expressed separately in application to the legislative power of Congress and that of the State legislatures, in the Fifth and the Fourteenth Amendments respectively:

Nor shall any person. . . be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." 1

"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, nor deny any person within its jurisdiction the equal protection of the laws." 2

The omission in the Fourteenth Amendment of the words "nor shall private property be taken for public use without just compensation," is immaterial, for they are included in the phrase "due process of law," in the definition of citizenship, and in the equal protection of the laws."

"A law," said Webster, "in its general acceptation, is a rule prescribed for future conduct, not a legislative interference with future rights.'

4

Does the power of the courts to protect rights exist independently of legislation providing a statutory basis

1 Fifth Amendment.

• Fourteenth Amendment, sec. 1.

This is stated in substance in the quotation from Smyth v. Ames, 169 U. S. 466, 526, infra.

Works, Vol. VI, p. 38.

of decision? Or can the exercise of this power be prevented by enactment of Congress?

The definition of legislative power was given by Webster in his great argument in the Dartmouth College Case: He said:

"It shall not judge by act. It shall not decide by act, but it shall leave all these things to be tried and adjudged by the law of the land. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. Such a construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or to administer the justice of the country."

All things are to be tried and adjudged: the facts are to be tried in the light of reason, and the law is to be applied in accordance with fixed principles of justice. The forces of government which we have inherited are two the political and the legal. Political force is exerted by the people in the direct nomination and election of their representatives; the legal in the courts presided over by judges who direct the deliberations of the jurors drawn by lot from the countryside to try whether the facts of the case are with one side or the other. Political laws do not sway them; reason, with the conflict of emotions out of which it is wrought, alone guides them; and the average

1 4 Wheat. 518.

determination of the twelve average men decides.1 By this method is justice administered and controversy quieted. It is the measure of the constitutional principles which safeguard individuals from the destruction of immutable justice through the exercise of political power. And it is intrenched firmly in the Constitution of the United States with the great principles the administration of which it

secures.

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . ."2 "In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined in any court of the United States than according to the rules of the common law." 3

"In the first case 4 in which an act of a legislature was set aside, it was done upon the ground that while no provision of a written constitution was violated, it was so abhorrent to common decency and equity that no court could sustain it. While a law may not be set aside which violates no provision of a written constitution, it is nearer the truth to say that a law may be set aside which violates no written provision of a constitution.

The theory of the average man in "The Common Law," by Oliver Wendell Holmes, now Justice of the United States Supreme Court.

2 Sixth Amendment.

3 Seventh Amendment.

♦ Trevett v. Weeden, R.I., 1786, and Wales v. Stetson, 2 Mass. 143, and p. supra.

"The theory that laws may be declared void when deemed to be opposed to natural justice and equity, although they do not violate any constitutional provision, has some support in the data of learned judges, but has not been approved, so far as we know, by any authoritative adjudication, and is repudiated by numerous authorities. Indeed, under the broad and liberal interpretation now given to constitutional guaranties, there can be no violation of fundamental rights by legislation which will not fall with the express or implied prohibition and restraints of the Constitution, and it is unnecessary to seek for principles outside the Constitution under which such legislation may be condemned."1

The principles of the common law could not be expressed in a constitution, but all other principles are excluded by the expressions of the Constitution of the United States. The common law of the United States can be expressed in the constitutional decisions of the Supreme Court. That is the last resort of American citizenship, and there must be weighed in the balance of the Fifth Amendment attempts to regulate commerce by statutory enactment.

It is often said that certain rules did not exist at common law, that they were introduced by statute. But it is also true both that certain rules which did not exist at common law in England were afterward made part of the common law by its development in application to new conditions or were declared by statute, and that the common law of the United States has developed principles not known in England, and that

1 Andrews, J., for the court, in Bertholf v. Reilly, 74 N. Y. 509; the same principle is affirmed in People v. Gilson, 109 N. Y. 398; see also comprehensive note in Thayer's Cases on Constitutional Law, 170 ff.

principles of common law have been declared by statute here. It would also be admitted that a statute purporting to declare the common law which was set aside by the Supreme Court of the United States would not be law. The test of common law must always be the courts; the most that the legislature may do, is to declare, subject to application by the courts; the courts, however, may say what the common law is where no statute exists. The following statement does not disprove that the ultimate test is the common law:

"Under the common law, as stated by the English courts, it was the duty of a common carrier to afford equal facilities to all his patrons and to exact only a reasonable charge for his services. But he was not bound to treat all his customers with absolute equality. So long as he transported for every shipper at a reasonable rate, it was held that no one could complain if he chose to carry for some at a lower rate than for others.

"The injustice of the rule of the common law when applied to railroads, and the desirability of equal rates, induced legislation in England at an early date having for its object the prevention of all forms of discrimination. The first statute was contained in the 'Railway Clauses Consolidation Act' of 1845, which prohibited common carriers from charging more to one person than during the same time they charged others for the same kind of service."

"1

1 Noyes, American Railroad Rates. It is not true that discrimination could not be prevented under the English common law. See Smith's Leading Cases, p. 174, and the cases heretofore cited. The doctrine of reasonableness enters into that forbidding discrimination, for a reasonable discrimination is permitted, and a discrimination not made necessary by the conditions of traffic is unreasonable. See as to this, Messenger v. Pennsylvania Railroad Co., 7 Vroom (36 N. J. L.), 407, 8 Vroom (37 N. J. L.), 531.