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POPULAR LAW-MAKING

A STUDY OF THE ORIGIN,

HISTORY, AND PRESENT TENDENCIES

OF LAW-MAKING BY STATUTE

BY

FREDERIC JESUP STIMSON

PROFESSOR OF COMPARATIVE LEGISLATION IN HARVARD UNIVERSITY


  "NOW, MY LORD, I DO THINK, THAT PRACTICE AND USAGE IS A GREAT
  EVIDENCE OF THE LAW."--CHIEF JUSTICE HOLT, IN "THE
  GREAT CASE OF MONOPOLIES."--7 STATE TRIALS, 497


1911




TABLE OF CONTENTS


    I. THE ENGLISH IDEA OF LAW

    Proper Field of Legislation; Meaning of the Word "Law,"; Modern
    Importance of Statute Law; Representative Government and the Right
    to Law; Enforcement of the Common Law; Origin of Representative
    Legislatures; Customary or Natural Law; No Sanction Necessary;
    The Unwritten Law and Outlawry; Early Parliament Merely Judicial;
    Contrast of Common Law with Roman Law; Theory that the King Makes
    Law; Parliament Retains the Right to Tax; Parliament Recovers
    Legislative Powers.

    II. EARLY ENGLISH LEGISLATION AND MAGNA CHARTA

    Constructive Legislation a New Idea; Statutes Increase of Late
    Years; Sociological Legislation only Considered; Early Legislation
    Political; English Law not Codified; Early Anglo-Saxon Laws;
    Freedom Gained in Guilds; Threefold Division of Government; No
    Constitution Controls Parliament; Restoration of English Law After
    the Conquest; Taxation by Common Consent; Earliest Social Statute;
    Recognition of Personal Property; Law of Land Tenure; The Charter
    of Liberties; Early Methods of Trial; Distinction Between Sin and
    Crime; Church Law Governs Sin; Important Clauses of Magna Charta;
    Freedom of Trade; Taxation for the Common Benefit; The Great
    "Liberty" Clause; "Administrative" Law not English; No Government
    Above Law.

    III. RE-ESTABLISHMENT OF ANGLO-SAXON LAW.

    Common Law Against Civil Law; "We Are Unwilling to Change the Laws
    of England;" Usury and the Jews; Towns Represented in Parliament;
    The Fixing of Prices; Sumptuary Laws; The Benefit of Clergy;
    Partial Codification; The Statute of Westminster I; Law Extended
    to All People; Labor Makes Men Free; The Freedom of Elections;
    "Cruel and Unusual Punishment"; Sexual Offences Made Secular
    Crimes; Earliest Duties on Imports; Early Duties on Wool; The Law
    of Wrecks.

    IV. EARLY LABOR LEGISLATION, AND LAWS AGAINST RESTRAINT OF TRADE
    AND "TRUSTS"

    Extortion and Discrimination; Forestalling, Regrating, Engrossing;
    The Statute of Bakers; Origin of Law of Conspiracy; The Law
    of Combination; The Modern Definition; Combinations Against
    Individuals; Intent Makes the Guilt; Conspiracy More Heinous
    than the Act Committed; Combinations to Injure Trade; Individual
    Injuries to Business; Definition of Forestalling; "The Iowa Idea";
    The Statutes of Labor; First Statute of Laborers; A Fixed Wage;
    Early Law of Strikes; Early Law of Trades-Unions; Labor Conditions
    in Early Times; Combinations to Fix Prices; Unlawful By-Laws of
    Unions; Restraint of Trade; The Eight to Labor; The Earliest
    Boycott; Origin of the Injunction in Labor Cases; The Common Law
    Vindicated; Compulsory Labor in England; Free Trade to Merchants;
    Jealousy of Chancery Power; Guilds and Corporations; Chancery and
    the Star Chamber; By-Laws Tending to Monopoly; Hours of Labor
    Laws; Idlers and Vagabonds; Trusts and Labor Combinations; Riots
    and Assemblies; The Statute of Elizabeth; Early Labor Regulations;
    The First Poor Law; The First Complaint of Monopolies; Growth
    of Monopolies; The Statute of Monopolies; The Impeachment of
    Monopolists.

