Chapter 6

OF POLITICAL RIGHTS

Most important of these are the right to assemble, and the right of free election. The right of political assembly and petition is another principle which has been much broadened by American constitutions. In England the right of public meeting undoubtedly existed from early times, but it was tied to the right of petitioning Parliament, which obviously limited its scope; and always strongly contested by the kings. Many riot acts were passed, both by the Tudors and by the Stuarts, which sought to limit and restrict it, and even to make any meeting of more than twelve men a riotous and criminal assembly. Indeed, the history of the attempt of the authorities to prevent riotous assemblies quasi-political runs all the way from Jack Cade's Rebellion in 1452 to the Philadelphia street railway strike in 1910. By an Act of 1549 unlawful assemblies of twelve "to alter laws or abate prices" were made unlawful--one of the reasons that gave rise to the English notion that a simple strike was criminal. This, however, has nothing to do with the political right of assembly which, fully recognized by the Massachusetts Body of Liberties in 1641, was not definitely established in England until the Bill of Rights of 1689. Now this principle is cardinal, and so far as I know none of the States have legislated upon the subject, unless the limitation of the injunction writ be such legislation. A statute of Henry VII gave special authority to the Court of Star Chamber over riots; which is precisely the power now objected to by labor leaders when exercised by courts of chancery. But it must be noted that this right of assembly only extends to matters political, and does not cover a meeting held for an end ordinarily unlawful, such as to bring about a riot or to work oppression to others or an injury to the public.

The right of election, however, is much older in England. We find statutes concerning the right of free election, that is, of allowing electors to vote without interference or control, as early as 1275. It is for this reason that almost from the origin of the House of Commons it has been unlawful, or at least uncustomary, for peers of the realm to even speak pending elections to the House of Commons. That House also vindicated its right to judge of elections against Elizabeth, and the principle that it alone shall be the judge remains in full force in the United States, though in modern times in England given to the courts. There is no constitutional principle in England as to the right of suffrage, which in early times was shared in by all free men, or at least landholders. It was in 1429 limited to the forty shillings freeholders, which law has been relaxed by degrees ever since. Our early constitutions recognized both property and educational limitations; these were all done away with at one time, except in Massachusetts and Rhode Island, the former retaining an educational, the latter a property, qualification. They have now been abolished in those States, but taken up in the South, for the purpose, of course, of disfranchising the negro vote.

The serious modern instance of interference with free election is that of the Federal government with State elections in the South during the thirty years following the war. While such interference was never quite held unconstitutional, it was strongly felt to be so; and has therefore disappeared from practical politics. The principle of free election, therefore, remains again unquestioned, and is, indeed, strengthened by considerable legislation aimed at the influencing of votes by employers, etc. Many States, for instance, require that Election Day shall be a holiday, or, at least, that all employers of labor shall give part of the day, one or two hours at least, for the employees to vote; and a number of States have statutes aimed at the coercion of their vote by any promise of giving or withholding employment, or otherwise, and the giving their pay to them in envelopes upon which any political matter is printed. Bribery is nearly always made criminal and cause of permanent disfranchisement and disability to hold office, both to the person giving or receiving the bribe, but there is more interesting legislation still aimed at any form of political corruption. Massachusetts led the way with a statute which endeavors to make criminal any promise of employment or advantage, or even for a corporation, at least, to employ any person at the recommendation of any member of the legislature. It is very difficult to draw such laws to make them apply fairly, but they have been copied with even greater elaboration in many Southern States. The statute of Alabama, for instance, covers nearly a page in describing the various acts or promises which are thus forbidden to officers or candidates for office.

Then there is the long range of lobby acts aimed at the very serious abuse of lobbying. Massachusetts divides the offence, or rather the business, into two general classes: First, the legislative counsel who appears before legislative committees in support or in opposition of measures. This practice, of course, is perfectly legitimate in many cases, but the law provides that his advocacy must be open, he must disclose the client for whom he appears, if there be one, and at the end of his services file a statement of the counsel fees actually received. Such legislation, however, is easily evaded by the payment of an annual salary. Then there is the legislative agent or lobbyist, properly so called, who does not openly appear before legislative committees, but waylays members of the legislature at their dwelling or meeting places, or elsewhere. He must also register as legislative agent by the Massachusetts law, and file an actual account of his receipts and expenses. Such legislation properly observed would, of course, have made impossible the celebrated "House of Mirth" at Albany. Then there are many statutes against intimidation in elections, particularly in the South; and there were many acts of Congress passed under the Fourteenth Amendment, but these have practically all been held unconstitutional.

The form of the ballot is another matter that has been the subject of much legislation. Our States vary, as does still public opinion in England, between the extreme of providing by the Constitution itself for the secrecy of the ballot, and the other extreme of requiring that all voting should be _viva voce_, as was formerly the case at least in Kentucky. Public opinion has universally settled in favor of the former; and to protect the voter's freedom, the so-called Australian ballot has very generally been adopted, the principle, of course, being a ballot on which all candidates' names are printed, with or without party designations, and against which the voter makes his mark. In their practical working, however, these laws depend on the simplicity of the form; thus, it works very well in Massachusetts, where the form is simple and the ballot short, and very badly in New York, where the contrary is the case. Opinion is pretty well united on the advisability of the Australian ballot, the only remaining difference being as to whether any party designations should be printed. Most practical politicians desire that the name "Republican" or "Democrat," or even that some party symbol like a star or flag, should be affixed, which can be understood by the most illiterate voter; also, that the voter should be allowed to make one cross opposite the word "Republican" or "Democrat" when he means to vote the whole of the ticket, "in order to give each candidate the benefit of the full party strength." On the other side it is argued that all voting should be intelligent and never blind, and that if the voter does not take the trouble to mark all the names on the ballot it sufficiently indicates that he is indifferent as to some of the candidates even of his own party, and that his votes for them should, therefore, not be counted.

The most significant of modern developments in legislation concerning voting is the new practice of recognizing by law political parties, and of regulating by law the mode of their nominations. The old idea was that the law took no notice of anything that happened until election day, when it did regulate the mode of voting and counting the votes; the law was supposed to be blind to political parties; the persons elected were merely the successful candidates. But first began the tendency to recognize parties in "bi-partisan" boards and commissions; it became very usual to provide that State officials should, when the office was held, or the function performed, by more than one person, be elected or appointed from different parties. This, of course, works very well when there are but two parties, as indeed is usually the case. And now of late years the practice has grown up of regulating political matters _before_ the election day. Direct primaries, caucuses regulated by law, the mode of nomination, nomination papers to be filed in a certain manner, the compulsory service of men as candidates unless they comply with precise formalities of resignation, the joint caucus and the separate caucus, the public nomination paper, the one-per-cent., three-per-cent. or five-per-cent. rule whereby a party gains such official recognition only by throwing such a percentage of votes at some previous election--in short, all the mass of legislation of this kind is the matter of the last few years. In the writer's opinion, with the possible exception of the public nomination paper, it is all mistaken. Aimed at destroying the machine, it really intrenches the machine--the professional politician--in power. The general public will not, and should not be compelled to do more work than is necessary. If they actually vote at election it is all that can fairly be asked of them and more than one-third of them do. They will not, and cannot, devote their time to politics all through the year. The result is that all such elaborate schemes simply throw the game into the hands of the "town committee" or other permanent professional body. If you have to hold a meeting in June, and give notice of a caucus in July, with as much formality as used to be required in publishing the bans of marriage, and then on a certain day in August do something else, and in September something still more, and file with the Secretary of State nomination papers in October, and have everything complete ten days before election day,--the ordinary citizens who usually awake to the fact that there is an election about that time find it too late to have any voice in the nomination. They go to the election itself to find an official ballot with two machine candidates for each office, and no hope of electing, even were it possible to nominate, a third. In the old days, when they discovered that an improper candidate had been nominated, on the very eve of election they could arouse themselves and defeat him; under all these complicated systems it is too late. One necessity for such legislation, however, arises from the Australian ballot itself; when that ballot carries party designations, who is to determine who is the official party candidate? This problem is not, however, insoluble. Indeed, it might be argued that it would be an excellent test to require the various so-called party nominees to run together, leaving to the voter to determine who was the regular one. Certainly the legalizing of conventions, caucuses, and other nominating machinery, has led to great scandals. Under such laws, whoever first gets possession of the hall at the time named would seem to be the regular candidate. We have, therefore, in Massachusetts, seen the scandal of two groups of men making different nominations in a loud voice at the same time, one at the front of the hall, and the other at the back, and the courts had to decide who was the regular nominee. In the opinion of most lawyers, they decided in favor of those who ought to have been the nominees rather than of those who in fact were.

In the opinion of many "practical politicians," as well as others, the whole mass of legislation that recognizes political parties and applies to anything happening up to the date of election, should be expunged from the statutes. I would hardly make an exception even of the "bi-partisan" board. A board should be composed of the best persons, not necessarily party-colored; if there be any force in the argument for bi-partisan commissions, it should apply ten times as much to the judges, but there is no provision in any State of the Union or in the National government for bi-partisan courts of law. Massachusetts, alone, so far as the writer is informed, of all the States, by a certain tradition respects this principle. Very few Massachusetts governors replace a Democratic judge by a Republican, or _vice versa_.

But most significant of all political matters is the growing distrust of legislatures. Curiously enough, although there was a great distrust of the executive of the nation until within a very few years, that seems to have entirely passed away. Governors of States have too little power to inspire distrust in anybody. But that legislatures or representatives of the people should fail to inspire their confidence is one of the most curious developments of modern politics. The matter has been fully discussed elsewhere in this book. It is greatly to be lamented, for it tends to lower the character of the legislatures themselves. The days are indeed far off when a man would prefer being governor of a State to president, ambassador, or judge of the Supreme Court; or the State Senate to the national Congress. Part of this indifference is, of course, explicable; for with the perfection of our civilization and the growing intelligence that most statutes have been enacted that are really needful, there is really less for the legislatures to do. Then, also, the growing practice of giving a large share of governmental, or even legislative, powers to boards and commissions has narrowed the scope of legislation. Whatever be the reason the fact is certain. Very few States now allow their legislatures to sit _ad libitum_, and only six or seven States permit annual sessions. In nearly all States sessions are biennial, if not, as in some Southern States, quadrennial. That is to say, the legislature is only allowed to meet once in four years; and in more than half the States the time of the session is limited to ninety, sixty, or even thirty days, or the pay of the legislators cut off at the end of such period.

A few States have laws aimed at corrupt elections, that is to say, limiting the expenditure of candidates and requiring publicity. Most States now forbid contributions by corporations, as does the Federal government.[1] Thus, by the California law of 1893, expenditures are limited to one hundred dollars for each candidate, or one thousand dollars by a committee, and in no case exceeding five per cent. of the salary of the office for which the person is a candidate for one year, and the legitimate expenses are specified; that is to say, public meetings, printing, postage, and head-quarters expenses. Probably no one regrets the prevalence of extravagant expenditures more than persons who are themselves in public life. If the bosses of many State machines were consulted in private, they would agree that the only really legitimate expenditures are the hiring of halls, and the mailing of at most one printed circular to every voter in the district. The Missouri law of the same year fixes a limit of expenditure of one dollar per hundred of votes thrown at the last election for the office for which the person is a candidate, which, in an ordinary congressional district of say fifteen thousand voters, would be one hundred and fifty dollars--certainly little enough. Voters very generally have to be registered.

[Footnote 1: Bill signed by President Taft, June, 1910.]

As is familiar to the reader, there has been a decided movement for the direct election by the people of United States senators, a large majority of the States, and the Democratic party in all States, having in the last few years expressed themselves in favor of a change in that particular. Until within a few years it was thought only possible by Constitutional amendment, but the example of Oregon and other States has shown that it may be done by means of a law providing for the expression of the preference of the voters, and this may even be made a party ballot. That is to say, voters at party caucuses, or even at elections where the ballots are so marked, may express their preference for this or that candidate for the United States Senate, and the moral obligation will then be on the State legislature, or at least on its members of the corresponding party, to vote for the candidate so nominated. This has been universally done in the case of election of the United States President by the force of public opinion; no instance is on record of an elector having voted differently, or of a bribe or even of an attempt to bribe. But with legislation--statute law not being so strong as the unwritten law, contrary to the popular opinion--it is by no means certain that this result will happen. The law has worked in Oregon, where first adopted, with the striking result that a Republican legislature elected a Democratic United States senator; but if the writer is correctly informed, the contrary has been the case in Illinois. The movement for the direct nomination of members of the lower house of Congress also exists in many States. "Direct nomination" of course means a nomination by the mass of voters, either in assembly or by a written list. The value of this reform is probably exaggerated. Direct nominations in the city of Boston recently had the somewhat amusing result that there were two or three times as many names on the nominating petitions as voted in the election, and that one gentleman, indeed, fell short of his nominating petition by nearly ninety per cent.

The mode of legislation is not much changed from the early days. Usually bills have in theory to be read three times and must be voted for by a majority of a quorum. Many States forbid new legislation to be attempted after the first few days of the session. There has in the last few years been an effort at the proper drafting of bills, but it has hardly made much progress as yet, and will be discussed in our final chapter.

The two most radical changes of all are, of course, the initiative and referendum, and women's suffrage. The latter has, on the whole, made no progress since it was adopted in Colorado and three other States, about the year 1890. The people of the States where it exists appear satisfied and it is probable that they will never make the change back; on the other hand, the better opinion seems to be that the existence of women's suffrage has not materially altered conditions or results in any particular, except, possibly, that there is a little less disorder around the polling booths on election day. The largest city in the world where women vote is Denver; and in hardly any American town has the "social evil" been more openly prevalent or politics more corrupt; while it has just voted _against_ prohibition. As in the case of school suffrage, it is probable that a smaller proportion of women are now exercising the right of suffrage than when the thing was a novelty. In all the neighboring States to the four women's suffrage States (Colorado, Wyoming, Idaho, and Utah) a women's suffrage amendment has been proposed to the Constitution, all the male voters have been given a chance to vote on the question, and in every instance it has been defeated by very large majorities. As has been intimated, the movement to extend the right of suffrage to women for all matters connected with schools and education has also been arrested. Many States had adopted this principle before the year 1895, but few, if any, during the past fifteen years. The experience of Massachusetts, where sentiment was strongly for it, shows that the women take very little interest in the matter; an infinitesimal percentage of the total female population voting upon election day, even when a prominent woman was the leading candidate for the school committee.

Women's suffrage was adopted in Colorado in 1805, and rejected in Kansas the same year; adopted in Idaho in 1890, and rejected in California; rejected in Washington and South Dakota in 1898; rejected in Oregon in 1900, in both Washington and Oregon, once at least since, and has been rejected by popular referendum in several other States.

There is, however, an intelligent tendency, notably in the South, to recognize the right of women to vote as property owners upon matters involving the levying of taxes, or the "bonding" of cities, towns, or counties, for public improvements or other purposes. Such laws exist in Texas, Louisiana, Michigan, and possibly other States, and in Louisiana the statute provides machinery by which women may on such matters vote by mail. It is much to be wished that municipal affairs and municipal elections could be separated entirely from political ones. That is to say, that a city or town might be run as a business corporation on its business side, and in such elections have the property owners, both men and women, only vote. The trouble, of course, is that there are certain matters, notably the expenditure for schools, which is the largest, at least in Massachusetts cities and towns, which are in a sense both municipal and political, both economic and affecting individual rights of persons not property owners. In any case, the matter must be considered outside of the sphere of "practical politics." It is hardly likely that, except for some special matter like the race question in the South, a State constitution will ever be amended in a conservative direction. Allied with this would be a proposition to deprive persons in receipt of wages or salary from a city of the vote at municipal elections. Laborers and employees in the employ of a large city like Boston already form a very considerable percentage of the voters, and if you add to them the employees on the public-service corporations, partly under municipal control, you have probably got nearly one-third of the total vote. Yet the vote could not be taken from them without an amendment to the State constitution.

Of the initiative and referendum much has been written. It exists in full force, that is to say, as applying both to State elections and to county, city, or town elections, in several States, mostly in the far West; and for partial purposes it exists in several more. "Direct legislation" has been very popular as a political slogan during the past few years, but it has not been adopted as yet in any of the thirteen original States. The objections to it are fundamentally that it destroys the principle of representative government; that it takes responsibility from the legislature with the result, probably, of getting a more and more inferior type of man as State representative; that it is unnecessary, inasmuch as any one may have any bill introduced in the legislature to-day, and public sentiment be effectual to prevent the bill from being defeated; and finally, the objection of inconvenience, that it is cumbrous and unmanageable to work. Already the Secretary of State of Oregon complains that the laws passed by initiative are so badly written as to be unintelligible and conflicting, to say nothing of bad spelling and grammar. In one instance, at least, an important statute, that for the initiative and referendum itself, adopted by initiative, failed of effect because it contained no clause beginning "Be it enacted," etc. Possibly with practice these objections might disappear. The more valuable part of the reform is undoubtedly the referendum. The initiative is hardly necessary, except by way of giving a referendum on measures which otherwise would not emerge from the legislature; and there is a growing inclination to give a referendum on all laws or measures involving a grant of a franchise or of a right or privilege at the expense of the general public, or the town or city concerned. This is a very distinct tendency, and throughout the Union the States are rapidly passing laws that where a State-wide franchise is given, an exemption from taxes, a rate-making power, or other privilege, it shall be submitted to all the voters, and corresponding measures, street-railway franchises, gas, light, water, or other public-service corporations, acting only in definite localities, cities or towns, shall be referred in the appropriate locality.

