Standards of American legislation : an estimate of restrictive and constructive factors

Front matter

^933

3 1924 019 947 112

DATE

Preface

This book gives in somewhat expanded form the substance of a series of lectures delivered at Johns Hopkins University in March, 191 5. The origin of the book explains its character: it is an essay of constructive criticism, and not a systematic treatise. Its purpose is to suggest the possibility of supplementing the estabUshed doctrine of constitutional fe^* which enforces legislative norms through ex post facto review and negation by a system of positive principles that should guide and control the making of statutes, and give a more definite meaning and content to the concept of due process of law. It is hoped that the book may be found to be a slight contribution to the rapidly growing movement for the improvement of our statute law.

Table Of Contents

PAGE

Summary of Contents ix

Introduction i

CHAPTER I. HISTORIC CHANGES OF POLICY AND THE MODERN CONCEPT or SOCIAL LEGISLATION

1. The right of personality; the abrogation of status differences: (a) Abrogation of slavery — (6) disappearance of legal class distinctions; equal protection clause; race legislation — (c) recognition of legal rights of aliens; immigration legislation — (d) emancipation from domestic subjection; wife in Roman and modern Continental law; at common law; married women's legislation; no sex disabihty; status of child; guardianship; personal protection; juvenile dependency laws — nineteenth-century achievements — race problem.

2. Freedom of thought: Constitutional guaranties of freedom of reUgion, speech, and press — ^former poUcy of religious conformity; now universal toleration, if not equahty — former state control of printing-press; liberalization of law of hbel; practice of nineteenth century — sedition — complete reversal of former poUcies — attitude toward anarchistic agitation.

3. Repression of un thrift and dissipation: Sumptuary legislation; gambUng, drink, and vice — relation of state to moral ideals — legal morality and established order — relegation of ethics to church — ecclesiastic jurisdiction and sex relations— marriage — non-forcible injuries— post-reformation legislation regarding gambling, drink, and vice — main Hues of policy — democratic policies more radical — standards of legislation versus standards of enforcement.

X SUMMARY OF CONTENTS

4. Protection of public health and safety: LeSs a change of policy than a change of conditions — new mechanical forces in industry — new scientific control of disease — safety subordinate to effective industry — ^flexible administrative sanitary control — incisive invasion of personal and property rights — comparison with oriental system of polity; custom and law.

5. Growth of social legislation: Growing value of individual human personahty; mass welfare instead of estabUshed order the test of public good — meaning of social legislation — ^repression versus relief of lower classes — ^poor law — ^factory laws — new meaning of term since 1880 — social welfare measures — changing character of relief — ^respectable provision unattended with degradation — insurance features — Europe more advanced than America — relief, not reconstruction — child legislation sociaUstic; education, vocational training — extension of factory laws to women — ^hours of labor for women in America — advance from sanitary to social basis — justification of differentiating legislation on basis of sex — economic handicap of women — interest of state in their freedom for domestic function — ^historic ideals of individualism inapplicable to women — principle of non-interference with regard to male adult worker; exception for truck legislation; recent departures from principle in England; coal miners' and sweated trade laws — ^reconstructive agrarian legislation in Great Britain and Ireland — demands of labor how far within practical legislative pohcy? — question of knowledge and power — American judicial attitude toward labor legislation explained by resistance to new concept of state function — ^impossibiUty of identifying economic policies with immutable principles — courts exercise a political, not a judicial function.

Chapter II. The Common Law And Public Policy

The common law as containing the essentials of justice and policy — common law formerly supplemented by local law, royal prerogative, and the church — decline of EngHsh local law — the church as guardian of pubhc morals — abrogation of punitive ecclesiastic jurisdiction.

Equity confined to property interests — no advance through equity in standards of charity — ^married women not protected

SUMMARY OF CONTENTS xi

on personal side — ^infants wards of equity only as holders of property.

