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Affectation with Public Interest, 39 Yale Law Journal 1089 (1930)


If, towards the close of a life which ended in 1676, Sir Matthew Hale scribbled into a treatise on the ports of the sea the words "affected with a public interest" with an intent of making a great contribution to American constitutional law, the records make no mention of it. But whatever his meaning and purpose, events have conspired to accord to Britain's Chief Justice of the Restoration period a share in the authorship of the supreme law of the land; for a phrase which hails from a Merry England of a quarter-millenium ago has come to be the "established test by which the legislative power to fix the prices of commodities, use of property, and services, must be measured." It is, accordingly, of some interest to inquire into the coming of this ancient phrase into the constitution of the new republic, its vicissitudes at the hands of the bench, the authority which for the moment it enjoys, and the security of its current position.

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