From such a provision for the protection of the fundamental rights of person and property it is a far cry to the conclusion that the people cannot remedy the injustice which inflicts all the consequences of accidents which occur in extrahazardous trades upon the individual who, in practicing that trade, happens to be subjected to the peril. Common sense, as well as frequent decisions of the courts, sustain Daniel Webster's definition of the scope of the Constitutional provision embodying in our law this provision of the Great Charter: "The meaning is that every citizen shall hold his life, liberty, and property and immunities under the protection of general rules which govern society." That society can never make new rules for the better protection of life, liberty, and property and immunities, is a doctrine as repugnant to reason as it is to social progress. It is equally repugnant to the principle of interpretation laid down by the Supreme Court of the United States: "The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors."[77][!--Note--] And it seems never even to have occurred to English law makers that the Workman's Compensation Act is inconsistent with this provision of their Great Charter—a charter which is as much a part of the British constitution as the Fifth and Tenth Amendments are of ours. In the English Constitution, as in the American, the principle is carefully defined in writing. The only difference is that in England the Parliament is the final judge of its meaning; in the United States that final judge is the Supreme Court of the United States.
At least it ought to be. But the New York Court of Appeals does not allow that it is the final authority. In this particular case it is not, for no appeal lies by the plaintiff in this case from the state to the national court. But an appeal does lie by the public. The Outlook takes such an appeal. And it declares without hesitation that the decision of the New York Court of Appeals is in conflict, not only with the trend of judicial decisions in that Court, but also with its very explicit statement of the fundamental principles to be applied in interpreting the Constitution.
We have already noted the fact that maritime law regards a seaman as a co-adventurer with the shipowner, and therefore makes the ship liable for his care, keep, and cure in case any accident occurs to him, even though it be produced by his own fault. We now add that the Supreme Court of the United States has decided that such a law does not take the shipowner's property without due process of law. That, says the Court of Appeals, is different, for "the contract and services of seamen are exceptional in character ... When he is sick or injured he is entitled to be cared for at the expense of the ship, and for the failure of the master to perform his duty in this regard the ship or the owner is liable." No doubt there is a difference between a seaman on a ship and a factory hand in a factory. Very probably that difference ought to weigh with the representatives of the people in determining what difference there should be in their respective treatment. But if making a ship liable for accidents happening to a seaman does not take the shipowner's property without due process of law, then rendering a factory liable for accidents happening to a factory hand does not lake the factory owner's property without due process of law. The Constitution of the United States is precisely the same on sea as on land; but to the Constitution of the United Slates the Court of Appeals gives one meaning on shipboard and another meaning in the town.
The right of the legislature to impose new responsibilities upon property is not confined by the United States Supreme Court to the sea. It is equally sustained upon the land. The State of Oklahoma provided for an assessment on all banks in the State in order to create a fund for the purpose of guaranteeing the depositors in all banks in the State. The Noble State Bank brought suit against the State to prevent it from collecting this assessment, on the ground that it was taking property without due process of law. The Supreme Court, without a dissenting opinion, held that the act was constitutional, on two grounds: first, because "it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose is a private use"; and, second, because "it may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." A similar case coming before the Court from the State of Kansas was decided with the same unanimity by the Court at the same time.[78][!--Note--]
This definition of Constitutional law by the unanimous opinion of the Supreme Court of the United Slates, if accepted, clearly determines the constitutionality of the Workman's Compensation Act. That this Act "is sanctioned by usage and held by the prevailing morality and strong and preponderant opinion to be greatly and immediately necessary to the public welfare" is proved by the fact that it is demanded alike by employer and employee, that it has been approved by the general public, that it is apparently regarded by the Court of Appeals itself as a reform much to be desired, and that it has been adopted by every civilized country in Europe except Switzerland. The New York Court of Appeals can find only one escape from this declaration of principle by the highest tribunal in the land, in these two cases, namely, a repudiation of the authority of that tribunal in these cases: "We cannot recognize them as controlling our construction of our Constitution."
In this review of the decision of the New York Court of Appeals we have passed by without comment some extraordinary statements which should not be passed by in any complete review—the statement that "practically all of these [European] countries are so-called constitutional monarchies in which, as in England, there is no written constitution," whereas, in fact, practically all of the European nations have written constitutions; and the statement that the Workman's Compensation Act "does nothing to conserve the health, safety, or morals of the employee," whereas, in fact, it is aimed and purposed to accomplish all three results, and was urged in the English House of Lords by Lord Salisbury specifically on the ground that "to my mind the great attraction of this bill is that I believe it will turn out a great machinery for the saving of human life."
But we have deliberately neglected all minor details in an endeavor to put before our lay readers a true interpretation, and what we hope they will generally believe to be a just criticism, of this decision of the highest court of the Empire State. In that decision, in our opinion, the Court has disregarded all considerations of social justice and public policy, has set itself against the conscience and judgment of the civilized world, and in its forced interpretation of the Constitution has disregarded alike the history of the Constitution's origin and of its judicial interpretation by the highest court in the land.