The method of the State-wide initiative or referendum varies little in the different States; usually, upon petition of from five to eight per cent. of the voters, or in cities and towns usually fifteen per cent., legislation may be initiated. It may then be either passed by the State legislature like an ordinary law, or be given to the referendum of the people, or both, and takes effect when adopted by a majority of the voters at a general or special election. Constitutional amendments may in some States be originated and adopted in the same manner. So far as one can judge, the referendum in this country shows the same tendency that it has shown in Switzerland. Although a larger number of measures are doubtless submitted to the people, and especially measures of a class not to go through the ordinary legislature, when controlled by important interests, yet the vote itself at the final election is apt to be somewhat conservative. The referendums upon women's suffrage, for instance, while the initiative was adopted by a large majority, were very decisively defeated at the polls, and it is said that last year's election in Oregon and Washington, with very numerous and complex referendum measures, showed a surprising degree of intelligence on the part of the ordinary voter. Nevertheless, while it may be possible to submit to him one or two measures a year, if it were to come to the submission of all legislation (and the States will average from five hundred to one thousand statutes per year, at their present output) it seems incredible that the voter should have time and intelligence, or even take the trouble, to mark his ballot accordingly; while it is obvious that the ballot itself, setting forth the full law, would be considerably larger than the annual volumes of statutes now are. This matter of practical convenience, however, may perhaps be expected to cure itself. I should conclude, therefore, that while the whole matter is an interesting experiment, the initiative is hardly necessary, and the referendum should be limited to constitutional amendments (where it was always allowed) and to matters of definite local or public interest, like the granting of a franchise or an irrepealable contract of privilege.

The modern practice of putting everything into the State constitution which we have called attention to in other places, has led, of course, to a practical referendum on all most important matters, for no constitution, with the exception of that of Virginia, has ever been adopted in any of our States except by the people at an election; and with the tendency to require the submission of a new constitution every twenty years, and to make the constitution itself so compendious as to cover a vast amount of matter, usually subjects of legislation, with the consequent necessity of frequent amendment, we have now in our Southern States and some of the Western States a practical referendum to the people of most important legislative matters every few years.

The initiative and referendum was adopted in Iowa in 1891. As to bonds and debts of cities, etc., in Ohio in 1902. In Oregon, the general initiative and referendum by constitutional amendment in 1903. As to franchises for public utilities only, in Wisconsin, Montana, and Arizona the same year. As to Chicago, Illinois, in 1904, and in several States, what we will term the local or limited referendum, in the last four or five years. It was, however, defeated in Massachusetts, although adopted in Maine; and in Delaware the whole question was submitted to a commission to investigate.

The recall, a still more recent device than the initiative and referendum, has, indeed, no precedent in the past, or in other countries. In substance, it makes the tenure of office of an elective official dependent on the continuous good-will of the voters, or of a certain proportion of the voters. Under the present charter of the city of Boston, the mayor may be "recalled" upon petition of fifty per cent. of the registered voters--a proportion which practically makes the recall impossible. Where, however, the initiative of the recall depends on a small proportion and the result is determined by a simple majority vote at the polls, it is easy to see that the mayor or other official would be in continuous apprehension, if he cared for his office, and in any event would not be able to adopt and follow out any continuous policy. The terms of most of our officials are brief. A proposal to apply the "recall" to judges would, in the opinion of the writer, be wicked, if not unconstitutional; as to all other officials, it would tend to destroy their efficiency, and in most cases be in itself ridiculous, at least as to short-term officers holding for only one or two years.

One of the most noteworthy of political changes that have occurred in the republic since the adoption of the Constitution in 1789, is that affecting the election and tenure of office of judges. Smith, in his book on American State Constitutions, published shortly after the Revolution, tells us that at that time every State in the Union had its judges appointed by the executive for a life term. To-day, this principle survives only in the Federal courts and four States, New Hampshire, Massachusetts, Maine, and Delaware, although in Connecticut, New Jersey, and Mississippi, the judges of the highest, or Supreme Court, are still appointed in this manner and for life. In Vermont, Rhode Island, Virginia, and South Carolina, Supreme Court judges are elected by the two houses of the legislature in joint convention, but in all other States, that is, universally in the West and Southwest, the judges are elected by the people of the States or of their respective districts. New York and Pennsylvania, however, have very long terms, which by some is said to combine the advantages of both systems; in other States the term is from four to six years.

In matters judicial the field is far too vast to permit more than briefest mention of the most important lines of popular legislation. In the first place, common law and chancery jurisdiction are very generally fused and confounded. A few States still have chancellors entirely distinct from the common-law judges, and Massachusetts and a few other States still keep chancery terms and chancery procedure distinct from the common law. It is certainly a curious result that the historic jealousy of chancery and all its works should have ended, in the most radical States of the Union, in their complete adoption of the whole system of chancery with all its concomitants. As a result, the injunction writ, originally the high prerogative of the crown and its highest officers, has now become the weapon of all judges, even in some States of inferior magistrates, and has been used with a confusion and recklessness that have gone far to justify the complaint of labor interests.

On the other hand, we have grown less jealous of preserving our common-law jury rights. Not only is much more provision made for the waiver of jury trial in all States, at least in criminal cases, and for a trial by the court without a jury unless it be specially claimed, but there is a distinct tendency to have juries less than twelve in number, and verdicts not unanimous, but made up of three-fourths, two-thirds, or even a simple majority; while our indifference to common-law rights shown in our multiplication of boards and commissioners has already been commented on.

Legislation on the law of evidence has been on two main lines, originally, of course, under the Federal Constitution, to destroy all religious tests, and permit an atheist or person of heathen religion to testify upon simple affirmation, or according to his religious tenets. Universally, persons charged with crime have been permitted to testify in their own defence, with the common provision that no inference shall be drawn from their not doing so. Of course, by our Constitution itself, they were given the right to counsel and compulsory process for obtaining evidence on their own behalf, neither of which rights existed under the old common law; and then almost universally the wife is permitted to testify against the husband or in his behalf, especially in cases involving controversy between them; while, as she is very generally given the right to make contracts even with the husband, she is naturally given the right to enforce the same in civil courts as well.

It is in procedure that our legislation is least efficient. Having little knowledge of the subject, legislatures have been shy of meddling with court rules and processes; while the very fact that the legislatures have taken unto themselves the right so to interfere, has seemed to impress both bench and bar with a certain sense of irresponsibility. I fear we must admit that the judges of England, aided by its bar, have been far more solicitous of speedy and simple procedure and trial than have the courts of this country. Some Western States have crudely tried to meet the difficulty, as by providing that all judges must render an opinion within sixty days, or other brief period, after a case is argued before them, or even by limiting the number of witnesses to be called! But it may be feared that so long as public sentiment rather demands every possibility of evasion of execution than that a guilty person should be promptly and summarily punished, little can be hoped for from the legislatures. Such progress as has been made in this direction has universally been under the urgent instance of the lawyers themselves, acting through the State or Federal bar associations. But the judges themselves must venture a stricter control of irrelevant testimony.

XV

OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

Legislation concerning freedom of speech and its limitations, the law of slander and libel, hardly exists in America, except only the efforts of newspapers to be free of the consequences of libels published by them, provided they publish a retractation; and the efforts of the people to protect their reputation and right to privacy, as by laws like that of the State of Pennsylvania prohibiting ridiculous or defamatory cartoons, even of persons in public life; and the legislation already attempted in some States to prohibit the use of a person's likeness for advertising purposes, or to protect them from the kodak fiend, or even to establish a general right to privacy as to their doings, engagements, social entertainments, etc., when they are of no legitimate interest to the public. Legislation in these directions has, however, only made a beginning.

The newspaper-libel laws usually provide that the retractation shall be a defence to a libel suit, at least if published in as large a type and in as conspicuous a manner as the original article complained of; sometimes they only provide that in such cases the newspaper shall be relieved of all but actual damages. The wisdom of such legislation is questionable, as the old adage runs: "A lie will travel around the world while the truth is putting on its boots"; moreover, it is questionable whether they are not class legislation in extending to a certain form of business or a certain trade a protection which is not extended to others. There has been much legislation preventing the advertising of patent medicines, immoral remedies, divorce advertisement, and such matters. Some newspapers have objected to it, but the right of freedom of the press does not include the right to the use of the mails, and the papers containing the objectionable advertisements may constitutionally be seized or denied delivery, just as convict-made goods may be denied circulation in interstate commerce, by act of Congress, not, of course, of the States. Mr. Gompers, of the American Federation of Labor, has complained that the injunction of their so-called "unfair list" is an interference with the freedom of the press, and I presume would claim that an injunction against urging, or combining to urge, by oral argument, the members of the various unions throughout the country to boycott a certain person, would be an interference with the right of freedom of speech, and that therefore if the courts did not so decide, the laws should be changed by statute. This, also, would seem open to the objection of class legislation if extended only to speech or publication in industrial disputes. It should be noted, however, that the broad principle of freedom of speech by all persons and at all places is first adopted in the American constitutions, freedom of speech in England in its historical principles extending only to freedom of speech in the House of Parliament, and the right of assembly and petition at a public meeting; freedom of the press, however, is the same constitutional principle in both countries, but only extends to the right to publish without previously obtaining the consent of any censor or other authority, and the person publishing still remains responsible for all damages caused by such act. It is this part of the law which Mr. Gompers would alter, or rather make absolute; so that any notice or threat could be printed and circulated even when a component act of a conspiracy.

By a recent act of Congress the right of freedom of speech does not extend to anarchistic utterances, or speeches or writings aimed against order, the established government, and inciting to assassination or crime. Such laws are barely constitutional as applied to United States citizens. The unpopularity of the alien and sedition laws under the administration of John Adams will be remembered. Since their repeal, no attempt at a law of government libel has been made; very recently, however, where certain gentlemen, mostly holding important government offices, were charged with having made money out of the Panama Canal purchase, the weight and influence of the administration was given to the attempt to indict them and bring them to the courts of the central government at Washington for trial. This attempt, however, failed in the courts, as, in the Wilkes case, it had failed more than a century before at the bar of public opinion.

But the law is, of course, much stronger as to persons not citizens. That is to say, no one has any right to immigrate into this country, and therefore intending immigrants may be kept out by legislation if they are anarchists, socialists, or, indeed, hold any opinion for the moment unpopular with Congress. The attempt has so far, however, not been made to keep out any but violent anarchists, and, of course, persons who are diseased, of immoral life, or likely to become a public charge. And the attempt to keep them under the hand of the central government for years after they have taken their place for good or ill in the State body politic has recently failed in a monumental case vindicating anew the Tenth Amendment.

Connected in most people's mind with the right of privacy is the right of a person to keep his house and his private papers to himself; but it bears no relation whatever to the very new-fangled notion of a general right to privacy. The two principles are that an Englishman's house is his castle. His home, even though it be but one room in a tenement, may not be invaded by anybody, even by any government official or authority (except, of course, under modern sanitary police regulation), without a written warrant specifying the reason for such invasion, some offence with which the man is charged, and some particular document or paper, or other evidence of which they are in search. The principle against general warrants--that is, warrants specifying no definite offence or naming no particular person--was established in Massachusetts in Colony times, and the principle taken over to England and affirmed by Lord Camden--one of the two or three celebrated examples where we have given a new constitutional principle back to the mother country. Now, closely connected with this is another principle that a man shall not be compelled to testify in a criminal matter against himself, or that, if so compelled by statute or official, he shall then forever be immune from prosecution for any crime revealed by such testimony; the wording of the earlier constitutional provisions was "in a criminal offence," but by modern, more liberal interpretation, it has been extended to any compulsory testimony, whether given in a criminal proceeding or not. This, with the principle protecting a man's private affairs from inquisition, is expressed in our Fourth and Fifth Amendments, the former prohibiting unreasonable searches and general warrants, and the latter providing that no one shall be compelled in any criminal case to be a witness against himself, nor deprived of property without due process of law, and it has reasonably been argued that an inquisition into a person's business or book of accounts is such deprivation of his property without due process of law, at least when applied to a natural person. I find no legislation limiting these important principles, but on the contrary the tendency in modern statutes and modern State constitutions is to extend and generalize them. Of such is the famous clause of the recent constitutions of Kentucky and Wyoming that "absolute arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority." In view of the frequently successful efforts of trust magnates and others to escape indictment or punishment by some enforced revelation of their affairs given after a criminal proceeding has has been commenced or before a grand jury, legislation is now strongly urged to withhold them immunity in such cases. This would relegate us to the early state of things where they would simply refuse to answer, so that it may be doubted if, on the whole, we should gain much. The right of an Englishman not to criminate himself is too cardinal in our constitutional fabric to be questioned or to be altered without subverting the whole structure. Practically it would seem as if a little more intelligence on the part of our prosecutors would meet the evil. Corporations themselves are never immune; and unless the wicked official actually slept with all the books of the corporation under his pillow, it would be hard to imagine a case where some corporate clerk or subordinate officer could not be subpoenaed to produce the necessary evidence. Indeed, as has been well argued by leading American publicists, the sooner the public learns to go behind the figment of the corporation, the screen of the artificial person, into the human beings really composing it, the quicker we shall arrive at a cure for such evils as may exist. Legislation punishing or even fining an offending corporation is in the last sense ridiculous. It is necessarily paid by the innocent stockholders or the public. There is always some one person or a number of persons who have _done_ or suffered the things complained of; after all, every act of the corporation is necessarily done by some one or more individuals. We must get over our metaphysical habit of treating corporations as abstract entities, and again recognize that they are but a definite number of natural persons bound together only for a few definite interests and with real men as officers who should be fully responsible for their actions. Indeed, it ought to be simpler to detect and punish offenders than in the case of mere individuals unincorporated, for the very fact that a corporation keeps books and acts under an elaborate set of by-laws and regulations gives a clew to its proceedings, and indicates a source of information as to all its acts. One clerk may therefore reveal, and properly reveal, books and letters which shall incriminate "those above"; one employee may show ten thousand persons guilty of an unlawful combination, and properly so. There is no reason why he should not, and the nine thousand nine hundred and ninety-nine others deserve, and are entitled to, no immunity whatever from his revelation.

The religious rights, although for the most part peculiar to the American Constitution, adopted by us, indeed, as a result of the history of the two or three centuries preceding in England, but hardly in any particular a part of the British Constitution, were by the reason of our very origin so strongly asserted and so highly valued with us that no legislation has been found necessary on the subject. Perhaps the sole important instance in which the question has come up has been that of instruction in the public schools and the use of the money raised by common taxation for special religious purposes. Very generally the latter is forbidden in our State constitutions, the Federal Constitution by the First Amendment merely protecting the right from the action of Congress. Owing to decisions of the Supreme Court, in the South it has become possible to divide school appropriations between schools for whites and blacks, and it is presumable that the same thing might be done as, for instance, between Roman Catholics and others, and something of the sort has, I believe, been done with the appropriations for the education of Indians.

The few statutes we find upon this matter tend to still further extend and liberalize religious rights. Almost universally now a man is not forbidden from testifying or being a witness by reason of his belief or disbelief, even when he is an atheist. The latter law is not, however, quite universal. He must, in some States, believe at least in the existence of God, or of a future state of reward or punishment. Mormons, at one time, claimed the right to practise polygamy as a part of their religion guaranteed to them by the Constitution; the contention did not prevail; on the contrary the Mormon States were made to submit to an enabling act under which they bound themselves to adopt State constitutions providing for all time against polygamous practices. Such a treaty is not, of course, binding upon a sovereign State unless Mormonism be deemed inconsistent with a republican form of government; so that Utah, for instance, has probably the right to re-establish Mormonism to-morrow so far as the Federal Constitution is concerned. Whether it would be permitted by a strenuous president having public sentiment at his back may indeed be questioned. In like manner, Christian Science practitioners have invoked the constitutional right of religious belief against the common law requiring that those offering themselves to practise medicine should be reasonably skilled in their trade. Legislation permitting Christian Scientists to practise freely has been attempted in nearly all the States, but has not, so far as I am informed, succeeded in any, although a good many States have adopted statutes extending the right to osteopaths. Under the common law of England, re-established in Massachusetts by a famous decision[1] twenty years ago, a person holding himself out as a surgeon or medical practitioner, who is absolutely uninstructed and ignorant, is guilty even of criminal negligence, and responsible for the death of his patient, even to the point of manslaughter.

[Footnote 1: Commonwealth _v_. Pierce, 138 Mass. 165.]

XVI

LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS

This is, of course, a matter of which books might be, and indeed have been, written; our general essay on popular legislation can do no more than summarize past law-making and the present trend of legislatures, much as some history of the people of England might broadly state the economic facts and laws of the Corn-law period in England. Racial legislation may, of course, be considered from the point of view of the negro, the Indian, and the alien, and indeed it differs much in all three. Other personal legislation is largely concerned with the right to exercise trade, already discussed, and the questions of marriage and divorce we reserve for the next chapter. In the past we have been very unjust, not to say cruel, to the Indian, and though naturally in some respects a high-natured race, have constantly denied him any political share in the government, and only in the very last few years grudgingly extended it to such Indians as renounce their tribe and adopt the habits and mode of life of the white man, or, as in early England, to such freeholders as acquire a quarter section of land. In the negro's case, however, we atoned for the early crime of enslavement by the sentimental hurry with which we endeavored in the '60's and '70's of the last century to take him up by law and force him into exact equality, social as well as political, with the white man. To aliens, in the third hand, we have been consistently generous, having shown only in the very last few years any attempt whatever to exclude the most worthless or undesirable; except that the prejudice against the Mongolian in the far West is quite as bitter as it ever was against the negro in the South, and he is still sternly refused citizenship, even national citizenship, which we freely extend to the African. We are thus left in the ridiculous situation of providing that nobody may be a citizen of our great Republic except a white Caucasian and a black African, with considerable ambiguity still as to what the word "white" means. The American Indians are, indeed, admitted under the conditions before mentioned, so that as a catch-word the reader may remember that we are a red, white, and black country, but not a brown or yellow one. All this is, of course, the accident of history; but the accidents of history are its most important incidents.

