Page:Harvard Law Review Volume 32.djvu/258

222 HARVARD LAW REVIEW police, taxation, procedural regulation, and eminent domain, and in the order named, while as incident to the police power, or included within it, regulation of activities affected with a public use looms large, and classification for benefits or burdens is so large a part of or preparation for taxation or regulation, that at times one doubts the mathematical axiom that the whole is greater than any of its parts. Thus the modern study of due process almost becomes an examination of legislative activities de rebus omnibus, — et quibusdam aliis. Why without any change of language, and no variation in pro- cedure making our lawyer grandfathers, utter strangers in our courts, — Utigation over the clause is a growth of almost exactly two generations as usually counted, — is a fascinating study. To me the reasons seem to have no very close relation to the law or its professors; but to rest on the social and material changes which have within the years indicated transformed this country from an agricultural to a manufacturing commimity, and its population so largely from rural to urban. One short extract from one book illustrates where the bar in general stood as to the scope and meaning of due process of law, more than fifty years after independence. The first edition of Story on the Constitution appeared in 1833, and the sole reference to the Fifth Amendment is this: "This clause in effect affirms the right of trial according to the process and proceedings of the common law." Simple and summary, is it not? Story's was an encyclopaedic mind, but with no tinge of prophecy; that sentence discloses the professional view that read the words only as affect- ing courts, administering interpersonal relations, — perhaps with special reference to the criminal side. A dozen years later, it could be said in South Carolina, that "the law of the land" meant "the common law and statute law existing in this state at the adoption of our constitution." ^ About equally simple, I think; but the idea of a body of law, fixed as to kind at least by constitutional congealment, is perhaps discernible. A few more years passed, and in 1855 the Supreme Court in Murray v. Hoboken Land Co}^ considered the legality of the ' State V. Simmons, 2 Spears (S. C), 761, 767 (1844). " 18 How. (U. S.) 272, 276 (185s).