The Courts and Social Questions tection of their liberty, and bitter com plaint is made that in maintaining the freedom of the individual workman to work as long as he pleases, the courts have mocked the man earning wages in the factory by offering him the phantom of a liberty the substance of which he cannot obtain because he is bound fast by his necessities to the relentless wheels of machinery kept in motion by the capitalist and can earn no more than living wages no matter how long he may work. How far this is true in fact depends upon what the actual conditions are. To a man who is his own master the control of his hours of labor is intoler able, but it is quite possible that in modern industrial conditions the legal liberty of workmen in certain industries is virtual slavery, and that there is no real liberty of contract in such case unless the legislature gives the workingman some protection against the eco nomic advantage of his employer and the stress of his own necessities, and it may well be that the courts, without yielding in the least the vital principle that neither liberty nor property may be taken without due process of law or by the law of the land, may yet decide that the legislature may regulate the hours of labor more generally than they do now if the results of the experience and further investigation should show that long hours of labor for wages and under employers are injurious to the health and efficiency of the laborers, and so affect the public welfare. It is, indeed, less likely that such pro tection will be required by the individual if the workers are highly organized, and the more effective the organization be comes, the less need is there of legisla tive interference on behalf of the individual, and on the contrary this principle of the Constitution must be
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the more vigorously maintained for the protection of the individual against the tyranny of organized numbers. This is a tyranny quite as real as that of the ancient tyranny of kings and eternal vigilance against tyranny of any kind is still the price of liberty. The danger is a menace to independence of character and the self-respect and efficiency of the individual. It is to be hoped that we may never come into a time when, as suggested by a cartoon in Punch the other day, it would not be surprising that a man before deciding to be a soldier should ask, "How many hours do they have to fight?" Judicial decision on these questions of the hours of labor depends very much upon the views of the judges and the established public opinion as to what constitutes the liberty guaranteed by our Constitution, and as to what is the true line of division between the indi vidual liberty and the power and duty of the state to protect the public health, safety, and morals, and to promote the general welfare. The boundary between the liberty of the individual and the police power of the state is an indeter minate zone rather than a definite line. It is not for the courts to draw that line, but only to call a halt when the legislature has p.assed over the zone. It is for the legislature to decide whether the conditions call for the exercise of the police power and for the courts to protect individual liberty when it is unmistakably invaded. The other decision which I have had in mind and which has called forth even stronger protest is that of the Court of Appeals of New York upon the Work men's Compensation Act.2 A plan adopted in most of the coun tries of Europe to relieve the workingmen of the risks of modern industry,
- Ives v. South Buffalo Ry. Co., 94 N. E. 431.