Royal police power exercised through Star Chamber — ^peace and established order its main objects — ^public policy of Star Chamber gives way to different ideals.

Connection of royal power with corporations — requirement of positive sanction as means of public control — special remedies against corporate misdoing.

The common law of the common law courts — ^justice as a rule justly administered — ^preference of simplicity to close adjustment to varying conditions — illustration from rule against perpetuities — public policy in contracts — non-differentiation of commercial law — effect on protection of purchasers — absence of distinct poUcy in law of landlord and tenant — fellow-servant doctrine as a rule of abstract justice without reference to social interests and effects — no conscious capitahstic bias — common law spirit of neutrality; subordination of policy to justice.

Agreements contrary to pubHc pohcy — ^pubHc interest identified with faciUties for pubUc service rather than with largest opportunity for individual usefulness — recent change of judicial attitude — Enghsh attitude toward "contracting out"— American attitude basing defenses of assumption of risk and of fellow-servant doctrine on implied contract — freedom of contract as a paramount policy — ^recent change in this respect.

Public pohcy in law of torts and misdemeanors — felonies distinguished from offenses against pubUc pohcy — neghgence, nuisance, and conspiracy — strict judicial standards of duty of care as a factor in raikoad safety — contrast in duty toward passengers and duty toward employees — employers' liabiUty legislation — no effective preventive relief — no adequate remedy for occupational disease — law of nuisance as a protection to property, not to the person — capitahstic combinations not actionable at common law — unsatisfactory status of labor combinations under civil law of conspiracy.

Criminal aspect of offenses against pubhc pohcy— no criminal offense of neghgence if no loss of hfe— vagueness of offense of criminal conspiracy — association with labor movement — criminal law of nuisance as the common law of the pohce power — cases of xii SUMMARY OF CONTENTS

common-law prosecutions of violations of public safety and order — unsuccessful attempt to treat sale of intoxicating liquor as a conmion-law nuisance — no nuisance unless actual mischief — not adequate for prevention.

Summary of shortcomings of common law as system of public policy.

CHAPTER ni. THE TASKS AND HAZARDS OF LEGISLATION

A. Legislation and the vagueness of common-law standards: (i) Restraint of trade and monopoly — generic prohibitions of American anti-trust legislation — the Trans-Missouri and Joint TraflBic decisions — the rule of reason of the Standard Oil and Tobacco decisions — contention that test of reasonableness made penal provisions unconstitutional denied by Siipreme Court — specification of practices by Clayton Act — new method of Federal Trade Commission Act. — (2) Legislation and the common law of fraud — ^fraud more definite concept than restraint of trade — common-law standards of commercial honesty too low — former English legislation for regulation of trade — repeal in 1856 — early New York legislation — abrogation of inspection offices in 1846. — (3) Legislation and the common law of nuisance — ^lewdness and obscenity and the interests of science, art, literature, and social propaganda — doubt as to success of further legislative definition — trade nuisances — ^precarious status of offensive industries — a case for legislative adjustment — license and regulation — common-law offense necessarily superseded thereby — health and safety legislation — ^precautionary measures and invasion of province of legitimate action.

B. Problem of dealing with apprehended tendencies and conjectural dangers: Liquor — policy of prohibition — ^liquor as article of commerce — Webb-Kenyon Law — lawfulness of consumption. — Gambling — European toleration — ^prohibition in America. — Horse racing — New York legislation. — Stock dealings, options, and futures — stock exchange regulation and bucket shops — ^prohibition of options and dealings in futures — sustained by the courts but statutes changed. — Oleomargarine legislation — ^prohibition of imitation of butter — ^prohibition of substitutes for butter — ^judicial attitude toward latter prohibition — imitations and substitutes and

SUMMARY OF CONTENTS xiii

freedom of commerce — repeal of prohibition of substitutes — danger not adequate ground for legislation suppressing genuine economic utilities. — Conjectural dangers and the question of fact — inadequacy of judicial power — ^importance of issue — conclusiveness of legislative judgment where there is genuine difference of opinion — common error makes law — ^problem of doubtful facts can be handled adequately only by legislature — limited possibility of judicial control. — Conjectural dangers and the question of good faith — issue in legislation for licensing requirements in trades — diversion of legislative power to improper ends — ^judicial unwilUngness to question legislative motive.

