metaphysically competent reality. Such coercion as it may exert,
or as may be exercised through its means, therefore, is, in point
of legal reality, no coercion.
Where physical impossibility to fulfil the terms of a
contract arises out of the concatenation of industrial processes,
this physical impossibility may be pleaded as invalidating the
terms of the contract. But the pecuniary pressure of price or
subsistence which the sequence and interdependence of industrial
processes may bring to bear has no standing as such in law or
equity; it can reach the cognizance of the law only indirectly,
through gross defection of one of the contracting parties, in
those cases where the pressure is severe enough to result in
insolvency, sickness, or death. The material necessities of a
group of workmen or consumers, enforced by the specialization and
concatenation of industrial processes, is, therefore, not
competent to set aside, or indeed to qualify, the natural freedom
of the owners of these processes to let work go on or not, as the
outlook for profits may decide. Profits is a business
proposition, livelihood is not.(6*)
Under the current de facto standardization of economic life
enforced by the machine industry, it may frequently happen that
an individual or a group, e.g., of workmen, has not a de facto
power of free contract. A given workman's livelihood can perhaps,
practically, be found only on acceptance of one specific contract
offered, perhaps not at all. But the coercion which in this way
bears upon his choice through the standardization of industrial
procedure is neither assault and battery nor breach of contract,
and it is, therefore, not repugnant to the principles of natural
liberty. Through controlling the processes of industry in which
alone, practically, given workmen can find their livelihood, the
owners of these processes may bring pecuniary pressure to bear
upon the choice of the workmen; but since the rights of property
which enforce such pressure are not repugnant to the principles
of natural liberty, neither is such pecuniary pressure repugnant
to the law, the case is therefore outside the scope of the law.
The converse case, where the workmen take similar advantage of
their employers to bring them to terms, is similarly outside the
scope of the common law, - supposing, of course, that there has
in neither case been a surrender of individual liberty, a breach
of contract, theft, a resort to violence, or threats of violence.
So long as there is no overt attempt on life, liberty of the
person, or the liberty to buy and sell, the law cannot intervene,
unless it be in a precautionary way to prevent prospective
violation of personal or property rights.
The "natural," conventional freedom of contract is sacred and
inalienable. De facto freedom of choice is a matter about which
the law and the courts are not competent to inquire. By force of
the concatenation of industrial processes and the dependence of
men's comfort or subsistence upon the orderly working of these
processes, the exercise of the rights of ownership in the
interests of business may traverse the de facto necessities of a
group or class; it may even traverse the needs of the community
at large, as, e.g., in the conceivable case of an advisedly
instituted coal famine; but since these necessities, of comfort
or of livelihood, cannot be formulated in terms of the natural
freedom of contract, they can, in the nature of the case, give
rise to no cognizable grievance and find no legal remedy.
The discrepancy between law and fact in the matter of
industrial freedom has had repeated illustration in the court
decisions on disputes between bodies of workmen and their
employers or owners. These decisions commonly fall out in favor