most systematic form in the works of Pufendorf.[57] Foremost in his system were the natural rights of the individual, independent of society and of the state, arising from a condition similar to Seneca's primitive state of nature. The law of nations was regarded merely as a fragment of natural law. There was the foundation here for what has been called "the unruly emphasis on rights" which culminated in the French declaration of 1789. Locke regarded the law of nature as a body of rules for the conduct of men in their natural condition. Reason, Locke considered as the interpreter of this law; equality, its fundamental condition. Conceiving men as existing in a state of nature Locke constructed his doctrine of natural rights which belong to man in the pre-political state. These rights were life, liberty, and property.[58] Legislatures were bound to rule, in his judgment, according to the law of nature and to carry on their functions by fixed and general laws rather than by arbitrary decrees; and laws which transgressed certain fundamental principles were not laws "properly so-called."[59] There seems to be a warrant here for the opinions of American justices that acts of the legislature which are arbitrary, though not expressly prohibited, may nevertheless be void because not "legislative in character." Locke's ideas relating to the social compact, government under the law of nature, popular sovereignty, the right of revolution, and natural rights superior to the government and civil laws, were to reappear in constitutions, laws, and judicial decisions in phrases adapted to American legal thinking. Thus the dualism of Aristotle had taken definite form. There was an immutable law which was of divine origin or the product of right reason, but whatever its source it was common to all men and universal. And there were positive enactments which were made by man to meet the contingencies of the moment. The two systems were in constant conflict -- one a perfect and rational order and the other an imperative and positive one.[60] Natural law, emanating from the divine will or from divine reason, consisted only of certain basic principles. Positive law elaborated this natural law and through practical reason adapted it to the ordinary activities of life. Differing from the idealistic interpretations of the concept in Greece and in Rome natural laws were conceived as norms and positive laws that were not in accord with the natural law were unjust and therefore had no validity, though the means to prevent their enforcement were not always at hand. Thus a criterion was available to measure, in a theoretical way at least, the validity of civil enactments.[61] 4. Types of Natural Law Ideas in Ancient and Mediaeval Times. It is difficult to classify the various types of natural law theories which prevailed in ancient and mediaeval times, but it seems essential to undertake a tentative classification. With the early Greeks natural law was law in accordance with nature in the physical sense, similar to the laws of the natural sciences in modern terminology. Such a meaning of the laws of nature has been seldom referred to since the time of the Greeks, though it has had counterparts in Ulpian's laws common to all animals, in the eternal laws of Aquinas from a quite different setting, and in a curious medley of ideas in the nineteenth century, when natural law comprised a resume of ideas relating to the physical universe, of moral and ethical concepts, and of legal doctrines and principles. Natural law was also considered as divine in origin and either comprised rules given to man by the Deity or his representatives or consisted of divine law from which principles of right and justice might be deduced by man's reason. This source of natural law only incidentally mentioned by the Greeks became to the theologians of the Middle Ages its main origin and sanction. Following the authoritative presentation of this view by Thomas Aquinas and other mediaeval theologians it has continued as the accepted view of Catholic jurists and of others who have chosen to emphasize the religious factors in the processes of lawmaking. Believers in this type of natural law may be found in all countries wherein the philosophy and traditions of the Middle Ages are fostered by religious and ethical agencies. The Greeks also set a standard for a natural law of an idealist type -- comprised of universal and immutable principles apprehended chiefly by philosophers and jurists. It was a law which reasonable creatures were everywhere bound to obey. Positive laws to have validity emanated from the ideal natural laws. This type of natural law was closely related to the current ideas of religion and morality and became prominent in Stoic political thought. During the Middle Ages it was conceived as an absolute law of reason which on account of its rational basis binds all reasonable beings. Differing in certain respects from the immutable natural law of the Stoics, a type of natural law was formulated by ancient and mediaeval thinkers which was comprised of rules or principles of law and justice, divorced partially, at least, from divine origins. These were sometimes referred to as the unwritten laws ingrained in the hearts of men. Such principles were used by the praetors and jurists in rendering decisions which were just and equitable, and in adapting the rigid formulas of the jus civile to form the jus gentium. It was this kind of natural law -- principles of common law recurring among different nations -- on which international law and certain parts of developing public law were based in the sixteenth century. It is a type which is always present in the practical applications of the law where it is molded to accord with advancing notions of morality in human conduct. Stripped of some of its immutable characteristics, its modern use may be found in the principles of reasonable conduct applied in English law and in the authority accorded the judges in certain European countries to fall back on principles of reason and justice to fill gaps in the law. Continental jurists also make frequent use of the rationalist form of natural law to measure the efficacy of existing positive enactments. It thus becomes the prototype for a "natural law with a variable content." The main trend of ancient and mediaeval theories of natural law, as Pollock suggests, was rationalist and progressive in its implications. There was also a natural law arising from an original and primitive state of nature from which men derived natural rights -- such as rights of equality and freedom. To the mediaevalists this state of nature corresponded to the condition of men before the origin of sin. Sometimes these rights were regarded as an inheritance of the individual from his birth and of such significance that it was the prime duty of the state to protect them. The Reformation encouraged the tendency to consider such rights as natural and as belonging to the individual as such. It remained for the English, French, and American philosophers to make them the foundation of civil government. Natural law was also conceived as a theoretic foundation for axiomatic truths from which a system of positive law could be deduced. From this viewpoint the lex naturalis existed prior to the formation of the state and from it directly or indirectly came all legal rules. It would be a mistake to think that the different types of natural law were either clearly defined by ancient and mediaeval writers or were formulated in such a way as to be readily differentiated. Most of the ideas relating to natural law, then as since, were vague and theories often involved a confusion of ideas which make it almost impossible to attempt any classification of views. Certain trends are evident, however, which may be indicated. And, above all, it is apparent that, owing to the continual efforts to contrast the natural and the conventional, the ancient and mediaeval periods furnished rich soil for the germination of natural law concepts. Natural law theories had passed through a cycle from the ideal and philosophical form of the Greeks and Romans to a standard, presumedly derived from divine sources, which the mediaeval canonists used as a criterion to measure the validity of the acts of civil and secular rulers, and thence to a series of rationalist concepts forming a basis for international law and for other branches of civil law.[62] As an ideal not wholly divorced from its divine connotations natural law was not infrequently called upon to measure the reason, necessity, or convenience of the beginnings in the way of modern legislation. The cycle was barely completed when a new turn in legal and political speculation changed the course of natural law thinking and gave a marked impetus to the emphasis upon certain higher law concepts. As the new meaning accorded to these concepts resulted from the social and political developments in England, in America, and in France, it is necessary to trace briefly the course of the development of natural law doctrines in these countries. 1. For sketches of the origin of the higher law ideas in relation to "the law of nature," see John W. Salmond, "The Law of Nature," Law Quarterly Renew, XI (April, 1895), 121; James Bryce, "The Law of Nature," Studies in History and Jurisprudence, II, 556; and Sir Frederick Pollock, "The History of the Law of Nature," Journal of the Society of Comparative Legislation, II (1900), 418-433, and Essays in the Law (London, 1922), chap. 2. Reprinted in Columbia Law Review, 1 (January, 1901), 11. See also Guilio de Montemayor, Storia del diritto naturale (Naples, 1911). 2. Among the most common ideas involved in the word "natural," when used in such phrases as "natural justice," "natural right," and "natural law" are: rational; reasonable; in accordance with nature; in agreement with ancient customs; just; equitable; divine, or in accord with the will of God; ideal, as differentiated from the actual; appropriate; and, necessary. For a summary of the various ideas involved in the term "natural" in this connection, see B F. Wright, Jr., "American Interpretations of Natural Law," in American Political Science Review, XX (August, 1926), 542, 543. 3. For an account of the evolution of Greek ideas relating to natural law, consult E. Burle, Essai historique sur le développement de la notion de droit naturel dans l'antiquité grecque (Trevoux, 1908). Cf., especially, for natural law ideas of Sophocles, of Socrates, and of Plato. 4. See Burle, op. cit., beginning at chap. 2. The Pythagoreans taught that "law ought to be in conformity with nature and it will be if it is made in the image of natural law which attributes to each according to his merit" (ibid., p. 86). For the views of the Sophists see ibid., pp. 103 ff. Greek philosophers, it is observed, constantly referred to an eternal law, the reason of a supreme being, and absolute and immutable law, which it was the duty of the public authorities to recognize and enforce in defining the relations and duties of human beings. In the Socratic philosophy an act which resulted in injustice had only the appearance of a law (ibid.; p. 157). 5. John L. Myres, The Political Ideas of the Greeks (New York, 1927), p. 270. For reference to the antithesis between the two concepts, see Ernest F. Barker, Greek Political Theory: Plato and His Predecessors (London, 1918), pp. 64 ff. See also Gilbert Murray, "The Stoic Philosophy," in Essays and Addresses (London, 1921), pp. 96, 97. 6. "The principal problem examined by the Sophists in regard to jurisprudence was how far the basic laws of society can be regarded as ingrained in the nature of things, and how far they are merely artificial establishment." Sir Paul Vinogradoff, Outlines of Jurisprudence, vol. II, The Jurisprudence of the Greek City (London, 1922), p. 26. Vinogradoff thinks the contrast between fusiV and nomoV may be traced to Demokritos (ibid., pp. 26 ff.). 7. Xenophon, Memorabilia, 4. 4. 19; Walter Eckstein, Das antike Naturrecht im sozial philosophischer Beleuchtung (Wien und Leipzig, 1926), chap. 11. 8. Sophocles, Antigone, pp. 450 ff. 9. Barker, op. cit., p. 64. 10. Cf. Myres, op. cit., p. 47; Eckstein, op. cit., chaps. 2, 3. 11. Nicomachean Ethics, 7; Burle, op. cit., chap. 14. There is, Aristotle maintained, a natural law anterior to the positive laws and from which the latter take their origin. To render a political order stable there must be administered in it a justice independent of arbitrary rules or of human enactments and superior to every individual interest (ibid., pp. 178 ff.; Bryce, op. cit., pp. 567, 568; Salmond, op. cit., p. 127). 12. Rhet. 1375, a, 27; Bryce, op. cit., p. 567; Eckstein, op. cit., chap. 5. 13. Vinogradoff, Jurisprudence of the Greek City, p. 138. 14. Cf. also G. M. Calhoun, "Greek Law and Modern Jurisprudence" in California Law Review, XI (July, 1923), 308, and D. Goodell, "An Athenian Parallel to a Function of our Supreme Court," in Yale Review, II (May, 1893), 64. 15. See Plato, The Laws; also Ernest Barker, op. cit., chap. 15. To Plato the rule of law meant that every authority in the state was exercised under a code of laws which was definitely established and which was fundamental. In the Republic and the Politicus Plato rejected to a certain extent this idea of the sovereignty of law. 16. Sohm's Institutes, 3d ed., trans. by J. C. Ledlie (London, 1907), pp. 64 ff. 17. Ibid., p. 79. 18. W. W. Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge, 1921), p. 54. 19. W. W. Buckland, A Manual of Roman Private Law (Cambridge, 1925), pp. 28 ff. The Romans, it is observed, were influenced "by the Stoic conception of life according to nature with its corollary of a natural law -- rules of conduct implanted in man by nature. This notion of a jus naturale, principles intuitive in man, his very nature, and capable of universal application appears frequently in Roman sources. Occasionally it is declared to be a principle on which all law rests, but the habitual attitude of the Roman lawyers is different: jus naturale is the ideal to which it is desirable that law should conform, but it was not really at any time a test of the validity of a rule of law." Cf. also Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge, 1921), pp. 53 ff; R. W. and A. J. Carlyle, A History of Medieval Political Theory in the West (New York and London, 1903), I, 36 ff.; M. Voigt, Die Lehre vom jus naturale, aequum et bonum und jus gentium der Römer (Leipzig, 1856), secs. 52-64 and 89-96; and Theodor Kipp, Geschichte der Quellen des römischen Rechts, 4e ed. (Leipzig, 1919), pp. 14 ff. 20. For an analysis of the original Stoic concepts of a "law of right reason" see Burle, op. cit., pp. 399 ff., and Eckstein, op. cit., chap. 7. 21. Cicero was, of course, not presenting original ideas but was putting into current phraseology some of the commonplace political ideas of the time. "The theory of natural law is to Cicero the form of the theory of justice in society, and it is also the groundwork upon which the whole structure of human society rests." Carlyle, op. cit., I, 6. 22. De Legibus II, 4, 10; Carlyle, op. cit., I, 3 ff.; cf. Salmond, op. cit., pp. 127 ff. and Bryce, op. cit., pp. 568 ff. 23. "That law which any people establishes for itself is peculiar to itself, and is called the civil law (jus civile), as being the particular law of the state (jus proprium civitatis). But that law which natural reason has established for all men, is observed by all peoples alike and is called the law of nations (jus gentium), as being that which all nations use." From Introduction to Commentaries of Gaius. Carlyle, op. cit., I, 37 ff. 24. Ibid., pp. 39 ff. Pollock thinks that Ulpian's distinction was not generally understood by the Roman lawyers of his day and that its incorporation into the Digest and the Institutes gave it a currency quite beyond its intrinsic merit. Cf. Appendix to Maine's Ancient Law (New York, 1906), pp. 399, 400, and Essays in the Law (London, 1922), pp. 36-38. 25. Digest 1, 1, 4. On the relations between the jus naturale and jus gentium in Roman law see Pollock, "History of the Law of Nature," in Essays in the Law. By the Roman lawyers, Ulpian, Tryphoninus, and Florentinus, men are considered by nature free and equal. Quod ad jus naturale attinet, omnes homines aequales sunt. 1.17. 32. Cum jure naturali omnes liberi nascentur. Dig. 2. 1. 4; also 2. 5. 4. Cf. Carlyle, op. cit., I, chap. 5; and Albert Vaunois, De la notion du droit naturel chez les romains (Paris, 1884), especially chaps. 1, 2. 26. E. D. Dickinson, The Equality of States in International Law (Cambridge, 1920), pp. 16, 17. For reference to the Greek origin of the phrase in Justinian's Digest, that this is law, to which it is proper that all men conform (Digest, 1. 3. 2), see John L. Myres, op. cit., pp. 309 ff. 27 Carlyle, op. cit., II, 28 ff. For opinions holding that imperial rescripts contrary to natural law are void, see ibid., pp. 32, 33. The Greeks and the Romans seldom conceived of legal rights inhering in the individual and hence they did not formulate notions of natural rights. On this distinction, see J. Walter Jones, "Acquired and Guaranteed Rights," Cambridge Legal Essays (London, 1926), pp. 223 ff. 28. Carlyle, op. cit., I, 74, 75. 29. An original conception of a primitive state of nature is found in the writings of Seneca. Carlyle, op. cit., I, 23 ff. 30. For extracts from these writers, see Carlyle, op. cit., I, 104, 105. 31. Carlyle, op. cit., I, 106 ff. Cf. also, Heinrich Singer, "Das Naturrecht im Codex iuris canonici," Archiv für Rechts- und Wirtschaftsphilosophie, XVI (1922-23), 206-215. Dr. Singer observes that the authors and contributors of the Codex iuris canonici were instructed to state the law so as to agree with the principles of natural law. An effort was made to reconcile the jus divinum or revealed law with jus naturale or rules resulting from the rational processes of man. Ibid., pp. 209 ff. 32. Carlyle, op. cit., II, 28, 98, 102, 105. 33. Ibid., II, 113; also Pollock, Essays in the Law, p. 40. 34. Summa Theologiae, 1, 2, q. 91, art. 2 and q. 93, art. 1. The theories of Thomas Aquinas are based to a considerable extent upon the doctrines of predecessors in the twelfth and thirteenth centuries whose works are usually neglected. For the contributions of some of these men consult Martin Grabmann, "Das Naturrecht der Scholastic von Gratian bis Thomas von Aquin," Archiv für Rechts- und Wirtschaftsphilosophie, XVI (1922-23), 12-53. Alessandro Bonnucci also traces the scholastic philosophy of natural law in La derogabilita del diritto naturale nella scholastica (Perugia, 1906). Rufinus was one of the first to suggest that jus naturale was "a certain quality implanted in mankind by nature, which leads men to do what is good and to avoid what is evil." Carlyle, op. cit., II, 103, 107. 35. Otto Gierke, Political Theories of the Middle Ages, trans. by F. W. Maitland (Cambridge, 1922), pp. 74ff.; cf. p. 172 for note by Maitland on the theories of natural law in the Middle Ages. "Men supposed," says Gierke, "that before the State existed the Lex Naturalis already prevailed as an obligatory statute and that immediately or mediately from this flowed those rules of right to which the State owed even the possibility of its own rightful origin. And men also taught that the highest power on earth was subject to the rules of Natural Law. They stood above the Pope and above the Kaiser, above the Ruler and above the Sovereign People, nay, above the whole Community of Mortals. Neither statute nor act of government, neither resolution of the People nor custom could break the bounds that thus were set. Whatever contradicted the eternal and immutable principles of Natural Law was utterly void and would bind no one. The mediaeval theory declared 'that every act of the Sovereign which broke the bonds drawn by Natural Law was formally null and void.' ... As null and void, therefore, every judge and every other magistrate who had to apply the law was to treat, not only every unlawful executive act, but every unlawful statute, even though it were published by the Pope or Emperor." Ibid., pp. 75, 84. Cf. also, Carlyle, op. cit., I, 174; III, 32, 128; and Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staats-theorien, 3d ed. (Breslau, 1913), chap. 6. 36. C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910), pp. 43, 46, and "Magna Carta and Common Law" in Malden, Magna Carta Commemoration Essays, pp. 140, 141. See also, Theodore F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 165 ff. 37. Carlyle, op. cit., III, chap. 3. 38. "Any form of government is right and just," said Aquinas, "in which the rulers seek to promote the common good, but not otherwise." A. J. Carlyle, "The Political Theories of St. Thomas Aquinas," Scottish Review, XXVII (January, 1896), 126, 141. 39. For an exhaustive analysis of the theories of Althusius and of the "Monarchomachs," consult Gierke, Johannes Althusius. The whole view of the Vindiciae contra Tyrannos, says Laski, "is built on the assumption that it is the duty of the magistrate to represent the popular idea of right." Harold J. Laski, A Defence of Liberty against Tyrants: A translation of the Vindiciae contra Tyrannos by Junius Brutus (London, 1924), pp. 47, 48. 40. In the Middle Ages, says Maitland, "God Himself appeared as being the ultimate cause of Natural Law. This was so, if, with Ockham, Gerson, D'Ailly, men saw in Natural Law a Command proceeding from the Will of God, which command therefore was righteous and binding. It was so, if, with Hugh de St. Victor, Gabriel Biel and Almain, they placed the constitutive moment of the Law of Nature in the Being of God, but discovered dictates of Eternal Reason declaring what is right, which dictates were unalterable even by God Himself. Lastly it was so, if, with Aquinas and his followers, they (on the one hand) derived the content of the Law of Nature from the Reason that is immanent in the being of God and is directly determined by that Natura Rerum which is comprised in God Himself, but (on the other hand) traced the binding force of this law to God's Will." Gierke, Political Theories of the Middle Ages, p. 172. 41. Thus Baldus claimed that on the authority of the law of nature neither the Emperor nor the Pope could validate the taking of usury. For interesting efforts to justify slavery and the ownership of property though contrary to the law of nature see Carlyle, op. cit., I, chaps. 10, 12, 16 and II, Pt. I, chaps. 4, 5, Pt. II, chaps. 5, 6. See also, Gierke, Johannes Althusius, pp. 272 ff. 42. Goldast, Monarchia, II, 932 and Gierke, Political Theories of the Middle Ages, pp. 172, 173. For the distinction between principal and secondary rules of the law of nature, see ibid., p. 175; also, Johannes Althusius, pp. 273, 274. 43. To Gentilis, who with Grotius may be credited with the formulation of systematic rules of international law based largely on the law of nature, natural law comprised "such rules of justice as would govern men as moral and responsible beings, living in society independently of human institutions -- in other words, in a 'state of nature.'" De legationibus, II, 18, and Coleman Phillipson in Great Jurists of the World (Boston, 1914), pp. 119, 120. 44. Edited by Ernest Nys (Washington, 1917). Cf. works of Francisco di Vittoria, De Jure Belli and De Indis (1557). 45. William A. Dunning, Political Theories from Luther to Montesquieu (New York, 1905), pp. 132 ff. 46. Ibid., pp. 13 ff. "There was also a philosophic, deductive law of nations before Grotius, resting upon the same foundations as the natural law of the schoolmen, and cultivated particularly by the Spanish moralists, especially by Francisco Vittoria and his followers." General Survey of European Authors (Continental Legal History Series), p. 412. For theories of a state of nature and of an original compact, cf. Suarez, De Legibus, III, 4, and Mariana, De Rege, I, 1, 2, 8. 47. Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, 1922), pp. 82, 83. 48. Professor Dickinson, referring to the fact that the natural law theories of Grotius are often misunderstood, claims that "Grotius presented a less comprehensive discussion of natural law than either Suarez before him or Pufendorf who came after." The Equality of States in International Law, p. 43. The law of nature which these men found, Pollock observes "was no mere speculative survival or rhetorical ornament. It was a quite mediaeval theory. What is more, it never ceased to be essentially rationalist and progressive. Modern aberrations have led to the widespread belief that the law of nature is only a cloak for arbitrary dogmas or fancies." Essays in the Law, p. 32. 49. Cf. De Jure Belli ac Pacis, Book I, chap. 1. 50. For indications of the use of the doctrine of natural law and natural rights by jurists and text writers in formulating principles of international law, see Grotius, op. cit. (1672); Pufendorf, De Jure Naturae et Gentium (1672); Burlamaqui, Principes du droit naturel (1758); Rutherford, Institutes of Natural Law (1754-56). The natural law doctrine that contracts are binding was in Grotius' opinion a limitation on the authority of sovereigns. Grotius, op. cit., Book III, chap. 24. 51. Referring to the ancient origin of the idea of equality, Professor Radin observes that "the East gave to Rome both the practical fact of inequality, fixed into unescapable ordines and regulated by the needs of the state, and the corrective ideal of a perfect city of equals living in accordance with a Law of Nature." "Roman Concepts of Equality," Political Science Quarterly, XXXVIII (June, 1923), 288. 52. "Every one in a state of grace," thought Wycliffe, "has real lordship over the whole universe." De Civili Dominio (ed. by R. L. Poole), pp. xxii-xxiv. 53. Harold J. Laski, op. cit., Introduction, and Pollock, Essays in the Law, p. 50. For the way in which the leaders of the Reformation built on the political ideas of the church theologians, such as the theory of the social contract, the sovereignty of princes, etc., see Jean Brissaud, The History of French Public Law, trans. by James W. Gamer in Continental Legal History Series (Boston, 1915), p. 536. With the exception of Bodin, Hobbes, and Bossuet, he notes, most political writers followed the theories of natural law and attempted to justify political power on the basis of the idea of justice. 54. See William S. Holdsworth, History of English Law, IV (London 1922-25), 190 ff., and Dunning, op. cit., chap. 3. Cf. Gierke, Johannes Althusius, pp. 299 ff., on the doctrine of Staatsraison, which tended to weaken the limitations on the state attributed to divine and natural laws. 55. Despite his positivist tendencies Hobbes regarded natural law as eternal and immutable. Leviathan, chap. 15; cf. Pollock, Essays in the Law, pp. 59, 60. 56. General Survey of Events, Sources, Persons and Movements in Continental Legal History, Continental Legal History Series (Boston, 1912), p. 415. 57. On Pufendorf and the development of the law of nature, consult Coleman Phillipson's account in the Great Jurists of the World, pp. 311 ff.; also Gierke, Johannes Althusius, pp 300 ff. 58. John Locke, Second Treatise of Civil Government, Book II, sec. 6. "The state of nature has a law to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions." 59. John Locke, op. cit., chap. 11. "These are the bounds which the trust, that is put in them by the society and the law of God and nature, have set to the legislative power of every commonwealth, in all forms of government. First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court, and the countryman at plough. Secondly: These laws also ought to be designed for no other end ultimately but the good of the people. Thirdly: They must not raise taxes on the property of the people without the consent of the people, given by themselves or their deputies.... Fourthly: The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Ibid., chaps. 11, 18, and Discourses Concerning Government, III, sec. 11. John Neville Figgis, The Divine Right of Kings (2d ed, Cambridge, 1922), p. 242, "The more closely Locke's treatise is studied, the more clearly will it be seen that it is an attack directed far more against the idea of sovereignty, than against the claims of absolute monarchy." 60. Cf. J. Castillejoy Duarte, "Kohler's Philosophical Position," Appendix to Kohler, The Philosophy of Law, trans by Adalbert Albrecht in Modern Legal Philosophy Series (Boston, 1914), XII, 335. 61. Cf. J. Castillejoy Duarte, "Kohler's Philosophical Position," XII, 352, 353. "The exponents of the law of nature are not always at one in every particular, but their fundamental conception is that 'Nature' represents the supreme, unifying, controlling power manifesting itself in the universe at large; and that 'Reason' is a special aspect of this principle looked at from the point of view of man and the operation of his mental and moral faculties. In so far as men are men they possess common elements; and in their political and social life these elements inevitably emerge and are recognizable in custom and law. Hence the substratum of this law is thought to be of necessity established by the universal guiding force, personified as nature. Such natural law represents the permanent portion of human law in general, and it is prior and superior to positive legislation, which is only a supplement thereto demanded by changing circumstances in different localities. Conventional justice may well elaborate or extend its applications, but must not alter its essential content or violate its spirit." Coleman Phillipson in Great Jurists of the World, p. 311. 62. Georges Davy, Le droit, l'idéalisme et l'expérience (Paris, 1922), pp. 41 ff. CHAPTER II ENGLISH HIGHER LAW DOCTRINES THE traditional view of English legal historians was that in English law there are relatively slight traces of the influence of the Roman law or of its mediaeval offshoot, the canonical codes. It was taken for granted, therefore, that the ancient and mediaeval concepts of natural law, though occasionally referred to by English text writers and judges, were never accepted in any authoritative way as principles of English law. Recent investigations in English legal history have modified to some extent the traditional views regarding the acceptance of Roman law principles and have tended to indicate some important connections between the main currents of continental legal thought and the emerging common law of England.[1] And we are now assured that one of the main connecting links between the two legal systems was the doctrine of the law of nature or law of reason of ancient and mediaeval times. 1. Natural Law Ideas and English Doctrines relating to Fundamental Laws. In the processes by which Anglo-Saxon and Norman customs were transformed into law, may be traced the growth of ideas relating to a superior law in England. Authorities do not agree, however, as to the significance of higher law concepts in the development of English law. Certain authors maintain, with Professor McIlwain, that customary laws with no assignable beginning and accepted as a rule without question, in the course of time acquired a character of inviolability; and whether this inviolability be the result or the cause of the preservation of these customs, the feeling has somehow come into existence that there is a law fundamental and unalterable, and rights derived from it indefeasible and inalienable. The content of the law may not be definite, -- in England it was always far from definite, -- but the idea has lodged itself in men's minds as a formative principle, and once lodged it colors everything.[2] This idea though vague and indefinite in outline was at times, they assert, a significant force in the development of law in mediaeval England,[3] and as a result of it certain principles of mediaeval customary law were thought to be beyond the power of Parliament to change, and were likely to be identified with the law of nature.[4] A few provisions of Magna Carta were occasionally referred to as fundamental and immutable. William E. Holdsworth,[5] William S. McKechnie,[6] Edward Jenks,[7] and L. O. Pike[8] have questioned the great claims made for Magna Carta as a charter for constitutional government and have emphasized that the barons who forced the King's signature to the document "were guided by class interests and aimed at reaction and anarchy rather than at legality and progress." Vinogradoff[9] thinks that these historians fail to explain the reasons for the great influence of the document on the national life of England and why it became the watchword of English legalism. He believes that the feudal interpretation of the Charter fails to take into account sufficiently that certain provisions tended to impress upon all the necessity of the appreciation of the rule of law in ordinary legal relations and to carry over this idea from the class justice of the feudal lords to the common law of the growing commonwealth.[10] At least there are some vague general statements which appear to consider Magna Carta in the nature of a superior law.[11] Whether or not these ancient customs and the written provisions of the Great Charter had the characteristics of fundamental laws which were not subject to change by statutes is a controversial matter which need not be determined here. It will suffice to note that as a result of a careful study of the Yearbooks Mr. Plucknett concludes that the examples which Professor McIlwain cites to sustain his contention that there were fundamental laws in England in the mediaeval period "afford no support for the thesis of a supreme, fundamental law."[12] Whatever conclusion may be arrived at in this controversy there is substantial agreement among the authorities that not infrequent use was made of the concept of natural law. Mr. Plucknett regards the instances of such use, which he discovered in the fourteenth century, as rather loose and vague references to custom, to conscience, or to the colloquial sense of the unreasonable.[13] Perhaps the difference in interpretation of these legal phenomena may be due in part to the point of view of the investigator just as many American legal historians find no bona fide traces of natural law doctrines in the legal decisions of the American courts and others discover many illustrations of the applications of these doctrines in the opinions of the judges. The use of the term "law of nature" was quite sparing[14] and seems to have been avoided in the development of equity. More frequent applications of the term may be found in the beginnings of the law merchant.[15] If natural law terms were not adopted in the beginning of English equity procedure, generous use of the ideas involved therein was made by the chancellors. The common lawyers of the thirteenth and early fourteenth centuries according to Holdsworth included under the term "equity" such ideas as abstract justice and analogy. The ecclesiastical chancellors, on the other hand, based their equity on the more restricted idea that the court ought to compel each individual litigant to fulfill all the duties which reason and conscience would dictate to a person in his situation. Reason and conscience must decide how and when the injustice caused by the generality of the rules of law was to be cured. They were the executive agents in the work of applying to each individual case those dictates of the law of God and nature, upon which the ecclesiastical chancellors considered equity to rest.[16] Maitland believed that there was a more direct and insistent use of the law of nature ideas in the development of equity.[17] 2. Natural Law and the Doctrine of the Supremacy of the Law. The evolution of English ideas relating to a higher law was intimately bound up with the emerging concept of the supremacy of law. From the dominant idea of mediaeval thinkers that law should be supreme, and superior to the state itself, English judges evolved the peculiar English doctrine of the supremacy of the law, which bound even the King.[18] Bracton, for instance, who made use of the Roman concept of natural law, regarded the King as subject to law but did not suggest any effective remedy for a breach of law by the King.[19] However, the courts of law at this time were regarded as possessing certain political functions on which Professor Holdsworth comments as follows: The law was a rule of conduct which all members of the state, rulers and subjects alike, were bound to obey, the whole conduct of government consisted in the enforcement of the law, and in the maintenance of the rights and duties to which it gave rise. It was a necessary consequence of this theory of government that the courts should possess political functions; for they existed not merely to do justice as between private persons, but also to see that the law itself was not arbitrarily infringed or altered by the king or any other person.[20] The doctrine that there were superior principles of right and justice which acts of Parliament might not contravene was asserted and defended vigorously and effectively by Lord Coke in his controversy with the Stuart Kings.[21] In the well-known case of Dr. Bonham, wherein the Royal College of Physicians attempted to impose a fine for illegal practice of medicine, Coke asserted that it was an established maxim of the common law that no man can be judge in his own case. And he continued: "It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right or reason, or repugnant or impossible to be performed, the common law will control it and adjudge such act to be void."[22] A number of cases were cited in support of this dictum.[23] Concerning this opinion there have been many disputes. Supporters of Coke have tried to show that the opinion with the precedents upon which it is based is an essentially accurate reflection of the situation in England at the time when the principle of the supremacy of law was winning its way over the tendencies toward the establishment of an absolute monarchy.[24] On the other hand, historians have endeavored to prove that the cases on which Coke based his theory of the supremacy of the common law courts do not bear the construction which he gave to them. Most English legal authorities agree that there is no specific case on record in which an English court of justice has directly overruled or disregarded the plain meaning of an act of Parliament.[25] In England the mediaeval doctrine that law is above the state, which meant that there was a fundamental law which could not be changed, came to mean primarily the supremacy of law which Parliament could change at will. The dictum of Coke in Bonham's case that courts may refuse to enforce an act of Parliament when it is "against common right and reason," or "repugnant, or impossible to be performed," Holdsworth considers as founded on little mediaeval authority. The cases cited by Coke, he thinks, amount to little more than that the courts will interpret statutes strictly.[26] Even when the supremacy of Parliament was recognized there were few who would have admitted that Parliament possessed unlimited powers. Even Sir Francis Bacon, who took the side of the King against Coke in his assertions of common law supremacy admitted the superior force of the law of nature.[27] But the theoretical limits conceived as binding Parliament lost much of their significance when this body asserted its authority over the King and the courts.[28] Recognizing that in the first few centuries after the establishment of Parliament there were doubts whether private acts could be passed which were judicial in character, such as bills of attainder, it was contended that in Henry VIII's reign all such doubts were removed and "the judges were obliged to admit that these acts, however morally unjust, must be obeyed."[29] Whatever effects Coke's attempt to set up a superior and fundamental law may have had, the Revolution of 1688 marked the abandonment of his doctrine as a practical principle of English politics.[30] It is necessary to distinguish between the idea of an appeal to a fundamental law, when the appeal is primarily in the nature of a criticism and finds its chief sanction in the ancient right to resist arbitrary authority by revolutionary methods, and an appeal to a fundamental law which the courts must hold as binding in order to protect citizens from arbitrary authority. The appeal to a fundamental law as embodying superior principles of right or of equity is a common method of resisting injustice and accounts in part for the extreme pretensions of Coke. It was in this connection that the assertive chief justice set about to revive interest in Magna Carta as a fundamental charter of liberties.[31] After a period of comparative neglect the Charter was rendered popular by its use as a weapon to check the extensive prerogatives claimed by James and Charles. Coke, Hampden, Eliot, and Pym gave an interpretation to long-forgotten clauses of Magna Carta that supported their partisan views of constitutional reform. The Great Charter, McKechnie observes, "as enshrined in the imaginations of the parliamentary leaders of the Puritan Rebellion was, to a great extent, the creation of Coke's legal intellect." So great was this creative effort of Coke and his followers that a contrast may well be made between two Great Charters -- one, the original feudal charter; the other, the seventeenth-century charter, as it came to be accepted by the political leaders, the judges and lawyers, and the majority of the people of England.[32] A middle ground between the pretensions of Coke, that both the King and Parliament were limited by a common reason and superior principles of justice of which the common law courts were the ultimate interpreters, and that of Pollock, Holland, and Holdsworth, to the effect that no cases are on record in which the will of the King and of Parliament were thwarted by the courts, resting their opinion on a higher law basis, probably comes nearer to stating the actual situation in England. Even if it be true, as is claimed, that there is no case on record in which the clearly expressed will of the King and of Parliament were really checked by the courts there were instances in which the courts, interpreting the common law changed the meaning of statutes, refused to give them the effect intended, or to apply a rule of his majesty in council until the King, Lords, and Commons joined in an unmistakable mandate, which the courts reluctantly at times conceded it was their duty to obey. Short of such mandates clearly and unequivocally expressed there was a wide realm in which the courts applied the basic principles of reason of the common law and were seldom interfered with either by the King or by Parliament.[33] Moreover, the frequent confirmations or reaffirmations of Magna Carta served to impress upon the public mind that enshrined therein were fundamental principles upon which the superstructure of the English constitution might arise. Coke's reiteration of these principles served to strengthen the basic doctrine of the supremacy of the law. It was Coke's version of the supremacy of the common law, as an exemplification of rules of reason and of justice, which the courts must enforce even above the King and Parliament, that served as a convenient argument when American justices were confronted with the demand that limits must be placed on legislative powers to safeguard individual rights and privileges.[34] Blackstone in his Commentaries gave a version of natural law which, through the popularity of his work, was given wide currency. "Man, considered as a creature," he said, must necessarily be subject to the laws of his Creator.... This will of his maker is called the law of nature.... This law of nature, being co-eval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately and immediately, from this original.... Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say no human laws should be suffered to contradict these ... nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we offend both the natural and the divine.[35] He placed these precepts in the realm of moral restraints by later admitting that no authority could prevent Parliament from enacting laws contrary to them. With the supremacy of Parliament generally accepted the references to superior natural laws become less frequent. 3. Evidences of Natural Law Ideas in Judicial Decisions. The efforts to predicate a basis for a fundamental law, which were gradually brushed aside as Parliament gained ascendency over the other departments of government, are by no means the only attempts to apply the ancient and mediaeval concepts of natural law in England. Sir Frederick Pollock has indicated the inaccuracy of the prevailing view that English law was comparatively free from the influence of natural law doctrines.[36] When Roman and canon law doctrines came into disrepute in England Pollock observes that the law of nature terminology was frowned upon and gradually dropped, only, to be restored in common law terminology in the words "reason" and "reasonable." Due to a natural aversion to Continental ideals and to the influences of church law and of Roman law it became the English practice to speak of reason in preference to the mediaeval concept of the law of nature.[37] Natural justice or reason which the common law recognizes and applies does not differ from the law of nature which the Romans identified with jus gentium and the mediaeval jurists accepted as being divine law revealed chiefly through man's natural reason.[38] Pollock's summary of the extensive ramifications of the doctrine of reasonableness or the English version of natural law deserves to be quoted: Reasonable price and reasonable time are among the most familiar elements in our law of contract. Oftentimes no more definite instruction can be given to a jury than to award reasonable damages. "Natural reason and the just construction of the law," as Blackstone said, have given us the various applications of the common counts, extending to the whole field of what we now call quasi-contract. In Lord Mansfield's hands the principles of natural equity were an enchanter's wand to call a whole new world of justice into being. The test of what a reasonable man's conduct would be in the circumstances governs our modern law of negligence and underlies those branches of it which have been specialized into groups of definite rules. Almost in our own time a simple and wholly untechnical conception of the same kind has been developed into the doctrine of estoppel "in pais," perhaps the most powerful and flexible instrument to be found in any system of civil jurisprudence.[39] Since the Middle Ages the law of nature or its offshoot, the law of reason, has been an important factor in the development of equity, of the law merchant, and of the law of nations.[40] Principles of natural justice are also recognized and applied today in cases where the courts review the exercise of quasi-judicial powers by administrative boards, committees, or commissions.[41] One need not seek far in English case law to find impressive examples of the use of the doctrine of reason or reasonableness, though the law of nature connotations of these phrases may be inadvertently or purposely concealed.[42] The law of nature as "the living embodiment of the collective reason of mankind" has, indeed, been adopted by the common law in substance if not in express terms.[43] Despite the persistent applications of natural law concepts in English law certain English jurists frequently refer to the philosophy of law as comprehended under Naturrecht as a German product, and criticize such thinking as "a mere system of elaborate trifling."[44] 4. Types of Natural Law Theories applied in English Law. It is apparent that natural law concepts of one kind or another served various purposes in English legal history. First, there was in mediaeval times an identification of the term "natural" with the "customary" rules of the common law. The importance attached to these natural or customary rules, the origins of which were unknown, gave an element of certainty and permanence to the emerging system of the common law, and encouraged the belief that certain laws were fundamental. As the courts were the prime agencies in the application of these rules it encouraged the recognition of the supremacy of the law as interpreted by the justices. Second, the doctrine of the supremacy of the law was given a prominent place in the conflict between the King and the barons when resistance to the King was supported by reference to the fundamental immemorial rights of Englishmen -- essentially a form of appeal to a higher law. The assertion of the idea that there was a law above the King and above Parliament as that body gained in prominence, despite the differences of opinion regarding its significance, became a vital principle in the growth of English constitutionalism. It encouraged a more definite recognition of the distinction between ordinary law and fundamental law. As a means of supporting the revolt against arbitrary rulers the concepts of natural law and natural justice were revolutionary and idealistic. Third, the theory that law is of divine origin and that such rules as accord with this law are natural and valid was inherited from Continental European thought and was accepted by some English lawyers and jurists until the bonds with the Roman church and the mediaeval canonists were severed. As in Blackstone's Commentaries, the theory may be repeated at times with little reference to its practical importance in English law. Fourth, law of nature ideas were the sources from which the common law judges derived their notions of rules of reason and natural justice whereby they aimed to rationalize the legal processes. In this role these ideas became active and progressive principles of legal growth. They assisted in establishing close relations between legal logic and practical experience. The growth of the common law in an inductive, experimental, and pragmatic manner was conditioned by the famous rule of reason, which prevented the rigid and archaic procedure and rules of the system from remaining long in force when they were not in accord with social and economic conditions. The manifold appearances of the rule of reason in Anglo-American law bear witness to the fact that natural law doctrines are not ignored or discarded in the jurisdictions which are subject to this law. But differences in terminology have tended to obscure the continuous applications in English law of natural law concepts which play an important rôle in Continental legal systems. 5. Differences between the Anglo-American and the Continental Legal Points of View. The fact that in Continental systems of law two words are in use for the ideas comprehended in the English word "law" differentiates certain phases of legal thought of Continental nations in contrast with that of Anglo-American countries. Two sets of words to express two ideas of law are: Latin jus lex German Recht[45] Gesetz French droit loi Italian diritto legge Spanish derecho ley Though the two terms are not always clearly distinguished, lex is the term which commonly designates written enactments or rules and jus[46] refers to those rules which are just or inherently right or equitable. To the Romans jus naturale comprised the eternal principles of justice, as understood and appreciated by the human reason; but in the Middle Ages, as we have seen, the jus naturale frequently became the lex naturalis, or positive enactments proceeding from God, which were considered superior to all human laws. When law was based largely on custom and on the application of traditional rules, and legislation was comparatively rare, the lex or loi was regarded as the embodiment of reason, for customs and traditions to be valid were expected to be reasonable. Later the distinction between droit and loi was more clearly drawn. In modern terminology la loi is a declaration of the will of the sovereign upon an object of common interest,[47] and droit is the aggregate of precepts or laws (lois) governing the conduct of man toward his fellows, the observance of which it is possible, and at the same time useful, to assure by way of external coercion. Thus with a term to characterize the enactments, usually in writing, to which men are expected to conform and the rules or ideas of justice which are to guide and control civil conduct, it is possible to differentiate between the ordinary conventional laws of a time and place and the underlying rules and principles which form the very groundwork of the legal structure. The terms droit or Recht[48] combining the ideas of a rule of civil conduct and a principle of justice, necessarily mingle law and morals in juridical speculation, whereas with a single term -- law -- English jurists have been inclined to divorce law and ethics. "To this difference of language, and to the consequent difference in the tone of juridical speculation," Mr. Salmond thinks, we may attribute, more than to any other single cause, the acceptance on the Continent and the rejection in England of that which the French call droit naturel, and the Germans Naturrecht.[49] It follows that our language can supply no equivalent for these terms, for they combine ethical and juridical significations in a manner not permitted to English speech. To express the ethical meaning we must use the terms natural right or natural justice; while the juridical meaning is expressed by the terms natural law or the law of nature. For a full equivalent for the French and German expressions, we may resort to the corresponding Latin jus naturale, which possesses the same twofold meaning, being either justitia naturalis or lex naturae.[50] The differences in terminology and points of view are likely to be exaggerated, for whether or not separate words be used for definite written enactments and for rules of right or principles of justice the results in legal thinking do not vary greatly on this account. The fact that writers in Europe give a great deal more attention to legal speculations and that the schools of droit naturel or Naturrecht have produced elaborate and influential treatises is due rather to a different approach to philosophy and to speculative thought than to variations in terms. The Englishman's effort to divorce morals and law is, of course, not successful and his vain attempts to repudiate natural law thinking have failed to conceal the substratum of rationalizing in accordance with well-known natural law connotations. The obvious methods of suppression of natural law concepts are but a reflex of a type of mind which depreciates rationalizing and philosophizing at the same time that new ideas and new institutions are being molded in accordance with the assumptions and preconceived notions of particular schools of philosophic thought.