Taking Asiatic races first, the far Western States vie with each other in passing legislation which shall deny them the right to life, or at least to live upon any equality of competition with the white. Most of such laws are, of course, unconstitutional, but they were at one time enacted with more rapidity than the Supreme Court of the United States could declare them so. Congress tries to be more reasonable and, indeed, has to be so, in view of the fact that it is a national Congress living, with the executive, in direct touch with the foreign nations themselves. Broadly speaking, our national legislation is to exclude immigration, but guarantee equality of property right, at least, to such Mongolian aliens as are actually in the country; and to extend or guarantee such right of treatment by treaties, which treaties are, of course, acts of Congress, like any other act of Congress, entirely valid in favor of the foreign power and enforceable by it even to the issue of war, but possibly, as a constitutional question, not enforceable by the Federal government against the States. An endless mass of legislation in California and other Western States has been devised, either openly against the Chinese or so couched as to really exclude them from the ordinary civic liberties, and most of our State laws or courts declare that the Japanese are Mongolian although that people deny it. Many statutes, moreover, are aimed at Asiatics in general; which would possibly include the Hindoos, who are of exactly the same race as ourselves. Indeed, some judges have excluded Hindoos from naturalization, or persons of Spanish descent, while admitting negroes, which is like excluding your immediate ancestors in favor of your more remote Darwinian ones. Even in New York and other Eastern States, the employment of aliens, particularly Asiatics, is forbidden in all public work--which laws may be invalid as against a Federal treaty. Yet statutes against the employment of any but citizens of the United States in public works are growing more frequent than ever, and seem to me quite within the rights of the State itself to determine. But Pennsylvania could not impose a tax of three cents per day upon all alien laborers, to be paid by the employer. Many States are beginning to provide against the ownership of land by aliens. This, of course, is perfectly constitutional and has full justification in the history and precedent of most other countries, and as applied to foreign corporations it is still more justifiable; and the Western States very generally provide against the ownership of land, other than such as may be taken on mortgage, by foreign corporations, or corporations even of which a large proportion of the stock is held by foreigners.

Racial legislation as to negroes may be divided into laws bearing on their legal, political, and social rights, including, in the latter, contracts of labor and of marriage. By the Thirteenth, Fourteenth, and Fifteenth Amendments, all adopted within ten years after the war, we endeavored to put the negro in a legal, a political, and a social equality with whites in every particular. A broad statement, sufficiently correct for the general reader, may be made that only the legal part has succeeded or has lasted. That legislation which is aimed at social equality, all of it Federal legislation, has generally proved unconstitutional, and that part which has been aimed at political equality has, for one reason or another, been inefficient. Moreover, the great attempt in the Fourteenth Amendment to place the ordinary social, civil, and political rights of the negro, and necessarily, therefore, of every one else, under the _aegis_ of the Federal government, Federal courts, and Federal legislation, has been nullified; first, by court decision, and later, if we may trust the signs of the times, by contemporary public opinion. The only thing that remains is that the States cannot make laws which, on their face, are discriminations against the negro, or in social matters against any other race; and in political matters, the Fifteenth Amendment has proved effective to render null State laws which on their face are designed to restrict or deny their equal right of suffrage.

Legislation concerning labor, the industrial condition, and contract rights of the negro, such as the peonage laws, we have considered in an earlier chapter; both State and national laws exist, and the Thirteenth Amendment, being self-executing, has proved effective. Under the Fifteenth Amendment there is little political legislation, except the effort in Southern States by educational or property qualifications, and most questionably by the so-called "grandfather clause," to exclude most negroes from the right of suffrage. Laws imposing property and educational qualifications are, of course, valid, although designed to have the effect of excluding a large proportion of the negroes from voting; laws, on the other hand, which give a permanent right of suffrage to the descendants of a certain class, as of those voters, all white, who were entitled to vote in Southern States in the year 1861, are probably unconstitutional as establishing an hereditary privileged class, though there has as yet been no square decision on this point by the Supreme Court of the United States. But as there is no further legislation on these subjects, to pursue the matter further would carry us into constitutional law.

In the third field, that of social legislation, there has been a vast number of laws, first by Congress with the intention, under the Fourteenth Amendment, of enforcing social and industrial equality and providing Federal machinery for securing it (the great substance of this has been held unconstitutional and has passed away); later by the States, usually the Southern States, with the exactly opposite purpose of separating the races, at least in social matters, and of subjecting them to a stricter law of labor contract than has, in our country at least, been imposed upon other citizens.

Even this matter of social legislation, which alone remains to be discussed in this book, is quite too vast for more than a brief sketch. Among the many monographs on the subject may be mentioned the article of G.T. Stevenson on the "Separation of the Races in Public Conveyances."[1] Even this comparatively narrow matter is by no means exhausted in an article covering twenty pages. Much of the social separation of the races is, of course, brought about without statute law, but by custom, or even we may say customary law, which is always apt to be the better enforced; and under the civil rights decisions of the United States Supreme Court in 1883, such customary law has been rendered immune from Federal control. Legislation now exists in all Southern States as to separate, though equal, accommodations in public conveyances; at one time such statutes were restricted to interstate commerce, but the present tendency of court decision appears to be to recognize even their interference with interstate commerce as part of the reasonable State police jurisdiction. Such statutes apply generally to railroads, steamboats, and street cars, or other conveyances of transportation. They are not so usual as to hotels, eating-houses, theatres, or other public places, probably because in such it is more easy to secure the desired segregation without legislation. We may, therefore, conclude that legislation on this point will be universal in the South and in Oklahoma or other border States with Southern sympathies, and will not be declared unconstitutional by the courts.

[Footnote 1: _American Political Science Review_, vol. III, No. 2, 1909.]

The labor unions very generally exclude negroes, both in the South and North, and in many Southern States the whites refuse to work with negroes in mills. Until and unless labor unions are chartered or incorporated under legislation forbidding such action, it is probable that their by-laws excluding negroes, though possibly unreasonable at the common law, could not be reached by the Fourteenth Amendment; and public sentiment in the States where such by-laws are common would probably prevent any permanent vindication of the right of the negro to join labor unions by State courts. That is to say, countervailing legislation would promptly be adopted.

Coming to education, the same principle seems to be established, that if the facilities are equal the education may be separate for the different races, just as it may be for the different sexes; and it would even appear that when the appropriation is not adequate for giving higher or special education to both races, particularly when there are few negroes applying for it, high-schools or special schools may be established for whites alone.

Coming to the matter of sexual relation, a different principle applies. Under their unquestioned power of defining crimes, their police power in criminal and sanitary matters, the States may forbid or make criminal miscegenation. Cohabitation without marriage may, of course, be forbidden to all classes, and in the case of cohabitation between white and black the penalty may be made more severe, for it has been held that as both parties to the offence are punished equally, there is, under such statutes, no denial of the equal protection of the law. _A fortiori_, marriage may be forbidden or declared null between persons of different race, and the tendency so to do is increasing very decidedly in the South, and is certainly not decreasing in the North. Indeed, constitutional amendments are being adopted and proposed having this in view, "the purity of the race." Recent plays and magazine articles, with which most of our readers will be familiar, sufficiently bear out this point.

In property rights, however, I can find no legislation which discriminates against the negro, and there is some in his favor. With the exception of the labor or peonage laws, discussed separately, I have found no legislation which limits his property or contract rights. On the other hand, there is, in the several States, legislation requiring that he shall be given life or health insurance policies on the same terms and conditions as are applied to whites, despite the alleged fact that his expectation of life is less and not so easy to determine, owing to the lack of information as to the health and longevity of his forebears. Sketching first thus our general conclusions it remains for us only to give a few concrete examples drawn from the legislation of the last twenty years:

In 1890, soon after the civil-rights cases were decided, we find some State legislation to protect the negro in his civil rights; but the first "Jim Crow" laws, providing for separation in public conveyances, etc., began in 1865 and 1866 in Florida, Mississippi, and Texas, and are continued in other States in this year. In 1892 there are laws for separate refreshment rooms and bath-houses, and providing that negroes and whites shall not be chained together in jails. In 1893 there is legislation for separate barber shops, and the first law requiring equal treatment by life-insurance companies is passed in Massachusetts. In 1895 there is legislation against the mixture of races in schools. In 1898 the laws and constitutional provisions for practical negro disfranchisement begin in South Carolina, Mississippi, and Louisiana. On the other hand, in 1900, New York passes a statute that there shall be no separate negro schools, and in 1901 Illinois adopts civil-rights laws, followed in 1905 by five other States. In 1907 South Carolina makes it a misdemeanor to serve meals at station eating-houses to whites and blacks in the same room. In 1908 Maryland and Oklahoma provide for separate cars and separate rooms. In 1894 we find nine States prohibiting miscegenation. In 1902 Florida makes miscegenation a felony, and in 1908 Louisiana declares concubinage between a Caucasian and a negro to be also a felony, while Oklahoma adopts the miscegenation law.

These examples of legislation are not intended to be exhaustive, but will serve to give the reader a general Idea of the trend of popular law-making in this important matter.

Personal privilege, depending not upon race, but upon legislation, or inheritance, is, of course, strictly forbidden in each State by both constitutions, State and Federal. The growth of a contrary principle is only noteworthy on the two lines touching respectively the whites in the South and veterans of wars in the North. It must be said that legislation in the interest of the Grand Army of the Republic, and even of the veterans of the Spanish War, and even in some States of the sons or descendants of such veterans respectively, has come very near the point of hereditary or social privilege. The struggles of so-called "Organized Labor" to establish a privileged caste have so far been generally unsuccessful, always so in the courts, and usually so in the legislatures; but in many States those who have enlisted in either wars, Civil or Spanish, wholly irrespective of actual service or injury, are entitled not only to pensions, Federal and State, but to a diversity of forms of State aid, to general preference in public employment, and even to special privilege or exemption from license taxes, etc., in private trades, and their children or descendants are, in many States, entitled to special educational privilege, to support in State schools or industrial colleges, to free text-books, and other advantages. Presumably some of these matters might be successfully contested in the courts, but they never have been. As to pensions, nothing here need be said. The reader will remember the familiar fact that our pensions in time of peace now cost more than the maintenance of the entire German army on a war footing or than the maintenance of our own army. The last pensioner of the Revolutionary War, which ended in 1781--that is to say, the last widow of a Revolutionary soldier--only died a few years ago, early in the twentieth century. The Order of the Cincinnati, founded by Washington and Lafayette, was nevertheless a subject of jealous anxiety to our forefathers; but apparently the successful attempt of volunteers disbanded after the Civil and the Spanish Wars, although far more menacing because embodying social and political privilege, not a mere badge of honor, seems to call forth but little criticism.

XVII

SEX LEGISLATION, MARRIAGE AND DIVORCE

The notion that a woman is in all respects a citizen, entitled to all rights, political as well as property and social, was definitely tested before our Supreme Court soon after the adoption of the Fourteenth Amendment, on the plea that the wording of that amendment gave a renewed recognition to the doctrine that a woman was a person born or naturalized in the United States and therefore a citizen and entitled to the equal protection of the laws. The court substantially decided [1] that she was a citizen, was entitled to the equal protection of the laws, but not to political privileges or burdens any more than she was liable to military service. The State constitutions of many States, among them Illinois, have provided that a woman is entitled to all ordinary rights of property and contract "the same as" a man. Under this provision, when laws were passed for the protection of women, forbidding them to work more than a certain number of hours per day, they were originally held unconstitutional. The so-called women's-rights people (one could wish that there were a better or more respectful word) seem themselves to be divided on this point. The more radical resent any enforced inequality, industrial or social, between the sexes. For instance, many States have statutes forbidding women or girls to serve liquor in saloons or to wait upon table in restaurants where liquor is served. Such statutes, obviously moral, are nevertheless resented. On the other hand, the Supreme Court of the United States has taken the conservative view, that there is a difference both in physique and character between the sexes, as well as different responsibilities and a different social interest, so that it is still possible, as It has been possible in the past, to impose by law special restrictions on the contracts of women. The law of Oregon, therefore, not permitting them to make personal contract for more than eight hours per day was sustained both in the State and the Federal Supreme Courts; and a similar law by the highest court of Illinois, reversing its own prior decision.[2] This matter is of such interest and of such importance that it is frequently placed in State constitutions, and it seems worth while to summarize their provisions. The advanced position is now squarely put only in the constitution of California, which provides that no person shall on account of sex be disqualified from entering upon or pursuing any lawful business, vocation, or profession. Such a constitution as this would, of course, make it impossible even to pass such laws as the ones just mentioned forbidding them to serve in restaurants, such employment being lawful as to men. But no other State follows that extreme provision, and, indeed, the clause in the constitution of Illinois seems now to have been repealed.

[Footnote 1: Minor _v_. Happersett, 21 Wallace 166.]

[Footnote 2: See above, p. 227.]

As to property matters it may be broadly stated that they have in general precisely the same rights that men have, and in several States more; that is to say, a woman frequently has a larger interest in the property of a man at his death, than the man has in hers, should she predecease him; and universally she is given a share of the husband's property in case of divorce, either outright or by way of alimony, which, so far as I know, is never awarded to the man even if he be the innocent party. In New Jersey and some other States, a married woman is not permitted to guarantee or endorse the notes or debts of her husband. Many of the Southwestern States, from Louisiana to California, recognize or adopt the French idea of community property. By the Mississippi constitution "the legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or other power of contract in reference thereto." But this does not prevent laws regulating contracts between husband and wife.

In matters of divorce and personal relation, such as the guardianship of children, the tendency has also been to put women on an equality with men and more so. That is to say, divorces are awarded women which for similar reasons would not be awarded men, both by statute and by usual court decision, and although a very few States, such as recently developed in the conservative State of South Carolina, retain the common-law idea that the father must be the head of the family, many States provide that the rights of the parents to the custody and education of their children shall be equal. In other words they are to be brought up by a committee of two. Nevertheless, in California and other code States of the West it is still declared that the husband is the head of the family and may fix the place of abode, and the wife must follow him under penalty of desertion. Such matters are more often determined by custom or by court decision on the common law than by written statute; and it is apprehended that the judges will usually follow the more conservative rule of giving the custody of infant children to the mother, and of more mature children, particularly the boys, to the father.

Divorce statistics on the subject are extremely misleading for two great reasons: First, because in the nature of the case, and perhaps of the American character, in two cases out of three a divorce is granted for fault of the husband.[1] And in the second place, because a false cause is given in a great majority of cases. In England until recently the rule was absolute that a woman could not get a divorce for adultery alone, but there had to be cruelty besides; while the man could be divorced for the first-named cause. No such rule has ever prevailed in any State of this country. Desertion and failure to support, on the other hand, are much more easily proved by the wife. In short, it is not too much to say that in all matters of divorce she stands in a position of advantage.

[Footnote 1: _U.S. Labor Bulletin_, Special Reports on Divorce, 1860, 1908.]

The same thing is in practice true as to marriage. Under liberal notions, prevailing until recently in all our States, certainly in all where the so-called common-law marriage prevails, it is extremely easy for a woman to prove herself the lawful wife of any man she could prove herself to have known, and sometimes even without proving the acquaintance. The "common-law" marriage, by the way, is not, so far as I can determine, the English common law, nor ever was. If any common law at all, it is the Scotch common law, the English law always having required a ceremony by some priest or at least some magistrate, as does still the law of New England. Under the influence of the State Commissioners for Uniformity of Law this matter has been amended in the State of New York, so that if there be no ceremony there must at least be some written evidence of contract, as in the case of a sale of goods and chattels under the statute of frauds; the contract of marriage being thus, for the first time in New York, made of equal importance with that of the sale of goods to the value of one hundred dollars. Much difference of opinion exists between the South and the North upon this point, the Southern view being more remarkable for chivalry, and the Northern for good sense. Southern members of the National Conference of Commissioners claimed that any such law would result in disaster to many young girls; that if they had to travel ten, twenty, or thirty miles to find a minister or justice of the peace they would in many cases dispense with the formality or be impatient of the delay; and that anyhow on general principles any unmarried man who had seen an unmarried young woman two or three times ought to be engaged to her if he was not. The Northern Commissioners, on the other hand, were desirous of protecting the man, and especially his legitimate widow and children, from the female adventuress, which view the South again characterized as cynical. There is probably something to be said for both sides.

Coming finally to political rights, the subject of women's suffrage alone might well be reserved for a separate chapter, if, indeed, it is to be disposed of by any one mind; but at least the actual occurrences may be stated. As mentioned above in our chapter on political rights, it now exists, by the constitutions of four States; and has been submitted by constitutional amendment in several others and refused. No actual progress, therefore, has been made in fifteen years. As to office-holding, the constitutions of Missouri and Oklahoma--one most conservative, the other most radical--both specify that the governor and members of the legislature must be male. In South Dakota women may hold any office except as otherwise provided by the constitution. In Virginia, by the constitution, they may be notaries public. In all other States, save the four women's-suffrage States, the common law prevails, and they may not hold political office. The first entirely female jury was empanelled in Colorado this year (1910). In some States, however, statutes have been passed opening certain offices, such as notaries public, and, of course, the school commission. Such statutes are, in the writer's opinion, illogical; if women, under a silent constitution, can hold office by statute, they can do it without. It is or is not a constitutional right which the legislature, at least, has no power to give or withhold.

