Popular Science Monthly/Volume 40/February 1892/Personal Liberty
THE
POPULAR SCIENCE
MONTHLY.
FEBRUARY, 1892.
| PERSONAL LIBERTY. |
assisted by
IN dealing with many of the questions which come within the domain of the student of political economy or of social science it becomes expedient to refer to the decisions of the courts, especially among the English-speaking people. The paramount question at issue to-day is the maintenance of personal liberty. The precepts upon which personal liberty rest have become incorporated in the common law, and when personal rights are impaired by statute law the complainant may appeal to the courts and may establish his own control over all the factors that are necessary or conducive to his support as a matter of right, so long as he does not infringe the equal rights of others. Among such factors is the right to control one's own time.
One of the most profound changes which has occurred in the relations of men to each other has been the change from status to contract. In ancient days, under ancient law, the place which a man could hold in society was fixed by the condition of his birth, by his relation to his father, his family, or his gens or his class. His individuality was absolutely subordinate to the condition in which he had been born. From the dawn of history contract may have been found in existence, but its fulfillment depended upon its form rather than upon any moral engagement. Sir Henry Maine observes that "the conception" (of contract) "when it first shows itself is rudimentary. No trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly developed, and that acts of flagrant perfidy are often mentioned without blame, and sometimes described with approbation. In the Homeric literature the deceitful cunning of Ulysses appears as a virtue of the same rank with the prudence of Nestor, the constancy of Hector, and the gallantry of Achilles."
Elsewhere, Sir Henry Maine, when dealing with the progress of a society resting upon the just relations established by free contract, remarks that "the many have an almost instinctive reluctance to admitting good faith and trust in our fellows as more widely diffused than of old. . . . From time to time these prepossessions are greatly strengthened by the spectacle of frauds unheard of before the period at which they are observed."
"But," as he most profoundly remarks, "the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. It is the confidence reposed in and deserved by the many which affords facilities for the bad faith of the few; so that, if colossal examples of dishonesty occur, there is no surer conclusion than that scrupulous honesty is displayed in the average of the transactions which, in the particular case, have supplied the delinquent with his opportunity."
In the observations of nearly half a century of business life the writer has become profoundly impressed with the truth of these observations, and has been almost brought to the conclusion that contracts would be fulfilled, commerce would go on, and debts would be paid as fully in the long-settled and well-established communities now existing in many parts of this country, if all laws for the collection of debts and all acts of legal tender were repealed.
When the quality of the money of a nation is evenly maintained, no act of legal tender is needed to enforce its acceptance by a creditor. If there is any other point of dispute, evidence of an offer of the debtor to fulfill his contract in money might be perpetuated without giving him an option to pay in poorer money than he had promised. It is only when the quality of money has been depreciated that an act of legal tender is cited by a debtor, and in so doing he transfers the fraud from his own shoulders to the Government that has impaired the terms of his contract.
In the free states which have been established by the English speaking people character stands for more than capital in establishing credit; credit rests more upon the high standard of business integrity than upon legal provisions for the collection of debts: under these conditions, freedom on the part of the purchaser and the seller, the employer and the employed, to make just contracts, is the condition of abundant production and equitable distribution, while the very existence of society depends upon the maintenance of personal liberty.
The condition under which man exists is that he shall work. The work may be mental, manual, or mechanical. Some may be spared for a time from the necessity of work, but, as has been well said by Colonel Henry Lee, "under a free distribution of property it is but three generations from shirt-sleeves to shirt-sleeves."
The entire capital in the richest nation or state, consisting of railways, mills, factories, workshops, and dwellings, together with all the goods and wares of every kind—comprising all that has been saved in a useful form, aside from opening of the ways, the clearing of the land and bringing it into productive condition—will not exceed three or possibly four years' production; in most states it is less. If all could be reconverted into food, fuel, and clothing, and the world should rest wholly from work, all would be consumed in two or three years. In respect to food, the world is always within a year of starvation, yet there is always enough somewhere. Whether the product of each series of four seasons shall be distributed so that all may share the necessaries of life depends upon personal liberty, upon freedom of exchange, and upon the maintenance of the right of every man "to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." (Judge Peckham, of New York. People vs. Gilson, 109 N. Y., 399.)
"The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing these in what manner he may think proper, without injury to his neighbor, is a plain violation of this most sacred property." (Judge Snyder, of West Virginia. State vs. Goodwill, 10 S. E. Rep., 287.)