[51] Englishmen are less prone to formulate the speculative ideas which are the warp and woof of their social fabric and they have been masters in the application of theories which, however, have been thought to be more acceptable because they were believed to be concealed.[52] It was in the United States and in France, however, that different types of natural law concepts were to take shape. Higher law ideas were soon to become in these countries the source and sanction for portions of private and public law. 1. C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910). Sir Frederick Pollock thinks "there is a real link between the mediaeval doctrine of the law of nature and the principles of the common law. It is given by the use -- correct in both systems, though constant, indeed exclusive in the Common Law, and rather sparing in the Canon Law -- of the words 'reason,' and 'reasonable.'" Essays in the Law, p. 57; see also Holdsworth's A History of English Law, II, 133 ff. for a modern interpretation of the adoption of Roman law ideas in English law. "English as well as Continental jurists and judges," says Professor H. D. Hazeltine, "were under the influence of doctrines which ascribed the jus divinum and the jus naturale the quality of immutability and rendered the man-made positive law opposed to them null and void. Bracton writes under the influence of these doctrines; and the early common lawyers treat the common law itself as the embodiment of the jus naturale in the guise of 'reason.'" Preface to Theodore F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), p. xxiii. 2. C. H. McIlwain, op. cit., pp. 51, 52. See also Sir Paul Vinogradoff, "Magna Carta Chapter 39," Malden, Magna Carta Commemoration Essays, p. 85. 3. McIlwain, op. cit., p. 53. McIlwain continues: "There is a fundamental law which binds a king and beyond which he may not go. The principle has persisted through all changes.... Men may not always have been clear as to what particular rights or liberties were guaranteed by the fundamental law, but as to the existence of such a law there was no doubt, and any act that violated it was in a true sense felt to be no law." Ibid., pp. 57, 63. For the use of the term "common law" as signifying in a real sense a fundamental law, cf. McIlwain, "Magna Carta and Common Law," in Magna Carta Commemoration Essays (London, 1917), pp. 122 ff. and 175 ff. This judgment is not in accord with the opinions of a number of English legal historians, who regard the theories of a fundamental law, which is superior to the King and to Parliament, as having little evidence to substantiate them, so far as the actual operation of the law in England is concerned. 4. McIlwain, The High Court of Parliament and its Supremacy, p. 99. Expressing the view that the omnipotence of the British Parliament, on which English jurists have usually built their theories of sovereignty, is really exceptional, Sir Frederick Pollock says: "The omnipotence of Parliament was not the orthodox theory of English law, if orthodox at all, even in Holt's time. It was formally adopted, and then not without lip-service to natural law, in Blackstone's Commentaries. Sir Thomas Smith had asserted it plainly enough two centuries before Blackstone; but he spoke the mind of the Tudor councillors of state, not the judges and serjeants. Down to the Revolution the common legal opinion was that statutes might be void as 'contrary to common right' -- an insular version, as I have pointed out elsewhere, and generally received natural law." "A Plea for an Historical Interpretation," Law Quarterly Review, XXXIX (April, 1923), 165. See also the Expansion of the Common Law (London, 1904), p. 123. 5. A History of English Law, II, 207 ff. 6. Magna Carta (New York, 1915). 7. "The Myth of Magna Carta," The Independent Review, IV (1904-05), 260 ff. 8. Constitutional History of the House of Lords (London, 1894). 9. Sir Paul Vinogradoff, "Magna Carta Chapter 39," Magna Carta Commemoration Essays, p. 79. 10. Vinogradoff, op. cit., pp. 84, 95. 11. Cf. citations in Rodney L. Mott, Due Process of Law (Indianapolis, 1926), chap. 3. 12. Op. cit., pp. 26-31, 35, 36. For a critical analysis by the same author of Coke's broad claims for the existence of a fundamental law in England, see also "Bonham's Case and Judicial Review," Harvard Law Review, XL (November, 1926), 30. 13. Op. cit., pp. 35, 36. 14. See Fortescue, De Natura Legis Naturae and De Laudibus Legum Angliae, chap. 16, and Calvin's Case, 7 Co. Rep. 121. Holdsworth finds an occasional use of the term "law of nature" in the Yearbooks and rather frequent references to the idea that law must accord with reason, Appendix II, Holdsworth's History of English Law, II, 602. 15. Cf. Malines, Lex Mercatoria (1656), p. 311, and Sir John Davis, Concerning Impositions (1656), chap. 3. Pollock, Essays in the Law (London, 1922), pp. 53 ff. 16. Op cit., V, 216. 17. "On the whole, my notion is that with the idea of a law of nature in their minds, they decided cases without much reference to any written authority, now making use of some analogy drawn from the common law and now some great maxim of jurisprudence which they borrowed from the canonists or the civilians." F. W. Maitland, Equity, p. 9. 18. Holdsworth, op. cit., II, 131, 195, 196. Professor Adams speaks of "the idea that there existed a body of understood, more or less definitely formulated rights which the king was bound to observe," as a "guiding and creative principle" of the English constitution. George Burton Adams, The Origin of the English Constitution (New Haven, 1920), p. 157. 19. De Legibus el Consuetudinibus Angliae, III, 9, 2, fol. 107 b and Holdsworth, II, 252, 256. Bracton copied with slight changes his account of jus naturale from Azo, who in his edition of the Institutes, follows Ulpian's classification. See Professor Maitland's Selections 8, Selden Society's Publications (London, 1895), p. 33. A passage of the Roman code indicated that it was the duty of the Emperor to acknowledge that he was bound by law, Code 1. 14, 4. This idea was accepted by Azo and through him was incorporated in Bracton's De Legibus et Consuetudinibus Angliae, II, 16, 3. See also Carlyle, A History of Mediaeval Political Theory in the West, III, 34 ff., for Bracton's theory of limits on the king's authority. 20. Op. cit., IV, 169. The author refers to two striking examples of mediaeval courts which actually exercised political powers, namely, the Justizia of Aragon and the Parlement of Paris. "The supremacy of the law was a theme on which Coke was never tired of dilating. In fact, it would not be going too far to say that it was the view of all the leading lawyers, statesmen and publicists of the Tudor period." Ibid., pp. 201, 202. 21. See Bonham's Case, 8 Co. 118a, b; Plucknett, "Bonham's Case and Judicial Review," Harv. Law Rev., XL, 30; also C. G. Haines, The American Doctrine of Judicial Supremacy (New York, 1914), pp. 25 ff. 22. 8 Co. (C.P. 1610) 114a and 2 Brownl. (C.P. 1610) 255, 265. 23. Tregor's Case Y. B. Pasch, 8 Edw. III, 26; Fitzherbert, Annuitie 41. For a thorough analysis of these cases, consult Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 66-70 "and Bonham's Case and Judicial Review," Harv. Law Rev., XL, 35 ff. Cf. also Holdsworth, op. cit., V, 428, 454, 491 ff. 24. Cf. views of Sir Henry Hobart in Day v. Savadge, Hobart, 85 (K. B. 1614) and Lord Holt in City of London v. Wood, 12 Modern 669, 687 (Mayor's Court, 1701). 25. Pound, "Common Law and Legislation," Harv. Law Rev., XXI (April, 1908), 391. "We find," says Pollock, "a series of dicta, extending to the early part of the eighteenth century, to the effect that statutes contrary to 'natural justice' or 'common right' may be treated as void. This opinion is most strongly expressed by Coke, but like many of his confident opinions, is extra-judicial. Although Coke was no canonist, we may be pretty sure that it was ultimately derived from the canonist doctrine prevailing on the continent of Europe. In England it was never a practical doctrine." The Expansion of the Common Law, pp. 121, 122. He claims that no case is known in fact, in which an English court of justice has openly taken on itself to overrule or disregard the plain meaning of an act of Parliament. First Book of Jurisprudence (3d ed, 1911), p. 264, and Essays in the Law (London, 1922), p 41. This view of Pollock is confirmed by J. G. Holland, who states that "these dicta, though approved of by Lord Holt in London v. Wood, appear never to have been followed in practice." The Elements of Jurisprudence (12th ed., New York, 1917), pp. 37, 38. Plucknett notes that this judgment needs to be slightly modified so as to account for the few instances in which courts refused to apply acts regarded as impossible to carry out or absurd in their consequences, Harv. Law Rev., XL, 36 ff. 26. Holdsworth, op. cit., II, 441-443. This view is supported by F. W. Maitland, who thinks that the precedents cited by Coke do not bear him out. The Constitutional History of England (Cambridge, 1909), p 301. From this slim foundation, Plucknett observes, Coke developed a theory all his own -- to the effect that there was a superior body of rules which bound the King and Parliament. The subsequent results of Coke's ideas are traced in "Bonham's Case," Harv. Law. Rev., XL, 49 ff. This article should be consulted for an analysis of the cases reported by Coke and those in which his views were approved. 27. "Our law is grounded upon the law of nature.... For as the common law is more worthy than the statute law, so this law is more worthy than them both" Bacon, Works (ed. by Spedding, Ellis, and Heath), XV, 202 ff. 28. Holdsworth explains the merging of the supremacy of law with the concept of parliamentary supremacy, as follows: "But when the Act of Parliament had acquired this authority, the last remnants of the idea that there might be fundamental laws, which could not be changed by any person or body of persons in the state, necessarily disappeared. It was obviously difficult to assign any limits to the power of the Acts of a body which had effected changes so sweeping as those effected by the Reformation Parliament. I do not forget that Coke sometimes writes as it he believed in the supremacy of a law which even Parliament could not change But it would, I think, be a mistake to lay too much stress on isolated statements of this kind. In the first place, Coke was often inconsistent because he had the mind of an advocate, and therefore often allowed himself to be carried away by the argument which he was urging at the moment. In the second place, he was so thoroughly steeped in mediaeval law that he sometimes reproduces ideas which he himself would have admitted to be archaic. In the third place, he is often writing and thinking of the supremacy of the existing law, and not of the question whether Parliament was competent to change it. When Parliament is not sitting it is the existing law, as interpreted by the judges, which is supreme; and when, as in the seventeenth century, the different component parts of the Parliament cannot act together, the same result ensues. In the Fourth Institute, when he is dealing specifically with the powers of Parliament, and in other passages, he admits its supremacy freely and fully. In the sixteenth century, therefore (whatever may be true of earlier periods), it is clear that the supremacy of the law, taught by Bracton and the Yearbooks, has come to mean, not the supremacy of an unchangeable law, but the supremacy of a law which Parliament can change. The supremacy of the law is coming to mean the supremacy of Parliament. That the lawyers never placed any difficulty in the way of this evolution was a fact which had large effects upon the future development, both of the constitution and of the common law." Op. cit., IV, 186, 187. 29. Holdsworth, op. cit., IV, 185. "It was only in England that the powers of Parliament had come to be regarded as the main security for the supremacy of the law; for it was only in England that the lawyers, by freely admitting the legislative supremacy of Parliament, had gained the support of Parliament and the nation for the mediaeval doctrine of the supremacy of law." Ibid., p. 189. 30. On the tendency of Coke to assume the rôle of a strenuous advocate in the causes which enlisted his interest, on his lack of consistency in relation to such matters as the supremacy of the common law, and on his uncritical use of authorities, see Holdsworth, op. cit., V, 474 ff; also Plucknett, "Bonham's Case," Harv. Law Rev., XL, 58, for citation of cases recognizing the supremacy of Parliament. 31. For an analysis of Coke's ideas relating to a fundamental law, see R. A. MacKay, "Coke -- Parliamentary Sovereignty or the Supremacy of the Law," Michigan Law Review, XXII (January, 1924), 215. "In every government there must be Somewhat Fundamental, Somewhat like a Magna Carta, which should be standing, be unalterable.... That Parliament should not make themselves perpetual is a Fundamental. Of what assurance is a law to prevent so great an evil, if it lie in the same legislature to un-law it again? Is such a Law like to be lasting? It will be a rope of sand." Cromwell's Speech of September 12, 1654. 32. W. S. McKechnie, "Magna Carta (1215-1915)" in Malden, Magna Carta Commemoration Essays (London, 1917), p. 12. McKechnie thinks that the inaccurate eulogies of Coke and Hampden rendered a great service to the cause of constitutional government. Ibid., p. 19. 33. Plucknett, Statutes and their Interpretation in the Fourteenth Century, Part II. 34. Cf. The American Doctrine of Judicial Supremacy, chap. 2 and Plucknett, "Bonham's Case and Judicial Review," Harv. Law Rev., XL, 61 ff. 35. I, 41-43. See also, Hooker, The Laws of Ecclesiastical Polity, Book III, chap. 9. 36. "The History of the Law of Nature," Journal of Society of Comparative Legislation, II (1900), 418, and Columbia Law Review, I (Jan., 1901), 11. Cf. also Pollock, The Expansion of the Common Law (London, 1904), pp. 107-138. "The term 'law of nature,' or natural law, has been in use in various applications ever since the time of the later Roman Republic. Their variety and apparent diversity have tended to obscure the central idea which underlies them all, that of an ultimate principle of fitness with regard to the nature of man as a rational and social being, which is, or ought to be the justification of every form of positive law. Such a principle, under the name of reason, reasonableness, or sometimes natural justice, is fully recognized in our own system, but the difference in terminology has tended to conceal the similarity from English lawyers during the last century or more." Pollock, "The History of the Law of Nature," Col. Law Rev., p. 11. 37. Christopher St. Germain, Doctor and Student, Dial., 1. chap. 5. St. Germain aimed to popularize the canonist conception of equity and to define its relations to the common law, and he exercised a great influence on the development of modern English equity. Holdsworth, op. cit., V, 266 ff. 38. "The Common Law is pictured invested with a halo of dignity, peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the law of nature implanted by God in the heart of man," Figgis, The Divine Right of Kings, pp. 228, 229. "Common Law is the perfect ideal law; for it is natural reason developed and expounded by the collective wisdom of many generations." Ibid., p. 220. 39. The Expansion of the Common Law, p. 108, also Pollock, Essays in the Law, pp. 63, 68, 69. 40. The Expansion of the Common Law, pp. 108-113. Pollock speaks of this law of nature or law of reason as a "pervading ideal, of which it would be hardly too much to say that it is the life of the modern Common Law," ibid., p. 109. 41. Pollock, Essays in the Law, p. 70 See Local Government Board v. Arlidge (1913) 1 K. B. 463; (1914) 1 K. B. 160; (1915) A. C. 120. In the Arlidge Case administrative proceedings which did not accord the injured party a hearing or an opportunity to see the record on which the decision of the officers had been rendered were held valid. The first trial in the Court of King's Bench resulted in the approval of the administrative action. The failure to grant a hearing or to permit an examination of the records, the Court of Appeal held to be contrary to the principles of natural justice on which the English common law is based. See especially, opinion of J. Vaughn Williams, Rex v. Local Government Board (1914) 1 K. B. 160, 176. By the House of Lords this decision was reversed on the ground that the acts of Parliament expressly authorized such administrative proceedings and did not provide in these instances for review by the courts. Lord Shaw disapproved of the ground on which the Court of Appeal based its judgment. He observed: "In so far as the term 'natural justice' means that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous." Local Government Board v. Arlidge (1915) A. C. 120, 138. Lord Moulton also objected to the use of the phrase "contrary to natural justice" in this connection, ibid., 150. Cf. also Sir Paul Vinogradoff, Yale Law Journal, XXXIV, 68, and decisions and remarks in the cases of Scott v. Scott (1913) C. 417, 176 (an action for the nullity of a marriage in which proceedings were conducted in camera) and of Chester v. Bateson (1920) 1 K. B. 829 (interference with rights of citizens through ministerial orders under the Defence of the Realm Act). 42. Cf. Pollock, The Expansion of the Common Law, pp, 123 ff. A few applications of law of nature concepts may be cited: Certain decisions relating to the validity of the procedure of foreign courts when judgments had been rendered without notice or through fraud made use of the phrase "contrary to natural justice." For example, Lord Ellenborough said: "It is contrary to the first principles of reason and justice that either in civil or criminal proceedings, a man should be condemned before he is heard." Buchanan v. Rucker (1807) 1 Camp. 63, 66. For a criticism of this language of Ellenborough as no more than declamation, see J. Blackburn in Schibsby v. Westenholz (1870) L. R. 6 Q. B. 155, 160. Bramwell B. "It this were the case of a judgment obtained by reason of untrue statements contained in an affidavit in a foreign court where the procedure is contrary to natural justice, then we might refuse to give effect to that judgment.... If the proceedings be in accordance with the practice of the foreign court, but that practice is not in accordance with natural justice, this court will not allow itself to be concluded by them." In Crawley v. Isaacs (1867) 16 L. T R. 529, 531. Mellish, L. J. "It was always held that a foreign judgment could be impeached at law as contrary to the principles of natural justice, as, for instance, on the ground of the defendant having had no notice of the foreign action, or not having been summoned or of want of jurisdiction, or that the judgment was fraudulently obtained." In Ochsenbein v. Papelier (1873) L. R. 8 Ch. 695, 700. "Our common-law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise." Justice James Parke in Mirehouse v. Rennell (1833) 1 Cl. & F. 527, 546. A modern illustration of the application of the old doctrine of natural rights is made by Justice Farwell when in giving judgment on certain rights involved in underground water courses he remarks: "The foundation of the right as stated throughout all the cases is jus naturae [citations to a number of cases follow] ... I have come to the conclusion, therefore, that jus naturae is used in these cases as expressing that principle in English law which is akin to, if not derived from, the jus naturale of Roman law. English law is, of course, quite independent of Roman law, but the conception of aequum et bonum and the rights flowing therefrom which are included in the jus naturale underlie a great part of English common law; although it is not usual to find 'the law of nature' or 'natural law' referred to in so many words in English cases." Bradford Corporation v. Ferrand (1902) 2 Ch. 655, 661, 662. Cf. Lord Mansfield's reference to obligations of justice and equity in Moses v. Macferlen (1760) 2 Burr. 1005, 1012 and opinions of Baron Martin in Freeman v. Jeffries (1869) L. R. 4 Ex. 189, 199 and Justice Buller in Master v. Miller (1791) 4 T. R. 320, 342. Justice Parker, referring to the custom that a mortgage on the real estate of a married woman might be executed by her husband without having been acknowledged by her, said "It is quite clear that for a custom to be good it must be reasonable or, at any rate, not unreasonable. The words 'reasonable or not reasonable' imply an appeal to some criterion higher than the mere rules or maxims embodied in the common law, for it is no objection to a custom that it is not in accordance with these rules or maxims.... A custom to be valid must be such that, in the opinion of a trained lawyer, it is consistent or, at any rate, not inconsistent, with those general principles which, quite apart from particular rule or maxims, lie at the root of our legal system.... 'Custom,' as it is put in Needier v. Bishop of Winchester (Hob. 220, 225) 'must not deprive the law of nature.' Lawyers of today do not refer to the law of nature as freely or confidently as lawyers did centuries ago, but, translated into modern phraseology, I think this means that a custom ... must be according to the principles of our common law." Johnson v. Clark (1908) 1 Ch. 303, 311, 312. 43. In British India the law of nature has been used as a device to aid in the introduction of English legal ideas The judges are instructed in various Indian provinces to act "according to justice, equity and good conscience." Pollock, Essays in the Law, p. 70 and Expansion of the Common Law, pp. 132 ff. 44. W. G Miller, The Law of Nature and Nations in Scotland (Edinburgh, 1896), p. 5. 45. The German Recht is never quite our "right" or quite our "law" says Maitland in his introduction to Political Theories of the Middle Ages by Otto Gierke, p. lxiii. Closely related to the German Recht is what is called by Ihering the Sittlichkeit, "the system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard." See Lord Haldane, "Higher Nationality: A Study in Law and Ethics," American Bar Association Reports, XXXVIII (1913), 393. Though there is no word in English which exactly expresses the meaning of Sittlichkeit, it is sometimes translated as "social ethics." 46. "There is nothing in the Greek language exactly corresponding to the Latin jus. The Roman term cannot be translated by nomoV, which is mainly used for statutory law -- lex. Nor is to dikaion an equivalent, for it signifies "the just." ... These phraseological peculiarities point to the highly important fact that the Greeks regarded law primarily as the embodiment of justice." Vinogradoff, Jurisprudence of the Greek City, p. 19. 47. Laurent, Principes du droit civil français, vol. I, sec. 2, also Baudry-Lacantinerie, Precis de droit civil, vol. I, sec. 1. 48. "Recht is 'right and law' -- the law looked at not merely as courts enforce it, but also with reference to what the courts are seeking to attain through the judicial administration of justice." Pound, Law and Morals, pp. 84, 8s. 49. It may be observed that the German terms Recht and Naturrecht include only a portion of good conduct, the remainder being covered by Tugend, Sittlichkeit, and Moralität. In France, droit and droit naturel are opposed to moralité. Sir Frederick Pollock speaks of the Continental schools of jurisprudence as either ethical or historical. "By the ethical school I mean ... those authors who throw their main strength on investigating the universal moral and social conditions of government and laws, and expounding what such government and laws are or ought to be, so far as determined by conformity to those conditions. This is the nearest account I can give in few words of what is implied in modern usage by the terms law of nature, droit naturel or Naturrecht." An Introduction to the History of the Science of Politics, p. 110. 50. "The Law of Nature," Law Quar. Rev., XI (April, 1926), 121. 51. "English lawyers are not, and never have been ready," says Professor Holdsworth, "to receive and use as the basis of their reasoning the theories of legal and political philosophers." Some Lessons from our Legal History (New York, 1928), p. 109. 52. Generalizations, often assumed and followed without any definite formulation, are likely to form the major premises of judicial reasoning. For some interesting examples of this type, cf. H. Rottschaefer, "Legal Theory and the Practice of the Law," Minnesota Law Review, X (April, 1926), 382. Mr. Rottschaefer notes that not only are such generalizations subsumed in much judicial thinking but similar generalizations serve as a background for those who criticize legal rules. CHAPTER III AMERICAN AND FRENCH NATURAL LAW DOCTRINES BY THE time political theories and customs were taking definite shape in the American Colonies the characteristic ideas relating to natural law in England and in Continental Europe had been introduced into the environment of a pioneer rural civilization. But before the transmission took place a change in emphasis was under way which was accentuated under the peculiar conditions prevailing in America. 1. Transition from Natural Law Doctrines to Theories of Natural Rights. When the standard works of Gentilis, Grotius, Pufendorf, and Burlamaqui aimed to present the basic principles of the public and private law of Europe natural law doctrines were generally approved. As the importance of the canon law declined the doctrines were limited in their applications and, in certain countries, except for their use as critical standards to oppose the arbitrary and dictatorial policies of princes and kings, they were sparingly used in the practical operation of the law. But all branches of the law were subjected to natural law influences. The original concepts of natural law, however, were to undergo a marked transformation, when the Reformation leaders, following Roman and mediaeval authorities, gave great significance in political and religious matters to the rights and liberties of the individual. Instead of natural law or rules of superior validity jus naturale was translated into a theory of natural rights -- qualities inherent in man which it was the duty of the state to protect. Grotius was one of the foremost mediaeval thinkers to find a source of natural rights in certain inherent qualities belonging to the individual. These rights, which were sanctioned by natural law, might be discovered by human reason.[1] Montesquieu and the Physiocrats in France and English philosophers also formulated theories of natural rights as inherent in the individual, with certain formulas derived therefrom designed to limit all public authorities.[2] Moreover, the distinction suggested several centuries earlier that rulers were bound not only by the primary laws of nature but also by certain fundamental secondary natural laws which were expressed in positive laws, was formally enunciated.[3] One of the popular writers of the eighteenth century, who based his political philosophy on rights inherent in the individual, was Vattel, whose volume on The Law of Nations appeared in many editions, French, English, and German.[4] As a representative authority Vattel's views, as well as those of Grotius, Pufendorf, and Burlamaqui, were extensively studied and followed during the formative period of American law. Vattel, who was a follower of Frederic von Wolff, began to translate Wolff's work, Jus Naturae Methodo Scientifica Pertractatum, and to render it available to the public and the result was that he put the doctrines of Wolff into such form that a relatively new and popular treatise was prepared. To Vattel, it was regarded as settled on the basis of natural law "that liberty and independence belong to man by his very nature, and that they cannot be taken from him without his consent." Moreover, "the whole Nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all its undertakings.... We must therefore," he continued, "apply to nations the rules of the natural law to discover what are their obligations and their rights; hence, the law of Nations is in its origin merely the law of Nature applied to Nations." Vattel regarded this law immutable as being founded "on the nature of things," and particularly "on the nature of man" and hence he thought, "nations can not alter it by agreement, nor individually or mutually release themselves from it."[5] Vattel aided in the movement to establish written constitutions, as the foundation of public authority. He maintained that the fundamental laws enacted by the nation itself are not subject to change by the legislature. The distinction between fundamental and ordinary law was clearly drawn,[6] and American legal authorities soon began to make practical applications of the distinction. With the writings of Grotius, Pufendorf, Wolff, and Vattel attention was directed to a state of nature -- a golden age which existed at the beginning of society in which the laws of nature, as affecting the relations of individuals and of communities, predominated.[7] These laws of nature were of the immutable type, and it was not long before jurists and politicians began to think of man as emerging from this state of nature with a panoply of rights belonging to him as an individual. Political and economic conditions in Europe and in America were taking the shape which gave vital and legal force to the emerging concept of the natural inherent and inalienable rights of man.[8] 2. American Theories of Natural Law and of Inalienable Rights. In the process of transplanting fundamental law notions to the American Colonies, conditions were favorable not only to the reception of higher law theories but also to their incorporation as basic doctrines of public and private law. The colonists brought with them many of the current ideas of the common law as the foundation of their legal arrangements. But the law was as a rule applied by those untrained in the technical procedure and rules of the English system. Statutes applicable to local conditions were frequently lacking. Courts and judges found themselves called upon to make law for the occasion with little else to guide them except the Bible, the precepts of natural law or natural justice, and the community sentiment of what ought to be right and just. Under such circumstances appeals were frequently made to natural law or to allied concepts. The pioneer rural conditions in which most of the colonists lived encouraged self-reliance not only in their economic and social conditions but also in their political ideas. Dependent for the most part upon their own efforts for a livelihood, they also had to assume a large share of responsibility in protecting individual and community rights. With the organized evidences of government far removed from the ordinary activities of life it was customary to place a high value on the assertion and protection of individual personal rights. Moreover, the normal methods of making and enforcing law tended to give special value to doctrines of natural law. Under the primitive conditions which prevailed, natural rights and natural law were regarded either as identical or as merely two phases of the same concept. Having theoretically, at least, adopted the rules and principles of the common law the prevailing English views as to the supremacy of the law were accepted. And the higher law doctrine as later announced by Blackstone gave sanction to the belief that certain laws were superior to all civil enactments.[9] The judges in the Colonies frequently indicated their belief in the natural laws, which were considered true laws, and legislation was thought to be binding only in so far as it was an expression of these laws.[10] The process of the transmission of natural law theories to the new environment was hastened by the appeal to higher law ideas by the leaders of the revolt against Great Britain and by the philosophic trend of the eighteenth century to place uppermost in the political sphere the natural rights of the individual.[11] The popularity of the concepts of natural rights and of natural law was greatly increased when they were espoused by the leaders of the American and French Revolutions. The American Revolution not only came first but also resulted in a more specific formulation of natural rights as inherent in the individual. James Otis, Samuel Adams, John Adams,[12] Thomas Paine, Patrick Henry, and Thomas Jefferson[13] made frequent use of the natural rights doctrine to support the right of rebellion against the arbitrary exercise of governmental powers. The Declaration of Independence gave a standard formula for the use of advocates of the doctrine in the dictum that men are "endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness." Many of the Revolutionary patriots believed with Thomas Dickinson that liberties do not result from charters; charters rather are in the nature of declarations of pre-existing rights. They are founded, John Adams claimed, "in the frame of human nature, rooted in the constitution of the intellectual and moral world."[14] Until the adoption of the Declaration of Independence it was customary to regard these rights as having their sanction in the British Constitution.[15] "The law of nature and the law of revelation are both divine; they flow, though in different channels from the same adorable source," said James Wilson. In the course of his law Lectures he frequently extolled the instinctive or intuitive faculties whereby man arrived at principles of right and justice.[16] The doctrine of the freedom and equality of men in their natural state, such as that described by Seneca and formulated into a dogma of mediaeval thought, was translated into a principle of political action. Governments, to justify their existence, were to be measured by the security they furnished for the natural principles of freedom and of equality. Concepts of law in North America in the eighteenth and in the early nineteenth centuries were molded and, in considerable part, determined under the influence of the prevailing doctrine of inalienable rights and this idea gave a peculiar turn to all legal thinking. The law of the Colonies, the public papers and charters of the Revolutionary period, and the first written constitutions with specific enumeration of certain natural and inalienable rights, bear witness to the conviction that such rights were thought to exist, and that governments were designed primarily to preserve them.[17] Legislative enactments contrary to natural law or natural justice were regarded as ipso facto void and it was declared to be the duty of all persons to resist their enforcement. The view of the English philosopher that "that which is not just is not law and that which is not law ought not to be obeyed,"[18] was not infrequently taken as the starting point in the application of legal rules. Moreover, the belief in natural law and in inalienable rights aided materially in giving support to the courts when they were asserting the right to declare void enactments which interfered with these natural rights or contravened the express terms of written constitutions.[19] The natural law philosophy, as a background for legal thinking, which was a part of the heritage of Western Europe and of America in the eighteenth century, was extensively used in America, where it was transformed into laissez faire individualistic dogmas under frontier methods of administering justice. It was also identified with the immemorial rights of Englishmen as declared by Coke and Blackstone. Into the philosophical mold of Grotius, Pufendorf, Burlamaqui, and Vattel was injected some of the characteristic ideas of Coke's Second Institute and of Blackstone's Commentaries and there was created a unique form of natural law, supposed to be universal in its applications.[20] American political and legal theorists made use of every phase of natural law thinking. Judges with little legal training and with a scarcity of law books, when precepts from the Bible were not applicable, turned to natural law as a convenient symbol for the divine sanction of laws, after the fashion of the mediaeval canonists. To Paine and Jefferson, as with certain Greek thinkers, there was a disposition to recur to the deistic emphasis upon the laws of nature and to associate the concept with underlying principles of natural phenomena. Others identified the rights of nature with the rights of Englishmen. Though not so well known, Coke's appeal to natural law and to the higher reason of the common law was called upon by legal advocates when attacking obnoxious acts of the colonial legislatures, just as higher laws were appealed to in resisting the arbitrary acts of the King or of Parliament. The appeal to natural rights and natural law as a justification for the right of revolution was one of the chief features of the formative period of American institutions. Natural law was also conceived as an ideal to which all just laws must conform,[21] as from the viewpoint of certain Greek and Roman jurists, and, in this sense, it was a convenient doctrine to temper the arbitrary features of a system of strict legal rules. It thus became an instrument of legal growth. Conceptions of a state of nature wherein men enjoyed natural freedom and equality conditioned the thinking of most of the Revolutionary leaders and through them a principle was announced which has proved to be one of the most insistent and fertile concepts of American legal thought, namely, that each individual is entitled to the equal protection of the laws. Assuming a state of nature antedating organized political life wherein man was possessed of inherent and inalienable rights arising from the laws of nature, and basing government on a social compact resulting from this condition, there was formulated in the representative American constitution a group of rights belonging to the individual and of such superior sanctity that political society was formed primarily to preserve them. Out of a state of nature and emanating from the laws of nature arose the familiar inalienable rights which were superior to the state itself and, in fact, above all forms of political or social control. The theory of natural rights, which is the characteristic American interpretation of natural law, became the foundation for the concept of limited government which gained such a strong foothold in the United States. It gave the theoretical basis for the American doctrine of civil liberty which set the rights of the individual against the government and insisted on the formulation of limits on all forms of political authority.[22] Thus the democratic ideas of the monarchomachs and of the representative theorists of England and of Continental Europe were made more concrete and more directly applicable to human affairs. It seems strange that this revival of the general acceptance of ideas of natural law and natural rights should have preceded by only a few decades a marked decline of the belief in natural laws of superior sanctity. Before considering the causes for this decline, it is necessary to trace briefly a similar revival of ancient superior law notions in France. 3. French Natural Law Concepts. The French system of law, arising as a direct development from the Roman law, was molded in its transmission through mediaeval channels in the light of the Roman and mediaeval concepts of natural law. Each variety of the concept characteristic of these periods had advocates in France. The divine sources and sanctions of natural law were particularly emphasized by French jurists of the Catholic faith. When human reason was given an important rôle in discovering natural law, it was in France that this rationalized natural law found many interpreters. The French attitude was well stated by Guizot, who said: "Any action, or any authority of man over man is legitimate only if it is in accord with reason, justice and truth, which are based on the law of God."[23] It was not until the modern period that mediaeval canon law, with its natural law principles, and local customs, often arising from similar sources, were replaced by laws emanating from a king or assembly. Fostering ideas of permanence and uniformity amidst the variations in the customary law and in the diversities of the provincial practices the natural law theories were looked upon as a factor of unity; and those favoring a united France became devoted exponents of the law of nature philosophy.[24] When the French kings in their conflict with the Papacy fell back on the practices of the Roman imperialists, they asserted principles of political supremacy which were destined to weaken the controlling force of natural law. Bodin, as we have seen, became the philosopher of royal absolutism and he relegated natural law to principles which were merely a guide to the king's conscience. To those bent upon establishing an unlimited political sovereign, superior natural laws were an obstacle to be obliterated. But higher law ideas were too well established in the legal background of French thought to be entirely discarded. Moreover, the efforts to make of the king a ruler without limits on his authority soon brought an inevitable reaction in which natural law ideas again came to the forefront. The economic and political conditions of the Ancien Regime prepared the way for the French Declaration of the Rights of Man. Prior to the French Revolution the Physiocrats advocated the doctrine of natural rights. There is, in effect, observed Quesnay, above positive laws, a body of laws, sovereign, immutable, and inviolable. Legal rules which conform to this body of laws are valid; those which are contrary thereto are void.[25] The natural rights of the individual, they contended, comprised three species of property. "First, the property of his person which includes the right to use all his faculties, and hence the right to labor; Second, movable property which consists of the results of his labor; Third, landed property."[26] To the Physiocrats laws were rules of justice and morality; they were not made by men but were merely discovered. They believed that certain laws, especially those relating to liberty and property, were essential to the social order and that only ordinances to carry out such laws could be made by legislatures or executives.[27] The essence of the Physiocratic doctrine was laissez faire in character, or to the effect that "economic law might be depended upon to bring about the best good of men and nations, if governments kept their hands off."[28] They insisted that governmental action ought to be restricted within the narrowest limits and individual activity ought to have every possible opportunity for expression -- a doctrine which has left its impress on many of the aspects of American legal thinking. But in certain respects the ideas of the Physiocrats, as those of their predecessors, tended to favor state absolutism. The French kings of the seventeenth and eighteenth centuries sought to assert complete control over the social and political life of the nation. Bossuet, the defender of this regime, followed Bodin and Hobbes and based the origin of all governments on force.[29] Emerging doctrines of nationalism gave encouragement to the assertion of principles of state absolutism. The doctrine of individual rights as a basis to check the public powers had not yet impregnated French legal thought. Mediaeval doctrines of a superior natural law, however, served to give a sanction to the assertion of a theory of individual natural rights. Extreme instances of the use of arbitrary authority by the kings were paving the way for resistance sanctioned again by appeals to higher laws. Political theories often take their peculiar forms because of attempts on the part of those interested to defend a cause. And in this case Protestants and Catholics following theories earlier formulated in Europe advocated limits on royal authority in the interest of the people. Though the old French parlements performed in the main judicial functions as courts of the king over which he presided and whose judgments he might reverse, the natural division of powers which resulted led to the assumption of a share of the political powers by these bodies.[30] To them was accorded the duty of registering the royal edicts and in doing so they began to question the validity of the acts of the king or of his agents. As early as 1648 the parlements had proclaimed the necessity of "a legal order" and as a basis for such an order proposed certain fundamental laws or fundamental principles which were so essential that the king could not change them.[31] "Thus there appeared in an absolute monarchy, by the simple fact of the separation of powers, an organ of resistance and of control. The parlement, recruited from the higher middle class, claimed to be the guardian of the fundamental laws of the kingdom and considered itself as a moderating power designed to curb the excesses of royal absolutism."[32] A convenient vagueness in the term "fundamental laws" encouraged the members of the parlements to intervene on behalf of the people whenever a favorable opportunity occurred.[33] If need be the king could in the end secure his way by arresting and banishing the leaders of the parlements, but these bodies regarded themselves as mediators between the king and the people and served to keep before the public a belief in fundamental laws which the king could not change.[34] Some of the cahiers issued preceding the French Revolution in resisting certain decrees frankly based their protests on the doctrine of fundamental and superior laws.[35] These mild protests accomplished little toward checking the tendencies in the direction of royal absolutism. But they strengthened the insistence on higher law ideas which were soon to find expression in the Declaration of the Rights of Man and of the Citizen. Just as the leaders of the American Revolution appealed to the doctrine of natural and inalienable rights, so those who directed the French Revolution recognized as a fundamental truth the existence of similar rights.[36] A controversy has ensued among scholars as to whether the draftsmen of the French declaration were guided by the doctrines of Montesquieu and of Rousseau as well as of their predecessors or by the previous American declarations.[37] Whatever may be the merits of the claims of the partisans on each side it was the French Declaration which heralded to the world the great principles of natural and inalienable rights which were considered superior to all governments and which it was the prime duty of all democratic states to protect.[38] The doctrine of natural rights again based on the natural and necessary laws of a state of nature was made the very cornerstone of a political system. Differing from the major portions of the bills of rights of the American constitutions, which were comprised mainly of some of the hard-won privileges which Englishmen had acquired in centuries of conflict with their rulers, the French provisions were rather in the nature of vague theories or platitudes which had little practical meaning to the Frenchmen of the time. Similar theories were, of course, included in the Declaration of Independence and in certain provisions of the state constitutions. Though the Declaration of the Rights of Man and the political and social philosophy involved therein left a permanent impression upon European thought, the conservative reaction which followed the French Revolution brought into disrepute natural and inalienable rights concepts which were regarded akin to ideas of violence and terrorism. It became unpopular in certain quarters to support the law of nature doctrines or to appeal to higher laws than those promulgated by the rulers. But Roman law principles and various ideas connected therewith were conducive to the continuance of natural law doctrines. And during the nineteenth century many treatises appeared, the object of which was to adapt natural law phrases prevalent in codes and in the customary legal terminology to the peculiar conditions of the time. Various schools of legal philosophy continued to be protagonists of natural law theories when in political circles these theories were regarded as exploded vagaries. To the efforts to keep alive natural law doctrines attention will be directed later. But these efforts for the time being seemed to be obscured by the persistent influences designed to discredit natural law theories. 4. The Decline of the Natural Rights Philosophy. As the enthusiasm waned which fostered eighteenth-century political radicalism in America and in France and the radical movement came into disrepute in all countries it became popular to discredit the natural rights thinking. To the conservative leaders who took charge of the political destinies of the European nations after the French Revolution the inalienable rights doctrine was "an invitation to insurrection and a persistent cause of anarchy."[39] And when the reaction from the practices and the political philosophy of the American and the French Revolutions gained ascendency in the United States one of the chief objectives was to discredit Thomas Jefferson and the tenets of the Declaration of Independence.[40] Both in politics and in religion, conservatism was in control, and men were disposed to welcome theories which made for social stability.[41] It is well to note that it was the politicians who were seeking greater political authority and those who were inclined to support absolutism in government who were chiefly concerned in the repudiation of natural rights and related natural law theories. Local justices in the application of the law to concrete cases and the people generally clung to natural law concepts long after they were thought to be repudiated in high political circles. The anti-natural rights doctrine, according to Mr. Becker, became the accepted creed of all those who wished to be classed neither with the reactionaries nor the revolutionists, those liberal-conservatives and conservative-liberals who realized that they lived in a changing world but ardently prayed that it might not change too rapidly. To prevent the world from changing too rapidly, nothing is more effective than to look with admiration on the past.[42] A combination of factors tended to discredit the natural rights doctrine. Politically the doctrine was used to justify not alone political democracy but also the free right of the people to change their governments -- namely, as a sanction for the right of revolution.[43] When the right to revolt led to the Reign of Terror and its aftermath the political reaction that followed in Europe placed the stamp of disgrace on the much-heralded doctrines of the revolutionary period.[44] Michel finds that the reaction against the individualistic doctrines of the French Revolution was fairly complete by 1825. French political thought with the exception of small groups had turned away from the belief in natural rights, anterior and superior to the state. Rights were the result of laws and laws came from a state or political power with supreme authority. Public powers were limited only by the personal God of De Bonald or the Absolute of Hegel, but the sovereign alone was to be judge of the nature of these limits.[45] The attack on eighteenth-century individualism was encouraged and strengthened also by the economic doctrines advocated by Saint Simon and his followers. There is no place in his system for the idea of rights but instead of rights he directs attention to interests. In America the conservative reaction which followed the periods of the Revolution and of the Confederation did not so quickly discredit the natural rights philosophy of the Declaration of Independence, but the defenders of this philosophy grew fewer in number while the critics and opponents increased.[46] Some authors, Dr. Wright observes, like Chipman, Hurlbut, Lieber, and Gerrit Smith, retain almost unchanged the traditional American theory that the basis of all laws and of all rights is to be found in the immutable truths taught by nature and to be learned by men through the use of reason, conscience, and the revealed work of God. Others, like Calhoun, Brownson, Fitzhugh, and Hildreth, discard the idea that there are certain inalienable rights derived from nature, although in every case holding that there are basic laws or principles which underlie all government and all of the social and economic relationships of men.[47] He finds only one writer, Thomas Cooper, who attempts to refute the whole natural law theory.[48] In England the natural rights theories were attacked also quite vigorously by the Social-Utilitarians who repudiated the foremost eighteenth-century political theories and made social utility the test of political institutions. Bentham, one of the leaders of this school, lent the weight of his influence against the natural law doctrines. For the idea that men had rights by nature which the sovereign was compelled to respect Bentham felt great contempt, nor did he have any confidence in the effort to place limitations on the supreme authority in a state.[49] "To maintain," says Bentham, "that there is a natural right and to impose it as a limit to positive laws, to say that law cannot go against natural right, to recognize, in consequence, the right which attacks law, which overturns and annuls it, is at once to render all government impossible and to defy reason."