Generally in matters of education they have the same rights both to teach and be taught as males. Indeed, Idaho, Washington, and Wyoming declare that the people have a right to education "without distinction of race, color, caste, or sex," and that is practically the case by the common law of all States, though there is nothing to prevent either coeducation or segregation in schools. The recent tendency of custom is certainly in the latter direction, Tufts, Wesleyan, and other Eastern colleges having given up coeducation after trial, and the principle having been attacked in Chicago, Michigan, and other universities, and by many writers both of fact and fiction.

These are the abstract statements, but one or two matters deserve more particular treatment. First of all, divorce legislation. Many years ago the State Commissioners for Uniformity of Law voted to adhere to the policy of reforming divorce procedure while not attacking the causes. This, again, is too vast a subject to more than summarize here. The causes of divorce vary and have varied all the way from no divorce for any cause in South Carolina, for only one cause in New York and other States, up to twenty or thirty causes, with that indefinite or "omnibus" clause of "mutual incompatibility," or allowing the courts to grant divorces in the interest of the general peace. Since the efforts of reformers have wiped out the express-omnibus clause from the legislation of all States, the same abuse has crept in under the guise of "cruelty"; the national divorce report before referred to showing that the courts of this broad land have held sufficient cruelty to justify divorce (to the wife at least) to exist in tens of thousands of different incidents or causes, ranging all the way from attempts to murder ("breaking plaintiff's nose, fingers, two of her ribs, cut her face and lip, chewed and bitten her ears and face, and wounded her generally from head to foot") to not cutting his toenails [1] or refusing to take the wife to drive in a buggy; indeed, one young North Carolina woman got a divorce from a man she had recently married, on the ground that he was possessed of great wealth, but she had been assured that he was an invalid, and had married him in the hope and belief of his speedy decease, instead of which he proceeded to get cured, which caused her great mental anguish; while one husband at least got a divorce for a missing vest button.[2] But, independent of the vagaries of courts and judges, and perhaps, most of all, of juries in such matters, it has been found that the numbers of divorces bear no particular relation to the number of causes. In fact, many clergymen argue that to have only one cause, adultery, is the worst law of all, as it drives the parties to commit this sin when otherwise they might attain the desired divorce by simple desertion. Moreover, the difference in condition, education, religion, race, and climate is so great throughout the Union that it is unwise, as well as impossible, to get all of our forty-eight States to take the same view on this subject, the Spanish Catholic as the Maine free-thinker, the settler in wild and lonely regions as the inhabitant of the old New England town over-populated by spinsters. It was, therefore, the opinion of the State Commissioners that the matter of causes was best determined by States, according to their local conditions, and that it would be unwise to attempt, even by amendment to the Constitution, to enforce a national uniformity. All the abuses, substantially, in divorce matters come from procedure, from the carelessness of judges and juries, or, most of all, by laws permitting divorce without proper term of residence, without proper notice to the other side, or by collusion, without proper defence, or for no reason but the obvious intention of contracting other marriages. The recommendations of the Commissioners on Uniformity will, therefore, be found summarized below,[3] and there is beginning to be legislation in the direction of adopting these, or similar statutes. The Supreme Court has vindicated, however, the right of the State not to be compelled under the full faith and credit clause to give effect to divorces improperly obtained in other States by its own citizens or against a defendant who is a citizen. In other words, a marriage, lawful where made, is good everywhere; not so of a divorce. The fact that this ruling, wise and proper, necessarily results in the possibility that a person may be married in one State, divorced in another, and a bachelor in a third, and bigamous in a fourth, lends but an added variety to American life. If the people wish to give the Federal government power to make nationwide marriage and divorce laws, they must do so by constitutional amendment.

[Footnote 1: _Sic_: "U.S. Labor Commissioners' Report on Marriage and Divorce," Revised Edition, 1889, pp. 174, 175, 176.]

[Footnote 2: _Ibid_., p. 177.]

[Footnote 3: AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAW OF OTHER STATES RELATIVE TO MIGRATORY DIVORCE

Section 1. No divorce shall be granted for any cause arising prior to the residence of the complainant or defendant in this State, which was not ground for divorce in the State where the cause arose.

Sec. 2. The word "divorce" in this act shall be deemed to mean divorce from the bond of marriage.

Sec. 3. All acts and parts of acts inconsistent herewith are hereby repealed.

AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAWS OF OTHER STATES RELATIVE TO DIVORCE PROCEDURE AND DIVORCE FROM THE BONDS OF MARRIAGE

Section 1. No person shall be entitled to a divorce for any cause arising in this State who has not had actual residence in this State for at least one year next before bringing suit for divorce, with a _bona-fide_ intention of making this State his or her permanent home.

Sec. 2. No person shall be entitled to a divorce for any cause arising out of this State unless the complainant or defendant shall have resided within this State for at least two years next before bringing suit for divorce, with a _bona-fide_ intention of making this State his or her permanent home.

Sec. 3. No person shall be entitled to a divorce unless the defendant shall have been personally served with process if within the State, or if without the State, shall have had personal notice, duly proved and appearing of record, or shall have entered an appearance in the case; but if it shall appear to the satisfaction of the court that the complainant does not know the address nor the residence of the defendant and has not been able to ascertain either, after reasonable and due inquiry and search, continued for six months after suit brought, the court or judge in vacation may authorize notice by publication of the pendency of the suit for divorce, to be given in manner provided by law.

Sec. 4. No divorce shall be granted solely upon default nor solely upon admissions by the pleadings, nor except upon hearing before the court in open session.

Sec. 5. After divorce either party may marry again, but in cases where notice has been given by publication only, and the defendant has not appeared, no decree or judgment for divorce shall become final or operative until six months after hearing and decision.

Sec. 6. Wherever the word "divorce" occurs in this act, it shall be deemed to mean divorce from the bond of marriage.

Sec, 7. All acts and parts of acts inconsistent herewith are hereby repealed.]

It is always to be remembered that the law of marriage, and divorce as well, was originally administered by the church. Marriage was a _sacrament_; it brought about a _status_; it was not a mere secular contract, as is growing to be more and more the modern view. Indeed, the whole matter of sexual relations was left to the church, and was consequently matter of sin and virtue, not of crime and innocence. Modern legislation has, perhaps, too far departed from this distinction. Unquestionably, many matters of which the State now takes jurisdiction were better left to the conscience and to the church, so long as they offend no third party nor the public. Very few lawyers doubt that most of the causes of action based on them, such as the familiar one for alienation of the affections, are only of use to the blackmailer and the adventurer. They are very seldom availed of by honest women.

Nevertheless, it is not questionable that modern American legislation, particularly in the code States, in California, New York, and the West generally, is based upon the view that marriage is a simple contract, whence results the obvious corollary that it may be dissolved at any time by mutual consent. No State has thus far followed the decision to this logical end, on the pretended assumption that the rights of children are concerned; but the rights of children might as well be conserved upon a voluntary divorce as after a scandalous court proceeding. One possible view is that the church should set its own standard, and the state its own standard, even to the extreme of not regulating the matter at all except by ordinary laws of contract and laws for the record of marriages and divorces and for the custody, guardianship, support, and education of children, which would include the presumption of paternity pending an undissolved marriage, but all divorces to be by mutual consent. It is evident to any careful student of our legislation that we would be rapidly approaching this view but for the conservative influence of Massachusetts, Connecticut, Pennsylvania, New Jersey, and the South, and but for the efforts of most of the churches and the divorce reform societies. Which influence will prove more powerful in the end it is not possible to predict.

Socialists urge that the institution of marriage is bound up with that of private property. There is little doubt that the women's suffrage movement tends to socialism, and, also, paradoxical as it may at first seem, to lax marriage laws and easy divorces. "The single standard of morality" offered by all advanced women's-rights advocates will necessarily be a levelling down, not a levelling up; and in a society where the life of the ordinary young woman _is_ that which at least _was_ that of the ordinary young man about town, it is hardly likely that there will be any stricter legislation. Where a majority of young women live alone and earn their living, the old order must change.

Divorce, it should be known, is a modern institution; that is, divorce by the secular courts. Such divorce as the Roman Church recognized, or was granted by act of Parliament, was the only divorce existing down to the year 1642, when one Hannah Huish was divorced in Connecticut by the General Court, "with liberty to marry again as God may grant her opportunity," and about that time the Colony of Massachusetts Bay enacted the first law (with the possible exception of one in Geneva) permitting divorces by ordinary courts of law.

The age of consent means two things, or even three, which leads to much confusion. It has a definite meaning in the criminal law, to be discussed later; and then it has a double meaning in the marriage law. First, the age under which the marriage of a girl or boy is absolutely void; second, the age at which it is lawful without the consent of the parents. The tendency of our legislation is to raise the latter age and possibly the former. At least, marriages of very young persons may be absolutely cancelled as if they had never taken place. According to all precedents, human and divine, from the Garden of Eden to Romeo and Juliet, "the age of consent" would by common sense appear to be the age at which the woman did in fact consent; such is the common law, but such is not usually law by our statutes.

But perhaps the legislation of the future is best represented by the extraordinary effort, whose beginning we now see, to prevent freedom of marriage Itself. There is probably no human liberty, no constitutional right to property, or hardly, even, to one's personal freedom, which has been more ardently asserted by all persons not actually slaves (and even, indeed, by them) than the right to love and marry. In the rare instances where even priests have interfered, it has usually led to resentment or resistance. The common law has never dared to.[1] Marriages between near relations, prohibited by the Mosaic law, were invalid by the church law, and became invalid by the secular law at the very late period when it began to have any jurisdiction over the matter, hardly in England half a century ago; in the United States, where we have never had canon law or church courts, the secular law took the Mosaic law from the time of the Massachusetts Body of Liberties (1641). The first interference of statute was the prohibition of the marriage of first cousins. This seems to be increasing. The prohibition of marriage between different races we have mentioned in another chapter. To-day we witness the startling tendency for the States to prescribe whom a person shall _not_ marry, even if it do not prescribe whom they shall. The science of eugenics, new-fangled as the word itself, will place upon the statute-book matters and considerations which our forefathers left to the Lord. Considerable progress has already been made in this country. The marriage of insane persons, persons absolutely _non compos_, was, of course, always void at the common law, and the church law as well. They are incapable of contract. The marriage of impotent persons was void also, but by recent laws the marriage of epileptics is forbidden and made void, the marriage of persons addicted to intoxicating liquors or drugs, the marriage of persons who have been infected by certain diseases; and finally, most startling of all, the proposal looms in the future to make every man contemplating a marriage submit himself to an examination, both moral and physical, by the State or city officials as to his health and habits, and even that of his ancestry, as bearing upon his posterity. Novels have been written about men who avoided marriage by reason of a taint of insanity in the family; this modern science of eugenics would propose to make such conduct compulsory by law.

[Footnote 1: Mr. Flinders Petrie, in his late book, "Janus in Modern Life," tells us that at least ten varieties of marriage and marriage law have prevailed in history, and that all save marriage by capture perdure in the civilized world to-day, most of them, in actuality, even in England.]

We have now said enough on the abstract questions to close with some of the concrete examples. Some States forbid the marriage of a person who has tuberculosis; some require him to submit to an examination. In 1907 a bill was introduced in Michigan, which provided that no person should be permitted to marry who had ever led an unchaste life. This bill did not, however, become a law.

In divorce matters New York, in 1890, adopted the very intelligent statute requiring courts to allow a person charged as corespondent in a divorce case to make defence. Six States raised the age of consent in criminal matters, and four in marriage; one required a marriage ceremony. In 1891 one State added crime, or conviction for crime, as a cause of divorce, one insanity. Two regulated the procedure in the direction recommended by the Uniformity Commissioners. One made it criminal to advertise the securing of divorces in the newspapers. Two States made simple sexual connection a crime (which was not a crime at the common law). One Southern State enacted a special law against slander of women,--another instance of the tendency to their special protection. Several States adopted newer laws giving complete control of their separate property to women, and allowing them to do business as sole traders, without responsibility for the husband's debts. Two more States passed statutes allowing women to practise law. In 1890 one other State forbids drinks to be served by either women or children under eighteen.

In 1893 there was much legislation concerning the powers of the mother over the children, and the liability of the husband to support both wife and children under penalty as for the crime of desertion. This legislation has now become pretty general throughout the country; that is, it is made a criminal offence for a man to desert his wife or children, or, being able, to fail to support them. One State declared the husband and wife joint guardians of the children. In 1894 one State prohibited marriage between first cousins, and one between uncle and niece. One declared that marriage removed nonage. One made it a misdemeanor for a married man to make an offer of marriage. The laws for support of wife and children continue, and there were laws passed giving alimony to the wife, even in case the divorce were for her fault. One State made both husband and wife competent witnesses against each other in either civil or criminal cases. One found it necessary to declare that a woman might practise medicine, and another that she might be a guardian; the statute in both cases would seem to have been unnecessary. Two States provided that she might not serve liquor in saloons or restaurants, the statute already referred to. Louisiana adopted the intelligent statute, already mentioned, permitting the right of suffrage to women in cases of votes on loans or taxes by cities, counties, or towns; and Utah first enacted the much-mooted statute that female school-teachers should be paid like wages as males for the same services. It would be most interesting to hear how this statute, which was passed in 1896, turned out to work.[1] One State provided that women might be masters in chancery, and another carried out the idea of equality by enacting that women should no longer be excepted in the laws against tramps and vagrants. Constitutional amendments proposing women's suffrage were defeated this year (1895) in no less than nine States. Connecticut passed a law that no man or woman should marry who was epileptic or imbecile, if the wife be under forty-five, and another State for the first time awards divorce to the husband for cruelty or indignities suffered at the hands of the wife, while another State still repeals altogether its law permitting divorces for cruelty or intoxication. One other makes insanity a cause of divorce. One other, non-support. Two or three adopt the notion of joint guardianship of children.

[Footnote 1: A State official informs me that the law is evaded, see above, p. 212.]

In 1897 one State prohibits the remarriage of divorced parties during the life of the innocent plaintiff; the Uniformity of Law Commissioners came to the conclusion that any limitation upon remarriage was unwise and led both to immorality and to wrong against innocent third persons. Divorces should either not be granted at all, or be granted absolutely. This is the better opinion; though, of course, it does not apply to mere orders of separation. Much confusion of thought has arisen upon this subject, the upholders of lax divorces always assuming that the opponents mean to compel persons to live together in misery or incompatibility, which, of course, is far from the case. A legal separation has always been permitted, except, indeed, where that doctrine is interfered with by modern statute; any wife can be freed of a vicious or cruel husband and even compel him to support her while living away from him, but "platform women" are apt to forget this fact. In the same year one Southern State has the chivalry to provide that no women should be worked as convicts on the road; one is not aware but for this that it ever happened. We see more humane legislation about this time for the protection and proper treatment of women in jails or houses of detention, for the services of matrons and the careful separation of the sexes, and by now seats for women in stores or factories are almost universally required. The sale of liquor to women is in one State specially forbidden, Louisiana follows the Texas law giving women tax-payers a vote on appropriations for permanent improvements.

In 1899 comes the law of Michigan, already referred to, forbidding persons with contagious diseases to marry, and compelling physicians to testify. The Massachusetts Medical Association has gone on record as urging that there should be a privilege to physicians in all cases, as there is to lawyers. Many people believe that to be the common law; such is not the case, even as to priests.

One more State this year awards divorce for insanity, and one more for intoxication. Several States permit women to get damages from liquor-sellers selling intoxicating drink to their husbands; I know of no corresponding statute permitting the husband to get damages for drinks sold the wife. A wife may testify against the husband in certain cases, as actions for alienating of affection, or criminal conversation; not so the husband. Texas and other Southwestern States adopt the statute that an action for seduction shall be suspended on the defendant's marriage with the plaintiff, otherwise it is a felony, and it is again a felony should he after such marriage desert her--the Fourteenth Amendment to the contrary notwithstanding (which reminds one of the colonial Massachusetts statute, that the punishment for that offence may either be imprisonment in the state-prison, or marriage!).

The laws aimed at mere sin increase in number. One State makes improper relations, even by mutual consent, punishable with four years in the state-prison, if the girl be under eighteen. North Dakota introduces a bill to require medical examination in all cases as a prerequisite to marriage; it failed in North Dakota that year, but was promptly introduced in other States. In Oregon all widows and fathers may vote, without regard to property qualification, in school district elections; and this State joins the number of those which forbid the marriage of first cousins.

In 1901 came the great New York statute abolishing the common-law marriage, which we have discussed above. Some States pass laws punishing wife-beating by either imprisonment or a whipping. In 1902 perhaps the most interesting thing is that there is no legislation whatever of any kind on the subject of women's suffrage--showing distinctly the refluent wave. In 1903 New Hampshire rejects a constitutional amendment for women's suffrage. Kansas restricts the marriage of epileptic and weak-minded persons. Several States reform their divorce laws, and Pennsylvania adopts Southern ideas giving divorce for a previous unchastity discovered after marriage. This matter has so far been covered by no Northern State, though it had been law from all time in Virginia.

In 1904 women's suffrage was proposed in Oregon, and in 1905 rejected. Illinois follows New York in abolishing the common-law marriage, and raises the age to eighteen in a woman and twenty-one in a man. As is often the case, it does not appear from the ambiguous wording of the statute whether this invalidates the marriage or merely subjects the offenders, or the minister or the magistrate, to a penalty; probably the latter. Minnesota forbids the marriage of imbecile or epileptic persons; Nebraska that of first cousins, and Pennsylvania adopts the uniform divorce law recommended by the commissioners. Five other States reform their divorce laws, and four their laws concerning married women's property, and seventeen adopt new laws for compulsory support of the woman and children by the husband.

