sixty years in advance of other nations, and was, in fact, the first experiment in the world's history of universal admission of the propertyless laborer to an equal share in government with the propertied capitalist or employer. A similar experiment was made in the South after the slaves were freed by war. Henceforth the laborer not only shares in electing the legislature that makes the law, but he shares in selecting the judges who interpret it and the governors, factory inspectors, sheriffs, marshals and constables who enforce it. The labor contract and the wage bargain become as much a question of the control of politics as they are of large-scale industry and the mobility of labor. Wherever property-owners or employers can deprive the laborer of his suffrage or can control his vote, there they can more effectively control his bargaining power. He may be disfranchised, as in the South, or intimidated, as in some towns controlled directly by corporations, or manipulated and bought, as in towns controlled indirectly through the political "machine." So the struggle for the suffrage, begun ninety years ago in the North, renewed in the struggle of twenty years ago for the secret ballot, and kept up in the struggle against political corruption, is both a cause and a consequence of the appearance of wage-earners as a class in modern industry.

2. INDIVIDUAL RIGHTS

Federal and state constitutions contain the fundamental laws and create the authorities of government with the power to interpret, amend, and enforce them. The Declaration of Independence and most of the state constitutions declare that all men are created equal. Prior to the Civil War certain of the southern states declared only that all freemen are equal. Those constitutions were afterward changed to read all men are equal. Some constitutions say that they are "equally free and independent." If they are equal, they have equal rights. Some of these rights are declared to be natural, essential, indefeasible, inalienable. Among the inalienable rights mentioned in different constitutions are life, liberty, the pursuit of happiness, acquiring, possessing and protecting property,

reputation, and enjoyment of the gains or proceeds of a man's own labor.1

The federal constitution guarantees certain means for protecting these rights, and prohibits certain measures that violate or impair them. Among the protective measures are the writ of habeas corpus, trial by jury, a republican form of government, freedom of speech or of the press, the right peaceably to assemble and to petition the government for a redress of grievances, the right to keep and bear arms, security against unreasonable search and seizure of persons, of houses, papers or effects, indictment by a grand jury, speedy and public trial, compensation for property taken for public use, due process of law, equal protection of the laws. Among the prohibited measures are bills of attainder, ex post facto laws and laws impairing the obligation of contracts. Finally, the enunciation of certain rights cannot be construed to deny or disparage others retained by the people. These restrictions, however, with the exception of those insuring equal protection of the laws and the obligation of contracts, are binding on Congress and not on the states. The fourteenth amendment prohibits any state from denying due process of law and equal protection of the laws, but under the decisions of the courts this protection does not extend to other rights guaranteed in the early amendments to the constitution, which, as has just been said, are protected only against infringement by Congress.2

'The Declaration of Independence is "read into" the constitutions, where it says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness." Twenty-eight state constitutions declare that men are naturally equal. Five restricted this to "freemen" before the Civil War and afterward changed the phrase (Kansas, 1858). Three states assert the equality of all men framing a "social compact." Thirty-five states have clauses embodying the doctrine of natural rights. The right of acquiring property, by which contract is understood, is claimed as an inalienable natural right by twenty-six states. Three states include the right to reputation, which may be considered as a kind of property. The enjoyment of the gains of a man's own industry, or of the proceeds of his labor, is an inalienable right in two states. Kansas specifies the right to control over one's own person. Montana, when mentioning the right to seek and obtain safety and happiness, adds the proviso "in all lawful things."

2 Willoughby, Constitutional Law of the United States, 1910, Vol. I, pp. 175 ff.

If certain rights, such as life, liberty, and property, are strictly and literally "inalienable," then they cannot either be given away by any person or taken away by any other person or by government, either by coercion or by persuasion, either by violence or by voluntary sale and compensation. If the owner sells them, they are worthless to the buyer, because he gets no title. Of course, it follows that these rights were never considered strictly "inalienable." Only an impossible anarchist could believe this. The fourteenth amendment partly clears the atmosphere. "Privileges and immunities." are substituted for inalienable rights. Life, liberty and property can be taken provided it be done according to "due process of law." "Equality" becomes "equal protection of the laws." In other words, rights become "relative," not "absolute," alienable but protected.

