Page:Harvard Law Review Volume 32.djvu/259

223 DUE PROCESS OF LAW — TO-DAY 223 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 satis- fied; 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,^^ 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 prop- erty 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 " Cf. Commonwealth v. Byrne, 20 Grat. (Va.) 165 (1871). ^ 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 constitu- tion, then the legislature is omnipotent."