C. The problem of contested and unmatured standards — legislation by indirection — new standards under guise of familiar powers — ^legislative unwillingness to relax standards once established — ^illustrated by status of public amusements.

1. Violation of social obligations: Malice, wantonness, and sharp practices — unprofessional conduct — German Civil Code, Sees. 138 and 826 — maUce not actionable — spite-fence legislation — unreasonable notice to quit in recent English legislation.

2. Liability for industrial accident — insurance — obhgation divorced from fault — workmen's compensation and the New York decision — measure not one of liability but of relief on basis of solidarity — insurance as only adequate form of solidarity.

3. Disfigurement or unsightliness — outdoor advertising and promotion of beauty — Prussian and English legislation — amenity — protection of established character of locality — American judicial view against legitimacy of restriction for aesthetic purposes — desirability of emphasizing protective character of legislation.

4. Unfair competition — German Act of 1896 — anti-scalping legislation and trading-stamp legislation — unconstitutionality of latter — ^predatory price-cutting — rationale of price maintenance — careful analysis of unfair practices.

5. Oppression and exploitation — not common-law concepts — canon-law concept of usury — usury legislation of England and Germany — economic labor legislation — truck and weekly-payment acts — ^American judicial attitude — doubt and resistance — exploiting character of practices not demonstrated to courts— approximation to economic control— failure to assign limits to legislative xiv SUMMARY OF CONTENTS

power — minimum-wage acts as legislation against exploitation^ requirement of special finding for each case — subnormal or antisocial practices.

6. Discrimination — discrimination by law and by private act — civil rights legislation — discrimination by railroad companies — common-law status — European legislation— American legislation — connection with monopoly — Oklahoma constitution — Clayton Anti-trust Act — substantially similar circumstances and conditions — eUmination of this qualification in the long-and-short-haul clause in 1910 — ^residual discretion shifted from railroad company to interstate commerce commission — ^policies to be evolved by commission.

7. New standards and ascertained facts — desirability of substantiating case for new legislation — ^frequent failure to do this in America — effect of substantiation on judicial decisions.

8. Abuse-correcting and standard-creating legislation — application to billboard and city-planning legislation, to hours of labor, to economic labor legislation, to minimum-wage acts — corrective rate regulation and two-cent fare acts — long-and-short-haul clause — corrective legislation proper province of police power — discretionary standards in exercise of state's proprietary power, in taxation, in licensing power — difference not one of constitutional power.

Chapter IV. Constitutional Provisions

Neglect of positive content of state constitutions by writers on constitutional law — ^preponderance of provisions relating to organization over those relating to action — excess of detail of judicial and administrative organization — ^represents no important constitutional policy — unintended resulting limitations of legitimate legislative power — recent constitutions more rapidly antiquated than older ones.

Provisions to increase popular control — suffrage — ballot — elective office — election of judges — direct legislation, initiative, and referendum — demand for popular power of control stronger than its exercise — shght reaction in short-ballot movement.

