THE SHERMAN ANTI-TRUST LAW middle Tennessee, East Tennessee, etc., unaffected by it? Certainly it would. And why? Because the law would not treat similarly all who were in like circumstances. It would therefore be partial and of course not the law of the land." And the court held that this statute was unconstitutional because it did not oper ate equally upon all. In other words, it was a deprivation "of the equal protection of the law." The significance of this decision is that it was rendered in 1842, twenty-six years before the fourteenth amendment, ex pressly prohibiting a state from denying to any person the equal protection of the law, was adopted, and was therefore entirely independent of the provisions of the four teenth amendment. It is a specific deter mination of a highly respected court that under a constitution guaranteeing the pro tection of the "law of the land" legislation that deprives any person of the equal pro tection of the law, or that is partial in its operation, is unconstitutional and void. That the "law of the land" is synonvmous with "due process of law" is well settled. The Supreme Court of the United States in the case of Dent v. West Virginia (129 U. S. 114), in a unanimous opinion drawn by Mr. Justice Field, certainly one of the ablest and most distinguished members of the court, said: "As we have said on more than one occasion, it may be difficult, if not impossi ble, to give to the term 'due process of law' a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are for bidden. They come to us from the law of England, from which country our juris prudence is to a great extent derived, and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law. They were deemed to be equivalent to the 'law of the land. ' In this country the requirement
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is intended to have a similar effect against legislative power, that is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, liberty or his property. ... It is sufficient for the purposes of this case, to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subject to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters — that is, by process or proceedings adapted to the nature of the case. The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of a citizen." Here, then, we have, first, the court of Tennessee holding that under "the law of the land" no person can be deprived of "the equal protection of the law" and that legislation partial in its character is uncon stitutional; and in the case of Dent v. West Virginia the unanimous opinion of the Supreme Court holding that "due process of law" is synonymous with "the law of the land" and that the law must be general in its operation upon the subject to which it relates. Many other authorities estab lishing this identity of meaning could be cited. Under these authorit'es no legislation can stand the constitutional test that is partial in its operation or that undertakes to deprive any person of his rights in particu lar instances when other persons have accorded to them the full enjoyment of the same rights under similar circum stances. I think it will be conceded that Hon. Thomas M. Cooley was in his time what Blackstone and Kent were in theirs as an authority upon the law, and no text writer is entitled to or has received greater respect from the profession and the courts. In his edition of Story on the Constitution he dis cusses the fourteenth amendment and
