CHAPTER V

NATURAL LAW THEORIES AND DUE PROCESS OF LAW

1. Divergent Views on the Meaning of Due Process of Law. The development of limitations on legislative powers in American constitutional law has been greatly modified by the interpretation of the phrase "due process of law" into a general restriction on legislative powers. As a unique product of American public law, due process of law has come to be the foundation of a considerable part of the modern structure of constitutional limitations on legislative and executive powers, and it is the main provision through which natural law theories were made a part of current constitutional law.

Reference may only be made here to a few steps in the gradual evolution of the meaning of the famous phrase "by the law of the land" as inserted in the thirty-ninth chapter of Magna Carta.^[1] It is commonly conceded that the purpose of the phrase "by the law of the land," which was later transformed into the more popular form "due process of law," was intended primarily to insist upon rules of procedure in the administration of criminal justice, namely, that judgment must precede execution, that a judgment must be delivered by the accused man's "equals," and that no free man could be punished except in accordance with the law of England, per legem terrae.

On various occasions the original meaning of the law of the land provision was extended. Certain authorities read into the phrase the requirement of an indictment by a jury^[2] and the Petition of Right referred to this phrase as prohibiting the Crown from making arrests without a warrant. But in its extended form it was primarily intended as a limitation upon the Crown in the administration of justice, requiring in the apprehension and trial of criminals a procedure established by law. There are few indications that the provision was intended to serve as a limitation on the powers of Parliament. Any intimations that such a limitation was applicable to Parliament were set at rest when, after 1689, it assumed control, not only over the Crown, but also over the courts and court procedure. In England, then, prior to the eighteenth century due process of law had two fairly well recognized meanings, namely, a method of procedure in criminal trials, and a procedure following the ancient customary law or one rendered legal by parliamentary enactment. The latter meaning had almost entirely supplanted the former in English legal thought when the first American constitutions introduced the phrase into the fundamental laws of the United States.

The term "the law of the land" was inserted into the Massachusetts constitution of 1780^[3] and soon found its place in a number of other state constitutions. That the makers of our first constitutions thought of due process of law primarily as a phrase relating to procedural limitations and not as a general limitation on legislative powers seems to be indicated by the facts — that the term "due process of law" or "the law of the land" was inserted in the part of the constitution dealing with procedure; that the protection to be accorded through due process was left in charge of the legislature; and that, when the due process clause was first presented to the courts, it was not regarded by them as a limitation on the substantive powers of the legislature.^[4] Legislative violations of due process of law in colonial times were to be corrected, as they are now in many countries, by the influence of public opinion.

Due process of law in the Fifth and Fourteenth Amendments of the federal Constitution had little significance as rendering protection either to liberty or property prior to the decade of 1870.^[5] In the states the phrase was first given the same restricted interpretation and it was held, with only a few exceptions, not to abridge the general powers of the legislature.^[6]

The interpretation of the origin and meaning of due process of law has led to a controversy among legal scholars which is far from settled. Some claim that these words were intended to convey the principle that laws in their making and enforcement must not be arbitrary and must accord with natural or substantial justice; in short, must not be contrary to principles of natural law.^[7] Others have contended that they were meant to provide that an individual should not be interfered with in respect to his private rights except through a regularly enacted law and formal legal procedure. The first of these views, though vaguely hinted at on a few occasions from the time of the promulgation of Magna Carta, was first effectively advanced in the writings of Sir Edward Coke and some of his followers, and in the opinions of judges in the United States, who were imbued with the idea that it was the duty of the courts to set limits to the exercise of legislative powers and were seeking a justification for such authority. As we have seen, Coke had little evidence to support his broad claims for the supremacy of the common law as interpreted by the judges, and the occasional dicta favorable to his theory have had slight influence on the growth of English law — separate from the general doctrine of the common law, when statutes did not provide contrary rules, that principles of reason and justice must be followed. But just as Coke read into the language of the cases in the Yearbooks and in the English reports his own political and legal notions, so his followers, and, especially, legal historians in the United States, who are interested in defending the practice of the review of legislative acts by the courts, have built an elaborate superstructure on a small foundation.^[8]

2. Due Process of Law as applied by the Justices of the State Courts prior to 1870. For the first fifty years after the establishment of the state governments, the legislatures exercised with but few exceptions a virtual supremacy over the other departments. The executive was granted few powers, was denied a veto power, and in other respects was made subordinate to the other departments. Not only did the legislature create the courts and in many respects supervise their action, but the judges were frequently selected and removed by this body; and, in certain instances, the legislature was made the final court of appeal. It was not unusual, therefore, for legislatures to decide concrete cases and to dispose of cases finally by special enactments. Though a few constitutions had provisions for the separation of governmental powers, the other portions of the constitutions so mingled the powers — and the common practice of the time favored such a mingling — that the provisions for the separation of powers had little practical effect. Judicial review of legislation as a check on these extensive legislative powers, though asserted in occasional cases, had comparatively little effect on the principle of legislative omnipotence until toward the middle of the nineteenth century. The state and federal governments were headed in a direction which, except for a rather marked change of course, would have led to conditions similar to those prevailing in England and in Canada. The affirmation of the doctrine of protecting vested rights had already indicated such a change of course and the interpretation of the law of the land provisions of the state constitutions continued the process.^[9]

It is not within the purpose of this study to deal with the numerous judicial decisions which approved the doctrine that the legislatures had powers as unlimited as the British Parliament, except so far as restricted by the express provisions of written constitutions. According to this doctrine the state legislatures had inherently the power to do whatever was not expressly prohibited by either the federal or state constitutions.^[10]

During the late eighteenth and early nineteenth centuries only an occasional judicial dictum, such as those of Justice Chase in Calder v. Bull,^[11] and of Chief Justice Hosmer in Goshen v. Stonington,^[12] denied legislative omnipotence when express constitutional restrictions were not ignored.

How, then, did the term the "law of the land," or "due process of law," come to be interpreted and understood as a general limitation on legislative powers from which extensive implied restrictions have been developed? The account of this development involves a considerable part of the growth of constitutional law in state and federal governments. Only certain phases of this growth can be briefly sketched. The development itself is intimately connected with the acceptance of the doctrine of judicial review of legislative acts, which was gradually established as a part of American constitutional law in the generation from 1780 to 1810. It was the adoption of the doctrine of judicial review that rendered it possible to give a different content to the term "due process of law," though little progress was made in this direction prior to 1850.

A pioneer case, somewhat like Calder v. Bull and Dash v. Van Kleeck^[13] in establishing implied limitations favorable to vested rights, involved a North Carolina act repealing an earlier grant of lands to the university in which due process of law was considered as a limitation on legislative powers.^[14]

In declaring this act void, the court defined the law of the land clause of the bill of rights to mean that no one shall be deprived of his liberty or property without the intervention of a court of justice, or without a jury. It was nearly a generation later that the due process clause was again defined in any effective measure as a general limitation on legislative powers.^[15]

Some ideas later conceived as involved in due process of law were, however, taking form. In 1814 a Massachusetts court decided that, though the legislature was given the right by the constitution to suspend the laws, such suspensions must be general, for it is "manifestly contrary to the first principles of civil liberty and natural justice, and the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances."^[16] The concept of equality and generality in the application of the law later held to be involved in due process of law was here extracted from the section of the bill of rights limiting the suspension of laws by the legislature. A few years later Daniel Webster, in arguing the Dartmouth College Case, attributed the concept of generality in the application of legal rules to the law of the land provision,^[17] and it was not long before this dictum met with approval in the state courts.^[18] The law of the land provision was called into service also as a device to prevent retrospective legislation.^[19]

Among the concepts regarded as belonging to due process of law none has had more significant results than the identification with this phrase of the natural and inalienable rights philosophy which was developed in the revolutionary times and was crystallized into specific form in the Declaration of Independence and in the bills of rights of state constitutions. Thus the law of the land was judicially construed to mean that no power was delegated to the legislature to invade the great natural rights of the individual, and that where express limits were lacking implied checks must be found to protect these natural rights.^[20]

As a rule the appeals to due process of law, as a basis for limiting the powers of the legislature, were quite different from the appeals to the same ground for protection against arbitrary commitments without a trial or a jury. In the first instance it was an appeal against the injustice of the act in the hope that the legislature itself would repeal the act (only rarely was the suggestion made that such an act was void), whereas in the second it was expected that the courts would preserve and protect the individual from an improper commitment or illegal procedure. Formerly reference to due process of law was similar to the claim now occasionally made in England that an act would be unconstitutional because contrary to the well-known and historic political principles of the past.

