Missouri, declaring railroad companies liable absolutely for fires caused by their engines, was upheld,—the Court said: "The right of the citizen not to have his property burned without compensation is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the railroad corporations in taking precautions against the escape of fire from their engines might not afford sufficient protection to the owners of property in the neighborhood of railroads. When both parties are equally faultless, the legislature may properly consider it just that the duty of insuring private property against loss or injury caused by the use of dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments." To the same effect is Jones v. Brim, 165 U. S. 180,-a case in which a Utah statute, providing that persons driving stock along highways should be liable for damages done by the animals in destroying the banks of, or in rolling rocks into, the highway,—was upheld against the objection that it denied due process. The Court said: "In effect the legislature. declared that the passage of droves or herds of animals over a hillside highway was so likely, if great precautions, were not observed, to result in damage to the road, that where this damage followed such driving, there ought to be no controversy over the existence or nonexistence of negligence, but there should be an absolute legal presumption to that effect resulting from the fact of having driven the herd. It was obviously the province of the state legislature to provide the nature and extent of the legal presumption to be deduced from a given state of facts, and the creation by law of such presumptions is, after all, but an illustration of the power to classify. As the statute clearly specifies the condition under which the presumption of negligence

arises and provides for the ascertainment of liability by judicial proceedings, there is no foundation for the assertion that the enforcement of such ascertained liability constitutes a taking of property without due process of law."

CHAPTER XI

PROPERTY RIGHTS AS PROTECTED BY DUE PROCESS-VESTED

RIGHTS AND THEIR IMPAIRMENT

§ 216. Chapter 39 of Magna Carta and its amendments. The protection extended by due process of law to the great trilogy of rights known as "life, liberty, and property" has as its historical corner stone the famous chapter 39 of Magna Carta which provided that "No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any wise molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land." An additional protection was given to property rights when that provision was widened in the reissues of the Great Charter by the insertion in the second (2 Hen. III, 1217) and third (9 Hen. III, 1225) of the words, "of his freehold or liberties, or free customs (de libero tenemento suo vel libertatibus, vel liberis consuetudinibus suis)." After that amendment the chapter, in its final form, provided that "No freeman shall be arrested, or detained in prison, or deprived of his freehold, or liberties, or free customs, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land."

§ 217. Growth in England of the idea of vested rights. Emphasis has been given heretofore to the fact that the baronial leaders of the English parliament who extorted the Great Charter from King John were intent upon imposing limitations in favor of "life, liberty and prop

erty" upon the crown and not upon the legislature. The idea of imposing constitutional limitations in favor of the rights of "life, liberty and property" upon an omnipotent parliament involved a contradiction in terms. And yet while in theory the power of parliament is and always has been admitted to make any modifications in such rights as its wisdom or caprice might suggest, the belief has steadily developed that there are, under what is called "the law of the land," certain fundamental rights, involving substance as contrasted with form, which even an omnipotent parliament should not disturb arbitrarily. That vague conception of a "vested right," as against the English parliament, has been thus vaguely expressed by Austin (Jur. 5 ed., 856-857) who says: "When it is said that the legislature ought not to deprive persons of the 'vested rights,' all that is meant is this: that the rights styled 'vested' are sacred or inviolable, or are such as the parties ought not to be deprived of by the legislature. Like a thousand other propositions, which sound speciously to the ear, it is either purely identical and tells us nothing, or begs the question in issue." Again he says (857) "If it [the claim that parliament ought not to deprive subjects of their vested rights] means that there are no cases in which the rights of parties are not to yield to questions of expediency, the proposition is manifestly false, and conflicts with the practice of every legislature on earth. In every case, for example, in which a road or canal is run by authority of parliament through the land of private persons, the rights, or vested rights, of the private owners are practically abolished by the legislature. They are compelled to yield up a portion of their rights of exclusion, and to receive compensation agreeably to the provisions of the act." Thus the principle has ever been recognized by English jurists that the enjoyment by the individual of the rights of life, liberty, and property, even in their most perfect form, is always subject to the sovereign powers of the state, which may be asserted through the power of eminent domain,

the taxing power and the police power, whenever the public good may require it. At the same time the emphatic condemnation by the Roman jurists of all retroactive laws, well expressed in the maxim of Papinian (Nemo potest mutare consilium suum in alterius injuriam, Dig. 50, 17, 75), was recognized as early as the thirteenth century by Bracton (lib. 4, § 228 (nova constitutio futuris formam imponere debet et non praeteritis) was repeated at a later day by Coke (2 Inst. 292) and Bacon (De Aug. Sci. lib., 8, c. 3, aph. 47-51), "and applied by the English courts in the only way possible under an omnipotent parliament; namely, as a rule of construction to the effect that a statute will never be held to divest vested rights if it is capable of any other meaning." McGhee, pp. 153-4, quoting Gilmore v. Shuter, 1 Vent. 330, 2 Show. 16, 2 Lev. 227, T. Jones 108, 2 Mod. 310; Courch v. Jeffries, 4 Burr. 2460.

§ 218. Development of idea of "vested rights" advanced by constitutional limitations on legislative power. Nothing did more to develop the very imperfect conception of a "vested right" as it existed in the mother country at the time of the American Revolution than the American invention of constitutional limitations on legislative power, evolved out of the process through which the English colonies on our Atlantic seaboard were transformed into sovereign states. In that way a long step forward was taken by the demonstration that the legislative as well as the executive power of a state can be restrained by constitutional limitations, any violation of which can be annulled by the judgment of any court. In another work (Jurisdiction and Procedure of the Supreme Court of the United States, pp. 2-5) the author has attempted to explain in some detail the origin of the American system of constitutional limitations on state powers, executive and legislative, as illustrated by the earlier decisions of the state courts. He then said: "In speaking of the case of Trevett v. Wheeden, decided in