In 1906 one more State adopts the idea of giving a vote to female property-owners in money elections. One puts the age of consent up to sixteen. In a good many States it is already eighteen. Women's suffrage is again rejected in Oregon; and finally even South Dakota reforms her divorce laws.

Perhaps a word should be given to other laws relating to minors as well as to young women. There is very general legislation throughout the country forbidding the sale of intoxicating liquor to persons under twenty-one, and in the great majority of the States the sale of cigarettes, narcotics or other drugs, or even tobacco, to persons under twenty-one, eighteen, or fifteen, respectively. In some States it is forbidden, or made a misdemeanor, to insure the lives of children--very important legislation, if necessary. In 1904 Virginia passed a statute punishing kidnapping with death, which is followed in 1905 by heavy penalties for abduction in three other States; fourteen States establish juvenile courts. Seven States make voluntary cohabitation a crime, and six pass what are known as curfew laws. Indeed, it may be generally said that the tendency is, either by State statute or municipal ordinance, to forbid children, or at least girls under sixteen, from being unattended on the streets of a city after a certain hour in the evening.

In 1907 Mississippi makes the age of consent twelve, and the penalty for rape death, which, indeed, is the common law, but which law has extraordinary consequences when the age is raised, as it is in many States, to eighteen. Two more States adopt the laws against abduction and one a statute against blackmail.

Sufficient has, perhaps, been said to give the reader a general view of contemporary law-making on this most important matter of personal relations. Most of the matters mentioned in this chapter are cohered by various learned societies in annual reports, or even by the government, in cases of marriage and divorce, and to such special treatises the reader may be referred for more precise information. The Special Report of the United States Census Office, 1909, published early in 1910, makes a careful and elaborate study of the whole question from the years 1867 to 1906. Such statistics are necessarily uncertain for reasons already indicated. Court judgments do not indicate the true cause of divorce, nor is the complainant necessarily the innocent party, nor are the numbers of divorces granted, as for instance in Nevada, any fair indication of the normal divorce rate of the people really living in that State. With this caution we will note that the number of divorces varied from about five hundred in each hundred thousand of married population every year in Washington, Montana, Colorado, Arkansas, Texas, Oregon, Wyoming, Indiana, Idaho, and Oklahoma, down to less than fifty, or about one-tenth as many, in New Jersey, New York, and Delaware. Certain significant observations may certainly be made upon this table. In the first place, the older States, the old thirteen, have, from the point of view of the conservative or divorce reformer, the best record. At the head stand the three States just named, then North Carolina, Georgia, Pennsylvania, Maryland, Virginia, Massachusetts, Louisiana (largely French and Roman Catholic), and Connecticut--ten of the original thirteen States. Only New Hampshire and Rhode Island, the latter for obvious reasons, stand low down in the column; the last State having about three hundred divorces as against Montana's five hundred. South Carolina, having no divorces at all, does not appear.

The next observation one is compelled to make is that divorces are most numerous in the women's suffrage States, or in the States neighboring, where "women's rights" notions are most prevalent. Montana, Colorado, Wyoming, and Idaho stand second, third, sixth, and eighth, respectively, among the fifty States and Territories comprised in the table.[1] On succeeding pages are graphic maps showing the conditions which in this particular prevail for a number of years. There is little change of these in the thirty years from 1870 to 1900. The Atlantic seaboard and Southern States in 1870 are left white, with the exception of New England, which is slightly shaded; that is, they have less than twenty-five divorces per hundred thousand of inhabitants. In 1880 the black belt States and Territories--having one hundred and over--extends from Wyoming over Montana, Colorado, Utah, and Nevada. In 1900 it covers the entire far West and Southwest, with the exception of New Mexico (Roman Catholic) and Utah (Mormon). The chart showing the relation of divorces to number of married population does not materially differ. Now these figures, ranging from five hundred divorces per hundred thousand married population per year, or three hundred in the more lax States, down to less than fifty in the stricter States, compare with other countries as follows:

[Footnote 1: Census Reports, 1909, "Marriage and Divorce," part I, p. 15.]

Only Japan shows a number of divorces approaching these figures. She has two hundred and fifteen per one hundred thousand of general population,--about the same as Indiana, which stands eighth in the order of States. But with the exception of Japan no civilized country shows anything like the proportion of divorces that the American States do. Thus, in Great Britain and Ireland there are but two per hundred thousand of population; in Scotland, four; in the German Empire, fifteen; in France, twenty-three, and in the highest country of all, Switzerland, thirty-two, while the average of the entire United States is seventy-three.

The census figures as to the trades or professions in which divorce is most prevalent are amusing, but probably not very significant. It appears, as might be expected, that actors and actresses stand at the head, and next musicians or teachers of music; while clergymen stand very near the bottom of the list, only excelled in this good record by bar-tenders (in Rhode Island) and, throughout the country, by agricultural laborers.

But after all, more important, perhaps, than even marriage and divorce, are the great social changes which arise from the general engaging of women in industrial occupation. In matters of property right we have found they are substantially already on an equality with men, if not in a position of special privilege. Yet, as Herbert Spencer remarked, "When an abuse which has existed for many centuries is at last on the point of disappearing, the most violent outcry is made against it." During the century when women were really oppressed,[1] under the power of the husband, given no rights as to their property, their children, or hardly even as to their person, no complaint was heard. Whereas to-day the cry of unjust legislation almost rises to a shriek. The movement for the emancipation of women originated, of course, with Mary Wolstonecraft, about 1812. Her book, which was the first, is certainly one of the longest that have yet been written on the subject. It remained at the time unanswered, and when its author married Godwin she herself seems to have lost interest in the controversy. Nevertheless, little has been added since to the ideas there put forward, save, indeed, for the vote. It is a somewhat curious fact that in all Miss Wolstonecraft's great magazine of grievances and demands for remedying legislation, there is not a single word said about votes by women, or there being such a thing as the right to the ballot.

[Footnote 1: In the trial of Mary Heelers for bigamy (2 State Trials, 498) as late as 1663 the chief justice said, 'If guilty, she must die; a woman hath no clergy.' Yet Mary wrote to her husband, in court, "Nay, my lord, 'tis not amiss, before we part, to have a kiss!" She was acquitted.]

The industrial condition of the sex in American cities may be summed up with the general phrase "absolute equality of opportunity," with a certain amount of special protection. Women are nearly universally required to be given seats in factories and stores, and the laws specially protecting their periods of employment have just been sustained as constitutional in the States of Illinois and Oregon and the Supreme Court of the United States. On the other hand, we are far behind European countries in legislation to protect their health or sanitary conditions. The most radical effort at legislation ever made was undoubtedly that Connecticut bill forbidding employment of married women in factories, which, however, did not become a law. The recent reports of Laura Scott to the American Association for Labor Legislation, on Child Labor, 1910, and the Employment of Women, 1909, have already been referred to. From the former, which appeared as we are going to press, we learn that there are prohibited occupations to children in all the States without exception--a statement which certainly would not have been true some years since. These prohibited groups of employment are generally, to male and female, dangerous machinery and mines, and to females also saloons; and there is nearly universally a limitation of all labor to above the age of twelve or fourteen for all purposes, and to above fourteen or sixteen for educational purposes, besides which there is a very general prohibition of acrobatic or theatrical performances. Girls are sometimes forbidden to sell newspapers or deliver messages for telegraph companies or others. Compulsory education is, of course, universal, and the machinery to bring it about is generally based upon a system of certificates or cards, with truant officers and factory inspectors.

According to the encyclopaedias, some five hundred thousand women were employed in England about twenty years ago, of whom about three hundred thousand were in the textile mills. In Massachusetts alone there were two hundred and eight thousand women employed, according to the last State census. Neither of these figures include the vast class of domestic service and farm labor. The inclusion of this would swell the proportion of adult women employed in gainful occupations to at least one in four, if not one in three. Congress itself has recently been investigating the question whether "home life has been threatened, marriage decreased, divorce increased out of all proportion, and the birth rate now barely exceeds the death rate, so that the economic and social welfare of the country is menaced by this army of female wage earners" (see _Boston Herald_, April 2, 1908). It appeared that in 1900 one million seven hundred and fifty thousand children were at work between the ages of ten and fifteen, of whom five hundred thousand were girls. This and other considerations have led to the movement for national child-labor laws already discussed.

Perhaps the most dangerous tendency, at least to conservative ideas, is the increasing one to take the children away from the custody of the parents, or even of the mother, and place them in State institutions. Indeed, in some Western States it would appear that the general disapproval of the neighbors of the method employed by parents in bringing up, nurturing, educating, or controlling their children, is sufficient cause for the State authorities to step in and disrupt the family by removing the children, even when themselves unwilling, from the home to some State or county institution. Any one who has worked much in public charities and had experience with that woeful creature, the institutionalized child, will realize the menace contained in such legislation.

Finally, it should be remembered that throughout the United States men are universally liable for their wives' debts, short of some quasi-legal separation; on the other hand, wives are never liable for the debts of their husbands.

XVIII

CRIMINAL LAW AND POLICE

There is no very general tendency toward new legislation in matters of felony, and many States are still content to remain with the common law. Such legislation as there is is mainly concerned with the protection of women and children, alluded to in the last chapter. In matters of less serious offences, of legislation creating misdemeanors or merely declaring certain acts unlawful, there are three main lines: First, legislation usually expressive of the common law against conspiracies of all sorts, combinations both of individuals and of capital, already fully discussed. Next, the general line of legislation in the interest of the health of the public, such as pure food and drug laws, and examination for trade or professional licenses; and finally laws protecting the individual against himself, such as liquor and anti-cigarette or anti-cocaine laws. It is hardly necessary to more than illustrate some of these matters. Then there are the laws regulating punishment for crime, laws for probation or parole, indeterminate sentences, etc., all based on the modern theory that reform, not retribution or even prevention, is the basis of penology. Such laws have been held constitutional, even when their result is to arbitrarily increase a man's sentence for crime on account of his past or subsequent conduct. Finally, and most important, there is the legislation regulating the actual trial of cases, indictments, juries, appeals,--the law of court procedure, civil as well as criminal, which for convenience we may consider in this chapter.

Of the first sort of legislation, we have noted that in many States adultery, in many States simple drunkenness, in other States mere single acts of immorality, are made felonies. In 1892 the State laws against food adulteration begin, which, by 1910, have covered milk, butter, maple sugar, and many other subjects. By the Federal pure-food law of 1906, applying to Interstate commerce in such articles, it became advisable for the States to adopt the Federal Act as a State law; also for the sake of uniformity a few States have had the intelligence to do so. The trades of fat-rendering and bone-boiling are made nuisances by statute.

In 1896 we note the first statutes against lynching. In 1897 local option prevails in Texas, and the blue laws of Connecticut are abolished to the extent that recreation on Sundays is no longer prohibited. Local option and anti-lynching laws continue during the next two or three years, and by 1900 twenty-four States have pure-food laws, which, however, are ineffective because they impose no sufficient penalty. In 1903, in consequence of the assassination of President McKinley, Washington and Wisconsin make the advocating anarchy a felony. Twenty-one more States pass pure-food laws, and nearly all the States have gone over to local option from State-wide prohibition, to which latter principle only three States now adhere. In 1904 Mississippi and Virginia adopt more stringent laws against vagrancy, and 1905 is the year of active legislation on the indeterminate sentence, juvenile courts, parole and probation, with two more statutes against mobs and lynching. In 1907 the States are busied with the attempt to enforce their prohibition regulations against the interstate commerce jurisdiction of the Federal government. Solicitation of interstate orders for liquor is forbidden in Mississippi, and it is provided that shipments sent C.O.D. are not to be moved one hundred feet or given away; also, that the mere possession of an internal revenue receipt from the United States government is _prima facie_ evidence of an offence against the State law. Statutes of this kind led to renewed conflict between State and Federal authority. Virginia adopts the statute against giving tips or any commissions; see p. 244 above. In 1908 we find more parole and probation laws, two prohibition and three local-option laws, and four new pure-food statutes.

Coming to matters of court procedure, in 1890 one State provides that there should never be called more than six witnesses for each side in any criminal case, which oddly reminds one of early English trials by compurgation; but is, of course, quite unconstitutional in this country. In 1893 Connecticut adopts a statute that honorably discharged soldiers and sailors addicted to drink are to be "treated" free at the State hospital. The definition of the word "treated" seems ambiguous, but in any event it is a pleasing reminder of Bishop Berkeley's remark that he would "rather see England free than England sober." Some States provide for a jury of eight in criminal cases and for a verdict of three-quarters in civil cases--a statute of questionable constitutionality. Very generally throughout the twenty years studied by us, the States have adopted stricter rules for the admission of attorneys at law to practise at the bar.

In 1895 Pennsylvania yields to the physicians and passes a statute forbidding them to disclose communications of patients, but the statute only applies to civil cases. More States provide for verdicts by a majority of the jury. Maryland goes Pennsylvania one better in extending the professional privilege to newspaper reporters; that is to say, we find a statute that they may not be compelled to disclose their sources of information, an excellent statute for the yellow journal. In 1897 California abolishes capital punishment; there has been a general tendency in this direction, of recent years, although some States, having tried the experiment, have returned to it again, as has the Republic of France. In 1899 the privilege from testifying is extended in one State also to trained nurses, and in others to physicians, even in criminal cases, although they may testify with the patient's consent. The same law was adopted in Iowa in 1900, Ohio does away with the common law of libel, except the plaintiff can prove actual malice. By this year, seventeen States expressly allow women to practise law, and twenty-eight do so by implication. The Colorado statute for a three-fourths verdict is held unconstitutional.

The regulation of the liquor traffic is, perhaps, after the labor question, the most universal subject of legislation in occidental nations. Experts on the matter tell us (E.L. Fanshawe, "Liquor Legislation in the United States and Canada," Report to Parliament, 1892) that there have hitherto been but three, or possibly four, inventions--universal or State-wide prohibition, local option, license, high or low, and State administration. The last was recently tried in South Carolina with more or less success. Prohibition by a general law does not seem to be effective; local option, on the contrary, does seem to be so. But the general consensus of opinion, to which Mr. Fanshawe comes, and which seems still to be held by most intelligent American publicists, is that on the whole high license works best, and this the women themselves have just voted in Denver; not only because it actually prohibits to a certain extent, but it regulates and polices the traffic, prevents the sale of adulterated liquor, and to a considerable extent the grosser disorders and political dangers that attend the bar-room. On the other hand, the power of licensing should never be granted to any political body, but should be granted under fixed rules (determined by geographical position and the local opposition or desire) by the local government. These rules should not be arbitrary, and the person applying for license should have the right to appeal to some court.

Matters of bribery and political corruption have been somewhat anticipated under Chapter 14. Suffice it here to say that the States very generally have been adopting statutes making bribery criminal and a cause of permanent disqualification from all political right, either voting or holding office, and this applies both to the person bribing and the person receiving the bribe. Bribery by offers or promise of employment is a far more difficult matter, but this matter also certain States have sought to regulate.

There are, of course, thousands and thousands of city ordinances relating to the criminal law, but usually to minor offences or matters of police regulation. Undoubtedly the duplication of them tends to make us not a law-abiding community. It was the present Boston police commissioner who complained that there were more than eleven thousand ordinances in Boston, which everybody was supposed to know. We must let the whole matter go by saying that there is a general attempt at universal police regulation of all the actions of life, at least such as are conducted outside of a man's own house. Sunday laws, Sabbatarian legislation, have, of course, very largely been abandoned, except when restored in the interest, or supposed interest, of labor. In the State of New York, for instance, barbers could only shave on Sunday in the city of New York and the town of Saratoga; the reasons for the exception are obvious.

Coming to general principles of penology, there is no doubt that of the three possible theories, revenge, prevention, and reform of the criminal, it is the latter that in the main prevails throughout the United States. An investigation was conducted some years since by correspondence with a vast number of judges throughout the world, and it proved that this was also their principle of imposing sentences, in the majority of cases. More radical change is found in that legislation freeing prisoners on parole, providing indeterminate sentences, and in the creation of special courts for boys and young women, with special gaols and reformatories. Jury trial, of course, remains substantially unchanged from the earlier times, only that the jurors are now in most States permitted to read or to have read the newspapers, and that the government has a right of appeal when the verdict has gone for the prisoner on a point of law. This matter, upon President Roosevelt's recommendation, was embodied in an act of Congress.

The legislation making it criminal to advocate assassination or anarchism has been adverted to when we were considering the rights of aliens. In England, it is treason to imagine the death of the king. There is no constitutional reason why it should not be treason to imagine the death of the president, or perhaps even the subversion by force of organized society. Such laws have been passed in Washington, Wisconsin, and other States.

It has, in some States, been made a capital offence to kidnap a child, and, as has been elsewhere said, the rigor of the common law is very generally preserved for the crime of rape. The most active effort to-day for legislation in matters quasi-criminal is that to extend jury trial over cases of contempt of court, particularly when in violation of a chancery injunction when the act itself is criminal. The greatest need of criminal legislation is in the writer's opinion in matters of business or corporate fraud, and in revival of our older English law against the extortion or regrating of middlemen, the engrossing of markets, the artificial enhancing of the prices of the necessaries of life, and the withholding, destruction, or improper preservation of food. But most of all, as President Taft has urged, greater speed and certainty and less technicality in court trials for crime--a reform of our legal procedure.

