§ 468. Due Process and Substantive Rights.

In the discussion thus far had as to the meaning of due process, only its procedural or adjective side has been emphasized. We turn now to examine in how far substantive rights are secured to the individual by the process clauses.29

§ 469. Per Legem Terrae.

It is quite plain that the phrase due process of law is historically related to and derived from the phrase "per legem terrae" of Magna Charta, and that the provisions of that fundamental document were intended, and have since been treated as a limitation not on the legislature but upon the executive and the courts. The provision per legem terrae thus means in the English law that the individaul shall not be deprived of his life, liberty or property by arbitrary acts, unsupported by existing law, whether common or statutory, by the King or his courts. But that the law is subject to change at the will of Parliament is not and has not been doubted.30 The property rights of the individual were thus at the time of the adoption of our Constitution, and have since remained, subject to the plenary legislative power of Parliament.

There is thus some historical ground for holding that, in the absence of explicit provision to the contrary, the due process clauses of the federal Constitution were not intended as a restraint, the one upon Congress, and the other upon the state legislatures.

§ 470. Distinction between English and American Constitutional Doctrines.

Upon the other hand, however, the general purpose of written constitutions in the United States, if not originally in all cases, has come to be quite different from that of Magna Charta.

In

29 See University of Penn. Law Review (LVIII: 191), article "The Due Process Clauses and the Substance of Individual Rights," and American Law Review (XLIII: 926) for arguments that due process should have been restricted in its application to matters of procedure.

30 The very few dicta to the contrary, as for example, that of Coke in Bonham's Case (8 Coke, 115) are without weight.

this country our written instruments of government and their accompanying Bills of Rights have for their aim the delimitation of the powers of all the departments of government, the legislative as well as the executive and judicial, and it is, there fore, quite proper to hold that the requirement of due process of law should not only prohibit executive and judicial officers from proceeding against the individual, except in conformity with the procedural requirements which have been mentioned in the earlier part of the chapter, but also operate to nullify legislative acts which provide for the taking of private property without compensation, or life or liberty without cause, or, in general, for executive or judicial action against the individual of an arbitrary or clearly unjust and oppressive character.

In 1869 in Hepburn v. Griswold 31 the Supreme Court took definitely the view that Congress was restrained by the due process clause of the Fifth Amendment.

With reference to the inhibitions of the Fourteenth Amendment there was never any doubt that they restrained the legislative power of the States. In Ex parte Virginia32 it was held that these inhibitions might be violated by a state court which, though not directed so to do by a state statute, should in fact in its procedure or by its orders impair the rights sought to be protected; and the flat doctrine is laid down that all the departments of the state governments are restrained by the Fourteenth Amendment. The court say: "A State acts by its legislature, and its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position, under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition."

In Hurtado v. California,33 decided in 1884, the argument that

31 8 Wall. 603; 19 L. ed. 513.

32 100 U. S. 339; 25 L. ed. 676.

33 110 U. S. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232.

the provisions of our Bills of Rights restrain the legislature, is given in full, the distinction between English and American constitutional doctrines in this respect being emphasized.34

From what has gone before it is apparent that a court by the decision which it renders may deny due process of law to the individual either by applying (instead of declaring void) a law 34 The court say: "The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary Acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord Coke in Bonham's Case (8 Coke, 115, 118a) the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty, against legislative tyranny was the power of a free public opinion represented by the Commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. . . . It is not every Act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'The general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law, Acts of attainder, Bills of pains and penalties, Acts of confiscation, Acts reversing judgments and Acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude."

It is interesting to note that the tendency at first was to restrict the inhibitions of the Fourteenth Amendment to the legislatures of the States, thus reversing the English practice which restricted the provisions of Magna Charta and the Bill of Rights to the executive and the courts; and that it is only since Ex parte Virginia (100 U. S. 339; 25 L. ed. 676) that it has been clearly held that the courts and the executive agent of the States, may by arbitrary action upon their part deprive persons of life, liberty and property without due process of law or deny to them the equal protection of the law.

which deprives a suitor of a procedural or substantive right, or by so construing a law so as to give to it this effect. In either of these cases a constitutional right is involved upon which to base an appeal from the state courts to the federal Supreme Court.

§ 471. Doctrine Adopted that Due Process Includes Substantive Rights.

In C., B. & Q. R. R. Co. v. Chicago35 the court say in language leaving no room for doubt: "In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment."

When, however, the complaint is merely that a state court has erroneously decided the facts of a case, all of the proceedings before it being regular and sufficient, no claim of a denial of due process can be set up. In Central Land Co. v. Laidley36 the court state this doctrine, saying: "When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of his property without due process of law, within the Fourteenth Amendment of the Constitution of the United States." 37

§ 472. Erroneous Interpretation of the Law.

It is, however, possibly arguable, that, notwithstanding the doctrine just stated, a claim that due process of law has been denied may be set up when a court has refused to the defeated litigant the benefit of the existing law controlling the matter in

35 166 U. S. 226; 17 Sup. Ct. Rep. 581; 41 L. ed. 979. 36 159 U. S. 103; 16 Sup. Ct. Rep. 80; 40 L. ed. 91.

37 Citing Walker v. Sauvinet, 92 U. S. 90; 23 L. ed. 678; Head v. Amoskeag Mfg. Co., 113 U. S. 9; 5 Sup. Ct. Rep. 441; 28 L. ed. 889; Morley v. Lake Shore, etc., R. Co., 146 U. S. 162; 13 Sup. Ct. Rep. 54; 36 L. ed. 925; Bergemann v. Backer, 157 U. S. 655; 15 Sup. Ct. Rep. 727; 39 L. ed. 845.

suit by giving a clearly erroneous interpretation either to a statute, or to the common law.

In support of this doctrine the argument is that the litigant has the right to the benefit of the existing law defining and providing for the protection of the rights involved; and that while it be true that, generally speaking, it is the peculiar province of the state courts to determine what that law is, yet, when they give an interpretation to a statute which is clearly unreasonable, or stronger still, when they reverse a prior and well-established interpretation, the federal Supreme Court may assume jurisdiction on error and hold that due process of law has been denied. In other words, it may be argued that just as a legislative act is void when, to sustain its constitutionality, is required a construction of the Constitution under which it is enacted which is beyond reason, so here, the federal court will reverse the decision of a state court based upon an interpretation of law which, in the opinion of the federal court, is beyond reason, or clearly in amendment of a previously established rule.

It is to be admitted that the Supreme Court has repeatedly repudiated the doctrine as above set forth; but upon the other hand, there are several cases in which the decision reached, and even the language employed has seemed to imply a recognition of it.38

In Scott v. McNeal,39 a case coming to the Supreme Court by writ of error to review the judgment of the highest court of a State upon the ground that the judgment therein denied due process of law to the plaintiff in error, the federal court held that it was "no more bound by that [the state] court's construction of a statute of the Territory or of the State, when the question is whether the statute provided for the notice required to constitute due process of law, than when the question is whether the statute created a contract which has been impaired by a sub

38 Upon this point see the valuable article by Mr. Henry Schofield entitled "The Supreme Court of the United States and the Enforcement of State Law by State Courts," in the Illinois Law Review, III, 195 (Nov. 1908).

39 154 U. S. 34; 14 Sup. Ct. Rep. 1108; 38 L. ed. 896.