It remained to give somewhat more definite content to the law of the land or to due process of law than generality and equality in the operation of the laws. The developing concept of protecting vested rights on the ground of implied limitations on legislative powers had already prepared the way for such a restatement and state justices soon took advantage of the opportunities afforded.^[21] But the concept of due process of law as involving general limitations on legislative powers and as embodying a doctrine of natural and inalienable rights beyond governmental authority was not formulated as an effective check on legislative powers until the middle of the nineteenth century. It was at this time that the principle was being formulated by the justices that the state constitutions were not so much grants of specific powers as limitations on the exercise of general powers.^[22]

The enormous losses entailed in building canals and supporting other internal improvements had begun to undermine the former confidence in legislative bodies. By 1856 the courts of New York found the due process of law clause a convenient term to check what was then regarded as a legislative movement to interfere with property rights. Holding invalid an act for the more effectual protection of the property of married women for the reason that the people never delegated to the legislature the power to transfer to another the vested rights of property legally acquired by a citizen, Justice Mason said:

I maintain, therefore, that the security of the citizen against such arbitrary legislation rests upon the broader and more solid ground of natural rights, and is not wholly dependent upon those negatives upon the legislative formerly contained in the constitution. It can never be admitted as a just attribute of sovereignty in a government, to take the property of one citizen and bestow it upon another. The exercise of such a power is incompatible with the nature and object of all government and is destructive of the great end and aim for which government is instituted, and is subversive of the fundamental principles upon which all free governments are organized.^[23]

Later a distinction was drawn between what was regarded as destruction and regulation by statute, and the legislature was denied the power to destroy property rights.^[24] And due process of law was held to require procedure under a pre-existing rule of conduct by which rights were lawfully acquired and interference with these rights was prevented except by a trial and judgment according to the procedure of the common law.^[25]

Some milestones had been passed in giving new life and vigor to this portion of "decrepit Magna Carta." The "law of the land" now being changed to the more common term "due process of law" had in a few instances been applied as a general limitation on legislative powers. It had been made a device to retain a portion of the concept of natural and inalienable rights. And it had been used as a weapon to wage battle against the political liberals or radicals who were thought to be endangering property rights. So pliable a concept was likely to be made use of when economic and political conditions led conservative leaders to make strenuous efforts to place confines about the legislative domains. But at the opening of the Civil War a mere beginning had been made in the efforts to give definiteness of content to due process of law.^[26]

3. Cooley's Efforts to extend the Meaning of Due Process of Law. The vague and indefinite meaning of the term "due process of law" which prevailed prior to the Civil War was noted by Thomas M. Cooley.^[27] After quoting a few of the cases in which the term was discussed, Cooley fell back on the general language of Daniel Webster in his argument in the Dartmouth College Case.^[28] In accord with the purpose of the author as stated in his preface, to establish limitations upon the legislative authority independent of the specific restrictions imposed by state constitutions,^[29] Judge Cooley aimed to give greater scope to the term "law of the land." For this purpose he quoted approvingly the rhetorical statement of Justice Johnson, containing the not uncommon inaccurate rendering of the meaning of the term "law of the land": "after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice."^[30] Referring to the frequent statements of the justices that they could refuse to enforce a legislative act only when in conflict with some express provision of the constitution, Cooley suggests that "It does not follow, however, that in every case the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed." And then he indicates various means by which legislative acts may be regarded as invalid, if contrary to the general spirit, purposes, and principles of constitutional government. In his volume on Constitutional Limitations and in his work on the Law of Taxation he gave formulas for construing implied restrictions on legislatures. Just as Coke interpolated his ideas of limitations on the King and Parliament into common law decisions, so Cooley injected his own theories of desirable limits on legislative action into his commentaries on constitutional law. As the first attempt of an American text writer to discuss due process of law Judge Cooley's treatise had an immediate effect upon the decisions of the courts which were encouraged from many quarters to set greater limits to the exercise of legislative powers.

4. Economic and Legal Bases for a Revival of Natural Law Thinking. The doctrines of inalienable rights and of fundamental principles beyond legislative control served a useful purpose in revolutionary times as a higher law sanction for a revolt against constituted authority. Most reformers in attacking an established order fall back on a higher law or superior rules for guidance. These same doctrines suited well the eighteenth-century laissez faire theories and thus were accepted by many who with Thomas Jefferson thought "that government best which governed least." But as a ground for revolution and as a check on all governmental powers fundamental principles and inalienable rights were slowly being dissipated by the absorbing tendencies of popular control of all manner of public affairs characteristic of revolutionary and early state legislatures. It was then that Alexander Hamilton, John Marshall, and Joseph Story revived the higher law doctrine to check the legislative onslaughts on property, contracts, and vested rights generally. The tide of Jacksonian democracy, which brooked little interference with the voice of the people, narrowed these incipient checks to a relatively small circle of governmental powers. But firm believers in the necessity of limiting legislatures, such as Chancellor Kent and Judge Cooley, soon took up the higher law philosophy for the protection of vested rights and through judicial decisions as well as their writings gave credence to this philosophy. It is a significant fact that Kent and Story, who practically formulated an American common law, lost no opportunity to advocate the protection of vested rights both constitutionally and extra-constitutionally. Judge Cooley through his Constitutional Limitations fostered the same view. Thus a triumvirate of three great jurists and commentators was added to those conservative leaders who saw relief from legislative radicalism only in courts strengthened in their position by the authority to declare legislative acts void and aided by both express and implied limitations on legislative powers.

Judge Cooley became the most effective advocate of superior principles limiting all legislation. Reading the signs of the time favoring extensive checks on what appeared to the conservative classes as unwarranted interferences by legislatures in personal and private affairs, he laid down as a dogma based on the higher law philosophy broad principles of implied limitations on legislatures and executives for the protection of private and personal rights. The decade in which Cooley's Constitutional Limitations appeared, marked the confirmation of the practice of according judicial protection to vested rights against legislative action, and of the interpretation of implied limitations on legislatures as indispensable features of American constitutional law.

The extension of the meaning and application of the term "due process of law" illustrates concretely the effect of changing economic conditions and political thought upon the courts and judicial opinions. Incipient efforts to establish implied limits on legislatures through the vested rights doctrine or through the due process of law clause, for a period of nearly fifty years, made little headway against the common belief in and practice of legislative supremacy, and the tendency to extend the scope of legislative powers. The decades from 1830 to 1850 saw a notable movement in the direction of the extension of democratic principles. It was in this decade that many of the restrictions on suffrage were removed, and the tendency was to adopt universal manhood suffrage. Terms of officers were shortened, and the executive and judicial positions of the states were in many instances made elective. The survivors of the old Federalists, who had originated the vested rights doctrine, with their principles transformed into a new Federalism, and conservative leaders generally, resisted this movement towards democracy. Being unable to prevent its spread, they became confirmed in the belief that some check had to be placed upon the seat of popular control, the legislature.

Renewed activities on the part of leaders account in a measure at least for the efforts to revise and extend the meaning of due process of law, from 1830 to 1842. Conservative opinion, however, was unable to place any special checks upon the democratic movement^[31] until after the panic of 1837, and not then in a serious way until the great extension of the system of internal improvements often supported by state aid had resulted in many failures and in the repudiation of the debts of various states. The tendency of the legislatures to vote the public funds for these private enterprises, though as a rule supported by a preponderant public sentiment, and frequently approved by an almost unanimous popular vote, increased the fears of those who saw only ruin in the progressive principles of democracy; especially was this true when the business projects failed and involved the state and local governments in great financial losses. There was as a result widespread discontent among the propertied classes who now demanded greater checks upon the rule of the people. A more determined effort was made, therefore, both by the placing of express limitations on legislatures in new constitutions and by bringing pressure to bear upon the courts, to secure checks upon legislative action which might affect private contract or property rights or to prevent the majority from "an oppressive and reckless use of power."^[32] The doctrine of natural rights and the insistence upon inherent limitations against arbitrary government, therefore, were again reasserted, and renewed efforts were made to add to the content and significance of the term "due process of law" to place some much-desired limits to the rule of the majority.

In the extension of the meaning of due process of law and in the development of the doctrine of protecting vested rights, an effective means was devised to guide and restrict the rule of the majority in the efforts to extend governmental regulation into the field of social and political affairs. New and varied applications of the judicial check based on implied restrictions were soon found to give legal sanction to conservative and reactionary principles in state and federal governments. These principles, which were championed by those who wished to check the tendency to regulate economic and social life, were fostered by the economic doctrine of laissez faire, the dominant philosophy of a pioneer individualism.^[33] To support laissez faire principles the requirements of public purpose for taxation and public use for eminent domain were exalted into rigid standards whose application rested primarily with the judicial conscience. Also, the doctrine that there are "fundamental principles" beyond legislative authority was revived and due process of law was applied with even greater latitude so as to render invalid all governmental acts considered by judges to be unfair or arbitrary. Continuing this method of interpretation of higher law principles and adjusting it to meet some of the rapidly changing industrial conditions, the courts found additional implied limitations upon legislative powers and completed the main structure of the modern American concept of due process of law in the period from 1870 to 1895.

Due process of law, then, was being transformed from its customary meaning in England, where it referred to procedure in accordance with a regularly enacted law, to a process which the courts regarded as "due" and, therefore, reasonable, or not unfair — a modernized version of natural law.

5. Due Process of Law made an Agency for the Maintenance of Reactionary Tendencies. The appearance of Cooley's Constitutional Limitations along with certain economic and political conditions about this time marked the beginning of a new development in American constitutional law. However, the main lines of this development were foreshadowed in the secure establishment of the doctrine of judicial review of legislation, in the growing acceptance of the idea of protecting vested rights under express and implied constitutional limits, and, in the conversion of the "law of the land" phrase into a general limitation on legislative powers. But the application of all of the above principles had resulted in the courts' declaring void but few laws and had affected to a relatively slight degree the trend of political affairs. A judicial review of legislation differentiated in any marked degree from a similar practice in other countries remained in large part to be developed, though the courts of New York and Massachusetts had taken some steps toward inaugurating a new point of view. This era was characterized by renewed applications of the doctrine of protecting vested rights and of the due process clause as a guarantee of individual rights. Certain other implied restrictions on legislatures which had been slowly emerging were now vigorously applied. These restrictions were evolved by implications from the doctrine of natural and inalienable rights, from the due process of law clause, and from the requirement that the property of the individual could be taken under the power of eminent domain only with the granting of just compensation.

Constitutions were, as a rule, silent as to the taking of property except under the power of eminent domain and legislatures dealt rather freely with property rights short of confiscation. But the courts, inclined to discover additional limits on legislatures, beyond the express provisions of the written constitutions, originated the doctrine of public purpose as a requirement for taxation^[34] and extended the application of the principle of public use for eminent domain proceedings, whether constitutions included this requirement or not.

The financial activities of the states prior to 1830 were quite limited,^[35] but a change came when the states began to embark in commercial enterprises and particularly in the improvement of the system of transportation by building canals, and when state indebtedness was very greatly increased. "In catering to the clamor of the different interests of their respective states, eighteen of them had authorized the issue of $108,223,808 of stock in the three and one-half years between 1835 and 1838."^[36] After millions had been spent in building canals and in various other public improvements, which were expected to bring large returns to the state treasuries, but which instead involved all of the states in burdensome debts that increasing taxation failed to meet, the propriety of lending the state's credit to private corporations and of taxing for this purpose was questioned.^[37] Illinois, Indiana, Michigan, and other states incurred debts far beyond their ability to pay.^[38] In 1842, when the panic of 1837 had left the country in a condition of economic paralysis, constitutional restrictions on the states' power to borrow money and to lend its credit to private corporations were adopted, and by 1857 most of the state constitutions contained such provisions.^[39]

But when another wave of prosperity came in the fifties, the way was still open for the legislatures to authorize cities, counties, and towns upon a popular vote to lend money to public and private enterprises and another period of reckless borrowing followed. Money was freely voted and lavishly spent on such projects as railways, canals, manufactories, banks, and steamship lines.^[40] When the question as to the right of the legislatures to authorize localities to tax for these purposes was first raised, the courts generally upheld the legislative power.^[41] The panic of 1857 proved as disastrous to the ventures of the localities as did the panic of 1837 to the earlier speculative efforts of the states. A reaction followed which seriously affected American constitutional law. Efforts were begun to place greater restrictions on legislative authority in the state constitutions and a persistent sentiment was fostered that the doctrine of implied limitations ought to be applied to check the expenditure of public money for private or quasi-public enterprises.^[42]

The growth of this sentiment and its reflection in court decisions is illustrated in the opinion of Chief Justice John F. Dillon of Iowa, who advocated judicial construction of implied limits on legislatures. When the act of the legislature authorizing local government units to aid in building railroads came before the supreme court of Iowa, Chief Justice Dillon, speaking for the majority of the court, reviewed the history of this controversy in the states.^[43] Referring to a previous decision holding such an act valid,^[44] he said the majority of the court there rendered a wrong judgment and a most unfortunate mistake was made, for counties and cities throughout the state, acting under the sanction of that decision, incurred debts amounting to several millions of dollars, and in many cases, exceeding their ability to pay. "There is no legislative power," said Judge Dillon, "to endow municipal corporations with the authority to subscribe to the stock of a railroad company and to levy a tax to pay therefor."^[45]

On the basis of the inalienable rights clause of the bill of rights, the due process of law and eminent domain provisions of the state constitution, Chief Justice Dillon declared that the legislature cannot touch the property of the citizen for a private use even if it does make compensation.^[46] He took occasion to condemn those who enunciated the principle of arbitrary and despotic powers in legislatures,^[47] and argued extensively for the doctrine that the legislature can tax only for a public purpose.^[48]

Justice Cole took issue with the majority of the court in his dissenting opinion. He denied that the courts had any authority to declare an act of the legislature void except when in direct conflict with the terms of the written constitution. The courts of Iowa, in previous cases, he claimed, had not denied power to the legislature to authorize cities and counties to appropriate money to railroads but had held instead that the legislature had not passed a law authorizing their issue. This issue, he continued, had been before the courts in at least twenty-one other states, and in every instance the legislative power had been affirmed. "If the views of the majority are sound," said he, "then it is certainly true that our constitution does not define the powers of the respective departments of our government, but leaves them to the necessarily uncertain and ever-changing measurement of judicial discretion."^[49]

Though Judge Dillon's opinion ran counter to the decisions of the highest courts in more than twenty states and was repudiated as an unsound constitutional doctrine by the Supreme Court of the United States,^[50] he expressed the confident conviction that the reaction under way would soon lead to the approval of his views.

The contention that there could be no taxation for a private purpose under the conditions announced by Judge Dillon was not regarded as a principle of constitutional interpretation in the early part of the nineteenth century^[51] but the courts were gradually prevailed on to apply a principle to taxation somewhat similar to that adopted for eminent domain proceedings.

That taxation could be for a public purpose only seems to have been announced particularly in the railway aid and military bounty cases.^[52] Prior to 1870, the doctrine was generally based, not upon any provision of the constitution, but upon an extra-constitutional basis, falling back upon the theory of natural rights and the inherent limitations on legislatures.^[53] Judge Cooley stated as a principle of law the suggestion by the justices in a few state cases that

Taxation having for its only legitimate object the raising of money for public purposes, and the proper needs of government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power and must therefore be unauthorized.... An unlimited power to make any and everything lawful which the legislature might see fit to call taxation would be, when plainly stated, an unlimited power to plunder the citizen.

