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.

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