In the progress of invention, and by the application of science to the art of material production, all that can be expected or hoped for in the improvement of the condition of the great body of the people is that the more noxious pursuits may be done away with and that the conditions of the most arduous may be ameliorated; but the work must go on and in the sweat of his brow man must always eat his bread. The true gain that comes in the course of years is that a part of the time which is at the disposal of men may be saved from the necessity of hard work for the enjoyment of more and more leisure. Whether the leisure hours will be well spent or not will rest wholly upon the individual. The best definition of leisure that I have ever met is that "leisure consists in the diligent and intelligent use of time." Time saved from the necessary work of life may be worse than wasted or it may be well spent.
In dealing with this subject we are often brought face to face with a singular paradox. If all were rich, all would be poor alike; each might then be disinclined to serve the other for compensation, and thus all would be obliged to do all their own work without opportunity to save labor by mutual service. Under such conditions life would be hardly worth living. Every kind of work would be required of every man and woman and there would be no rest. It is by the exchange of services that time is saved, both to the employed as well as to the employer. The man who directs the force of the capital in the possession of which he makes himself rich adds vastly more to the common product from which all wages and profits are derived, than he consumes for his own use from that product in the personal support of himself and his dependents. When just relations are established by free contract between rich and poor the service which each renders to the other is an equitable and useful service. Society rests for its very existence upon this interdependence of men and upon the inequality in their personal endowments, whether material or immaterial. The capacity to combine, direct, and use great masses of capital is rare: without this capacity capital becomes inert or it is wasted, while labor becomes less productive the more crowded the area occupied. Hence inequality in possession is the very necessity to the productive application of that which constitutes wealth. The value of a man to the community in which he lives is measured neither by his labor nor by his toil, nor by the number of hours that he works; it is established by the service that he renders, and that rests finally upon the quality of the mental energy with which he is endowed and upon the effectiveness of the forces, material or immaterial, to which he gives direction. The mind of man is the prime factor in the conversion of forces to the end that there may be abundance and leisure in place of scarcity accompanied by long hours of arduous toil.
Such being the conditions, it does not follow that every one may not feel a hearty sympathy with any true effort on the part of those who earn their daily bread by the sweat of their own brows, to shorten the hours of labor so as to save more time for rest and recreation. It is only to the false methods by which these ends are sought that exception can be taken.
When these efforts tend to deprive the very men who seek to be benefited of their own personal liberty, and when their right of free contract is impaired by their own acts, the time has come to discriminate in order to separate the true from the false methods of saving time; or, in other words, to distinguish between the true and the false methods of shortening the hours of labor.
It is customary to define three factors which enter of necessity into the production of all material things—land, labor, capital. There are, in fact, two other factors inseparable from production, and each is as essential as the land, the labor, or the capital—namely, the mental power, or, in other words, the mental energy which is required to direct the processes of labor and capital and the time that is required for the sequence of the several processes of production.
Among these five factors, land, labor, capital, mental energy, and time, there is but one in which all men must share alike. All others are variable. One only is equal and constant, and that is time.
The hours of the day number twenty-four. Whether a man be rich or poor, whether well endowed with mental energy or not, the one opportunity, the one element of property, which all must share alike, is time. Time is a common factor, and yet it is also a separate factor, an element of individual property, with which every man may claim to deal according to his own will so far as he may not impair the rights of others to deal with their share of time at their own will.
It follows that any legal.restrictions upon the free use of time impair personal liberty more than almost any other interference with the freedom of men that can be conceived. Such restrictions create inequality in that which in its nature must be shared by all alike.
Yet, step by step, and session by session, the Legislatures of almost every State are enacting statutes restricting the use of time, which, when enforced, create monopolies, establish privileged classes and inflict disabilities. Under pretense of police ordinances or under the pretext of maintaining the public welfare these acts deprive great bodies of citizens of their right of free contract and of the free disposal of their own time according to their own will, even in lawful and in innocuous pursuits in the conduct of which no harm can arise to any other person, although the man himself who chooses to do so may overwork himself.
These restrictions have been carried to such an extent as to have perverted the very moral sense of great numbers of workmen. Many combinations and associations have made demands upon the Legislature to limit adult men and women in the use of their own time who do not wish to be limited by legal restrictions imposed both upon the workman and the employer. The attempt has been made to put a brand or mark of disgrace upon other workmen who choose to maintain their own personal liberty by calling men "scabs" or "rats" and other opprobrious terms, who control their own time and maintain their right to free contract. Resort has even been had in very many cases to force, in this futile attempt to substitute the despotism of democracy through the misuse or abuse of the power of the majority for the despotism of the kings and of the privileged classes whose rule we have thrown off.