[50] He and his associates could see no limits to the sovereign power except restraints through the judgment of those in whom this power was reposed. The historic method which grew in favor in history and in politics admitted that rights were founded in nature but identified nature with history and affirmed that the institutions of any nation were properly but an expression of the life of the people. By a change in the definition of nature the former concepts were made the basis for anti-revolutionary philosophies. Historians such as Ranke[51] and Renan,[52] the philosopher, Hegel,[53] and the sociologist Auguste Comte[54] also joined the ranks of those who sought effectively to dispose of the ideas of natural rights superior to man-made regulations. And the historical school of jurists led by Savigny repudiated the eighteenth-century doctrines of natural rights and of a law of nature. To this school law existed independently of the state. It was the creation of the national consciousness or the spirit of the people and was evidenced by their customary habits. It was merely the function of the state to discover and enforce these customary laws.[55] Rights do not belong to man, as such, Savigny maintained, they are the result of positive laws. And positive laws, like language, morals, social and religious institutions, develop through the customs, habits, and traditions of a people. And with the aid of the historical jurists the older concepts of the law of nature and of natural rights were to give way to legal ideas as an outgrowth of history. Law was conceived as the unfolding of ideas of right through the customs and traditions to which people give obedience.[56] The philosophic forces at work in this development are suggestively characterized by Justice Cardozo, who observes that the seventeenth and eighteenth centuries put their faith in Nature, and "their dominant philosophy was that of natural law." Preordained and immutable were the patterns to which conformity was due. The nineteenth century put its faith in unconscious and undirected growth; and Nature dethroned as an exemplar, was made to yield place to History. "None of the nineteenth-century interpretations will hear of an element of creative activity of men as lawyers, judges, writers of books, legislators. They have nothing to say about juristic endeavors to reconcile or harmonize or compromise overlapping claims by creative reason or an inventive process of trial and error. They think of the phenomena of legal development as events, as if men were not acting in the bringing about of every one of them." In the thought of this school, law is in the grip of forces stronger than itself, which shape the path of its advance.[57] Thus the historical school of jurisprudence set about to destroy all vestiges of the ideas of natural law or natural rights.[58] The natural rights philosophy received its most direct blow from the jurist John Austin and his successors who founded the analytical school of jurisprudence, and the advocates of the German theory that the state is the sole source and sanction of law, such as Ihering, Laband, and Jellinek. The Austinians conceived as the essence of the state a sovereign -- a supreme, irresistible, absolute, and uncontrolled authority. The rules made or sanctioned by this authority were laws -- all other rules were merely customs, habits, or moral practices. Questions relative to justice and to the aims of the law were consigned to the domain of positive morality.[59] Thus much of public law was denied the status of law, and the familiar dogmas of natural law and of inalienable rights were utterly repudiated. To the followers of Austin the attack upon natural rights, so far as such rights are accorded legal significance, is one which must be continued until no trace of the concept is left. Similar views were advocated by the supporters of the Macht Politik in Germany.[60] Many factors and influences combined, therefore, to discredit political theorizing based on the doctrine of natural rights until it was referred to as "an exploded theory no longer believed in by any one of note."[61] Natural law was absorbed as a feature of American public and private law at a time when the theories on which such a law was based were declining in Europe. The decadence of natural law concepts which affected the political circles mainly and which was characteristic of the decades in the middle of the nineteenth century in most European countries had its counterpart in the United States in somewhat narrowing the scope of the law of nature thinking and in giving the term a rigidity which tended to support the existing legal order. It was under these conditions that the courts fostered the gradual acceptance of some principles of natural law in the public law of the United States. 1. See De Jure Belli ac Pacis, Book I, chap. 1. 2. Recognizing that the formulation and classification of the inborn and indestructible rights of the individual belonged to a later stage in the growth of the theory of natural law, Gierke observed that mediaeval thought was filled with such ideas. Political Theories of the Middle Ages, p. 81; cf. also, Gierke, Johannes Althusius, pp. 107 ff. It is obvious that to attribute the origin of the theory of natural rights to the Protestant revolt is incorrect. Cf. David G. Ritchie, Natural Rights: A criticism of some political and ethical conceptions (3d ed., London, 1916), p. 6. 3. Gierke, Johannes Althusius, p. 175. For the effort to distinguish between immutable laws which do or do not admit of exceptions, see Domat, The Civil Law in its Natural Order, trans. by Wm. Strahan (2d ed., London, 1737), I, 64. 4. M. de Vattel, Le droit des gens ou principes de la loi naturelle appliques a la conduite et aux affaires des Nations et des Souverains (ed. of 1758) reproduced in the Classics of International Law, edited by James Brown Scott and published by the Carnegie Institution of Washington (1916). 5. Vattel, The Law of Nations, III, 3, 4. Professor Reeves thinks that the "impress of the law of nature upon the American ideas of the law of nations seems upon the whole not to be great." His view is apparently influenced by the tendency of American lawyers to depreciate natural law ideas. J. S. Reeves, "The Influence of the Law of Nature upon International Law in the United States," American Journal of International Law, III (1909), 547. 6. The Law of Nations, III, chap. 3. 7. Cf. Introduction by Albert de Lapradelle, in Vattel, op. cit.. III, viii. John Milton claimed, in the Gangreana, that "all men are by nature the sons of Adam, and from him have legitimately derived natural propriety [property], right and freedom. By natural birth all men are equally and alike born to like propriety, liberty and freedom." 8. One reason why Englishmen have given less consideration to natural rights, it is claimed, is that they have regarded their liberties as due to acquired rights rather than to natural rights. To them the concept "natural" became identical with the term "traditional." Jones, Cambridge Legal Essays (Cambridge, 1926), p. 228. 9. According to the classical natural law theory prevalent in colonial times all positive law was "a reflection of an ideal body of perfect rules demonstrable by reason, and valid for all times, all places and all men. Positive legal precepts got their validity from their conformity to these ideals" Pound, "The Theory of Judicial Decision," Harvard Law Review, XXXVI (May, 1923), 802. 10. P. S. Reinsch, "Colonial Common Law," Select Essays in Anglo-American Legal History, I, 376, 413; Professor Reinsch observes that "the analytical theory of Hobbes, making positive law independent of moral considerations and basing it on a sovereign will, was not accepted at that time. The law of God, the law of nature, was looked upon as the true law." For citations of representative colonial opinions see B F. Wright, Jr , "Natural Law in American Political Theory," Southwestern Political and Social Science Quarterly, IV (December, 1923), 202, 206. Cf. for example, John Wise, "A Vindication of the Government of New England Churches" -- a pre-revolutionary treatise based on the natural law doctrines of Pufendorf. 11. Professor McIlwain maintains that the colonists based their argument for freedom from control by Parliament, first on their charters; second, on the contention "that the English constitution, founded on natural law, was a free constitution, guaranteeing to all its subjects wherever they might be the fundamental rights incident to free government"; and third, on a "non-constitutional appeal to natural law, no longer as a part of the British constitution, but as the rights of man in general." The American Revolution. A constitutional interpretation (New York, 1923), p. 152. 12. John Adams thought there were "rights antecedent to all earthly government -- Rights, that cannot be repealed or restrained by human laws -- Rights, derived from the great Legislator of the Universe." Works, ed. by C. F. Adams (Boston, 1865), III, 449. See also Otis, The Rights of the British Colonies Asserted and Proved, pp. 11, 16.; Wells, Life of Samuel Adams (Boston, 1865), I, 16-23, 70-77; and Thomas Paine, The Rights of Man. 13. For Jefferson's views, see Writings (Ford's ed.), V, 147, 329; VI, 87, 88, 102, 517; VII, 172, 406. It was asserted that colonial rights were based on "the immutable laws of nature, the principles of the English Constitution and the several charters or compacts." Journals of the Continental Congress, ed. by Ford (Washington, 1004), I, 67. James Otis in his argument against writs of assistance relied on natural rights and fundamental law. Cf. The Rights of the British Colonies; also C. H. McIlwain, op. cit., and my article "The Law of Nature in State and Federal Judicial Decisions," Yale Law Journal, XXV (June, 1916), 617, 623. Jefferson in the Declaration of Independence in qualifying the inalienable rights used the English formula "life, liberty and the pursuit of happiness." The Virginia constitution asserted that: "All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." Constitution of Virginia, June 12, 1776. The right to revolt was characterized in the Massachusetts declaration as "incontestable, unalienable and undefeasible." 14. See B. F. Wright, Jr , "American Interpretations of Natural Law," American Political Science Review, XX (Aug. 1926), 524 ff. 15. Samuel Adams, Writings (ed. by H. A. Cushing, 1904), I, 65. "The primary, absolute, natural rights of Englishmen as frequently declared in acts of Parliament from Magna Carta to this day, are personal security, personal liberty, and private property." Wells, Life of Samuel Adams, I, 75-77. 16. Works (ed. by Andrews), 1, 106, 117, 124. Wilson expressed the current opinion among lawyers and judges during the Revolutionary period when he wrote: "The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things." 17. Jefferson believed that the "will of the majority is in all cases to prevail, but that will to be rightful, must be reasonable; that the minority possess equal rights, which equal laws must protect, and to violate would be oppression" Legitimate restraints on the rule of the majority were inalienable rights and the laws of reason. Works, VIII, 2. When Secretary of State and President, Jefferson continued to apply doctrines of natural right and natural law. "The evidence of this natural right [expatriation], like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophisticated investigations of reason but is impressed on the sense of every man." The Writings of Thomas Jefferson (ed. by H. A. Washington), VII, 73. He also defended the right of navigation on the Mississippi on the broad ground of the law of nature and of nations. 18. Sydney, Discourses Concerning Government, Book III, chap. 11 See also, Pound, "Comparative Law in the Formation of American Common Law," Acta Academiae Universalis Jurisprudentiae Comparativae (1928), I, 183 ff. 19. The American Doctrine of Judicial Supremacy, pp. 18 ff., and D. O. Wagner, "Some Antecedents of the American Doctrine of Judicial Review," Political Science Quarterly, XL (December, 1925), 561 ff. 20. Pound, "The Theory of Judicial Decision," Harv. Law Rev., XXXVI, pp. 804, 805. Hamilton identified the common law and natural law. Works (ed by Lodge), VIII, 421. In the disputes between the English political leaders and the colonists of America, Dr. Wright notes that those "who had read the orations of Cicero, the writings of Grotius and Vattel, Pufendorf and Burlamaqui, Locke and Blackstone, who had listened to sermons upon the eternal supremacy of the laws of God or had perused the arguments of the deists found in such philosophy controversial weapons suited to their needs" See, "American Interpretations of Natural Law," Amer. Pol. Sci. Rev, XX, 526 And he observes, "In the writings of all of the most influential theorists of the time the concept of a superior law of nature, from which are derived the basic rights of men, holds a very prominent place." 21. Natural rights and natural law, as an ideal form of the actual law were in the seventeenth and eighteenth centuries "guides to lead growth into definite channels and insure continuity and permanence in the development of rules and doctrines." Pound, An Introduction to the Philosophy of Law (New Haven, 1922), p. 44. 22. "The constitutional doctrine of the seventeenth and eighteenth centuries, working with the tools of natural law, erected constitutional limitations into legal obligations founded on unimpairable contract, gave a vis coactiva to constitutional limitations, enforceable if necessary by the right of resistance, and posited for every state an implied constitution founded on the natural law rights of the individual and having as much force as a written constitution." Edwin M. Borchard," Government Responsibility in Tort," Yale Law Jour., XXXVI (April, 1927), 794. 23. See, F. P. Guizot, Works, V, 60, 399, 519, and Histoire des origines du gouvernement représentatif en Europe (Brussels, 1851), II, Lecture X. 24. Voltaire referred to natural laws and natural rights which have a fundamental and immutable character. Oeuvres Completes, (new ed., Paris, 1883). In speaking of intolerance and natural law he wrote: "Natural law is that law which nature has indicated to all men." XXV, 39. At another time he referred to rights as never being established only by necessity, or force, or custom. XV, 452. 25. Quesnay, Traité du droit naturel, chap. 5, p 376. A dictum to which the Physiocrats referred was: "Ex natura jus, ordo et leges, ex hominare bitrium, regimen et coercitio." 26. William A. Dunning, Political Theories from Luther to Montesquieu, p. 59. 27. Cf. Henry Michel, L'ldée de l'état (2d ed , Paris, 1896) 17 ff. 28. Ibid., p 62. For the natural law doctrines of the Physiocrats see Quesnay, Traité du droit naturel (1765), L'ordre naturel et essential des sociétés politiques (1767). Physiocrates, Par. I, 41 and Par. II, 445. 29. Henry Michel, op. cit., pp 4 ff. 30. Glasson, Parlement de Paris et son rôle politique. 31. A. Esmein, Cours élémentaire histoire du droit français (11 ed., Paris, 1912), pp. 582 ff., and V. Marcaggi, Les origines de la déclaration des droits de l'homme de 1789 (2e ed., Paris, 1912), p. 85. Marcaggi observes that the history of the états généraux (States-General) is replete with illustrations of the assertion of the rights of man in opposition to the rights of the state. 32. Jean Brissaud, A History of French Public Law, trans. by James W. Gamer in Continental Legal History Series (Boston, 1915), p. 447. 33. V. Marcaggi, op. cit. p., 98. The remonstrance of March the 4th, 1776 cited the fundamental rule of natural law which protects the rights of person and property. Ibid., p. 101. 34. Jean Brissaud, op. cit., pp. 448 ff.; Esmein, op. cit., pp. 595 ff. 35. Marcaggi, op. cit., chap. 8. 36. Article I of the Declaration of the Rights of Man and of the Citizen, states that "Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general will." "The aim of all political association is the preservation of the natural and indefeasible rights of man. These rights are liberty, ownership, security, and resistance to oppression." See also article I of the Declaration of Rights of 1793. See Robert Redslob, Die Staatstheorien der franzosischen nationalversammlung von 1789 (Leipzig, 1912). The extent to which the ideas of the Declaration of Rights are based upon the political philosophy of Grotius, Pufendorf, Burlamaqui, and Vattel, concerning the natural equality and freedom of the individual, the right to own and use property, the liberty of conscience, and the consent of the people as the source of government, is considered by Marcaggi, op. cit., pp. 109 ff. 37. Sir Paul Vinogradoff regards the French declarations as only "the last consequences of a movement which is preeminently English and American." Yale Law Jour., XXXIV, 65. George Jellinek defended the thesis that the impetus for the French Declaration was given by Rousseau and its prototype was the American Declaration of Independence. The Declaration of the Rights of Man and of the Citizens, trans. by Max Farrand (New York, 1901). For reply to Jellinek, see Boutmy, Annales des sciences politiques, July 15, 1902. See claim that the Declaration of Rights comes from Rousseau, Paul Janet, Histoire des doctrines politiques (2d ed.), II, 612 and Tchernoff, Revue du droit public (1903), II, 96. For denial of this claim cf. Léon Duguit, "The Law and the State," Harv. Law Rev., XXXI (Nov. 1917), 27 ff. See also E. Doumergue," Les origines historiques de la Declaration des droits de l'homme et du citizen," Revue du droit public, XXI (1904), 673; and Fritz Klovekorn, Zur Entstehung der Erklärung der Menschen und Bürgerrechte (Berlin, 1910). 38. Jellinek, op. cit., p. 88. Marcaggi deals fully with different phases of this controversy. He concludes that the Declaration of 1789 was essentially a French product -- the French Declaration presenting an interpretation, philosophic in character, of superior laws, universal and immutable, whereas the English and American bills of rights were traditional and practical in character. Jellinek declares that "whatever may be the value or worthlessness of its general phrases it is under the influence of this document that the conception of the public rights of the individual has developed in the positive law of the states of the European continent." Op. cit., p. 2. 39. Carl Becker, The Declaration of Independence (New York, 1922), pp 256, 257. Edmund Burke styled the French Constitution of 1793 a "digest of anarchy." 40. At the time of the adoption of the federal Constitution, Professor McMaster states that "we see that very scanty recognition seems to have been given to the equality of men, or to their inalienable rights to life, liberty and the pursuit of happiness." John Bach McMaster, The Acquisition of Political, Social and Industrial Rights of Man in America (Cleveland, 1903), p. 40. 41. Becker, op. cit., p. 258. The chief object at this time was "to make terms with political democracy without opening the door to social upheaval." Ibid., p. 238. Eighteenth-century natural law developed anti-social tendencies by making the individual conscience the ultimate arbiter of political and legal obligations. Cf. Pound, Law and Morals (2d ed.), 88, and Justice Wilson's dictum that "The consent of those whose obedience the law requires ... I conceive to be the true origin of the obligation of human laws." Works (Andrew's ed.), I, 192. David G. Ritchie set about in an extensive treatise to demolish the theories of natural rights. "I had a certain fear," he wrote, "that in criticising that famous theory I might be occupied in slaying the already slain. Recent experience has, however, convinced me that the theory is still, in a sense, alive or at least capable of mischief. ... The real significance of the appeal to nature is, in the first place, the negative element in the appeal, it is an appeal against authorities that had lost their sacredness, against institutions that had outlived their usefulness." Natural Rights: A Criticism of some Political and Ethical Conceptions (London, 1895), IX, 13. As is the case with other opponents of the doctrine the gist of Ritchie's argument centers about the use of the terms "natural" and "necessary" and some who refuse to accept his version of the use of these terms regard his criticism as largely futile and overdrawn. For instance, A. Inglis Clark believes that Ritchie's work contains "the materials for a perfect defense of the doctrine which it was written to confute." "Natural Rights," in The Annals of the American Academy of Political and Social Science, XVI (1900), 221. 42. Becker, op. cit., p. 266. 43. Justice Wilson, an exponent of natural rights theories, believed that "no exterior human authority can bind a free and independent man." Works (Andrew's ed.), I, 192; cf. also, Letters of Jefferson, Writings (Ford's ed.), V, 115-124; X, 37, 42-45. 44. For English reactionary views, see H. J. Laski, English Political Thought from Locke to Bentham, pp. 243-256 and for the reaction of the historical school of jurisprudence, consult Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814). 45. Michel, op. cit., pp. 164-168. 46.Professor Becker thinks "the political ideas which in the United States discredited the doctrines of the Declaration of Independence were similar in essentials to those which in Europe had already deprived the Declaration of the Rights of Man of its former high prestige." The Declaration of Independence, p. 256. 47. "American Interpretations of Natural Law," Amer. Pol. Sci. Rev., XX, 536; see also Wright, "George Fitzhugh on the Failure of Liberty," Southwestern Pol. and Soc. Sci. Quar., VI (December, 1025), 219. 48. "American Interpretations of Natural Law," Amer. Pol. Sci Rev., XX., 537. 49. William A. Dunning, op. cit., p. 217. 50. Works, 1, 136. "The founders use this phrase [natural law] as if there were a code of natural laws, they appeal to these laws, they cite them, they literally oppose them to the laws of the legislators, and they do not perceive that these natural laws are of their own invention." Bentham, in Principles of Legislation, Part I, XIII, 46. Cf. chapter by Michel on "La reaction en Allemagne et en Angleterre," pp. 134 ff. Sir Frederick Pollock charges Bentham with being a follower of a form of Naturrecht which is "no more congenial to the positive law which lawyers discuss and administer than that of Ahrens or Kant." Science of Politics, p. 111. For Burke's criticism of the French theories of the rights of men consult his Reflections on the French Revolution (1790). 51. Cf. Friedrich Meinicke, Die Idee der Staatsräson (2d ed. Berlin, 1925), pp. 468, 480; also Renan, L'Avenir de la science. 52. Renan believed that the individuals who insisted on natural or inherent rights were rarely able to appreciate them if guaranteed protection by the state, and he thought the needs of society should take precedence over individual rights. Op. cit., p. 357, and Questions contemporaines, p. 477; cf. also, Philip G. Neserius, "The Political and Social Philosophy of Renan," Southwestern Pol. and Soc. Sci. Quar. VIII (June, 1927), 40, 41. Natural rights or rights belonging to the individual were to be replaced by "the right of reason to govern humanity and by rights which are the result of history." 53. Grundlegung der Philosophie des Rechts, secs. 104-114; Reyburn, Hegel's Ethical Theory, pp. 118-121; Michel, op. cit., pp. 154 ff. Hegel repudiated the ideas of a state of nature and of natural rights resulting therefrom. He believed that the ultimate sanction of a state's power is force and that the prince or sovereign cannot be bound by a higher law. 54. "No man has any rights properly called. No one possesses any other right than that of always doing his duty." Comte, Politique positive, II, 361. 55. Vom Beruf unserer Zeit für Gestezgebung und Rechtswissenschaft (1814), pp. 5 ff., and System des heutigen Romischenrechts, sec. 7. Consult also followers of Savigny, G. F. Puchta, Kursus Institutionem and F. J. Stahl, Die Philosophie des Rechts (Heidelberg, 1854). "Glorification of the positive law that is, to the disparagement of the natural law that ought to be, is characteristic of the reaction that has followed the rationalistic liberalism of the Age of Enlightenment. It may be that this positivism is largely due to the expansion of modern industry and commerce which has caused lawyers to be more concerned with the protection of private economic interests than with the larger issues of social well-being. In any case it is true that since the French Revolution, authoritarian reactionaries like De Maistre, romantic historicists like Savigny, idealizers of the actual like Hegel, utilitarians like Bentham, and positivists like Comte, have all united to heap scorn on the old liberal doctrine that men can and should change law to conform to their idea of natural law or justice." From Morris R. Cohen, "Positivism and the Limits of Idealism in the Law," Columbia Law Review, XXVII (March, 1927), 237. 56. Cf. Pound, Law and Morals, 2d ed., pp. 15-25. Dean Pound observes that "the historical jurist merely gave us a new natural law on a new basis." Ibid., p. 21. 57. Review of "Interpretations of Legal History," by Pound, Harv. Law Rev., XXXVII (December, 1923), 280. 58. R. Saleilles, "Ecole historique et droit naturel d'après quelques ouvrages recents," Revue trimestrielle de droit civil, I (1902), 80 ff. 59. See John Austin, Lectures on Jurisprudence, 5th ed., edited by Robert Campbell (London, 1885), I, 86, 178; II, 567 ff. "The whole or a portion of the laws set by God to men is frequently styled the law of nature, or natural law; being, in truth, the only natural law of which it is possible to speak without a metaphor, or without a blending of objects which ought to be distinguished. But, rejecting the appellation Law of Nature as ambiguous and misleading, I name those laws or rules as considered collectively or in a mass, the Divine Law, or the Law of God." Ibid., 1, 86. Austin regarded the laws of God as laws In the proper sense because they were commands. I, 89, 175, 183, 338; also, Vinogradoff, Historical Jurisprudence, I, 115 ff. 60. Duguit, "The Law and the State," Harv. Law Rev., XXXI (November, 1917), 126 ff. 61. George Lawrence Scherger, The Evolution of Liberty (New York, 1904), p. 11. PART II THE ACCEPTANCE OF NATURAL LAW OR SUPERIOR LAW CONCEPTS IN THE PUBLIC LAW OF THE UNITED STATES CHAPTER IV JUDICIAL CONSTRUCTION OF IMPLIED LIMITS ON AMERICAN LEGISLATURES 1. Denial of the Application of Natural Law Concepts. Despite the recognized use and importance of natural law phrases in American law in colonial and revolutionary times, and the continual reference to such phrases in judicial decisions, it is frequently asserted that in the United States there have been merely isolated attempts to formulate a doctrine of natural law or natural rights.[1] Following the customary habit of English legal authorities of depreciating the importance of natural law theories in the growth of English law, legal writers in the United States insist that such theories have been of no practical significance in the evolution of American law. Except for its unavowed use in the applications of the rule of reason of the common law, the natural rights doctrine, after the enthusiasm of the revolutionary period had waned, was most frequently invoked by judges in those cases which involved the validity of legislative acts, tested by the terms or standards of written constitutions. The orthodox legal view, therefore, is that there is no case in which the courts have held an act invalid or refused to enforce a law because regarded as contrary to natural law, except when such a law was in conflict with an express constitutional provision.[2] The doctrine of natural rights then is regarded as of mere academic importance and not of vital concern in the application of actual positive law in America. Others admit that the natural law concept served a useful purpose in the formative period of American constitutional law but claim that the term has now been consigned to "the museum of juristic relics."[3] An example of the prevailing view today is as follows: They [natural rights] are, and by right ought to be, dead ... and yet, while in this country only old judges and hopelessly antiquated text-book writers still cling to this supposedly eighteenth century doctrine, on the Continent the doctrine of natural law has been revived by advanced jurists of diverse schools.[4] Most lawyers and jurists in the United States are inclined to agree with John W. Salmond that "as far as secular science is concerned, the history of the doctrine of natural law is for the most part a chapter in the history of human error." Notions of law and of obligation are, he thinks, "in the sphere of natural right, but mocking and misleading echoes." Natural law can be used by philosophers only to refer to principles of right.[5] Political scientists have joined the lawyers in attempting to discard the use of concepts of natural law.[6] It is usual to insist that natural law theories are false historically and untenable philosophically because they confound the actual and the ideal.[7] The cavalier manner in which these theories are disposed of may be illustrated by the following extract: When we come to a general philosophy of law, writers are still chopping the old worthless chaff of what they call the analytical or the historical or the jus naturale school, which have been the work of men not lawyers. They go on classifying, reclassifying, subdividing and resubdividing the writers upon legal philosophy and their conceptions, which have never had the slightest influence on the actual development of law. Kant's or Hegel's philosophies of law which are merely philosophies of right, the term used ambiguously, -- this pale moonshine of metaphysics which never had scientific reality, -- or theories of the divine origin of law or of its historical growth, or dicta of the school which bases law not on what it is, but on some assumed power that created it, are still the stuff of which legal philosophical dreams are made. We have the tangled metaphysics of Kohler, the rigid, logical deductions of the French or the practical makeshifts of the English seeking to do duty as legal philosophy. What has always been needed is scientific study. That study asks for facts and facts alone, unclouded by hasty generalizations.[8] 2. Natural Law Theories in the Formative Period of American Law. Some years ago I traced in a brief summary the prevalence of the ideas associated with the doctrine of natural rights and natural law in the public law of the United States.[9] It was then indicated that those who imagine natural law theories may be consigned to the "museum of juristic relics" fail to comprehend, or to give due consideration to, one of the characteristic and significant phases in the development of American public and private law. Numerous instances were cited indicating the persistence in American judicial opinions of doctrines of natural rights and of natural laws which were regarded as limiting the exercise of all public powers. It was shown that, in the decisions of the courts in the United States, there were frequent reassertions of the old doctrines of natural rights or of natural laws despite many criticisms of these doctrines and in the face of repeated assertions that there were neither natural rights nor natural laws. And that at the time when some of the significant ideas embodied in the old doctrine were slowly being discarded they were given new vigor by incorporating them with more extensive implications in a new meaning derived from the phrase "due process of law." Merely a brief consideration can be given to the background of the natural rights philosophy in American judicial reasoning.[10] The terms "natural right" and "natural justice," which were in common use by lawyers and judges in colonial and revolutionary times, were not entirely discarded when the Declaration of Independence and its philosophy began to lose repute. Higher law concepts were made use of freely to strengthen the belief in the efficacy of written constitutions, to support the developing practice of the courts of reviewing legislative acts to test their conformity with these constitutions, and to assist in the judicial construction of implied limits on legislative powers. They were applied especially to construe limits favorable to the protection of vested contract and property rights. In developing the principle that vested rights should be protected, whether or not written provisions of laws or of constitutions required, Justices Paterson, Chase, Marshall, Story, Kent, and others made extensive use of the theories of natural and inalienable rights.[11] Natural law theories influenced various branches of private law, as it was accepted and developed in the Colonies and later when separate state governments were set up. Just as Pollock indicates in his summary of the concealed applications of these theories in English law, common law ideas embodying the rule of reason were made an integral part of the American legal practice. In fact, the application of such ideas was more extensive and persistent in the United States because of the necessity of applying principles of justice and of reason in adapting English law to American conditions and in supplementing defects in legislation, where conditions were rapidly changing. It is not within the scope of this study to enter into the details of these extensive uses of natural or higher law concepts, as they were interwoven into various branches of private law. Attention will rather be directed to the acceptance of the superior law philosophy in the development of implied limits on the activity of legislatures, and in the interpretation of the general terms of written constitutions. The natural law philosophy, which was extensively applied in the formative period of American law, soon after it came into disrepute was covertly restored and became the most prolific source of limitations on the legislatures both of the states and of the nation. So far as public law is concerned opportunities for the use of higher law doctrines occurred chiefly in connection with the review of legislative acts by the courts, and especially in that phase of review in which the justices aimed to discover implied limits on legislative powers. Hence, it is to this phase of the acceptance of higher law notions in American constitutional law to which primary consideration will be given. 3. Higher Law Theories as a Sanction for the Establishment of the Review of Legislative Acts by Courts. As a sanction for the moral and legal notions of a period there are what has been termed "postulates of legal thought," usually taken for granted and seldom critically examined.[12] Some such postulates or fundamental conceptions alone can account for the importance attached by the American colonists to written instruments, as fundamental charters of political organization, and to the correlative idea that judges were charged with the duty of serving as intermediaries to preserve these charters for the benefit of the people, as against actual and anticipated attacks by the other departments of government. At this time, it was generally taken for granted, in the first place, that there were natural rights inhering in the individual as such which governments could merely discover and preserve but could not legally curtail. All governmental powers were to be carefully scanned to determine whether these individual rights were not unduly interfered with. Second, there was a notion that some of the important relations and powers of government should be defined in a fundamental act or constitution, and such a constitution was considered as having a superior sanctity. It is remarkable to see how soon after their adoption the first written constitutions were looked upon with reverent awe. Third, since the preservation of individual rights and privileges often involved the application of legal terms developed largely by the courts and since the fundamental written charter also embodied numerous phrases of legal significance, there was a prevalent desire to turn to the courts as authoritative interpreters of the fundamental law. Especially was this true since the judges had gained prestige at times in resisting the arbitrary acts of either kings or parliaments. The general acceptance of these postulates or assumptions accounts for the relatively few critical analyses of the arguments of the courts in favor of the doctrine that it was their duty to review legislative acts. Such postulates go far to explain not only why so few men are on record as opposed to the assumption of extraordinary powers of a quasi-legislative nature by the judiciary with no express grant to warrant it, but also why such reasoning as that of John Marshall in the case of Marbury v. Madison was not critically analyzed and its weaknesses pointed out for more than a decade. The reasons for the adoption of the American doctrine of constitutional law as defined by John Marshall were as follows: 1. The Constitution is a law of superior obligation and consequently any enactments contrary thereto, which are ipso facto void, must be held invalid. 2. The courts must exercise this power in order to uphold the terms of a written constitution or, in other words, a written constitution necessitates the exercise of this power by the judiciary. 3. The oath of judges to support the Constitution requires that justices follow the Constitution and disregard the statute. 4. The phraseology of the Constitution warrants the exercise of such authority by the judges. It may readily be shown, as was done by Justice Gibson in 1825,[13] that not one of the above reasons in any way explains or justifies the use of this extraordinary power by the judiciary. First, if the Constitution is a law of superior obligation, on what ground does the court insist that its judgment on the meaning of the Constitution is superior to that of the legislature which has enacted the law? Second, is such a power necessary to uphold the terms of a written constitution? If so, why do many constitutions deny to the courts this extraordinary power, or why is such authority frequently considered as not within the scope of judicial functions? With regard to the oath in support of the Constitution, all officers, including the members of the legislature, the judges, and the executive take the same oath. Why does the oath of the judges give them authority to revise or condemn the judgments made by coordinate departments? Why should a legislative act passed in due form, following all the laws of procedure, be held as never having been passed or ipso facto void? Is it not presumptuous to assume that the bona fide acts of any one department may be declared by another to be of no avail? In fact, as indicated by Justice Gibson, every argument in favor of this doctrine begins by assuming the whole ground in dispute. The unexpressed reason for the conclusions of Chief Justice Marshall was that he and his associates of the Federalist Party distrusted popular assemblies and executives who might be controlled by public opinion. Underlying principles, then, on which the American theory of a written constitution was based are as follows:[14] First, a distrust of legislative power. It was generally thought, at the time that American constitutions were formed, that the legislative authority ought to be restricted and that special precautions should be taken to protect the people against legislative domination. Second, the protection of the minority. To protect the minority against the danger of oppressions by majority rule was another purpose which the founders of the American government set about to accomplish in the process of constitution-making. It was thought by Madison and others that the merits of the federal Constitution lay in the fact that it secured the rights of the minority against "the superior force of an interested and overbearing majority." Third, the protection of property rights. A third principle underlying the process of constitution-making was the belief that property was a sacred right, which it was the supreme function of the government to preserve and protect. Thus the major premise in drafting written instruments as a source of governmental action was a distrust in legislatures. Popular assemblies might interfere with the rights of property and contract and might not respect the liberties of the individual, and the prime object of the government was to protect such liberties. These assumptions or prevailing beliefs were predicated to a considerable extent upon the eighteenth-century notions of natural rights and upon laws of nature which were thought to be indispensable to the social compact. The original idea of those who favored the judicial review of legislative acts seems to have been to preserve the independence of the courts as against the other departments of government, and to protect these inalienable personal and property rights.[15] There were at this time comparatively few limitations on legislative powers even when written constitutions were adopted. Some of the first state constitutions, like the present British North America Act of Canada, contained no bills of rights and few, if any, general phrases from which limitations on legislative powers might be construed. The significance of the judicial review of statutes in the United States is due not only to the increasing tendency to restrain legislative powers by express restrictions but also to a large extent to the development of the superior law philosophy as a warrant to secure implied limits on legislatures and to certain related concepts which have made this power an effective means of exercising a censorship over legislative acts.[16] Among the limitations and restrictions used as tests to determine the validity of legislative acts,[17] resulting from the application of higher law doctrines are: implied limits on legislative powers growing out of the nature of the social compact, the fundamental principles of a free republican government, or the spirit of a written constitution based on popular sanction; limits designed to protect vested rights; and the extension of the meaning of the "due process of law" and "equal protection of the law" phrases from a limitation on executive authority only to a restriction on legislative powers.[18] These limitations have been enlarged by giving greater force to the separation of power theory, and by interpreting the "due process of law" and the "equal protection of the law" phrases into a general rule of reason to measure the validity of all legislation. Written constitutions, containing a separation of power principle and some express limits on legislative powers, might have been regarded chiefly as guides to the political departments of the government and to the electorate, as is customary in Europe. But through the adoption of the practice of judicial review of legislation, coupled with the development of implied limitations judicially enforced, written constitutions came to be regarded as rigid enactments containing superior and immutable laws and principles to which all legislative acts must be held to conform. From a mere political guide binding on the conscience of officers the written constitution became a convenient device by which individuals in the settlement of their private rights could bring the government itself to the bar of justice and require it to justify its acts, according to judicially construed standards of fairness and reasonableness. Judicial review, then, as originally adopted, would have had relatively slight influence on the American government and politics, just as is the case in most foreign countries which have adopted this practice, but for the development of these implied restrictions arising from a revised version of natural law theories. The justices extended judicial censorship over legislative acts and, in effect, adopted Coke's idea of the supremacy of the courts over the other departments of government in applying the general doctrine that constitutional grants of power were to be interpreted according to the maxims of Magna Carta and the principles of the common law, and that legislatures were limited by superior laws, both express and implied.[19] 4. Limits on Legislatures resulting from the Nature of the Social Compact and from the Nature of Free Republican Governments. The classic statement of the theory that legislative power, independent of written constitutions, was limited by the principles of republican government and of the social compact, is found in the opinion of Justice Chase in Calder v. Bull, in which he said: I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the state. The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An Act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punishes a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B. It is against all reason and justice for a people to intrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit, of our State Government, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.[20] Justice Chase's emphatic defence of the theory of implied limitations on legislative powers, resulting from the principles of the social compact and of the spirit of a free republican government, was an obiter dictum. However, as often occurs with opinions unnecessary to the disposition of a controversy, it was a convenient expression of doctrines of superior principles which future justices of like mind could cite as authority for placing a curb on legislatures, at times disposed to tamper with existing contract and property rights. Such a dictum served as a basis not only for a doctrine favorable to the protection of vested rights, but also for a theory of "fundamental principles" held by judges to be beyond legislative control. Judicial construction of theories favorable to the protection of vested rights against alleged harmful legislative acts, and the subsequent development of Justice Chase's theory of "fundamental principles," which judges are charged to protect, will be discussed later. 5. Construction of Limits on Legislatures to protect Vested Rights. A significant phase of the implied limitations based on higher law ideas, held to apply to legislative powers in American constitutional law, is the doctrine of the protection of acquired or vested rights.[21] Though certain limits were suggested to the exercise of political authority with respect to private property, particularly during the Middle Ages,[22] the developing theory of legislative omnipotence of princes or of legislatures supported the view that private property might be taken freely for the public benefit. Eighteenth century individualism and the natural rights philosophy that accompanied it again became the basis for the insistence that state action which invaded private rights had to justify itself. Thus arose the idea which was asserted in colonial and revolutionary times that vested rights must be protected, regardless of whether express enactments or constitutional limitations so required.[23] A not uncommon opinion at this time was that the sole function of government was to protect and preserve property rights.[24] After the federal Constitution was put into operation, this view was reaffirmed by Justice Paterson, who insisted that "the right of acquiring and possessing property and having it protected, is one of the natural, inherent and unalienable rights of man.... The preservation of property, then, is the primary object of the social compact."[25] The Supreme Court of North Carolina, also affirming the higher law doctrine, denied the power to the legislature to dissolve a contract.[26] When the doctrine of legislative supremacy even over individual rights of property and contract prevailed, a few courts building upon the common law maxim that statutes ought not in doubtful cases to be given a retroactive operation laid down the doctrine as one of prime obligation that, in no case, was a statute to receive an interpretation which brought it into conflict with vested rights. So far as a statute did not impair vested rights, it was good, but so far as it did, it was void, according to the general principles underlying all constitutions.[27] Though there are few federal cases in which the doctrine favorable to the protection of vested rights on the higher law theories was affirmed prior to 1870, Chief Justice Marshall indicated his adherence to the doctrine as early as 1803, when he observed "the government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right."[28] Later he held that an act of the legislature of Georgia, granting title to land was, so far as rights vested under the grant were concerned, a contract which could not be impaired by a subsequent act.[29] "I do not hesitate to declare," said Justice Johnson in this case, "that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity."[30] Prior to the date of this decision, leading exponents of Federalist policies such as James Wilson, Alexander Hamilton, and John Marshall had formulated as a principle of the party the theory of protecting vested rights of property and contract, both by express and implied constitutional limitations. They sponsored an independent judiciary, whose duty, they argued, was to guard the fundamental law and to check all departments of government so far as they might attempt to infringe vested rights.[31] The theory of affording special protection to vested rights and of securing such protection through limits defined in written constitutions and through courts whose duty it was to guard these constitutions, was a Federalist principle which continued in vogue long after the downfall of the Federalist party.[32] It gained support from the liberal and democratic theories of inalienable individual rights. The doctrine that vested rights must be protected against legislative attacks was greatly facilitated when the Supreme Court, speaking through Chief Justice Marshall, held that the clause of the federal Constitution prohibiting a state from impairing the obligation of contracts was intended to restrain state legislatures from passing any law interfering with "contracts respecting property, under which some individual could claim a right to something beneficial to himself." The protection of this clause was then held to apply to the property of corporations as well as to that of individuals.[33] More positive statements of the doctrine of judicial protection to vested rights against attack by legislatures, independent of constitutional limitations, was made by Chancellor Kent and Justice Story. When facing the issue whether a statute could be given retroactive effect, Justice Kent stated in unequivocal terms the theory of implied limitations on legislative authority.[34] Basing his opinion squarely upon the natural law philosophy of European writers such as Grotius, Pufendorf, and Bynkershoek, Chancellor Kent held that the legislature can take private property for necessary or useful public uses only when public necessity requires. To render the exercise of the power valid, a principle of natural equity demands that a fair compensation must, in all cases, be previously made to the individuals affected. The limitation, he observed, "is admitted by the soundest authorities and is adopted by all temperate and civilized governments, from a deep and universal sense of justice."[35] About ten years later, Kent reaffirmed these propositions,[36] emphasizing the principle that the requirement of a public purpose was a true constitutional limitation susceptible of judicial enforcement, and that under the power of eminent domain the legislature could not transfer the property of A to B without A's consent, unless it was clearly for a public use nor without due compensation.[37] Kent admitted that there was one limitation upon the general doctrine of the protection of vested rights, viz., that property may not be used so as to create nuisances or become dangerous to the peace, health, or comfort of the citizens. He developed, therefore, the idea of the police power, which, in certain instances, may override the rights and privileges of individual property[38] owners, but the right of regulation and the ultimate power of prohibition, Kent indicated, must be exercised according to principle of reasonableness, for if the legislature should take private property for uses not clearly public "such cases would be gross abuses of their discretion and fraudulent attacks on private right, and the law would be clearly unconstitutional and void."[38] Thus Kent added the weight of his opinion as justice and his authority as commentator to the view, which other justices had rather vaguely suggested, that vested rights must be protected whether or not laws or constitutional provisions so required. To the principle of just compensation in the exercise of the power of eminent domain he added the requirement of public use as a justification for the exercise of the power. Here were fundamental principles for placing implied limits on legislatures. When, decades later, parties imbued with nineteenth-century individualism, and corporations seeking protection of their interests, brought pressure to bear on courts to check what appeared to be meddlesome interferences with individual liberties and property rights, these principles, closely related to the former theories of natural law, were at hand to support the developing practice of judicial review of legislative acts. In the Supreme Court of the United States, Justice Story became the chief exponent of the doctrine of implied limitations on legislative action, when he claimed that a grant of title to land by the legislature was irrevocable upon the principles of natural justice, upon the fundamental laws of every free government, as well as under the Constitution of the United States.[39] Subsequently this idea was reiterated in more explicit terms.[40] A number of other justices, agreeing with Chief Justice Hosmer,[41] in the decades following 1810, defended the principle of protecting vested rights, and held that, independent of written constitutions, acts interfering with acquired rights or impairing the obligation of contracts were void, for a fundamental principle of right and justice inherent in the nature and spirit of the social compact restrained and set bounds to the power of legislation, which the legislature could not pass without exceeding its rightful authority.