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 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. Laidley 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

28 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.

sequent law of the State, or whether the original liability created by the statute was such that a judgment upon it has not been given due faith and credit in the courts of another State. In every such case, this court must decide for itself the true construction of the statute."

In this case the state court had held, that, under a state statute, the appointment by a probate court of an administrator of the estate of a person, believed dead, but in fact alive, was valid as to him, although he had received no notice thereof. "No judgment," the federal Supreme Court say, "is due process of law, if rendered without jurisdiction in the court or without notice to the party."

As to the correctness of this last statement there can be no doubt, but it will be observed that the Supreme Court did not hold that, because the state law, as interpreted by the state court, permitted this to be done, it was to be held void. Rather, it held that it would not follow the decision of the state court which gave to the state law this effect. In short, the federal court, in effect, said that the state court had, by an erroneous decision of what the state law was, deprived the plaintiff in error of property without due process of law.

It is to be observed, however, that this error upon the part of the state court was one which permitted the state probate court to exercise jurisdiction over a party over whom it had not obtained jurisdiction, and that thus an essential requirement of due process upon its procedural side was disregarded. The case was not, therefore, one in which the federal court had held that a mere error upon the part of a state court, whether by way of a misconstruction of a statute, or the reversal of an earlier construction of a statute, or a novel determination of the common law, operated as a denial to the defeated party of his right to the benefit of the state law at the time his right of action or other property right accrued.

In Chicago, B. & Q. R. Co. v. Chicago,40 however, a case coming to the Supreme Court by writ of error to the Supreme Court of

40 166 U. S. 226; 17 Sup. Ct. Rep. 581; 41 L. ed. 979.

the State of Illinois, this step seems to have been taken. In this case the constitutionality of a state law was not involved, the only question being whether by an award sustained in the state court of one dollar of damages to the plaintiff company as compensation for valuable property taken for a public use, it had been deprived of property without due process of law. The federal court held such to be the case, saying, in words earlier quoted: "In our opinion, a judgment of a state court, even if it be authorized by statute, whereby its private property is taken for the State, or under its direction for public use, without compensation made or secured to the owner, is, under principle and authority, wanting in due process of law required by the Fourteenth Amendment."

The Supreme Court in its opinion admit that the original verdict might not unreasonably be taken as meaning that, in the opinion of the jury, the company's property proposed to be taken was not materially damaged, and that, as in so far as this estimate was one of fact, it was not subject to revision on writ of error. But it was pointed out that the jury had acted under instructions from the Supreme Court of the State, which instructions practically controlled its determination, and these judicial instructions the federal Supreme Court held to have been improper and to have resulted in the taking of property for a public use without due compensation paid or received, and that this was a deprivation of property without due process of law.

Here again, it is plain that, as in Scott v. McNeal, the federal court declined to follow the decision of a state court as to the law applicable to the matter in suit, upon the ground that to do so would permit the deprivation of property without due process of law. And, furthermore, this refusal was based on the principle that a litigant being entitled to the benefit of existing law governing his rights, a mere misinterpretation by a state court of what that law is, and which does not necessarily involve a denial of an essential procedural requirement of due process of law, is a denial of due process such as would support the revisionary power of the Supreme Court on writ of error.