It matters not that all such attempts must fail because the free men who maintain their own personal liberty will in the end secure the best positions and the most lucrative occupation. These efforts, so long as they have a temporary effect, tend to the privation of the very men who move for the enactment of restrictive statutes or who subject themselves to the rules of the associations which limit them in the use of their own faculties.
It is the very province of the political economist to expose the wrong, even if it offends the very men who wrong themselves, and to appeal to the decisions of the courts in order to establish their rights as well as the rights of those who will not submit to their restrictions.
It does not yet seem to have occurred to any of those who are oppressed by such public statutes, or by the rules and regulations of private associations by which the attempt is made to restrict the free use of time, that a remedy may be found in the courts for any infringement of personal liberty, under whatever pretense the public act may have been passed. It may, therefore, be expedient to pass in review some of the cases in which this issue has already been joined.
In order that the firm foundation on which personal liberty rests may be fully comprehended, we may go back almost to the beginning, and we must recur once again to a familiar chapter of the English-speaking people.
The barons who wrested the charter of English liberty, the Magna Charta,, from King John, nearly eight hundred years ago, were only maintaining the long existing and established rights of the free men of England against the usurpation of a despotic ruler. Strange that the counterpart of that ruler may be found to-day in the legislatures of our own time.
Personal liberty was established in the Magna Charta in these terms:
"No free man shall be taken or imprisoned or disseised, or outlawed, or exiled, or anyways destroyed; nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers or by the law of the land."[1]
In the brief limits permitted for the statement of this case we may not follow the course of history, century by century; but we must pass at once to a very noted instance in which the rights of the people were established by the English courts, the "case of monopolies," so well known to all students of law and so often cited. In the time of Elizabeth, the Queen had under taken to grant to the plaintiff the monopoly of making and selling playing-cards. The court held this grant to be void, and in giving the opinion cited a previous case in which it had already been held that even a chartered company which had undertaken to establish a somewhat similar privilege had gone beyond its powers. The record of the previous case in part is cited in the following terms (The Case of Monopolies, 11 Coke Rep., 86 a):
"And a case was adjudged in this court, inter Davenant and Hurdis, Trin. 41, Eliz. Rot. 93, where the case was that the company of Merchant Taylors in London having power by charter to make ordinances for the better rule and government of the company, so that they are consonant to law and reason, made an ordinance that every brother of the same society who should put any cloth to be dressed by any cloth worker not being a brother of the same society, shall put one half of his cloths to some brother of the same society. . . upon pain of forfeiting ten shillings. . . and it was adjudged that the ordinance, although it had the countenance of a charter, was against the common law, because it was against the liberty of the subject; for every subject by the law has freedom and liberty to put his cloth to be dressed by what cloth worker he pleases, and cannot be restrained to certain persons, for that would in effect be a monopoly; and therefore such ordinance, by color of a charter or any grant by charter to such effect, would be void."
Again, if any man or woman, or if any family, may choose at this time to work machines in their own houses for a period of time or for a number of hours in the day beyond what is permitted by statute law to be done in the factory, and any one shall molest them, the decision in which it was first held that "a man's house is his castle" may be cited in defense of the personal liberty of the owner and of his right to dispose of his time, of his looms which may constitute his capital, and of his labor in such manner as may serve his own purpose in the best way, according to his own judgment. He may not be forbidden to do that kind of work in his house which is forbidden when conducted in a factory.[2]
Passing on again by more than a century, we come to one of the great landmarks in the establishment of the liberty of the English-speaking people, noted in the history of jurisprudence—the decision of Lord Camden forbidding action under general warrants. (Entick vs. Carrington, 2 Wis. 275, 1765.) The Earl of Halifax, principal Secretary of State, issued a warrant to arrest John Entick "and him having found you are to seize and apprehend and to bring together with his books and papers in safe custody before me." Entick brought trespass against the king's messengers for seizing his papers under this warrant. Lord Camden, C. J. (p. 291): "Our law holds the property of every man so sacred that no man can set his foot upon his neighbor's close without his leave. . . . The defendants have no right to avail themselves of the usage of these warrants since the revolution. . . . We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have."