XIX

OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC DOMAIN

The matter of most interest in modern American legislation for municipal government is probably the home-rule principle. That is, statutes permitting cities or towns, or even villages, to draw and adopt their own charters and govern themselves in their own way. The charter thus adopted may, of course, be the old-fashioned government of mayor, aldermen, common council, etc., or it may be the newly invented government by commission, based substantially on the theory of permanent officials chosen at infrequent intervals, and officers, in so far as possible, appointed, and not elected. The one makes for efficiency, the other for democracy. At present the American people seem to have a craze for efficiency, even at the expense of representative government, and of principles hitherto thought constitutional. It is impossible to tell how long it will last. It may carry us into the extreme of personal government, national, State, and local, or history may repeat itself and we may return to the principle of frequent elections and direct responsibility to the voters under the arbitrament of the courts of law. We may go on to special courts (declared odious in the Great Case of Monopolies) and administrative law, or be content with improved understanding of the law we already have.

These matters are too large for us; coming down to more concrete facts, we find that the general tendencies of legislation upon State, and particularly municipal, government are to somewhat enlarge its functions, but considerably to limit its expenditure. Greater distrust is shown in legislatures, municipal as well as State, and a greater trust and power reposed in individual heads, and a much greater power intrusted to more or less permanent boards and commissions, usually not elective, and often clothed with vast powers not expressly submitted to the scrutiny of courts of law. The purposes of education are somewhat extended, generally in the direction of better education, more technical and practical and less "classical."[1] Charity includes a largely increased recreation for the people, State provision for many more classes of the invalid and incompetent, specialized homes for various sorts of infirm or inebriate, and some little charity in the guise of bounties of seed, etc., to needy farmers, which latter, however, have usually been held unconstitutional.

[Footnote 1: Though a lady orator in Boston this year complains to an audience of labor unionists that trades schools and industrial education tend to "peasantize" the poor. Peasanthood was the condition of the agricultural laborer; it was skilled labor that made him free--neither peasant, peon, nor villein. See p. 20, above.]

Thus, in 1890 North Dakota limits the debt of cities to five per cent.; but permits county loans to raise seed grain for needy farmers; other States extend the principle of socialism to electric lighting, gas, natural gas, water, sewers, agricultural drainage, irrigation, turnpikes, and cemeteries. That is to say, all may be built, maintained, or run at the municipal expense, or under municipal control. In 1895 Wisconsin, North Carolina, Texas, and other States carefully limit State, county, town, or city taxes to prescribed rates. Texas requires a two-thirds vote on the issue of municipal bonds, and fixes the debt limit at five per cent. In 1896 Missouri rejects a constitutional amendment permitting municipal gas and water socialism on majority vote of the voters. The same year the failure of such enterprises begins to show itself in a statute of Iowa authorizing municipal plants to be sold upon a popular vote. The socialist town of Hamilton, Ohio, actually went into the hands of a receiver; a similar result followed the English experiments in the towns of Poplar and West Ham.

In 1897 many other States adopted a limit for State, city, county, or town taxes. Indeed, it may be stated generally, without going into further details, that such laws are practically universal throughout the South and West, and prevail to some extent as to cities only in New England, and the same may be said of laws fixing a debt limit which States, counties, cities, or towns may not exceed. Such laws are very generally evaded, as by leasing desired improvements of a private company, or (in Indiana at least) the overlapping of municipal districts; thus there may be (as formerly in England) city, town, school district or poor district, each separate and not conterminous.

While it is obvious that municipal socialism has rather decreased in the last ten years, laws restricting the granting of franchises have become far more intelligent and are being generally adopted. The best example of such legislation is probably to be found in Kansas. The general principles are that no franchise can be given but for a limited time, that it must be bought at public auction, that the earnings beyond a certain percentage on investment must revert to the city, and that there must be a referendum to popular vote in the locality interested. In 1899 Michigan declares the municipal ownership of street railways unconstitutional, but Nevada passes a statute for municipal ownership of telephone lines. In 1903 the municipal ownership of gas and oil wells is permitted in Kansas, and of coal or fuel yards in Maine. A law similar to the latter was declared unconstitutional by the Massachusetts Supreme Court. Missouri adopts a sweeping statute for the municipal ownership of "any public utilities" in cities of less than thirty thousand population. In 1904 Louisiana permits small towns to own and operate street railways. Other States copy the Missouri statute as to municipal ownership of all or any public utilities, and generally the principle is extended, but only in a permissive way; that is to say, upon majority vote, and this seems to be the present tendency. The most striking present experiment is in Milwaukee; both Haverhill and Brockton tried socialistic city government in Massachusetts, but abandoned it.

Civil-service reform has very generally made progress during the past twenty years in State and city governments, and probably the principle is now more or less recognized in a great majority of the States.

Comparatively little is to be said as to internal improvements. The Michigan Constitution provides that the State shall go into no internal improvement whatever, and this, of course, was the older principle without any express constitutional provision. North Dakota and Wyoming provide that the State cannot be interested in works of internal improvement except upon two-thirds vote of the people.

South Dakota also provides that the State may not engage in them in any case; Alabama, that it may not loan its credit in support of such works; and Maryland, Minnesota, and Wisconsin, that it may not contract debts for the same, or in Kansas be a party to carrying them on. In Virginia, no county, city, or town may engage in any work of internal improvement except roads. Many of the States, however, specify a considerable number of purposes for which State, cities, or counties may give or loan their credit; and the matter of municipal socialism has just been discussed.

Very generally, the States have created agricultural experiment stations and model farms, drainage districts in the South, a levee system on the Mississippi River, and irrigation districts in the West; artesian wells in Texas, and in several States, State dairy bureaus. In specialized products, such as beet sugar, there is often provision for a State agricultural bureau, and nearly always for general agricultural as well as industrial instruction. The States are only beginning to adopt State forests, or forest reserves, Massachusetts and New York leading the way. Forestry commissions exist in a few States, but the very slightest beginning has been made at forestry laws. No control is as yet exercised over reforestation or replanting; a few of the Western States exempt growing trees, or the land covered by growing trees, from more than a nominal tax, notably Indiana and Nebraska. The forestry laws are, however, increasing. In 1903 we find one, in 1904 five, and in 1905 six, with the tree bounty law in North Dakota, and two States exempting forest lands from taxes. There are four statutes this year for fish or game preserves. In 1907 four States create forestry boards, and two exempt forests from taxation, and in 1908 growing trees are exempted in Massachusetts and Rhode Island. But under the unlimited power of Congress over Federal territory not yet incorporated into States, or not ceded to the State when incorporated, it is to the Federal government that we have looked for the creation and preservation of parks, forest reserves, and natural reserves generally. How far it may constitutionally create such within the lines of old States, or on land of which it is otherwise incapable of ownership, is a constitutional question still undecided.

The educational functions of the State are, of course, a peculiar principle of American civilization. Nearly all State constitutions provide that education is a natural right, and the first common school supported by general taxation appears in the Colony of Massachusetts Bay before the year 1640. The principle of compulsory education exists throughout all the States, and in all education of the most diversified kind is given, from the primary school or kindergarten to the State university or technical school of applied science, trade, or business. Nearly all the States have established State universities which are free or open at a nominal charge. Massachusetts continues to rely upon a semi-private institution, Harvard University, which, indeed, is expressly mentioned in its constitution. Provision is universally made also for evening schools, for industrial schools, for public libraries, and for popular elections, and besides the ordinary educational laws and the truant laws, there is in the statutes concerning labor matters abundant machinery for requiring some education as a preliminary to any employment. The age of compulsory education may be said to average between the ages of eight and fifteen, though the limits are extended either way in the divers States. Farm schools and industrial reform schools generally exist, both as a part of the present system and of the educational department. Coeducation in State schools and colleges is almost universal. On the other hand, as we have shown, the segregation of the races is in some States insisted upon. Several States forbid the employment of teachers under the age of sixteen, or even eighteen. Free text-books are generally provided. The period of compulsory schooling varies from the classic twelve weeks in the winter, as in old New England, to substantially the full academic year. Textile and other manual training schools exist in some States, but have generally evoked the opposition of organized labor, and are more usually created by private endowment. The tendency of civil service reform legislation, furthermore, has been to require a certain minimum of education, though it may be feared that the forecast of De Tocqueville remains justified; our national educational weakness is our failure to provide for a "serious higher instruction."

The great question of taxation we may only mention here by way of exclusion. It is naturally a matter for treatment by itself. The reader will remember (see chapter VII) that nearly all the States have now inheritance taxes besides direct property taxes, and many of them have income taxes and, in the South particularly, license taxes, or taxes upon trades or callings. They all tax corporations, nearly always by an excise tax on the franchise or stock, distinct from the property tax or the tax upon earnings. In both corporation taxes and inheritance taxes they are likely to find themselves in conflict with the Federal government, or at least to have duplicate systems taxing the same subjects, as, indeed, already considerable injustice is caused by inheritance taxes imposed in full in each State upon the stock of corporations lying in more than one State. In such cases the tax should, of course, be proportionate.

The principle of graded taxation in the matter of incomes and succession taxes has been very generally adopted, not as yet in any direct property tax, except that a small amount of property, one hundred dollars or five hundred dollars, is usually exempt.

The principle of imposing taxation not for revenue, but for some ulterior or ethical purpose, such as the destruction of swollen fortunes, is liable to constitutional objection in this country, though the courts may not look behind the tax to the motive, unless the latter is expressed upon the face. For this reason, the present corporation tax, on its surface, is imposed solely for the purpose of raising revenue, though in debate in Congress it was advocated mainly for the object of bringing large corporations under Federal examination and control.

The last matter relating to taxation, that of bounties, we have discussed in chapter VII also. State aid bonds, or bonds of counties, cities, and towns, issued to encourage industries, raise a question far more complex than the simple bounty. Such legislation has, however, practically ceased throughout the country, except in the form of exemption from taxation. It has been recognized by a long line of decisions that it is constitutional to grant such aid to railroads, but it may be questioned in almost any other industry. A mere exemption from taxation, especially for a certain number of years, rests on a stronger constitutional basis. Many of the Southern States have recently passed laws exempting manufacturing corporations, etc., from taxation for a definite number of years, and such provisions are found in one or two State constitutions. When they only rest upon a statute, however, they are always at least litigable at the suit of any tax-payer. So, bonds issued by the city of Boston under a statute expressly authorizing them to enable land-owners to rebuild after the great fire, were held to be void. A Federal loan was proposed to raise money to lend to the inhabitants of San Francisco to rebuild after the earthquake, but failed of enactment. It will be remembered that the States have very generally no power to engage in internal improvements (see above). _A fortiori_, therefore, they can hardly loan money or credit to private interests be they never so much for the general benefit. The difficulty of testing all such laws has been adverted to, at least in the case of taxation. For that purpose Massachusetts has a wise law providing machinery by which such matters may be contested upon the action of any ten tax-payers.

There are three great questions before us in the immediate future--the negro, local or self government, and taxation, which last is the chief problem of city and town government.

The world has never before tried the experiment of municipal government, where those who have the local vote do not generally pay the local taxes.

XX

FINAL

One would suppose that a democracy which believes in the absolute panacea of law-making would take particular pains with the forms of its legislation, to have its statutes clear, in good English, not contradictory, properly expressed and properly authenticated. You would certainly suppose that the people who believe that everything should be done under a written law would take the greatest pains to see that law was _official_; also, that it was clear, so as to be "understanded of the people"; also, that it did not contain a thousand contradictions and uncertainties. When our--I will not say wiser, but certainly better educated--forefathers met in national convention to adopt a constitution, one of the first things they did was to appoint a "Committee on Style." It is needless to say that no such committee exists in any American legislature. You would suppose they would take pains to see that all the laws were printed in one or more books where the people could find them. This is not the case in New York or in many of our greater States. You would also suppose that when they passed another law on the same subject they would say how much of the former law they meant to repeal, but in many States that also is not done. It would probably be too much to hope that they should not confuse the subject with a new law on a matter already completely covered; but the form of their legislation should be improved at least in the first three particulars I have mentioned.

What is the fact? The secretary of one new State reports that the laws, as served up to him by the legislature, are "so full of contradictions, omissions, repetitions, bad grammar, and bad spelling" that it has been impossible for him to print them and make any sense; the bad grammar and the bad spelling, at least, he has, therefore, presumed to correct. But what should surprise us still more is, that in very few of our States is there any authentic edition of the laws whatever, and quite a number do not publish their constitutions!

The worst condition of all is found in the national legislation of Congress, until very recently in the great State of New York, and in those States which have adopted the code system generally. I do not say this as an opponent of general codes, but I am constrained to note as a fact that those States are the ones which have their legislation in the worst shape of any. The charm of the statute theory is that the half-educated lawyer or layman supposes he can find all the laws written in one book. Abraham Lincoln even is said to have had the major part of his "shelf of best books" composed of an old copy of the statutes of Indiana, though I can find no traces of such reading in the style of his Gettysburg address. But how far is this democratic claim that the laws of a State are all contained in one book borne out by the facts?

Of our fifty States and Territories only Alabama, Arizona, the District of Columbia, Connecticut, Delaware, Maine, Maryland, Massachusetts, Montana, New Hampshire, New York (partially), North Carolina, Rhode Island, South Carolina, Vermont, and Wisconsin (sixteen States) have any official revision or "General Laws"; that is to say, one or more volumes containing the complete mass of legislation, up to the time of their issue, formally enacted by the legislature. A number of other States have what are called "authorized revisions" or authorized editions of the law. This phrase I use to mean a codification by one or more men (usually a commission of three) who are duly appointed for the purpose, under a valid act of the State legislature, but whose compilation, when made, is never in form adopted by the legislature itself. Leaving out the constitutional question whether such a book is in any sense law at all--for in all probability no legislature can delegate to any three gentlemen the power to make laws, even one law, much more all the laws of the State--leaving out the constitutional question. It is very doubtful how far such compilations are reliable, although printed in a book said to be authorized and official, and held out to the public as such. That is to say, if the real law, as originally enacted, differs in any sense or meaning from the law as set forth in this so-called "authorized publication," the latter will have no validity. Indeed, some States say this expressly. They provide that these compilations, although authorized, are only admissible _in evidence_ of what the statutes of the State really are--that is to say, only valid if uncontradicted. It was impossible to correspond with all the States upon this point--if, indeed, I could have got opinions from their respective supreme courts, for no other opinion would be of any value. The compilation of the State of Arkansas says, somewhere near its title-page, that it is "approved by Sam W. Williams." It does not appear who Sam W. Williams is, what authority he had to approve it, or whether his approval gave to the laws contained in that bulky volume any increased validity. This is a typical example of the "authorized" revision, and this is the state of things that exists in such important States as Arkansas, California, Colorado, Florida, Hawaii, Idaho, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Oregon, South Dakota, Tennessee, Utah, Virginia, and Wyoming (twenty in all).

Before leaving these States, which do have some form of "revised statutes" or complete code--and be it remembered that I am never here speaking of annual laws, for however bad their form and the form of their publication, they are usually, at least, _official_--it will be interesting, and, I think, throw further light on the subject, to cull some passages from the laws of States having such "authorized revisions," to show how far their real authority extends. The general statutes of 1897 of the State of Kentucky say on their title-page that they are an authorized compilation approved by the Supreme Court, but the form of approval of the Supreme Court of Kentucky runs as follows: "Although we consider this duty not lawfully imposed upon us," they say that, so far as they have observed, they "detect no errors in the compilation and it seems to have been properly done." Of how much value such approval would be in case there turned out to be a discrepancy between the compilation and the original statute, I leave to the lawyers to judge. The compiled laws of New Mexico of the same year, made by the solicitor-general, contain an amusing statement under his own signature, that he believes "a large part of the laws he there prints are either obsolete or have actually been repealed by certain later statutes," but he, as it were, shovels them in, in the hope that some of them may be good!

The commissioners of the State of North Dakota go still farther. Their code of 1895 bears a statement that it is, by authority of law, "brought to date" by the commissioners, who go on to say that they have compared the codes of other States and have added and incorporated many other laws taken from such codes of other States, apparently because the commissioners thought them of value! One must really ask any first-year student of constitutional legislation what he thinks of that statement, not only of its constitutionality, but of its audacity. Finally, the State of South Dakota says, in its statutes of 1899, what I quoted at the beginning--that "all the laws contained in the book are to be considered as admissible in evidence," but not conclusive of their own authenticity or correct statement.

We now come to the third, and, from the point of view of the believer in statutes, probably the worst class of all. That is to say, States which have no official or authorized compilation whatever and which rely entirely upon the enterprise of money-making publishers to make a book which correctly prints the laws, and all the laws, of the State in question. For one State, at least, such a compilation was made by a few industrious newspaper correspondents at Washington! The States and Territories that are in this cheerful condition are, as I have said: New York (in part) the Territory of Alaska, California, Colorado, Illinois, Indiana--that is to say, there has been no official revision since 1881 and everybody, in fact, uses a privately prepared digest--Louisiana, Michigan, Minnesota, Mississippi, Ohio, Pennsylvania, Washington, and West Virginia (fourteen in all). Besides this, there are other States such as Wisconsin and Indiana, already mentioned, where there is no official _recent_ revision, so that everybody depends upon a private compilation, which is the only one procurable.

So much for the authenticity of the books themselves which contain the laws upon which we all have to depend. Now, coming to the form of the laws. As I have already remarked, there is no committee on style. There is no attempt whatever made at scientific drafting. To give an example of what difference this may make in mere convenience, it is only a few weeks since, in Massachusetts, a chapter of law to protect the public against personal injuries caused by insolvent railway and street railway companies was drawn up by a good lawyer, and contained between twenty and thirty sections, or about three pages of print. It was brought to another lawyer, certainly no better lawyer, but a legislative expert, who got all that was desired into one section of five lines. There is no committee on style, there is no expert drafting. The case of the recent Massachusetts statute declaring the common law to be the common law, and therefore jeopardizing the very object of the statute, will not be forgotten (see p. 188 above). There are certain definite recommendations I should like to make.

