'liberty" to make such contracts as one wishes has become too well settled to admit of question without overturning the fixed principles of the Supreme Court. If it was, as it seems to me, an usurpation, successful assertion has sealed its title, and we need not quarrel with it, unless we are historically inclined or prone to revolutions.

But the meaning of the words "due process of law" the law of the land" has not become settled.2 Consequently, when a law forbids all persons or a class of persons to make contracts exactly as they like, we may know certainly that it does "deprive them of their "liberty," but we may not certainly know whether such deprivation was "due process of law." Much has been written about this, but I mean to consider only what "due process of law" means when the statute has regulated the hours in a day or week during which specified classes of persons may contract to work.

First, the words might mean that "due process of law" was only "customary or common process of law." When applied to legislative acts, from that aspect it can only mean, whether the subject-matter was such as was usually and commonly regulated by legislatures in those communities from which we have inherited our law. If it was common and accepted for the legislature to control the wage contract, then a statute affecting the wage contract was "due process of law." If that were the test, all such statutes would be valid, because it has been a common form of statutory regulation for several centuries. It is true that such regulation has commonly been directed towards regulating wages, but no one would distinguish between the right to fix wages and that to fix the hours of work.

With the beginning of the nineteenth century and the spread of those ideas of governmental non-interference which used to be

distinguish between freedom from personal restraint and other ideas. Mr. Shattuck's article in this REVIEW leaves no reasonable doubt of the meaning of the word as used in constitutional law at the end of the eighteenth century.

1 Booth v. Illinois, 184 U. S. 425; Lottery Case, 188 U. S. 321, 357; Allgeyer v. Louisiana, 165 U. S. 578.

2 Davidson v. New Orleans, 96 U. S. 97; Ballard v. Hunter, 204 U. S. 241, 255. 35 Eliz., c. 4; 20 Geo. II, c. 19; 31 Geo. III, c. 11, § 3; 6 Geo. III, c. 25. While the subject of workmen's "conspiracies" was of course quite distinct, it still has enough relation to the matter of wages to make the subject-matter of near kin to their regulation. 33 Edw. I, st. 2; 3 Hen. VI, c. 1; 39 & 40 Geo. III, c. 106. Apparently the first statute for the regulation of wages by the Justices of the Peace was 5 Eliz., c. 4.

called laisser faire, the dominant economic theory forbade any regulation of the wage contract. The conditions of factory life, at first in England and later in this country, soon forced the hand of the more doctrinaire economists, and we began to have statutes regulating the conditions of factory life and of life in mines. Logically it would have been impossible under the theory of the laisser faire economists to defend such regulations, for they indubitably "deprived" the worker of his "liberty" to work under such conditions as he saw fit. The only process of law accorded him was the fiat of the legislature which forbade him and his employer to contract as they pleased.

To distinguish between the regulation of the conditions of factory life and the regulation of the hours of labor required one of two courses: either the court must have abandoned the theory that the customary character of the legislation determined its constitutionality; or it must have held that, though the regulation of such general conditions was customary, the regulation of the hours of work was not. But the regulation of such conditions was not customary prior to the nineteenth century, because, largely speaking, there were no factories. Besides, the theory of the customary powers of the legislature does not mean that a precise precedent must be found for every statute. The regulation of the wage contract in respect of the amount of wages was certainly a valid precedent for its regulation in respect of the hours of labor, if it was a precedent for its regulation in respect of the general conditions of factory life.

The actual result has been the acceptance of the first alternative and the interpretation of "due process of law" in quite another sense from that suggested. There have been many decisions construing the words as meaning the usual and customary process of law, but, in regard to statutes regulating the wage contract, the question of the customary character of the regulation is no longer considered except in the case of seamen's

contracts.

In abandoning this interpretation of the words, there arises, however, this difficulty, that the courts will not concern themselves, or at least profess not to concern themselves, with the expediency

1 Murray v. Hoboken Land Co., 18 How. (U. S.) 272; Head v. Amoskeag Mfg. Co., 113 U. S. 9; Warts v. Hoagland, 114 U. S. 606; Robertson v. Baldwin, 165 U. S. 275; St. Louis & San Francisco Ry. v. Mathews, 165 U. S. 1; Patterson v. Bark Eudora, 190 U. S. 169.

or propriety of the statute in question, which they insist must always remain a question for the legislature only. The judicial declarations upon this matter leave no shadow of doubt as to its recognition.1

Therefore some other test must exist than the judgment of the court upon the wisdom of the particular act in question. The obvious alternative was to assert that there were certain subjectmatters of possible control within which the legislature was free to act as it thought best, and that when it passed an act which in fact did regulate those matters the act was due process of law. At first the courts said that in matters which actually, and not merely colorably, affected the public health and morals, or safety,2 the legislature might act as it thought best and the courts could not declare their statutes not to be due process of law. But it soon became apparent that if the legislature was in fact forbidding the freedom of contract in relation to matters not within the fair meaning of the public health and safety, either the scope of that meaning must be enlarged, or the legislature would be shorn of its power to do many things which were highly necessary. Under the stress of this compulsion the court therefore enlarged the scope of that meaning, until at the present time it has been defined as including the public "good" or "welfare" in general, and even the public "prosperity" or "convenience." 8

Unless, however, the terms "welfare" and "convenience" are to be defined so arbitrarily and unreasonably as to leave no basis for their general application and therefore to make them inapt for use as principles of guidance, it is clear that they include all those matters which the legislature can desire to regulate at all. It is true that in the supposed furtherance of the public welfare and convenience the legislature may enact what has in fact the precise opposite of the effect which they intend, and that they may, indeed, make that welfare" and "convenience" the mere color for stat

1 Mugler v. Kansas, 123 U. S 623; Crowley v. Christensen, 137 U. S. 86; Atkin v. Kansas, 191 U. S. 207, 223; Cotting v. Kansas City Stock Yards, 183 U. S. 79, 110.

