the unchangeableness attributed to the laws of the Medes and Persians." 3

If definition is either impossible or impolitic, and history is a guide uncertain at the best, how is decision to be reached? And is it not obvious that when a promise of judicial inclusion or exclusion was held out, hope was encouraged that the especial sorrow of each particular litigant might be wiped away by the saving phrase? Complaints over the flood of litigation following the Fourteenth Amendment have a humorous side. We have encouraged what we criticize.

Nearly all suits at law, constitutional litigation included, arise in the same way: the plaintiff firmly believes that he is enduring oppression, due to active fraud or callous denial of right, and therefore he brings his suit to ascertain, as he might ironically put it, whether what he knows to be wrong is nevertheless according to law.

As no lawyer admits identifying even the law as it ought to be, with his client's ideas of natural or poetic justice, it is as well in limine to consider what is the law whose due process is so important. I attempt no definition of that word, observing that Moses, Blackstone, and Mr. James Coolidge Carter have not permanently succeeded; but for present purposes law is anything effectual in depriving any person of life, liberty, or property, provided it emanates directly or indirectly from a national governmental agency, or from a state. Both the Fifth and Fourteenth Amendments deal in negations only, the nation agrees not to deprive without due process, and not to let a state do so; but it does not promise, nor is it authorized directly, to legislate against deprivation by other citizens, and a state may be as unjust as possible in legislation or administration, and yet such oppression is law-of sorts. Further, the "due process" imposed is not primarily a requirement that right be done, but that appropriate machinery for doing right be provided.

It is therefore almost impossible to imagine an action brought affirmatively to prove that due process has been provided; the prayer is always to declare that something definitely stated is 3 Hurtado v. California, 110 U. S. 516 (1884).

4 The Civil Rights Cases, 109 U. S. 3, 13 (1883).

5 Memphis Gas Co. v. Shelby County, 109 U. S. 398 (1883).

not due process; and the actual course of suit is to show what has been done, garnish the concrete facts if possible with opinion evidence, and leave the court to include or exclude as to it seems, what? Expedient, politic, necessary, advisable, or desirable, say the critics, but whatever carping observers say, the court always says, lawful. Any study of actualities in this domain of constitutional applications presents this final query: - What are the preferred tests, what the evidential material most persuasive, in producing a ruling that any given governmental act is or is not something that can be discovered, but cannot be defined. A process suggesting the analysis of organic bodies, of which the flavor or odor is often the leading characteristic; — with the vital element breathing defiance to the analyst.

The reasons urging our fathers in citizenship to put the words where they are, and the schools of interpretation generated by them, may be mentioned before attempting this legal chemistry.

-

The Fifth Amendment, like all those agreed on as the price of constitutional adoption, was based on an instinctive provincial fear that the new nation would minimize the states. I believe this is admitted by all students. The Fourteenth was a straight party measure, due to distrust of the states solely in respect of their possible treatment of the negro. The sufficient proof of party spirit is that in all the legislatures of all the states exactly one Democrat voted for it, and that man's name should be rescued from oblivion. He was Assemblyman Bernard Cregan of New York, commonly known as "Tom Thumb" from his diminutive size. The Fifth Amendment was not opposed because most thinking persons deemed it harmless per se, and a sop to a parochial populace; and the Fourteenth was adopted, because the northern majority hoped thereby to secure for the negro that sort of political and personal liberty to which they were themselves accustomed and thought every human entitled, not doubting African fitness therefor because he, by hypothesis, was human also. This is a small foundation for the superstructure of doctrine raised around the words "liberty and property," - life has borne but small part in the discussion. Every reported consideration of the constitutional phrase bears internal evidence that the writer

6 FLACK, ADOPTION OF THE FOURTEENTH AMENDMENT.

inclines to one of two views, - either he regards the words as importing and imposing a rule so venerable, universal and potent, that governmental results not logically developed by that rule from precedent authority, usually judicial, are indefensible; or he views them only as cautionary, prescriptive of a procedural pattern, usually legislative, but leaving to the lawmaker varieties in fashion exuberant as those of a woman's headgear.

The conservative and radical schools of thought exist at the bar as they must in respect of all ratiocination; but as soon as our profession became the interpreters, all American constitutional reasoning became and remains strongly tinged with the rigorous verbal logic of the lawyer who (to be happy) must connect with a precedent or two any and every result he reaches, and call the same law.

