VI. Supreme Court Jurisprudence Recognized the Due Process Rights of Unborn Persons Prior to Roe.

It was, though, very stupid of Quintus Mucius to include among the instances of possession those cases in which we possess something by magisterial order in order to preserve it, because the magistrate who sends a creditor into possession to preserve the thing, or because an undertaking has not been given in respect of threatened damage or in the interests of an unborn child, does not grant possession proper but only the guarding and custody of the thing. (205)

--Digest of Justinian

Due process seeks to ensure that each person is given a fair opportunity to have his side of an issue heard in a court of law before he is deprived of life, liberty or property. Nearly ninety years before Roe, the Court held that unborn persons were entitled to protection under the Due Process Clause in the case of McArthur v. Scott. (206) In McArthur, the Court held that the inheritance and property rights of the unborn descendants of General Duncan McArthur were violated by a state court case in which the unborn descendants did not have adequate representation, "[N]o provision was made for the preservation of the rights of after-born grandchildren." (207)

McArthur v. Scott originated in a diversity action brought in the Southern District of Ohio, "This is a bill in equity by the children of Allen C. McArthur, a son of General Duncan McArthur, to enforce a trust and establish a title in fee in lands in Ohio under the will of their grandfather." (208) Duncan McArthur "died on May 12, 1839, leaving an instrument in writing, dated October 30, 1833, purporting to be duly executed and attested as his last will." (209) His will directed that some land he held be conveyed "in trust for the benefit of his five surviving children and their heirs." (210)

Shortly after Duncan McArthur's death, on July 8, 1839, Allen C. McArthur had filed a bill contesting the will; per the Statement of Facts:

That bill "further insists and states that said instrument is void and of none effect, because it is wholly impracticable and cannot be carried into effect ... because it tends to establish perpetuities, and does establish such perpetuities, which are contrary to the genius of our institutions and the spirit of our people and their laws, and indeed contrary to the common law." (211) All the children and living grandchildren were parties to the suit--the grandchildren had one of their parents appointed as guardian ad litem. On October 28th of the same year, a jury trial held the instrument in question was "not the valid last will and testament of the said Duncan McArthur, deceased." (212)

A subsequent administration of Duncan McArthur's estate partitioned the real estate among his heirs who variously occupied, improved, and sold parcels of the land. So, the issue seemed to be settled, at least "for the period of thirty-four years and eleven months" (213) until Allen C. McArthur's youngest son and namesake brought his suit to enforce his grandfather's testamentary trust in the Circuit Court for the Southern District of Ohio. Allen C. McArthur was the youngest grandchild of Duncan McArthur and arrived at age twenty-one years on March 4, 1875; his four sisters and their husbands joined him in the suit. The plaintiffs were all citizens of Illinois or Kentucky, and the defendants were all citizens of Ohio. After hearing the arguments from both sides, the Circuit Court dismissed the bill and the plaintiffs appealed to the Supreme Court.

Justice Horace Gray (the half-brother of John Chipman Gray) provided this distillation of the facts:

The principal provisions of the will of Duncan McArthur, material to the decision of this case, are as follows: By the fifteenth clause, he directs that his lands ... shall be leased or rented by his executors "until the youngest or last grandchild which I now have, or may hereafter have," the child of either of his five surviving children, Allen C., James McD., Effie, Eliza Ann or Mary, "who may live to be twenty-one years of age, shall arrive at that age." By the sixteenth clause, he directs that, until that time, the income of these lands, and the dividends of all stocks held by him or purchased by his executors, shall be by them annually divided equally among the five children aforesaid, or the issue of any child dying, and among the grandchildren also as they successively come of age. The seventeenth clause provides as follows: "It is my further will and direction that after the decease of all my children now living, and when and as soon as the youngest or last grandchild ... shall arrive at the age of twenty-one years, all my lands" in question "shall be inherited and equally divided between my grand children per capita ... but it is to be understood to be my will and direction that if any grandchild aforesaid shall have died before said final division is made, leaving a child or children lawfully begotten, such child or children shall take and receive per stirpes (to be equally divided between them) the share of my said estate. (214) Then, Justice Gray summed up the...