traditional standard of reasonableness, and the phrase ‘due process of law’ in the constitution, bills of rights, federal and state, was construed as declaratory thereof.36
For more than a century this was so universally received and so completely established in American constitutional law that we may well say the ideal was formulated as a standard for judging of legislative and administrative action. If this construction has a historical background in the contests between the Stuart kings and the courts, Coke’s Second Institute, and the contests between the colonists and the Crown and Parliament, yet it should be noted that history gave us nothing more than a doctrine of holding the ministers and agents of the Crown to the legal limits of the authority the Crown could give them, refusal to give effect to Royal assumption of the powers of Parliament, and assertion of judicial power to refuse to give effect to legislative action beyond the limits of temporal authority or in derogation of common right and reason. The interpretation of the limits imposed upon the federal and state governments in America by constitutional provisions for due process of law, as securing against what the courts regarded as arbitrary and unreasonable exercise of powers, was derived not from the historical materials of Anglo-American public law, but from an ideal of political action in the New World.
In suits to enjoin expulsion from clubs or societies or voluntary associations, where no property rights are involved but expulsion is a serious injury to the personality of the member expelled or threatened with expulsion, both English courts and American courts have spoken of the rules under which expulsion was threatened or proceedings whereby it took place as ‘contrary to natural justice,’ deriving an ideal of justice in such matters from the doctrines and methods of process and hearing in the courts.37 In one case the Master of the Rolls founded his determination on an ideal of the course of action which British officers and gentlemen would pursue.38
Closely related to the political-philosophical natural law is an economic-philosophical type in which the doctrine of laissez faire, as set forth in the classical political economy, is taken as the ideal of an economic order under an American constitution, and constitutional guarantees are taken to be declaratory thereof. In the statement which has had the most influence, Field, J., quoted from Adam Smith’s Wealth of Nations.39 This ideal of the economic order, as a legal ideal to be used as the background of interpreting and applying the provisions of a constitution, was put in almost the very words of the nineteenth-century texts on economics in an advisory opinion by the Supreme Court of Maine in 1871.40 After this statement of the classical economic doctrine the justices said: “The less the state interferes with industry, the less it directs and selects the channels of enterprise, the better. There is no safer rule than to leave to individuals the management of their own affairs. Every individual knows best where to direct his labor, every capitalist where to invest his capital. If it were not so, as a general rule guardians should be appointed, and who would guard the guardians?”41 There are many other examples in the books.42 Applied to legislation it is expressed in the doctrine that statutes in derogation of the common law are to be strictly construed.43 Applied to constitutions it conceives that idealized principles of the traditional law are guaranteed by the bills of rights and are beyond the reach of legislative innovation.44
Two typical cases are the decisions upon the first Married Women’s Acts in the fore part of the nineteenth century and the earlier decisions upon Workmen’s Compensation or Employers’ Liability Acts in the present century. To this day the law as to legal transactions of married women is made difficult by the attitude taken by the courts when these acts first came before them.45 It is significant to compare the way in which the operation of these statutes was held down, as in derogation of the common law, with the willingness of the courts to go beyond the letter of the statutes in giving effect to laws abrogating or altering rules of the feudal property law.46 The ideal of an American society, in the minds of the judges, pictured a simple ownership of land freely transferable, as the chief asset of a pioneer society, relieved of rules appropriate to a society ruled by great landowners, and devolving at death in the same way in which personal property was distributed. On the other hand, it pictured women as in the home, not about in the world entering into all manner of legal transactions. The one set of statutes conformed to the picture and was given more than full effect. The other did not and was held down in operation. Both were in derogation of the common law. But it is significant that the doctrine of strict construction of statutes in derogation of the common law was not applied to the laws which overhauled the law of real property and purged it of archaisms. Married Women’s Acts were no more radical in their departure from the common law than the statutes which made over descent of land. The difference in judicial treatment is not to be explained analytically by the common-law canons of interpretation.
When Married Women’s Acts first came before American courts they were looked at jealously with respect to rights of husbands,47 just as Workmen’s Compensation and Employers’ Liability Acts were at first held unconstitutional for want of due process of law as infringing the liberty and taking away the property of employers. It would have been quite possible to uphold the Married Women’s Acts as adopting the equitable as against the common-law view with respect to the property of married women and so not depriving husbands of substantial vested rights but giving the substantial claims of the wife better security than could be afforded in equity. That seems to have been the theory on which the statutes were drawn, as shown by the title: “An Act for the More Effectual Protection of the Property of Married Women.”48
In the same way the Workmen’s Compensation and Employers’ Liability Acts might have been upheld, as in the event they came to be, on more than one common-law analogy, notably that of liability without fault of the master or principal for the tort of a servant or agent.49 The assertion of the writer of the opinion in the New York case that “when our Constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another”50 overlooks well-established common law liabilities without fault which had always obtained in New York: An owner of cattle was bound ‘at his peril’ to keep them from trespassing;51 an infant too young to have fault imputed to him was liable in tort;52 a lunatic, who would not be responsible criminally was liable for tort;53 one who carried on blasting operations was held for resulting damages without regard to fault.54 The proposition that there can be no liability without fault was not an established common-law principle. It rested on an ideal of what the law of torts should be, drawn from Continental metaphysical jurisprudence, by which the analytical and historical jurists of the nineteenth century were seeking to overhaul the law.55 In the case of the laws as to inheritance on the one hand and the Married Women’s Acts on the other, the courts chose different starting points guided by an ideal of the legal and social order with which the statutes were felt to be in or out of accord.
In contrast to the ethical ideal which derived from eighteenth-century natural law, and the political ideal, which was closely connected with the historical and metaphysical thought of nineteenth-century jurists, a picture of law as a body of logically interdependent precepts, authoritatively established and self-sufficient, without the need of ideals, had much vogue in the last century. It goes back to the medieval conception of the Corpus Iuris as a complete and authoritative body of rules, to be interpreted and applied by a logical process and admitting only of development by an authoritative technique. From this standpoint the nineteenth-century analytical jurists took the science of law to be a mere comparative anatomy of developed systems of legal precepts. They rigidly excluded all questions of what ought to be. Any ethical consideration was irrelevant. Jurist and lawyer and judge were concerned only with the ‘pure fact of law.’56 It was enough to dispose of sociological jurisprudence to say that it was (in Bentham’s phrase) deontological. It had to do with what ought to be, and what ought to be was not law.57 Law was an aggregate of laws, logically interdependent and self-sufficient for yielding grounds of decision for any case when logically manipulated. From the latter part of the nineteenth century this conception of the science of law and its ideal of the legal order have been under vigorous attack from many sides. We see clearly enough today that the analytical jurist’s logically interdependent body of precepts, conforming to a universal plan and