The nature of due process, as derived from history before 1789, or meditation on the nature of things, is a subject soon exhausted; and for the two generations I am considering we have reasoned on this matter in a way I think peculiarly American. We know that our Federal Constitution is one of delegated powers, and (however erroneously) incline to treat those of the states in the same way; and when a plaintiff asserts that something is not due process, he succeeds (if he does) not ex rerum naturâ but because that something is not contained within some other express or implied power of the law-making authority. This way of treating the constitutional question is accepted by even conservative writers, of whom Mr. William D. Guthrie' is perhaps the most distinguished living example.

Our present Chief Justice expressed the same thought when he said that the Fifth Amendment "qualified so far as applicable" all other constitutional provisions.8 In result the lawyer-like way of defending a challenged act is to establish its propriety under some other constitutional provision so plainly that it defies the due-process clause.

Though the phrase pervades our every scheme of government, slight study of actual cases shows that the overwhelming majority of complaints arise in the attempted exercise of the powers of

'THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION - LECTURES BEFORE DWIGHT ALUMNI ASSOCIATION, 1898.

McCray v. United States, 195 U. S. 27, 61 (1904).

police, taxation, procedural regulation, and eminent domain, and in the order named, while as incident to the police power, or included within it, regulation of activities affected with a public use looms large, and classification for benefits or burdens is so large a part of or preparation for taxation or regulation, that at times one doubts the mathematical axiom that the whole is greater than any of its parts. Thus the modern study of due process almost becomes an examination of legislative activities de rebus omnibus, — et quibusdam aliis.

Why without any change of language, and no variation in procedure making our lawyer grandfathers, utter strangers in our courts, litigation over the clause is a growth of almost exactly two generations as usually counted, — is a fascinating study. To me the reasons seem to have no very close relation to the law or its professors; but to rest on the social and material changes which have within the years indicated transformed this country from an agricultural to a manufacturing community, and its population so largely from rural to urban.

One short extract from one book illustrates where the bar in general stood as to the scope and meaning of due process of law, more than fifty years after independence. The first edition of Story on the Constitution appeared in 1833, and the sole reference to the Fifth Amendment is this: "This clause in effect affirms the right of trial according to the process and proceedings of the common law." Simple and summary, is it not? Story's was an encyclopædic mind, but with no tinge of prophecy; that sentence discloses the professional view that read the words only as affecting courts, administering interpersonal relations, — perhaps with special reference to the criminal side.

A dozen years later, it could be said in South Carolina, that "the law of the land" meant "the common law and statute law existing in this state at the adoption of our constitution." 9 About equally simple, I think; but the idea of a body of law, fixed as to kind at least by constitutional congealment, is perhaps discernible.

A few more years passed, and in 1855 the Supreme Court in Murray v. Hoboken Land Co.10 considered the legality of the State v. Simmons, 2 Spears (S. C.), 761, 767 (1844). 10 18 How. (U. S.) 272, 276 (1855).

treasury warrants issued against. Andrew Jackson's defaulting collector, under which much of the mosquito-bitten land on which to-day stand hundreds of factories near the Bergen Hills, had been sold. Story's successors thought they covered the subject by saying that

"though due process of law generally implies and includes actor reus judex, regular allegations, opportunity to answer and a trial according to some settled course of judicial proceedings,"

yet history showed some equally settled exceptions and treasury warrants were among them; - the title to the Hackensack Meadows was quieted."

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. The judicial parsimony of the best courts is proverbial, but it is plain that when the Supreme Court thus spoke in 1855 they felt that public necessity had been satisfied; and procedure only was in mind.

The idea, however, that what one generation calls vested rights, and the next one vested wrongs, was something for which "due process of law" afforded a shield, was planted; the evidence is found in the state reports. Contemporary with the Hoboken case was that of Wynehamer,12 where Judge Comstock (nomen clarum) said in substance that the law of the land could not be a statute taking away property rights already existing. The judge was not the discoverer of the iniquity of confiscation, but his remark was typical of the thought then new to the reports, that existing property rights were things needing protection from legislation, and the bar, while casting about for ways and means, was pondering over due process.

Life is legally a simple word, and property fairly easy, but liberty was sure to grow in a country like ours, and before adoption

11 Cf. Commonwealth v. Byrne, 20 Grat. (Va.) 165 (1871).

12 13 N. Y. 378, 393 (1856). E. g., "Where rights of property are admitted to exist, the legislature cannot say they shall exist no longer; nor will it make any difference although a process and a tribunal are appointed to execute the sentence. If this is the "law of the land" and "due process of law" within the meaning of the constitution, then the legislature is omnipotent."