    V. OTHER LEGISLATION IN MEDIAEVAL ENGLAND

    The Statute of Mortmain; The Law Merchant; Origin of Habeas
    Corpus; Early Police Regulation; Opposition to Customs Duties;
    Interpretation of the Great Charter; Statute Against Chancery
    Jurisdiction; Early Tariffs on Wool; The English Language Replaces
    French; Freedom of Trade at Sea; Laws of the Staple; Early Food
    Laws Forbidding Trusts, etc.; The Statutes of Dogger; Department
    Stores and Double Trading; Freedom of Trade Restored; Jealousy of
    the Roman Law; Laws Against Scotch, Welsh, and Irish; Injunctions
    Issued Against Seduction; The First Statute of Limitations;
    Personal Government Under Henry VIII; Laws Against Middlemen;
    Final Definitions of Forestalling, Regrating, Engrossing; The
    First Poor Law and Forestry Law; The First Trading Corporations;
    The Heresy Statutes; James I, Legislation Against Sins; Cromwell's
    Legislation; The First Business Corporation; Corporations Invented
    to Gain Monopoly; Growth of the Trade Guilds; Veterans' Preference
    Legislation.

    VI. AMERICAN LEGISLATION IN GENERAL.

    Early Increase of State Legislation; The State Constitutions; When
    Statutes Should Be Unconstitutional; Effect of the Initiative and
    Referendum; The True Value of Precedent.

    VII. AMERICAN LEGISLATION ON PROPERTY RIGHTS

    Proper Classification of Statutes; Anarchism, Individualism,
    Socialism; Definition of Communism; Definition of Nationalism;
    Property a Constitutional Right; Not a Natural Right; Socialism
    Unconstitutional; Eminent Domain; What Are Public Uses;
    Irrigation, Drainage, etc.; Internal Improvements; Bounties;
    Exemptions from Taxation; Limits Upon Tax Rate; Income Taxes;
    Inheritance Taxes; License Taxes; Betterment Taxes; Double
    Taxation; The Police Power; Government by Commission; Noxious
    Trades, Signs, etc.; Modern Extensions of Police Power; Pure Food
    and Drug Laws; Prohibition Laws; Oleomargarine Laws; Examinations
    for Professions; Christian Science and Osteopathy; Trading Stamps
    and Department Stores; Usury Laws; Negotiable Instrument Laws;
    Bills of Lading and Warehouse Receipts; Sales in Bulk; Intestate
    Succession; Laws for Protection of Debtors; Mechanics' Lien Laws;
    Mortgage Foreclosures; Nuisances; The Buying of Futures; Tips and
    Commissions; Weights and Measures; Laws Against Middlemen.

    VIII. REGULATION OF RATES AND PRICES

    Laws Fixing the Rate of Wages; Wages in Public Work; Logic of
    Rate Regulation; The Granger Cases; Theory of Rate Regulation;
    Regulation by the States; Constitutional Difficulties of Rate
    Regulation; The Railway Rate Act of 1910; The Long and Short Haul
    Clause.

    IX. TRUSTS AND MONOPOLIES

    The Trusts at Common Law; The Sherman Act; State Laws Against
    Trusts; Federal Incorporation; Other Remedies of the States; Class
    Legislation and Organized Labor; Recent Decisions and Laws Against
    Trusts; Constitutional Provisions Against Trusts; Growth and
    Decline of Anti-Trust Legislation; Best Remedy for Trusts; Only
    Three Courses Possible; Centralization and Federal Control.

