advance by abstract reasoning.
Hence, as each litigation arose, the judges could follow no rule but the
rule of common sense, and the Police Power, translated into plain
English, presently came to signify whatever, at the moment, the judges
happened to think reasonable. Consequently, they began guessing at the
drift of public opinion, as it percolated to them through the medium of
their education and prejudices. Sometimes they guessed right and
sometimes wrong, and when they guessed wrong they were cast aside, as
appeared dramatically enough in the temperance agitation.

Up to about the middle of the last century the lawfulness of the liquor
business had been unquestioned in the United States, and money had been
invested as freely in it as in any other legitimate enterprise; but, as
the temperance agitation swept over the country, in obedience to the
impulsion given by science to the study of hygiene, dealing in liquor
came to be condemned as a crime. Presently legislatures began to pass
statutes to confiscate, more or less completely, this kind of property,
and sufferers brought their cases before the courts to have the
constitutionality of the acts tested, under the provisions which existed
in all state constitutions, forbidding the taking, by the public, of
private property without compensation, or without due process of law.
Such a provision existed hi the constitution of the State of New York,
adopted in 1846, and it was to invoke the protection of this clause that
one Wynehamer, who had been indicted in 1855, carried his case to the
Court of Appeals in the year 1856. In that cause Mr. Justice Comstock,
who was one of the ablest jurists New York ever produced, gave an
opinion which is a model of judicial' reasoning. He showed conclusively
the absurdity of constitutional restrictions, if due process of law may
be held to mean the enactment of the very statute drawn to work
confiscation.[23] This decision, which represented the profoundest
convictions of men of the calibre of Comstock and Denio, deserves to
rank with Marshall's effort in the Dartmouth College Case. In both
instances the tribunal exerted itself to carry out Hamilton's principle
of judicial duty by exercising its _judgment_ and not its _will_. In
other words, the judges propounded a general rule and then simply
determined whether the set of facts presented to them fell within that
rule. They resolutely declined to legislate by entering upon a
considera