To check such extortion, Judge Cooley suggested that the courts should interfere.^[54] Citations to and approval of this dogmatic statement soon appeared in the opinions of the state courts holding that to tax for a private purpose was not among the powers conferred upon the legislature.^[55]

Though Judge Dillon's theory of implied limitations was repudiated in Iowa and in a number of decisions by the United States Supreme Court, and though slow progress was made in construing an implied limit on the taxing power by a public purpose principle, Cooley did not hesitate to put his own theories into practice. Two years after the appearance of his Constitutional Limitations, as justice of the supreme court of Michigan, he reiterated the views of his text. Holding an act of the legislature void which authorized cities and towns to tax for the purpose of purchasing stock in railway companies, he wrote:

It is conceded, nevertheless, that there are certain limitations upon this power, not prescribed in express terms by any constitutional provision, but inherent in the subject itself, which attend its exercise under all circumstances, and which are as inflexible and absolute in their restraints as if directly imposed in the most positive form of words.^[56]

Three fundamental maxims of taxation were laid down as of universal application, of which public purpose was placed first. It is only when these maxims are observed, thought Justice Cooley, that "the legislative department is exercising an authority over the subject which it has received from the people."^[57]

From 1870 to 1880 constitutional provisions were enacted which prevented cities, counties, and towns from granting aid to private enterprises and from levying taxes for such purposes.^[58] The decision of Justice Cooley accomplished the object of a constitutional provision against a state subsidy in Michigan. But the public purpose principle as an implied limitation had much greater effect on future legislative policies. Originally defined as a general and universal principle of taxation, Cooley developed the principle with considerable detail in his work on the Law of Taxation, which was published in 1879.^[59]

"All definitions of taxation," he contended, "imply that it is to be imposed only for public purposes, and whatever difference of opinion may exist regarding the admissibility of taxation in particular cases, the fundamental requirement, that the purpose must be public, will be conceded on all sides."^[60]

The determination in the first instance of what are public purposes devolves upon the legislative department but the decision of the legislative department is not conclusive, for "an unlimited power in the legislature to make any and everything lawful which it might see fit to call taxation, would, when plainly stated, be an unlimited power to plunder the citizen." To support this doctrine, Cooley cited a few decisions of the courts of Pennsylvania, Massachusetts, and Maine, with his own decision in People v. Salem and the views of Judge Dillon in Hanson v. Vernon.^[61] Then follows an extensive quotation from the dictum of Justice Miller in the case of Loan Association v. Topeka.^[62]

The change in the attitude of the courts in the process of developing implied limitations on legislative authority is shown clearly in New York, where the courts rejected the principle that taxes must be for a public purpose only,^[63] but twenty years later, following the reasoning of Chancellor Kent and of Judge Cooley, definitely adopted the public purpose principle as a limitation upon the taxing power of the legislature.^[64]

By 1880 the various ramifications of the extensive doctrine of public purpose as a requirement for taxation were clearly formulated and henceforth the courts followed Cooley and Dillon and gradually added distinctions which made of public purpose with respect to taxation one of the most effective implied limitations on legislative powers.^[65]

Constitutions rather generally placed restrictions on the exercise of eminent domain, such as the requirement of public use and just compensation. But independent of such constitutional provisions and supplementary thereto arose a judicially construed limitation on such proceedings.

Chancellor Kent, who was one of the leaders in formulating the doctrine of protecting vested rights by means of implied restrictions on legislatures, it was observed, was among the first to state the special limitation as to the purpose of the power of eminent domain. In the case of Gardner v. Newburgh,^[66] he held that in the absence of a constitutional provision for the purpose compensation was due the owner for property taken or damaged, and that the power of eminent domain could be exercised for public purposes only. Later he confirmed these views in his Commentaries. When New York adopted the constitution of 1821, a provision requiring just compensation and a public purpose was inserted as one of the requisites for eminent domain proceedings.^[67]

About a decade later, the New York courts, considering a statute enacted more than twenty years earlier, were called upon to decide whether property could be condemned in excess of the amount actually needed for public purposes. It was observed that "the constitution, by authorizing the appropriation of private property to public use, impliedly declares that private property shall not be taken from one and applied to the use of another. It is in violation of natural right, and if not a violation of the letter of the constitution, it is of its spirit, and cannot be supported."^[68] Thus the practice of excess condemnation of property beyond the actual requirements for the public needs was held to be inhibited through implication from the eminent domain clauses of the state constitutions.^[69] For many years no further attempts were made to authorize excess condemnation of property and then adverse decisions compelled the states to resort to the amending process.^[70]

Kent's doctrines and the theories of the New York justices had slight effect upon eminent domain proceedings, prior to 1870. Compensation was confined as a requirement by the courts to cases of actual taking, including all direct physical injuries to property,^[71] and, in determining the value of the land actually taken, it was held that elements of special benefit to the part of the land not taken could be set off against the value of the part taken.^[72] With the return to conservative doctrines which followed the Civil War courts began to insist that compensation must be given for damages resulting from a taking as well as for the value of the land actually taken, that it was improper to set off special benefits to the land not taken, and to review with careful scrutiny what the legislatures declared to be a public use.^[73]

Cooley again gave effective expression to Kent's views and to the principles stated somewhat provisionally by some state supreme court justices when he wrote:

There is no rule or principle known to our system under which private property can be taken from one man and transferred to another for the private use and benefit of such other person, whether by general laws or special enactment. The purpose must be public, and must have reference to the needs of the government. No reason of general policy will be sufficient to protect such transfers where they operate upon existing vested rights.^[74]

This dogmatic statement by one who frankly believed in judicial construction of implied limitations on legislatures, was soon reflected in the opinions of state and federal justices.

An implied limitation, thus first formulated by the state courts, was subsequently adopted by the Supreme Court, when it was held that "the taking by a state of private property of one person or corporation without the owner's consent, for private use of another, is not due process of law, and is a violation of the Fourteenth Amendment."^[75] Justice Harlan declared that the necessity for compensation for property taken for a public use was "an affirmance of the great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights become worthless if the government possesses the uncontrollable power over the private fortune of the every-day citizen."^[76]

State and federal courts combined in assuming that the constitutional prohibitions against the taking of private property through eminent domain proceedings except for public purposes and without just compensation operated, by necessary implication to prevent the taking of private property for private use, with or without compensation. And the limitations thus placed upon eminent domain through the adoption of the public use principle and its acceptance as one of the features of the due process clause, added materially to the extent of the vested rights placed beyond legislative control.^[77]

The extensive application of public purpose or public use as a limitation upon legislative powers, was therefore applied both to taxation and to eminent domain. As in the case of other implied limitations, the public purpose doctrine, so far as the federal law is concerned, was absorbed in the due process of law requirement. In defining the term "due process of law" in relation to the protection of property rights, Justice Brewer, following the opinion of Justice Miller,^[78] held that "this power to take private property reaches back of all constitutional provisions; and it seems to have been considered a settled principle of universal law that the right to compensation is an incident to the exercise of that power."^[79] This principle is now regarded as one of the fundamental requirements of due process of law under the Fifth Amendment, though it rests now as it always has both upon express constitutional provisions and upon an extra-constitutional basis, or upon limitations growing out "of the essential nature of all free governments."^[80]

When the conservative reaction was at its height numerous express constitutional restrictions upon the powers of state legislatures to take private property either by taxation or by eminent domain were adopted. But to the leaders of this reaction it was more important to have a flexible standard for the courts to use as a test of the validity of new legislative projects affecting private rights of property. The doctrines of public use and public purpose filled a gap in which the former doctrine of protecting vested rights by construing implied limitations on legislatures and the interpretation of the concept "due process of law" as a general restriction on legislative powers had so far failed to give the desired protection.

Foreign countries likewise require, as a rule, that the power of the expropriation of private property be exercised only for a public use. The determination of what is for a public use rests with the legislature, however, and there is generally no review of this determination by the courts. It is usual also to have the requirement that just compensation be awarded and the intervention of the judiciary becomes legitimate only when it comes to fixing the amount of compensation.^[81] The French Civil Code^[82] contains a representative provision that no one's property shall be taken except for a public use, and for a just and preliminary indemnity. In practice the legislature defines what is for a public use^[83] and the meaning of the term has been considerably extended by a recent act. The legislature has also limited the powers of the jury or committee of award in determining the compensation to be awarded.^[84]

"The whole learning as to eminent domain," says Justice Riddell, "is of no interest in Canada. The legislature may, indeed, direct compensation to be paid; but that is in no sense necessary."^[85] But in Canada as in England, where the legislatures can, if they so choose, take private property without compensation, such power is very seldom exercised. It was the result of a long period of the growth of legal ideas and of a combination of extraordinary economic and political conditions that turned American constitutional law in this field along lines different from the prevailing practice of the world.