First, adopt the provision that "no statute shall be regarded as repealed unless mentioned as repealed, and when a law is amended, the whole law shall be printed as amended in full." This would acquaint the legislature with the law already existing, before they proceed to change it. Next provide that all laws shall be printed and published by a _State_ publisher and the authenticity of all revisions be duly guaranteed by their being submitted to the legislature and re-enacted _en bloc_, as is our practice with revisions in Massachusetts and some as other States. Third, the local or private acts should be separated from the public laws, and they might advantageously even be printed in a separate volume, as is done in some States already. But who shall determine whether it is a private, local or special act, or a general law? I can only answer that that must be left to the legislature until we adopt the system strongly to be recommended of a permanent, preliminary, expert draftsman. Finally, no legislation must ever be _absolutely_ delegated. That is to say, even if a revision is drawn up by an authorized commission, their work should be afterward ratified by the legislature. It is said, I think, that the constitution of Virginia, drawn up by a constitutional convention, was never ratified by the people. If so, there is a grave constitutional doubt whether it or any part of it may not be repealed at any time by a simple statute. But can a constituent body of the mass of the people, the fundamental and original political entity of the Anglo-Saxon world, be forbidden from delegating its legislative power, as its representatives themselves are forbidden?

The last matter, that of arrangement, order of printing, and form of title, is so directly connected with that of indexing that I shall treat the two things together. Now, there are three different methods of arrangement, or lack of arrangement, to be found in printing the laws of our forty-six States and four Territories, both in the revisions and in the annual laws. The revisions, however, are more apt to have a _topical_ arrangement, and to be divided into chapters, with titles, each containing a special subject and arranged, either topically, or, in some States, even so intelligent otherwise as are Pennsylvania and New Jersey, arranged with the elementary stupidity of the alphabetical system. I say, stupid; when, for instance, you have a chapter on "Corporations," no one can tell whether the legislature or compilers are going to put it under "C" for corporations, under "I" for incorporations, or under "J" for joint-stock companies. The alphabetical system of arrangement is the most contemptible of all, and should be relegated to a limbo at once. The annual laws, of course, are much less likely to have any arrangement whatever. Passed chronologically, they are more apt to follow in the order of their passage.

Now these systems as we find them are as follows: in nearly all States public and private laws are lumped together, although in a few they are indexed separately. Most of the States to-day, including all the "code" States, adopt the topical system of arrangement, as, indeed, must be the case in anything that might, by any possibility, be called a code, and even a general "revision" of the statutes will naturally fall into chapters covering certain subjects. A few States, as I have said, cling to the crude alphabetical system, and quite a number have no discernible system whatever. In some States the annual laws are arranged by number, in some by date of passage, and in some apparently according to the sweet will of the printer. In those States which do not arrange them or entitle them by date of passage we have to depend on the crude and dangerous system of citation by page. Acts of Congress are sometimes cited by date of passage, sometimes more formally by volume and number of the Statutes at Large, and more often than either, probably, by the popular name of the statute, such as the "Sherman Act," the "Hepburn Act," or the "Interstate Commerce Law."

It seems to me we should recommend one system. That for the codes or general revisions should certainly be topical. That of the annual laws may either be topical or chronological, but the statutes, in whatever order they are printed, should be _numbered_ and cited by number. No alphabetical arrangement ever should be permitted.

As to indexing we should urge upon State legislatures, secretaries of State, and official draftsmen (when we get any) that the very excellent system contained in the New York Year Book of Legislation should be adopted for all volumes of State laws. It is as bad for the index to be too big as to be too little, and it does not follow that the good draftsman is a good indexer. The index to our Revised Laws of Massachusetts is contained in one large separate volume of 570 double-column pages. To look for a statute in the index is just about as bad as to look for it in the revision itself. The most important point of all is the proper choice of subject titles. Laws should be indexed under the general subject or branch of the science of jurisprudence, or the subject-matter to which they belong, not too technically and not too much according to mere logic. For example, any lawyer or any student of civics who wished to learn about the labor laws of a State, whether, for instance, it had a nine-hour law or not, would look in the index under the head of "Labor." _Labor_ has become, for all our minds, the general head under which that great and important mass of legislation concerning the relation of all employers and employees, and the condition and treatment of mechanical or other labor, naturally falls. But if you search in our elaborate index of Massachusetts for the head of "_Labor_" you will not find it. If you look under "_Employment of Labor_" you will find it, but you cannot be certain that you will find all of it, and you will find it under so many heads that it would take you quite ten or fifteen minutes to read through and find out whether there is an "hours-of-labor" law or not. On the other hand, purely technical matters, such as "_Abatement_" are usually well indexed, because their names are what we call "terms of art," under which any lawyer would look.

But, after all, it does not so much matter what system we adopt as long as it is the same system. At present I know of nothing better than the forty heads contained in the "Principal Headings" of the New York State Library Index, though I should like to change the names of a few. For instance, "Combinations or Monopolies" is not the head to which the lawyer would naturally look for statutes against Trusts. The word "trust" has become a term of art. If not put under "Trusts" it should be under "Restraint of trade" or "Monopolies," but the word "combination" is neither old nor new, legal nor popular. A combination is lawful. If unlawful, it is _not_ a combination, but a conspiracy.

The most important statute of the United States is perhaps the most horrible example of slovenliness, bad form, and contradiction of all. The "Hepburn Act" is the amended Interstate Commerce Act, and is printed by Congress in a pamphlet incorporating with it quite a different act known as the Elkins Act, besides the Safety Appliance Act, the Arbitration Act, and several others. We all remember under what political stress this legislation was passed, with Congress balking, the senators going one way, the attorney-general another, the radical congressmen in front, and the president pushing them all. It is easily intelligible that such a condition of things should not tend to lucid legislation, particularly when an opposing minority do not desire the legislation at all, and hope to leave it in such a shape as to be contradictory, or unconstitutional--or both. (This has been intentionally done more than once.) All of it a mass of contradictions or overlaying amendments, the first important part of it which came under the scrutiny of the Supreme Court only escaped being held unconstitutional by being emasculated. Its other clauses have yet to face that dreaded scrutiny. Its basic principle has yet to be declared constitutional, while the only principle which has proved of any value was law already. This wonderful product of compromise starts off by saying "Be it enacted, etc., Section I as amended June 29, 1906." It begins with an amendment to itself. It does not tell you how much of the prior law was repealed, except upon a careful scrutiny which only paid lawyers were willing to give. Upon the old Interstate Commerce Act of 1887, after quoting it substantially in full, it adds a mass of other provisions, some of which are _in pari materia_, some not; some contradictory and some mere repetitions. It amends acts by later acts and, before they have gone into effect, wipes them out by substitutions. It hitches on extraneous matters and it amends past legislation by mere inference. Like a hornet it stings in the end, where revolutionary changes are introduced by altering or adding a word or two in sections a page long, and it ends with the cheerful but too usual statement that "all laws and parts of laws in conflict with provisions of this act are hereby repealed." As a result no one can honestly say he is sure he understands it, any more than any serious lawyer can be certain that its important provisions are any one of them constitutional. And that huge statute with sections numbered 1, 2, 5, 16, 16_a_, etc., with amendments added and substituted, amended and unamended, is contained in twenty-seven closely printed pages. I venture to assert boldly that any competent lawyer who is also a good parliamentary draftsman could put those twenty-seven pages of obscurity into four pages, at most, of lucidity, with two days' honest work. By how little wisdom the world is governed! And how little the representatives of the people care for the litigation or trouble or expense that their own slovenliness causes the people! For the necessity of political compromise is no excuse for this.

I therefore urged before the National Association of State Libraries, at their annual meeting of 1909, that they should use their influence with the various State governments at least--"1, that all revisions be authenticated, authorized, and published by the State; 2, that the annual laws be separated, public from private, and be printed by numbered chapters arranged either chronologically or topically; 3, that the indexes be arranged under the forty general heads used by the New York State Library in its annual digest, with such additional heads as may, perhaps, prove necessary in some States, such as, for instance, Louisiana, which has subjects and titles of jurisprudence not known to the ordinary common-law States; 4, that the constitutions be printed with the laws; 5, that every State, under a law, employ a permanent, paid parliamentary or legislative draftsman whose duty it shall be to recast, at least in matters of style and arrangement, all acts before they are passed to be engrossed."

Any private member introducing a bill can, of course, avail himself of the draftsman's services before the bill is originally drawn. His advice may be required by the legislature or by legislative committees on the question whether the proposed legislation is necessary, that is to say, whether it is not covered by laws previously existing. It shall be his duty then to edit the laws, arrange them for publication, and to authenticate by his signature the volumes of the annual laws. One person is better than two or three for such work, but he should be paid a very large salary so that he can afford to make it his life work. He should be appointed for a very long term and should have ample clerical assistance. It should also be his duty to correspond and exchange information with similar officials in other States. In other words, he with his assistants should be the legislative reference department. These recommendations were duly referred to the Committee on Uniformity in preparation of session laws.

* * * * *

At some risk of wearying the reader I have attempted superficially to cover a very extensive field. I started with quoting Blackstone's remark that there is no other science in which so little education is supposed to be necessary as that of legislation. These words were penned by him more than one hundred and fifty years ago and there is still no book upon this subject; the books on Government, Parliamentary Law, and Hermeneutics concerning respectively the source, the procedure, and the interpretation of legislation, not the content thereof. I can but hope to have called attention to the immense importance of this subject, particularly in our representative democracy, and I will beg my readers who have been patient with me to the end to reflect for more than a moment on the extraordinarily novel state of things that this modern notion of the legislative function brings about. It is a commonplace of historical writers to open their first chapter by calling attention to the difference made by steel and electricity, to the fact that it took longer to get from Boston to Washington in 1776 than it does to-day from Maine to California and back; that it took longer even for the rural legislator in the Connecticut Valley to get to his State Capitol than it does to-day to go from there to Washington. But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association, and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as _familiar_ law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life--and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife's share in a husband's property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation. Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times--a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people"; but may and probably will represent a complete reversal of experience, an absolute alteration of human relations, a paradox of all that has gone before; and even when they endeavor not to do so, as in the case of that Massachusetts statute above referred to, their authors' lack of education in the science of legislation may unintentionally cause a revolution in the law. And even when a statute does not do this, no lawyer can be certain what it means until, years or decades afterward, it has received recognition from an authoritative court. That is why much complaint has been made of lawyers; they are said not to know their business, not to be able to tell what the law is. The head of a great railroad has recently complained that he was only anxious to obey the law, but had great difficulty in finding out what the law was. Any good lawyer with common sense knows the common law and usage of the people; but no one could tell at the time of its passage what, for instance, the Sherman Act, enacted twenty-three years ago, meant; the twenty-three years have elapsed; the anti-trust law has been before the courts a thousand times, and the best lawyers in the country do not to-day know what it means; and the highest tribunal in the land is so uncertain on the subject that it has ordered the Standard Oil case reargued.

This is not to say that one must not recognize the meaning and the need of law-making by statute; of law made by the people themselves to suit present conditions. "There should be a law about it," is the popular phrase--commonly there _is_ a law about it, and the best of all law, because tested by time and experience; only, the people do not realize this, and their power and practice of immediate legislation is not only the great event in our modern science of government, but it is also the greatest change in the rules and conditions of our _living_, and our _doing_, and our _having_. Not only our office-holders, but we ourselves, are born, labor, inherit, possess, marry, devise, and combine, under a perpetual plebiscitum, referendum, and recall. I can only hope that I have made some suggestions to my readers which will awaken their interest to the importance of the subject.

INDEX

Abbot of Lilleshall case, Abduction, statute against, A.D. 1452, (_see Kidnapping_). Acton Burnel (_see Statute Merchant_). Actors forbidden from swearing on the stage. Administration of estates, unfair laws in American States. Administrative law (_see Boards and Commissions_), still exists in Germany; forbidden by Magna Charta; did not exist in England. Adultery now made a crime. Advertising, signs forbidden; of patent medicines, divorce matters, etc., prohibited. "Affected with a public interest"; use of phrase to justify rate regulation. African labor, etc. (see _Negro_). Agricultural products, exempted from anti-trust laws; stations usually exist in State. Aids (_see Taxation, Taxes_); the three customary. Ale (_see also Sumptuary Legislation_), Assize of. Alfred, laws of (_see Wessex_) Alien, legislation against, in labor matters dates from 1530; rights of, in real estate; in personal property; immigration of, regulated; naturalization of; alien and sedition laws; libel against the government, suits for; general scheme of our legislation concerning; laborers may not be specially taxed; may be forbidden to hold lands. Alienation of affections, discussion of suit for. Allowable socialism (_see Socialism_). American legislation in general, chapter concerning, chapter VI. Anarchism (_see Socialism_), definition of; advocating of, made a felony Anarchists, legislation against; naturalization of; may be denied immigration. Anglo-Saxon law (_see Law_), re-establishment of, chapter concerning, chapter III; was customary law; method of enforcing; its nature, loss, and restoration. Anglo-Saxon legislation (_see also Legislation_). Anti-truck laws. Anti-trust laws (_see Trusts_). Apparel (_see Sumptuary Laws_), statute of 1482. Appeal, right to, in criminal cases given government. Apprentices, early laws of. Arbitration, of labor disputes, laws for; laws aimed against strikes; laws in the British colonies. Archery favored by legislation. Arms (_see Assize of Arms_), chapter relating to, chapter XIII. right to bear; does not extend to Parliament; history of; made compulsory; right to bear established in bill of rights; does not include concealed weapons. Army (_see Standing_), use of; its bearing upon liberty; complained of in petition of rights; used to control internal disputes; use of by President in civil matters objectionable. Arrest, freedom from, under Magna Charta. Artificers and craftsmen (_see Labor_). Asiatics (_see Mongolians_), may not be citizens; legislation against in the Far West; may be unconstitutional; may not be employed in public work. Assembly, right of, as bearing upon freedom of speech; the right to, and free elections. Assignable (_see Negotiable_). Assistance, writs of, in Massachusetts. Assize of Arms. Assize of Bread and Beer. Association, freedom of (see _Combination_), is guaranteed in Switzerland. Atheism does not disqualify a witness. Austin's views of law. "Avocation, affected with a public interest."

Bakers, statute of (_see Assize of Bread and Ale_). Bakeshops, bakeries, legislation concerning (_see Sweatshops_). Balance of trade thought desirable as early as 1335. Ballot, form of, (_see Elections_); the Australian, New York, etc. Banishment not a constitutional punishment. Bankruptcy act, the first, A.D. 1515; under Cromwell; national. Battle, trial by. Beds, making of, regulated in Oklahoma and the England of 1495. Beer (_see Sumptuary Legislation, Assize of Beer_). Beggars (see _Vagabonds_). Benefit funds, legislation against. Benefit of clergy, origin of; in modern trials; reason of; modification of in murder, etc.; extended to women; withheld from all women earlier. Betterment taxes (_see Eminent Domain_), limitation of; reason for. Bigamy, a sin, not a crime in the earlier view; statute of; forbidden by statute of James I. Bill of rights (_see Petition of Right, Constitution_). Bills of exchange, invention of. Bills of lading. Bishops, may be appointed by the crown; abolished in 1646. Black death, gave rise to first statute of laborers; plague of, 1348; effect of on prices; Black labor (see _Negroes, Peonage, etc._), in the Orange River Colony. Blacklists (see _Boycotts)_, American statutes against; in modern American statutes; laws against in Germany and Austria. Blackmail statutes. Blackstone quoted as to legislation. "Bloody" statute against heretics, 1539. Boards and commissions, growth of; must be bi-partisan. Bounties, constitutional objection to; usually unconstitutional; in foreign countries; Federal bounties; public appropriations may be justified in times of emergency; State usual subjects of. Bows and arrows (_see Archery_) much used in England. Boycotts (see _Conspiracy_) first recorded precedent of in 1221; "against the common weal of the people" made unlawful in 1503; in modern times; intent the test; statutes; definitions of; unlawful under anti-trust laws; in modern American statutes; Alabama definition of; no European legislation on; right to prosecute as bearing upon right to freedom of speech. Brewer, Justice, Yale address quoted Bribery of votes by employment, etc. (_see Corruption_); recent statute against. Building, laws regulating; sanitary regulations under police power. Bulk, sales in. Business corporations, act of, Massachusetts. By-laws, of guilds must not be in restraint of trade; against the common weal of the people made unlawful in 1503; of corporations must be reasonable; illegal, forbidden, 1503; forbidding appeal to the law courts unlawful; the Norwich tailors' case.