Provisions relating to legislative policy or action — reversal of original tendencies — character and origin of bills of rights pro-

SUMMARY OF CONTENTS XV

visions — federal guaranties — general character of nineteenth-century restrictions. — Restraints on formal side of legislation, procedure, and style — ^procedural requirements, conditions under which they are practicable or desirable — style requirements, title, subject-matter, amendments, productive of technical defects — suggestion for reducing this risk. — Substantive limitations — debt and taxation — private and special legislation — local legislation — home rule guaranties. — Humanitarian provisions, education, penal reform, married women, labor. — Social and economic policies — lotteries — provisions regarding intoxicating liquors — constitutional prohibition inapplicable to capitalistic enterprise — ^prohibition of special charters. — Banks — requirement of referendum for banking legislation — ^positive bank regulation through constitution — Florida — other constitutional banking provisions, shareholders' liability. — Railroads — constitutional provisions since 1870 — stability of constitutional provisions — they merely register established legislative poHcies — subjects absent from constitutions — shght practical effect of constitutional expression of railroad pohcy. — Corporations in general — ^prohibition of special charters— other provisions for guarding fulness of state control — constitutional corporation commissions — ^no definite poKcies regarding corporate organization, powers or finance— shareholders' Kability provisions fluctuating — ^public service corporations — corporation article in Oklahoma constitution. — General character of positive constitutional policies — they do not inaugurate but register — slight care in phrasing — inability to check abuses through constitution — untenable experiments — scarcity of judicial decisions — ^prohibition of public aid to private enterprise a successful constitutional pohcy — significance of mere fact of provision through constitution. Constitutions and fundamental rights — some progress in freedom of reUgion, speech, and press — additional rights to compensation under eminent domain — ^protection of personal rights against corporations — ^principle of equahty — no additional guaranties corresponding to growth of poUce power— ^biUs of rights in constitutional conventions — incidental issues in connection with fundamental guaranties — due process and law of land— fulness of Massachusetts Body of Liberties of 1641 — enumeration of rights more complete in Switzerland than in United States— bills of rights xvi SUMMARY OF CONTENTS

Stationary— no formulation of principles of reasonableness — indifference to development though sentimental attachment to existing guaranties— principle and tradition outside of written constitution— constitution-making democracy not actively concerned with right and justice.

Chapter V. Judicial Doctrines

Individualistic spirit of private law^tendency against implication of obUgations in property and contract — ^favored position of defendant— ^procedural guaranties of Great Charter— protection of private right against authoritative encroachment — ^protection of common-law liberty against abuse of royal prerogative — ^protection of general liberty against unreasonable regulation through common-law restraints on municipal power of making by-laws — assumption of entire regulative power by Parliament obscures common-law protection against unreasonable regulation — ^parliamentary omnipotence inconsistent with sphere of private immunity — EngHsh law without theory of legal rights against the state — Locke's idea of natural right realized only through revolution — no limitation of legal character upon Parliament — conditions in colonies making for different state of mind, people as source of power, natural rights, fundamental laws, Parliament without power to bind because colonies not represented in it — ^foundation for constitutional system of Umited legislative powers — limitations specific, not inherent or implied — ^judicial power to declare laws unconstitutional. — History of enforcement of general limitations — few decisions prior to 1850 based on non-specific clauses, but far-reaching dicta — between 1850 and 1870 two decisions opposing general constitutional limitations to legislative regulation of civil liberty — after 1870 first decisions declaring unreasonable regulation unconstitutional — significance of Slaughter-House cases, Loan Association v. Topeka, and Granger cases — from middle of eighties labor legislation decisions — doctrine of freedom of contract — ^New York decision against workmen's compensation legislation — other decisions invalidating legislation affecting property or business — established doctrine of power to declare unconstitutional on ground of general right of liberty — ^present association of power with due-process clause — originally no thought of need of protection in this

SUMMARY OF CONTENTS xvii

respect — courts protecting now in the name of due process fundamental policies and not merely cardinal or immutable principles of justice — ^political demand for such protection by courts — indefiniteness of ground of judicial control of a defect of law but not of policy — no danger of permanent hindrance to legislative progress, rather danger of inadequate protection for poHcy of individual freedom — constitutional issues are issues of power and policy — ^judicial control incapable of developing permanent principles of legislation.

