JURISPRUDENCE AND LEGISLATION 625 



If the words of the Fourteenth Amendment are taken as the most 

 concise expression of fundamental constitutional limitations, there 

 are three main rights which all legislation must respect: liberty, 

 property, and the equal protection of the laws. 



Of these, the respect of vested rights is, and has always been, 

 a principle recognized by all civilized governments, not merely as a 

 rule of policy, but as a rule of law, in such manner that occasional 

 violations, if not due to mere inadvertence, have been felt to be 

 either sovereign acts of necessity, or despotic acts of wrong which 

 the absence of a legal remedy did not convert into legal acts in any 

 other than a purely formal sense. 



What gain has then resulted from the judicial enforcement of this 

 right against the expression of the legislative will? 



We notice, in the first place, that constitutional clauses have not 

 rendered impossible great extra-legal acts of revolutionary reform 

 sweeping away vested rights of property; the abolition of slavery 

 without compensation is conspicuous evidence of this, in mafked 

 contrast to the provision for indemnity by an omnipotent Parlia- 

 ment. 1 Where vested interests run counter to the moral sense of 

 the community, they have found very inadequate protection in the 

 constitutions. Upon the theory that the police power cannot be 

 bargained away, the courts have sanctioned the legislative annulment 

 of liquor licenses and lottery charters that had been paid for; they 

 have refused to recognize an established business as a vested right 

 where it affects the public health, and have allowed retroactive 

 legislation to stand even where the public health was not affected, as 

 in the oleomargarine legislation. In these cases the unvarying prac- 

 tice of European legislation is either to pay compensation or to avoid 

 retrospective operation, and in this country as well as in Europe 

 vested interests must rely upon the legislative sense of equity and 

 good faith, in which, as a general rule, they are not disappointed. 2 



When we turn to the cases in which statutes have been declared 

 unconstitutional as impairing vested rights, two categories are con- 

 spicuous. The one is where, through inadvertence, the legislature 

 in instituting a reform failed to confine the operation of the new law 

 to cases arising in the future. It is best illustrated by laws changing 

 marital, dower, and homestead rights without exempting rights 

 already vested from their operation. In these cases judicial control 

 conferred an undoubted benefit; but the benefit is one which ordin- 

 ary care in legislation renders superfluous. Moreover, expectant 



1 The repudiation of state debts may be left out of account, since claims against 

 states were, by the Eleventh Amendment, deliberately withdrawn from judicial 

 control. 



2 The writer begs leave to refer for fuller exposition and for citation of author- 

 ities upon the subject of vested rights as well as of the doctrines of liberty and 

 equality, to his treatise on the Police Power, 1904, especially chapters 13, 19, 20, 

 23, 25, 31. 