[42] The state constitutions frequently did not prohibit the passage of retroactive laws, but justices claimed such acts were nevertheless inhibited because they were contrary to "fundamental principles" or "the nature of free government" or "principles of the social compact" or "principles of civil liberty" or "natural rights."[43] The principle of protecting vested rights both by express and implied limits on legislatures and of making it the duty of courts to hold void legislative acts interfering with these rights continued to gain adherents after the party which sponsored it had ceased to be a factor in the political life of the nation. It was supported by a common belief that there was a higher law and that there were immutable principles which, if legislatures attempted to invade, would render their acts nugatory. But this higher law was seldom resorted to, and courts rarely found it necessary to annul legislative enactments on this or on other grounds.[44] Changes in political conditions and in public sentiment combined to render of little avail the weakly supported theory of protecting vested rights on the grounds of indefinite superior principles. 6. The Main Purpose of the Establishment of Express and Implied Limits on Legislative Powers. Constitutional limitations, as originally conceived and as continued in the growth of American constitutional law, have been regarded as self-imposed restrictions on the will of the people to check, confine, and restrict the rule of the majority. Many of the founders of the government in America agreed with Hamilton and Madison that it was necessary to check "the overbearing rule of the majority."[45] In their opinion, there could be neither justice nor stability in any system of government unless some portion of it were independent of popular control. The Federalist party under the leadership of Alexander Hamilton became the defender of this faith. It was, from the beginning, observed Martin Van Buren, "the constant aim of the late Federalists to select some department in our political system and make it the depository of power which public sentiment could not reach nor the people control."[46] The distrust of the capacity of the masses to govern themselves was an underlying principle of the Federalist viewpoint. Under no authority did they feel their interests to be safer than under that which was subject to the judicial power, and in no way could their policy be more effectively promoted than by taking power from those departments of the government over which the people had full control in order to concentrate it in that department over which they had practically none.[47] It was to carry out this purpose that the conservatives then and since have demanded a judicial check on the other departments of government which should operate under the guise of legal channels and which would prevent popular control from seriously interfering with the interests desiring special protection. Thus it became profitable for groups of interests to combine, whose object was to control and influence the government and at the same time to check and confine the growth of popular control. Among the chief objectives of these groups were the following: to restrict the powers of the state governments; to enlarge those of the national government; to encourage a feeling of distrust of the capacity of the people to govern themselves; to control the management of public affairs and to secure special advantages to favored individuals and classes on the one hand, while designedly opposing governmental interference in private pursuits of individuals on the other. There was thus secured that effective combination described by Fisher Ames of "the lovers of liberty and the owners of property," supporting a practice whereby the courts were to act as sentinels over constitutions to preserve vested contracts and property rights and necessarily "to stay the arm of legislative, executive, or popular oppression." [48] In the armor of devices to set limits to legislative action the higher law philosophy was always available when express limits were inconclusive and inapplicable. And it was called into service at this time not as a progressive and liberal doctrine but as a conservative and authoritarian principle. 7. A Reaction from the Federalist Doctrine of Limiting Legislative Activities. When the Jeffersonian era of the first quarter of the nineteenth century was followed by the wave of frontier democracy, which characterized the Jacksonian epoch the general belief in the right of the people to rule left little room for doctrines of immutable principles or higher laws which were beyond governmental regulation. For several decades legislatures were accorded a freedom in dealing with the lives, liberties, and properties of individuals which would have shocked the founders of the American system of government and would be regarded as untenable today. The bills of rights of state constitutions were embellished with high-sounding phrases emblematical of ideas prevalent in the Declaration of Independence and in other eighteenth-century charters and documents but in practice little consideration was given to these general phrases. Thus the insertion of an elaborate clause requiring that governmental powers be carefully separated into departments did not interfere with frequent intermingling of powers among departments; and the provision that no person shall be deprived of life, liberty, or property without due process of law was seldom used to restrict political authority in favor of individual privileges. The sentiment of the time was favorable to the expansion of governmental powers rather than to a meticulous effort to find checks and limitations.[49] But in a wave of reckless and extravagant conduct usually approved by the people the legislatures sponsored all sorts of commercial projects and dealt so freely with contracts and property rights that similar to the conservative reaction, which inaugurated the federal system of government under the Constitution and placed conservative doctrines in the state constitutions, a second reaction followed calling for new limits to legislative powers. Again the doctrines of natural rights and of immutable laws were relied upon to place desired limits on governmental action. The insistence on theories of popular sovereignty and some dangers believed to follow from the rule of the people led lawyers and judges to question whether an act of the legislature could not be declared void even if not in conflict with some express provision of the constitution, and to seek for other sanctions for the protection of vested rights through the interpretation of implied limitations which would prevent too serious a tampering with property rights. 8. The Return to the Former Natural Law Theories. Hence beginning in the decade from 1850 to 1860 there was a return to the former doctrine of natural rights and to the principle of implied limitations on legislatures resulting from the nature of free government in order to check what then seemed to be the reckless expenditure of money for the private advantage of individuals. The courts of Massachusetts recurring to the dictum of Chief Justice Parker[50] condemned legislative acts confirming conveyances and proceedings in insolvency for the reason that vested rights were protected by the inalienable rights, doctrine, and by the separation of powers and the law of the land provisions of the state constitution.[51] It was the courts of New York, however, which, building upon the principles so ably defended by Chancellor Kent and becoming the champions of a new individualism, led in the revival of the earlier doctrine of protecting vested rights and of placing special implied limitations on legislative powers.[52] In 1843 it was held that a statute which had been in force in the state since 1772, authorizing a private road to be laid out over the lands of a person, without his consent, was void. The law of land provision of the state constitution was then held to import, when interferences with individual rights and privileges were concerned, a trial according to the course of the common law.[53] Holding void a law for the protection of the property of married women, the court said, "the people of the state of New York have never delegated to the legislature the power to divest the vested rights of property legally acquired by any citizen of the state and transfer them to another against the will of the owner."[54] This decision was soon followed by another of even wider application, by which the courts held that a prohibition act of the legislature of New York was void, because the act substantially destroyed the property of intoxicating liquors vested in persons within the state when the act took effect. Both upon the general ground of implied limitations and upon the concept of due process of law, it was contended that "when rights have been acquired by the citizen under the existing laws, there is no power in any branch of the government to take them away."[55] The unique character of the reasoning of the New York court in placing implied limits on the legislature is shown in the fact that similar statutes in other states with approximately the same constitutional requirements were, as a rule, held valid.[56] The doctrine of affording judicial protection to vested rights, independent of constitutional limitations, was soon to be absorbed in the phrase "due process of law," commonly found in the state constitutions and introduced into the Fourteenth Amendment as a requirement of all state legislation which might interfere with the rights of life, liberty, or property. Its application was also made more effective by bringing to its support the principle of the separation of powers.[57] And certain implications of the doctrine were soon formulated which widened its scope, namely, the requirement of public use for eminent domain proceedings, and the requirement of public purpose for taxation. Thus a step was taken of greater significance than the adoption of written constitutions with certain specific limitations on legislative powers and the acceptance of the practice of judicial review of legislation to preserve these constitutions. Numerous instances of foreign governments with written constitutions and the correlative practice of judicial review of legislation give ample proof that either or both of these features may have relatively slight effect in restricting the scope of governmental powers. The doctrine requiring the protection of vested rights alone would not have given judicial review its present scope and significance. It was not until the extension of the meaning of the term "due process of law," which took place from 1850 to 1890, that the scope and significance of judicial review of legislative enactments was radically changed. As a prelude to a general movement to return to the seemingly discredited natural law theories the Abolitionists prior to the Civil War appealed to natural rights and a higher law[58] as warranting a disregard of laws and constitutional provisions. Abraham Lincoln based his argument against slavery in the debate with Stephen A. Douglas on the dogma of the Declaration that "all men are created equal" and deduced therefrom that for one man to enslave another was contrary to the "sacred right of self-government."[59] The attack on slavery was generally defended on the principle of the "unalienable rights of all men to equal liberty"[60] -- a recurrence to the type of natural law conceived as democratic and progressive. The tendency which after 1850 sought to protect vested rights against encroachments by legislative acts or by popular majorities encouraged a recurrence to the doctrine of inalienable rights and to the theory of higher laws in order to change the due process of law clause from merely a check on procedure in criminal matters to a limitation on the general scope of legislative powers. For nearly twenty years the country was absorbed in the throes of civil war and the conservative reaction which usually follows in the wake of wars furnished fruitful ground for the seeds sown in the earlier decades to take firm root. But another twenty years elapsed before the basis was firmly laid for the modern revival of natural law ideas in American constitutional law. These ideas have wrought a profound change in constitutional concepts. They have followed lines only vaguely or indirectly drawn during the first hundred years of constitutional development in the United States. It is necessary to turn, therefore, to the process of interpreting due process of law as a convenient phrase to convey natural law ideas. 1. A. W. Spencer, "The Revival of Natural Law," Central Law Journal, LXXX (May 7, 1915), 347. 2. Cooley, Constitutional Limitations (8th ed., 1927), pp. 341 ff. and Robert P. Reeder "Constitutional and Extra-Constitutional Restraints," Univ. of Penna. Law Rev., LXI (May, 1913), 441, 446. See comment of James B. Thayer, that "it may be remarked here that the doctrine of declaring legislative acts void as being contrary to the constitution, was probably helped into existence by a theory which found some favor among our ancestors at the time of the Revolution, that courts might disregard such acts if they were contrary to the fundamental maxims of morality, or as it was phrased, to the laws of nature. Such a doctrine was thought to have been asserted by English writers, and even by judges at times, but was never acted on. It has been repeated here, as a matter of speculation, by our earlier judges, and occasionally by later ones; but in no case within my knowledge has it ever been enforced where it was the single and necessary ground of the decision, nor can it be, unless as a revolutionary measure." "The Origin and Scope of the American Doctrine of Constitutional Law," Harv. Law Rev., VII (October, 1893), 129, 133, reprinted in Thayer, Legal Essays, I, 6, 7. 3. Manley O. Hudson, "Advisory Opinions of National and International Courts," Harv. Law Rev., XXXVII (June, 1924), 970, 971. 4. Cohen, "Jus Naturale Redidivum," Phil. Rev., XXV (November, 1916), 761. "Exploded as this notion may seem to us," says Mr. Isaacs, "it is certainly in keeping with the philosophy of the eighteenth century." "John Marshall on Contracts, A Study in Early American Juristic Theory," Va. Law Rev., VII (March, 1921), 413. For the expression of similar views with the observation that the natural rights doctrine is academic and belongs to "jurisprudence in the air," see John E. Keeler, "Survival of the Theory of Natural Rights in Juridical Decisions," Yale Law Jour., V (October, 1895), 14. 5. "The Law of Nature," Law Quar. Rev., XI (April, 1895), 121. 6. Cf. A. N. Holcombe, The Foundations of the Modern Commonwealth (New York, 1923), p. 438; W. F. Willoughby, The Government of Modern States (New York, 1919), pp. 166-168; W. W. Willoughby, The Nature of the State (New York, 1896), pp. 103 ff.; John W. Burgess, Political Science and Constitutional Law. I (New York, 1890), 88. 7. T. J. Lawrence, A Handbook of Public International Law (10th ed. by Percy H. Winfield, 1925), p. 6. 8. John M. Zane, in review of Sir Paul Vinogradoff's Custom and Right, Yale Law Jour., XXXV (June, 1926), 1026. 9. "The Law of Nature in State and Federal Judicial Decisions," Yale Law Jour., XXV (June, 1916), 615. 10. There is a field here for much more extensive investigations than have yet been made; investigations which will effectually expose the common fallacious contention that natural rights and natural law have long since ceased to influence American law. Professor Wright is doing original work along this line in tracing the evolution of these concepts in American political theory. Cf. supra, pp. 53 n., 55 n. 11. Consult J. B. Thayer, Cases on Constitutional Law, pp. 946 ff., for extracts from European natural rights philosophers which were cited by American justices; and my articles "Judicial Review of Legislation in the United States and the Doctrines of Vested Rights and of Implied Limitations on Legislatures," Texas Law Rev., II (April, June, 1924), 257, 387 and "Histories of the Supreme Court written from the Federalist Point of View," Southwestern Pol. and Soc. Science Quar., IV (June, 1923), 12. 12. Cf. Ludwig Ehrlich, "Proceedings against the Crown," Oxford Studies in Social and Legal History VI, (Oxford, 1921), 9. 13. Eakin v. Raub, 12 Sergeant & Rawles 330. 14. Cf. C. G. Haines, The American Doctrine of Judicial Supremacy, pp. 185 ff. 15. Haines, op. cit., pp. 287 ff. 16. "American courts," says Dean Pound, "unrestrained by any doctrine of Parliamentary supremacy, such as was established in England in 1688, found themselves opposed to legislatures just as English courts of the sixteenth and seventeenth centuries had been opposed to the Crown. They found in the books, over and above express constitutional limitations, vague doctrines of inherent limitations upon every form of law-making and of the intrinsic invalidity of certain laws. They soon wielded a conceded power over unconstitutional legislation." "Common Law and Legislation," Harv. Law Rev., XXI (April, 1908), 383. 17. In the following pages portions of a series of articles on "Judicial Review of Legislation in the United States and the Doctrines of Vested Rights and of Implied Limitations on Legislatures," published in Texas Law Rev., II (April and June, 1924), 257, 387 and ibid., III (December, 1924), I, are used by permission of the editors. 18. Upholding the inherent right of local self-government in cities and towns the Supreme Court of Nebraska referred to the principle that the state legislative power is unlimited and quoted the language of Von Holst: "This does not mean, however, that these restrictions must always be expressed in explicit words. As it is generally admitted that the factors of the federal government have certain 'implied powers,' so it has never been disputed that the state legislatures are subject to 'implied restrictions,' that is, restrictions which must be deduced from certain provisions of the federal, or state constitution, or that arise from the political nature of the Union, from the genius of American public institutions," State v. Moores, 55 Neb. 480, 490 (1898). 19. Cooley, Constitutional Limitations, 1, 358. The underlying purpose of most of these limitations was to place "the just principles of the common law ... beyond the power of ordinary legislation to change or control them." Justice Miller in Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1871); also Pound, The Spirit of the Common Law (Boston, 1921), p. 25. In order to see that the limitations of the constitution were observed and that no arbitrary power was exercised by any department of government Justice Peck suggested that "the statutes and common law have laid open a warehouse of ways, means and processes, that the power of the judges may not, for want of plans, be defeated in upholding constitutional rights." Bank of State v. Cooper, 2 Yerg. (Tenn.) 599, 612 (1831). 20. 3 Dallas 386-389 (1798). The assertion of limitations imposed by the social compact may be illustrated by the following cases: Chief Justice Buchanan in Regents of the University of Maryland v. Williams, 9 Gill & J. 365, 408, 409 (1838), when a charter incorporating the regents of the university was held a contract and not subject to impairment by a subsequent legislative act, thought that independent of the provisions of the federal and state constitutions "there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact, (in this country at least) the character and genius of our government, the causes from which they sprang, and the purposes for which they were established, that rises above and restrains and sets bounds to the power of legislation, which the legislature cannot pass without exceeding its authority. It is that principle which protects the life, liberty, and property of the citizen from violation, in the unjust exercise of legislative power." "With those judges, who assert the omnipotence of the legislature, in all cases, where the constitution has not interposed an explicit restraint, I cannot agree," said Chief Justice Hosmer, in Goshen v. Stonington, 4 Conn. 209, 225 (1822). It was claimed that an unjust infraction of vested rights must be regarded as a violation of the social compact and must be considered by the judiciary as void. Justice Butler, denying the right of the legislature to pass an unreasonable retrospective law, said: "the power of the legislature in this respect is not unlimited. They cannot entirely disregard the fundamental principles of the social compact. Those principles underlie all legislation, irrespective of constitutional restraints, and if the act in question is a clear violation of them, it is our duty to hold it abortive and void" Welch v. Wadsworth, Conn. 30, 149, 155 (1861). Cf. also, Wheeler's Appeal, 45 Conn. 306, 315 (1877). 21. A vested right is commonly defined as a right which has been acquired by an individual under the law to do certain acts or to possess and use certain things. See Justice Chase in Calder v. Bull, 3 Dallas 386 (1798). Rights are regarded as vested when the right to enjoyment, present or prospective has become the property of some particular person or persons as a present interest. There is no standard of sacredness for property interests and vested rights which are beyond legislative encroachment. The term "vested rights" is regarded as one of convenience to secure certain ends and is incapable of accurate definition. It is correctly observed that the underlying idea involved in the attempt of the courts to give content to the term is political and sociological rather than legal. Yale Law Jour., XXXIV (January, 1925), 306, 307. Consult this note for examples of rights becoming vested and of legislative acts held void for impairing vested rights. See also Edward S. Corwin, "A Basic Doctrine of American Constitutional Law," Mich. Law. Rev., XII (February, 1914), 247. "The doctrine of vested rights," says Corwin, "represents the first great achievement of the courts after the establishment of judicial review," and "is the very matrix of constitutional limitations in this country." Ibid., p. 275, and "The Extension of Judicial Review in New York: 1783-1905," ibid., XV (February, 1917), 281, 297. 22. The doctrine of according protection to acquired or vested rights was a feature of mediaeval law and was particularly advocated by the jurists of the sixteenth and seventeenth centuries. 23. Symsbury Case, Kirby (Conn.) 444, 447 (1785); Ham v. McClaws, 1 Bay (S. Ca.) 93, 98 (1789), in which a statute prohibiting the importation of slaves was held not to interfere with vested rights of ownership. The court said: "It is clear that statutes passed against the plain and obvious principles of common right and common reason are absolutely null and void as far as they are calculated to operate against those principles." For an English case favoring the protection of vested rights, see Couch v. Jeffries, 4 Burrows 2460 (1769). Lord Mansfield's judgment meant only that where at all possible a statute would be interpreted so as to preserve vested rights. 24. Farrand, Records of the Federal Convention, I, 533-534, 541-542; II, 123. 25. Van Horne's Lessee v. Dorrance, 2 Dall. 304, 310 (1795). After referring to various provisions of the constitution of Pennsylvania, Justice Paterson maintained, "it is evident that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and inalienable rights of man.... The legislature therefore had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without just compensation. 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 the social alliance, in every free government; and lastly, it is contrary to the letter and spirit of the constitution." Ibid., 310. 26. Trustees of the University of North Carolina v. Foy, 2 Hay (N. C.) 310, 312 (1804). It was held that "the property vested in the trustees must remain for the uses intended for the university, until the judiciary of the country in the usual and common form pronounces them guilty of such acts as will, in law, amount to a forfeiture of their rights or a dissolution of their body." Cf. dissenting opinion of Justice Hall for an argument against implied protection to vested rights. 27. Elliott's Executor v. Lyell, 3 Call. (Va. 1802), 268; Turpin v. Locket, 6 Call. 113 (1804), especially opinions of Judge Tucker, 155, and of Judge Roane, 169. 28. Marbury v. Madison, 1 Cranch 137, 163 (1803). 29. Fletcher v. Peck, 6 Cranch 87 (1810). Chief Justice Marshall observed: "It may well be doubted whether the nature of society and of 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.... It is, then, the unanimous opinion of the court, that in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be legally impaired." Ibid. 135, 139. For an account of the circumstances leading to this case, consult Albert J. Beveridge, The Life of John Marshall, III (Boston, 1919), chap. 10. For Marshall's views as to the meaning of the phrase "obligation of contract" as influenced by the eighteenth-century philosophy as to natural rights, see Ogden v. Saunders, 12 Wheat. 213 (1827). Marshall adverted to the tact that "the framers of our Constitution were intimately acquainted with the writings of those wise and learned men, whose treatises on the laws of nations have guided public opinion in the subjects of obligation and of contract." Ibid., pp. 353, 354. Nathan Isaacs, "John Marshall on Contracts," Va. Law Rev., VII (March, 1921), 411, 421 ff. 30. 6 Cranch 143. 31. "Histories of the Supreme Court of the United States Written from the Federalist Point of View," Southwestern Pol. and Soc. Sci. Quar., IV (June, 1023), 12. 32. See Hamilton's opinion in The Federalist, No. 78; also Beveridge, op. cit. III, 568; cf. Hampton L. Carson, "James Wilson and James Iredell: A Parallel and a Contrast," American Bar Association Journal, VII (March, 1921), 125 ff.; and Wales v. Stetson, 2 Mass. 143, 146 (1806). 33. Dartmouth College v. Woodward, 4 Wheat., 518, 628 (1819). 34. Dash v. Van Kleeck, 7 Johns (N. Y.) 477, 505 (1811); "It is not pretended that we have any express constitutional provisions on the subject; nor have we any for numerous other rights dear alike to freedom and justice. An ex post facto law in the strict technical sense of this term, is usually understood to apply to criminal cases, and that is the meaning when used in the Constitution of the United States; yet laws impairing previously acquired civil rights are equally to be condemned. We have seen that the cases in the English and the Civil law apply to such rights; and we shall find, upon further examination, that there is no distinction in principle, nor any recognized in practice, between a law punishing a person criminally for a past innocent act, and punishing him civilly by divesting him of a lawfully acquired right. The distinction consists only in the degree of oppression and history teaches us that the government which can deliberately violate the one will soon cease to regard the other." Bracton, Pufendorf, the mediaeval natural law philosopher, and dicta in a few American decisions were cited in support of Kent's proposition. 35. Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 166, 167 (1816). Kent felt bound "to conclude, that a provision for compensation is an indispensable attendant on the due and constitutional exercise of the power of depriving an individual of his property." Ibid. 167. 36. "A retrospective statute, affecting and changing vested rights, is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void." Commentaries, I (13th ed., 1884), 455. 37. Again citing Grotius, Pufendorf, Bynkershoek, and Vattel, Kent maintained that "a provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the lawgiver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded on natural equity, and is laid down by jurists as an acknowledged principle of universal law." Comm., II, 339. Early cases sustaining this principle were cited in a footnote. Ibid., pp. 339 ff. For the interpretation of public purpose as a limitation on legislatures in tax and eminent domain proceedings see Part III. 38. Comm., II, 340. 39. Terrett v. Taylor, 9 Cranch 43 (1815), in which Justice Story observed: "That the legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporation exclusively in the state, or dispose of the same to such purposes as they may please, without the consent or default of the corporators, we are not prepared to admit; and we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the Constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine" Ibid. 52. 40. Wilkinson v Leland, 2 Pet 627, 658 (1829); Justice Story said: "The fundamental maxims of free government seem to require, that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would 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 ... a different doctrine is utterly inconsistent with the great and fundamental principle of republican government, and with the right of citizens to the free enjoyment of their property lawfully acquired. We know of no case, 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 every judicial tribunal in which it has been attempted to be enforced." 41. Goshen v. Stonington, 4 Conn. 209 (1822). 42. See Bedford v. Shilling, 4 Serg. & R. (Pa) 400, 405 (1818) and comment of C. J. Parker in Rice v. Parkman, 16 Mass. 326, 330 (1820). Regents v. Williams, 9 G & J (Md.) 365, 403 ff. (1838). 43. For citation of cases, consult Bryant Smith, "Retroactive Laws and Vested Rights," Texas Law Rev., V (April, 1927), 231, 237. 44. An exception to the general practice was made by the Supreme Court of North Carolina when it was held partly on the basis of the law of land provision that the legislature could not transfer an estate in an office. Hoke v. Henderson, 4 Dev. 1, 15 (1833); cf. also Jones' Heirs v. Perry, wherein a private act to sell the land of infants was held void, 10 Yerg. 59, 69 (1836). 45. It is the opinion of Professor Dodd that "most of our legal arrangements and constitutions, both state and national, were designed to thwart and defeat democracy." Wm. E. Dodd, "The Struggle for Democracy in the United States," Int. Jour. of Ethics, XXVIII (July, 1918), 465. 46. Martin Van Buren, Inquiry into the Origin and Course of Political Parties in the United States, p. 96. 47. Martin Van Buren, op. cit., p. 275. 48. Joseph Story, Miscellaneous Writings, p. 228. 49. The persistence of the natural rights philosophy in the state constitutions, Professor Becker believes, may be attributed primarily to the "conventional acceptance of a great tradition," for political leaders continued to reiterate the dogmas of the Declaration of Independence at a time when they were almost universally ridiculed as "glittering generalities." The Declaration of Independence, pp. 240 ff. and S. G. Brown, Life of Rufus Choate (ed. 1881), pp. 325, 326; see also John C. Calhoun's "Disquisition on Government." F. L. Paxson observes: "It is evident as one reads these [state] constitutions that a belief in natural rights found ready lodgment in the minds of residents along the frontier.... As the crown, and religion, and property lost favor as the foundations of government, nature came to be the obvious parent of democracy.... It became more important to preserve liberty than to get work done; more desirable to check a possible usurpation than to promote efficiency." History of the American Frontier, pp 100, 101. Professor Wright believes, however, that the theories of natural law were more prevalent in eastern communities than on the frontier. Cf. "American Interpretations of Natural Law," Amer. Pol. Sci. Rev., XX (August, 1926), 535, 536. 50. Rice v. Parkman, 16 Mass. 326, 330 (1820). Under the general powers of the legislature to pass reasonable and wholesome laws, C. J. Parker claimed no one imagines that "the legislature could deprive a citizen of his estate, or impair any valuable contract in which he might be interested." 51. Sohier v. The Massachusetts General Hospital, in which an act confirming conveyances was held void "as contrary to the spirit and terms of the constitution." 3 Cush. 483 (1849); Denny v. Matton, 84 Mass. 361 (1861). "Every individual," said Justice Fletcher, "has a right, under the constitution, to be protected in the enjoyment of his property, and no one can be wholly and entirely deprived of it, by having it taken from him and transferred to another, without compensation or benefit in any way, by a special act of legislation." 3 Cush. 493. 52. From 1840 to the Civil War "there were probably more statutes invalidated in New York on constitutional grounds than in all other states in the Union combined." Edward S. Corwin, "The Extension of Judicial Review in New York," Mich. Law Res., XV (February, 1917), 281. A considerable expansion of judicial review in New York was "due in part to the going into effect of the constitution of 1846, but in greater part to the conflict between the conservative principles of the courts and the reform tendencies of legislation, a conflict which also characterizes the ensuing decade." Ibid., p. 285. 53. Justice Bronson in Taylor v. Porter, 4 Hill 140, 146 (1843); see also dissent of Justice Nelson, in which he said "whether the security of the citizen against such arbitrary legislation ... depends upon this clause of the constitution, or rests upon the broader and more solid ground of natural right never delegated by the people to the law-making power, it is unnecessary now to enquire." Ibid. 149. 54. Justice Mason in White v. White, 5 Barb. 474 (1849); also opinion of Justice Edwards, 12 N. Y. 202 (1854). 55. Justice Comstock thought the law of the land provision was "intended expressly to shield private rights from the exercise of arbitrary power." Ibid., p. 398. Wynehamer v. State of New York, 13 N. Y. 378, 382 ff. and 416 ff. (1856); see also, the earlier opinion of Justice Barculo in Holmes v. Holmes, in which it was held "beyond the scope of legislative authority to destroy vested rights of property." 4 Barb. 295, 300 (1848). 56. Cf. State v. Noyes, 10 Foster (N. H.) 279 (1855); Lincoln v. Smith, 27 Vt. 328 (1854); Goddard v. Jacksonville, 15 Ill. 589 (1854); People v. Gallagher, 3 Gibbs. (Mich) 244 (1856); Fisher v. McGirr, 1 Gray (Mass) 1 (1854); State v. Paul, 5 R. I. 181 (1858) and State v. Keeran, 5 R. I. 497. For a different conclusion see Beebe v. State, 6 Ind. 501, 508 (1856), holding the right to manufacture and sell spiritous liquors an inalienable right which the legislature could not take away. When in 1918 the supreme court of Indiana reversed this decision, Justice Townsend said: "This court is bound by the same constitution and has no right to curtail legislative authority this side of the expressed limitations in it. Nor has this court power to revolutionize the fundamental law by reading limitations into it." Schmitt v. F. W. Cook Brewing Co. 187 Ind. 623, 626. Justice Spencer dissented on the ground that the act violated "the principles of abstract justice, as they have been developed under our republican institutions." Ibid., 640 ff. A suggestive discussion of the cases interpreting the doctrine of vested rights is presented by E S. Corwin in "A Basic Doctrine of American Constitutional Law," Mich Law Rev., XII (February, 1914), 247, and "The Doctrine of Due Process of Law before the Civil War," Harv. Law Rev., XXIV (March and April, 1911), 366, 460. 57. Merrill v. Sherbume, 1 N. H. 199, 204 (1819). 58. "Declaration of Sentiments of the American Anti-Slavery Society in Philadelphia, 1833," W E Channing, Slavery (ed. 1835), p. 31. "The Constitution regulates our stewardship. But there is a higher law than the constitution." Works of William H. Seward, I (Boston, 1884), 66, 74. Ct. also William Hosmer, The Higher Law in its Relation to Civil Government with particular Reference to the Fugitive Slave Law (1852). See also opinion of Chase in his argument relative to the unconstitutionality of the fugitive slave law in the case of Jones v. Van Zandt. C. E. Merriam, American Political Theories (New York, 1906), p 212. 59. Carl Sandburg, Abraham Lincoln: The Prairie Years, II (New York, 1926), 16, 17. 60. Cf. T. V. Smith, "Slavery and the American Doctrine of Equality," Southwestern Pol. and Soc. Sci. Quar., VII (March, 1927), 333 ff. CHAPTER V NATURAL LAW THEORIES AND DUE PROCESS OF LAW 1. Divergent Views on the Meaning of Due Process of Law. The development of limitations on legislative powers in American constitutional law has been greatly modified by the interpretation of the phrase "due process of law" into a general restriction on legislative powers. As a unique product of American public law, due process of law has come to be the foundation of a considerable part of the modern structure of constitutional limitations on legislative and executive powers, and it is the main provision through which natural law theories were made a part of current constitutional law. Reference may only be made here to a few steps in the gradual evolution of the meaning of the famous phrase "by the law of the land" as inserted in the thirty-ninth chapter of Magna Carta.[1] It is commonly conceded that the purpose of the phrase "by the law of the land," which was later transformed into the more popular form "due process of law," was intended primarily to insist upon rules of procedure in the administration of criminal justice, namely, that judgment must precede execution, that a judgment must be delivered by the accused man's "equals," and that no free man could be punished except in accordance with the law of England, per legem terrae. On various occasions the original meaning of the law of the land provision was extended. Certain authorities read into the phrase the requirement of an indictment by a jury[2] and the Petition of Right referred to this phrase as prohibiting the Crown from making arrests without a warrant. But in its extended form it was primarily intended as a limitation upon the Crown in the administration of justice, requiring in the apprehension and trial of criminals a procedure established by law. There are few indications that the provision was intended to serve as a limitation on the powers of Parliament. Any intimations that such a limitation was applicable to Parliament were set at rest when, after 1689, it assumed control, not only over the Crown, but also over the courts and court procedure. In England, then, prior to the eighteenth century due process of law had two fairly well recognized meanings, namely, a method of procedure in criminal trials, and a procedure following the ancient customary law or one rendered legal by parliamentary enactment. The latter meaning had almost entirely supplanted the former in English legal thought when the first American constitutions introduced the phrase into the fundamental laws of the United States. The term "the law of the land" was inserted into the Massachusetts constitution of 1780[3] and soon found its place in a number of other state constitutions. That the makers of our first constitutions thought of due process of law primarily as a phrase relating to procedural limitations and not as a general limitation on legislative powers seems to be indicated by the facts -- that the term "due process of law" or "the law of the land" was inserted in the part of the constitution dealing with procedure; that the protection to be accorded through due process was left in charge of the legislature; and that, when the due process clause was first presented to the courts, it was not regarded by them as a limitation on the substantive powers of the legislature.[4] Legislative violations of due process of law in colonial times were to be corrected, as they are now in many countries, by the influence of public opinion. Due process of law in the Fifth and Fourteenth Amendments of the federal Constitution had little significance as rendering protection either to liberty or property prior to the decade of 1870.[5] In the states the phrase was first given the same restricted interpretation and it was held, with only a few exceptions, not to abridge the general powers of the legislature.[6] The interpretation of the origin and meaning of due process of law has led to a controversy among legal scholars which is far from settled. Some claim that these words were intended to convey the principle that laws in their making and enforcement must not be arbitrary and must accord with natural or substantial justice; in short, must not be contrary to principles of natural law.[7] Others have contended that they were meant to provide that an individual should not be interfered with in respect to his private rights except through a regularly enacted law and formal legal procedure. The first of these views, though vaguely hinted at on a few occasions from the time of the promulgation of Magna Carta, was first effectively advanced in the writings of Sir Edward Coke and some of his followers, and in the opinions of judges in the United States, who were imbued with the idea that it was the duty of the courts to set limits to the exercise of legislative powers and were seeking a justification for such authority. As we have seen, Coke had little evidence to support his broad claims for the supremacy of the common law as interpreted by the judges, and the occasional dicta favorable to his theory have had slight influence on the growth of English law -- separate from the general doctrine of the common law, when statutes did not provide contrary rules, that principles of reason and justice must be followed. But just as Coke read into the language of the cases in the Yearbooks and in the English reports his own political and legal notions, so his followers, and, especially, legal historians in the United States, who are interested in defending the practice of the review of legislative acts by the courts, have built an elaborate superstructure on a small foundation.[8] 2. Due Process of Law as applied by the Justices of the State Courts prior to 1870. For the first fifty years after the establishment of the state governments, the legislatures exercised with but few exceptions a virtual supremacy over the other departments. The executive was granted few powers, was denied a veto power, and in other respects was made subordinate to the other departments. Not only did the legislature create the courts and in many respects supervise their action, but the judges were frequently selected and removed by this body; and, in certain instances, the legislature was made the final court of appeal. It was not unusual, therefore, for legislatures to decide concrete cases and to dispose of cases finally by special enactments. Though a few constitutions had provisions for the separation of governmental powers, the other portions of the constitutions so mingled the powers -- and the common practice of the time favored such a mingling -- that the provisions for the separation of powers had little practical effect. Judicial review of legislation as a check on these extensive legislative powers, though asserted in occasional cases, had comparatively little effect on the principle of legislative omnipotence until toward the middle of the nineteenth century. The state and federal governments were headed in a direction which, except for a rather marked change of course, would have led to conditions similar to those prevailing in England and in Canada. The affirmation of the doctrine of protecting vested rights had already indicated such a change of course and the interpretation of the law of the land provisions of the state constitutions continued the process.[9] It is not within the purpose of this study to deal with the numerous judicial decisions which approved the doctrine that the legislatures had powers as unlimited as the British Parliament, except so far as restricted by the express provisions of written constitutions. According to this doctrine the state legislatures had inherently the power to do whatever was not expressly prohibited by either the federal or state constitutions.[10] During the late eighteenth and early nineteenth centuries only an occasional judicial dictum, such as those of Justice Chase in Calder v. Bull,[11] and of Chief Justice Hosmer in Goshen v. Stonington,[12] denied legislative omnipotence when express constitutional restrictions were not ignored. How, then, did the term the "law of the land," or "due process of law," come to be interpreted and understood as a general limitation on legislative powers from which extensive implied restrictions have been developed? The account of this development involves a considerable part of the growth of constitutional law in state and federal governments. Only certain phases of this growth can be briefly sketched. The development itself is intimately connected with the acceptance of the doctrine of judicial review of legislative acts, which was gradually established as a part of American constitutional law in the generation from 1780 to 1810. It was the adoption of the doctrine of judicial review that rendered it possible to give a different content to the term "due process of law," though little progress was made in this direction prior to 1850. A pioneer case, somewhat like Calder v. Bull and Dash v. Van Kleeck[13] in establishing implied limitations favorable to vested rights, involved a North Carolina act repealing an earlier grant of lands to the university in which due process of law was considered as a limitation on legislative powers.[14] In declaring this act void, the court defined the law of the land clause of the bill of rights to mean that no one shall be deprived of his liberty or property without the intervention of a court of justice, or without a jury. It was nearly a generation later that the due process clause was again defined in any effective measure as a general limitation on legislative powers.[15] Some ideas later conceived as involved in due process of law were, however, taking form. In 1814 a Massachusetts court decided that, though the legislature was given the right by the constitution to suspend the laws, such suspensions must be general, for it is "manifestly contrary to the first principles of civil liberty and natural justice, and the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances."[16] The concept of equality and generality in the application of the law later held to be involved in due process of law was here extracted from the section of the bill of rights limiting the suspension of laws by the legislature. A few years later Daniel Webster, in arguing the Dartmouth College Case, attributed the concept of generality in the application of legal rules to the law of the land provision,[17] and it was not long before this dictum met with approval in the state courts.[18] The law of the land provision was called into service also as a device to prevent retrospective legislation.[19] Among the concepts regarded as belonging to due process of law none has had more significant results than the identification with this phrase of the natural and inalienable rights philosophy which was developed in the revolutionary times and was crystallized into specific form in the Declaration of Independence and in the bills of rights of state constitutions. Thus the law of the land was judicially construed to mean that no power was delegated to the legislature to invade the great natural rights of the individual, and that where express limits were lacking implied checks must be found to protect these natural rights.[20] As a rule the appeals to due process of law, as a basis for limiting the powers of the legislature, were quite different from the appeals to the same ground for protection against arbitrary commitments without a trial or a jury. In the first instance it was an appeal against the injustice of the act in the hope that the legislature itself would repeal the act (only rarely was the suggestion made that such an act was void), whereas in the second it was expected that the courts would preserve and protect the individual from an improper commitment or illegal procedure. Formerly reference to due process of law was similar to the claim now occasionally made in England that an act would be unconstitutional because contrary to the well-known and historic political principles of the past. It remained to give somewhat more definite content to the law of the land or to due process of law than generality and equality in the operation of the laws. The developing concept of protecting vested rights on the ground of implied limitations on legislative powers had already prepared the way for such a restatement and state justices soon took advantage of the opportunities afforded.[21] But the concept of due process of law as involving general limitations on legislative powers and as embodying a doctrine of natural and inalienable rights beyond governmental authority was not formulated as an effective check on legislative powers until the middle of the nineteenth century. It was at this time that the principle was being formulated by the justices that the state constitutions were not so much grants of specific powers as limitations on the exercise of general powers.[22] The enormous losses entailed in building canals and supporting other internal improvements had begun to undermine the former confidence in legislative bodies. By 1856 the courts of New York found the due process of law clause a convenient term to check what was then regarded as a legislative movement to interfere with property rights. Holding invalid an act for the more effectual protection of the property of married women for the reason that the people never delegated to the legislature the power to transfer to another the vested rights of property legally acquired by a citizen, Justice Mason said: I maintain, therefore, that the security of the citizen against such arbitrary legislation rests upon the broader and more solid ground of natural rights, and is not wholly dependent upon those negatives upon the legislative formerly contained in the constitution. It can never be admitted as a just attribute of sovereignty in a government, to take the property of one citizen and bestow it upon another. The exercise of such a power is incompatible with the nature and object of all government and is destructive of the great end and aim for which government is instituted, and is subversive of the fundamental principles upon which all free governments are organized.[23] Later a distinction was drawn between what was regarded as destruction and regulation by statute, and the legislature was denied the power to destroy property rights.[24] And due process of law was held to require procedure under a pre-existing rule of conduct by which rights were lawfully acquired and interference with these rights was prevented except by a trial and judgment according to the procedure of the common law.[25] Some milestones had been passed in giving new life and vigor to this portion of "decrepit Magna Carta." The "law of the land" now being changed to the more common term "due process of law" had in a few instances been applied as a general limitation on legislative powers. It had been made a device to retain a portion of the concept of natural and inalienable rights. And it had been used as a weapon to wage battle against the political liberals or radicals who were thought to be endangering property rights. So pliable a concept was likely to be made use of when economic and political conditions led conservative leaders to make strenuous efforts to place confines about the legislative domains. But at the opening of the Civil War a mere beginning had been made in the efforts to give definiteness of content to due process of law.[26] 3. Cooley's Efforts to extend the Meaning of Due Process of Law. The vague and indefinite meaning of the term "due process of law" which prevailed prior to the Civil War was noted by Thomas M. Cooley.[27] After quoting a few of the cases in which the term was discussed, Cooley fell back on the general language of Daniel Webster in his argument in the Dartmouth College Case.[28] In accord with the purpose of the author as stated in his preface, to establish limitations upon the legislative authority independent of the specific restrictions imposed by state constitutions,[29] Judge Cooley aimed to give greater scope to the term "law of the land." For this purpose he quoted approvingly the rhetorical statement of Justice Johnson, containing the not uncommon inaccurate rendering of the meaning of the term "law of the land": "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."[30] Referring to the frequent statements of the justices that they could refuse to enforce a legislative act only when in conflict with some express provision of the constitution, Cooley suggests that "It does not follow, however, that in every case the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed." And then he indicates various means by which legislative acts may be regarded as invalid, if contrary to the general spirit, purposes, and principles of constitutional government. In his volume on Constitutional Limitations and in his work on the Law of Taxation he gave formulas for construing implied restrictions on legislatures. Just as Coke interpolated his ideas of limitations on the King and Parliament into common law decisions, so Cooley injected his own theories of desirable limits on legislative action into his commentaries on constitutional law. As the first attempt of an American text writer to discuss due process of law Judge Cooley's treatise had an immediate effect upon the decisions of the courts which were encouraged from many quarters to set greater limits to the exercise of legislative powers. 