not entire unanimity of opinion on the part of the witnesses examined by the Commission, yet it is pointed out that

a number of witnesses expressed opinions, based upon their experience in the mining industry, that disputes concerning the introduction and use of screens had led to frequent and sometimes heated controversies between the operators and the miners. This condition was testified to have been the result, not only of the introduction of screens as a basis of paying the miners for screened coal only, but, after the screens had been introduced, differences had arisen because of the disarrangement of the parts of the screen, resulting in weakening it, or in increasing the size of the meshes through which the coal passed, thereby preventing a correct measure of the coal as the basis of paying the miner's wages.

In the face of the evidence set forth in the report of this Commission, and in the knowledge that such legislation had been deemed necessary by the legislatures in several of the states, the court declared itself "unable to say . . . that this law had no reasonable relation to the protection of a large class of laborers in the receipt of their just dues in the promotion of the harmonious relations of capital and labor engaged in a great industry in the state.

On the question of laws restricting hours of labor for women, there are instances where the conditions were of importance in shaping the opinion. In Wenham v. State Judge Barnes touches on this. Even admitting that in certain industries the employers and employees are practically on an equal footing when they are adult males, "these observations do not apply to women and children.

. . The employer who seeks to obtain the most hours of labor for the least wages has such an advantage over them that the wisdom of the law for their protection cannot well be questioned." The opinion also recognizes fully the difference in strength between the sexes and accepts fully a

distinction in law based upon well established facts of science. Judge Dunbar in State v. Buchanan reasons that while the

principles of justice are immutable, [yet] changing conditions of society and the evolution of employment make a change in the application of principles absolutely necessary to an intelligent administration of government. In the early history of the law when employments were few and simple, the relative conditions of the citizen and the state were different, and many employments and uses which were then considered inalienable rights have since, from the very necessity of changed conditions, been subjected to legislative control, restriction and restraint.

One other instance may be cited from this same class of legislation. The federal supreme court, speaking through Justice Brewer, laid great emphasis upon the conditions and the facts established by science. These opinions, he asserts, quoted from scientific sources

may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure and the functions she performs in consequence thereof justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.

The court will not admit that constitutional questions are to be settled by "even a consensus of present public opinion," for written constitutions place limitations on legislatures in an unchanging form and thus give "permanence and stability to popular government which otherwise would be lacking." Even in face of this general principle of great importance, the court admits that

when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.

That differing degrees of importance are attached to the weight of precedents is beyond question. In many cases precedent is followed and helpful legislation declared void. In others the conditions dealt with are deemed of sufficient weight to overcome the obstacle of precedent in the case and to justify the law. The former tendency gives little ground for hopefulness, but the latter justifies a good deal of optimism as to the future. A further discussion of this situation involves considerations of such fundamental importance that it will be postponed to the concluding chapter.

CHAPTER XXII

CONCLUSIONS

UNDERLYING all the confusion of interpretation and all the differences of legal opinion revealed in the decisions that have been reviewed are certain fundamental facts. These facts explain to a large extent the cause of the differences. If the differences, the confusion, the conflicting decisions and the general feeling of dissatisfaction are to any extent to be removed these facts must be realized.

First, it is undeniable that a certain theory underlies the legal view which is not generally accepted outside of legal circles. This theory is that law is based on certain principles of justice that are eternal and immutable. It leads to the idea that legal right is an unchanging concept. Inasmuch as those legal authorities now universally accepted wrote in the age when social-contract ideas prevailed, these principles and theories were expressed in terms of the social contract and of natural rights. Judges, lawyers and text-book writers continue to use the phrases. A consequence is that the common law brought over from the past into the present is expressed quite entirely in phrases that have but little if any present application.

We find ourselves, however, in this state [New York] at the beginning of the twentieth century substantially where we were at the beginning of the nineteenth century so far as the great body of our legal principles is concerned. The same.

situation exists in the great majority of the other states of the union.1

A second great fact is that of industrial change. This is so generally recognized as to make anything more than the mere statement of it unnecessary. Such declarations as that nothing is done today as it was a quarter century ago and that the past century has witnessed greater changes than all preceding centuries combined have ceased to be startling. They are taken for granted. This change in all our activities is due largely to transitions in industry that have forced the establishment of new relations between the various industrial factors. The world at the beginning of the twentieth century is a world undreamed of a century ago. Complexity and dependence have everywhere taken the place of simplicity and independence. The acts of individuals become everywhere matters of social concern. Isolation is impossible. Interdependence is unavoidable. Here is a contrast of almost immeasurable importance. Legal development lagging so far in the rear of industrial expansion gives rise to a situation that is well nigh impossible of practical adjustment. The situation has not escaped comment. Many writers refer to "the well-known but unfortunate fact, so often commented on, that our law has not kept pace in its development with our industrial evolution." 2

Closely related to these two great facts are two others of practical importance. The first relates to our written constitutions, state and federal. These constitutions took form at a time when the individualist philosophy dominated men's minds. The tenets of individualism were woven into

1 Hornblower, "A Century of 'Judge-Made' Law," Columbia Law Rev., vol. 7, p. 457, Nov., 1907.

Ely, Monopolies and Trusts, p. 29.