payment of wages and giving labor special privileges unconstitutional on one or the other or both of these grounds. When we come to consider these decisions in the light of judicial reason it would appear that the better class of authorities and the best considered cases, from a standpoint of the logic of our institutions, hold that a law which applies to all members of a certain class within the State does not come within the constitutional prohibition of "class legislation." The principle of "freedom of contract," which has been so firmly held to in the cases above mentioned, has certainly been seriously impaired in other respects. For instance, the homestead laws, especially of Texas, which make a mortgage on a homestead absolutely void; the laws regulating the time of employment of women, which have scarcely been questioned; the laws providing for an equity of redemption in mortgaged estates and other laws in restraint of alienation; the laws of assignment and bankruptcy, allowing obligations to be liquidated upon payment of a certain per cent of the amount due. The principle of public policy has operated to deny the enforcement of contracts in waiver of the right of redemption and the statute of limitations, contracts limiting the liability of common carriers and in restraint of trade, such as a contract to refrain from conducting a certain kind of business.28 None of these could be said to come within the scope of the police power unless we give to that power a wider scope than is usually given, and yet they are all limitations upon the right of contract. Mr. Stimsom29 carries the doctrine so far as to hold that "it is

28 In Oregon Steam Nav. Co. v. Winston, 20 Wall. (U. S.). 64, the court said that there are two grounds upon which the doctrine that a contract in restraint of trade is void as against public policy-1st, the injury to the public by being deprived of the restrained party's industry: 2d, the injury to the party himself by being precluded from pursuing his occupation, thus preventing him from supporting himself and family. 29 Hand Book of Labor Laws, p. 40.

possible that a statute requiring municipal corporations to pay not more than a certain sum (for wages) would also be held unconstitutional in favor of the city or town resisting it;" and, further, speaking of the towns in the New England States fixing the price they would pay to unskilled labor, that "such resolutions have not commonly been questioned, though it may be doubted whether town officers are governed thereby." This position seems quite untenable, as it is a well-established principle that the various officers and agents of government, under our system, can only act within the powers granted them; that they, as officers, are purely creatures of law and prescribed in their action by the law; that such provisions as those mentioned only prescribe the kind of contract that the State, through its officers can make, and unless they operated to prevent the operation of governmental functions there seems no reason why officers, as the agents of the State, should not be bound.

When we consider that the scope of "police power" is wholly undefined, even in the minds of jurists-it not having been reduced to any stated principle, its scope really residing in the mind of the court applying it— when we consider that there have been many invasions of the right to freedom of contract on other grounds than that of police regulation which have been supported by the courts, and when we further consider that in the several States many legislative restrictions upon contracts relative to capital and labor have been upheld or been allowed to stand for years unquestioned, the courts in the future may perhaps be pardoned for looking for some other ground than that heretofore taken for declaring legislation of this character unconstitutional. It may be safely predicated that courts, as well as legislatures, are largely the product of the age; that their environment is reflected in their decisions; that public policy and the demands of the general welfare will modify

precedents, make prominent other principles and carry the courts along with what seems to be the necessary trend of legislation. Under the present highly organized industrial system capital and labor are separated; privity of contract is not between the capitalist and the laborer but with an entrepreneur, who is often in control of large interests. He himself is often financially irresponsible. Under a regime in which enormous accumulations of capital are controlled by a few and in which industrial organization is largely of a corporate character, with this changed and ever changing environment, it becomes necessary that the established order, the law, should also change in order that essential justice may be maintained. This seems to be the tendency of law under our free institutions. The remarkable evolution that has taken place, and which in this cursory manner we have sought to trace, is the reflection of environment. The logic of events which made this adaptation necessary requires that the machinery of government should support it.

The status of the laborer has been changed; the attitude of society reversed. Instead of being considered a serf, existing for the benefit of his master or employer, he is a citizen with equal rights. Instead of being regarded as an inferior he is looked upon as a peer. Labor is no longer ignominious as of old, but to-day, he is most highly respected who is the greatest servant of society. It was by unremitting toil that a foothold was gained upon this continent, and ever since "work" has been the watchword of our American society. It was by hard work that the pioneer pushed his way out into the forests and carved out his new home; it was work that transformed this continent from a broad expanse of wilderness to a grand mosaic of fertile fields and happy homes; it is work that has, during the last fifty years, brought us out from an insignificant place among nations

to be the wealthiest and most resourceful on the face of the earth. It is toward the sluggard, the breather in indolence, whether he be lord, duke, "remittance man" snob, dude or tramp, that society to-day points the finger of scorn. Standing upon the high plain of equity, which was established during the colonial period, the tendency has been to constantly adapt our legal system to the social and industrial environment. As the social and industrial conditions become modified, our lawmakers, being dependent upon the laborer, the capitalist and the undertaker alike for support, constantly seek adaptations which will render justice toward all according to the highest political consciousness of the State. We claim no Eutopia. We do not assert either unanimity or perfection in our laws; but the tendency is plainly to be seen. There are many conditions that we might wish otherwise, many new questions to be solved in our relations one with another as our civilization progresses, but with our present system of co-operative government, our higher standards of education and our better knowledge of existing conditions the result is assured.

II.

DEBTOR AND CREDITOR.

Unfortunately, our laws governing the relation of debtor and creditor at the time of the establishment of our independence had also come from England. Severe as were the laws of other nations, as stated by Grahame,30 "no modern nation had ever enacted or inflicted greater legal severities upon debtors. That jealous regard for liberty and national honor, that generous concern for the rights of human nature which the English have al

30 Grahame's Hist., Vol. III, p. 179.

ways claimed as distinguishing features of their character, had proved unable to withstand the most sordid and inhuman suggestions of commercial ambition. For the enlargement of their commerce they sanctioned the atrocities of the slave trade, and for the encouragement of that ready credit by which commercial enterprise is promoted, they armed the creditor of insolvent debtors with vindictive powers, by the exercise of which freeborn Englishmen, unconvicted of crime, were frequently subjected to a thraldom as vile and afflicting as the bondage of negro slaves in the West Indies." Even this portrayal of the legal status and condition of those who, by misfortune, mismanagement, of failure in business judgment, had become insolvent does not paint the picture black enough. Lord Townsend is recorded as saying:31 "The case of many insolvent debtors was, by the unmercifulness of their creditors, worse than that of galley slaves who were provided for and kept clean, whereas in England they are in a starving condition and rotting in a gaol." Again says Grahame: "So long was it, before English sense and humanity were fully awakened to the guilt and mischief of their barbarous legal system and its still more barbarous administration, that, till a late period in the eighteenth century, misfortunes in trade exposed an Englishman to a punishment more dreadful than the nineteenth century would suffer to be inflicted upon the most infamous and detestable offenders." Says May:32 "By imprisonment restitution was made impossible. A man was torn from his trade and industry and buried in a dungeon. The penalty of an unpaid debt was imprisonment for life. * * * He might become insane or dangerously sick, but the court was unable to give him liberty." Among other cases we have recorded that of a

31 Cobbette's Parl. Hist., Vol. VIII, p. 680. 82 Const. Hist. of Eng., Vol. II, p. 269.