    X. CORPORATIONS

    History of Trading Corporations; Two Theories of Corporation Law;
    The Massachusetts Commissioners' Report; The Payment Up of Stock;
    The Massachusetts Law; The "Business Corporation" Act; Corporation
    Laws of All the States; Publicity and Other Remedies; Laws
    Regulating "Holding" Companies and Stock Ownership by
    Corporations; Corporations of Other States; States May Exclude;
    Summary of the Trust Question; Public Service Companies.

    XI. LABOR LAWS

    English Law Does not Enforce the Labor Contract; Freedom to
    Trade and Labor; Sources of Reform Legislation; Constitutional
    Difficulties; Minimum Wage Laws; The Rate of Wages in Public Work;
    Equal Wages for Women; The New York Constitutional Amendment;
    Hours of Labor Laws for Men; Hours of Labor Laws for Women;
    Prohibited Employments to Women; Hours of Labor of Children; Laws
    of All the States To-day; Hours of Labor in Factories, etc.; Child
    Labor Prohibited; Hours of Labor in Mines; Age Limit for Child
    Labor, Dangerous and Immoral Trades, Protection of Young
    Girls, Labor in Mines, Hours of Labor in Peculiar Trades, The
    Constitutional Difficulty, Farms and Domestic Labor, Continental
    Legislation, Sanitary Restrictions on Female Labor, Sweatshop
    Laws, The Factory Acts, Employers' Liability, Anti-Truck
    Legislation, Factory Stores and Dwellings, Benefit Funds and
    Compulsory Insurance, The Régime of Contract, Compulsory Labor and
    Peonage, Statutes Against Intimidation, Blacklists, Picketing,
    Armed Guards, Political and Militia Duties, Miscellaneous Matters,
    Profit-Sharing, etc., Discrimination Against Union Labor, Twenty
    Years of Labor Legislation, Foreign Labor Legislation, Employers'
    Liability, Old Age Pensions, Minimum Wage Laws, Co-operation and
    Profit-Sharing, Arbitration Laws, Labor Legislation in Europe.

    XII. COMBINATIONS IN LABOR MATTERS

    The Law of Combination and Conspiracy, Intent the Test, The
    English Conspiracy Act, Modern Reforms Desired by Organized Labor,
    Boycotts and Blacklists, Intimidation, Interference with Political
    Rights, The Oklahoma Labor Code, European Law of Combination.

    XIII. MILITARY AND MOB LAW, AND THE RIGHT TO ARMS

    The Right to Civil Law, Martial Law, Military Law, The Right to
    Arms, Military Service, The Struggle Against Martial Rule in
    England, Standing Armies, Mobs, Riots, Lynching, The Use of the
    Army in Labor Troubles,

    XIV. OF POLITICAL RIGHTS

    The Right to Assembly and Free Elections; The Suffrage, 28;
    The Force Bills; Interference with Voting; Bribery and Corrupt
    Practices; Lobbying Acts; The Form of the Ballot; Direct Primaries
    and Nominations; The Distrust of Representative Government;
    Corrupt Elections Laws; Direct Election of U.S. Senators; Women's
    Suffrage; Municipal Elections, The Initiative, Referendum, and
    Recall; The Judicial System.

    XV. OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

    Freedom of Speech and of the Press; The "Unfair" List; Prohibition
    of Anarchistic Propaganda; The Right to Privacy; Search Warrants
    and Self-Incrimination; Religious Rights.

    XVI. LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS

    The Race Question; Races Capable of Citizenship; The War
    Amendments and Their Effect; The Negro's Social and Property
    Rights; The Privileged Classes.

    XVII. SEX LEGISLATION, MARRIAGE AND DIVORCE

    A Woman Is a Citizen; Her Right to Labor and Property; Marriage,
    Divorce, and Children; Women in Politics and Education; Reform of
    Divorce Procedure; Uniformity of Law in Divorce; The Secular Law
    in Sexual Matters; Marriage a Contract; The "Single Standard"
    and Free Divorce; Control of Marriage by the State; Recent
    Legislation; Radical Statutes in Sexual Matters; Legal Separation;
    The Married Woman's Privileges; The "Age of Consent"; Female
    Suffrage by Property-Owners; Kidnapping, Curfew, Rape; Statistics
    of Divorce; Industrial Liberty of Women; Female Labor in England
    and U.S.A.

