Page:The Green Bag (1889–1914), Volume 16.pdf/474

 Rh brought about on any theory that the lan guage or intention of the framers of the Con stitution was ambiguous, but because the Court considered that law being a "progres sive science," the opinion of today, not the intention of the framers. should fashion con stitutional law. What we have said has not been intended in any way as criticism, or as the slightest reflection upon the judicial knowledge, acu men and intellectual integrity of that great tribunal. In deciding as they have done it may well be that they have acted wisely and for the best interests of the nation. It is, however, necessary that we lawyers should appreciate exactly what is taking place in the domain of constitutional law; by compre hending the nature of the process and its re sults we are in a position to criticise intelli gently at least, and criticism where lawyers are concerned is a law of life. . . . The fact that we have written Constitution is an accident of our history. But we have developed and changed it no less radically and, perhaps, more so than the English have done their unwritten customary Constitution. This result has been reached wholly through the medium of judicial decision, save in the case of the three amendments following our civil war and designed to perpetuate its re sults. But these judge-made changes have usual ly been in accord with and due to the spirit of the age; the Court really doing little more than registering the modifications of the. national common consciousness. Hence, these changes hi most cases have passed un noticed. . . . The respect heretofore shown by our peo ple for the Constitution, and the almost ven eration with which they have regarded it, is in itself a sentiment that must be fostered and preserved, as the utility of the Constitution and its endurance must depend upon the ex istence of such a feeling. Destroy that con servative sentiment and the Constitution it self would be of little value.

425

"THE Validity of Legislation limiting Hours of Labor" is discussed by The Central Law Journal (May 6), which says: The only legal justification for such legis lation which has been advanced with any de gree of seriousness is that it is a legitimate exercise of the police power of the State in an attempt to promote the general health of the community. At this point, however, the advocates of the constitutionality of this character of legislation make their first fund amental error. The Legislature has the un doubted right to make all proper regulations designed to promote the health and safety of the community so long as they do not prohibit any legitimate business or interfere with any of the personal or contract rights of the citizen the exercise of which do not affect injuriously the interests of the public or any part thereof. . . . But a Legislature is not concerned with the man's use or abuse of himself so long as his actions do not injure others. The individual should be the keeper of his own conscience in regard to such mat ters. This is the fundamental and underly ing conception of the right of personal liberty. . . . In view of these considerations it is quite apparent that under ordinary circumstances, it would be a clear usurpation of power on the part of the Legislature to attempt to reg ulate the hours of private employment, and such a law is no more unreasonable than one defining the number of hours a man may sleep-. . . However, the best considered cases recognize the distinction to be ob served in all this class of cases, i. г., that as long as a man is not threatening injury to others he may toil as long as he pleases at any employment he pleases without interfer ence on the part of the State. IN the Columbia Laiv Review for May, Pro fessor John H. Wigmore, of Northwestern University Law School, gives an interesting "Brief History of the Parol Evidence Rule" —or rather of a part of that rule. The inquiry (says Professor Wigmore) is this. The modern rule being that when the