The federal Constitution and a number of early state constitutions were formed and put into effect on the wave of a conservative reaction from the radical and democratic doctrines of the revolutionary period.^[86] When the Federalist party became the leader of this conservative movement it championed the doctrine of judicial review of legislative enactments, the theory of protecting vested rights both by express and implied limitations on legislatures, and the principle of placing implied limitations on legislatures to protect individual rights and to preserve minority privileges as against the dangers of majority rule. The wave of Jeffersonian democracy removed some of the restrictions which were in process of formation under Federalist auspices and others were either eliminated or modified when the frontier democracy of the West triumphed in the inauguration of the Jacksonian era.^[87] But the conservative spirit as fostered by such men as Alexander Hamilton, John Marshall, Joseph Story, Chancellor Kent, and Daniel Webster, never ceased to have a powerful and directive influence on American political affairs. From 1830 to 1850, when democratic and liberal principles and practices seemed to be dominant in American life, a new federalism and a new conservatism were in their formative stage. It was at this time that a few justices revived the natural law doctrines of European political philosophers and the higher law notions of the Declaration of Independence and of the bills of rights of state constitutions. Following leaders who advocated implied limits on legislative powers, such as Coke, Kent, and Story, these judges, originally through dicta, prepared a program for modern conservative policies and reactionary tendencies, fostered, as was the earlier movement, on the conviction that majority rule is dangerous and that representative assemblies are not to be trusted. Not until the results of democratic rule along economic and financial lines had turned out disastrously in the panics of 1837 and 1857 and in a continuous process of wasteful and extravagant expenditures which the electorate had, as a rule, approved, did the exponents of the second conservative reaction secure much of a following. When the unsettled economic conditions and the high prices of the Civil War period, combined with the speculative movement that followed, brought another disastrous panic in 1873, public sentiment was prepared, not only to place more definite express constitutional restrictions on legislatures, but also to accept the now well-formulated doctrine of judicially construed implied limitations on legislative powers,^[88] favorable to individual privileges and to property rights.

It was the background of inalienable rights which was used to sanction Justice Cooley's dictum soon to be adopted as a fundamental principle of constitutional interpretation, namely, "that there are on all sides definite limitations which circumscribe the legislative authority, aside from the specific restrictions which the people impose by their constitutions." Justices Dillon, Miller, and Cooley gave credence to the belief that implied limits must be placed on legislatures in respect to the control over property and contracts and that the sanction for these limits may, if necessary, be founded on the inalienable rights clause of the bill of rights. There is a noteworthy similarity between the reasoning of these justices and that of Justice Chase in Calder v. Bull when he first advocated the doctrine of implied limitations based upon natural rights and upon the principles of a free republican government. But suggestions were already at hand to direct the natural rights thinking into other channels and to give to it a semblance of constitutional sanctity in the emerging meaning of "due process of law." Before the transition was made there was a recurrence to the principles of the Declaration of Independence as a sanction for natural rights which were inalienable.

The Supreme Court of the United States in a gradual change of opinion from 1873 to 1895 led the conservative movement, and through its prestige gave it an added impetus in the state courts. When the peculiar economic and political conditions of the United States were favorable to the laissez faire and individualistic theories of Adam Smith and Ricardo which were prevalent in England and in America in the eighteenth and early nineteenth centuries, Justices Field and Peckham, inclined toward democratic political principles, joined with the proponents of conservative policies, such as Justices Brewer and Harlan, to establish even greater limits on the role of legislative action than the most extreme advocates of the principles of the original Federalism could have imagined.^[89] It is necessary then to consider the adoption of the principles of conservatism and reaction by the federal courts and the further extension of these principles by the state courts.^[90]

1. For a more extensive account see W. S. McKechnie, Magna Carta (New York, 1915); C. H. McIlwain, "Due Process of Law in Magna Carta," Columbia Law Review, XIV (January, 1914), 27; Rodney L. Mott, Due Process of Law (Indianapolis, 1926); Malden, Magna Carta Commemoration Essays (London, 1917).

2. Coke's Institutes, II, 45-50; McIlwain, The 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 Judge Locke.

7. Referring to the moral and emotional values of Magna Carta which appealed to the popular imagination, McKechnie finds that "fortified as it had been by the veneration of ages, it became a strongly entrenched position that the enemies of arbitrary government could safely hold." "Magna Carta (1215-1915)," Malden, Commemoration Essays, pp. 20, 21. See also Sir Paul Vinogradoff, "Magna Carta Chapter 39," Commemoration Essays, p. 85; C. H. McIlwain, "Due Process of Law in Magna Carta," Col. Law Rev., XIV (January, 1914), 26; G. B. Adams, Origin of the English Constitution (New Haven, 1920), pp. 242 ff.

8. Starting with the assumption that somewhat of the divine essence was breathed into "due process of law" and that there is here involved "phraseology of the purest gold mined under the stress of heated constitutional crises, refined by the fire of violent revolutions, proved by the acid test of centuries of struggle," a recent author sets out to prove that due process of law was always designed to keep government from straying into paths of arbitrariness and injustice. Thus imbued with the will to believe, he finds, contrary to the weight of evidence and to the mature judgments of both English and American scholars, that the phrase "the law of the land" was from the beginning intended as a restraint on the legislature as well as on the executive power, that a considerable number of acts were declared void in England because contrary to Magna Carta as the fundamental law, and that there was "a steady stream of dicta that statutes which were contrary to common right and reason, the law of nature or the common law were unenforceable." Mott, op. cit., pp. 42-48, 123, 135, 142, 143.

It is surprising to find how few precedents of this kind investigators have discovered and these were given undue weight by those who desired to find legal limits on royal authority. But Dr. Mott, feeling sure that Englishmen prior to the American Revolution were well aware and confident that due process of law was designed to prevent arbitrary governmental action, is surprised to discover that no discussion of this device to keep government in the paths of reason and of justice is to be found in the Federal Convention at Philadelphia or in the debates on the constitution in the states. Madison is credited with the assertion that due process of law as inserted in the Fifth Amendment of the federal Constitution was intended to limit the legislature but nearly a hundred years elapsed before this was accepted by the courts. Again there was very little discussion of the meaning of due process of law when this clause was inserted in the Fourteenth Amendment as an extra guarantee to render effective the phrase "equal protection of the laws." Since no one knew what due process of law meant, it is concluded that it must have been intended to protect all liberties. Ibid., p. 165.

The majority of text writers, it is noted, followed Justice Story in defining due process of law as a protection to the criminal from arbitrary arrest and imprisonment. With the exception of the opinions of Pomeroy and Cooley in 1868, until the beginning of the twentieth century, authors dealt only with the procedural phases of due process of law. Cooley is credited with emphasizing the application of due process of law to taxation in 1876. With such slow recognition of the significance of this term by statesmen, text writers, and the public generally, how has due process of law come to take a central place in American constitutional law? It was the "uncanny intuition" of the justices in state and federal courts, we are told, which discovered a new rôle for due process of law. Searching for "the inherent elements of justice" applicable to all situations the judges extracted from the vague terms of written charters a "latent and unsuspected" meaning which conservatives and reactionaries alike were seeking — an effective device to check popular lawmaking and to resist arbitrary administrative procedure. But even the justices were dilatory in finding the hidden meaning of due process of law. Only a few of the state justices ventured to suggest implications of the term beyond its well-known procedural implications.

9. A. N. Holcombe, State Government in the United States (New York, 1916), pp. 47 ff.

10. For a suggestive analysis of the inconsistent positions taken by the justices on this issue, consult Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," University of Pennsylvania Law Review, LXI (May, 1913), 441.

11. 3 Dallas 398 (1798).

12. 4 Conn. 209 (1822).

13. 7 Johns. 477 (1811).

14. North Carolina v. Foy, 2 Hay 310, 312; 5 N. Car. 57, 63 (1804). To the contention that the law of the land clause of the bill of rights did not impose restrictions on the legislature, Justice Locke replied: "It is evident the framers of the Constitution intended the provision as a restraint upon some branch of the government, either the executive, legislative, or judicial. To suppose it applicable to the executive would be absurd on account of the limited powers conferred on that officer; and from the subjects enumerated in that clause, no danger could be apprehended from the executive department, that being entrusted with the exercise of no powers by which the principles thereby intended to be secured could be affected. To apply it to the judiciary would, if possible, be still more idle, if the legislature can make the 'law of the land.' For the judiciary are only to expound and enforce the law, and have no discretionary powers enabling them to judge of the propriety or impropriety of laws.