4. Economic and Legal Bases for a Revival of Natural Law Thinking. The doctrines of inalienable rights and of fundamental principles beyond legislative control served a useful purpose in revolutionary times as a higher law sanction for a revolt against constituted authority. Most reformers in attacking an established order fall back on a higher law or superior rules for guidance. These same doctrines suited well the eighteenth-century laissez faire theories and thus were accepted by many who with Thomas Jefferson thought "that government best which governed least." But as a ground for revolution and as a check on all governmental powers fundamental principles and inalienable rights were slowly being dissipated by the absorbing tendencies of popular control of all manner of public affairs characteristic of revolutionary and early state legislatures. It was then that Alexander Hamilton, John Marshall, and Joseph Story revived the higher law doctrine to check the legislative onslaughts on property, contracts, and vested rights generally. The tide of Jacksonian democracy, which brooked little interference with the voice of the people, narrowed these incipient checks to a relatively small circle of governmental powers. But firm believers in the necessity of limiting legislatures, such as Chancellor Kent and Judge Cooley, soon took up the higher law philosophy for the protection of vested rights and through judicial decisions as well as their writings gave credence to this philosophy. It is a significant fact that Kent and Story, who practically formulated an American common law, lost no opportunity to advocate the protection of vested rights both constitutionally and extra-constitutionally. Judge Cooley through his Constitutional Limitations fostered the same view. Thus a triumvirate of three great jurists and commentators was added to those conservative leaders who saw relief from legislative radicalism only in courts strengthened in their position by the authority to declare legislative acts void and aided by both express and implied limitations on legislative powers. Judge Cooley became the most effective advocate of superior principles limiting all legislation. Reading the signs of the time favoring extensive checks on what appeared to the conservative classes as unwarranted interferences by legislatures in personal and private affairs, he laid down as a dogma based on the higher law philosophy broad principles of implied limitations on legislatures and executives for the protection of private and personal rights. The decade in which Cooley's Constitutional Limitations appeared, marked the confirmation of the practice of according judicial protection to vested rights against legislative action, and of the interpretation of implied limitations on legislatures as indispensable features of American constitutional law. The extension of the meaning and application of the term "due process of law" illustrates concretely the effect of changing economic conditions and political thought upon the courts and judicial opinions. Incipient efforts to establish implied limits on legislatures through the vested rights doctrine or through the due process of law clause, for a period of nearly fifty years, made little headway against the common belief in and practice of legislative supremacy, and the tendency to extend the scope of legislative powers. The decades from 1830 to 1850 saw a notable movement in the direction of the extension of democratic principles. It was in this decade that many of the restrictions on suffrage were removed, and the tendency was to adopt universal manhood suffrage. Terms of officers were shortened, and the executive and judicial positions of the states were in many instances made elective. The survivors of the old Federalists, who had originated the vested rights doctrine, with their principles transformed into a new Federalism, and conservative leaders generally, resisted this movement towards democracy. Being unable to prevent its spread, they became confirmed in the belief that some check had to be placed upon the seat of popular control, the legislature. Renewed activities on the part of leaders account in a measure at least for the efforts to revise and extend the meaning of due process of law, from 1830 to 1842. Conservative opinion, however, was unable to place any special checks upon the democratic movement[31] until after the panic of 1837, and not then in a serious way until the great extension of the system of internal improvements often supported by state aid had resulted in many failures and in the repudiation of the debts of various states. The tendency of the legislatures to vote the public funds for these private enterprises, though as a rule supported by a preponderant public sentiment, and frequently approved by an almost unanimous popular vote, increased the fears of those who saw only ruin in the progressive principles of democracy; especially was this true when the business projects failed and involved the state and local governments in great financial losses. There was as a result widespread discontent among the propertied classes who now demanded greater checks upon the rule of the people. A more determined effort was made, therefore, both by the placing of express limitations on legislatures in new constitutions and by bringing pressure to bear upon the courts, to secure checks upon legislative action which might affect private contract or property rights or to prevent the majority from "an oppressive and reckless use of power."[32] The doctrine of natural rights and the insistence upon inherent limitations against arbitrary government, therefore, were again reasserted, and renewed efforts were made to add to the content and significance of the term "due process of law" to place some much-desired limits to the rule of the majority. In the extension of the meaning of due process of law and in the development of the doctrine of protecting vested rights, an effective means was devised to guide and restrict the rule of the majority in the efforts to extend governmental regulation into the field of social and political affairs. New and varied applications of the judicial check based on implied restrictions were soon found to give legal sanction to conservative and reactionary principles in state and federal governments. These principles, which were championed by those who wished to check the tendency to regulate economic and social life, were fostered by the economic doctrine of laissez faire, the dominant philosophy of a pioneer individualism.[33] To support laissez faire principles the requirements of public purpose for taxation and public use for eminent domain were exalted into rigid standards whose application rested primarily with the judicial conscience. Also, the doctrine that there are "fundamental principles" beyond legislative authority was revived and due process of law was applied with even greater latitude so as to render invalid all governmental acts considered by judges to be unfair or arbitrary. Continuing this method of interpretation of higher law principles and adjusting it to meet some of the rapidly changing industrial conditions, the courts found additional implied limitations upon legislative powers and completed the main structure of the modern American concept of due process of law in the period from 1870 to 1895. Due process of law, then, was being transformed from its customary meaning in England, where it referred to procedure in accordance with a regularly enacted law, to a process which the courts regarded as "due" and, therefore, reasonable, or not unfair -- a modernized version of natural law. 5. Due Process of Law made an Agency for the Maintenance of Reactionary Tendencies. The appearance of Cooley's Constitutional Limitations along with certain economic and political conditions about this time marked the beginning of a new development in American constitutional law. However, the main lines of this development were foreshadowed in the secure establishment of the doctrine of judicial review of legislation, in the growing acceptance of the idea of protecting vested rights under express and implied constitutional limits, and, in the conversion of the "law of the land" phrase into a general limitation on legislative powers. But the application of all of the above principles had resulted in the courts' declaring void but few laws and had affected to a relatively slight degree the trend of political affairs. A judicial review of legislation differentiated in any marked degree from a similar practice in other countries remained in large part to be developed, though the courts of New York and Massachusetts had taken some steps toward inaugurating a new point of view. This era was characterized by renewed applications of the doctrine of protecting vested rights and of the due process clause as a guarantee of individual rights. Certain other implied restrictions on legislatures which had been slowly emerging were now vigorously applied. These restrictions were evolved by implications from the doctrine of natural and inalienable rights, from the due process of law clause, and from the requirement that the property of the individual could be taken under the power of eminent domain only with the granting of just compensation. Constitutions were, as a rule, silent as to the taking of property except under the power of eminent domain and legislatures dealt rather freely with property rights short of confiscation. But the courts, inclined to discover additional limits on legislatures, beyond the express provisions of the written constitutions, originated the doctrine of public purpose as a requirement for taxation[34] and extended the application of the principle of public use for eminent domain proceedings, whether constitutions included this requirement or not. The financial activities of the states prior to 1830 were quite limited,[35] but a change came when the states began to embark in commercial enterprises and particularly in the improvement of the system of transportation by building canals, and when state indebtedness was very greatly increased. "In catering to the clamor of the different interests of their respective states, eighteen of them had authorized the issue of $108,223,808 of stock in the three and one-half years between 1835 and 1838."[36] After millions had been spent in building canals and in various other public improvements, which were expected to bring large returns to the state treasuries, but which instead involved all of the states in burdensome debts that increasing taxation failed to meet, the propriety of lending the state's credit to private corporations and of taxing for this purpose was questioned.[37] Illinois, Indiana, Michigan, and other states incurred debts far beyond their ability to pay.[38] In 1842, when the panic of 1837 had left the country in a condition of economic paralysis, constitutional restrictions on the states' power to borrow money and to lend its credit to private corporations were adopted, and by 1857 most of the state constitutions contained such provisions.[39] But when another wave of prosperity came in the fifties, the way was still open for the legislatures to authorize cities, counties, and towns upon a popular vote to lend money to public and private enterprises and another period of reckless borrowing followed. Money was freely voted and lavishly spent on such projects as railways, canals, manufactories, banks, and steamship lines.[40] When the question as to the right of the legislatures to authorize localities to tax for these purposes was first raised, the courts generally upheld the legislative power.[41] The panic of 1857 proved as disastrous to the ventures of the localities as did the panic of 1837 to the earlier speculative efforts of the states. A reaction followed which seriously affected American constitutional law. Efforts were begun to place greater restrictions on legislative authority in the state constitutions and a persistent sentiment was fostered that the doctrine of implied limitations ought to be applied to check the expenditure of public money for private or quasi-public enterprises.[42] The growth of this sentiment and its reflection in court decisions is illustrated in the opinion of Chief Justice John F. Dillon of Iowa, who advocated judicial construction of implied limits on legislatures. When the act of the legislature authorizing local government units to aid in building railroads came before the supreme court of Iowa, Chief Justice Dillon, speaking for the majority of the court, reviewed the history of this controversy in the states.[43] Referring to a previous decision holding such an act valid,[44] he said the majority of the court there rendered a wrong judgment and a most unfortunate mistake was made, for counties and cities throughout the state, acting under the sanction of that decision, incurred debts amounting to several millions of dollars, and in many cases, exceeding their ability to pay. "There is no legislative power," said Judge Dillon, "to endow municipal corporations with the authority to subscribe to the stock of a railroad company and to levy a tax to pay therefor."[45] On the basis of the inalienable rights clause of the bill of rights, the due process of law and eminent domain provisions of the state constitution, Chief Justice Dillon declared that the legislature cannot touch the property of the citizen for a private use even if it does make compensation.[46] He took occasion to condemn those who enunciated the principle of arbitrary and despotic powers in legislatures,[47] and argued extensively for the doctrine that the legislature can tax only for a public purpose.[48] Justice Cole took issue with the majority of the court in his dissenting opinion. He denied that the courts had any authority to declare an act of the legislature void except when in direct conflict with the terms of the written constitution. The courts of Iowa, in previous cases, he claimed, had not denied power to the legislature to authorize cities and counties to appropriate money to railroads but had held instead that the legislature had not passed a law authorizing their issue. This issue, he continued, had been before the courts in at least twenty-one other states, and in every instance the legislative power had been affirmed. "If the views of the majority are sound," said he, "then it is certainly true that our constitution does not define the powers of the respective departments of our government, but leaves them to the necessarily uncertain and ever-changing measurement of judicial discretion."[49] Though Judge Dillon's opinion ran counter to the decisions of the highest courts in more than twenty states and was repudiated as an unsound constitutional doctrine by the Supreme Court of the United States,[50] he expressed the confident conviction that the reaction under way would soon lead to the approval of his views. The contention that there could be no taxation for a private purpose under the conditions announced by Judge Dillon was not regarded as a principle of constitutional interpretation in the early part of the nineteenth century[51] but the courts were gradually prevailed on to apply a principle to taxation somewhat similar to that adopted for eminent domain proceedings. That taxation could be for a public purpose only seems to have been announced particularly in the railway aid and military bounty cases.[52] Prior to 1870, the doctrine was generally based, not upon any provision of the constitution, but upon an extra-constitutional basis, falling back upon the theory of natural rights and the inherent limitations on legislatures.[53] Judge Cooley stated as a principle of law the suggestion by the justices in a few state cases that Taxation having for its only legitimate object the raising of money for public purposes, and the proper needs of government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power and must therefore be unauthorized.... An unlimited power to make any and everything lawful which the legislature might see fit to call taxation would be, when plainly stated, an unlimited power to plunder the citizen. To check such extortion, Judge Cooley suggested that the courts should interfere.[54] Citations to and approval of this dogmatic statement soon appeared in the opinions of the state courts holding that to tax for a private purpose was not among the powers conferred upon the legislature.[55] Though Judge Dillon's theory of implied limitations was repudiated in Iowa and in a number of decisions by the United States Supreme Court, and though slow progress was made in construing an implied limit on the taxing power by a public purpose principle, Cooley did not hesitate to put his own theories into practice. Two years after the appearance of his Constitutional Limitations, as justice of the supreme court of Michigan, he reiterated the views of his text. Holding an act of the legislature void which authorized cities and towns to tax for the purpose of purchasing stock in railway companies, he wrote: It is conceded, nevertheless, that there are certain limitations upon this power, not prescribed in express terms by any constitutional provision, but inherent in the subject itself, which attend its exercise under all circumstances, and which are as inflexible and absolute in their restraints as if directly imposed in the most positive form of words.[56] Three fundamental maxims of taxation were laid down as of universal application, of which public purpose was placed first. It is only when these maxims are observed, thought Justice Cooley, that "the legislative department is exercising an authority over the subject which it has received from the people."[57] From 1870 to 1880 constitutional provisions were enacted which prevented cities, counties, and towns from granting aid to private enterprises and from levying taxes for such purposes.[58] The decision of Justice Cooley accomplished the object of a constitutional provision against a state subsidy in Michigan. But the public purpose principle as an implied limitation had much greater effect on future legislative policies. Originally defined as a general and universal principle of taxation, Cooley developed the principle with considerable detail in his work on the Law of Taxation, which was published in 1879.[59] "All definitions of taxation," he contended, "imply that it is to be imposed only for public purposes, and whatever difference of opinion may exist regarding the admissibility of taxation in particular cases, the fundamental requirement, that the purpose must be public, will be conceded on all sides."[60[ The determination in the first instance of what are public purposes devolves upon the legislative department but the decision of the legislative department is not conclusive, for "an unlimited power in the legislature to make any and everything lawful which it might see fit to call taxation, would, when plainly stated, be an unlimited power to plunder the citizen." To support this doctrine, Cooley cited a few decisions of the courts of Pennsylvania, Massachusetts, and Maine, with his own decision in People v. Salem and the views of Judge Dillon in Hanson v. Vernon.[61] Then follows an extensive quotation from the dictum of Justice Miller in the case of Loan Association v. Topeka.[62] The change in the attitude of the courts in the process of developing implied limitations on legislative authority is shown clearly in New York, where the courts rejected the principle that taxes must be for a public purpose only,[63] but twenty years later, following the reasoning of Chancellor Kent and of Judge Cooley, definitely adopted the public purpose principle as a limitation upon the taxing power of the legislature.[64] By 1880 the various ramifications of the extensive doctrine of public purpose as a requirement for taxation were clearly formulated and henceforth the courts followed Cooley and Dillon and gradually added distinctions which made of public purpose with respect to taxation one of the most effective implied limitations on legislative powers.[65] Constitutions rather generally placed restrictions on the exercise of eminent domain, such as the requirement of public use and just compensation. But independent of such constitutional provisions and supplementary thereto arose a judicially construed limitation on such proceedings. Chancellor Kent, who was one of the leaders in formulating the doctrine of protecting vested rights by means of implied restrictions on legislatures, it was observed, was among the first to state the special limitation as to the purpose of the power of eminent domain. In the case of Gardner v. Newburgh,[66] he held that in the absence of a constitutional provision for the purpose compensation was due the owner for property taken or damaged, and that the power of eminent domain could be exercised for public purposes only. Later he confirmed these views in his Commentaries. When New York adopted the constitution of 1821, a provision requiring just compensation and a public purpose was inserted as one of the requisites for eminent domain proceedings.[67] About a decade later, the New York courts, considering a statute enacted more than twenty years earlier, were called upon to decide whether property could be condemned in excess of the amount actually needed for public purposes. It was observed that "the constitution, by authorizing the appropriation of private property to public use, impliedly declares that private property shall not be taken from one and applied to the use of another. It is in violation of natural right, and if not a violation of the letter of the constitution, it is of its spirit, and cannot be supported."[68] Thus the practice of excess condemnation of property beyond the actual requirements for the public needs was held to be inhibited through implication from the eminent domain clauses of the state constitutions.[69] For many years no further attempts were made to authorize excess condemnation of property and then adverse decisions compelled the states to resort to the amending process.[70] Kent's doctrines and the theories of the New York justices had slight effect upon eminent domain proceedings, prior to 1870. Compensation was confined as a requirement by the courts to cases of actual taking, including all direct physical injuries to property,[71] and, in determining the value of the land actually taken, it was held that elements of special benefit to the part of the land not taken could be set off against the value of the part taken.[72] With the return to conservative doctrines which followed the Civil War courts began to insist that compensation must be given for damages resulting from a taking as well as for the value of the land actually taken, that it was improper to set off special benefits to the land not taken, and to review with careful scrutiny what the legislatures declared to be a public use.[73] Cooley again gave effective expression to Kent's views and to the principles stated somewhat provisionally by some state supreme court justices when he wrote: There is no rule or principle known to our system under which private property can be taken from one man and transferred to another for the private use and benefit of such other person, whether by general laws or special enactment. The purpose must be public, and must have reference to the needs of the government. No reason of general policy will be sufficient to protect such transfers where they operate upon existing vested rights.[74] This dogmatic statement by one who frankly believed in judicial construction of implied limitations on legislatures, was soon reflected in the opinions of state and federal justices. An implied limitation, thus first formulated by the state courts, was subsequently adopted by the Supreme Court, when it was held that "the taking by a state of private property of one person or corporation without the owner's consent, for private use of another, is not due process of law, and is a violation of the Fourteenth Amendment."[75] Justice Harlan declared that the necessity for compensation for property taken for a public use was "an affirmance of the great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights become worthless if the government possesses the uncontrollable power over the private fortune of the every-day citizen."[76] State and federal courts combined in assuming that the constitutional prohibitions against the taking of private property through eminent domain proceedings except for public purposes and without just compensation operated, by necessary implication to prevent the taking of private property for private use, with or without compensation. And the limitations thus placed upon eminent domain through the adoption of the public use principle and its acceptance as one of the features of the due process clause, added materially to the extent of the vested rights placed beyond legislative control.[77] The extensive application of public purpose or public use as a limitation upon legislative powers, was therefore applied both to taxation and to eminent domain. As in the case of other implied limitations, the public purpose doctrine, so far as the federal law is concerned, was absorbed in the due process of law requirement. In defining the term "due process of law" in relation to the protection of property rights, Justice Brewer, following the opinion of Justice Miller,[78] held that "this power to take private property reaches back of all constitutional provisions; and it seems to have been considered a settled principle of universal law that the right to compensation is an incident to the exercise of that power."[79] This principle is now regarded as one of the fundamental requirements of due process of law under the Fifth Amendment, though it rests now as it always has both upon express constitutional provisions and upon an extra-constitutional basis, or upon limitations growing out "of the essential nature of all free governments."[80] When the conservative reaction was at its height numerous express constitutional restrictions upon the powers of state legislatures to take private property either by taxation or by eminent domain were adopted. But to the leaders of this reaction it was more important to have a flexible standard for the courts to use as a test of the validity of new legislative projects affecting private rights of property. The doctrines of public use and public purpose filled a gap in which the former doctrine of protecting vested rights by construing implied limitations on legislatures and the interpretation of the concept "due process of law" as a general restriction on legislative powers had so far failed to give the desired protection. Foreign countries likewise require, as a rule, that the power of the expropriation of private property be exercised only for a public use. The determination of what is for a public use rests with the legislature, however, and there is generally no review of this determination by the courts. It is usual also to have the requirement that just compensation be awarded and the intervention of the judiciary becomes legitimate only when it comes to fixing the amount of compensation.[81] The French Civil Code[82] contains a representative provision that no one's property shall be taken except for a public use, and for a just and preliminary indemnity. In practice the legislature defines what is for a public use[83] and the meaning of the term has been considerably extended by a recent act. The legislature has also limited the powers of the jury or committee of award in determining the compensation to be awarded.[84] "The whole learning as to eminent domain," says Justice Riddell, "is of no interest in Canada. The legislature may, indeed, direct compensation to be paid; but that is in no sense necessary."[85] But in Canada as in England, where the legislatures can, if they so choose, take private property without compensation, such power is very seldom exercised. It was the result of a long period of the growth of legal ideas and of a combination of extraordinary economic and political conditions that turned American constitutional law in this field along lines different from the prevailing practice of the world. The federal Constitution and a number of early state constitutions were formed and put into effect on the wave of a conservative reaction from the radical and democratic doctrines of the revolutionary period.[86] When the Federalist party became the leader of this conservative movement it championed the doctrine of judicial review of legislative enactments, the theory of protecting vested rights both by express and implied limitations on legislatures, and the principle of placing implied limitations on legislatures to protect individual rights and to preserve minority privileges as against the dangers of majority rule. The wave of Jeffersonian democracy removed some of the restrictions which were in process of formation under Federalist auspices and others were either eliminated or modified when the frontier democracy of the West triumphed in the inauguration of the Jacksonian era.[87] But the conservative spirit as fostered by such men as Alexander Hamilton, John Marshall, Joseph Story, Chancellor Kent, and Daniel Webster, never ceased to have a powerful and directive influence on American political affairs. From 1830 to 1850, when democratic and liberal principles and practices seemed to be dominant in American life, a new federalism and a new conservatism were in their formative stage. It was at this time that a few justices revived the natural law doctrines of European political philosophers and the higher law notions of the Declaration of Independence and of the bills of rights of state constitutions. Following leaders who advocated implied limits on legislative powers, such as Coke, Kent, and Story, these judges, originally through dicta, prepared a program for modern conservative policies and reactionary tendencies, fostered, as was the earlier movement, on the conviction that majority rule is dangerous and that representative assemblies are not to be trusted. Not until the results of democratic rule along economic and financial lines had turned out disastrously in the panics of 1837 and 1857 and in a continuous process of wasteful and extravagant expenditures which the electorate had, as a rule, approved, did the exponents of the second conservative reaction secure much of a following. When the unsettled economic conditions and the high prices of the Civil War period, combined with the speculative movement that followed, brought another disastrous panic in 1873, public sentiment was prepared, not only to place more definite express constitutional restrictions on legislatures, but also to accept the now well-formulated doctrine of judicially construed implied limitations on legislative powers,[88] favorable to individual privileges and to property rights. It was the background of inalienable rights which was used to sanction Justice Cooley's dictum soon to be adopted as a fundamental principle of constitutional interpretation, namely, "that there are on all sides definite limitations which circumscribe the legislative authority, aside from the specific restrictions which the people impose by their constitutions." Justices Dillon, Miller, and Cooley gave credence to the belief that implied limits must be placed on legislatures in respect to the control over property and contracts and that the sanction for these limits may, if necessary, be founded on the inalienable rights clause of the bill of rights. There is a noteworthy similarity between the reasoning of these justices and that of Justice Chase in Calder v. Bull when he first advocated the doctrine of implied limitations based upon natural rights and upon the principles of a free republican government. But suggestions were already at hand to direct the natural rights thinking into other channels and to give to it a semblance of constitutional sanctity in the emerging meaning of "due process of law." Before the transition was made there was a recurrence to the principles of the Declaration of Independence as a sanction for natural rights which were inalienable. The Supreme Court of the United States in a gradual change of opinion from 1873 to 1895 led the conservative movement, and through its prestige gave it an added impetus in the state courts. When the peculiar economic and political conditions of the United States were favorable to the laissez faire and individualistic theories of Adam Smith and Ricardo which were prevalent in England and in America in the eighteenth and early nineteenth centuries, Justices Field and Peckham, inclined toward democratic political principles, joined with the proponents of conservative policies, such as Justices Brewer and Harlan, to establish even greater limits on the role of legislative action than the most extreme advocates of the principles of the original Federalism could have imagined.[89] It is necessary then to consider the adoption of the principles of conservatism and reaction by the federal courts and the further extension of these principles by the state courts.[90] 1. For a more extensive account see W. S. McKechnie, Magna Carta (New York, 1915); C. H. McIlwain, "Due Process of Law in Magna Carta," Columbia Law Review, XIV (January, 1914), 27; Rodney L. Mott, Due Process of Law (Indianapolis, 1926); Malden, Magna Carta Commemoration Essays (London, 1917). 2. Coke's Institutes, II, 45-50; McIlwain, The Sigh Court of Parliament and its Supremacy, pp. 31 ff.; Justice Curtis in Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 276 (1855). For exaggerated claims regarding the significance of Magna Carta as a fundamental law designed to secure justice to all, consult Mott, op. cit., chap. 3. 3. "No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or property but by the judgment of his peers or the law of the land." Declaration of Rights, art. XII. 4. Cf. Edward S. Corwin, "The Doctrine of Due Process of Law before the Civil War," Harvard Law Review, XXIV (March, 1911), 366, 370 ff. Story in his Commentaries on the Constitution, published in 1833, gave the current interpretation of the phrase "due process" that it "affirms the right of trial according to the process and proceedings of the common law." Sec. 1789. 5. Charles M. Hough, "Due Process of Law -- Today," Harv. Law Rev., XXXII (January, 1919), 218, 222 ff. Justice Hough says: "That all men of that day had no conception of due process, other than a summary description of a fairly tried action at law, is not asserted, but I do submit that reports before the Civil War yield small evidence that there was any professional conviction that it was more than that"; see also Francis W. Bird, "The Evolution of Due Process of Law in the Decisions of the United States Supreme Court," Col. Law Rev., XIII (January, 1913), 37, 44 ff. 6. State v. -- , 1 Hay. (N. Car.) 29, 31 (1794); per legem terrae. Attorney General Haywood argued, was not intended "to restrain the legislature from making the law of the land, but a declaration only that the people are to be governed by no other than the law of the land." Cf. also Mayo v. Wilson, 1 N. H. 53 (1817), in which Chief Justice Richardson held that an arrest without warrant had always been considered due process of law in England and that "the makers of the constitution having adopted a phrase from Magna Carta, the meaning of which in that instrument was so well known, must have intended to have used it in the same sense in which it has always been understood to have been used there." 56, 57. For a different interpretation see argument in Trustees of the University v. Foy, 1 Murphy (N. Car., 1805) 58, 73 and opinion of Judge Locke. 7. Referring to the moral and emotional values of Magna Carta which appealed to the popular imagination, McKechnie finds that "fortified as it had been by the veneration of ages, it became a strongly entrenched position that the enemies of arbitrary government could safely hold." "Magna Carta (1215-1915)," Malden, Commemoration Essays, pp. 20, 21. See also Sir Paul Vinogradoff, "Magna Carta Chapter 39," Commemoration Essays, p. 85; C. H. McIlwain, "Due Process of Law in Magna Carta," Col. Law Rev., XIV (January, 1914), 26; G. B. Adams, Origin of the English Constitution (New Haven, 1920), pp. 242 ff. 8. Starting with the assumption that somewhat of the divine essence was breathed into "due process of law" and that there is here involved "phraseology of the purest gold mined under the stress of heated constitutional crises, refined by the fire of violent revolutions, proved by the acid test of centuries of struggle," a recent author sets out to prove that due process of law was always designed to keep government from straying into paths of arbitrariness and injustice. Thus imbued with the will to believe, he finds, contrary to the weight of evidence and to the mature judgments of both English and American scholars, that the phrase "the law of the land" was from the beginning intended as a restraint on the legislature as well as on the executive power, that a considerable number of acts were declared void in England because contrary to Magna Carta as the fundamental law, and that there was "a steady stream of dicta that statutes which were contrary to common right and reason, the law of nature or the common law were unenforceable." Mott, op. cit., pp. 42-48, 123, 135, 142, 143. It is surprising to find how few precedents of this kind investigators have discovered and these were given undue weight by those who desired to find legal limits on royal authority. But Dr. Mott, feeling sure that Englishmen prior to the American Revolution were well aware and confident that due process of law was designed to prevent arbitrary governmental action, is surprised to discover that no discussion of this device to keep government in the paths of reason and of justice is to be found in the Federal Convention at Philadelphia or in the debates on the constitution in the states. Madison is credited with the assertion that due process of law as inserted in the Fifth Amendment of the federal Constitution was intended to limit the legislature but nearly a hundred years elapsed before this was accepted by the courts. Again there was very little discussion of the meaning of due process of law when this clause was inserted in the Fourteenth Amendment as an extra guarantee to render effective the phrase "equal protection of the laws." Since no one knew what due process of law meant, it is concluded that it must have been intended to protect all liberties. Ibid., p. 165. The majority of text writers, it is noted, followed Justice Story in defining due process of law as a protection to the criminal from arbitrary arrest and imprisonment. With the exception of the opinions of Pomeroy and Cooley in 1868, until the beginning of the twentieth century, authors dealt only with the procedural phases of due process of law. Cooley is credited with emphasizing the application of due process of law to taxation in 1876. With such slow recognition of the significance of this term by statesmen, text writers, and the public generally, how has due process of law come to take a central place in American constitutional law? It was the "uncanny intuition" of the justices in state and federal courts, we are told, which discovered a new rôle for due process of law. Searching for "the inherent elements of justice" applicable to all situations the judges extracted from the vague terms of written charters a "latent and unsuspected" meaning which conservatives and reactionaries alike were seeking -- an effective device to check popular lawmaking and to resist arbitrary administrative procedure. But even the justices were dilatory in finding the hidden meaning of due process of law. Only a few of the state justices ventured to suggest implications of the term beyond its well-known procedural implications. 9. A. N. Holcombe, State Government in the United States (New York, 1916), pp. 47 ff. 10. For a suggestive analysis of the inconsistent positions taken by the justices on this issue, consult Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," University of Pennsylvania Law Review, LXI (May, 1913), 441. 11. 3 Dallas 398 (1798). 12. 4 Conn. 209 (1822). 13. 7 Johns. 477 (1811). 14. North Carolina v. Foy, 2 Hay 310, 312; 5 N. Car. 57, 63 (1804). To the contention that the law of the land clause of the bill of rights did not impose restrictions on the legislature, Justice Locke replied: "It is evident the framers of the Constitution intended the provision as a restraint upon some branch of the government, either the executive, legislative, or judicial. To suppose it applicable to the executive would be absurd on account of the limited powers conferred on that officer; and from the subjects enumerated in that clause, no danger could be apprehended from the executive department, that being entrusted with the exercise of no powers by which the principles thereby intended to be secured could be affected. To apply it to the judiciary would, if possible, be still more idle, if the legislature can make the 'law of the land.' For the judiciary are only to expound and enforce the law, and have no discretionary powers enabling them to judge of the propriety or impropriety of laws. They are bound, whether agreeable to their ideas of justice or not, to carry into effect the acts of the legislature as far as they are binding or do not contravene the Constitution. If, then, this clause is applicable to the legislature alone, and was intended as a restraint on their acts (and to presume otherwise is to render this article a dead letter), let us next inquire what will be the operation which this clause will or ought to have on the present question. It seems to us to warrant a belief that members of a corporation as well as individuals shall not be so deprived of their liberties or properties, unless by a trial by jury in a court of justice, according to the known and established rules of decision derived from the common law and such acts of the legislature as are consistent with the Constitution." Due process of law was held to require, for the transfer of a freehold, a trial by jury in Bowman v. Middleton, 1 Bay (S. Car.) 252 (1792), and an act of the North Carolina legislature was held void for attempting to prevent a judicial settlement of property rights. Bayard v. Singleton, 1 Martin 48 (1787). See comments of Justice Waties by way of dictum giving a similar interpretation of lex terrae and suggesting that this phrase was intended "to become an effectual bar to the innovations of the legislature." Zylstra v. Corporation of Charleston, 1 Bay 382, 392 (1794). 15. For more than thirty years after due process of law was introduced into the state constitutions there were few cases interpreting the phrase and no attempt to define it. See Mott, op. cit., p. 192. 16. Holden v. James, 11 Mass. 396, 405. 17. Dartmouth College v. Woodward, 4 Wheat. 518, 581 (1819). Webster observed: "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 the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land." 18. In Bank of State v. Cooper, Justice Green said: "Constitutions are only intended to secure the rights of the minorities.... If the law be general in its operation, affecting all alike, the minority are safe, because the majority, who make the law, are operated on by it equally with the others." 2 Yerg. (Tenn.) 509, 605, 606 (1831). See also Jones' Heirs v. Perry, 10 Yerg. 58, 71, 72 (1836). For dicta in early cases to the effect that due process of law was intended to limit legislative action, see Mott, op. cit., pp. 192 ff. Chief Justice Skinner, holding void an act releasing a debtor imprisoned on execution, said: "An act conferring upon any one citizen privileges to the prejudice of another, and which is not applicable to others, in like circumstances ... does not enter into the idea of municipal law, having no relation to the community in general." Ward v. Barnard, 1 Aikens (Vt.) 120, 128 (1825). See reference to the fact that many acts of this kind had been passed by the legislature and had been enforced without protests. Justice Catron, in upholding a special act of the legislature prescribing the mode by which holders of notes might on refusal to pay same recover judgment, referred to the law of the land as requiring "a general public law, equally binding upon every member of the community under similar circumstances." Van Zandt v. Waddell, 2 Yerg. (Tenn.) 260, 270, 271 (1829); also. Wally v. Kennedy, 2 Yerg. 554, 557 (1831) and Dale "Implied Limitations upon Legislative Powers," American Bar Association Reports, XXIV (1901), 294, 315-319. 19. Hoke v. Henderson, 15 N. Car. 1, 15 (1833); also comments of Justice Peck in Officer v. Young, 5 Yerg. 320, 321 (1833). 20. Bank of State v. Cooper, 2 Yerg. 599, 603 (1831). "There are," said Justice Green, "eternal principles of justice which no government has a right to disregard. It does not follow, therefore, because there may be no restriction in the constitution prohibiting a particular act of the legislature, that such act is therefore constitutional. Some acts, although not expressly forbidden, may be against the plain and obvious dictates of reason. 'The common law,' says Lord Coke [8 Coke, 118], 'adjudgeth a statute so far void.'" The Alabama court, holding void an act prescribing for public officers and attorneys an oath against duelling, said that the declaration of rights was the governing and controlling feature of the constitution and all powers of the legislature were to be expounded and their operation extended or restrained with reference to it. Quoting the provision of the bill of rights that "This enumeration of certain rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachment on the rights retained, or any transgression of the high powers herein delegated, we declare, that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate, and that all laws contrary thereto are void," Justice Ormond claimed that by this language the courts were authorized to declare void any act which was repugnant to natural justice and equity. Hence, "any act of the legislature which violates any of these asserted rights, or which intrenches on any of these great principles of civil liberty, or the inherent rights of man, though not enumerated, shall be void." In re Dorsey, 7 Porter (Ala.) 293, 377, 378 (1838). Due process of law was intended "as a safeguard against the encroachment upon these inherent rights of the people by Congress or the state legislatures." Justice Dickerson in State v. Doherty, 60 Me. 504, 509 (1872). 21. The "law of the land" means "the common law and the statute law existing in this state at the adoption of our constitution. Altogether they constitute the body of law, prescribing the course of justice to which a free man is to be considered amenable, in all time to come." Justice O'Neall in State v. Simons, 2 Spears 761, 767 (1844); also Justice Bronson in Taylor v. Porter, 4 Hill 140, 146 (1843). 22. Justice Gilchrist in Concord R. R. Co. v. Greeley, 17 N. H. 47, 54 (1845); see also Sill v. Coming, 15 N. Y. 297, 303 (1857). 23. White v. White, 5 Barb. 474, 484, 485 (1849). 24. Wynehamer v. New York, 13 N. Y. 378 (1856), Justice Comstock, profiting by the opinions of Chief Justice Bronson in Taylor v. Porter and Chief Justice Ruffin in Hoke v. Henderson, said: "The better and larger definition of due process of law is, that it means law in its regular course of administration through courts of justice.... It is plain, therefore, both upon principle and authority, that these constitutional safeguards, in all cases, require a judicial investigation, not to be governed by a law specially enacted to take away and destroy existing rights, but confined to the question whether, under the pre-existing rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed." Ibid., 395. See dissenting opinions of Justices T. A. Johnson, Wright, and Mitchell, who objected to setting limits to legislative power "upon any fanciful theory of higher law or first principles of natural right outside of the constitution." Ibid., 453. 25. Taylor v. Porter, 4 Hill 140 (1843); Wynehamer 11. State, 13 N. Y. 378 (1856). When the legislature of Pennsylvania passed an act to order a sale of property contrary to the terms of a will, the supreme court held the act invalid. Referring to the "law of the land" provision, Justice Coulter said, "these clauses address themselves to the common sense of the people, and ought not to be filed away by legal subtleties. They have their foundations in natural justice; and, without their pervading efficacy, other rights would be useless.... If property is subject to the caprice of an annual assemblage of legislators acting tumultuously, and without rule or precedent, and without hearing the party, stability in property will cease, and justice be at an end." Ervin's Appeal, 16 Penn. St. 256, 263 (1851). 26. Cf. dictum of Justice Jenkins that the principle of implied limitations was applicable in the interpretation of legislative powers under the Southern Confederacy. Jeffers v. Fair, 33 Ga. 347, 367 (1862). 27. Cf. the first edition of his work on Constitutional Limitations (1868), p. 353. 28. Cf supra, p 112. 29. The avowed object of rendering aid in the development of implied limitations on legislatures was frankly stated by Cooley in the preface to the first edition: "In these pages the author has faithfully endeavored to state the law as it has been settled by the authorities, rather than to present his own views. At the same time he will not attempt to deny -- what will probably be sufficiently apparent -- that he has written in full sympathy with all those restraints which the caution of the fathers has imposed upon the exercise of the powers of government, and with greater faith in the checks and balances of our republican system, and in correct conclusions by the general public sentiment, than in a judicious, prudent, and just exercise of unbridled authority by any one man or body of men, whether sitting as a legislature or as a court. In this sympathy and faith he has written of jury trial and the other safeguards to personal liberty, of liberty of the press, and of vested rights; and he has also endeavored to point out that there are on all sides definite limitations which circumscribe the legislative authority, aside from the specific restrictions which the people impose by their constitutions," Constitutional Limitations (1st ed.), p. iv. (Italics by the writer.) 30. Bank of Columbia v. Oakley, 4 Wheat. 235, 244 (1819). 31. "The wishes and opinions of the minority must yield to those of the majority," said Chief Justice Marshall in Talbot v. Dent, 9 B. Mon. (Ky.) 526, 537 (1849) Cf. for similar opinions Goddin v. Crump, etc., 8 Leigh (Va.) 120 (1837), and the City of Bridgeport v. Housatonic Railroad Co., 15 Conn. 475 (1843). 32. C. J. Bigelow in Hood v. Lynn, 1 Allen (Mass.) 103, 104 (1861). A representative example of this method of reasoning was the frank declaration of Justice Butler, who in reviewing a retrospective law and finding no inhibition in the constitution on this type of enactment said: "But the power of the legislature in this respect is not unlimited. They cannot entirely disregard the fundamental principles of the social compact. Those principles underlie all legislation, irrespective of constitutional restraints, and if the act in question is a clear violation of them, it is our duty to hold it abortive and void." Though the act in question was upheld, the dictum in Goshen v. Stonington was approved as the settled doctrine of the court. Welch v. Wadsworth, 30 Conn. 149, 155 (1861). 33. The supreme court of Maine, requested to give an advisory opinion whether the legislature could pass laws enabling towns, by gifts of money, to assist individuals or corporations to engage in manufacturing, answered in the negative. Among the provisions of the constitution cited to sustain this conclusion were: the natural rights clause of the declaration of rights, the eminent domain provision, and the law of the land restriction. As these provisions did not directly inhibit such an act the justices throughout their opinion indicated their adherence to the doctrine that "the less the state interferes with industry, the less it directs and selects the channels of enterprise, the better." It is this philosophy underlying the reasoning of judges which has frequently prevented local communities from engaging in quasi-public enterprises. In re Opinion of Justices, 58 Me. 590, 598 (1871). 34. After the middle of the nineteenth century justices continued to hold that due-process of law had no relation to the power of taxation. People v. Brooklyn, 4 N. Y. 419, 423 (1857); Johnson v. Stark, 24 Ill. 75, 86 (1860); People 11. Smith, 21 N. Y. 595, 598, 599 (1860). For additional citations see Mott, op. cit., p. 438. 35. Horace Secrist, An Economic Analysis of the Constitutional Restrictions upon Public Expenditures (University of Wisconsin, Economics and Political Science Series), VIII, 13. 36. Ibid., p. 21. Cf. J. B. McMaster, History of the People of the United States, XI, 92, as to the wild speculation in railroad securities from 1834 to 1837. 37. Secrist, op. cit., p. 28. 38. McMaster, op. cit., 34. 39. Ibid., p 54. 40. McMaster, op cit., VIII, 285 ff. 41. See Stein v. Mayor, Aldermen, etc. of Mobile, 24 Ala. 501 (1854); Dubuque Co. v. Dubuque and Pacific Ry. Co., 4 Greene (Ia.) 1 (1853); Gelpcke v. City of Dubuque, 1 Wall. 175 (1863); Town of Guilford v. Supervisors of Chenango Co., 13 N. Y. 143 (1855); Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147 (1853); Lawson v. The Milwaukee and Northern Ry. Co., 30 Wis. 597 (1872); Commissioners of Leavenworth Co. 11. Miller, 7 Kan. 479 (1871), and dissent of Justice Brewer in State v. Nemaha Co., 7 Kan. 542 (1871); and extensive list of cases cited in 20 Mich. 465. Cf. also Railroad Co. v. County of Otoe, 16 Wall. 667 (1872) and Township of Pine Grove v Talcott, 19 Wall. 666 (1873). 42. Evidence of this sentiment appears in the observations of the justices in Iowa in holding invalid a legislative act amending a city charter so as to include for purposes of taxation a large tract of farm land. There must be, said the court, some limits to the power to tax, and as a basis for these limits the distinction was suggested between a just tax and that which is palpably not a tax. Morford v. Unger, 8 Ia. 82, 91 (1859). Justice Leonard thought, in rendering a similar decision, that from the eminent domain provision "we may safely imply the constitutional prohibition against the arbitrary taking of private property for private use without any compensation." Wells v. City of Weston, 22 Mo. 385, 388 (1856). 43. Hanson v. Vemon, 27 Ia. 28 (1869). 