    XVIII. CRIMINAL LAW AND POLICE

    Common Law Prevails; New Crimes and Penalties; Self-Regardant
    Actions; Reform in Punishment; Procedure in the Courts; Lynching
    and Mob Law; Interstate Commerce in Liquor, etc.; Physicians'
    Privilege; Prohibition Laws; City Ordinances; Juvenile Courts and
    Laws; Present Needs.

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

    Government by Commission; Taxes, Debt, and Franchises; Municipal
    Socialism; Internal Improvements; State Farms and Forests;
    Education; Taxation and State Aid; Present Questions.

    XX. FINAL

    The Form of Our Statutes; Need of Authorized Revisions; Reforms
    Recommended; Indexing and Arrangement; Need of a Parliamentary
    Draughtsman; Recommendations of the State Librarians; Purpose of
    this Book.

    INDEX




POPULAR LAW-MAKING




I

THE ENGLISH IDEA OF LAW


My object in the lectures upon which this work is based was to give
some notion of the problems of the time (in this country, of course,
particularly) which are confronting legislators primarily, political
parties in the second place, but finally all good citizens. The
treatment was as untechnical as possible. The lectures themselves were
for men who meant to go into business, for journalists, or political
students; a general view--an elemental, broad general view--of the
problems that confront legislation to-day. So is the book not one for
lawyers alone; it seeks to cover both what has been accomplished
by law-making in the past, and what is now being adopted or even
proposed; the history of statutes of legislation by the people as
distinct from "judge-made" law; how far legislatures can cure the
evils that confront the state or the individual, and what the future
of American legislation is likely to be. Constitutional difficulties
I had merely mentioned, as there was another course of lectures on
American constitutional principles, which supplemented it.[1] In those
I tried to show what we _cannot_ do by legislation; in these I merely
discussed what had been done, and tried to show what we are now doing.
What we may _not_ do may sound, perhaps, like a narrow field; but the
growth of constitutional law in this country is so wide--in the first
place including all the English Constitution, and more than that,
so many principles of human liberty that have been adopted into our
Constitution, either at the time it was adopted, or which have crept
into it through the Fourteenth Amendment, with all the innovations
of State constitutions as well--that really the discussion of what
_cannot_ be done by statute takes one almost over the entire range of
constitutional law and even into the discussion of what cannot be done
in a free country or under ordinary principles of human liberty.

[Footnote 1: "The Law of the Federal and State Constitutions of
the United States," Boston Book Company, 1908. "The American
Constitution," Scribners, New York, 1907.]

How many of us have ever formulated in our minds what _law_ means? I
am inclined to think that the most would give a meaning that was never
the meaning of the word _law_, at least until a very few years
ago; that is, the meaning which alone is the subject of this book,
_statute_ law. The notion of law as a _statute_, a thing passed by a
legislature, a thing enacted, made new by representative assembly, is
perfectly modern, and yet it has so thoroughly taken possession of our
minds, and particularly of the American mind (owing to the forty-eight
legislatures that we have at work, besides the National Congress,
every year, and to the fact that they try to do a great deal to
deserve their pay in the way of enacting laws), that statutes have
assumed in our minds the main bulk of the concept of law as we
formulate it to ourselves. I guess that the ordinary newspaper reader,
when he talks about "laws" or reads about "law," thinks of statutes;
but that is a perfectly modern concept; and the thing itself, even
as we now understand it, is perfectly modern. There were no statutes
within the present meaning of the word more than a very few centuries
ago. But statutes are precisely the subject of this book; legislation,
the tendency of statute-making, the spirit of statutes that we have
made, that we are making, and that we are likely to make, or that are
now being proposed; so it is concerned, in a sense, with the last and
most recent and most ready-made of all legal or political matters. The
subject of statute-making is not thought difficult; it is supposed
to be perfectly capable of discussion by any one of our State
legislators, with or without legal training; and sometimes with
lamentable consequences. For the subject is of the most immense
importance, now that the bulk of all our law is, or is supposed to be,
statutes.