Only a little later, passing to our own side of the ocean, we again find a complete condemnation of all modern acts which impair personal liberty in one of the prime causes of the War of the Revolution. When James Otis resisted the writs of assistance, by which the attempt was being made to compel the citizens of Boston to assist the Surveyor of Duties in searching vaults, cellars, warehouses, shops, and other places for goods which might have been imported contrary to act of Parliament, he cited the common law of England as controlling acts of Parliament, as laid down by Lord Coke.[3]
When this appeal failed, the colonists threw off the power by which they had been oppressed and adopted the remedy, the terms of which are so well stated by Mr. Justice Gray in his exhaustive review of this chapter in the history of American jurisprudence.[4]
We are thus brought near to our own time and to the decisions of our own courts, by which personal liberty has been re-established and the right of every man to control the disposition of his own time may be maintained. It seems passing strange that one must resort to the decisions of the courts in order to find a true definition of personal liberty. One would have thought that it would have been found in the very statutes which the courts have annulled.
The very power which Parliament had assumed and which caused the colonies to rebel is now in some directions assumed by the Legislature of Massachusetts. The remedy lies in an appeal to the common law, which is the common heritage of the Englishspeaking people everywhere, and in this country has been embodied in our written Constitution and Bill of Rights.
Among the many decisions of the courts sustaining the right of every man sui juris either to combine with others in the pursuit of a common end, so long as such union or association did not impair the equal right of any one to work at his own will or "for his own hand" outside such unions or associations, none have been more lucidly or firmly presented than those given by Chief Justice Shaw, of Massachusetts. (Commonwealth vs. Hunt, 4 Metcalf, 111, 1842.) The attempt had been made to hold certain men guilty of conspiracy because the members of a union or society had agreed not to work for any person who employed others not members of such union. The learned judge held (p. 128): "The averment is this—that the defendants and others formed themselves into a society, and agreed not to work for any person who should employ any journeyman or other person not a member of such society after notice given him to discharge such workman. . . . (p. 130) The case supposes that these persons are not bound by contract, but free to work for whom they please, or not to work if they so prefer. In this state of things we can not perceive that it is criminal for men to agree together to exercise their acknowledged rights in such a manner as best to subserve their own interests."
The right of the workman to free contract is fully sustained by this decision; he is left as free to refuse to work as he is free to work upon any terms that he may choose to work.
But when the attempt of a slave-master to control the service of him who had been held a slave in another State was made, Chief-Justice Shaw maintained the right of personal liberty in terms which no Congress, no Legislature, and no court would now dare to contravene.[5]
When Legislatures and trades-unions attempt to impair the personal liberty of men, and to take from them the right to control their own time, the act differs only from the claim of the slaveholder in degree but not in kind; and when an appeal is taken to the courts, the great judge may again annul the act or the ordinance, citing in support of his decision Chief-Justice Parsons, who declared that no slave could breathe the air of Massachusetts; and Chief-Justice Shaw, who ruled that no man should even attempt to impair the personal liberty of him who dwelt upon our soil, even were it only for a single day.
In the case of the People vs. Gilson, adjudicated in New York in 1888 (New York Reports, vol. 109, p. 389), Justice Peckham gave a broad and lucid construction to the term "liberty" in the following words (p. 398): "The term 'liberty,' as used in the Constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen, as by incarceration, but it is deemed to embrace the right of man to be free in the enjoyment of his faculties with which he has been endowed by the Creator, subject only to such restraints as are necessary for the common welfare. Liberty in its broad sense, as understood in this country, means not only the right of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where lie will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or vocation."
The case before the court was one affecting methods of sale of any article of food. The Legislature had enacted a law (chap. 691 of 1887) that "No person shall sell, exchange, or dispose of any article of food, or offer or attempt to do so upon any representation, advertisement, notice, or inducement that anything other than what is specifically stated to be the subject of the sale or exchange is or is to be delivered or received or in any way connected with or a part of the transaction as a gift, prize, premium, or reward to the purchaser."
In respect to this specific act Judge Peckham held it unconstitutional for the following reasons (p. 405): "It seems to me that to uphold the act in question upon the assumption that it tends to prevent people from buying more food than they may want, and hence tends to prevent wastefulness or lack of proper thrift among the poorer classes, is a radically vicious and erroneous assumption, and is to take a long step backward and to favor that class of paternal legislation which, when carried to this extent, interferes with the proper liberty of the citizen and violates the constitutional provision referred to."
In dealing with an act which had been passed to prevent the manufacture of tobacco in tenement-houses, in cities of more than five hundred thousand inhabitants—an act which was specifically aimed at the cities of New York and Brooklyn—Judge Earl held, in the case of Jacobs, 98 New York, p. 98 (1885), that the act was unconstitutional.