44. Dubuque County v. Dubuque and Pacific Ry. Co., 4 Greene 1 (1853). For cases reviewing this decision, see State, etc. v. Wapello Co., 13 Ia. 388 (1862) and McClure v. Owen, 26 Ia. 243 (1868). 45. Ibid., 33, 34. 46. Hanson v. Vemon, 27 Ia. 28, 43. See also Bankhead v. Brown, 25 Ia. 540, 545 (1868), where Chief Justice Dillon, reviewing proceedings to establish a private road, maintained that the constitutional limitation against taking private property for public use without just compensation "prohibits by implication, the taking of private property for any private use whatever, without the consent of the owner." 47. Cf. Eakin v. Raub, 12 Serg. & R. (Penna.) 344 (1825), dissenting opinion of Justice Gibson; and Sharpless Case, 21 Penna. St. 147 (1853). 48. 27 Ia. 46 ff. See also opinions of Justice Wright and Justice Beck. "There is," said Justice Beck, "as it were, back of the written constitution, an unwritten constitution, if I may use the expression, which guarantees and well protects all the absolute rights of the people." Ibid., 73. See reversal of this case, Stewart v. Supervisors of Polk Co., 30 Ia. 9 (1870), after the legislature had re-enacted the former law with certain changes. 49. Hanson v. Vernon, 27 Ia. 28 ff. For list of cases in other states, see ibid., 81. In the first edition of his work on Municipal Corporations, published in 1872, Judge Dillon admitted that "a long and almost unbroken line of judicial decisions in the courts of most of the states has established the principle that, in the absence of special restrictive constitutional provisions, it is competent for the legislature to authorize a municipal or public corporation to aid ... the construction of railways." Citing his own opinion in Hanson v. Vernon, and that of Cooley in People v. Salem, he observed, "the judgments affirming the existence of the power have generally met with strong judicial dissent and with much professional disapproval, and experience has demonstrated that the exercise of it has been productive of bad results." Secs. 104, 105. Cf. note summarizing the conclusions of numerous decisions. In the preface to this work Dillon indicates his disapproval of the doctrines embodied in decisions favoring such powers in the legislatures. See Whiting v. Sheboygan and Fond du Lac Railway Co., 25 Wis. 167 (1869-70), where Chief Justice Dixon, holding a similar statute void, cited and approved the reasoning of Dillon. For decision contra, cf. Lawson v. Milwaukee and Northern Railway Co., 30 Wis. 597 (1872). 50. Gelpcke v. City of Dubuqne, 1 Wall. 175 (1864). 51. Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147 (1853); Dubuque County v. Dubuque & Pac Ry. Co., 4 Greene (Ia.) 1 (1853). 52. Cases upholding the legislative power to authorize taxation to pay bounties to soldiers: Taylor v. Thompson, 42 Ill. 9 (1866); Freeland v. Hastings, 10 Allen 570 (1865); Speer v. School Directors, etc. of Blairsvflle, 50 Pa. St. 150 (1865); but see Tyson v. School Directors of Halifax Township, 51 Pa. St. 9 (1865), where the court held an extreme exercise of such power void because it was not legislation at all. Cases denying such power to legislatures: Mead v. Acton, 139 Mass. 341 (1885); State v. Tappan, 29 Wis. 664 (1872). 53. Howard Lee McBain, "Taxation for a Private Purpose," Political Science Quarterly, XXIX (June, 1914), 185, 197 ff. Taxation for a private purpose was held invalid in Curtis v Whipple, 24 Wis. 350 (1869). 54. Constitutional Limitations (1868), pp. 487, 488. 55. Opinion of Justices, 58 Me. 590 (1871); People v. Batchellor, 53 N. Y. 128 (1873). For a unique application of this doctrine see opinion of Justice Brewer holding invalid a statute providing relief for fanners whose crops had been destroyed, by means of a secured loan for the purchase of grain for seed and feed. Permanent and fundamental principles were held to prevent an act to meet a serious emergency. 14 Kan. 418 (1875). 56. People v. Salem, 20 Mich. 452, 473 (1870). For favorable comment on this decision by Judge Dillon, see American Law Register, IX (N. S., August, 1870), 501. 57. Ibid., pp. 474, 475. The Supreme Court of the United States rejected the reasoning of Cooley under the language of the constitution of Michigan. Township of Pine Grove v. Talcott, 19 Wall. 566 (1873). But Cooley adhered to his former opinion in People v. State Treasurer, 23 Mich. 499 (1871) and in Thomas 11. City of Port Huron, 27 Mich. 320 (1873). 58. For example, an amendment adopted in Pennsylvania in 1857 provided that "the legislature shall not authorize any county, city, borough, township, or incorporated district, by virtue of a vote of its citizens or otherwise, to become a stockholder in any company, association, or corporation, or obtain money for, or loan credit to, any corporation, association, institution or party." Art. xi, sec. 7. 59. Cf. 4th ed. by Nichols (Chicago, 1924), 4 vols. 60. Cooley, Law of Taxation (1st ed.), p 67. In this volume Cooley affirmed adherence to the doctrine of implied limitations by asserting that "as to constitutional declarations of individual rights, many of the most important principles of government are usually not declared at all, but simply taken for granted," and such limitations, he thought, "are equally imperative whether declared or not." Page 41, note. 61. Cooley, op. cit., pp. 67, 68. 62. 20 Wall. 655, 663, 664 (1874). This comment of Justice Miller is frequently cited in support of the theory of implied limitations on legislatures: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.... To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it on favored individuals to aid private enterprises and build up private fortunes, is none the less robbery because it is done under the forms of law and is called taxation This is not legislation It is a decree under legislative forms." 63. Guilford v Supervisors, 18 Barb. 615 (1854) and 13 N. Y. 143 (1856). In this case the law of the land and the eminent domain provisions were held to have no application to taxation. See legislative authorization of a tax to pay a private debt, Thomas v. Leland, 24 Wend. 65 (1840). But for contrary opinion see comment of Chancellor Walworth in Cochran v. Van Surlay, 20 Wend. 364, 373 (1838). 64. Weismer v. Village of Douglas, 64 N. Y. 92 (1876). 65. The supreme court of Maine would not allow the legislature to assist individuals or corporations to carry on manufactories. Opinion of Justices, 58 Me. 590 (1871); Allen v. Jay, 60 Me. 124 (1872). A Massachusetts court held void an act authorizing the city of Boston to issue bonds and lend the proceeds to owners of lands and buildings destroyed by fire, Lowell v. Boston, 111 Mass. 454 (1873); cf. also Mead v. Acton, 139 Mass. 341 (1885); and Opinion of Justices, 211 Mass. 624 (1912). An Illinois court refused to permit a levy of a tax to develop the natural advantages of a city for manufacturing purposes, Mather v. City of Ottawa, 114 Ill. 659 (1885). Referring to the prohibitions on cities in the raising of taxes to aid manufacturing establishments, Justice Riddell says: "We do it every day and in most, if not all, of the cities and in many of the towns and even the villages of Ontario." Constitution of Canada (New Haven, 1917), p. 139. 66. 2 Johns. 162, 167 (1816). 67. See Coates v. Mayor of the City of New York, 7 Cow. 585, 589 (1827), referring to requirements of public use and just compensation as based on principles of natural justice. 68. Matter of Albany street, 11 Wend. 149, 151 (1834). See also one year later, Varick v. Smith, 5 Paige 137, 159 (1834), in which it was contended that the exercise of the power of eminent domain for other than a public use would be an infringement upon the spirit of the constitution, and therefore not within the general powers delegated by the people to the legislature. Cf. McBain, "Taxation for a Private Purpose," Pol. Sci. Quar., XXIX, 187, n, for the halting steps by which New York courts arrived at the public use doctrine as derived from the due process of law and eminent domain provisions of the state constitution. 69. Cf. also Dunn v. City Council of Charleston, Harper's Law Repts. 189 (1824) holding that the law of the land provision prevents a taking of more property than is required for a public improvement, and Emery v. Conner, 3 N. Y. 511 (1850). 70. R. E. Cushman, Excess Condemnation (New York, 1917), chap. 7, and Frank B. Williams, The Law of City Planning and Zoning (New York, 1922), chap. 3. For a good brief account of the law of excess and zone condemnation in Europe see ibid., chap. 2. 71. Wm. E. Britton, "Constitutional Changes in Eminent Domain in Illinois," Illinois Law Bulletin, II (April, 1920), 479. Cf. also Wilbur Larremore, "Incidental Damage to Personal Property in Condemnation Proceedings," Col. Law Rev. XI (February, 1911), 147. See Sedgwick, Constitutional Law, (2d ed.), pp. 456 ff. and Lewis, Eminent Domain, vol. I (3d ed.), sec. 66. 72. State v. Evans, 3 Ill. 208 (1840). 73. Lewis, op. cit., chap. 7. 74. Constitutional Limitations (1868), p. 357. See also Lebanon School District v. Lebanon Female Seminary, 12 Atl. 857, 859 (1888); Justice Cooley in Detroit v. Detroit and Howell P. R. Co., 43 Mich. 140, 147 (1880); People v. O'Brien, 111 N. Y. 1 (1888). 75. Mo. Pac. Ry. Co. v. Nebraska, 164 U. S. 403 (1896). 76. Chicago, B. & Q. Ry. Co. v. Chicago, 166 U. S. 226 (1897). 77. "Only a few of the state constitutions in terms prohibit the taking of property for private use. All courts, however, agree in holding that this cannot be done. Different courts find different reasons for this conclusion, some putting it on the ground of an implied prohibition in the eminent domain provisions of the constitution, some on the ground that it would be contrary to the provision that no person shall be deprived of his property except by the law of the land; others, on the ground that it would be subversive of the fundamental principles of free government, or contrary to the spirit of the constitution." Lewis, op. cit., I, p. 250, and footnotes for extensive citation of cases. 78. Pumpelly v. Green Bay Co., 13 Wall. 166, 177, 178 (1871). 79. Monongahela Navigation Co. v. United States, 148 U. S. 312, 324 (1892). Justice Brewer thought the Fourteenth Amendment was intended to protect "those rights of person and property which by the Declaration of Independence were affirmed to be inalienable rights." 80. Cf. McBain, Pol. Sci. Quar., XXIX, pp. 200, 201. With regard to the requirement of public purpose for taxation "a careful reading of the numerous cases," says Professor McBain, "in which this doctrine has been announced impels the conclusion that none of them have progressed very far in the direction of finding constitutional basis for the doctrine either in express provision or reasonable implication." Ibid., 199. 81. Paul Errera, Traité de droit public belge, pp. 358 ff. See Constitution of Belgium (1831), art. XI. 82. Art. 545. Cf. Baudry-Lacantinerie and Chauveau, Traité théorique et pratique de droit civil (3d ed.), VI, 161. 83. Cf. Laws of May 3, 1841, July 27, 1870, and November 6, 1918; Williams, op. cit., pp. 68 ff. 84. Léon Duguit, Traité de droit constitutionnel (2d ed.), III, 358, 360. 85. Constitution of Canada, p. 131 and "The Constitutions of the United States and Canada, Canadian Law Times, XXXII (1912), 849. 86. Cf. Charles E. Merriam, American Political Theories (New York, 1906), chaps. 2 and 3. The contrast between the radical principles of the Revolution and the doctrines of the first conservative reaction is shown in the differences between the Pennsylvania constitution of 1776 drawn chiefly by Franklin and Bryan and the constitution of 1790 prepared by the leaders who helped secure the adoption of the federal Constitution. 87. Merriam, op. cit., chaps. 4 and 5. 88. It is worthy of note that the leading American text writers of the middle of the nineteenth century, such as Kent, Story, Cooley, Dillon, and Sedgwick (Constitutional Law), were, as a rule, advocates of the doctrine that there must be implied limits on legislative powers on the basis of higher law theories. 89. "The influences which produced the restrictions on debt also resulted in the introduction of a philosophy of laissez faire, public debt and state activity were condemned together." Secrist, op. cit., p. 8. 90. The point of view of conservative thinkers of the day was clearly defined by Justice Brewer in a dissenting opinion in State v. Nemaha County, 7 Kan. 549, 555, 556 (1871). "Looking at the provisions of the bills of rights," said Justice Brewer, "as restrictions upon an otherwise absolute supremacy in the legislature -- they seem little more than 'glittering generalities.' But when we regard them as conditions upon which legislative power is granted -- as the foundation principles upon which all legislative actions must be based, and a disregard of such action, void, they become substantial, prominent, vital.... The habit of regarding the legislature as inherently omnipotent, and looking to see what express restrictions the Constitution has placed on its action, is dangerous, and tends to error. Rather regarding first those essential truths, those axioms of civil and political liberty upon which all free governments are founded, and secondly those statements of principles in the bill of rights upon which this governmental structure is reared, we may properly then inquire what powers the words of the Constitution, the terms of the grant, convey." PART III THE FOURTEENTH AMENDMENT AND NATURAL LAW THEORIES CHAPTER VI THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION AND DUE PROCESS OF LAW[1] PRIOR to the adoption of the Fourteenth Amendment, which has been styled an "American Magna Carta," due process of law was of little significance in American constitutional law. For about three quarters of a century after the introduction of the term into the first state constitutions, it was seldom used as a basis for the protection of either personal or property rights. Few legislative enactments were held invalid as contravening due process of law, and some of the most important efforts to define the phrase were made in dicta in cases upholding the validity of the laws attacked. On the whole, the interpretation of the phrase "due process of law" or "the law of the land" prior to 1870 had placed on legislatures few restrictions which were not merely procedural in character, and had merely suggested ideas or principles which under a different environment were soon to be received favorably. Though the Fifth Amendment provided that "no person shall ... be deprived of life, liberty, or property, without due process of law," the federal courts were seldom called on to protect either personal privileges or property rights under this provision. And when such an attempt was made it usually resulted in failure for the litigant.[2] When the Fourteenth Amendment was adopted in 1868, with the proviso that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," a serious problem in constitutional interpretation arose. While the amendment was in the process of formulation in Congress there were some among the radical Republican group who wanted to change the whole plan of the federal government, as provided in the Constitution, and to place a supervisory authority over all state powers in the hands of the national authorities. The original draft of the amendment was worded so as to accomplish this object. John A. Bingham, Member of the House of Representatives, who is credited with the drafting of the original due process of law clause, said it was his object to render the principles and restrictions of the Bill of Rights of the federal Constitution applicable to the acts of the states. Conservative Republicans opposed such a change, and the original resolution was dropped and one couched in vague and general terms which proved acceptable to both the radical and the conservative wings of the Republican party, was submitted to the states for adoption.[3] There was considerable fear that section one of the amendment contained the germ of a policy which would mean ultimately a complete change in the relations between the nation and the states. On this ground some Republicans and nearly all of the Democrats opposed the adoption of the amendment.[4] By counting the reconstructed states, forcibly put under Republican control, the amendment was finally declared adopted with its meaning and intent very much in doubt. In the controversies over the adoption very little consideration was given to the significance of section one, the only portion which has had any noticeable effect upon the relations of the federal and the state governments.[5] 1. Period of Restricted Interpretation. Congress immediately set about through enforcement legislation to protect negro voters, to re-enact the Civil Rights Bill, and to place all violations of these measures under federal control. But when an issue involving the interpretation of the amendment came before the Supreme Court, it was decided by a close vote to reject the radical view favoring a complete change in the federal system, and the court adopted the conservative opinion of both Democrats and Republicans -- that the amendment was designed primarily to protect the negro race in their newly acquired rights and privileges.[6] With this exception the states, it was thought, were left as free to regulate their affairs as they were before the Civil War. Thus interpreted, "due process of law" and the "equal protection of the laws" would have had little effect on the normal field of state functions. But four members of the court dissented, and Justice Field in his dissent expressed the view that it was the intention of the Fourteenth Amendment to "protect the citizens of the United States against the deprivation of their common rights by state legislation."[7] Here was a suggestion favorable to special interests desiring protection, and counsel were not slow to urge upon the court that the new amendments were intended to place the whole jurisprudence of the country under the protection of the Supreme Court.[8] The majority of the justices, however, saw no reason for taking such a significant step, and chose rather to adhere to the time-honored interpretation of due process of law. The effect of this and similar decisions[9] was to leave relatively little power to enforce the amendment in the hands of Congress, and to transfer its definition and application primarily to the courts. And for ten years the federal courts consistently discouraged litigation under the amendment -- so much so that only nine cases were considered in a decade. This attitude may have been due in part to the fear that Congress, which had overridden both the executive and the courts in carrying out its reconstruction policies, would unduly interfere with the powers of the states. From 1877 to 1885 twenty-six additional cases were adjudicated under this amendment, making a total of thirty-five cases in sixteen years. Considering the fact that a considerable number of these cases were either unimportant or trivial, it seemed that the adoption of the Fourteenth Amendment had affected but slightly the powers of the states as they existed prior to the Civil War.[10] Justice Miller thought that the just compensation principle of the Fifth Amendment was not comprehended under the Fourteenth Amendment. It seemed to him not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised have been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the Constitution as a restraint upon the powers of the states, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty or property, without due process of law. There is here abundant evidence that there exists some strange misconception of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the attention or the decision of this court the abstract opinion of every unsuccessful litigant in the state courts, or jury of the decision against him, and of the merits of the legislation upon which such decisions may be founded.[11] When an attempt was made to secure protection under the due process clause from legislative regulation of private business the court again refused to accept the extended application of due process of law.[12] When the argument was presented 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, the answer was given by the court that the practice has been otherwise.[13] That this power might be abused, it was admitted, but for protection against abuses by legislatures, the court replied, "the people must resort to the polls, not to the courts."[14] The controlling fact was held to be the power to regulate at all. If that existed the right to establish the maximum charge as one of the means of regulation was implied. In short, the issue was regarded as a political question, and was referred to the political departments of the government. A dissenting opinion by Justices Field and Strong emphasized the importance of judicial determination of questions of this nature. The majority opinion was condemned as "subversive of the rights of private property, heretofore believed to be protected by constitutional guarantees against legislative interference."[15] Thus far the federal courts had refused to limit the power of taxation by an implied public purpose doctrine or by the due process of law clause, to restrict the legislative regulation of private callings, even to the extent of permitting the creation of an exclusive monopoly, or to prevent the fixing, without judicial recourse, of the maximum charge for the use of property affected with a public interest.[16] 2. Economic and Political Pressure brings about a Change in Supreme Court Decisions. But the conservative policies which had grown into favor and had met with judicial approval in the states, were reflected in a reversal of the position of the Supreme Court, which gradually made the minority views in the Slaughter-House and the Granger Cases the majority opinion of the court. The persistent appeal to the court by counsel, representing interests desiring protection under the Fourteenth Amendment and under other clauses of the Constitution, ultimately had the desired result.[17] Some marked changes in economic and social conditions, and political developments arising therefrom, prepared the way for a change of opinion on the meaning of the vague phrases of the Fourteenth Amendment. The Civil War brought on something in the nature of an industrial revolution in the United States. When foreign intercourse was almost entirely cut off, the growth of domestic industries was greatly increased. The movement once begun, and encouraged by a high protective tariff, a phenomenal growth of manufactures took place from 1870 to 1900. The opening up of extensive areas in the West, begun before the issues of the Civil War overshadowed everything else, was accelerated by the Homestead Act and by the building of transcontinental railways through lavish grants of land by state and federal governments, and through generous financial aid in other ways. The wave of commercial expansion that followed the war, augmented by high protective duties, offered rare opportunities for masters of finance and captains of industry, which were taken advantage of in the consolidation of the railways into great systems, and often in wrecking their finances by outrageous manipulations, and in the beginnings of concentration and integration of small units in the field of manufactures. As the capitalists grew in number, and their interests increased in importance, they sought not only to control legislative assemblies in order to secure special favors but also, in certain other respects, to curtail their activities.[18] At the same time that such a marked commercial expansion was under way and the process of consolidation and integration was going on, certain movements originating mostly in the West and the South aimed to check this development, and to bring many of the business practices involved under regulation by law. The early eighties saw "everywhere increasing inclination to translate social yearnings into statutes that interfered with the also fast-increasing class who wished to be let alone because they were well able to take care of themselves under a static common law."[19] The Granger Movement, populism, and the beginning of the regulation of industry on behalf of labor, gave what seemed to many ominous warnings of a dangerous trend toward state socialism. Thus there arose a clearly drawn controversy between the leaders of industry, commerce, and finance, and the forces favoring public regulation and control. The rush of immigration to the West and the commercial enterprises involved in opening up large sections of new land, gave to the frontier and to the philosophy accompanying frontier conditions a dominance in American public life. Large corporations and industrial enterprises, amply able to take care of themselves, began to advocate a policy of hands off by the government, and this policy accorded well with the interests of those who were pushing the frontier farther to the West. A combination of conservative leaders in both leading parties was organized to contest all forms of regulation of business interests by the public. As Hamilton and Madison thought when the federal Constitution was being formed, that it was necessary to take steps to check the activities of "overbearing majorities," so Judge Dillon expressed the opinion of a dominant class in the latter part of the nineteenth century when he said, "We cannot fail to see that what is now to be feared and guarded against is the despotism of the many -- of the majority."[20] A solid front faced the seemingly radical regulative tendencies growing in the South and the West. The line was clearly drawn between the conservatives, combined now with the augmented followers of the laissez faire policy, and the radical leaders of the movement favoring public regulation of public service enterprises and legislative control of industrial conditions, regarded as harmful both to the laborers and to the general public. Justice Holmes had in mind this controversy when he referred to conditions which led people who no longer hope to control the legislatures to look to the courts as expounders of the Constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantages on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.[21] It was the drawing of a well-defined issue between conservative and, at times, reactionary forces which now opposed public regulation of business interests, public and private, and the liberal or radical leaders who were committed to regulative and restrictive policies that finally brought pressure to bear on the Supreme Court sufficient to secure a reversal of its interpretation of the Fourteenth Amendment.[22] Speaking of the growth of litigation under due process of law as the product of two generations, Justice Hough remarks: "To me the reasons seem to have no very close relation to the law or its professors; but to rest on the social and material changes which have within the years indicated transformed this country from an agricultural to a manufacturing community, and its population so largely from rural to urban."[23] Reference was made previously to an apparent change of position when Justice Miller defended the public purpose criterion in taxation as the basis for well-defined implied limits on state legislatures. The conclusion was reached that there can be no lawful tax which is not levied for a public purpose, and that the determination of what is a public purpose is ultimately for the courts.[24] That the majority of the court was changing the grounds on which judicial review of legislation was formerly exercised was asserted in a dissent by Justice Clifford.[25] The Supreme Court, however, was not as yet inclined to accept, as a general limitation applicable to the taxing power of the federal and state governments, the public purpose doctrine of Justices Cooley and Dillon with all of its implications. 3. Reversal of the Former Opinions on the Meaning of Due Process of Law. A change of opinion relative to the meaning of the due process of law clause of the Fourteenth Amendment, which has extended its scope into many phases of federal and state law, was indicated primarily in cases relating to the state regulation of public utilities, in those involving the concept of the liberty of contract or liberty of calling, and in the interpretation of due process of law into a broad rule of reason to test the validity of many controversial state enactments. (a) Due Process of Law applied to the Procedure in the Regulation of Public Utilities. Signs of the changing attitude of the justices of the Supreme Court relative to the legislative control over public utilities appeared when Chief Justice Waite in upholding the right of legislatures to regulate railway charges said: It is not to be inferred that this power of limitation or regulation by the state is itself without limit. This power to regulate is not the power to destroy, and limitation is not the equivalent of confiscation ... the state cannot ... do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law.[26] Justice Gray, who joined with the majority in the Munn Case, had changed his opinion in a decade sufficiently to approve Waite's dictum "as a general rule of law," but doubted whether the court would, under any circumstances, have the power to hold a state rate act void on the ground that it was unreasonable.[27] And as late as 1892 the court again expressed doubt whether it could hold that a rate fixed by the legislature was unreasonable.[28] But the doubt and uncertainty prevailing for some time was in a large part removed when in the epoch-making Minnesota Rate Case the Supreme Court held that rate regulation, although primarily legislative in character, was subject to judicial review under the due process of law clause. Declaring invalid the Minnesota Act of 1887, providing that the rates established by a railroad and warehouse commission shall be final and conclusive as to what are equal and reasonable charges, and that there could be no judicial inquiry on the question of reasonableness, Justice Blatchford, extending Chief Justice Waite's dictum, said: The question of the reasonableness of a rate of charge for transportation by a railroad company, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination.[29] Justice Bradley, with whom concurred Justices Gray and Lamar, asserted that the majority opinion of the court practically overruled Munn v. Illinois and other railroad cases decided by the court, and commented as follows: But it is said that all charges should be reasonable, and that none but reasonable charges should be exacted; and it is urged that what is a reasonable charge is a judicial question. On the contrary, it is preeminently a legislative one, involving considerations of policy as well as of remuneration; and is usually determined by the legislature by fixing a maximum of charges.... If this maximum is not exceeded, the courts cannot interfere.... Thus, the legislature either fixes the charges at rates which it deems reasonable; or merely declares that they shall be reasonable; and it is only in the latter case, where reasonableness is left open, that the courts have jurisdiction of the subject.[30] A decision which made the courts the final arbiters in the regulation of rates, Justice Bradley thought, was an assumption of an authority on the part of the judiciary which it had no right to make. To the repeated arguments that such a power in the hands of legislatures was dangerous and that implied limits on legislatures were essential to preserve and protect property rights, Justice Bradley replied, defending the principles of democratic control of public affairs: It may be that our legislatures are invested with too much power, open, as they are, to influences so dangerous to the interests of individuals, corporations and society. But such is the constitution of our republican form of government; and we are bound to abide by it until it can be corrected in a legitimate way. If our legislatures become too arbitrary in the exercise of their powers, the people always have a remedy in their hands; they may at any time restrain them by constitutional limitations. But so long as they remain invested with the powers, that ordinarily belong to the legislative branch of government they are entitled to exercise those powers, amongst which, in my judgment, is that of the regulation of railroads and other public means of intercommunication, and the burdens and charges which those who own them are authorized to impose upon the public.[31] The original purpose of the due process of law clause was to protect the weak and the oppressed but when the Supreme Court decided that corporations were entitled to the protection of the Fourteenth Amendment and that foreign corporations could not be deprived of their property arbitrarily,[32] the way was opened for organizations of capital to contest before the Supreme Court such laws as they regarded unwise or detrimental to their interests. Comparatively few cases have arisen under the amendment to protect personal or individual rights and instead it has become the bulwark for the protection of the privileges and interests of large corporations. Where states reserved in their constitutions the right of the legislature to alter, amend, or repeal at will corporate franchises, the Supreme Court intervened to insist that the power of alteration and amendment is not without limit. The alterations must be reasonable and they must not take the property of the company without just compensation.[33] Such a holding has amounted to the practical proposition that legislatures may amend corporate charters to the advantage of the incorporators but not to their detriment. As a result of this change in the attitude of the court, and the extension of due process of law as a standard applicable to rate regulation and the reasonableness of measures for public control, a large field of public powers, namely, the manifold regulations of state legislatures and administrative commissions, in their effort to control public utilities, has become subject to the continuous critical scrutiny of the courts,[34] often primarily concerned with preserving the property rights of the utilities. Judicial review by this extension of the application of due process of law has entered a new field, and has placed numerous restrictions and obstructions in the way of effective regulation of public utilities by states and other local bodies. Such review manifestly was not inherent in any constitutional provision or a necessary concomitant of constitutional interpretation as first understood and applied in state and federal governments. It came as a result of the fear of democratic control and of popular participation in the regulation of public utilities and of the belief that private property could be made safe only with extensive limitations on legislatures rendered effective by courts through judicial review of legislative and administrative findings. While the court was gradually changing its position on the review of legislative and administrative procedure in rate-making and in the regulative power exercised by states over corporations and public utilities, members of the court imbued with the frontier philosophy of individualism, or sympathetic with conservative doctrines were establishing a standard by construction to pass on the fairness or expediency of labor legislation. Justice Field had suggested in the Slaughter-House Cases that in his opinion the Fourteenth Amendment was intended to protect all citizens of the United States in their "common rights," and it was in the definition of these "common rights" that the theories of the Declaration of Independence and of the eighteenth-century natural rights were again applied.[35] (b) Due Process of Law and Liberty of Contract. As an advocate of the natural rights ideas of the revolutionary period Justice Field became the mouthpiece for the judicial protection of the fundamental rights which belong to man "as a free man and a free citizen."[36] At the first available opportunities Justice Field gave a careful exposition of his views as to the nature of these fundamental rights, as follows: As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people; "We hold these truths to be self-evident" -- that is, so plain that their truth is recognized upon their mere statement -- "that all men are endowed" -- not by edicts of Emperors, or decrees of Parliament, or acts of Congress, but "by their Creator with certain inalienable rights" -- that is, rights which cannot be bartered away or given away, or taken away except in punishment of crime -- "and that among these, are life, liberty, and the pursuit of happiness, and to secure these" -- not grant them, but secure them -- "governments are instituted among men, deriving their just powers from the consent of the governed." Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that "the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hand, and to hinder his employing his strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper." Adam Smith's Wealth of Nations, Bk. I, chap. 10.[37] The Fourteenth Amendment, in declaring that no state "shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.[38] These dicta, along with some similar remarks of other justices, introduced into American law the concept of liberty of contract and of calling. This concept, which is one of the by-products of natural law thinking, had its origin in mediaeval times and was accepted in France and in England as one of the principles of the economic policy of laissez faire. The principle was accepted and applied by the state courts to check the increased efforts of legislatures to regulate wage contracts and labor conditions.[39] It was merely necessary to translate these dicta into concrete terms and to use them in rendering the judgments of the Supreme Court.[40] This was done by Justice Peckham when he asserted that, "in the privilege of pursuing an ordinary calling or trade, and of acquiring, holding and selling property must be embraced the right to make all proper contracts in relation thereto,"[41] and with extensions beyond Field's broad terms, by Justices Harlan[42] and Pitney.[43] Thus, beginning in a series of dicta, a doctrine of liberty of contract was developed as a phase of the Fourteenth Amendment and was gradually accepted and interpreted by the majority of the Supreme Court to embody the natural and inalienable rights doctrine of the Declaration of Independence. The terms of the Fifth and Fourteenth Amendments were thereby given an interpretation which placed new limits on legislative powers for the state and federal governments.[44] Advocates of the "new liberties" soon formulated what they called a fundamental principle, namely, that the term "liberty" as used in the Declaration of Independence and as extracted from the general language "due process of law" in written constitutions meant not only for the individual freedom from servitude and restraint, but also freedom to use his powers and faculties, and to pursue such vocation or calling as he may choose, subject only to the restraints necessary to protect the common welfare.[45] The adoption by the courts of the principle of judicial review of public utility regulations as a requirement for the due process clause of the Fourteenth Amendment, combined with an incorporation therewith of a considerable part of Chancellor Kent's vested rights doctrine,[46] which the judiciary were specially charged to apply, and the interpretation of the amendment to include the natural rights theories of the Declaration of Independence went a long way toward construing the Fourteenth Amendment as radical Republican leaders had desired, so as to exercise national supervision over the control of civil rights -- an interpretation which the court itself had repeatedly rejected.[47] But with all of these ideas combined in the due process clause a mere beginning was made to develop in the constitutional law of the United States a formidable Naturrecht or natural law, which was to be fostered into a new lease of life by combining the phrases "due process of law" and the "equal protection of the laws." These have been united to assure the broadest kind of protection for the fundamental rights of the individual and for the assurance that there can be no arbitrary interference with personal liberty. Thereby a theory of the protection of human rights glorified by the common law courts was consecrated into a constitutional doctrine and characterized as democratic. 1. "Our constitutional liberty during the last thirty years, with comparatively few exceptions, may be said to be but little more than a commentary on the Fourteenth Amendment, which indeed nationalized the whole sphere of civil liberty. This great amendment to the Federal Constitution has done more than any other cause to protect our civil rights from invasion, to strengthen the bonds of the Union, to make us truly a nation, and to assure the perpetuity of our institutions" William D. Guthrie, Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, (Boston, 1898), pp. 1, 2. 2. Cf. Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272 (1855). Due process the court held to be a restraint on the legislative as well as the executive and judicial powers of government and a process of law which is not otherwise forbidden, and which can be shown to have had the sanction of settled usage both in England and in this country. Cf. also Hurtado v. California, 110 U. S. 516, 528 (1883), and Holden v. Hardy, 169 U. S. 366, 390 (1898). For incidental reference to the Fourteenth Amendment, see United States v. Harris, 106 U. S. 629 (1883); see also Yick Wo v. Hopkins, 118 U. S. 356. Cases in which federal acts have been held void as violating due process of law are: Adair v. U. S., 208 U. S. 161 (1908); United States v. Cohen Grocery Co , 255 U. S. 81 (1921); Adkins v. Children's Hospital, 261 U. S. 525 (1923); Untermeyer v. Anderson, 276 U. S. 440 (1928). 3. Horace E. Flack, The Adoption of the Fourteenth Amendment, chaps. 1 and 2. Dr. Flack concludes that Congress had the following objects in view in submitting to the states the first section of the Fourteenth Amendment: 1. To make the Bill of Rights (the first eight amendments) binding upon, or applicable to, the states. 2. To give validity to the Civil Rights Bill. 3. To declare who were citizens of the United States. See pp. 92 ff. It must not be forgotten, however, that it was a Congress dominated by the bitter war spirit and led by the radical Reconstruction leaders of the Republican party which was responsible for the amendment, and, that a large part of the legislation enacted and of the policies fostered by these leaders was repudiated when something approaching normal political conditions was restored. 4. Cf. B. B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865-1867, Columbia University Studies in History, Economics and Public Law, vol. LXII. "The line of Democratic hostility in the nation and the states was absolutely unbroken" James G. Blaine, Twenty Years of Congress, pp. 308-310. 5. Flack, op. cit., p. 208. "The Fourteenth [Amendment] was a straight party measure, due to the distrust of the states solely in respect of their possible treatment of the negro. The sufficient proof of party spirit is that in all the legislatures of all the states exactly one Democrat voted for it." Charles M. Hough, "Due Process of Law -- Today," Harvard Law Review, XXXII (January, 1919), 220. 6. The Slaughter-House Cases, 16 Wall. 36 (1872). See Edward S. Corwin "The Supreme Court and the Fourteenth Amendment," Michigan Law Review, VII (June, 1909), 643. 7. 16 Wall. 89. 8. Murdock v. Memphis, 20 Wall. 590, 599 (1874). 9. See United States v. Cruikshank, 92 U. S. 542 (1875). But Chief Justice Waite threw out the suggestion that the Fourteenth Amendment "furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." Ibid., 554. 10. Prior to 1883 "appeals to due process of law in the federal courts were rare, and (barring the negro cases) never successful, except on the procedural side." Pennoyer v. Neff, 95 U. S. 714 (1877) is called a "monument" of the latter type of decision. Cf. Hough, op. cit., p. 218. 11. Davidson v. New Orleans, 96 U. S. 97, 103-104 (1877). It was in this case in which Justice Miller, refusing to define due process of law, said: "There is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the federal Constitution, by the gradual process of inclusion and exclusion, as the cases presented shall require." Ibid., 104. Referring to the above observation of Justice Miller in 1885, Justice Field remarked that after the lapse of eight years, it may be repeated with an expression of increased surprise at the continued misconception of the purpose of this provision." Missouri Pacific Railway v. Humes, 115 U. S. 512, 520 (1885). For a change in the position of the court see opinion of Justice Gray in Missouri Pacific Railway v. Nebraska, 164 U. S. 403, 417 (1896). A requirement that a company lease its property to a private party was held to be a taking of property and a denial of due process of law. Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226, 233, 241 (1896). Henceforth it was regarded as settled that a state might not under the due process provision take private property for public use without just compensation. 12. Munn v. Illinois, 94 U. S. 113 (1876) and the Granger Cases, 94 U. S. 155, 164, 179, 180. See Buck, The Granger Movement, chaps. 4-6. For similar decisions approving the regulative power of the states see Bradwell v. The State, 16 Wall. 130 (1872); Bartemeyer v. Iowa, 18 Wall. 129 (1873); United States v. Cruikshank, 92 U. S. 542 (1875); Hurtado v. California, 110 U. S. 516 (1883); Barbier 11. Connolly, 113 U. S. 27 (1884); and Powell v. Pennsylvania, 127 U. S. 678 (1887). See, however, Justice Field's opinion on the broad implications of the Fourteenth Amendment, 113 U. S. 31. 13. Munn v. Illinois, 94 U.S. 133, 134. At common law, in the absence of legislation, a public utility was bound to charge no more than a reasonable rate and in case of complaint it was for a court to decide whether the rate was reasonable. But if Parliament fixed a schedule of rates no court could inquire into the question of reasonableness. The remedy in such case lay in an appeal to Parliament or to the voters, not to the courts. Gerard C. Henderson, "Railway Valuation and the Courts," Harv. Law Rev., XXXIII (May, 1920), 904. 14. 94 U.S. 134. 15. Ibid., 136. In Stone v. Wisconsin, it was again maintained by the minority that the court's decision that a corporation charter was subject to alterations or repeal by the state legislature was wrong, and that it will "justify the legislature in fixing the prices of all articles and the compensation for all services. It sanctions intermeddling with all business and pursuits and property in the community, leaving the use and enjoyment of property to be regulated according to the discretion of the legislature." 94 U. S. 181, 186 (1876). 16. The decisions in the Granger Cases Judge Hough remarks "seemed to put all complaints of corporate regulation of service and charges out of court, if an appeal under the due-process clause was ventured against a state; the still continuing dissents of Justice Field seemed most unorthodox. The remarks in another judgment, that due process was usually what the state ordained, seemed to clinch the matter." Harv. Law Rev., XXXII, 226 and Walker v. Sauvinet, 92 U. S. 90 (1875). 17. See argument of Joseph H Choate in Pollock v Farmers' Loan & Trust Co., 157 U S. 429, 532, 534 (1895): "I believe there are private rights of property here to be protected; that we have a right to come to this court and ask for this protection, and that this court has a right, without asking leave of the attorney general or any counsel, to hear our plea. The act of Congress which we are impugning before you is communistic in its purpose and tendencies and is defended here upon principles as communistic, socialistic -- what shall I call them -- populistic as ever have been addressed to any political assembly in this world.... I have thought that one of the fundamental objects of all civilized governments was the preservation of the rights of private property. I have thought it was the very keystone in the arch upon which all civilized government rests and that this once abandoned, everything was at stake and in danger." 18. S. J. Buck, The Granger Movement (Cambridge, 1913), pp. 13 ff. 19. Hough, op. cit., p. 227. 20. The Laws and Jurisprudence of England and America, pp. 204-205. 21. Collected Legal Papers (New York, 1920), p. 184 and Harv. Law Rev., X (March, 1897), 456, 467. 22. "Conservative and liberal schools of interpretation not only instantly appeared at bar, but in the court, and along party lines, in a way not usually recognized." Hough, op. cit., p. 225. "The Granger legislation aroused bitter political passions and grave fears among those who believed the welfare of the country depended upon the security of property. In case after case, as it came before the Supreme Court, the leaders of the bar appealed to the court not to leave the vast interests of private stockholders at the mercy of radical state legislatures. To have withstood this appeal would have been utterly inconsistent with the individualistic spirit which pervaded American jurisprudence in the latter part of the nineteenth century. Some method must be devised by which courts could check the assaults of western legislatures upon established property rights." Henderson, op. cit., p. 905. See also Hough, op. cit., p. 227. 23. Hough, op. cit., p. 222. 24. Loan Association v. Topeka, 20 Wall. 655, 662, 663 (1874). See comment of Justice Miller in Davidson v. New Orleans, "that because of the fact that the Loan Association Case came to the federal courts because of the character of the parties, the justices felt free to enforce general principles of constitutional law." 96 U. S. 97, 105 (1877). When the contention was made that unjust and oppressive taxation by the states should be prevented, the Supreme Court held that the Constitution was not intended to furnish a corrective for every abuse of power which may be committed by the state governments and could not afford relief between a state and its citizens against taxation, however unjust, oppressive, or onerous. Kirtland v. Hotchkiss, 100 U. S. 491, 498 (1879). But eleven years later, speaking again through Justice Harlan, an unwise exercise of the power of levying special assessments was held invalid on the general ground that "the power of the legislature in these matters is not unlimited." Norwood v. Baker, 172 U. S. 268, 278 (1898). For a modification of the judgment in this case see French v. Barber Asphalt Pav. Co, 181 U. S. 324 (1901). Justices Harlan, White, and McKenna dissented. 25. "Courts cannot nullify an act of the state legislature," said Justice Clifford, "on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the Constitution and the people, and convert the government into a judicial despotism.... Unwise laws and such as are highly inexpedient and unjust are frequently passed by the legislative bodies, but there is no power vested in a circuit court, nor in this court to determine that any law passed by a state legislature is void if it is not repugnant to their own constitution nor the Constitution of the United States." 20 Wall. 669, 670. 26. Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 331 (1885). "It is now settled in this court," said the Chief Justice, "that a state has power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or interstate commerce." Ibid., 325. Justices Harlan and Field dissented on the ground that the state act was void in so far as it authorized a commission rather than a court to determine finally the fair return on the value of a railroad. For a similar suggestion see Spring Valley Water Works v. Schottler, 110 U. S. 347, 354 (1883). See opinion of Justice Harlan in Ruggles v. Illinois, 108 U. S. 526, 535 (1883) for an effort to place the basis for the judicial review of rate regulation on the contract clause and on the principles announced by Chief Justice Marshall in the Dartmouth College Case. Using this decision as a basis the railroads denied the right of the states or of the nation to regulate them. Buck, The Granger Movement, p. 12. 27. Dow v. Beidleman, 125 U. S. 680, 686, 691 (1888). A state law in this case which fixed a maximum of three cents a mile for a railway charge for carrying passengers was held not to deny these corporations due process of law. Justice Gray, who joined the dissenters in Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890), had shifted his position completely and was with the majority in Smyth v. Ames, 169 U. S. 466 (1898). 28. Budd v. New York, 143 U. S. 517, 548 (1892); cf. Henderson, op. cit., pp. 904 ff. 29. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418, 458 (1889); through the opinions of Justice Brewer in Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1894) and of Justice Harlan in Smyth v. Ames, 169 U. S. 466, 523 ff. (1898), the change in position was completed. Under the Fourteenth Amendment it has since been repeatedly held that "the rates must be sufficient to cover reasonable operating expenses, plus a proper allowance for depreciation, plus a fair return upon the value of the property; in short, there must be a reasonable judgment having its basis in the proper consideration of all relevant facts." R. L. Hale, "Rate Making and the Revision of the Property Concept," Columbia Law Review XXII (March, 1922), 209. For the opinions of Justice Brewer as Circuit Justice supporting an extensive judicial review to protect the vested rights of utility corporations, see Ames v. Union Pac. Ry. Co., 64 Fed. 163, 176 (1894) and National Waterworks Co. v. Kansas City, 62 Fed. 853, 864 ff. (1804). See also Justice Brewer's opinion holding invalid an act of Congress which abolished the tolls charged by a private company on river traffic with an express provision that the value of the franchise was not to be included in the condemnation proceedings. A franchise, he said, "is a vested right. The state has power to grant it. It may retake it, as it may other private property, for public use, upon the payment of just compensation ... but it can no more take the franchise which the state has given than it can any private property belonging to the individual." Monongahela Navigation Co. v. United States, 148 U. S. 312, 341 (1893). 