Cabinet, functions of in England. Cade, Jack, attainder of; rebellion of, its effect, etc. Canada, legislation on arbitration. Canon law (_see Church Law_), supplanted by common law; early jealousy of. Canons of the Church (_see Canon Law_). Canute, laws of. Capital, combinations of (_see Trusts_). Capital punishment, laws abolishing. Carlyle, his remark on legislation. Carriers, rates of fixed by law. Carter, James C., quoted. Cartoons, laws against. Cash payment of wages, danger of laws for. Caucuses (_see Primaries_), regulation of by law. Celibacy of priests a modern doctrine. Cemeteries, eminent domain for. Centralization, by Federal incorporation law; as caused by the fourteenth amendment. Certificates (_see Stock Certificates, Trust Certificates, etc._). Chancellor (see _Injunction_). Chancery (see _Equity Jurisdiction_), early jealousy of by the people; court of, origin; the star chamber; statute against jurisdiction; in labor disputes. Charity (_see Bounties_), modern legislation concerning. Charter of liberties, of Henry I; of Henry II. Charter (_see Magna Charta_), early royal charters a concession of Anglo-Saxon liberties; as previously existing. Child labor, laws concerning; hours; absolute prohibition of; age limit; dangerous and immoral trades; young girls; in mines. Children, guardianship of; in America, labor of, regulated; guardianship of may be given either parent; rights of in marriage and divorce; tendency to State control of, its effect. Chinese (_see Mongolian_), laws against. Chitty, cited as to conspiracy. Christian Science, laws regulating practice of; not protected by the Constitution. Church law (_see Canon Law_), freedom from; early jurisdiction of; governs sin; of Henry VIII and Mary; of Elizabeth III in U.S. tests. Church of Rome supreme over England. Cigarettes manufacture and sale of forbidden; laws against. Cigar making (_see Sweatshops_). Cincinnati, order of. Citizens (_see Aliens Suffrage, etc._). Citizenship, of American Indians; of other races, chapter XVI. City (see _Government_), debt limited by statute; ordinances in effect laws. Civil law, early jealousy of; supplanted as to legitimacy. Civil rights of negroes, etc. (_see Class Legislation, Liberty, Equality_). Civil service reform, tendency to extend. Clarendon, constitutions of. Class legislation, as to war veterans; as to boycotts; making hereditary privilege. Clergy (_see Benefit of Clergy_). Clerks (_see Benefit of Clergy_), meaning of word; may dress like knights. Closed shop, early case of, (_see Union Labor_). Cloth of gold worn only by the king. Clothing, regulation of by law; manufacture of, a "sweated" trade. Cloths, trade to be free in; act for spinning, weaving, and dyeing of. Coal (_see Fuel_), Massachusetts law regulating sale of. Codes, in the United States; in England. Codification, early, in England; partial. Co-education, present tendency against; universal in State colleges. Cohabitation (_see Fornication_), made a crime in many States. Coin (see _Money_) Coinage, debasement of, forbidden. Cold storage, need of legislation against. Collective bargaining, principle of. Color, persons of (see _Negro_). Combinations (see _Labor, Trusts, Conspiracy_), chapter concerning, chapter XII; the law of; the modern definition of; against individuals; intent makes the guilt; to injure trade; individual injuries to business; to fix prices; Professor Dicey quoted; law of, in European countries; with an evil end forbidden by Code Napoleon. Commerce, legislation concerning, (_see Interstate Commerce, Trade_). Commissions and tips forbidden; government by commission (_see Boards, Administrative Law_). Common law, enforcement of; contrast with Roman law; growth of by court decision; effort to restore soon after the conquest; as distinct from Roman law; as against civil law; how far enforced in United States; early jealousy of chancery power; does not apply in towns of the staple, but the law merchant; superiority over statutes; prevails in criminal matters; self-regardant actions; Massachusetts statute declaring. Common land. Common pleas, court not to follow king's person. Common right shall be done to rich and poor. Commons (_see House of Commons_). Commonwealth of England, constitution of. Commonwealth _vs._ Hunt, 4 Met. 111, case of cited. Communism, definition of (_see Socialism_). Company stores forbidden; so, tenements; company insurance. Compulsory labor (_see Peonage_). Compurgation, trial by. Concealed weapons (_see Arms_). Confirmation of charters. Congress, usurpation of powers by. Conscience, rights of (_see Religion_). Conscription (_see Military Service_), does not exist among English peoples. Consent, age of, in rape; in marriage; the age raised as high as twenty-one; in criminal matters. Conservation (_see Forest Reserves_); of rivers, dates from statute of Henry VIII. Conspiracy, first statute against in 1305; doctrine first applied to maintaining lawsuits; next to combination between mechanics or guilds; reason of common law doctrine of; definition of; determined by intent or ethical purpose; early statutes probably declared merely the common law; definition of in statute of 1304; definition of as evolved in history; finally includes intent to injure another person in his liberties as well as results actually criminal; reason of doctrine of; doctrine under common law; remedies for; combinations necessarily attended with the use of unlawful means; unlawful act is the combining, not any action done; actual result unimportant; intent the question; punishment far more severe than for offences done under it; always unlawful, may not amount to criminality; principle of extended to trades unions and their by-laws; of masons, etc., forbidden in 1425; against the law or customs of the staple town made criminal in 1333; general discussion of law of, chapter XII; continuing conspiracies, doctrine of; extension of, by new statutes; early English law of, discussed with the modern law of combinations; to maintain lawsuits; Conspiracy and the Trade Disputes acts (_English_); copied in Maryland; changing of law recommended in labor matters; English statute of, copied in Oklahoma; doctrine of, contended for by labor unions. Constitutional law (_see Unconstitutional_), growth of in America; applied by the courts in early England; Magna Charta to be interpreted by Ordainours; anticipates in earliest times U.S. Supreme Court. Constitution, State, modern form of; adoption of by referendum. Constructive total loss, origin of doctrine. Contempt of court, effort to obtain jury trial, (_see Chancery, Injunction_). Contract (_see Freedom of_), status of, desirable for labor. Convict-made goods, denial of to interstate commerce. Co-operation (_see Profit Sharing_). Corn, exportation of, forbidden in 1360. "Corners" (_see Engrossing, Forestalling_), unlawful to create at the common law; corners of wheat in Athens; by Joseph in Egypt. Coronation oaths, history of. Corporation, general discussion of, Chapter X; Federal incorporation; first appearance of secular trading corporations uncertain; companies corporate required to record their charters as early as 1426; by-laws of must be reasonable; first trading companies under Elizabeth; early charters of difficult to find; business, origin of; discussion of; peculiar powers of incorporated persons; unknown in Rome and early England; special municipal corporations and monasteries; limited liability of, invented in Connecticut; form of the modern; Federal supervision; powers of in other States; prohibition of; holding stock by; earliest business companies; history of; limited liability; monopoly given to Federal corporations; powers of in other States; the Massachusetts law; two theories of legislation concerning; clash of State and Federal law; the "Trust problem"; discussion of subject by Massachusetts commissioners; now created under general laws; modern legislation concerning; liability of stockholders; payment in of stock; income; "publicity"; monopoly, consolidation, etc.; the holding company; public service; duration of franchise; powers of in other States; have no immunity from giving testimony; are subject to the criminal law; primarily through individual officers. Corrupt practices (_see Bribery_) election laws. Corruption (_see Bribery_), modern statute against. Council, the great, was originally executive and judicial as well as legislative (_see Three Functions of Government_); primarily judicial; legislation incidental to judicial judgments; law declared, not made, by Great Council; development with legislative power into Parliament; the great judicial functions of; in Magna Charta; so-called until 1275. Counsel, right to, etc. Cousins, marriage of forbidden; County courts, early history of; counties may loan for seed. Courts, at first followed the king's person; special royal courts forbidden; our judicial system. Covins (_see Conspiracy_). Crime, distinction from sin; tendency of modern legislation. Criminating (_see Incriminating_). Criminal law and police, chapter concerning, chapter XVIII, modern basis of; procedure in; laws regulating procedure; right of appeal; President Taft's recommendation. Criminal procedure, reform of, necessary. Cromwell, legislation under; laws all repealed, but had some effect upon laws of New England colonies, and _vice versa_; assumed supreme power; he had absolute veto; no constitutional government under; unrestricted will of majority becomes will of one. Cross-bows forbidden except to lords. Crown land. Crown property, wrecks, fish, precious metals, etc. Crusades, expenses of, origin of taxation. Cummins, Governor, his ideas as to trust controlled articles. Curfew laws in early England; in U.S. Custom, of the trade; (_see also Law, Customary Law, etc_.), enforcement of Custom House, regulation of officers of; may not make unreasonable search; travellers to be believed upon their oath. Customs (_see Duties_), the law of England, recognized by early English charters, as well as laws, Customary law, or natural, enforced without sanction: sanction of often the best; sanction not a penalty; early legislation declaring.

Dairies (_see Farms_). Danbury hatters' case, desired legislation against. Dane Geld, London free from. Dangerous trades, hours of labor in. Day's work (_see Hours of Labor_). Debtor and creditor, laws concerning. Debts (_see Imprisonment_) laws to enforce collection of not necessary; suits to recover comparatively modern; State, city, etc., for internal improvements; State, municipal or county may be limited by statute; Modern statutes concerning; Imprisonment for forbidden; Municipal limited by statute; limit generally evaded. Delegation of legislative power (_see Three Functions of Government_). Democracy, legislation of. _De odio et atia_, writ of, explained in statute of Westminster II. Department stores, legislation against anticipated in early England; forbidden (_see Trading Stamps_). Descent of property, legislation concerning. Desertion, a cause for divorce. Destruction of food stuffs highly criminal by early law. Diet and apparel (_see Sumptuary Laws_), laws concerning soon repealed, Direct legislation (_see Referendum_), nominations; primaries; elections; taxes (_see Taxation_). Discharge, reason of, must be stated by employer. Discrimination, unlawful under early common law; modern view of; by the "trusts"; the Elkins law against; in ordinary trade; against localities by trusts. Divine right, asserted by King James. Divorce, chapter concerning, chapter XVII; jurisdiction over first in church; reform movement discussed (_see Marriage and Divorce_); equal rights of husband and wife; causes for to both sexes alike; statistics discussed; in most cases given to the wife; whether innocent or not; in England not to the wife for adultery alone; for desertion and failure to support; reforms in legislation; reforms in procedure, preferable; causes now existing; meaning of cruelty, cause for divorce; uniformity of law in; statute for reform of divorce procedure; commissioners created by States; effect of in other States; law formerly appertained to the church; history of in the past; earliest in 1642; first general law that of Massachusetts Bay; corespondents may appear and made defence; crime made cause for; neglect cause for; advertising; remarriage after divorce usually permitted; should be absolute; unchastity the cause if before marriage; government reports upon; in European countries. Doctors' commons lasted until the nineteenth century. Dog, or cat, why usually kept on ships Dogberry, speech to the watch, based on the statute of Winchester. Dogger, statute of; dogger fish, trade in regulated; regrating of dogger fish forbidden; storage and preservation; must be sold before night. Domestic labor, no regulation of. Dorr, rebellion. Double standard in divorce matters; in matters of ordinary morality. Double taxation (_see Taxes_). Double trading, and department stores. Dower right, recognized in Magna Charta; in American legislation. Drainage (_see Irrigation_), laws for usual in the South and West. Drains and irrigation. Drill companies (_see Military Companies_). Droit d'aubaine. Drugs (_see Pure Food Laws_). Drunkenness, first punished by law in 1606; other laws against; in U.S. Due process of law, under Magna Charta; principle may include immunity from self-incrimination. Duties (_see Imports_), first upon wool in Westminster I; General nature of; early revenue laws prohibitive not protective, hence tariffs for protection, not for revenue alone, are constitutional; "new" customs forbidden in 1309; suspension of all duties in 1309 in order to see what the effect is upon the people's prosperity; "new" customs again abolished, saving only the duty on wool or leather; only to be paid upon goods actually sold in England, not upon goods exported; in the United States.

Early methods of trial. East India Company, monopoly of, attacked. Edgar, laws of. Education, may be separate for different races; tendency of to be technical; usually includes agricultural instruction; state functions of declared a natural right; compulsory in all states; compulsory age of. Edward I, charter of, in 1297; Restores constitutional principle of taxation; legislation of; grants confirmation of charters. Edward the Confessor, codes of; laws of (_see Wessex_); laws of sworn to be observed by Norman kings; laws of restored by Charter of Liberties. Edward II, reign of. Edward III, legislation of. Edward VI, legislation of. Edward VII, minimum wage legislation. Egyptians (_see Gypsies_). Elections (_see Voters_), freedom of, principle dates from statute of Westminster I; local regulation of essential; free right to; house the judge of; right of voting; control of votes of employees; Federal and State authority; regulation of machinery of; of corruption in, 290, 291. Electric power companies, eminent domain for. Elevators, subject to rate regulation; hours of labor on. Elizabeth, legislation of. "Elkins" act, 176 (_see Discrimination, Trusts_); form of, 361. Eminent domain, a modern doctrine; applies to personal property; personal property seized by royal purveyors; damages in; does not exist in England; growth of in United States; public service corporations entitled to; extended to public service corporations; to private corporations; to the taking of easements; damages given for land damaged as well as taken; only for a public use; national uses; State uses; parks and playgrounds; railways, telegraphs, etc. what is a public use; under State constitutions; increased application of; water subject to, in the arid States; powers of Federal government; no more land to be taken than needed. Employers' liability. Employment offices (_see Intelligence Offices_), regulated in Oklahoma, etc. England, statutes of, enforced in United States, 55; New, forbidden to plant tobacco. Englishry, London free from. English language, replaces French; to be used in law courts. English law, restoration after the conquest. Engrossing (_see Forestalling, Restraint of Trade_), first statute against; definition of; of foreign trade; punishment of; forbidden to the merchants called grocers; forms forbidden; final definition of; of corn permitted in certain cases; of butter and cheese forbidden; by trusts. Entail created by statute of 1284. Equality, recognized in charter of Henry II; before the law in Magna Charta; guaranteed by statute of Westminster I. Equity (_see Chancery, Injunction_), separate from law in some States. Equity jurisdiction (_see also Chancery_), jealousy of; its interference with the common law forbidden by statute of, 1311; in abductions; separate still. Eugenics, modern statutes recognizing. Evidence, compulsory intrust cases; legislation upon (_see Incriminating Evidence_). Exclusive contracts forbidden (_see Trusts_). Executive (_see also King_), usurpation of, under Henry VIII. Exemption laws for debtors. Exile (_see Banishment_) forbidden in Magna Charta. Experiments on. Exportation of wool forbidden 1337; corn, 1360; iron. Extortion and discrimination; unlawful under early common laws; rare in railway rates (_see Elkins Act_).

Factory legislation (_see Hours of Labor, Labor_), acts exist under police power; as to married women, etc.; the factory system, possible abolishment of; hours of labor limited; the factory acts; stores and dwellings. Fairs (_see Markets_). Farming on shares. Farms, labor on, no regulation of; State, frequently created. Federal and State jurisdiction, effects of; as to use of army; question as to prohibition laws. Federal government, powers of, in eminent domain. Federal incorporation (_see Corporation, Trusts_) effect of. Federal troops employed by President Cleveland. Federation of Labor (_see Gompers, Samuel_). Female labor, etc. (_see Women_). Ferries, charges of, regulated. Feudal system, imposition of, by Normans in England. Feudal tenures, abolished under Charles I; in United States. Fines must be reasonable principle dates from Westminster I. Fish and game laws, first precedent in 1285; law protecting wild fowl under Henry VIII; snaring of birds forbidden. Fish, destruction of to enhance price made criminal in 1357; universally regrated in American markets; may not be carried out of England. Flume companies, eminent domain for. Food and drugs act (_see Pure Food Laws, Trusts, etc._). Force bills (_see Elections_). Foreclosure of mortgages regulated by statute in United States. Forest reserves created in some States. Forestalling (_see Trusts, Monopoly_), first statute against; definition of; offence gradually lost sight of; laws against, made perpetual under Elizabeth; only repealed under George III; first statute merely inflicts punishment; full statutory definition of; in the staple; next statute that of 1352, applying to wine, etc. or imports; double forfeiture imposed; imprisonment for two years; in cloths abandoned, A.D. 1350; of Gascony wines forbidden in 1532; in fish, milk, etc., forbidden; last complete act A.D. 1551; made perpetual under Elizabeth and repealed in 1772; final definition of; an element of the "Trust,"; by Joseph; in modern statutes. Forestry laws, the first. Form of our statutes, the. Fornication, made a crime; with a woman under age a crime though with her consent. Fourteenth Amendment, securing private property. France, English people not subject to, by statute of 1340. Franchises (_see Corporations_), challenged by _quo warranto_; rates of may be regulated; to be limited in time; to pay taxes; regulation of, meaning of. Frauds, statute of; need of legislation against. Fraudulent conveyances, statute against 1571. Free speech in Parliament finally established under Henry VIII, Freedom in England, early method of attaining; of American Indians secured, (_see Citizenship_); before the law recognized in charter of Henry II, Freedom of contract (_see Labor, Trade_), principle of, value of, of elections, Freedom of speech, legislation relating to, does not extend to anarchistic statements, Freedom of the press, limitations of, meaning of, Freedom of trade, Freehold land, common in United States, Freemen (_see Liberty_), made up Witenagemot, rights of under Magna Charta, rapid increase of after the conquest, French, language, first law in A.D. 1266, customs and law of in force in England, language not to be used in England, coat of arms not to be used in England, language declared to be unknown in England in 1360, Fuel, Assize of, modern statutes, municipal distribution of, Fur, black only to be worn by the king, Futures (_see Forestalling_), buying of unlawful at common law, dealing in forbidden, buying and selling, Fyrd, the early Anglo-Saxon militia.

Gambling, contracts forbidden (_see Futures_), Game (_see Fish and Game_). Gas (_see Municipal Socialism_). Girls (_see Women, Labor, Child Labor_), protection of, absolute prohibition of in some occupations, newspapers may not be sold by, may not be telegraph messengers, Gold (_see Silver_). Golden Rule, applied to the law of combination, Gompers, Samuel, quoted, Gospel, society for the foundation of, founded, "Government by injunction" (_see Injunction_), Government, threefold division of, none above law, powers of in militia, chapter concerning,