Page:Harvard Law Review Volume 32.djvu/260

224 224 HARVARD LAW REVIEW of the Fourteenth Amendment bench and bar had given the word meanings such as the right to use one's faculties in all lawful ways, to Uve and work where one wishes, to pursue any lawful calling, trade or profession, and acquire and retain the gains therefrom. Very early in Fourteenth Amendment discussion the Supreme Court remarked ^^ that the provision "furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." The words seemed to accept a meaning for liberty (worked out in New York quite as thoroughly as elsewhere), for which no historical warrant as of the year 1789 can be found," but concerning which it is now as idle to cavil or complain as over Coke's historical ac- curacy or lack of it, in respect of Magna Charta. To sum the assertions thus far ventured : — the generation that fought the Civil War usually identified due process with conamon- law procedure; they knew vested rights in property, had a generous definition of liberty in many new and quite American aspects, never doubted the fullest liberty to contract, and since the national government then scarcely touched the private citizen in days of peace, had given the Fifth Amendment very scant consideration. It was that generation which, politically intent on the negro, and with nothing else in mind, worked out the Fourteenth Amend- ment, — which was over five years old before the Slaughter House cases ^^ opened, before a very able court, the still continuing conflict between private desire and public authority. II Case law resembles a patch- work quilt; it is strong and service- able, but to see the pattern you must have distance, while the makers always look at the last patch when putting on a new one; so the latest decision seems most important, and the Slaughter House cases have become something practitioners cite but do not read. This excuses statement of the facts that made a curtain raiser " United States v. Cruikshank, 92 U. S. 542 (1875). " 4 Harv. L. Rev. 365. » 16 WaU. (U. S.) 36, 76 (1872).