30. 134 U. S. 418, 462 (1889). 31. 134 U. S., 466. 32. Cf. Opinion of Justice Field in the Santa Clara Railroad Tax Case, 9 Sawyer 165, 210, and of Justice Harlan in Santa Clara County v. Southern Pacific Railroad Co., 118 U. S. 394 (1886); also Justice Field in Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 188 (1888) and Minneapolis and St Louis Ry. Co. v. Beckwith, 129 U. S. 26, 28 (1889) Also Henderson, The Position of Foreign Corporations in American Constitutional Law, chap. 9. That a foreign corporation was entitled to the equal protection of the laws was held, also, in Pembina Mining Case, infra, and Southern Railway Co. v. Greene, 216 U. S. 400, 412 (1910). Mr. Smith claims by rendering the inhibitions of the Fourteenth Amendment applicable to corporations the Constitution of the United States was amended "by the act of the judiciary alone." "We approach now," he asserted, "a Revolution in our form of government accomplished by the Supreme Court of the United States, so startling that it seems almost incredible, and this Revolution was completed so silently that it has passed almost unnoticed even by the careful historians of the Constitution and of the Court." F. Dumont Smith, "Decisive Battles of Constitutional Law," American Bar Association Journal, X (July, 1924), 505, and The Constitution: Its Story and Battles (Los Angeles, 1926), p. 359. 33. Justice Swayne in Shields v. Ohio, 95 U. S. 319, 325 (1877). 34. For about thirty years "we have had every species of state action productive of permanent loss to vested rights, or limiting business liberty, put to the acid test of due process in the Supreme Court." Hough, op. cit., p. 229. The decisions as to public utility rates and regulations are regarded as "extraordinary in the extent of the power which they place in the hands of the courts, and in the way in which they tie the hands of the state legislatures in respect to subjects over which it has always been considered they had absolute control ... the will of the people in this, as in other respects, is expressed through the acts of their representatives in the legislature. The opinion that the reasonableness of an act is not a legislative but a judicial question substitutes the will of the judges for the will of the people. Mr. Justice Bradley clearly foresaw this, and deeply regretted the inevitable conflict between the courts and the legislature." "The Judicial Record of Justice Bradley," William Draper Lewis in The Miscellaneous Writings of Joseph P. Bradley (1902), p. 25. "After the Chicago Case," says Justice Hough, "legislators were arraigned before the bar and courts passed judgment not, mark you, on the justice or wisdom, but on the reason, of what they had done." Harv. Law Rev., XXXII, 228. For an analysis of the shifting of Supreme Court justices in defining the terms "liberty" and "property" from the standpoint of an economist, consult John R. Commons, Legal Foundations of Capitalism (New York, 1924), especially chap. 9. For review of the decisions of public utility commissions by the federal courts in order to make sure that the decisions are "fair" and "reasonable," consult John Dickinson, Administrative Justice and the Supremacy of the Law in the United States (Cambridge, 1927), chap. 6. 35. Justice Field, in holding void a personal judgment rendered by a state court in an action in personam against a non-resident upon whom no personal service was made, defined due process of law so as to include a portion of the concept of natural law: "They then mean a course of legal proceedings according to those rules and principles which have been established in our system 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 protection by service of process within the state, or his voluntary appearance." Pennoyer v. Neff, 95 U. S. 714, 733 (1877). For an approval of this interpretation, see opinion of Justice Gray in Scott v. McNeal, 154 U. S. 34, 46 (1894). 36. See dissent in Slaughter-House Cases, 16 Wall. 36, 95 (1872); also opinion of Justice Brewer in Monongahela Navigation Co. v. United States, 148 U. S. 312, 324 (1892). Justice Brewer regarded the Declaration of Independence as the cornerstone of the federal Constitution. Cf. address, Yale Law School, June, 1891, on "Protection to Private Property from Public Attack." 37. Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 756 (1883). This opinion, though it was not in accord with the majority views of the Supreme Court, had an extensive influence on the state courts -- "It produced a reactionary line of decisions in New York on liberty to pursue one's calling, and through these cases its echoes are still ringing in the books." Pound, "Liberty of Contract," Yale Law Journal, XVIII (May, 1909), 454, 470. 38. Barbier v. Connolly, 113 U. S. 27, 31 (1885). 39. Cf. the recognition of liberty of contract as an inalienable right of a citizen by Justice Brewer in Frisbie v. United States, 157 U. S. 160, 165 (1894). The main guaranty of private rights against unjust legislation is found in the due process clause, according to Justice Andrews. As protected under this clause Justice Andrews thought "the right to life includes the right of the individual to his body ... the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life; the right of property, the right to acquire power and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the state." Bertholf v. O'Reilly, 74 N. Y. 509, 515 (1878). See also Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354 (1886); Millett v. People, 117 Ill. 294, 7 N. E. 631 (1886); Braceville Coal Co. v. People, 147 Ill. 66, 35, N. E. 62 (1893); State v. Loomis, 115 Mo. 307, 22 S. W. 350 (1892); State v. Norton, 5 Ohio N. P. R. 183 (1898); State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 863 (1889); in re House Bill, 21 Col. Rep. 27 (1895); Ritchie v. People, 155 Ill. 98, 104 ff. (1895); and People v. Williams, 189 N. Y. 131 (1907). For summary of decisions developing the doctrine of liberty of contract from 1890-99, cf. Pound, "Liberty of Contract," Yale Law Jour., XXIII, 472 ff. and G. G. Groat, "Economic Wage and Legal Wage," Ibid., XXXIII (March, 1924), 488, 494. The application of this concept by the Supreme Court in invalidating a Minimum Wage Act for the District of Columbia, in Adkins v. Children's Hospital, 261 U. S. 525 (1923), will be considered later. According to Louis D. Brandeis, "Courts continued to ignore newly arisen needs. They have applied complacently eighteenth century conceptions of liberty of the individual and of the sacredness of private property ... where statutes giving expression to the new social spirit were clearly constitutional, judges, imbued with the relentless spirit of individualism, often construed them away." Illinois Law Review, X (February, 1916), 461, 464. Though some of the illiberal decisions relating to labor contracts have been reversed, the liberty of contract doctrine still stands as a bar to progressive measures in the field of labor legislation. Cf. Ritchie v. Wayman, 244 Ill. 509 (1910) and People v. Charles Schweinler Press, 214 N. Y. 395 (1915). 40. The concept of liberty of contract which was formulated by Justice Field, and developed in a series of state decisions, was thus defined by Justice Shope in the Braceville Coal Company case: "The fundamental principle upon which liberty is based, in free and enlightened government, is equality under the law of the land. It has accordingly been everywhere held, that liberty, as that term is used in the constitution, means not only freedom of the citizen from servitude and restraint, but, indeed, to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare. 147 Ill. 66, 71 (1893). In most cases the language of Justice Field was used, with variations to suit the circumstances of the case. 41. Allgeyer v. Louisiana, 165 U. S. 578, 591 (1897). 42. "The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employé to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason to dispense with the services of such employé. It was the legal right of the defendant, Adair, -- however unwise such a course might have been, -- to discharge Coppage because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so, -- however unwise such a course on his part might have been, -- to quit the service in which he was engaged, because the defendant employed some persons who were not members of a labor organization In all such particulars the employer and the employe have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land," Adair v. United States, 208 U. S. 161, 174-175 (1908). 43. "Included in the right of personal liberty and the right of private property -- partaking of the nature of each -- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money." Coppage v. Kansas, 236 U. S. 1, 14 (1915). 44. Commenting on the fact that the due process clauses of the Fifth and Fourteenth Amendments were rarely invoked as an aid to protect private rights or referred to by justices prior to 1880, Mr. Willis says: "Finally, with the case of Davidson v. New Orleans, 96 U. S. 97 (1878), and a long line of cases following it. Coke's doctrine of a supreme fundamental law was merged in the doctrine of due process of law, and legislation has since then been set aside because not due process of law but not because in violation of some supreme fundamental law." Hugh Evander Willis, "Due Process of Law under the United States Constitution," University of Pennsylvania Law Review, LXXIV (February, 1926), 331, 335. 45. In considering the application of a woman to practice law, Justice Hackney claimed: "There is a law higher in this country, and one better suited to the rights and liberties of the American citizens, the natural right to gain a livelihood by intelligence, honesty and industry in the arts, the sciences, the professions, or other vocations" and the exclusion from such practice was held to interfere with inalienable rights, citing Justice Field in Cummings v. Missouri, 4 Wallace 277, 321. In re Leach, 134 Ind 665, 668 (1893). 46. In 1896 and 1897 it was held that due process of law was a limitation on the power of eminent domain. Fallbrook Irrigation District v. Bradley, 164 U. S. 113 (1896); Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226 (1896). 47. Instead of the judges having discovered new meanings for due process of law, Dr. Mott claims they have merely appropriated portions of a general residual meaning. Mott, Due Process of Law, p. 590. From this viewpoint an unappropriated portion of this concept will always be available to keep legislators in the straight and narrow paths which judges lay out. CHAPTER VII THE DEVELOPMENT OF A GENERAL RULE OF REASON TO DETERMINE THE VALIDITY OF LEGISLATIVE ACTS TO GIVE due process of law a more effective scope as a criterion to measure the validity of new legislative projects, the justices who were exponents of conservative principles and laissez faire policies adopted the dicta of a few authorities on Magna Carta and of several state justices that this phrase was designed to prevent all governmental acts arbitrary in their nature and to preserve the fundamental principles of a free republican government. The application of a rule of reason or a rule of expediency as a primary standard to evaluate the propriety of legislation was accomplished by making due process of law an inhibition against arbitrary legislative or administrative acts, against any interference with the fundamental rights of the individual, and against social and economic legislation which was regarded unreasonable or discriminatory. 1. Arbitrary Legislative and Administrative Acts are Void. Locke is credited with suggesting the idea that exercising governmental powers in an arbitrary manner is unconstitutional.[1] The suggestion of this idea, however, may be traced to opinions rather common in ancient and mediaeval times. The claims that certain clauses of Magna Carta were intended to check all forms of arbitrary political authority,[2] had few supporters in England, as we have seen, but was repudiated by all parties prior to the time that the American colonies set up new governments. Early in the nineteenth century the belief had been expressed in the United States that the law of the land provision was intended to remove arbitrary power from every branch of the government.[3] One justice declared that "the framers of the constitution never dreamed of permitting the exercise of arbitrary power in any department of government."[4] The suggestion that due process of law was intended to secure the individual from the arbitrary exercise of the powers of government[5] and that the security of a citizen against arbitrary legislation rested upon the broader and more solid ground of natural rights, and was not wholly dependent on those negatives upon the legislative power contained in the constitution,[6] gave an indication of possible future interpretations of due process of law. But there were few occasions to consider these comments or to apply them concretely[7] until a similar doctrine was adopted by the Supreme Court of the United States, and made a part of the due process clause of the Fourteenth Amendment. Justices Bradley and Field were among the first to suggest the notion that the Fourteenth Amendment was intended to be an inhibition against arbitrary legislative and administrative acts.[8] They pleaded for an extensive application of the requirement of due process of law to all state acts, and suggested that if such acts were "arbitrary, oppressive, and unjust," they might be declared not to be in accord with due process of law.[9] When judges insisted that "under our institutions, arbitrary power over another's lawful pursuits is not vested in any man nor in any tribunal,"[10] due process of law, applied in England only as a guard against executive usurpation, was destined to become in the United States a bulwark against arbitrary legislation.[11] This new standard for legislative acts was applied when it was determined that the validity of statutes was not to be tested in the federal courts unless "they are clearly inconsistent with some power granted to the general government or with some right secured by that instrument or unless they are purely arbitrary in their nature."[12] The phrase "equal protection of the laws," though not in the Fifth Amendment of the federal Constitution, and not, as a rule, in the state constitutions, had been interpreted as a requirement for legislative and executive acts by certain justices in state and federal courts prior to 1879.[13] It was used without any clear indication as to the purpose of the phrase in the draft of the Fourteenth Amendment which was finally adopted, and the courts were loath to apply its vague content to concrete cases until there was a determined effort on the part of certain justices to incorporate the natural rights philosophy and the doctrine of equality of the Declaration of Independence into the Fourteenth Amendment, in order to condemn acts which the judges regarded as arbitrary or unreasonable.[14] The movement to declare void acts judicially construed as arbitrary[15] found the equal protection clause a supplement to what would otherwise have been construed as a requirement of due process of law. That due process would ultimately have been interpreted as involving the equal protection principle is shown by the fact that statutes regarded as conferring undue favors, class privileges, or discrimination are seldom attacked on the equal protection clause alone, but also as a denial of due process of law. Due process of law and equal protection of the laws, then, combined were being construed with wide enough scope to prevent all legislative and administrative acts which the justices regarded as arbitrary and, like certain other implied limits on legislatures, the equal protection principle was made an essential part of the concept of due process of law.[16] Hence acts which were not general in their application to a particular class were held not to be in accord with the due process and equal protection phrases of the Fourteenth Amendment.[17] "The due process clause requires," said Chief Justice Taft, that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.[18] And Justice Holmes believes that state acts interfering with liberty should be held valid unless "a rational and fair man" would admit that they necessarily infringe "fundamental principles as they have been understood by the traditions of our people and our law."[19] But where is the rational and fair man, what are the fundamental principles, and how are the traditions of the people to be discovered? Since when has the sole custody of these principles and traditions been assigned to the judges? The way in which judges made limitations applicable to legislative action is admirably shown in one of Cooley's dicta: The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one man's property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial but a mere arbitrary fiat.[20] Those who defend the application of judicial standards for the justness or fairness of legislative action claim that it is the only way that unjust interference, not called for by the public needs, with private property and personal liberty can be effectively prevented. But what are unjust interferences with private property, and do these not depend upon changing times and conditions which may be perceived by legislators as well as by judges? And who shall determine what the public needs demand, the representatives of the people or arbiters who have assumed the rôle of umpires?[21] 2. Acts Contrary to Fundamental Rights are Void.[22] Among the ideas which have supplemented other phases of the elastic term "due process of law," in limiting legislative functions, is the doctrine that there are immutable fundamental rights or principles which no governmental authorities may invade. Notions of natural law and of fundamental natural rights, as we have noted, were among the dominant notions of the leaders of the American Revolution and of the framers of the first written constitutions in the United States. Governments, it was believed, were instituted primarily to preserve these rights. And it was taken for granted that legislative enactments which contravened such rights were void, though ideas as to how to prevent such legislative acts or to assure protection to the people against illegal procedure under them were often indefinite. The assertion by the courts of the right to review the constitutionality of legislative acts and to become the special guardians of the written instruments containing assertions of natural rights gave a new turn to the legal applications of the fundamental rights philosophy. It was in connection with the interpretation of the privileges and immunities guaranteed to the citizens of the several states by the federal Constitution that the doctrine of fundamental rights was early announced. Justice Washington said: "We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature fundamental; which belong, of right, to the citizens of all free governments." Though it was regarded as difficult to enumerate these fundamental privileges a few were suggested, such as the enjoyment of life and of liberty, the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may prescribe for the general good.[23] "Standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the Constitution of the United States," Justice Story held invalid a state legislative act which attempted to interfere with the vested property rights of a corporation.[24] The rather common belief in fundamental rights also received his sanction when he called attention to the "fundamental maxims of free government," which required that the rights of personal liberty and private property should be held sacred.[25] When the doctrines of the Federalists and of conservative thinkers generally lost ground and were repudiated by all departments of the government, including the judiciary, in favor of popular theories of political control, little was heard for several decades of immutable fundamental rights in state or federal courts.[26] The doctrine was reaffirmed after the Civil War by Justice Chase[27] and then by Justice Miller, who insisted that there are rights in every free government beyond the control of the state and that there are limitations which grow out of the essential nature of all free governments, "implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."[28] All men, thought Justice Field, have certain inalienable rights; among these are life, liberty, and the pursuit of happiness; in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone; and in the protection of these rights are all equal before the law.[29] The eighteenth-century notion of fundamental rights beyond the realm of government interference and the concept of inalienable rights as formulated in the Declaration of Independence which, it was thought, governments were designed to protect, have now been incorporated by means of judicial construction as essential elements of due process of law and as necessary principles of the American system of government.[30] Few lawyers or judges were as frank as Justice Harlan who was among those applying natural law ideas, when he said: "the courts have rarely, if ever, felt themselves so restrained by technical rules that they could not find some remedy, consistent with the law, for acts, whether done by government or by individual persons, that violated natural justice or were hostile to the fundamental principles devised for the protection of the essential rights of property."[31] Justice Moody was similarly frank when he preferred to rest the decision regarding exemption from self-incrimination on broader ground than the strict language of the Constitution and raised the query, "Is it a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government? If it is, and is of a nature that pertains to process of law, this court has declared it to be essential to due process of law."[32] Despite these apparent applications of principles of reason, or of natural law and natural justice in the opinions of the justices and of the marked change in the meaning of due process of law, the assertion is repeated consistently that judges in the decision of cases have nothing to do with the wisdom, justice, or expediency of legislative acts.[33] 3. Police Regulations must be Reasonable. The extensive limitations which were inserted in the state constitutions and the implied limitations developed by the courts placed many restrictions upon the authority of the states and rendered it difficult to meet the public needs and requirements. Hence the doctrine of the police power was conceived as a kind of safety-valve through which the necessary authority for the protection of the public order, public morals, and public health might be authorized despite these restrictions.[34] But the exercise of such powers, it was eventually held, was subject to the requirements of due process of law and equal protection of the laws and the general necessity of reasonableness. American courts, following the English practice, held that the by-laws of a municipal corporation, unless expressly authorized by a legislative act, must be reasonable, and must not be inconsistent with the general principles of the common law, particularly those having relation to the liberty of the individual or the rights of private property.[35] This meant that ordinances might be held void which were deemed unfair, oppressive, or discriminatory. State legislatures, also, in their efforts to regulate social and industrial conditions were held subject to the requirement that "under the mere guise of police regulations personal rights, and property rights cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive."[36] It was also held for the courts to decide whether a regulation had in fact some relation to the public health, whether it was appropriate, and adapted to the end aimed at.[37] The federal justices, who first refused to interfere with the police powers of the state under the due process provision, were prevailed upon to adopt the dictum of the New York court,[38] that the power to regulate is not the power to destroy,[39] and to render this dictum applicable to all types of social legislation. A rule of reason test for police regulations extensive in its scope was also formulated by Justice Peckham.[40] A state law, therefore, might be held void when enacted to protect the public health, the public morals, or the public safety if it had "no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."[41] The criteria by which the Supreme Court determines whether a state act is a legitimate exercise of the police power are: 1. The object of the legislation must be permissible. 2. The means must have a substantial relation to the end. 3. Fundamental rights must not be infringed. 4. The effect of the enforcement of the law must not be arbitrary, unreasonable, or oppressive.[42] Thus it will be seen that the courts may adopt Locke's dictum and hold that an act which appears to them unwise is not within the scope of legislative action. Or they may conclude that the ways and means adopted by the legislature are not appropriate to accomplish the object intended. If an act meets these tests it may run afoul of the fundamental rights of the individual and what are fundamental rights has never been determined. Finally, it must meet the test of reasonableness, which is the most difficult of all requirements, for who knows what will appear reasonable to the judicial mind?[43] It is not surprising then for the conclusion to be reached, after a thorough analysis of the attempts to apply the criterion of due process of law to cases arising under the police power, that the opinions of the Supreme Court "have confused rather than clarified the subject and that from such attempts have come no rules, standards, or principles capable of certain applications to concrete cases."[44] The criteria upon which the court proceeds in such cases, it is observed, are largely subjective and depend upon the personal, political, and economic opinions of the justices. The terms "arbitrary," "unreasonable," and "oppressive" are not defined in the written law and can be applied only "in the light of the judges' own mental processes."[45] It is here that the silence of the Constitution speaks in a voice tuned only to judicial ears. The situation resulting from the application of the general language of the Fourteenth Amendment to state legislation on social and industrial matters is thus summarized by Mr. Nesbitt: The difficulty with what I have chosen to call the categorical view of the due process of law requirement as applied to legislation, dealing with social and economic changes, is that it extols bare authority at the expense of experience; that it results in the deductive application of general principles to precise facts often without any accommodation to the particular situation out of which the legislation has arisen; that it tends to limit the content of the clauses to a fixed, unconditional meaning, precluding all flexibility in their application; that it construes the due process of law clauses not so much as broad guarantees of "relatively fundamental rights" as the regulations of a code, as arbitrary abstract principles rather than organic rules; and that it excludes consideration of public opinion as a fact to be taken into account in determining the reasonableness of legislation, thus making the opinion of the court as fixed by judicial experience the measure of the limit of the legislative function. The standard of reasonableness which it would apply is remote and traditional.[46] There is involved in much of the reasoning of the judges in the cases under the police power an assumption of inherent superiority of the wisdom and judgments of justices over the judgments of members of the other departments of government. The legislature, it is asserted, cannot invade the rights of person or property, under the guise of a police regulation when it is not such in fact. It is insisted also that it is the province of the judiciary to determine when personal or property rights have been invaded and whether a measure is appropriate for the desired object.[47] Constitutions do not define police regulations which do or do not invade personal or property rights nor do they give any indication as to the appropriate objects of such regulations. Police power as a constitutional concept is a judge-made concept arising from the assumption that legislatures are disposed to fritter away constitutional inhibitions and that it is the duty of judges to prevent such legislative depredations. The term "police power" was hit upon as a convenient phrase for the courts to determine whether a legislative act which interfered with private rights was reasonable enough to have judicial approval. What the whole matter amounts to, we are told, is: "There must be some sort of reasonable balance between the degree of interference with private rights and the public benefit which may be expected to flow from that interference."[48] What is a "reasonable balance," and who is in the best position to decide this question -- a judge or a legislator -- probably a judge if the chief object is to preserve private rights, and a legislator if the public interest and convenience is to be given superior weight? 4. Results of the Extension of the Meaning of Due Process of Law. With judicial review of legislative enactments applied via due process of law to the main lines of public regulation of business and economic conditions, it was not long before the Fourteenth Amendment took its place as the foremost feature of the federal Constitution, so far as the limitations on the powers of the states are concerned. Whereas for the first twenty years after the adoption of the amendment about one case per year on the average arose under its provisions, it was not long before thirty or more cases were adjudicated in the same period. In such important fields of state power as eminent domain, taxation, public utility regulation, and the police power, state and local acts had been attacked before the Supreme Court in more than six hundred cases to the year 1910.[49] To 1910 according to the table of Collins the following questions had been raised under the Fourteenth Amendment: Eminent domain .................. 27 cases Taxation ........................... 144 " Matters of procedure ........ 146 " Police power .................... 302 " Most of the cases which have arisen under this amendment have been decided since 1896. From 1900 to 1913 there were four hundred and nine opinions or about thirty one per year. Out of a total of more than six hundred cases only twenty-eight dealt with the rights of the negro race for whose protection the amendment was primarily enacted. More than half of the cases have come to the court on appeals of public utility interests and other corporate organizations asking protection from the acts of the legislatures and administrative agencies of the states.[50] Though the amendment was enacted primarily as a charter of liberty for the negro race it has been used to a great extent by corporations, public and private, to resist the efforts toward public regulation and to check the exercise of state authority through eminent domain, taxation, and the police power.[51] As a result of such a series of decisions, quasi-legislative in character, the prohibitions involved in due process of law were held applicable to substantive law as well as to legal procedure, to executive, administrative, and judicial acts as well as to legislation, and to corporations as well as to natural persons.[52] Writing in 1919, Judge Hough believed that "the direct appeal of property to due process of law had for the most part failed.... The indirect appeal through liberty is still going on.... But it is dying, and the courts, when invoked today under the due-process clause, are doing little more than easing the patient's later days."[53] That this prediction is not being fulfilled is shown by the fact that since 1920 more acts in the field of social and economic legislation have been invalidated under the due process clause than were set aside from 1868 to 1920.[54] Phrased in percentages this means that from 1868 to 1912 the Court held against the legislature in a very little more than six per cent of the cases; from 1913 to 1920 in a little more than seven per cent of the cases; while since 1920 the Court has held against the legislature in twenty-eight per cent of the cases. And if we go behind the decisions and look at the votes of the individual judges in each case, we will find the same startling increase in the number of opinions adverse to the validity of legislation under the due process clauses. In the period up to 1921 the judicial vote was cast approximately ninety per cent in favor of the various statutes considered, and only ten per cent against. Since then, however, the favorable vote has shrunk to about sixty-nine per cent and the adverse vote grown to thirty-one per cent.[55] Evidently the justices regard with increasing seriousness their assumed duty to guide political action in a safe course so as to avoid the dangers of economic or social radicalism. 5. Some Examples of Higher Law Concepts in Recent Supreme Court Decisions. The doctrine of liberty of contract, an inalienable-right product, is now construed as involved in the Fifth and Fourteenth Amendments. This doctrine was applied in a decision of the Supreme Court of the United States by holding invalid the Minimum Wage Act passed by Congress for the District of Columbia.[56] Justice Sutherland, rendering the opinion of the court, held that the right to contract about one's affairs is a part of the liberty of the individual protected by the Fifth Amendment. Quoting with approval the much criticized opinion of Justice Peckham in the case of Lochner v. New York,[57] he concluded that the Act of Congress was simply and exclusively a price-fixing law, confined to adult women -- who are legally as capable of contracting for themselves as men. It forbids two parties having lawful capacity -- under penalties as to the employer -- to freely contract with one another in respect of the price for which that one shall render services to the other in a purely private employment where both are willing, perhaps anxious, to agree.[58] The standard for the guidance of the board under the act was regarded so vague as to be impossible of practical application. It took into account the necessities of only one party to the contract and it fixed an arbitrary wage payment and thus interfered with economic laissez faire; altogether the act, Justice Sutherland declared, was "clearly the product of a naked, arbitrary exercise of power."[59] Chief Justice Taft, dissenting, with whom concurred Justice Sanford, took issue with the contention that there is, in many instances, a substantial equality as between employer and employee. He admitted that the policy of a compulsory minimum wage is one on which there is much dispute but he thought it was "not the function of this court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound."[60] The principle of the limitation of liberty of contract was recognized by the court in the regulation of wages and labor conditions under the police power and it seemed difficult to understand the difference between regulating the manner and time of payment of wages or fixing maximum hours of labor and the fixing of a minimum wage.[61] In his opinion the Lochner Case was overruled and he expressed surprise at the attempt of the majority justices to quote the case as a precedent. The intimation that the controlling effect of earlier opinions had been weakened by the Nineteenth Amendment was answered by the statement that this amendment did not change the differences between men and women recognized by Congress in the passage of this act. Justice Holmes also dissented and observed that: Notwithstanding the deference due to the prevailing judgment of the Court, the power of Congress seems absolutely free from doubt. The end, to remove conditions leading to ill health, immorality, and the deterioration of the race, no one would deny to be within the scope of constitutional legislation. The means are the means that have the approval of Congress, of many states, and of those governments from which we have learned our greatest lessons. When so many intelligent persons, who have studied the matter more than any of us can, have thought that the means are effective and are worth the price, it seems to me impossible to deny that the belief reasonably may be held by reasonable men.... The earlier decisions upon the same words in the Fourteenth Amendment began within our memory, and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, liberty of contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.[62] The opinions of Justice Van Orsdel of the District of Columbia Court and Justice Sutherland illustrate the attenuated methods of reasoning involved in declaring void legislative acts under the phrase "due process of law."[63] They likewise illustrate the process of judicial interpretation by which implied limitations on legislative powers are extracted from the general language of constitutions. It is the method of reasoning which first discovered a doctrine of vested rights which might be preserved whether or not constitutions gave such a protection, which found inherent limitations on legislatures to protect property rights through the terms "public purpose" and "public use," and which, lacking any express provision, fell back on the spirit of the constitution or the general principles of free government to condemn, as Justice Holmes suggests, what "a tribunal of lawyers does not think about right."[64] Both justices assume certain fundamental principles and then by what appears to them as "indubitable demonstration" they conclude that the acts are arbitrary, unreasonable, and necessarily void -- as contrary to due process of law. Here is an application of the old natural rights and natural law philosophy, combined with the mechanical concept of the functions of the court. That there is no clear dividing line between arbitrary restraint and reasonable regulation; that the determination of the dividing line is largely one of policy on which the judgment of the legislature with the full facts before it ought to be relatively sound, or can be readily changed, if found unsound; and that a court is overstepping the bounds of its legitimate authority to pass on the wisdom or folly of the economic policy of wage legislation, did not make any difference to the justices imbued with the doctrine of fundamental principles or of a modern Naturrecht. Conceived in the spirit of individualism and laissez faire characteristic of the pioneer conditions which prevailed in a large part of the country more than a generation ago, the concept of liberty of contract as an absolute right is ill suited to the industrial conditions now prevailing in many American communities.[65] If there is any field in which the precept should prevail that law is a progressive science, that rights are subject to restrictions and limitations as the social interest may require, and that the determination as to what restrictions are on the whole wise and salutary belongs primarily to the legislature, it is the growing field of the necessary regulations and adjustments in the wage contract. A minimum wage law may or may not be wise from the economic or social viewpoint. But the best way to determine its wisdom or unwisdom would appear to be to give it a trial under terms and conditions laid down by a legislative body which could change those conditions, if the act proved unwise after a fair trial. For the court to prevent such experimentation, with the care, foresight, and experience manifested in the enactment and administration of labor laws, under an attenuated view of due process of law, protecting liberty and property, is to place too heavy a burden upon the judiciary and to throttle the avenue of advance for government to meet the growing needs of modern economic and industrial society. When the bakers resisted the enforcement of a Nebraska statute providing for standard sizes for loaves of bread with an allowance for an excess over the specified standards, as unnecessary, unreasonable, and arbitrary, the Supreme Court held, Justice Butler rendering the opinion, that the state may not "under the guise of protecting the public arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." The provisions of an act must have, he demanded, a reasonable relation to the protection desired to be accomplished.[66] Regarding the act as essentially unreasonable and arbitrary it was held void as contrary to the Fourteenth Amendment. Justice Brandeis, dissenting, stated the problem of the application of the rule of reason in such cases as follows: With the wisdom of the legislation we have, of course, no concern. But, under the due process clause as construed, we must determine whether the prohibition of excess weights can reasonably be deemed necessary; whether the prohibition can reasonably be deemed an appropriate means of preventing short weights and incidental unfair practices; and whether compliance with the limitation prescribed can reasonably be deemed practicable. The determination of these questions involves an enquiry into facts. Unless we know the facts on which the legislators may have acted, we cannot decide whether they were (or whether their measures are) unreasonable, arbitrary, or capricious.[67] After an extensive summary of evidence showing the practical necessity of the prohibition of excess weights as a means of preventing short weights, he concluded: The evidence contained in the record in this case is, however, ample to sustain the validity of the statute. There is in the record some evidence in conflict with it. The legislature and the lower courts have, doubtless, considered that. But with this conflicting evidence we have no concern. It is not our province to weigh evidence. Put at its highest, our function is to determine, in the light of all facts which may enrich our knowledge and enlarge our understanding, whether the measure, enacted in the exercise of an unquestioned police power and of a character inherently unobjectionable, transcends the bounds of reason. That is, whether the provision as applied is so clearly arbitrary or capricious that legislators acting reasonably could not have believed it to be necessary or appropriate for the public welfare. To decide, as a fact, that the prohibition of excess weights "is not necessary for the protection of the purchasers against imposition and fraud by short weights"; that it "is not calculated to effectuate that purpose"; and that it "subjects bakers and sellers of bread" to heavy burdens, is, in my opinion, an exercise of the powers of a super-legislature -- not the performance of the constitutional function of judicial review.[68] Again the majority of the court, as in the Minimum Wage Case, refused to accept the judgment of the legislature on the facts and then condemned the policy determined by the legislative body to deal with the facts. The vacillation and uncertainty involved in according a general power of review over state acts to judges who are likely to be unfamiliar with the local conditions which prompted the acts are shown in many recent cases. There are cases in which the judges indicate a disposition to place the burden of proof upon those who attack state statutes and to defer to the judgment of state authorities, legislative and judicial.[69] When this tendency was beginning to be considered as a rule of law,[70] the justices again showed an inclination to resort primarily to their own judgments of facts and local conditions. The refusal to give special consideration to local conditions, is indicated in the New York Theater Ticket Case.[71] The New York legislature passed a law to remedy notorious abuses in the resale of theater tickets, because in its judgment the matter was of sufficient public interest to warrant public regulation. But the Supreme Court declared the law void on the ground that the act was an unwarranted interference with a private business. "The mere declaration by the legislature," said Justice Sutherland, "that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation. The matter is one which is always open to judicial inquiry."[72] Justice Holmes, who has expressed more frequently and insistently than any other justice the view that the justices have substituted their views of public policy for those of the legislature, said in a dissenting opinion, I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.... I am far from saying that I think this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking their authorized voice say they want it, I see nothing in the Constitution of the United States to prevent their having their will.[73] Reasonable as this opinion may seem, the majority of the Supreme Court have declared otherwise. Again, when Minnesota attempted to prohibit buyers of dairy products from discriminating between localities, the majority of the Supreme Court refused to accept the legislative determination of facts and held the law invalid as an unwarranted interference with freedom of contract.[74] The way in which the Supreme Court makes law in interpreting the Fourteenth Amendment is illustrated in the gradual inclusion of the first eight amendments, which were held to apply only to federal law and procedure,[75] as a part of the Fourteenth Amendment -- and hence as limitations on state laws and procedure. Subsequent to the Barron Case it was held frequently that the provisions of the Bill of Rights of the federal Constitution were not applicable to state action. This opinion was reaffirmed in recent decisions when it was asserted that "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restriction about freedom of speech."[76] But three years later Justice Sanford, upholding the validity of the New York Criminal Anarchy Law, said: "We may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgement by Congress -- are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States."[77] Repeated efforts to secure protection from the federal courts in such matters as state interferences with the right of suffrage, the right of assembly, the right to bear arms, the right of impartial trial, the right against cruel and unusual punishment, the right against compulsory self-incrimination[78] were given little countenance prior to 1925. In 1925 it is assumed without argument or discussion that the fundamental rights and liberties of the first eight amendments are protected by the due process clause of the Fourteenth Amendment. "Despite arguments to the contrary which had seemed to me persuasive," said Justice Brandeis, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights.[79] Justice Stone, speaking of the holding of the Supreme Court that the Sherman Anti-Trust Law prohibits only such restraints upon interstate commerce as are unreasonable, says: "Reasonableness is not a concept of definite and unchanging content. Its meaning necessarily varies in the different fields of the law, because it is used as a convenient summary of the dominant considerations which control in the application of legal doctrines." And recognizing the uncertainty of the test of reasonableness as a legal concept, he continues: Moreover, in the absence of express legislation requiring it, we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable -- a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philosophies.[80] If such complete economic surveys had been made would a ten-hour bakeshop law, or a minimum wage law as well as a number of other state and federal acts have been declared void? When the Fourteenth Amendment was construed to prohibit state legislative and administrative acts which were deemed arbitrary, to prevent any interference with fundamental rights, to require that all state and local police regulations must be reasonable, and the justices determined that it was their duty to examine the facts on which state legislative and administrative policies were based as well as the ends to be accomplished by regulation, a change in the American system of government was effected, the results of which are only beginning to be realized. The change has its roots in the political and legal thinking of earlier periods but few could have surmised what a significant turn in political practice was to follow from a slow and silent revolution in constitutional interpretation.[81] 1. See F. W. Maitland, "An Historical Sketch of Liberty and Equality" in Collected Papers (ed. by H. A. L. Fisher, Cambridge, 1911), I, 80, 83. 2. Cf. Mott, Due Process of Law, chaps. 3 and 4. 3. For use of the terms "arbitrary" or "unreasonable" in passing on the validity of legislative acts in the United States, consult Robert P. Reeder, "Is Unreasonable Legislation Unconstitutional";" University of Pennsylvania Law Review, LXII (January, 1914), 191. 4. See comments of Attorney General Haywood in State v. -- 29, 30 (N. C., 1794) and of Justice Peck in State v. Cooper, 2 Yerg. (Tenn., 1831) 599, 611. The law of the land provision, Justice Nott thought, was intended "in some way or other, to operate as a check upon the exercise of arbitrary power." Dunn v. City Council of Charleston, Harper's Law Reports. 189, 199 (1824). Chief Justice Gibson in Norman v. Heist, 5 W. & S. (Pa., 1843) 171, 173 claimed that the design of the convention which framed the state constitution was to exclude arbitrary power from every branch of the government. The exercise of a governmental power which is arbitrary is void, according to Justice Campbell, dissenting in Sears v. Cottrell, 5 Mich. 251, 281 (1858). 5. Justice Johnson in Bank of Columbia v. Okely, 4 Wheat. 234, 244 (1819). This dictum of Justice Johnson was cited and approved by Justice Gray in Scott v. McNeal in denying to a state court the right to sell property for the payment of debts without notice to a party absent from the state for seven years. 154 U. S. 34, 45 (1893). 6. Justice Mason in White v. White, 5 Barb. 474, 484 (1849). 7. See, however, Chief Justice Hines in Barbour v. Louisville Board of Trade, 82 Ky. 645, 648 (1885). 8. "The principal, if not the sole, purpose of its [the Fourteenth Amendment] prohibitions is to prevent any arbitrary invasion by state authority of the rights of persons and property." Justice Field, dissenting in Butchers' Union v. Crescent City Co., 111 U. S. 746, 759 (1883). 9. Justice Bradley, concurring in Davidson v. New Orleans, 96 U. S. 97, 107 (1877). 10. Justice Field in ex parte Wall., 107 U. S. 265, 303 (1882). And again, he asserted, the Fourteenth Amendment undoubtedly intended that there should be "no arbitrary deprivation of life or liberty, or arbitrary spoliation of property," and that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights. Barbier v. Connolly, 113 U. S. 27, 31 (1885). Cf. also Stuart v. Palmer, 74 N. Y. 183, 190 (1878), in which a New York justice regarded the due process clause as a limitation upon the arbitrary exercise of legislative powers. "The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Justice Brown in Lawton v. Steele, 152 U. S. 133, 137 (1894). 11. Hurtado v. California, 110 U. S. 516, 532 (1884). Beginning with Davidson v. New Orleans, 96 U. S. 97 (1878), Mr. Willis asserts, Coke's doctrine of a fundamental law superior to all legislation was made a part of due process of law. Hugh Evander Willis, "Due Process of Law under the United States Constitution," Univ. of Pa. Law Rev., LXXIV (February, 1926), 331, 335. For applications of the new interpretation see Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890); Allgeyer v. Louisiana, 165 U. S. 578 (1897); and Lochner v. New York, 198 U. S. 45 (1905). 12. Justice Harlan in Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226, 234 (1896), and Chicago, Rock Island & Pac. Ry. Co. v. Arkansas, 219 U. S. 453, 465 (1910). 13. Cf. Holden v. James, 11 Mass. 396, 405 (1814) and supra, p. 111. 14. Opinions of Justices Field in Barbier v. Connolly, 113 U. S. 27, 32 (1885), and Matthews in Yick Wo v. Hopkins, 118 U. S. 356, 369, 370 (1886). Said Justice Matthews: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." Chief Justice Fuller confirmed the rights of the states to deal with criminals within their borders provided no person or class of persons was denied equal and impartial justice and provided state procedure did not subject "the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice." Leeper v. Texas, 139 U. S. 462, 468 (1890). 15. The term "arbitrary" is vague enough in its connotations to give the widest latitude for a judicial censorship. It may mean acts not governed by any fixed rules, or which are capricious, unfair, absolute, despotic, tyrannical, or irresponsible. It is obvious that personal and partisan inclinations will have great weight in determining whether legislative enactments come within one of these indefinite categories. 16. Upholding a New York law providing for capital punishment by electrocution, Chief Justice Fuller said that the Fourteenth Amendment required that the action of the states be "exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Undoubtedly the amendment forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights." In re Kemmler, 136 U. S. 436, 448 (1889). See also Justice Moody in Twining v. New Jersey, 211 U. S. 78, 100 (1908). 17. Classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which classification is proposed, and can never be made arbitrarily and without any such basis... but arbitrary selection can never be justified by calling it classification." Justice Harlan in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560 (1902), citing the opinion of Justice Brewer in Gulf, Colorado and Santa Fé Railway v. Ellis, 165 U. S. 150, 155, 159 (1896). Cf., also, Justice Day in Southern Ry. Co. v. Greene, 216 U. S. 400, 417 (1909). For state cases declaring arbitrary police regulations void, cf. Mott, op cit., p. 338. 