labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hand; and to hinder him from employing these in what manner he may think proper, without injury to his neighbor, is a plain violation of this most sacred property. It is equally an encroachment both upon the just liberty and rights of the workman and his employer, or those who might be disposed to employ him, for the legislature to interfere with the freedom of contract between them, as such interference hinders the one from working at what he thinks proper, and at the same time prevents the other from employing whom he chooses. A person living under the protection of this government has the right to adopt and follow any lawful industrial pursuit, not injurious to the community, which he may see fit; and as incident to this is the right to labor or employ labor, make contracts in respect thereto upon such terms as may be agreed upon by the parties, to enforce all lawful contracts, to sue and give evidence, and to inherit, purchase, lease, sell or convey property of any kind. The enjoyment or deprivation of these rights and privileges constitutes the essential distinction between freedom and slavery, between liberty and oppression."

The court further said: "The vocation of an employer as well as that of his employee is his property. Depriving the owner of property of one of its attributes is depriving him of his property, under the provisions of the constitution. The right to use, buy and sell property, and contract in respect thereto, including contracts for labor,- which is, as we have seen, property, is protected by the constitution. If the legislature, without any public necessity, has the power to prohibit or restrict the right of contract between private persons in respect to one lawful trade or business, then it may prevent the prosecution of all trades, and regulate all contracts."1

1 Citing People v. Otis (1882), 90 N. Y. 48. In the same case the court continued: "The main question argued before this court is whether or not the said statute is constitutional, the counsel for the plaintiffs in error contending that it is unconstitutional and void, and the attor

ney-general insisting that it is a proper exercise of the police power, and therefore not unconstitutional and void. It will be observed that this statute applies to certain specified classes of persons, firms, companies, corporations and associations, and none others. It is by its terms lim

663. The supreme court of Massachusetts,' in holding unconstitutional a statute which provided that an employer should not impose a fine upon or withhold the wages of an

employee engaged at weaving for imperfections in work, said:1 "The right to acquire, possess and protect property includes the right to make reasonable contracts, which shall be under the protection of the law. The manufacture of cloth is an important industry, essential to the welfare of the community. There is no reason why men should not be permitted to engage in it. Indeed, the statute before us recognizes it as a legitimate business into which everybody may freely enter. The right to employ weavers, and to make proper contracts with them, is therefore protected by our constitution, and a statute which forbids the making of such contracts, or attempts to nullify them or impair the obligation, violates fundamental principles of right which are expressly recognized in our constitution. If the statute is held to permit a manufacturer to hire weavers and agree to pay them a certain price per yard for weaving cloth with proper skill and care, it renders the contract of no effect when it requires him, under a penalty, to pay the contract price if the employee does his work negligently and fails to perform his contract; for it is an essential element of such a contract that full payment is to be made only when the contract is performed. If it be held to forbid the making of such contracts, and to permit the hiring of weavers only upon terms that prompt payment shall be made of the price. for good work, however bally their work may be done, and that the remedy of the employer for their dereliction shall be only by suits against them for damages, it is an interference

and the laborer an imbecile. 'Such legislation,' as is well said by the court in Re Jacobs, 98 N. Y. 114, 'may invade one class of rights to-day and another to-morrow; and, if it can be sanctioned under the constitution, while far removed in time, we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed, and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large

range of other affairs long since, in civilized lands, regarded as outside of governmental functions. Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry, and cause a score of ills while attempting the removal of one."

1 Article 1 of the declaration of rights of the constitution of Massachusetts enumerates among the nat ural inalienable rights of men the right of acquiring, possessing and protecting property.

with the right to make reasonable and proper contracts in conducting a legitimate business, which the constitution guaranties to every one when it declares that he has a natural inalienable right of acquiring, possessing and protecting property. Whichever interpretation be given to this part of the act, we are of opinion that it is unconstitutional."

§ 664. In passing upon the validity of a prohibitory liquor law,' the supreme court of Indiana said, concerning the extent of legislative power: "A number of European writers on natural, public and civil law are cited by counsel on behalf of the state to show the extent of legislative power; but those writers, respectable, able and instructive upon some subjects as they are admitted to be, are not authority here upon this point. They are dangerous, indeed utterly blind, guides to follow in searching for the land-marks of legislative power in our free and limited government, for they had in view, when writing, governments as existing when and where they wrote, under which they lived and had been educated, and which had no written constitution limiting their powers; governments, the theory of which was that they were paternal in character; that all power was in them by divine right, and they, hence, absolute; that the people of a country had no rights except what the government of that country graciously saw fit to confer upon them; and that it was its duty, like as a father towards his children, to command whatever it deemed expedient for the public good without first, in any manner, consulting that public or recognizing in its members any individual rights. Indeed, the discovery of the great doctrine of rights in the people as against the government had not been made when the writers above referred to lived. Such governments as those described could adopt the maxims quoted by counsel that the safety of the people is the supreme law and act upon it; and, being severally the sole judges of what their safety in the countries governed respectively required, could prescribe what the people should eat and drink, what political, moral and religious creeds they should believe in, and punish heresy by burning at the stake-all for the public good. Even in Great Britain, esteemed to have the most liberal constitution

1 Beebe v. State (1855), 6 Ind. 501.

on the Eastern continent, Magna Charta is not of sufficient potency to restrain the action of parliament, as their judiciary does not, as a settled rule, bring laws to the test of its provisions. Laws are there overthrown only occasionally by judicial construction. Such a thing, indeed, as deciding a law or royal decree unconstitutional in an absolute government is unknown. Hence the oppression of the people. And it must be admitted that efforts have not been wanting to ingraft upon the governments of this country something of the same principle. It is in fact the general-welfare' doctrine, under which it was claimed by latitudinarians that the congress of the United States could enact alien and sedition laws, national banks, etc., for the public good. It is the same principle upon which some of the states enacted laws compelling men to attend on Sunday a Protestant church and pay to support it. The proposition was laid down in them in regard to religion, as by counsel for the state here in regard to prohibition, that it was for the public morals and good of families and prevention of crime that men should observe the ordinances of the Gospel, and occupy seats in Protestant churches instead of other places on the sabbath, and hence the state compelled them by law to do so. But the doctrine has been fraught with oppression, and has not produced permanently promised results. Limitations have been inserted in constitutions upon the legislative power to prevent this oppression. And over the people of this state hangs the shield of written constitutions, which are the supreme law which our legislators are sworn to support, which grant a restricted legislative power within which the legislators must limit their action for the public welfare, and whose barriers they cannot overleap under pretext of supposed safety of the people; for along with our written constitutions we have a judiciary, created by them a co-ordinate department of the government, whose duty it is, as the appropriate means of securing to the people safety from legislative aggression, to annul all legislative action without the pale of those instruments."

§ 665. In a decision involving the validity of a statute providing that "no railway shall require any agreement or stipulation from any person about to enter its employ whereby such person agrees to waive any right to damages from such com