Upon the other hand, however, the general purpose of written constitutions in the United States, if not originally in all cases, has come to be quite different from that of Magna Charta. In this country our written instruments of government and their accompanying Bills of Rights have for their aim the delimitation of the powers of all the departments of government, the legislative as well as the executive and judicial, and it is, therefore, quite proper to hold that the requirement of due process of law should not only prohibit executive and judicial officers from proceeding against the individual, except in conformity with the procedural requirements which have been mentioned in the earlier part of the chapter, but also operate to nullify legislative acts which provide for the taking of private property without compensation, or life or liberty without cause, or, in general, for executive or judicial action against the individual of an arbitrary or clearly unjust and oppressive character.

29 See University of Penn. Law Review (LVIII: 191), article "The Due Process Clauses and the Substance of Individual Rights," and American Law Review (XLIII: 926) for arguments that due process should have been restricted in its application to matters of procedure.

30 The very lew dicta to the contrary, as for example, that of Coke in Bonham's Case (8 Coke, 115) are without weight.

In 1869 in Hepburn v. Griswold31 the Supreme Court took definitely the view that Congress was restrained by the due process clause of the Fifth Amendment.

With reference to the inhibitions of the Fourteenth Amendment there was never any doubt that they restrained the legislative power of the States. In Ex parte Virginia32 it was held that these inhibitions might be violated by a state court which, though not directed so to do by a state statute, should in fact in its .procedure or by its orders impair the rights sought to be protected; and the flat doctrine is laid down that all the departments of the state governments are restrained by the Fourteenth Amendment. The court say: "A State acts by its legislature, and its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, . . . shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position, under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition."

In Hurtado v. California,33 decided in 1884, the argument that the provisions of our Bills of Rights restrain the legislature, is given in full, the distinction between English and American constitutional doctrines in this respect being emphasized.34

31 8 Wall. 603; 19 L. ed. 513.

32 100 U. S. 339; 25 L. ed. 676.

33 110 U. S. 516; 4 Sup. Ct. Rep. III; 28 L. ed. 232.

From what has gone before it is apparent that a court by the decision which it renders may deny due process of law to the individual either by applying (instead of declaring void) a law which deprives a suitor of a procedural or substantive right, or by so construing a law so as to give to it this effect. In either of these cases a constitutional right is involved upon which to base an appeal from the state courts to the federal Supreme Court.

34 The court say: "The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary Acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord Coke in Bonham's Case (8 Coke, 115, 118a) the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty, against legislative tyranny was the power of a free public opinion represented by the Commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. . . . It is not every Act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but. in the language of Mr. Webster, in his familiar definition, 'The general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules Which govern society,' and thus excluding, as not due process of law, Acts of attainder, Bills of pains and penalties. Acts of confiscation, Acts reversing judgments and Acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude."

It is interesting to note that the tendency at first was to restrict the in-hibitions of the Fourteenth Amendment to the legislatures of the States, thus reversing the English practice which restricted the provisions of Magna Charta and the Bill of Rights to the executive and the courts; and that it is only since Ex parte Virginia (100 U. S. 339; 25 L. ed. 676) that it has been clearly held that the courts and the executive agent of the States, may by arbitrary action upon their part deprive persons of life, liberty and property without due process of law or deny to them the equal protection of the law.