18. Truax v. Corrigan, 257 U. S. 312, 332 (1924). Mr. Reeder suggests that the practice of declaring legislative acts void because unreasonable, may be regarded as more nearly related to the old idea of natural justice than to the due process of law provision Op. cit., p. 200. 19. Dissenting opinion in Lochner v. New York, 198 U. S. 45, 76 (1904). 20. Cooley, Constitutional Limitations (8th ed., 1927), pp. 356, 357. If no other grounds can be discovered to prohibit legislative action, the people have reserved the power to themselves. Whether an act is or is not arbitrary depends upon the conditions prevailing at the time. Justice Pound in People v. La Fetra, 230 N. Y. 429, 444 ff.; 130 N. E. 601 (1921); Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922); and Emergency Rent Cases -- Block v. Hirsch, 256 U. S. 135 (1921) and Levy Leasing Co. v. Siegel, 258 U. S. 242 (1922). 21. See Reeder, op. cit., pp. 191, 192, for cases in which the Supreme Court has suggested that action would violate the due process of law provision, if unreasonable or arbitrary, and in which the court has intimated that it will pass on the necessity or desirability of legislative or administrative action. Referring to the claim that an order of the Interstate Commerce Commission based upon its findings of fact was conclusive, Justice Lamar said: "A finding without evidence is arbitrary and baseless.... Such authority, however beneficently exercised in one case could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power." Int. Com. Comm. v. Louisville & Nashville R. R., 227 U. S. 88, 91 (1912). "The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination." Chief Justice Tatt in Sioux City Bridge v. Dakota County, 260 U. S. 441, 445 (1922), or state procedure in assessments for local improvements must not be "palpably arbitrary or a plain abuse." Justice Holmes in Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, 58 (1915). Judgments obtained by fraud or without service are not erroneous and not voidable but "upon principles of natural justice, and under the due process clause of the Fourteenth Amendment are absolutely void." Justice Lamar in Simon v. Southern Ry. Co., 236 U. S. 115, 122 (1915). [Italics by the author.] 22. For an analysis of cases affirming the doctrine of fundamental rights and of the incorporation of this doctrine in the due process of law clause, see Francis W. Bird, "The Evolution of Due Process of Law in the Decisions of the United States Supreme Court," Columbia Law Review, XIII (January, 1913), 37. 23. Corfield v. Coryell, 4 Wash. C. C. 371, 380-382 (1823), Fed. Cas. No. 3230. 24. Terrett v. Taylor, 9 Cranch, 43, 51 (1815); see reference to "republican principles" by Justice Chase in Calder v. Bull, 3 Dallas, 388 (1798). 25. Wilkinson v. Leland, 2 Pet. 627, 657 (1829); for extract from Story's opinion cf. supra, p 94. 26. Occasional references may, of course, be found to what Daniel Webster, in arguing the Dartmouth College Case, called "the great principles of republican liberty and of the social compact," or to the "eternal principles of justice which no government has a right to disregard." Justice Green in Bank of State v. Cooper, 2 Yerg. 599, 603 (1831). "There is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact... that rises above and restrains and sets bounds to the power of legislation," said Chief Justice Buchanan in Regents v. Williams, 9 G. & J. 365, 408 (1838). Cooley thought certain "fundamental rights" when inserted in a constitution operated as a limitation on the legislature without any express provisions. Constitutional Limitations (1st ed., 1868), and People v. Hurlbut, 24 Mich. 44, 97-98 (1871). 27. "There are, undoubtedly, fundamental principles of morality and justice which no legislature is at liberty to disregard." License Tax Cases, 5 Wall. 462, 469 (1866). 28. Loan Association v. Topeka, 20 Wall. 655, 663 (1874); see also Justice Harlan in Madisonville T. Co. v. St. Bernard M. Co., 196 U. S. 239, 251, 252 (1904); and Justice Brown in Holden v. Hardy, 169 U. S. 366, 389 (1898), wherein "certain immutable principles of justice" are declared to "inhere in the very idea of a free government"; and Benson v. Mayer, 10 Barb. 223, 245 (1850), in which reference was made to "the great principles of Eternal Justice, which lie at the foundation of all free governments." To Justice Swayne they are the "conservative principles which lie at the foundation of all free government," St. Louis v. The Ferry Co., 11 Wall. 423, 429 (1870); and to the Wisconsin Supreme Court they are "a part of the inherent rights which governments under our conception are established to conserve," Nunnemacher v. State, 129 Wis. 190, 197-202 (1907). See also Justice Knowlton in Commonwealth v. Perry, 155 Mass. 117, 121 (1891), and Justice Deemer in State v. Barker, 116 Ia. 96, 105 (1902). 29. Cummings v. Missouri, 4 Wall. 277, 321 (1886). The Fourteenth Amendment, according to Justice Field, "was intended to give practical effect to the Declaration of 1776 of inalienable rights which are the gift of the Creator, which the law does not confer, but only recognizes." Slaughter-House Cases, 16 Wall. 36, 105 (1872). Agreeing with this opinion, Justice Harlan said that since the adoption of the Fourteenth Amendment, "the privileges and immunities specified in the first ten amendments as belonging to the people of the United States are equally protected by the constitution." Dissent in Maxwell v. Dow, 176 U. S. 581, 616 (1899). And again he said, "I go further and hold that the privileges of free speech and of free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the Fourteenth Amendment forbidding any state to deprive any person of his liberty, without due process of law." Patterson v. Colorado, 205 U. S. 454, 456 (1906). Compare this view with the majority opinion of Justice Sanford in Gitlow v. New York, 268 U. S. 652 (1925); cf. infra, p. 193. Speaking through one of the champions of individualism, the Supreme Court held on another occasion that the Fourteenth Amendment "simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." Chief Justice Waite in United States v. Cruikshank, 92 U. S. 542, 554 (1875); see reference to "immutable principles of liberty and justice" in Hurtado v. California, 110 U. S. 516, 535 (1884), also Justice Day in Watson v. Maryland, 218 U. S. 173, 177 (1910). For comment as to the way in which the pursuit of the immutable principles of justice in connection with the concept of due process of law leads into the "fields of speculation cultivated by writers on the law of nature and the nebulous natural rights of man," see L. P. McGehee, Due Process of Law, pp. 38, 57 ff. 30. For a summary of citations that the fundamental rights of the citizen are inviolable, cf. Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI (May, 1913), 441, 452. The emerging concept of liberty of contract was soon to be grouped with the undefined fundamental rights. "No proposition is now more firmly settled," thought Justice Rapallo, "than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit." People v. Marx, 99 N. Y. 377, 386 (1885). "There are certain fundamental rights of every citizen which are recognized in the organic law of all our tree American states. A statute which violates any of these rights is unconstitutional and void even though the enactment of it is not expressly forbidden.... The right to acquire, possess, and protect property includes the right to make reasonable contracts, which shall be under the protection of law." Commonwealth v. Perry, 155 Mass. 117, 125 (1891). The federal courts can only interfere when fundamental rights guaranteed by the federal Constitution are violated, Justice McKenna in Ballard v. Hunter, 204 U. S. 241, 262 (1907); Justice Day in Rogers v. Peck, 199 U. S. 423, 434 (1905), and in Franklin v. South Carolina, 218 U. S. 161, 164, 165 (1910); "the limit of the full control which the state has in the proceedings of its courts both in civil and criminal cases, is subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the federal Constitution." Justice Peckham in West v. Louisiana, 104 U. S. 258, 263 (1904); see also Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107 (1009). Legislative acts, according to Chief Justice Taft, are not due process which are not in accord with the fundamental principle of equality of application of the law. Truax v. Corrigan, 257 U. S. 312, 332 (1921). Judge Dillon thought the value of the due process clause of the Fourteenth Amendment consisted primarily "in the great fundamental principles of right and justice, which it embodies and makes part of the organic law of the nation." The Laws and Jurisprudence of England and America (1894), pp. 208-212. "The great fundamental rights," said Judge Dillon," guaranteed by [American] constitutions are life, liberty, contracts and property." Ibid., p 203. One can readily discover that judicial construction had an extraordinarily large share in giving this sort of a content to the meaning of the Fourteenth Amendment. 31. Monongahela B. Co. v. United States, 216 U. S. 177, 195 (1910). 32. Twining v. New Jersey, 211 U. S. 78, 106 (1908). "We cannot interfere [with a judgment of a state court] unless the judgment amounts to mere arbitrary or capricious exercise of power, or is in clear conflict with those fundamental principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." Justice McReynolds in American Ry. Express Co. v. Kentucky, 273 U. S. 269, 273 (1927). 33. For an extensive list of citations that the Supreme Court has no right to inquire into the wisdom or justice of the acts of the federal or state governments, see Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI (May, 1913), 441, 446, 456. Regarding the statements of justices relating to inalienable rights, fundamental rights, and rights which grow out of the essential nature of free governments, Mr. Reeder thinks "it is sufficient to say that the premises upon which they are based have been abandoned by thoughtful men for over a century, [and] that those statements are against the vast weight of direct authority." For another summary of judicial opinions that courts may not pass on the justice or expediency of legislative acts, consult Cooley, Constitutional Limitations (8th ed.), I, 341 ff. 34. Cooley, Constitutional Limitations (8th ed.), chap. 21; also Freund, The Police Power: Public Policy and Constitutional Rights (Chicago, 1904), especially chap. 1. 35. Dillon, Municipal Corporations (5th ed.), sec. 589. 36. Justice Earle, in re Jacobs, 98 N. Y. 98, no (1885). Due process of law, as a limitation on the police power of the federal government, was suggested by Chief Justice Taney in Dred Scott v. Stanford, 19 How. 393, 450 (1856) and referred to in several dissenting opinions but was consistently repudiated by the federal justices. Justice Field expressed the prevailing sentiment when he declared that the Fourteenth Amendment was not "designed to interfere with the power of the state, sometimes termed its police power." Barbier v. Connolly, 113 U. S. 27, 31 (1885). For reference to additional cases, see Mott, op. cit., pp. 334, 335. 37. Justice Peckham in People v. Gibson, 109 N. Y. 389, 400 ff. (1888). Cf. as to the definition of the term "liberty," citing chiefly Justice Field's opinions in the Supreme Court and Justice Andrews' opinion in Bertholf v. O'Reilly, 74 N. Y. 509 (1878); in re Jacobs, supra; and People v. Marx, 99 N. Y. 377 (1885). 38. Wynehamer v. State of New York, 13 N. Y. 378, 392 ff. (1856). 39. Chief Justice Waite in Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 331 (1886) and Justice Brewer in Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1893). 40. Lochner v. New York, 198 U. S. 45, 56 (1898). 41. Referring to the decision of the Supreme Court in Yick Wo v. Hopkins, 118 U. S. 356 (1885) in which a municipal ordinance was held void because its administration was regarded as arbitrary and discriminatory, Justice Brown said: "While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power." Plessy v. Ferguson, 163 U. S. 537, 550 (1895). See also Justice Peckham in Lake Shore and Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 689 (1899), and in W. M. & P. R. R. Co. v. Jacobsen, 179 U. S. 287, 297 (1900). The police power is subject to judicial review and property rights cannot be wrongfully destroyed by arbitrary enactments. Justice Day in Dobbins v. Los Angeles, 195 U. S. 223, 236 (1904). Cf. also Justice Harlan in Jacobsen v. Massachusetts, 197 U. S. 11, 31 (1904); cases cited to sustain this view are Mugler v. Kansas, 123 U. S. 623, 661 (1887); Minnesota v. Barber, 136 U. S. 313, 320 (1889); Atkin v. Kansas, 191 U. S. 207, 223 (1903). "The principle involved in these decisions," said Justice Hughes, "is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limits of its power." Chicago, Burlington & Quincy Ry. Co. v. McGuire, 219 U. S. 549, 569 (1910). The general result is that specific provisions of constitutions are likely to be enforced literally but indefinite provisions such as due process of law and the equal protection of the laws will be applied so as to prohibit governmental acts which are considered as against natural justice. No proceeding may be declared invalid "unless in conflict with some special inhibitions of the Constitution, or against natural justice." Justice Brewer in Arndt v. Griggs, 134 U. S. 316, 321 (1890). "Under the Fourteenth Amendment, the legislature is bound to provide a method for the assessment and collection of taxes that shall not be inconsistent with natural justice." Justice Brown in Turpin v. Lemon, 187 U. S. 51, 60 (1902). 42. "A police measure must fairly tend to accomplish the purpose of its enactment, and must not go beyond the reasonable demands of the occasion." Cooley, Constitutional Limitations (8th ed.), II, 1231. 43. Thomas Reed Powell, "The Judiciality of Minimum Wage Legislation," Harvard Law Review, XXXVII (March, 1924), 545. 44. Ray A. Brown, "Due Process of Law, Police Power, and the Supreme Court," Harv. Law Rev., XL (May, 1927), 943, 966. 45. Brown, op. cit., p. 956. President Goodnow quotes Professor Seager's conclusion that "the question of the constitutionality of a restrictive labor law is inseparably connected with the question of the wisdom of such a law." And then he adds: "What the courts actually do in cases in which they declare a law of this sort unconstitutional, is to substitute their ideas of wisdom for those of the legislature, although they continually say that this is not the case." Social Reform and the Constitution (New York, 1911), p. 247, and Henry R. Seager, "The Attitude of American Courts toward Restrictive Labor Legislation," Political Science Quarterly, XIX (December 1904), 589. 46 James L. Nesbitt, "Due Process of Law and Opinion," Col. Law Rev., XXVI (January, 1926), 22, 27. The categorical view of due process of law, Mr. Nesbitt thinks, is best illustrated in the majority opinion in the Minimum Wage Case, Adkins v. Children's Hospital, 261 U. S. 525 (1923). When the Supreme Court, under the due process clause, performs "the function of umpiring the contest between competing social forces" Mr. Nesbitt finds that three attitudes are in evidence: first, an abstract standard to determine the line between reasonable regulation and arbitrary restraint, e. g., Justice Sutherland's opinion in the Minimum Wage Case; second, a personal standard of the court, such as that of Chief Justice Taft and Justice Sanford in the same case; and third, a standard of what others have declared reasonable; see Justice Holmes in dissent, Lochner v. New York, 198 U. S. 45, 76 (1898). 47. Legislatures may use only such means as are reasonably designed to deal with existing conditions, Herlihy v. Donahue, 52 Mont. 601, 610, 161 Pac. 164 (1916); also Mott, op. cit., p. 539. On the way in which the "silence of the original Constitution utters restraints," see T. R. Powell, "Due Process Tests of State Taxation," Univ. of Pa. Law Rev., LXXIV (March, 1926), 423, 573. 48. Mott, op. cit., p. 539. 49. Charles Wallace Collins, The Fourteenth Amendment and the States (Boston, 1912), p. 183. See also summary of Judge Hough in Harv. Law Rev., XXXII (January, 1919), 229, where it is noted that from 1868 to the 1910 term of the Supreme Court there were more than four hundred cases interpreting due process of law alone and less than one hundred before 1883. From 1890 to 1900 there were one hundred and ninety-seven appeals under the recent cases relating to corporations, with public service companies predominating. 50. See Collins, op. cit., p. 183. 51. The Supreme Court, says Professor Commons, has legislated by definition: "It changed the meaning of due process of law and thus amended the federal and every state constitution. It changed the meaning of property and liberty as used in the Fourteenth Amendment and thus took over from the states the final determination of what was due process of law in the regulation of property and business." Legal Foundations of Capitalism, p. 355. The change in the court's interpretation of the term "due process of law," Mr. Willis thinks, was brought about "through the efforts of corporations; through a change in the personnel of the bench, and through the personal activity of Justice Field, who always championed this doctrine and who strangely, in writing an opinion for the Supreme Court, cited his own opinion while a circuit judge as the opinion of the Supreme Court." Minneapolis Ry. Co. v. Beckwith, 129 U. S. 26 (1898); "Due Process of Law under the United States Constitution," Univ. of Pa. Law Rev., LXXIV, 337; and County of San Mateo v. Southern Pacific Ry. Co., 13 Fed. 722 (1882). 52. Willis, Univ. of Pa. Law Rev., LXXIV, 338. Mr. Willis claims that by attacking all forms of state legislation before the Supreme Court corporations are attempting to undermine our dual form of government. Ibid., p. 342. The Fourteenth Amendment, in the judgment of Mr. Coffins, was to be a charter of liberty for human rights, but it operates today to protect primarily the rights of property. It has become the Magna Carta of organized capital. It "gives to the federal government undefined and illimitable control over every phase of state activity. It throws into the hands of the Supreme Court of the United States more power over the states than does all the rest of the Constitution combined." Collins, op. cit., pp. 146 ff. 53. "Due Process of Law -- Today," Harv. Law Rev., XXXII, 218, 233. For similar judgments regarding the decline of significance of this phrase, consult Charles Warren, "The Progressiveness of the United States Supreme Court," Col. Law Rev., XIII (April, 1913), 294, and Robert E. Cushman, "The Social and Economic Interpretation of the Fourteenth Amendment," Michigan Law Review, XX (May, 1922), 737, 757 ff. 54. Ray A. Brown, op. cit., pp. 943 ff. 55. Ibid., pp. 944, 945. 56. Adkins v. Children's Hospital, 261 U. S. 525 (1923). The committees of both Houses of Congress unanimously recommended the legislation, House Rep. No. 571 and Senate Rep. No. 562, 65th Congress, 2d Session. The House of Representatives passed the bill without opposition, and only twelve votes were recorded against it in the Senate, vol. LVI, Cong. Rec., Pt. 9, pp. 8875 ff.; Pt. 10, pp. 10278 ff.; Pt. 12, pp. 604 ff. In the consideration of this case some extracts are used from an editorial note by the writer in Texas Law Review, II (December, 1923), 99. 57. 198 U. S. 45 (1904), It is a well-known fact that in the attempts of the federal courts to define due process of law there has been much wavering and uncertainty, and dissenting opinions have been prevalent. The court seldom reverses itself in the interpretation of due process -- it explains, distinguishes, or modifies. The effect is often a reversal in whole or in part. The uncertainties and misapprehensions are apparent in the general impression of the bench and bar that the majority opinion in the Lochner Case had been overruled, and that the court had adopted the minority views of Justice Holmes and the reiteration of the majority views in that case by Justice Sutherland, rendering the opinion in Adkins v. Children's Hospital. See Fletcher Dobyns, "Justice Holmes and the Fourteenth Amendment," Illinois Law Review, XIII (June, 1918), 71, 92, and Cardozo, The Nature of the Judicial Process (New Haven, 1922), p. 79. 58. 261 U. S. 554, 555. Referring to Justice Sutherland's views on the freedom of contract in the Minimum Wage Case, Powell remarks, "It represents his personal views of desirable governmental policy. Those views are shared by many others, but they are not written into the Constitution of the United States except as judges from time to time have inscribed them there." "The Judiciality of Minimum Wage Legislation," Harv. Law Rev., XXXVII (March, 1924), 545, 555, 556. 59. 261 U. S. 559. 60. Ibid., 562. 61. See Holden v. Hardy, 169 U. S. 336 (1897), limiting employment of workmen in mines to eight hours per day; Patterson v. The Eudora, 190 U. S. 169 (1903), prohibiting masters from paying seamen in advance; Muller v. Oregon, 208 U. S. 412 (1908), limiting hours of labor of women employed in laundries to ten hours per day; Riley v. Massachusetts, 232 U. S. 671 (1914), limiting employment of women in manufacturing establishments to ten hours per day, or not more than fifty-six hours per week; Erie Railway Co. v. Williams, 233 U. S. 685 (1914), prohibiting employers from paying employees less often than semi-monthly; Bosley v. McLaughlin, 236 U. S. 385 (1915), limiting employment of women for more than eight hours per day, or more than forty-eight hours per week in certain designated employments; Bunting v. Oregon, 243 U. S. 426 (1917), forbidding employment of anyone in mill or factory for more than ten hours per day. 62. 261 U. S. 567, 568. 63. On the effect of the personal influences in the decisions of the Supreme Court on labor cases, see Powell, "The Constitutional Issue in Minimum Wage Legislation," Minnesota Law Review, vol. II (December, 1917). The reasoning of the court in the Adkins Case led to a judgment against the validity of the Arizona Minimum Wage Act and to a condemnation of other meliorative acts. See ex parte Smith 223 Pac. 971 (1924). 64. Collected Legal Papers, p. 184. 65. "Though neither the doctrine of individualism nor of laissez faire is contained in the language of the constitution, they permeate many judicial opinions interpreting the constitution." Powell, "The Constitutional Issue in Minimum Wage Legislation," Minn. Law Rev., II, 11. For a different interpretation see Brown, ibid., I (June, 1917), 471. 66. Burns Baking Company v. Bryan, 264 U. S. 505, 513 (1923). 67. Ibid., 519, 520. 68. 264 U. S. 533, 534. 69. "One who assails the classification [made by a state legislature] must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Justice Sanford in Whitney v. California, 274 U. S. 357 (1927) citing Lindsley v. Natural Carbonic Gas Co., 220 U. S. 62, 78, 79 (1910). 70. Mott, op. cit., pp. 562 ff. 71. Tyson and Bro. United Theater Ticket Offices v. Banton; 273 U. S. 418 (1927). Referring to the failure of the justices to give due weight to the evidence before the legislature in the case of Lochner v. New York, 198 U. S. 45 (1905), Sir Frederick Pollock believes that "the legal weakness of this reasoning, if we may say so, is that no credit seems to be given to the state legislature for knowing its own business and it is treated like an inferior court which has to find affirmative proof of its competence. How can the Supreme Court at Washington have conclusive judicial knowledge of the conditions affecting bakeries in New York? If it has not such knowledge as matter of fact, can it be matter of law that no conditions can be reasonably supposed to exist which would make such an enactment, not necessarily wise or expedient (for no one attributes to any court, state or federal, a general jurisdiction to review legislation on the merits) but constitutional?" "The New York Labour Law and the Fourteenth Amendment," Law Quarterly Review, XXI (July, 1905), 212. 72. Tyson and Bro. United Theater Ticket Offices 11. Banton, 273 U. S. 418 (1927). As authority for this view, Wolff Co. v. Industrial Court, 262 U. S. 522, 536 (1922) was cited. 73. 273 U. S., 433, 434. 74. Fairmont Creamery Co. v. Minnesota, 274 U. S. 1 (1927). 75. Barron v. Baltimore, 7 Pet 243 (1833). See comment of Chief Justice Waite in 1876 that "it is now too late to question the correctness of this construction," and citation of cases, Harv. Law Rev., XXXIX (February, 1926), 436. 76. Prudential Insurance Co. v. Cheek, 259 U. S. 530, 538, 543 (1922); Patterson v. Colorado, 205 U. S. 454 (1907). For the claim that it was the intention of the framers of the Fourteenth Amendment that the rights and privileges of the first eight amendments should be the "secure possession of every citizen" of the United States, beyond the power of any state to abridge," see Guthrie, Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, p. 61. 77. New York v. Gitlow, 268 U. S. 652, 666 (1925). Justice Sanford said that the court did not regard the statement quoted above from the Prudential Insurance Cases as "determinative," but he does not refer to the other cases in which similar opinions were rendered. 78. See Minor v. Happersett, 21 Wall. 162 (1874), 1; United States v. Cruikshank, 92 U. S. 542 (1875); in re Kemmler, 136 U. S. 436 (1890); Twining v. New Jersey, 211 U. S. 78 (1908). 79. Whitney v. California, 274 U. S. 357 (1927). 80. United States v. Trenton Potteries Co., 273 U. S. 392 (1927). For applications of the concept of reasonableness in passing on the validity of combinations in restraint of trade, consult U. S. v. Trans-Missouri Freight Association, 166 U. S. 290 (1896); Northern Securities Co. v. United States, 193 U. S. 197 (1903); Standard Oil Co. v. United States, 221 U. S. 1 (1910); United States v. American Tobacco Co., 211 U. S. 106 (1910). "It is submitted that up to the present time very little can be learned as to the meaning of due process of law from the decisions of the Supreme Court as to what in its judgment is reasonable and what unreasonable. They neither give us a rule of law nor a definition." Willis, Univ. of Pa. Law Rev., LXXIV, 338, 339. See comment how the Supreme Court, in finding a new meaning for due process of law, made some new constitutional law. P. 339. 81. For comments on one phase of this revolution, see F. Dumont Smith, "Decisive Battles of Constitutional Law," American Bar Association Journal, X, 505, and The Constitution: Its Story and Battles, chap. 15. CHAPTER VIII NATURAL LAW DOCTRINES AID IN CHANGING THE BASIS FOR JUDICIAL REVIEW OF LEGISLATIVE ACTS BEGINNING with the dominance of the Federalist Party over the political affairs of the country after the inauguration of the federal Constitution in 1789, a tradition was established which insisted that the continuance of federalism and its control over political affairs was essential to the political peace and order of the country, and that anti-federalism tended in the direction of chaos and ruin. This tradition was fostered in large part through the business and commercial interests over which Hamilton and his successors held sway. For the greater part of the nineteenth century the successors of the Federalist Party preserved the doctrine that peace and order depended upon their control and insisted that the turning over of the government to their opponents would bring ruin and disruption to the country. To prevent an excess of democracy and the disorders supposed to accompany the people's management of public affairs there was an insistence that one department of government must not be directly influenced by temporary public opinion, and it was determined to make the judiciary such a stabilizing power.[1] Under the leadership of such men as Chief Justice Marshall, Justice Joseph Story, and Daniel Webster, it came to be an accepted view that nationalist, conservative, and commercialist views of American law and politics were looked upon as sound statesmanship and opposite views were identified with ruin and disunion. The Republican Party, which became the successor of the old Federalist and Whig Parties, accepted and fostered the conservative and capitalist traditions championed by the old Federalist Party. After the program was inaugurated of applying the resources of the government to economic development through a liberal land policy, which gave an impetus to the settlement of the frontier, through subsidies and land grants to railways, which gave settlers access to world markets, and through protective duties, which were designed to build up home industries, the party adopted the principles and practices of the coalition between the commercial and capitalist interests which were characteristic of the policies of Alexander Hamilton. Hence the party leaders again asserted the former contention that their control of the country alone could preserve peace and order. As the Democratic Party was disrupted through the realignments resulting from the Civil War it was easy to maintain the position that the turning over of the government to this party would, as was charged against the anti-federalists many decades earlier, lead the people in the direction of political disorder and ruin. The old doctrine is continued in the oft-repeated claim that the decisions of John Marshall "remain the charter of courts of justice in the modern republican world: the world of law and constitutional government. They speak order, power, progress and peace. Had a contrary conception of civil institutions prevailed, could anything else have followed than weakness and strife, decay and chaos?"[2] It has become one of the axioms of American political philosophy that "to maintain the principle that there is a limit in republican government to the power of the majority to make laws is one of the most valuable functions the courts have to perform."[3] 1. Conservative Doctrines and Judicial Review of Legislation. The battle cry of those who believe in conservative doctrines is that every effort must be made to place limits upon the despotism of the majority.[4] No device is better designed to accomplish this end than the practice of the judicial review of legislative acts with a written constitution as an express guide and with a broad rule of reason as a supplementary weapon of defence. And a principle of government which was identified with one of the great parties of American political development has been espoused by the leaders of both major parties. The conservative reaction, which, among other things, secured the judicial application of the doctrine of inherent limits on legislative powers and left its impress upon the Fourteenth Amendment to such an extent as to bring a change in the federal Constitution greater than all amendments and interpretations made since 1789, was not the result of any one group, division, or class of the American people. Like the medley of interests which combined to make and to secure the adoption of the Constitution, a rather unusual combination of individuals, groups, and interests joined forces to bring about a radical change in the adjustment of relations between the nation and the states. A peculiar set of circumstances, economic, political, social, and philosophic, gave color to dominant modes of thinking which affected all, including the justices in state and federal courts. Certain ideas were fostered and became the stock in trade of the politicians and of the legal fraternity. It is not surprising, therefore, to find the state and federal justices about the same time giving form and utterance to the peculiar concept of "liberty of contract" and to various doctrines of economic individualism. These ideas were prevalent and the semi-political views of the justices, meeting a responsive chord in public sentiment, as a rule, were received with popular approval. The change in the interpretation of the Fourteenth Amendment, whereby a content was declared involved therein which the majority of the Supreme Court had repeatedly held was not intended in its adoption, was the result of the reasoning of many justices, though a few of this number bore the brunt of the controversy which turned the tide toward a broad judicial review of legislation. Three justices seem to have determined, in large part, the trend of the opinions of the Supreme Court, in the cases changing the meaning and content of the term "due process of law" and in ushering in a period characterized as a "carnival of unconstitutionality, which perhaps was at its height between 1890 and 1910."[5] They were Justices Field, Harlan, and Brewer. Certain peculiarities and characteristics of these justices made a distinct impression upon this unique feature of modern American constitutional law. Foremost of this group is Justice Field. He had, we are told, a quality of intellect which led him on all occasions to seek for fundamental and universal principles.[6] His creative power, exhibited in a marked degree in his legislative career, was also characteristic of his decisions on the bench.[7] His experience in a frontier community, as well as his training in early life, developed a philosophy of individualism in which he was disposed to encourage in every way individual self-exertion, and to object to measures attempting to regulate economic life.[8] It was this philosophy that led Justice Field to object strongly to any exercise of governmental power which to him seemed arbitrary,[9] and that impelled him to insist that the Fourteenth Amendment was designed to prevent arbitrary governmental acts.[10] More consistently than any other justice, he opposed the inclination of the justices of the Supreme Court not to give the broadest meaning and application to the due process and equal protection phrases of the Fourteenth Amendment. He was the spokesman of the court in some of the leading cases in which the interpretation of the amendment was changed, and continued on the bench until the reversal of the Slaughter-House Case and similar cases was accomplished, and until the amendment was interpreted as at least a negative protection to any interference with civil or political rights.[11] Justice Harlan, like Justice Field, was influenced considerably by the philosophy and experience of the frontier, and he, too, was individualistic in much of his thinking. He was regarded as a "militant justice," and was strongly nationalistic in his political theories.[12] Inclined to emphasize the theory of natural rights he was readily disposed to adopt the doctrine of fundamental rights which the justices of the Supreme Court were slowly developing in connection with the interpretation of the due process clause. He had supposed, he said, that the intention of the people of the United States was to prevent the deprivation of any legal right in violation of the fundamental principles inhering in due process of law,[13] objected to any interference with private property rights,[14] and joined, as a rule, Justice Field in protesting against the regulative measures of the state legislatures. He agreed with Justice Field that Congress and the courts ought to be authorized to exercise a national control over civil rights.[15] No greater exponent of the individualistic philosophy of this period was appointed to the Supreme Court than Justice Brewer.[16] In decisions while on the circuit court, and in his opinions and influence on the Supreme Bench, he availed himself of every opportunity to defend the extreme individualistic doctrines which prevailed at this time. His point of view was expressed quite freely in an address delivered before the graduating class of the Yale Law School in June, 1891, on "Protection to Private Property from Public Attack." Referring to the Declaration of Independence and the bills of rights of state constitutions, Justice Brewer said, "they equally affirm that sacredness of life, of liberty, and of property, are rights, inalienable rights, anteceding human government, and its only sure foundation, given not by man to man, but granted by the Almighty to everyone, something which he has by virtue of his manhood, which he may not surrender and of which he may not be deprived." To Justice Brewer, the Declaration of Independence was the cornerstone of the federal Constitution.[17] Justice Brewer also asserted in his address that "the demands of absolute and eternal justice prevent that any private property legally acquired or legally held should be subordinated or destroyed in the interests of public health, morals, or welfare without compensation." The destruction of property rights, he thought, might be as effectively accomplished by the regulation of charges, or by the regulation of the use to which property may be put as by the direct destruction of the property itself. Referring to the controversy before the Supreme Court, which resulted in the reversal of the case of Munn v. Illinois, he approved Justice Blatchford's opinion for reversal with the comment that it "will ever remain the strong and unconquerable fortress in a long struggle between individual rights and public greed. I rejoice to have been permitted to put one stone into that fortress." He approved the doctrine of Chancellor Kent and of Justice Cooley that legislatures may not disturb vested rights, whether constitutional provisions prohibit such acts or not, and regretted that the Fourteenth Amendment had not been interpreted more favorably in the direction of protecting property rights. The frontier individualistic philosophy of Justices Field and Harlan had an able defender in Justice Brewer. Appointed to the court after the change in the interpretation of the Fourteenth Amendment was under way, Justice Peckham was well suited to become one of the leading exponents of the conservative and individualistic thinking of Justices Field, Harlan, and Brewer. As a member of the Court of Appeals of New York, Justice Peckham not only approved the doctrine of Justice Field that the due process clause comprehended the inalienable rights referred to in the Declaration of Independence but he also indicated his inclination to join the ranks of the laissez faire school and to look with disapproval on the increasing tendency to regulate economic conditions. When placing the stamp of disapproval on a state law prohibiting the giving of a gift or reward with the sale of an article of food, Justice Peckham said: It is evidently of that kind which has been so frequent of late, a kind which is meant to protect some class in the community against the fair, free, and full competition of some other class, the members of the former class thinking it impossible to hold their own against such competition, and therefore flying to the legislature to secure some enactment which shall operate favorably to them or unfavorably to their competitors in the commercial, agricultural, manufacturing or producing field.[18] The natural inclination here expressed to hold the legislative power within "reasonable" limits qualified Justice Peckham to become the spokesman for the majority in Lochner v. New York and to assert that it must, of course, be conceded that there is a limit to the valid exercise of the police power of the state. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the state or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty?[19] And on this ground it was held that a particular limitation of the hours of labor did not come within the police power.[20] Since the controversy which resulted in changing the meaning of the due process clause was an issue primarily between the liberal or radical groups and those imbued with the principles and philosophies of individualism and of conservatism, the ordinary partisan affiliations of the justices did not have a controlling influence in bringing about the change. The majority of the justices who gave a narrow interpretation to the amendment in the decade from 1870 to 1880 were Democrats, a number of whom, as supporters of the Union, had joined the Republican Party. It was Justice Miller, however, a Republican, and an intense partisan who usually supported federalist doctrines, who rendered the opinion of the majority in the Slaughter-House Case; and it was Justice Field, a Democrat, who gave the minority opinion and pleaded for a broad interpretation of the amendment. Justice Bradley, a Republican, protested strongly against judicial review of the legislative power of rate-making and of public utility regulation. And the effective shift favorable to judicial review of the regulation of public utilities in the Minnesota Rate Case of 1889 was accomplished with three Republicans and three Democrats forming the majority and two Republicans and one Democrat the minority. Though the majority of the justices from 1870 to 1900 were Republicans, Democrats joined with Republicans in many decisions extending the general terms of written constitutions and in construing implied limits on legislatures. The truth of the matter is that, except for some of the differences between the parties left over from Civil War times and the tariff controversy, leading Democrats and Republicans looked at political matters from similar viewpoints. The parties seldom took sides on the vital issues of the day, and, as a rule, their leaders joined in helping to bring about a covert but effective revolution in federal and state constitutional interpretation. The federalism of Marshall, Kent, Story, Cooley, and Dillon suggested ideas and formulated principles for a political conservatism which American constitutions were presumed to foster. It remained for the justices of the Supreme Court, aided by a group of assertive state justices, to turn these ideas into the channels of a new conservatism and to complete a structure of constitutional limitations and inhibitions the mere outlines of which had been previously sketched. The vested rights doctrine and the implied limitations originally considered as necessary for the protection of such rights took on a new form and were rounded out and extended by giving new meaning and content to the contract clause, to the just compensation principle for eminent domain proceedings, to the public purpose requirement for taxation, and to due process of law rendered applicable to all forms of legislative and administrative action, and particularly in so far as property rights might be affected. In New York the total number of acts or parts thereof invalidated from 1783 to 1905 was three hundred and sixty-three. From 1860 to 1905 the number was two hundred and ninety-seven and more than one third of this number was declared void in the decade from 1891 to 1900.[21] Massachusetts courts used their powers sparingly to review and invalidate acts, only fifty-three acts or parts thereof being set aside to 1915. Ten of these were held void prior to 1860 and fifteen in the decade 1891 to 1900.[22] But more important than the marked increase in the statutes invalidated in the latter part of the nineteenth century is the basic reason for such a change. Professor Corwin attributes the extension of judicial review in New York to the increase in the legislative product, the greater detail of constitutional provisions, and the development of constitutional doctrine, but he concludes that "the heart and soul of constitutional limitations in New York, thanks especially to Chancellor Kent, has been the doctrine of vested rights" and that the New York courts did constructive work in utilizing the "due process of law" clause as "a safe vehicle for the doctrine of vested rights."[23] Nearly one half of the statutes invalidated in Massachusetts was held in violation of due process of law or other provisions of the constitution which were construed as favorable to the protection of vested rights.[24] Evidently the justices had strayed a long way from the landmarks established in early precedents supporting the power of judicial review of legislative enactments.[25] The obvious results of all the implied limitations and correlative ones, which have amplified and extended the scope of judicial review of legislation, and the extraordinary expansion of due process of law into a general limitation applicable to the entire realm of legislation and administration led to a construction by judicial interpretation of a broad rule of reason as a standard to test the fairness and reasonableness of legislative enactments, and incidentally to consider the wisdom or expediency of many governmental acts. The justices, however, continued to render lip service to the adage that courts had nothing to do with the wisdom or policy of legislation, their sole duty being to apply the express language of written constitutions. But express constitutional limitations with such vague terms as "due process of law" gave justices a roving commission to disapprove such measures as seemed to them to change too abruptly some regulation affecting the existing social or political order, or to presage too radical tendencies, and to seek refuge for such disapproval behind the indefinite language of express constitutional terms.[26] It is not so much, then, the original language or intent of written constitutions that is responsible for the unique character of the practice of judicial review of legislative acts in the United States, as compared with a similar practice in foreign countries. It is the judge-made constitutional doctrines supported by the conservative groups of the country and fostered by the extreme individualism of leaders of industry and finance who, while busily engaged in securing governmental favors, were solicitous to make sure that popular assemblies might not be permitted to regulate too freely their property or contract rights. It is coming to be better understood today than formerly that methods of thinking fostered by the common law, supported by the capitalists and industrial leaders of the country, and applied by conservative-minded judges, rather than constitutional provisions have given the peculiar trend to judicial review of legislation in the United States. Though foreign critics of the American system of government have frequently pointed out this fact, none has recognized it more clearly or dealt with it so convincingly as Professor Edouard Lambert, of the University of Lyons. In a recent volume dealing with certain phases of the problem of judicial review of legislation, he contrasts the early period of the exercise of this power by American courts -- when the object was to control the competency of the legislature to deal with certain subjects, and not the way in which the legislature had dealt with the subjects -- and the modern practice of judicial review through which due process has been interpreted to form a new Magna Carta "built piece by piece by the judges to protect the free play of individual energies against the arbitrary manifestations of popular sovereignty."[27] In the twentieth century, Professor Lambert observes, the American judiciary is in possession of a power which permits it to exercise an energetic tutelage over the legislature, and to check the progress of legislation. This tutelage, he finds, is exercised in passing on the reasonableness of legislative measures, a well-known rule of reason now applied extensively by federal and state courts; and second, the criterion of expediency by which the courts pass on the economic value or political desirability of legislative measures. In the application of these principles, Professor Lambert thinks that American courts applying the conservative principles of the common law hold legislative activities within well-defined bounds. This practice of the courts, he believes, has had the result to erect a political judiciary against a political legislature, and often in conflict with it on the most irritating questions of a changing political and economic order. It is not surprising to find, then, that it operates to the detriment of the popularity and confidence ordinarily belonging to courts of justice.[28] The justices having taken sides on some of the fiercely contested political issues could expect nothing less than that their decisions would involve the courts in the maelstrom of party politics. What is arbitrary and what is beneficent must be decided by common sense applied to a concrete set of facts.[29] But what criteria except their own consciences, have judges to guide them, as to what acts are unreasonable, unfair, discriminatory, outrageous, capricious, and shocking to the moral sense of mankind?" Is it surprising that the judgments of the individual justices differ widely as to the application of such vague and indefinite terms, that dissenting opinions are prevalent, that the courts frequently shift their positions, and that a feeling of uncertainty prevails as to the application of the rule of reason or the higher law philosophy supposed to be comprehended in the Fourteenth Amendment? When legislation carefully formulated to deal with the complications and adjustments of the social order and to remedy some of the insistent evils of present industrial conditions is declared of no effect by a divided court, against the earnest and caustic protests of the minority justices, in the application of subjective criteria which constitute no standards at all, it is not strange that confidence in the judiciary is weakened, and that the leaders who are seeking to regulate more effectively the economic conditions which are deemed detrimental to human welfare are disposed to protest against the unwarranted powers assumed by the judges. "Here is the whole story behind the failure of all formulae connected with 'due process' and all the meaningless and circular statements as to what acts are and what are not 'due process.' In determining whether an act has a substantial and rational or reasonable relation to the enumerated matters, the court has in mind the background of 'fundamental principles' which are beyond the reach of any legislative power."[30] But is it not natural to expect that those for whom the oracles expound the "fundamental principles" should believe that the voice of the numen is not always correctly understood and that in the process of exposition some of the power once thought to belong to the people or to their representatives has been silently and surely dissipated?[31] 2. Underlying Purpose of the Revival of the Natural Law Philosophy in American Constitutional Law. American constitutions were drafted when there was a deep-seated conviction that the people could not be trusted and that well-defined checks must be placed upon the rule of the people. It was under these conditions that the courts with strong popular approval asserted the right, which they held to be implied from the language of the written constitution, to declare void legislative acts deemed to be in conflict with the written fundamental law. A growing distrust for legislative assemblies encouraged the courts not only to hold invalid acts regarded as contrary to the express language of the written constitutions, but to construe implied limitations supposed to be derived from the doctrine of natural and inalienable rights and from the notion of fundamental individual rights. Again the courts were encouraged and supported in a continuous line of decisions, mostly rendered since the Civil War, to place other implied limits on legislative powers in addition to the varied list of express limitations added by vote of the people. By extending judicial review of legislation through the developing doctrine of protecting vested rights, through the change in the meaning of due process of law, to render it a general limitation on legislative powers, and through giving new force and meaning to the separation of power theory,[32] the courts have gradually assumed a general right of censorship over legislation to see that it is not arbitrary or unfair and that it does not violate any of the judicially construed "fundamental principles" of the social order. A mild and relatively unimportant practice of judicial review of legislation for nearly a century has during the last few decades loomed up as the controlling feature of the American system of constitutional government. The judicial power to declare laws unconstitutional gradually introduced a new concept of due process by expanding what the courts had been inclined to regard as the inherent limitations on legislative powers. The doctrine of inherent limitations on legislatures had been applied at first to the protection of vested rights. It was a different matter to insist in the name of due process of law upon an immunity of individual action from legislative control. It was such Justices as Field, Harlan, Brewer, and Peckham in the federal courts and Justices Edwards, Comstock, and Denio in the state courts, the champions of a revived eighteenth-century individualism, of the policy of economic laissez faire, and of conservative political tendencies, who gave the natural rights or modern higher law doctrine the peculiar trend which now marks the process of constitutional interpretation in state and federal courts.[33] As upholders of individualistic and laissez faire doctrines in an age of unceasing legislative activities the courts were made censors of economic and social legislation under the higher law doctrine of American constitutional law -- the rule of reason. Being rather insecure as a basis for legislative limitations, the former doctrine held a precarious place in American constitutional law, especially when the tendencies were in the direction of the extension of popular control over all agencies of government. When, however, this doctrine was absorbed in the general phrases "due process of law," "equal protection of the laws," "public purpose for taxation," "public use for eminent domain," and "reasonableness," it was given the semblance of express constitutional sanction. Henceforth judges and lawyers could confidently assert that courts no longer passed upon the wisdom or expediency of legislative acts. They merely applied in a mechanical way, it was insisted, the express words of the constitution which by "indubitable demonstration" compelled the laying of the