Attention may well be called to the vigor with which the learned judge denies the power of the Legislature to construe its own acts by the titles which it may give to them. The assumption of power under the indefinite term of police regulations may not be admitted. The court may demand the facts to be submitted—proof absolute, clear, and definite of the injury to the common welfare may be required before personal liberty can be impaired and the right of free contract taken away, in order that the court may be satisfied that there is reasonable cause to sustain the regulation as one rightly coming within the term of police powers.
A decree in legislative form may present an aspect of legality but may yet be wholly unlawful. Lord Brougham ruled that "things may be legal and yet unconstitutional," even in England where there is no written constitution. Even Parliament has been overruled and called upon to submit to the rule of the courts, when it has impaired the personal liberty of the subject in a manner which is in contravention of the common law, although the act of Parliament may have been wholly consistent with legal forms.
Among the many judges who have ruled in defense of personal liberty none have given more well-considered and vigorous decision than Justice Snyder, of West Virginia. In the year 1887 the Legislature of West Virginia passed an act (chap. 63) to prevent the payment of wages by the issue of what are known as shop orders, or for certain values of goods drawn upon their own shops. This act was held to be unconstitutional (State vs. Goodwill, 10 S. E. Report, 285 (W. Va., 1889)). Justice Snyder held as follows (p. 287):
"The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing these in what manner he may think proper without injury to his neighbor is a plain violation of his most sacred property. It is equally an encroachment both upon the just liberty and rights of the workman and his employer, or those who might be disposed to employ him, for the Legislature to interfere with the freedom of contract between them; as such interference hinders the one from working at what he thinks proper, and at the same time prevents the other from employing whom he chooses. A person living under the protection of this Government has the right to adopt and follow any industrial pursuit, not injurious to the community, which he may see fit. And, as incident to this, is the right to labor or employ labor; make contracts in respect thereto upon such terms as may be agreed upon by the parties; to enforce all lawful contracts; to sue and give evidence; and to inherit, purchase, lease, sell, and convey property of every kind. The enjoyment or deprivation of these rights and privileges constitutes the essential distinction between freedom and slavery; between liberty and oppression."
In dealing with the specific act. Judge Snyder (p. 288) declared it to be "a species of sumptuary legislation which has been universally condemned as an attempt to degrade the intelligence, virtue, and manhood of the American laborer, and foist upon the people a paternal government of the most objectionable character, because it assumes that the employer is a tyrant and the laborer is an imbecile."
In the research which the writer has been enabled through the assistance of his coadjutor, Mr. E. T. Cabot, to make in the preparation of this treatise, he has been unable to find any direct adjudication upon the subject of the free use of time.
That no statute may stand which discriminates by classes or by persons in the free use of time, has been well established by a decision in the highest court of California.
A statute of 1880 (p. 80) provided that "it shall be unlawful for any person, engaged in the business of baking, to engage or permit others in his employ to engage, in the labor of baking for the purpose of sale, between the hours of 6 p. m. on Saturday and 6 p. m. on Sunday, except," etc. The question of the constitutionality of this statute was raised in Ex parte Westerfield, 55 Cal., 550. Judge Myrick gave the decision in the following terms:
"This is special legislation. A certain class is selected. As well might it have said, if master carpenters or blacksmiths, or if attorneys having clerks, shall labor or permit employés to labor, they shall be deemed guilty of a misdemeanor and be punished; carpenters or blacksmiths, not master-workmen or attorneys without clerks, may labor at their will. The baking of bread is in itself lawful and necessary. Even if there be authority to restrain the labor on some one day, it must be if at all under a general law restraining labor on that day." Again it is held that if some may not work according to their own will, the rule must be uniform, and all who are engaged in pursuits of like kind must be subjected to the same rule.
Analogous to the use of time is the method of payment. When the State of Pennsylvania attempted to regulate the method of payment which should be adopted under compulsion by the employers who were engaged in mining or manufacturing, and when the State also provided that no employer should sell supplies to the employés at any greater profit than that received from other employés, the Supreme Court declared the statute void.[6]
In Illinois the Legislature attempted to provide for the weighing of coal at the mines under different conditions from the conditions of weighing or delivery which might apply in other places. The court held the act unconstitutional, as being class legislation.[7]
The State of New York passed an act against excluding persons from equal enjoyment of places of amusement on account of race, color, or previous condition of servitude, and this act was sustained.[8]
There could be no clearer statement of the right of every man to make contracts and to enjoy the free use of time for such number of hours as may be agreed upon by his employer, than that given by Judge Andrews in this case. The learned judge declares not only that life, liberty, and property must be protected, but that every person must be protected in every essential incident in the enjoyment of his rights. Can there be a more essential incident to the enjoyment of life, liberty, and property than the-unrestricted use of time which all may and must share alike unless prevented by unlawful interference?