They are bound, whether agreeable to their ideas of justice or not, to carry into effect the acts of the legislature as far as they are binding or do not contravene the Constitution. If, then, this clause is applicable to the legislature alone, and was intended as a restraint on their acts (and to presume otherwise is to render this article a dead letter), let us next inquire what will be the operation which this clause will or ought to have on the present question. It seems to us to warrant a belief that members of a corporation as well as individuals shall not be so deprived of their liberties or properties, unless by a trial by jury in a court of justice, according to the known and established rules of decision derived from the common law and such acts of the legislature as are consistent with the Constitution."

Due process of law was held to require, for the transfer of a freehold, a trial by jury in Bowman v. Middleton, 1 Bay (S. Car.) 252 (1792), and an act of the North Carolina legislature was held void for attempting to prevent a judicial settlement of property rights. Bayard v. Singleton, 1 Martin 48 (1787).

See comments of Justice Waties by way of dictum giving a similar interpretation of lex terrae and suggesting that this phrase was intended "to become an effectual bar to the innovations of the legislature." Zylstra v. Corporation of Charleston, 1 Bay 382, 392 (1794).

15. For more than thirty years after due process of law was introduced into the state constitutions there were few cases interpreting the phrase and no attempt to define it. See Mott, op. cit., p. 192.

16. Holden v. James, 11 Mass. 396, 405.

17. Dartmouth College v. Woodward, 4 Wheat. 518, 581 (1819). Webster observed:

"By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land."

18. In Bank of State v. Cooper, Justice Green said: "Constitutions are only intended to secure the rights of the minorities.... If the law be general in its operation, affecting all alike, the minority are safe, because the majority, who make the law, are operated on by it equally with the others." 2 Yerg. (Tenn.) 509, 605, 606 (1831). See also Jones' Heirs v. Perry, 10 Yerg. 58, 71, 72 (1836). For dicta in early cases to the effect that due process of law was intended to limit legislative action, see Mott, op. cit., pp. 192 ff.

Chief Justice Skinner, holding void an act releasing a debtor imprisoned on execution, said: "An act conferring upon any one citizen privileges to the prejudice of another, and which is not applicable to others, in like circumstances ... does not enter into the idea of municipal law, having no relation to the community in general." Ward v. Barnard, 1 Aikens (Vt.) 120, 128 (1825). See reference to the fact that many acts of this kind had been passed by the legislature and had been enforced without protests. Justice Catron, in upholding a special act of the legislature prescribing the mode by which holders of notes might on refusal to pay same recover judgment, referred to the law of the land as requiring "a general public law, equally binding upon every member of the community under similar circumstances." Van Zandt v. Waddell, 2 Yerg. (Tenn.) 260, 270, 271 (1829); also. Wally v. Kennedy, 2 Yerg. 554, 557 (1831) and Dale "Implied Limitations upon Legislative Powers," American Bar Association Reports, XXIV (1901), 294, 315-319.

19. Hoke v. Henderson, 15 N. Car. 1, 15 (1833); also comments of Justice Peck in Officer v. Young, 5 Yerg. 320, 321 (1833).

20. Bank of State v. Cooper, 2 Yerg. 599, 603 (1831). "There are," said Justice Green, "eternal principles of justice which no government has a right to disregard. It does not follow, therefore, because there may be no restriction in the constitution prohibiting a particular act of the legislature, that such act is therefore constitutional. Some acts, although not expressly forbidden, may be against the plain and obvious dictates of reason. 'The common law,' says Lord Coke [8 Coke, 118], 'adjudgeth a statute so far void.'"

The Alabama court, holding void an act prescribing for public officers and attorneys an oath against duelling, said that the declaration of rights was the governing and controlling feature of the constitution and all powers of the legislature were to be expounded and their operation extended or restrained with reference to it. Quoting the provision of the bill of rights that "This enumeration of certain rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachment on the rights retained, or any transgression of the high powers herein delegated, we declare, that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate, and that all laws contrary thereto are void," Justice Ormond claimed that by this language the courts were authorized to declare void any act which was repugnant to natural justice and equity. Hence, "any act of the legislature which violates any of these asserted rights, or which intrenches on any of these great principles of civil liberty, or the inherent rights of man, though not enumerated, shall be void." In re Dorsey, 7 Porter (Ala.) 293, 377, 378 (1838). Due process of law was intended "as a safeguard against the encroachment upon these inherent rights of the people by Congress or the state legislatures." Justice Dickerson in State v. Doherty, 60 Me. 504, 509 (1872).

21. The "law of the land" means "the common law and the statute law existing in this state at the adoption of our constitution. Altogether they constitute the body of law, prescribing the course of justice to which a free man is to be considered amenable, in all time to come." Justice O'Neall in State v. Simons, 2 Spears 761, 767 (1844); also Justice Bronson in Taylor v. Porter, 4 Hill 140, 146 (1843).

22. Justice Gilchrist in Concord R. R. Co. v. Greeley, 17 N. H. 47, 54 (1845); see also Sill v. Coming, 15 N. Y. 297, 303 (1857).

23. White v. White, 5 Barb. 474, 484, 485 (1849).

24. Wynehamer v. New York, 13 N. Y. 378 (1856), Justice Comstock, profiting by the opinions of Chief Justice Bronson in Taylor v. Porter and Chief Justice Ruffin in Hoke v. Henderson, said: "The better and larger definition of due process of law is, that it means law in its regular course of administration through courts of justice.... It is plain, therefore, both upon principle and authority, that these constitutional safeguards, in all cases, require a judicial investigation, not to be governed by a law specially enacted to take away and destroy existing rights, but confined to the question whether, under the pre-existing rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed." Ibid., 395. See dissenting opinions of Justices T. A. Johnson, Wright, and Mitchell, who objected to setting limits to legislative power "upon any fanciful theory of higher law or first principles of natural right outside of the constitution." Ibid., 453.

25. Taylor v. Porter, 4 Hill 140 (1843); Wynehamer 11. State, 13 N. Y. 378 (1856). When the legislature of Pennsylvania passed an act to order a sale of property contrary to the terms of a will, the supreme court held the act invalid. Referring to the "law of the land" provision, Justice Coulter said, "these clauses address themselves to the common sense of the people, and ought not to be filed away by legal subtleties. They have their foundations in natural justice; and, without their pervading efficacy, other rights would be useless.... If property is subject to the caprice of an annual assemblage of legislators acting tumultuously, and without rule or precedent, and without hearing the party, stability in property will cease, and justice be at an end." Ervin's Appeal, 16 Penn. St. 256, 263 (1851).

26. Cf. dictum of Justice Jenkins that the principle of implied limitations was applicable in the interpretation of legislative powers under the Southern Confederacy. Jeffers v. Fair, 33 Ga. 347, 367 (1862).

27. Cf. the first edition of his work on Constitutional Limitations (1868), p. 353.

28. Cf supra, p 112.

29. The avowed object of rendering aid in the development of implied limitations on legislatures was frankly stated by Cooley in the preface to the first edition: "In these pages the author has faithfully endeavored to state the law as it has been settled by the authorities, rather than to present his own views. At the same time he will not attempt to deny — what will probably be sufficiently apparent — that he has written in full sympathy with all those restraints which the caution of the fathers has imposed upon the exercise of the powers of government, and with greater faith in the checks and balances of our republican system, and in correct conclusions by the general public sentiment, than in a judicious, prudent, and just exercise of unbridled authority by any one man or body of men, whether sitting as a legislature or as a court. In this sympathy and faith he has written of jury trial and the other safeguards to personal liberty, of liberty of the press, and of vested rights; and he has also endeavored to point out that there are on all sides definite limitations which circumscribe the legislative authority, aside from the specific restrictions which the people impose by their constitutions," Constitutional Limitations (1st ed.), p. iv. (Italics by the writer.)

30. Bank of Columbia v. Oakley, 4 Wheat. 235, 244 (1819).

31. "The wishes and opinions of the minority must yield to those of the majority," said Chief Justice Marshall in Talbot v. Dent, 9 B. Mon. (Ky.) 526, 537 (1849) Cf. for similar opinions Goddin v. Crump, etc., 8 Leigh (Va.) 120 (1837), and the City of Bridgeport v. Housatonic Railroad Co., 15 Conn. 475 (1843).