Chapter VI. The Meaning Of Principle In Legislation

Precedent and customary practices in legislation — ^principle in legislation different from principle in common law — mandatory character of constitutional requirements — ^freedom of policy — settled policies — agreed pohcy as the principle of a particular statute — ^principle as the inherent law of legislation — ^principles expressed in constitution — equaUty — due process and reasonableness — ^principle that remote or conjectural danger does not justify suppression of legitimate and valuable interests — illustrated by legislation regarding oleomargarine and options and futures — course of history set against judicial opinion — ^principle that penal legislation should avoid elastic prohibitions where difference between legitimate and unlawful is one of degree — ^history of criminal enforcement of Sherman Act — common-law offenses violating same principle; common law, due process, and principle — general phrases in enabhng acts; in acts granting civil remedies.

Correlation of provisions — logical consistency of different parts of same rule — ^lack of correlation without fatal inconsistency of terms — correlation in the common law a consequence of unity of system — exceptions — ^partial statutory change of common law producing uncorrelated conditions. — (i) Doctrine of Abilene case, common-law remedy inconsistent with rule of non-discrimination, eliminated by judicial construction. — (2) Traffic agreement cases— Sherman Act apphed by majority opinion to railroads — dissenting opinion shows that regulated rates inevitably produce understandings and agreements — continuing practice of concerted action by railroad companies in matter of rates — executive recommendations to bring law in conformity with practice. — xvui SUMMARY OF CONTENTS

(3) The Pipe Line cases — ^pipe lines made common carriers by same act which forbids raihroad common carriers to transport commodities produced or owned by them — inconsistency of forcing companies which had never been carriers for others into relation declared for other carriers to be contrary to public policy — ^inconsistency avoided by judicial construction. — (4) Illinois warehouse legislation — statute permitting warehousemen to store their own grain declared invalid as inconsistent with constitutional policy of warehouse regulation. — ^Difference between positive disharmony and imperfection due to omission — ^judicial attitude toward right of murderer to inherit from victim — canons of construction often do not permit supplementing of defective rules. — Correlation in labor legislation — ^remedying grievances by shifting balance of inconvenience to other side. — Coal-weighing legislation — reference of problem in Ohio to commission — ^resulting compromise measure sustained by Supreme Court. — Membership in labor unions and right of discharge — Coppage v. Kansas — weakness of reasoning of prevaiUng decisions — failure of legislation to protect legitimate interest of employer — bare denial of legislative power should be replaced by more perfect correlation of rights and obligations — absolute correlation a counsel of perfection — ^inevitable social and economic maladjustments — ^legislative attempts to correlate in new forms of statutory liability — statute law more complex than common law.

Principle of standardization — certainty, objectivity, stability, uniformity. — (i) Conformity to scientific laws — ^necessary compromises with prejudice and available resources — technical task of translating conclusions of other sciences into terms of statutes — standardization of juristic data — neglect of constructive jurisprudence by legal Hterature — many juristic problems capable only of empirical or conventional solution, narrow range of scientific principle — expediency considerations — ^weight to be given to adverse factors, to probability of unintended reactions — observance of certain order of transition to new standards and policies. — (2) Observance of definite method in reaching determinations — reasonably constant relations between determinations on cognate matters, particularly where legislation deals with measured quantities— inferiorityin thisrespect of American legislation. — (3) Standardization of offenses and penalties. — (4) Avoidance of instability

SUMMARY OF CONTENTS xix

of policy — comparison of number of amendments in different codes of procedure — non-contentious provisions — their treatment in England — clauses — consolidation acts — French and German administrative codes — difference between federal and state legislation — advantage of segregation of subsidiary clauses — lack of attention to technical detail where substantive policy is the main issue — administrative provisions of Sherman Act — informers' shares — futility of drastic penalties — separate codification of administrative clauses as a statutory bill of rights.

Constitutional principles of equality and standardization of elements of differentiation — superior differentiation where; legislation is comprehensive — judicial enforceabihty not a necessary attribute of principle of legislation — safeguard of principle in method of legislation.

