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
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. 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 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 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. 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. 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.
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. 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
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.
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.
During the late eighteenth and early nineteenth centuries only an occasional
judicial dictum, such as those of Justice Chase in Calder v.
Bull, and of Chief Justice Hosmer
in Goshen v. Stonington,
denied legislative omnipotence when express constitutional restrictions were
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 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.
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.
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." 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, and it was not long before this dictum met
with approval in the state courts.
The law of the land provision was called into service also as a device to
prevent retrospective legislation.
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.
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. 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
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
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. 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
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.
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. 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. 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, 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." 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 constitutionid, 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
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 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." 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. 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
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 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, 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." 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. Illinois, Indiana, Michigan, and other
states incurred debts far beyond their ability to pay. 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.
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. 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.
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.
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. Referring to a previous
decision holding such an act valid, 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
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. He took occasion to condemn those who
enunciated the principle of arbitrary and despotic powers in
legislatures, and argued
extensively for the doctrine that the legislature can tax only for a public
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
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, 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 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. 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. 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. 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.
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.
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."
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.
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.
"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
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. Then follows an extensive quotation from the
dictum of Justice Miller in the case of Loan Association v.
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, 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
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.
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, 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.
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,constitutiona violation of the letter of the
constitution, it is of its spirit, and cannot be supported." 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. 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
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,
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. 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.
Cooley again gave effective expression to Kent's views and to the principles
stated somewhat provisionally by some state supreme court justices when he
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
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." 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."
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.
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, 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." 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
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. The
French Civil Code 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 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
"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." 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. 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. 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, 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. 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.
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 High 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
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
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
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
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.,
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
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,
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
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,
23. White v. White, 5 Barb. 474, 484, 485
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."
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
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,
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
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
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
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
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,
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
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.
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
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
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
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 constitution
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
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."
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,
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
177constitutionfly 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."
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