32. C. J. Bigelow in Hood v. Lynn, 1 Allen (Mass.) 103, 104 (1861). A representative example of this method of reasoning was the frank declaration of Justice Butler, who in reviewing a retrospective law and finding no inhibition in the constitution on this type of enactment said: "But the power of the legislature in this respect is not unlimited. They cannot entirely disregard the fundamental principles of the social compact. Those principles underlie all legislation, irrespective of constitutional restraints, and if the act in question is a clear violation of them, it is our duty to hold it abortive and void." Though the act in question was upheld, the dictum in Goshen v. Stonington was approved as the settled doctrine of the court. Welch v. Wadsworth, 30 Conn. 149, 155 (1861).

33. The supreme court of Maine, requested to give an advisory opinion whether the legislature could pass laws enabling towns, by gifts of money, to assist individuals or corporations to engage in manufacturing, answered in the negative. Among the provisions of the constitution cited to sustain this conclusion were: the natural rights clause of the declaration of rights, the eminent domain provision, and the law of the land restriction. As these provisions did not directly inhibit such an act the justices throughout their opinion indicated their adherence to the doctrine that "the less the state interferes with industry, the less it directs and selects the channels of enterprise, the better." It is this philosophy underlying the reasoning of judges which has frequently prevented local communities from engaging in quasi-public enterprises. In re Opinion of Justices, 58 Me. 590, 598 (1871).

34. After the middle of the nineteenth century justices continued to hold that due-process of law had no relation to the power of taxation. People v. Brooklyn, 4 N. Y. 419, 423 (1857); Johnson v. Stark, 24 Ill. 75, 86 (1860); People 11. Smith, 21 N. Y. 595, 598, 599 (1860). For additional citations see Mott, op. cit., p. 438.

35. Horace Secrist, An Economic Analysis of the Constitutional Restrictions upon Public Expenditures (University of Wisconsin, Economics and Political Science Series), VIII, 13.

36. Ibid., p. 21. Cf. J. B. McMaster, History of the People of the United States, XI, 92, as to the wild speculation in railroad securities from 1834 to 1837.

37. Secrist, op. cit., p. 28.

38. McMaster, op. cit., 34.

39. Ibid., p 54.

40. McMaster, op cit., VIII, 285 ff.

41. See Stein v. Mayor, Aldermen, etc. of Mobile, 24 Ala. 501 (1854); Dubuque Co. v. Dubuque and Pacific Ry. Co., 4 Greene (Ia.) 1 (1853); Gelpcke v. City of Dubuque, 1 Wall. 175 (1863); Town of Guilford v. Supervisors of Chenango Co., 13 N. Y. 143 (1855); Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147 (1853); Lawson v. The Milwaukee and Northern Ry. Co., 30 Wis. 597 (1872); Commissioners of Leavenworth Co. 11. Miller, 7 Kan. 479 (1871), and dissent of Justice Brewer in State v. Nemaha Co., 7 Kan. 542 (1871); and extensive list of cases cited in 20 Mich. 465. Cf. also Railroad Co. v. County of Otoe, 16 Wall. 667 (1872) and Township of Pine Grove v Talcott, 19 Wall. 666 (1873).

42. Evidence of this sentiment appears in the observations of the justices in Iowa in holding invalid a legislative act amending a city charter so as to include for purposes of taxation a large tract of farm land. There must be, said the court, some limits to the power to tax, and as a basis for these limits the distinction was suggested between a just tax and that which is palpably not a tax. Morford v. Unger, 8 Ia. 82, 91 (1859). Justice Leonard thought, in rendering a similar decision, that from the eminent domain provision "we may safely imply the constitutional prohibition against the arbitrary taking of private property for private use without any compensation." Wells v. City of Weston, 22 Mo. 385, 388 (1856).

43. Hanson v. Vemon, 27 Ia. 28 (1869).

44. Dubuque County v. Dubuque and Pacific Ry. Co., 4 Greene 1 (1853). For cases reviewing this decision, see State, etc. v. Wapello Co., 13 Ia. 388 (1862) and McClure v. Owen, 26 Ia. 243 (1868).

45. Ibid., 33, 34.

46. Hanson v. Vemon, 27 Ia. 28, 43. See also Bankhead v. Brown, 25 Ia. 540, 545 (1868), where Chief Justice Dillon, reviewing proceedings to establish a private road, maintained that the constitutional limitation against taking private property for public use without just compensation "prohibits by implication, the taking of private property for any private use whatever, without the consent of the owner."

47. Cf. Eakin v. Raub, 12 Serg. & R. (Penna.) 344 (1825), dissenting opinion of Justice Gibson; and Sharpless Case, 21 Penna. St. 147 (1853).

48. 27 Ia. 46 ff. See also opinions of Justice Wright and Justice Beck. "There is," said Justice Beck, "as it were, back of the written constitution, an unwritten constitution, if I may use the expression, which guarantees and well protects all the absolute rights of the people." Ibid., 73. See reversal of this case, Stewart v. Supervisors of Polk Co., 30 Ia. 9 (1870), after the legislature had re-enacted the former law with certain changes.

49. Hanson v. Vernon, 27 Ia. 28 ff. For list of cases in other states, see ibid., 81. In the first edition of his work on Municipal Corporations, published in 1872, Judge Dillon admitted that "a long and almost unbroken line of judicial decisions in the courts of most of the states has established the principle that, in the absence of special restrictive constitutional provisions, it is competent for the legislature to authorize a municipal or public corporation to aid ... the construction of railways." Citing his own opinion in Hanson v. Vernon, and that of Cooley in People v. Salem, he observed, "the judgments affirming the existence of the power have generally met with strong judicial dissent and with much professional disapproval, and experience has demonstrated that the exercise of it has been productive of bad results." Secs. 104, 105. Cf. note summarizing the conclusions of numerous decisions. In the preface to this work Dillon indicates his disapproval of the doctrines embodied in decisions favoring such powers in the legislatures. See Whiting v. Sheboygan and Fond du Lac Railway Co., 25 Wis. 167 (1869-70), where Chief Justice Dixon, holding a similar statute void, cited and approved the reasoning of Dillon. For decision contra, cf. Lawson v. Milwaukee and Northern Railway Co., 30 Wis. 597 (1872).

50. Gelpcke v. City of Dubuqne, 1 Wall. 175 (1864).

51. Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147 (1853); Dubuque County v. Dubuque & Pac Ry. Co., 4 Greene (Ia.) 1 (1853).

52. Cases upholding the legislative power to authorize taxation to pay bounties to soldiers: Taylor v. Thompson, 42 Ill. 9 (1866); Freeland v. Hastings, 10 Allen 570 (1865); Speer v. School Directors, etc. of Blairsvflle, 50 Pa. St. 150 (1865); but see Tyson v. School Directors of Halifax Township, 51 Pa. St. 9 (1865), where the court held an extreme exercise of such power void because it was not legislation at all. Cases denying such power to legislatures: Mead v. Acton, 139 Mass. 341 (1885); State v. Tappan, 29 Wis. 664 (1872).

53. Howard Lee McBain, "Taxation for a Private Purpose," Political Science Quarterly, XXIX (June, 1914), 185, 197 ff. Taxation for a private purpose was held invalid in Curtis v Whipple, 24 Wis. 350 (1869).

54. Constitutional Limitations (1868), pp. 487, 488.

55. Opinion of Justices, 58 Me. 590 (1871); People v. Batchellor, 53 N. Y. 128 (1873). For a unique application of this doctrine see opinion of Justice Brewer holding invalid a statute providing relief for fanners whose crops had been destroyed, by means of a secured loan for the purchase of grain for seed and feed. Permanent and fundamental principles were held to prevent an act to meet a serious emergency. 14 Kan. 418 (1875).

56. People v. Salem, 20 Mich. 452, 473 (1870). For favorable comment on this decision by Judge Dillon, see American Law Register, IX (N. S., August, 1870), 501.

57. Ibid., pp. 474, 475. The Supreme Court of the United States rejected the reasoning of Cooley under the language of the constitution of Michigan. Township of Pine Grove v. Talcott, 19 Wall. 566 (1873). But Cooley adhered to his former opinion in People v. State Treasurer, 23 Mich. 499 (1871) and in Thomas 11. City of Port Huron, 27 Mich. 320 (1873).