We may now observe a tendency in many arts, through the progress of science and invention, to pass out of the great factory so as to become again household industries under better conditions, more favorable to production, and less arduous in their conduct than these same branches of industry formerly were before science and invention had come to their aid and had removed them from the house to the factory. The application of water-power to the conduct of the work in the factory rendered it necessary to place the factory in the narrow valleys alongside the river below the fall, and that tended to the concentration of great bodies of men and women in the textile factory. When these branches of industry were first established and were operated by water-power on a large scale, such had been the arduous conditions of life among the farmers of New England that the well-bred daughters of these farmers found it expedient to go from the farm to the factory, where they worked in low-studded, ill-ventilated, badly lighted, and badly heated rooms fourteen hours a day for a measure of earnings only one half that which their successors secure to their own enjoyment, working ten hours a day in a modern, high-studded, well-ventilated factory.
There has been a natural progress in saving time which is due to the application of art and science to production. Science and invention have shortened the hours of work in spite of the meddlesome interference of statutes, and will continue to do so, paying little regard to statute law except so far as restrictions upon the use of time may put off the day rather than hasten it when the hours of work may be shortened yet more.
The application of steam and illuminating gas again tended to concentrate great forces of men and women in the workshop and in the factory and in the upper stories of city warehouses. The power of steam can not be sent far distances. Illuminating gas can only be carried in large pipes at light pressure on short lines. This phase is passing. Profound changes are working. By means of a wire, power, light, and the direction of the work can be carried long distances. The power of the waterfall in the narrow gorge where there is no room for a factory can be carried on the wire to the far-away uplands, where under the best conditions of life the workshops may be established. Fuel-gas distilled from coal by the seaside or near the bank of the river may be carried in small pipes at high pressure far away from the source where it is generated.
We are just entering upon the period of rapid transit underneath the ground, by means of which men and women may be moved at will from the center of the great city where they have been confined in the slums to the broad areas of the suburbs where, under better conditions of life, the same work may be conducted even in their households. Is it to be pretended that by the power of legislation the State constable may enter the household of a free citizen of this country and may prescribe to him, his wife, and his children how they shall work and what number of hours they shall operate the loom, the knitting-machine, the sewing-machine, or any other of the appliances which may be set in motion by electrical power, lighted by electric light, and directed by electrical speech at the touch of a button in the wall? If the State constable may not enter the household, may not invade the home, he may not enter the factory or invade "the close," to use the old-time term cited by Lord Camden, where men and women may choose to work according to their own will and to control their own time according to their own judgment.
One may not defend this abuse of legislation under the pretense that it comes within the police power of the State. True, the Supreme Court of the United States has left these matters up to this time to State legislation, but its justices have more than once laid down the rule under which the Legislatures must act or else the supreme power of the land may forbid any restriction upon personal liberty.[9]
In view of the certainty with which these principles have been laid down and will be maintained by all the courts of this country, may it not be judicious to put an end to the continual attempts of sentimentalists, of pseudo-reformers, and of unenlightened workmen, to impair the personal liberty of adult men and women and to take from them their right of free contract by an appeal to the courts of highest jurisdiction?
- ↑ "Nullus liber homo capiatur, vec imprisonetur, aut dissaisiatur, aut utlagetur, aut exuleter, aut aliquo modo destruatur, nee super eum ibimus, nee super cum mittemus, nisi per legale judicium parium suorum, vel per legem terræ."
- ↑ A declaration that a man's house is his castle, and that he may defend it against violence, is contained in Semayne's case, 5 Rep., 91 a (2d Jac. 1).
- ↑ Bonham's case, 8 Rep., 118 a.
- ↑ Quincy's Reports, Appendix I, p. 540.
- ↑ Commonwealth vs. Aves, 18 Pick., 193 (1836).
- ↑ Godcharles vs. Wigeman, 113 Pa. St., 431.
- ↑ Millett vs. The People, 117 111., 294.
- ↑ People vs. King, 110 N. Y., 418.
- ↑ Calder vs. Bull, 3 Dal., 386 (p. 388).