first the factory system made no provision for accidents to one of its family, so to speak. Consequently, within recent years, workmen's compensation laws have been enacted in most of the States to meet the situation. In the same way laws relating to payment of wages, establishing minimum wages, fixing hours of labor, prescribing working conditions, have been enacted in an effort to adapt ourselves to a life organized upon an industrial basis.

In view of the fact that we have to a considerable degree lost one social and racial tradition and have not as yet had an experience sufficiently long to gain another, it is not strange that there is in the public mind much confusion, that there is much misdirected effort, and in many instances, a total failure to visualize the situation as it in fact exists. Races and peoples have a strong tendency to carry forward the standards and traditions of the past. An example is the shaking of hands to bind a bargain, which has probably never had, certainly not for some hundreds of years, any legal significance, and yet every one of us would feel that a bargain upon which the parties had struck hands had a stronger sanction than it would otherwise have. So our people as a whole have a strong tendency to think in terms of the past rather than the present. While many of the leaders of political and social thought have quite clearly recognized the fundamental character of the trend of our time, it is only dimly apprehended by the great mass of our people. It may be said without disparagement that some of those whose apprehensions are quite dim, occasionally find their way into legislative bodies and into public offices. There they endeavor to force a complex industrial society into the legal and social traditions applicable to a rural agricultural society. To be wholly frank, it must also be said that many industrial managers have not yet realized the change in relationship and still regard their business as having no other than a private significance.

In an effort to readjust society to these fundamental changes, there has been the greatest outpouring of statutory law the world has ever seen. Statute is piled upon statute, administrative agency upon administrative agency, and to the great body of statutory law has been added a mass of administrative orders, with the force of law, until in the general confusion we have almost

lost our place. The enactment of these various laws and the making of these various orders have given the world the most remarkable exhibition of the trial and error method ever seen. As a people, we are quick, inclined to be impatient, and somewhat superficial. We are not willing to wait for results and are restive under restraints, even though they have been set up by ourselves for our own protection. The crucial period in this process of readjustment will come no doubt within the next fifty years. No one can now regard the adjustment as nearing completion, nor can we be certain that the fundamental principles upon which it is to be finally worked out are as yet clearly marked out.

It cannot be truthfully said that all lawyers or even all judges have perceived the fundamental nature of our problems and guided themselves accordingly. The social trend of our time is fundamental rather than superficial. We are, so to speak, turning a corner in social development. We are in the process of passing from one great tradition into another. We are endeavoring to adjust the political and social concepts of an age predominantly rural and agricultural to one which is predominantly industrial and commercial. Human relationships have been vitally altered many ways. If industrial society is to continue on its present basis, those who have gone out of the home into the factory must there have the safeguards, the guidance and the fair share of the proceeds of industry which they formerly enjoyed as members of a small economic unit, because no form of society can long exist which does not do substantial justice to its members.

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We cannot crowd the present industrial order into the legal molds which gave the rural agricultural order its permanence and stability. They are two different things. The process of adjustment, however, must follow some legal principle. Before the process is completed, we must make a final choice as to the fundamental underlying principles upon which the new order is to be based, and we are today as a people engaged in doing that very thing. The choice will not be made at one time. It will be partly a matter of judgment, partly a matter of development and growth. The ultimate choice lies between our constitutional system which upholds the right of private property even under an industrial order, and a more or less speculative untried system,

which in one form or another lodges complete control over our liberties and our property in the state. It makes no difference by what name you call this second concept-names are immaterial. Nor does it matter how respectable a disguise it wears. Under our Constitution and the old order, we had attained to the highest degree of personal liberty and personal rights that has ever been enjoyed for any considerable time by any people within the historic period. We had escaped from the bondage of feudalism, from the tyranny of kings and parliaments, and safeguarded ourselves against the whims and oppressions of majorities. In face of the fact that with the coming of the industrial order, society has tended again to rearrange itself in classes, with those having the greatest financial power at the top and those having less financial power at the bottom, in a general way typifying the old feudalistic order from which we struggled so hard to release ourselves, there has again sprung up a demand for a release from constitutional restraints, and a return to parliamentary supremacy. It is calmly proposed to depart from a government of laws to a government of men.

