Page:Harvard Law Review Volume 32.djvu/263

DUE PROCESS OF LAW — TO-DAY 227 War memories were fading fast, greater cities needed more govern- ment than farming townships, increasing wealth tempted taxation, ambitious local improvements demanded it, and heavily indebted transportation lines controlled by distant security holders con- tinued to irritate an increasing population that owed its existence to that which excited their anger. Everywhere was there quick material recovery from the collapse of '73, and everywhere in- creasing inchnation to translate social yearnings into statutes that interfered with that also fast-increasing class who wished to be let alone because they were very well able to take care of themselves imder a static common law; dynamic statute law was unknown and abhorrent. The material was fast preparing, and the state courts were pro- ducing results as variegated as their political surroundings; but only a few preceptors taught their pupils that such increasing divergence in local results would surely lead to renewed and deter- mined efforts to produce sameness if not harmony through the due- process clause in the Amendment still thought of as new. It may be a personal whim, but I think that year, 1883, marks an epoch, for it considered Hurtado v. CaliJorniaP- When that en- terprising state so far abolished grand juries as to prosecute serious felonies by information, it was held due process, with the remarks about Medes and Persians quoted earlier in this address, and the historical school had a quietus. If even in procedural matters our inherited law knew nothing of a state's new method, such method might be wrong, but it was necessary to show therefor some reason other than ancient history. But that was only procedure, a form, and all laymen and most lawyers contemporaneously overlooked the substance that was in it; theories of taxation were as yet simple, whatever their financial weight; the exercise of police power directly upon the citizen was still rare, and in the older states, as late as 1885, such a holding in favor of liberty of occupation and vested rights as that in the tenement-house cigar case ^^ excited small comment; it was the ignorant and arbitrary action of local railway commissions that incited what from our present distance seems a strategic drive against the do-nothing policy of the Granger decisions. a no U. S. S16 (1884). ^ Re Jacobs, 98 N. Y. 98 (1885).