In order to understand, therefore, what a statute is, and why it has
grown important to consider statute-making, it is necessary to have
some knowledge of the meaning of the word _law_, and of the origin
both of representative government and of legislatures, before we come
to statutes, as we understand them; for parliaments existed centuries
before they made statutes as we now use this word. _Statutes_ with
us are recent; _legislatures_ making statutes are recent everywhere;
legislatures themselves are fairly recent; that is, they date only
from the end of the Dark Ages, at least in Anglo-Saxon countries.
Representative government itself is supposed, by most scholars, to be
the one invention that is peculiar to the Anglo-Saxon people.

And there is another invention--if we can call it one--to my mind of
far greater importance, which I should urge was also peculiar to the
Anglo-Saxon people; that is, the invention or the idea of personal
liberty; which is understood, and always has been understood, by
Anglo-Saxons in a sense in which it never existed before, so far as I
know, in any people in the history of the world. It is that notion of
personal liberty which was the cause of representative government, not
representative government that was the cause of personal liberty. In
other words, the people did not get up a parliament for the sake of
having that parliament enact laws securing personal liberty. It was
the result of a condition of personal liberty which prevailed among
them and in their laws that resulted in representative government, and
in the institution of a legislature, making, as we now would say, the
laws; though a thousand years ago they never said that a legislature
_made_ laws, they only said that it _told what the laws were_. This is
another very important distinction. The "law" of the free Anglo-Saxon
people was regarded as a thing existing by itself, like the sunlight,
or at least as existing like a universally accepted custom observed by
every one. It was five hundred years before the notion crept into the
minds, even of the members of the British Parliaments, that they could
make a _new_ law. What they supposed they did, and what they were
understood by the people to do, was merely to _declare_ the law, as it
was then and as it had been from time immemorial; the notion always
being--and the farther back you go and the more simple the people are,
the more they have that notion--that their free laws and customs were
something which came from the beginning of the world, which they
always held, which were immutable, no more to be changed than the
forces of nature; and that no parliament, under the free Anglo-Saxon
government, or later under the Norman kings, who tried to make them
unfree, no king, could ever _make_ a law, but could only declare what
the law was. The Latin phrase for that distinction is _jus dare_, and
_jus dicere_. In early England, in Anglo-Saxon times, the Parliament
never did anything but tell what the law was; and, as I said, not
only what it was then, but what it had been, as they supposed, for
thousands of years before. The notion of a legislature to make _new_
laws is an entirely modern conception of Parliament. How did it arise?
The English Parliament,[1] as you doubtless know, was the successor,
or grew out of the old Witenagemot, the old Saxon Great Council, and
that Great Council originally--and I am now talking of centuries
before the Conquest--the Witenagemot, included in theory all the free
inhabitants of the realm, just as a modern town meeting does. Mind
you, they were then tribes, living in "Hundreds." They were not
nations, not even states and counties, and in early times it probably
was possible to have a popular assembly which should include at least
all the warriors, all the fighting men, and consequently all the men
whose votes counted. No man who could not fight could share in the
government--an historical fact which our suffragists tend to ignore
when they talk of "rights." The Witenagemot, undoubtedly, was
originally a universal assembly of the tribe in question. But as
the tribes got amalgamated, were associated together, or at least
localized instead of wandering about, and particularly when they got
localized in England--where before they had been but a roaming people
on account of their struggles with the Britons--the necessity of
greater organization probably became obvious to them at once, and the
Witenagemot readily assumed a somewhat more formal form; and that
resulted in representation. For we are talking of early England;
that is, of the eastern half of what is now England, the Saxon part;
obviously you couldn't put all the members even of East Anglia in one
hall or in one field to discuss laws, so they invented representation.
All the authorities appear to be agreed that there is no prototype
for what seems to us such a very simple thing as representation,
representative government, among the Greeks or the Romans, or any
of the older civilizations of which we have knowledge. It is very
surprising that it is so, and I am always expecting that some one will
discover, either in the Achaian League or somewhere, that it is not
so, that there is a prototype; but there doesn't seem to be any
regular system of representative government until you get to
Anglo-Saxon peoples. So that was the second stage of the Witenagemot,
and then it properly begins to be called the Great Assembly or
Council of the people. This representative assembly was then not only
legislative, it was also executive, to some extent, and entirely
judicial; for we are a thousand years before the notion of the
threefold division of government has occurred to any one. The early
Saxon Witenagemot, as later the Norman kings tried to, did unite all
three functions in themselves. Their main function was judicial; for
the reason that there was very little notion as yet of _legislation_,
in a people or tribe whose simple customs and simple property demanded
very few laws, where the first remedy for any man for any attack on
his family or property was the remedy of his own good, right hand.
When you really only got into a lawsuit, at least as concerning
property, as a result of a killing of somebody or other, albeit in
defence of one's own chattels, it is obvious that there need not be
much legislation; the laws were too well known, the unwritten law too
well enforced. It probably would have surprised the early Englishman
if he had been told that either he or anybody else didn't _know_ the
law--still more that there was ever any need for any parliament or
assembly to tell him what it was. They all knew the law, and they all
knew that they knew the law, and the law was a thing that they knew as
naturally as they knew fishing and hunting. They had grown up into it.
It never occurred to them as an outside thing.

