2.

THE CONSTITUTIONAL GUARANTEES OF THE
RIGHT OF PROPERTY AS AFFECTED BY

RECENT DECISIONS.

AN ADDRESS BY HON. GEORGE HOADLY, OF NEW YORK.

(Read Sept. 3, 1889.)

The purpose of this paper is to endeavor to ascertain the extent to which the right of property in this country has been affected by recent decisions of courts of last resort, and how far such right still remains free from legislative control and interference, notwithstanding these decisions. I wish to ascertain, if possible, the exact nature and extent of the assurance the citizen now has, in acquiring property, that its free use cannot be affected by subsequent legislation.

The guarantees of life and liberty, contained in Bills of Rights and other constitutional provisions, must be referred to; but the main purpose in view relates to rights of property only. As to these, I have no new facts to present. My sole purpose is to collate those known to every lawyer so as to see whither they have led us.

The first guarantee of the immunity of property from governmental control known to English-speaking peoples is to be found in the following language of Magna Charta :

No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any ways destroyed, nor will the king pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land.

In the charter of Henry III. this language was slightly varied so that it ran thus:

No freeman shall be taken or imprisoned or disseized of his freehold or his liberties, or of his free customs, etc., etc.

Lord Coke says that the term "law of the land," here used, meant, during the reign of King John, and means,—

due process of law, and the presentment or indictment of good and lawful men, and being brought to answer thereto by due process of law.

The term "law of the land," so said to be synonymous with "due process of law," was not, in England, considered inconsistent with the power of legislative attainder. Such attainder was "due process." The Parliament of England, it must be remembered, has always exercised not only full legislative, but executive and judicial powers.

As a legislative body, it is called "omnipotent." As a judicial body, its decisions are protected by the rule of res adjudicata from collateral attack.

Sir William Blackstone says, 1 Com. 160:

The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, "si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima." It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal; this being the place where that absolute despotic power which must in all governments reside somewhere is intrusted by the Constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown, as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land, as was done in a variety of instances in the reigns of King Henry VIII. and his three children. It can change and create afresh even the Constitution of the kingdom and of Parliament themselves, as was done by the Act of Union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament.

Judge Cooley's annotation upon this passage is the following (1 Bl. Com. 160, note 13):—

By this is meant that Parliament is potent above all other powers in the realm, and whatever it shall assume to do no one else may question. It is not a law-making power merely, but may execute laws through its own agencies, and at its discretion may dispose of rights, and even take away life, as has often been done by means of bills of attainder.

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In his work on Constitutional Limitations," at side page 259, the same learned author says:

A bill of attainder was a legislative conviction for an alleged crime, with judgment of death. Such convictions have not been uncommon under other governments, and the power to pass these bills has been exercised by the Parliament of England at some periods in its history, under the most oppressive and unjustifiable circumstances, greatly aggravated by an arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime.

As attainder involves forfeiture of titles and estates as well as corruption of blood, it follows that, notwithstanding the language of Magna Charta, Parliament was clothed with the power, without judicial action, to deprive citizens of their lives, liberty, and property. This authority was often resorted to.

It is supposed that the power of legislative attainder might have been exercised by the Colonies; but the tendency of opinion in this country, even before the Revolution, was against the exercise of arbitrary powers of any kind.

Judge Cooley says at side page 260: —

For some time before the American Revolution, however, no one had attempted to defend it as a legitimate exercise of power.

It is right, however, to add that exile, even with the consequence of loss of estate, which was one of the results of taking the Tory side in the Revolution, was in great measure selfimposed.

The Revolution involved the establishment of the United States of America as an independent government, by force of arms; and he who took sides with the mother country was properly enough held to have elected the result of his own action, and to have become, by free choice, an alien enemy, and, as such, subject to loss of estate; but, as we shall see presently, even in this case the harsher consequences of his conduct were not always arbitrarily visited upon him, without a hearing and judicial condemnation. The State of Massachusetts, after assent to the Articles of Confederation, and while she still possessed the full power of legislative attainder, provided by law, April 30, 1779, that,—

Every inhabitant of this or any other of the late Colonies or then States, who since the 19th of April, 1775, had withdrawn without the permission of the legislative or executive authority of this or some other of the United States into parts or places under the acknowledged authority or dominion of the King of Great Britain, and had not before the passing of the act returned into

some one of the United States, and been received as a subject thereof, and (if required) taken an oath of allegiance to such States, shall be held, taken, deemed, and adjudged to have freely renounced all civil and political relations to each and every of the United States, and be considered as an alien.

The case of Kilham v. Ward, 2 Mass. 236, arose under this act. It was argued by Joseph Story and Samuel Putnam. The result I quote from the syllabus as follows:

A person who left this country after the commencement of the Revolutionary War, went to, and resided in, the British Territories for several years, and returned to the United States before the treaty of peace, is a citizen, and not an alien. The Absentee Act of April 30, 1779, operates no disqualification upon a person who was not prosecuted and convicted under it.

Concurring opinions were pronounced by Parker, Sewall, and Sedgwick, JJ. The following is an extract from Judge Parker's opinion (p. 264): —

Such acts, in my opinion, cannot operate ipso facto against any persons except those who are expressly named in them, and whose particular cases may therefore be presumed to have undergone an examination by the legislature. Persons who are not so named, who are in the situation of the plaintiff, have a right to claim a trial and hearing before the act shall affect them.

Our fathers, whose legislative leaders were educated English lawyers, first struck at the root of the doctrine of Parliamentary omnipotence by the emphatic language of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

In the case of Dauphin v. Key, McArthur & McKay's Reports, at page 217, Judge Cox, of the Supreme Court of the District of Columbia, after quoting the Declaration of Independence, well

says:

That the right to liberty and the pursuit of happiness includes the right to enjoy and acquire property. These are the rights, then, fundamental, natural, and antedating all constitutions, which this Amendment (the Fifth Amendment to the Federal Constitu

tion) was designed to protect. To deprive of these would be punishment, except when the property is taken in the exercise of the right of eminent domain.

The Massachusetts Constitution of 1780 was drafted by John Adams, Samuel Adams, and James Bowdoin. The preparation of the Bill of Rights was committed to John Adams alone. The first article of the first part, so prepared by Mr. Adams, is in these words:

All men are born free and equal, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

The adoption of this provision of the Massachusetts Constitution subsequently became the basis of a decision by the Supreme Judicial Court of the State, to the effect that it ipso facto abolished slavery, so that we may ascribe to John Adams the honor, as the draughtsman of this provision, of being the pioneer in the work of emancipation by law in the American States. To him and to Mr. Jefferson may be ascribed the immortal honor of establishing the inalienable character of liberty, a principle without which the Thirteenth Amendment to the Federal Constitution, abolishing slavery without compensation to masters, could only be defended as an act of war and conquest.

It will be observed that Mr. Adams and Mr. Jefferson class the right of property and of personal liberty together, Mr. Adams in terms, Mr. Jefferson by embracing the former under the words, "and the pursuit of happiness."

The Constitution of the United States followed, in 1789, with the provision (Article I., § 10):

No State shall... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

The Fifth Amendment was proposed by the First Congress, September 25, 1789, and ratified, before the expiration of a year, by the votes of nine out of the fourteen States, and by Vermont and Virginia afterwards; namely, on November 3 and December 15, 1791, respectively. It contains the following provision: