744

BREACH OF CONDITION CANNOT

setting aside a judgment or granting a new trial, although it may be void as a usurpation of judicial power, does not impair the obligation of contracts within the meaning of the Constitution of the United States, unless the suit is brought to enforce a contract, and the effect is to hinder or preclude the only effectual remedy.1

In Calder v. Bull 2 the question was as to the validity of a law passed by the legislature of Connecticut granting a rehearing in a case where the court of probate had decided against the validity of a will; and it was held that as the statute did not divest the title of either party, it might be objectionable as an exercise of judicial power, but certainly did not contravene the constitutional prohibition of ex post facto laws and laws impairing the obligation of contracts. A like decision was made in Garrison v. The City of New York. A contract which is invalidated by fraud or through the breach of a dependent covenant, falls within a different category, and cannot be legislatively confirmed without impairing the obligation as regards the injured party, who is entitled to elect between a rescission of the agreement, and proceeding under it for damages. A law confirming a conveyance or lease which has become voidable through the non-fulfilment of a condition, or forbidding a reentry for the breach, would obviously be unconstitutional, as taking away a remedy implied in or given expressly by the

contract.

The question what are ex post facto laws and laws impairing the obligation of contracts, was until recently of the more importance because the prohibition of such legislation was the only safeguard afforded by the National Constitution against arbitrary and retroactive legislation by the States. An act of assembly might consequently be in direct conflict with the rule that no one shall be deprived of life, liberty, or property without due process of law, and yet leave the

1 Schenly v. The Commonwealth, 36 Pa. 29; Grim v. The School District, 57 Pa. 433; Evans v. Montgomery, 4 W. & S. 218. 2 3 Dallas, 386.

8 21 Wallace, 196. See post, p. 846.

BE CURED RETROACTIVELY.

745

Supreme Court of the United States powerless to correct the error, and obliged to treat it as a legal if not legitimate exercise of sovereignty. We are thus brought to a consideration of the effect of the Fourteenth Amendment, which is the subject of the ensuing lecture.

LECTURE XXXIV.

The Fifth and Fourteenth Amendments. -Source and Meaning of the Phrase" Due process of law."- Synonymous with the Judicium parium suorum and Lex terræ of Magna Charta. - As embodied in the Amendments it operates as a Restraint on the States and on all the Branches of the Federal Government. The Fifth and Fourteenth Amendments have a wider Scope than the Prohibition of ex post facto Laws and Laws impairing the Obligation of Contracts. What constitutes the Deprivation which they forbid. - It need not consist in an Actual Taking or Imprisonment. - Nature and Scope of the Police Power. It includes Acts which are necessary for the Protection of Health, Order, Liberty, and Property. Belongs generally to the States, and not to Congress. Includes Property employed for Public Purposes. - Regulation of Railway Fares and Charges. - What is necessary, a Judicial Question. — Monopolies. — Destruction of Property to prevent it from falling into Hostile Hands, or the Spread of Fire or Infection. - The Operation of the Police Power during Insurrection or an Invasion as Martial Law. The Fifth and Fourteenth Amendments applicable to Prospective as well as Retroactive Legislation.

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THE only restriction, under the Constitution as originally framed, on the power of the States over contracts and property, in whatever form, was the prohibition of ex post facto laws and laws impairing the obligation of contracts, and it so remained for many years; for although the Fifth Amendment soon afterwards provided that "no person shall be deprived of property without due process of law," it was confined to the General Government, and did not operate as a restraint on the States. It followed that if a State legislature usurped the judicial function, took private property for public use without compensation, enforced an invalid contract,

1 See ante, pp. 510, 532.

THE FOURTEENTH AMENDMENT.

717

or sported with vested rights by any means short of an ex post facto law or law impairing the obligation of contracts, the sufferer might seek redress in the local tribunals, but could not appeal to the national judiciary.1 The grievance was hypothetical rather than real, because the States seldom abused their powers, and justice was evenly administered in the courts; but when the South was prostrated by the Rebellion, the leaders of the dominant party resolved on measures that would tend to keep them in power, and might be necessary for the protection of the colored race. The political adventurers who were raised to office through the operation of the Reconstruction Acts misused their opportunities, and there was reason to apprehend that the whites would regain their ascendency, and might exclude the negroes from the polls or refuse to admit them to the jury-box. The Fourteenth Amendment was accordingly proposed by Congress and ratified by the legislatures of the various States, although it would in all probability have been rejected had it been left to a popular vote. The first section reads as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws." Agreeably to the second section, "When the right to vote. . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." It was soon afterwards provided, by the Fifteenth Amendment, that the right of citizens of the United States to vote should not be denied or abridged by 1 See ante, p. 744.

VOL. II. -7

748

SOURCE OF THE PHRASE

the United States or by any State on account of race, color, or previous condition of servitude.1

The revolution worked by these amendments is a momentous one, and must be judged by consequences which time alone can disclose. The gift of political equality to a people who are not allowed to stand at the same social level is a doubtful boon, which may engender discontent and animosity rather than gratitude. If the colored race achieve distinction at the Bar, on the Bench, in the pulpit, and in the halls of Congress, or amass wealth in trade, they will feel and resent their exclusion from the society of men who may be beneath them in education and intellect, and still more the denial of the connubium, which was a fruitful cause of offence in antiquity. The problem might be solved through intermarriage, which would fuse both races into one; and the statutes which require children of both colors and sexes to be educated in the same schools, tend in that direction. But the difficulty would recur in another form, because there are comparatively few persons of African descent in the Northern States, and if the color-line came to be drawn in the latitude of Washington, sections differing as widely in complexion and descent as in climate and productions might find it impracticable to co-exist under the same government. A similar and still more momentous question would have arisen on the Pacific coast from the immigration of the Chinese, but for the recent legislation of Congress.2

To trace all the bearings of these amendments would unduly enlarge this work; but it is material to inquire what is the deprivation which the Fourteenth Amendment forbids, and what the due process of law which it contemplates. The authorities cited on this head bear equally on the Fifth Amendment, which imposes a like restraint on Congress.

To answer these inquiries we must revert to Magna Charta, as expounded in the Second Institutes by Lord

1 See ante, p. 509.

2 See Chew Hong v. United States, 112 U. S. 536, 577; and ante, pp. 123, 472.