Our Benevolent Feudalism

by William J. Ghent

“Law,” wrote Sir Edward Coke, “is the perfection of reason.” This may be true; but, if so, it tends to throw mankind over to the position of the Catholics, that the reason itself needs considerable perfecting. This is not only the disposition of the lay mind, but, evidently, also of the supreme judicial mind; for a large part of the higher judicial activity during recent years has been expended in declaring null and void laws passed by two houses of the people’s representatives and signed by an elected Governor or President. Mr. Stimson, in his summary of labor legislation for the years 1887-97, found that only 114 out of the 1639 laws passed had been declared unconstitutional. But these 114 comprised examples from 19 out of the 35 classes of legislation passed, and must therefore have reacted upon a very considerable number of the remainder. It is a coincidence which has been noted before, and need not be specially insisted upon here, that the overwhelming majority of laws which fail to reach the constitutional standards set by our judges are those intended to safeguard the interests of the industrially subordinate and to set some limitation to the powers of the industrially mighty.

The judicial mind, however, affects to know no difference between high and low, between weak and strong; and thus its decisions, ignoring actual conditions, tend more and more to strengthen the powers of one class and to weaken the powers of another. “Liberty” is the shibboleth; the citizen must be free to act as he wills. Somewhat curiously, though, liberty of speech, press, and assemblage is not so strenuously insisted upon; and, indeed, by injunctions and other judicial determinations is at times rather severely limited: the miners of West Virginia have been recently enjoined from holding meetings on their own grounds. But economic liberty—the liberty of the dependent classes to do acts which, in the nature of things, they cannot possibly do—is held for a sacred principle. The doctrine of the extension of the State’s police power, limiting the foregoing doctrine, has gained some headway since the Utah decision confirmed a State’s right to limit the hours of work for men in dangerous trades; but the determination of how far it is to be applied rests largely with the forty-eight State and Territorial courts; and it is a safe guess that it will meet with stiff resistance if incarnated in further “advanced” legislation.

“No discrimination,” which in effect means much discrimination, follows the judicial shibboleth of “liberty.” Especially zealous for the protection of liberty and keenly watchful of proposed discrimination is that eminent tribunal, the Supreme Court of Illinois. Some six years ago it discovered that the statute regulating the hours of women workers in the factories contravened the Federal and State constitutional guarantees of “life, liberty, and property.” A woman’s labor was her property, and any limitation of it was a deprivation “without due process of law.” On December 20, 1900, it fell to the lot of this tribunal to pass upon two labor laws,—to the lay mind entirely different in principle,—and, by a somewhat difficult struggling along parallel lines of argument, triumphantly to reach conclusions adverse to both of them. One was the Chicago ordinance requiring union labor and an eight-hour day on all public work contracted for; the other the State statute prohibiting discharge of an employee for belonging to a labor union. Regarding the ordinance, the union requirement, in the words of Associate Justice Magruder, “amounts to a discrimination between different classes of citizens.” It is therefore void, and the eight-hour provision is also void, because it “infringes upon the freedom of contract, to which every citizen is entitled under the law.... Any statute providing that the employer and laborer may not agree with each other as to what time shall constitute a day’s work is an invalid act.” (58 Northeastern Reporter, 985.)

Without venturing to discuss this ruling, one may at least compare it with the ruling on the State statute. The latter was a law intended to prevent discrimination against union men. But, curiously to the unlegal mind, it is discovered to be discrimination in favor of the union man. “The act certainly does grant to that class of laborers who belong to union labor organizations a special privilege.” (58 Northeastern Reporter, 1007.) The act was also found to “contravene those provisions of the State and Federal constitutions which guarantee that no person shall be deprived of ‘life, liberty, or property without due process of law.’” “That strain again,” as Orsino, in “Twelfth Night,” exclaims. It has not, however, a “dying fall,” for it has been taken up and echoed in other quarters since.

The liberty of the employer to pay his employees in brass checks or store orders was affirmed by the Kansas Supreme Court on December 9, 1896, and the act requiring payment in lawful money was declared invalid. “To say that a free citizen can contract for or agree to receive in return for his labor one kind of property only, and that which represents the smallest part of the aggregate wealth of the country, is a clear restriction of the right to bargain and trade, a suppression of individual effort, a denial of inalienable rights.” Anti-truck acts were also declared unconstitutional by the courts of Pennsylvania, Ohio, Illinois, and West Virginia. The Kentucky Supreme Court, however, nine months after the Kansas decision, found that liberty and the compulsory payment of wages in lawful money were compatible, so that the question is at least open. Decisions like that of the Kansas court, and the somewhat similar decisions rendered in Pennsylvania, Illinois, and Tennessee, of course fasten the laborer to the company store; but of this the courts usually take no cognizance. Actual liberty may be restrained, but theoretical liberty must not be tampered with.

Weekly payment laws are found to conflict with liberty in Pennsylvania, Illinois, Missouri, West Virginia, and Indiana. Moreover, the liberty of a legislature to determine that prevailing wages shall be paid to employees of city and State must not be confused by the lay mind with the liberty of the wage-earner to work under what conditions he must. For the former is clearly unconstitutional, as decided in New York by the Court of Appeals in February, 1901. “The effect of this statute [the Prevailing Rate of Wages act],” reads the decision of Judge Denis O’Brien, “was to make the city [of New York] a trustee or instrument for the enforcement of the law in the interests of the persons for whose benefit it was enacted, and thus the powers and functions of the municipality are employed for purposes foreign to those for which they were created and exist under the Constitution.” The eight-hour laws passed in several of the States have generally suffered the Illinois fate, although Kansas proved an exception. Regulation of the working hours of women was nullified not only in Illinois, but in Nebraska and California. The police-power doctrine, as voiced in the Utah decision, may justify a limitation of the working day in dangerous trades, but otherwise such a limitation appears to be an infringement of the right of contract, or a deprivation of “property” without “due process of law.” Even the National Eight-hour law of 1868, while not strictly unconstitutional, is held to be merely advisory. “We regard the statute,” says the Supreme Court (94 U. S. 404), “chiefly as in the nature of a direction from the principal to his agent that eight hours is deemed to be a proper length of time for a day’s labor, and that his contract shall be based upon that theory.”

Anti-trust laws may be quite as lacking in constitutional decorum as are eight-hour and prevailing-wages laws; and the judiciary reserves to itself the right to determine what are the standards. The Texas Anti-trust law of 1889, for instance, overleapt judicial sanction. “It is not every restriction of competition or trade,” reads the decision of District Judge Charles Swayne (February 22, 1897), “that is illegal or against public policy, or that will justify police regulation, but only such as are unwarrantable or oppressive; and a State statute which prohibits combinations formed for the purpose of reasonably restricting competition violates the rights of contracts guaranteed by the Federal Constitution.” (79 Federal Reporter, 627.) Another legislature, with this lesson before it, will know better where to set bounds to its attempt at interference.

One cannot pass this phase of the general subject without recurring to the pertinent advice of the wise Sir Francis Bacon. “Judges,” he wrote in his essay, “Of Judicature,” “ought to remember that their office is jus dicere, and not jus dare, to interpret law, and not to make law.... Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident.... A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills; so when there appeareth on either side a high hand, ... cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen to make inequality equal; that he may paint his judgment as upon an even ground.” Wise counsel! though it seems to have lacked something in observance two hundred and seventy-five years ago, and may be suspected, even yet, of not always and everywhere reaching entire fulfilment.