2 Mugler v. Kansas, 123 U. S. 623; Booth v. Illinois, 184 U. S. 425; Powell v. Pa., 127 U. S. 678; Jacobson v. Mass., 197 U. S. 11; Mo. Pac. Ry. v. Mackey, 127 U. S. 205; Barbier v. Connolly, 113 U. S. 27; New York, etc., R. R. Co. v. Bristol, 151 U. S. 556; Johnson v. So. Pac. Co., 196 U. S. 1.

3 Escabana Co. v. Chicago, 107 U. S. 678, St. Louis Iron Mountain Ry. v. Paul, 173 U. S. 404, 409; Lake Shore & Mich. So. Ry. v. Ohio, 173 U. S. 285, 296, 297; Lochner v. People, 198 U. S. 45. 57; C. B. & Q. Ry. v. Drainage Comrs., 200 U. S. 561, 592; Bacon v. Walker, 204 U. S. 311.

utes by which they corruptly mean to accomplish no result of the kind. In the first case, however, the court must consider the expediency of the statute, which they have so often declared they should not do; and in the second they must question the integrity of a coördinate branch of the government, as to which there is an obvious and insuperable impropriety.

The logic of this situation made necessary, therefore, some further principle of interpretation for the words, "due process of law," than that based upon the definition of certain general fields of legislative power within which the legislature might act freely, and the court have nothing to say. If there were no such added principle of determination, the court must abdicate its function of declaring a statute not "due process of law," - provided no arbitrary methods of its administration were prescribed — or it must return to the interpretation of which Murray v. Hoboken Land Co.1 was an instance, and only examine whether the legislature was in fact acting as legislatures had always been accustomed to act in English-speaking communities. To adopt the second of these would have been to abandon precedents at that time established, and it would have been in addition - and this was more important -to have admitted the validity of much legislation which the justices were personally convinced was erroneous economically, and despotic politically.

There was in fact no alternative, therefore, but to take the bull heroically by the horns and declare that the court could and did have the power to examine the expediency of the measure and to determine whether it had in fact in their judgment any relation to the purposes and objects which it was designed to effect, and, as those purposes and objects were not ordinarily set forth, to any purposes and objects which the court recognized as legitimate. The court did do this frankly enough, and the necessary result has been great divergence of constitutional decision and an apparent absence of actual principle upon which such cases can be determined.

It is not, however, necessary that the consideration by the court of the expediency of a statute should be such as would be given if the whole question were before it as a legislature in the first instance. It may well determine those things to be within the range of legislative power against which, sitting as legislators, the

1 18 How. (U. S.) 272.

2 Mugler v. Kansas, 123 U. S. 623; Booth v. Illinois, 184 U. S. 425, 430; Otis v. Parker, 187 U. S. 606.

justices individually would have voted. The nearest analogy for the function of the court is the function of a court in review of a verdict on the facts. Only in those cases in which it is obvious beyond peradventure that the statute was the result, either of passion or of ignorance or folly, can the court say that it was not due process of law. In this way the principle may be observed that with the expediency of the statute the court has no concern, but only with the power of the legislature.

There will, I believe, be little difference of opinion as to the analysis hitherto of the court's position in regard to the interpretation of "due process of law." The question is not so much of the principle as of its application. It would be out of place in this paper to consider the political results of this function of the court as so developed, for the question goes far beyond the mere matter of eight-hour laws. Whether it be wise or not that there should be a third camera with a final veto upon legislation with whose economic or political expediency it totally disagrees, is a political question of the highest importance. In particular it is questionable whether such a power can endure in a democratic state, while the court retains the irresponsibility of a life tenure, and while its decisions can be reversed only by the cumbersome process of a change of the federal Constitution. While there seems to be no question of the desirability of the judicial irresponsibility arising from life tenure a tenure indeed which it would seem as though no judge could fail to desire and, if he could, to insist upon and while there can also be little question of the undesirability of turning a constitution from the fundamental frame of government into a statutory code, still, if the court is to retain the absolute right to pass in the final result on the expediency of statutes passed by the legislature, the difficulty is inherent and in the end it may demand some change, either in the court or in the Constitution.

The question of the applicability of the theory, as it has been developed, to eight-hour laws must unfortunately depend upon the temper in which the justices constituting the court actually approach the question. If the decision is to depend in each case upon the opinion of the members of the court as to whether the ends sought by the statute are in themselves desirable, and as to whether the means prescribed are well adapted to those ends, it is clear that

1 Henderson v. Mayor, 92 U. S. 259, 268; Minnesota v. Barber, 136 U. S. 313, 320; Hennington v. Georgia, 163 U. S. 299, 304; Booth v. Illinois, supra; Jacobson v. Mass., 197 U. S. 31.