One of the anomalous things is that although the Revolution of 1776 was as much a revolt against the tyranny of parliaments as against the tyranny of a king, it is now proposed to lodge in Congress, which is a parliament, the supreme power to do the very things which the Constitution was set up to prevent Congress from doing. The Revolutionary War was brought on as much by the Stamp Act, the Search and Seizures Act, and the Taxation Acts passed by Parliament, as by the Orders in Council made by the King and his ministers. While the Declaration of Independence was addressed to the King and Parliament was not specifically mentioned, Parliament was equally, if not more responsible than he, for the conditions which drove the colonists to action. It is now solemnly proposed that we return to the system, our escape from which we have supposed for one hundred fifty years to be our greatest blessing.

Whence comes the demand for this change of system? It is not too much to say that it comes from those who, having a clearer vision of the nature of the change which society is undergoing, are impatient because this change cannot be effected at

once and completely. They are not willing to wait until the beginnings of a new tradition have been established. They wish the transformation to be made immediately. They wish to pull up the plant now and then to see if it is growing. Conceding that their motives are of the best and that they are actuated solely by a desire to promote the general welfare, can it be said that they act wisely? If here and there measures designed to aid in the process of adjustment to the new order are held to be in violation of constitutional restraints, that is no reason for throwing overboard the whole constitutional structure.

Many articles have been written to show that the power of courts to declare void laws which contravene constitutional limitations is derived from the Constitution itself. Certain it is that power is the only thing that distinguishes in substance our constitutional system from the parliamentary system of Great Britain. Whether we shall abandon our own system and return to theirs in whole or in part is a political question, a discussion of which is not germane to the matter which we are considering. It is not strange that among the most thoughtful and patriotic of our people there are differences of opinion. The deep-seated tendency which causes us to carry forward our traditional concepts of social and legal relations is so strong that it is difficult in many cases for us to distinguish between these concepts and fundamental constitutional principles. It is charged, and not without reason, that courts have in certain instances declared laws unconstitutional because they contravened the social and legal concepts of the judges rather than constitutional principles.

For instance, in Adkins v. Children's Hospital (43 Supreme Court Reporter, 394) the minimum wage law for women enacted for the District of Columbia was held unconstitutional because in the opinion of the court there was no ascertainable relation between the health and morals of women and their wages. In criticism of that decision, it has been said that whether or not there was such a relation was a question of fact, the determination of which was primarily for the legislative branch. Chief Justice Taft dissenting said:

With deference to the very able opinion of the Court and my brethren who concur in it, it appears to me to exaggerate the importance of the wage term of

the contract of employment as more inviolate than its other terms. Its conclusion seems influenced by the fear that the concession of the power to impose a minimum wage must carry with it a concession of the power to fix a maximum wage.

It is difficult to see how it can be said that statutes regulating hours of labor, working conditions, times and method of payment of wages, all of which limit freedom of contract, are valid and constitutional, and that a law which fixes a minimum wage is a "naked, arbitrary exercise of power," that cannot be allowed to stand under the Constitution of the United States. If what the Chief Justice says is true, the minimum wage law under consideration in the Adkins case was held to be unconstitutional because it contravened the traditional concepts of the rights of individuals held by the judges concurring in the opinion rather than a constitutional principle.1 In some cases the court could see the relation dealt with by the legislature; in the Adkins case it could not. The fact that an act of Congress or of a legislature may be held invalid by a court for some reason other than the plain violation of a constitutional provision, exhibits no doubt the greatest weakness in our system.

But what is the proper remedy? Because imperfection crops out here and there, shall we destroy the entire system? While it is at times charged that judges are ultra-conservative, reactionary, behind the times, and not in sympathy with the ideals of the majority, yet it is not charged that they are seeking power for their personal aggrandizement as executives sometimes do, or that they are playing politics, and shaping their decisions for their personal political advantage as legislators have been known to do. Are our hundreds of years of experience under the parliamentary system such as to warrant the people in conferring upon our legislatures State and National-unlimited power? Has any other system over any considerable period of time produced better results than has ours? Concede that courts have here and there erred and have mistaken their own legal concepts for constitutional principles, yet that constitutes no justification for a change from the constitutional to the parliamentary system. The Constitution itself provides a method by which mistakes may be cor1See Groat, Economic Wage and Legal Wage, Yale Law Journal, March, 1924, p. 489.