58. For example, an amendment adopted in Pennsylvania in 1857 provided that "the legislature shall not authorize any county, city, borough, township, or incorporated district, by virtue of a vote of its citizens or otherwise, to become a stockholder in any company, association, or corporation, or obtain money for, or loan credit to, any corporation, association, institution or party." Art. xi, sec. 7.

59. Cf. 4th ed. by Nichols (Chicago, 1924), 4 vols.

60. Cooley, Law of Taxation (1st ed.), p 67. In this volume Cooley affirmed adherence to the doctrine of implied limitations by asserting that "as to constitutional declarations of individual rights, many of the most important principles of government are usually not declared at all, but simply taken for granted," and such limitations, he thought, "are equally imperative whether declared or not." Page 41, note.

61. Cooley, op. cit., pp. 67, 68.

62. 20 Wall. 655, 663, 664 (1874). This comment of Justice Miller is frequently cited in support of the theory of implied limitations on legislatures: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.... To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it on favored individuals to aid private enterprises and build up private fortunes, is none the less robbery because it is done under the forms of law and is called taxation This is not legislation It is a decree under legislative forms."

63. Guilford v Supervisors, 18 Barb. 615 (1854) and 13 N. Y. 143 (1856). In this case the law of the land and the eminent domain provisions were held to have no application to taxation. See legislative authorization of a tax to pay a private debt, Thomas v. Leland, 24 Wend. 65 (1840). But for contrary opinion see comment of Chancellor Walworth in Cochran v. Van Surlay, 20 Wend. 364, 373 (1838).

64. Weismer v. Village of Douglas, 64 N. Y. 92 (1876).

65. The supreme court of Maine would not allow the legislature to assist individuals or corporations to carry on manufactories. Opinion of Justices, 58 Me. 590 (1871); Allen v. Jay, 60 Me. 124 (1872). A Massachusetts court held void an act authorizing the city of Boston to issue bonds and lend the proceeds to owners of lands and buildings destroyed by fire, Lowell v. Boston, 111 Mass. 454 (1873); cf. also Mead v. Acton, 139 Mass. 341 (1885); and Opinion of Justices, 211 Mass. 624 (1912). An Illinois court refused to permit a levy of a tax to develop the natural advantages of a city for manufacturing purposes, Mather v. City of Ottawa, 114 Ill. 659 (1885). Referring to the prohibitions on cities in the raising of taxes to aid manufacturing establishments, Justice Riddell says: "We do it every day and in most, if not all, of the cities and in many of the towns and even the villages of Ontario." Constitution of Canada (New Haven, 1917), p. 139.

66. 2 Johns. 162, 167 (1816).

67. See Coates v. Mayor of the City of New York, 7 Cow. 585, 589 (1827), referring to requirements of public use and just compensation as based on principles of natural justice.

68. Matter of Albany street, 11 Wend. 149, 151 (1834). See also one year later, Varick v. Smith, 5 Paige 137, 159 (1834), in which it was contended that the exercise of the power of eminent domain for other than a public use would be an infringement upon the spirit of the constitution, and therefore not within the general powers delegated by the people to the legislature. Cf. McBain, "Taxation for a Private Purpose," Pol. Sci. Quar., XXIX, 187, n, for the halting steps by which New York courts arrived at the public use doctrine as derived from the due process of law and eminent domain provisions of the state constitution.

69. Cf. also Dunn v. City Council of Charleston, Harper's Law Repts. 189 (1824) holding that the law of the land provision prevents a taking of more property than is required for a public improvement, and Emery v. Conner, 3 N. Y. 511 (1850).

70. R. E. Cushman, Excess Condemnation (New York, 1917), chap. 7, and Frank B. Williams, The Law of City Planning and Zoning (New York, 1922), chap. 3. For a good brief account of the law of excess and zone condemnation in Europe see ibid., chap. 2.

71. Wm. E. Britton, "Constitutional Changes in Eminent Domain in Illinois," Illinois Law Bulletin, II (April, 1920), 479. Cf. also Wilbur Larremore, "Incidental Damage to Personal Property in Condemnation Proceedings," Col. Law Rev. XI (February, 1911), 147. See Sedgwick, Constitutional Law, (2d ed.), pp. 456 ff. and Lewis, Eminent Domain, vol. I (3d ed.), sec. 66.

72. State v. Evans, 3 Ill. 208 (1840).

73. Lewis, op. cit., chap. 7.

74. Constitutional Limitations (1868), p. 357. See also Lebanon School District v. Lebanon Female Seminary, 12 Atl. 857, 859 (1888); Justice Cooley in Detroit v. Detroit and Howell P. R. Co., 43 Mich. 140, 147 (1880); People v. O'Brien, 111 N. Y. 1 (1888).

75. Mo. Pac. Ry. Co. v. Nebraska, 164 U. S. 403 (1896).

76. Chicago, B. & Q. Ry. Co. v. Chicago, 166 U. S. 226 (1897).

77. "Only a few of the state constitutions in terms prohibit the taking of property for private use. All courts, however, agree in holding that this cannot be done. Different courts find different reasons for this conclusion, some putting it on the ground of an implied prohibition in the eminent domain provisions of the constitution, some on the ground that it would be contrary to the provision that no person shall be deprived of his property except by the law of the land; others, on the ground that it would be subversive of the fundamental principles of free government, or contrary to the spirit of the constitution." Lewis, op. cit., I, p. 250, and footnotes for extensive citation of cases.

78. Pumpelly v. Green Bay Co., 13 Wall. 166, 177, 178 (1871).

79. Monongahela Navigation Co. v. United States, 148 U. S. 312, 324 (1892). Justice Brewer thought the Fourteenth Amendment was intended to protect "those rights of person and property which by the Declaration of Independence were affirmed to be inalienable rights."

80. Cf. McBain, Pol. Sci. Quar., XXIX, pp. 200, 201. With regard to the requirement of public purpose for taxation "a careful reading of the numerous cases," says Professor McBain, "in which this doctrine has been announced impels the conclusion that none of them have progressed very far in the direction of finding constitutional basis for the doctrine either in express provision or reasonable implication." Ibid., 199.

81. Paul Errera, Traité de droit public belge, pp. 358 ff. See Constitution of Belgium (1831), art. XI.

82. Art. 545. Cf. Baudry-Lacantinerie and Chauveau, Traité théorique et pratique de droit civil (3d ed.), VI, 161.

83. Cf. Laws of May 3, 1841, July 27, 1870, and November 6, 1918; Williams, op. cit., pp. 68 ff.

84. Léon Duguit, Traité de droit constitutionnel (2d ed.), III, 358, 360.

85. Constitution of Canada, p. 131 and "The Constitutions of the United States and Canada, Canadian Law Times, XXXII (1912), 849.

86. Cf. Charles E. Merriam, American Political Theories (New York, 1906), chaps. 2 and 3. The contrast between the radical principles of the Revolution and the doctrines of the first conservative reaction is shown in the differences between the Pennsylvania constitution of 1776 drawn chiefly by Franklin and Bryan and the constitution of 1790 prepared by the leaders who helped secure the adoption of the federal Constitution.

87. Merriam, op. cit., chaps. 4 and 5.

88. It is worthy of note that the leading American text writers of the middle of the nineteenth century, such as Kent, Story, Cooley, Dillon, and Sedgwick (Constitutional Law), were, as a rule, advocates of the doctrine that there must be implied limits on legislative powers on the basis of higher law theories.

89. "The influences which produced the restrictions on debt also resulted in the introduction of a philosophy of laissez faire, public debt and state activity were condemned together." Secrist, op. cit., p. 8.

90. The point of view of conservative thinkers of the day was clearly defined by Justice Brewer in a dissenting opinion in State v. Nemaha County, 7 Kan. 549, 555, 556 (1871). "Looking at the provisions of the bills of rights," said Justice Brewer, "as restrictions upon an otherwise absolute supremacy in the legislature — they seem little more than 'glittering generalities.' But when we regard them as conditions upon which legislative power is granted — as the foundation principles upon which all legislative actions must be based, and a disregard of such action, void, they become substantial, prominent, vital.... The habit of regarding the legislature as inherently omnipotent, and looking to see what express restrictions the Constitution has placed on its action, is dangerous, and tends to error. Rather regarding first those essential truths, those axioms of civil and political liberty upon which all free governments are founded, and secondly those statements of principles in the bill of rights upon which this governmental structure is reared, we may properly then inquire what powers the words of the Constitution, the terms of the grant, convey."

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