Chapter VII. Constructive Factors

The courts as constructive factors — ^jurisdiction to annul, not to correct legislation — ^judicial construction as supplementary legislation — spirit of constitutional construction — Marbury v. Madison — enumerated jurisdiction construed as exclusive jurisdiction — doctrine of resulting limitations — constitutional powers exempt from legislative regulation — mutual exclusiveness of state and federal powers — appHed to taxation — impossibiUty of carrying out principle logically — ^inequity of recognized exemptions — judicial view of legislative poHcy and vested rights — doctrine that poUce power cannot be bargained away — L. &° N.R. Co. v. Mottley — judicial view influencing legislature or forced upon it — apprehension of judicial attitude unfavorably affecting legislative practice in matter of constitutional style provisions — spirit of adjudication compared with spirit of legislation, minimum versus maximum of reciprocal concession.

Legislative practice as a constructive factor — superiority of technical standards in Europe — ^practical monopoly of legislative initiative possessed by European governments — executive initiative professionalizes drafting — German practice of drafting measures — government has to defend measures in ParUament — ^history of drafting in England. — Possibilities of increased executive participation in America. — ^Defects of American legislative procedmre — ^lack of responsibility for introducing bill— lack of adverse procedure in

XX SUMMARY OF CONTENTS

passing bill — multiform organization of legislation not utilized for functional differentiation — revisory function of European second chambers — executive initiative without veto counts for more than veto without initiative — large political body likely to be indifferent to technique. — EngHsh private bill legislation a procedure looking toward observance of principle — serves in England special purposes otherwise taken care of in United States — same procedure not applied in England to general legislation — ^procedure does not contain our constitutional safeguards — not available as instrument of reform. — Improvement of legislative procedure — undesirability of new constitutional requirements. — (i) Commission for preparing bills proposed for Illinois — ^preparation of bills by special commissions — growth of practice in recent years. — (2) Delegation of power to administrative commissions — more professional point of view — action more readily controllable by reference to general principles — commission action and rulings as best if not only method of standardization. — (3) Organization of drafting bureaus — report to American Bar Association, 1913 — relation of legislative reference to legislative drafting — tenure of draftsmen. — (4) Codification of standing clauses — list of topics in report to American Bar Association, 1913 — legislative drafting manual — non-mandatory character of clauses acts.

Jurisprudence as constructive factor — small proportion of scientific legal thought given to problems of constructive legislation — legal writings adapted to needs of practitioners — domination of legal science by professional point of view in other countries and systems — more favorable condition for constructive legal thought in Germany than in America — task of American law schools.

Source material — text of statutes, lack of indices, lack of information on origin of provisions — current collections of statutes — secondary legislative material: debates, reports, documents, for Congress and for states — administrative reports — conference proceedings — secondary legislative material for European states — parliamentary debates — Enghsh Bluebooks — German documentary material— English and American law reports as source of history of legislation.

Practical value of system of principles of legislation.

Introduction

The last ten years have witnessed remarkable changes in the attitude of American courts toward social legislation. In 1905 the negation of legislative power seemed to have reached its extreme limit in the decision of the Supreme Court in the so-called bakeshop case (Lochner V. New York, 198 U.S. 45). In 1908 the favorable attitude of the same court toward the limitation of women's hours of labor gave hope for greater liberality (Mtdler v. Oregon, 208 U.S. 412), and this hope was strengthened in 1910 by the apparent change of position of the Supreme Court of Illinois on the same question of women's hours of labor {Ritchie v. Wayman, 244 111. 509). There followed, however, a year afterward, in 191 1, the aimulment of the workmen's compensation act of New York by the Court of Appeals of that state {Ives v. South Buffalo R. Co., 201 N.Y. 271). While this extraordinary ruling did not, as subsequent developments have shown, stop the onward course of the type of legislation which it checked only slightly, yet as the unanimous expression of the most important of state courts it could not be regarded otherwise than as extremely significant. It seemed quite inadequate to apply to such a decision the usual methods of legal criticism; for even if it were possible to demonstrate conclusively the imsoimdness of the conclusion reached by the court, the question would.

remain how it was possible that so narrow a view of legislative power could command such eminent support and what theory of judicial control or of constitutional limitation it indicated.

