these processes may bring pecuniary pressure to bear upon the choice of the workmen; but since the rights of property which enforce such pressure are not repugnant to the principles of natural liberty, neither is such pecuniary pressure repugnant to the law, the case is therefore outside the scope of the law. The converse case, where the workmen take similar advantage of their employers to bring them to terms, is similarly outside the scope of the common law, - supposing, of course, that there has in neither case been a surrender of individual liberty, a breach of contract, theft, a resort to violence, or threats of violence. So long as there is no overt attempt on life, liberty of the person, or the liberty to buy and sell, the law cannot intervene, unless it be in a precautionary way to prevent prospective violation of personal or property rights.
The "natural," conventional freedom of contract is sacred and inalienable. De facto freedom of choice is a matter about which the law and the courts are not competent to inquire. By force of the concatenation of industrial processes and the dependence of men's comfort or subsistence upon the orderly working of these processes, the exercise of the rights of ownership in the interests of business may traverse the de facto necessities of a group or class; it may even traverse the needs of the community at large, as, e.g., in the conceivable case of an advisedly instituted coal famine; but since these necessities, of comfort or of livelihood, cannot be formulated in terms of the natural freedom of contract, they can, in the nature of the case, give rise to no cognizable grievance and find no legal remedy.
The discrepancy between law and fact in the matter of industrial freedom has had repeated illustration in the court decisions on disputes between bodies of workmen and their employers or owners. These decisions commonly fall out in favor of the employers or owners; that is to say, they go to uphold property rights and the rights of free contract. The courts have been somewhat broadly taken to task by a certain class of observers for alleged partiality to the owners' side in this class of litigation. It has also been pointed out by faultfinders that the higher courts decide, on the whole, more uniformly in favor of the employer-owner than the lower ones, and especially more so than the juries in those cases where juries have found occasion to pass on the law of the case. The like is true as regards suits for damages arising out of injuries sustained by workmen, and so involving the question of the employer's liability. Even a casual scrutiny of the decisions, however, will show that in most cases the decision of the court, whether on the merits of the case or on the constitutionality of the legal provisions involved, is well grounded on the metaphysical basis of natural liberty. That is to say in other words, the decisions will be found on the side of the maintenance of fundamental law and order, "law and order" having, of course, reference to the inalienable rights of ownership and contract. As should fairly be expected, the higher courts, who are presumably in more intimate touch with the principles of jurisprudence, being more arduously trained and more thoroughly grounded in the law at the same time that they have also presumably a larger endowment of legal acumen, - these higher courts speak more unequivocally for the metaphysical principles and apply them with a surer and firmer touch. In the view of these higher adepts of the law, free contract is so inalienable a natural right of man that not even a statutory enactment will enable a workman to forego its exercise and its responsibility. By metaphysical necessity its exercise attaches to the individual so indefeasibly that it cannot constitutionally be delegated to collective action, whether legislative or corporate. This extreme consequence of the principle of natural liberty has at times aroused indignation in the vulgar; but their grasp of legal principles is at fault. The more closely the logical sequence is followed up, the more convincingly does the legitimacy of such a decision stand out.
In comparing the decisions of the higher courts with those of the lower they contrast most signally with the decisions rendered by juries in the lower tribunals. While this contrast has a significance in another connection, it casts no shadow on the legality of the decisions of the courts of higher instance. The juries, in great measure, speak for the strained sympathies of the vulgar, which are a matter somewhat apart from the foundations of law and order.
Popular sentiment, then, does not at all uniformly bear out these decisions of the courts in disputes between property rights and naked mankind, especially not in the more rigorous enforcement of the principle of free contract. This discrepancy serves to show that the vulgar, the laity, from whose numbers the juries are drawn, have not an adequate sense of the principles that lie at the root of the law; which may be due in part to their not realizing how essential a foundation of law, order, and common welfare these principles of natural liberty are. The visible disparity in the distribution of property may make those classes who have little property envious of the wealthy members, and so make them lose interest in the maintenance of the rights of property. But apart from this, the discipline of daily life, from which the common-sense notions of the vulgar are in good part derived, is no longer in full accord with the natural-rights conceptions handed down from the eighteenth century. In other words, the conceptions of natural rights on which the common law rests embody a technically competent formulation of the deliverances of that body of common sense which was inculcated by the discipline of everyday life in the eighteenth century, before the advent of the current situation; whereas the discipline of everyday life under the current technological and business situation inculcates a body of common-sense views somewhat at variance with the received natural-rights notions.
There is apparently something of a divergence between the received notions on this head and the deliverances of latter-day common sense. The divergence is neither well defined nor consistent. The latter-day attitude toward questions of the kind involved is vague, chiefly negative or critical, and apparently fluctuating; but after all there is a somewhat persistent divergence, which may even be said to have a systematic character, so far as it goes. It runs in the direction of a (partial and vacillating) disavowal or distrust of the metaphysics of free contract, and even of natural liberty generally. This uncertainty of allegiance to the received foundations of law and order prevails in unequal degrees among the various classes of the community, being apparently largest and most outspoken among the workmen of the industrial towns, and being, on the whole, less noticeable among the propertied and professional classes and the rural population. The peculiar class distribution of this disintegration of received convictions, as well as its connection with modern industrial conditions, will be taken up again presently in another connection.
The state, that is to say, the government, was once an organization for the control of affairs in the interest of princely or dynastic ends. In internal affairs statecraft was occupied with questions of the dynastic succession, the endeavors and intrigues of the political magnates, fiscal administration directed to finding adequate support for the princely power, and the like. In external politics the objective end was dynastic prestige and security, military success, and the like. Such is still in part the end of political endeavor in those countries, as, e.g., Germany, Austria, or Italy, where the transition to a constitutional government has not been completed. But since the advent of constitutional government and parliamentary representation, business ends have taken the lead of dynastic ends in statecraft, very much in the same measure as the transition to constitutional methods has been effectually carried through. A constitutional government is a business government. It is particularly through the business expedient of parliamentary voting on the budget that any constitutional executive, e.g., is kept within constitutional bounds; and the budget is voted with a main view to its expediency for business ends. The expediency of business enterprise is not questioned, whereas the expediency of an increase of princely power and dignity, with the incidental costs, may be questioned.
Modern governmental policies, looking as they do to the furthering of business interests as their chief care, are of a "mercantile" complexion. They aim to foster trade, as did the mercantile policies of the sixteenth and seventeenth centuries, although since "trade" has come to include much else than foreign commerce, the modern policies look to business in the more comprehensive sense which the term now necessarily has. But these modern mercantile policies, with their tariffs, treaties, interstate commerce regulations, and maxims prohibiting all "restraint of trade," are after all not of the same nature as the mercantile policies of the old French and German statesmen, which they superficially resemble. The old "mercantile system," as it prevailed on the Continent of Europe, was conceived in the interest