But, if rights are relative, then their meanings and definitions are liable to change when the relationships to which they refer happen to change. The rights of property are defined in several constitutions as the right of acquiring, possess-W ing and protecting property. These were the significant points in the definition when people were isolated, as they were in colonial and pioneer times. At that stage, their main concern was in getting and holding physical property, like lands, crops or even human beings, if the definition of property included slaves. But in modern society, based, as it is, mainly on buying and selling, the right to withhold property from others becomes significant. It is this that protects the individual in his power of bargaining-his power, protected by law, to hold back and wait until an agreement can be reached upon the exchange value of the property before permitting others to take it or use it.

This right to withhold property is like the laborer's right to withhold his labor, by refusing to work or by quitting work. But in the case of the laborer this is also "liberty". a "personal" right rather than a "property" right. It is his right to withhold his services from the use of others until their value can be agreed upon. This is the legal basis of his wage bargain.

Hence property and liberty change places and merge their meanings when industry changes from the agricultural stage

of production for self to the modern stage of bargaining with others. The wage-earner's "property" becomes his right to seek an employer and to acquire property in the form of wages; his property in the sense of liberty is his right to refuse work or to quit work if the conditions are not satisfactory. The employer's "property" is, in part, his right to seek laborers and acquire their services; his property, in the sense of "liberty," is his right to run his business in his own way, that is, in part, to withhold employment or to discharge the laborer if the bargain is unsatisfactory.

These definitions of property rights are evidently quite different from the older ideas of property in physical things, such as lands, buildings, machinery or slaves. They signify rights of buying and selling, of access to a market. They are "intangible" property, and not "tangible." They are like the "good will" of a business. They are defined as "property" because they are necessary to give to things and services that value in exchange which in modern industry depends as much on selling them as it does on "producing" them.

Only within the past half-century have courts and legislatures distinguished and protected such intangible property as good will, trade marks and trade names, based on the right of access to a commodity market, and still more recently has "access to a labor market" been treated in effect as a property right of both the laborer and the employer, in addition to a personal right. Not merely the contract after it is made is property, but the right to be unhindered by others in order to make a labor contract is a property right. It is "intangible" property both of the laborer who seeks employers and of the employer who seeks laborers. It is intangible because it is merely the act of offering and yet withholding services or commodities. It is property and becomes capital in the sense that it is the power of getting value in exchange. Just as the employer's property is both his physical factory and his intangible business, so the laborer's property is both his physical body and his intangible labor. This "intangible" property has come to mean a part of what

See also Willoughby, Constitutional Law, Vol. II, p. 872; Hall, Constitutional Law, 1914, pp. 134, 135; "Doctrine of Conspiracy,"

p. 96.

was formerly known as personal liberty. It is that kind of liberty that has money value. It gives value alike to the laborer's labor and the employer's business.

If meanings of property and liberty change with changes in industry, so does the meaning of equality. Equality for the colonist and the pioneer signified mainly equal right to acquire property through labor-now it signifies equal right to acquire it through bargaining. But where bargaining power on the one side is power to withhold access to physical property and the necessaries of life, and on the other side is only power to withhold labor by doing without those necessaries, then equality of rights may signify inequality of bargaining power. The gradual recognition of inequalities of waiting( power has required changes to be made in the legal means of protecting equality, and these changes underlie the history of labor legislation. They occur within limits prescribed by "due process of law."

3. DUE PROCESS OF LAW

The constitutions, which declare private rights inalienable, yet provide methods and standards both to abridge them and to protect them. A right has two sides. It is a right of one and a duty of another, or of all others. One person signs a note agreeing to pay $20 to another person. The second person has a right to receive $20-the first is under a duty to pay it. One person owns a piece of land. He has a right to use it as he pleases-all other persons are under the duty to keep off and let him alone. To protect the rights of one is to enforce the duties of others. If a right of one is abridged or reduced, the corresponding duty of another or of all others is reduced. If a debt is reduced from $20 to $10, both the right to receive and the duty to pay are reduced. If a person's right to use his land as he pleases is restricted, then the corresponding duties of others are reduced. On the other hand, a person's duties are just so much subtracted from the total of his rights, and so to reduce the amount of his duties is to enlarge the total amount of his rights. To reduce the rights of one is to enlarge the corresponding rights of others. Here must be noted the distinction already made between