A clue to the situation may be discovered in the opinion itself. The court speaks of the cogent economic and sociological arguments urged in support of the workmen's compensation law; it adrhits the strength of the appeal to a recognized and widely prevalent sentiment; but, the opinion adds, "it is an appeal which must be made to the people and not to the courts." Here, in other words, is a law that can be made by the people, but not by the legislature. It is well known that the appeal was successfully made, and that a new compensation law was enacted under express constitutional authority which the Court of Appeals has since sustained {Jensen v. So. Pac. R. Co., 215 N.Y. 514).

To the Comrt of Appeals, then, the due-process clause of the constitution, upon which it based its decision, was not, as the similar clause in the federal Constitution appeared at least in one case to the Supreme Court, a clause intended to secure the immutable cardinal principles of justice (169 U.S. 387). It is imthinkable that the court should have suggested an appeal to the people to subvert those principles. It was rather a fimdamental policy of distributive justice which the New York Court saw fixed upon the state by the guaranty of due process — ^fundamental, but after all only a policy, likely to be changed by the progress of economic and social thought.

INTRODUCTION 3

It is an interesting and significant fact that the attitude of the courts toward social legislation which culminated in the Ives case gave rise to the demand for a right to recall judicial decisions which was inscribed upon the platform of a pohtical party. The demand represented, in addition to the dissatisfaction with the judicial resistance to policies indorsed by progressive and insistent popular sentiment, a strong political reaction against the claim of judicial power to fix upon the state by way of constitutional interpretation policies which were merely implied and upon which the people had never had a chance to declare themselves explicitly. If the movement for the recall of judicial decisions is severely condemned — ^and there is no intention here to defend it — ^it should at least be imderstood how it arose, and it should help us to discriminate between poUcies and principles.

The popular objection to the attitude of the courts in opposing to social legislation alleged constitutional policies was, however, not merely that these policies were implied and therefore judge-made; more serious was the fact that they were entirely indefinite. It would be possible to read into our constitutions, as essential to republican government, a right of political association in analogy to the explicitly guaranteed right of assembly. Such a right could be easily formulated and its limits judicially defined without great difficulty. It is otherwise with the rights that are supposed to stand in the way of advanced social legislation. We have heard much of freedom of contract. Would anyone be prepared to place this right by the side of freedom of press and religion without definition or qualification ? Legislative regulation of the right of contract can obviously be questioned only by reason of the manner and extent, not by reason of the mere fact, of its exercise. But then, from a legal standpoint, the essential thing is not the right, but its qualification, and an undefined claim to freedom of contract presents in reaHty no justiciable issue.

What then have the courts done to define the issue ? Have they said that the freedom of contract may be impaired only for the protection of public health and safety ? No, for they always also make a reservation for the vague interest designated as public welfare. Do they concede to the state the right to interfere on behalf of economically inferior classes? There is as yet no clear doctrine to that effect. After all, the courts offer us nothing more definite than the idea of reasonableness, a criterion which lacks both precision and objectiveness. What should we say to a similar criterion in the law of property? A family settlement has been said to be much like an act of ParHament, and, not unlike public legislation, it impairs the freedom of property. The courts have therefore established a rule against perpetuities. In an early leading case (Duke of Norfolk's case, 3 Chancery Cases i [1682]) Lord Chancellor Nottingham, who had sustained a settlement which made property inaUenable for a number of lives in being, was asked to indicate the bounds of a lawful limitation: What time ? Where are the bounds of that contingency ?