[Footnote 1: Gneist, "The English Parliament," and Skottowe, "History
of Parliament," perhaps best summarize this view.]

So it has been found that where you take children, modern children,
at least boys who are sons of educated parents, and put them in large
masses by themselves, they will, without apparently any reading,
rapidly invent a notion of law; that is, they will invent a certain
set of customs which are the same thing to them as law, and which
indeed are the same as law. They have tried in Johns Hopkins
University experiments among children, to leave them entirely alone,
without any instruction, and it is quite singular how soon customs
will grow up, and it is also quite singular and a thing that always
surprises the socialist and communist, that about the earliest concept
at which they _will_ arrive is that of private property! They will
soon get a notion that one child owns a stick, or toy, or seat,
and the others must respect that property. This I merely use as an
illustration to show how simple the notion of law was among our
ancestors in England fifteen hundred years ago, and how it had grown
up with them, of course, from many centuries, but in much the same way
that the notion of custom or law grows up among children. The English
had acquired naturally, but with the tradition of centuries, the
notion of law a _sexisting_; and that brings us to the next point.

Here again we are so confused with our modern notions of law that it
is very important not to be misled by them at the beginning. I am
quite sure that all the American people when they think of law in
the sense I am now speaking of, even when they are not thinking
necessarily of statute law, do mean, nevertheless, a law which is
enforced by somebody with power, somebody with a big stick. They
mean a law, an ordinance, an order or dictate addressed to them by
a sovereign, or by at least a power of some sort; and they mean an
ordinance which if they break they are going to suffer for, either in
person or in property. In other words, they have a notion of law as a
written command addressed by the sovereign to the subject, or at least
by one of the departments of government to the citizen. Now, that, I
must caution you, is in the first place rather a modern notion of law,
quite modern in England; it is really Roman, and wasn't law as it was
understood by our Anglo-Saxon ancestors. He didn't think of law as
a thing written, addressed to him by the king. Neither did he
necessarily think of it as a thing which had any definite punishment
attached or any code attached, any _sanction_, as we call it, or thing
which enforces the law; a penalty, or fine, or imprisonment. There are
just as good "sanctions" for law outside of the sanctions that our
people usually think of as there are inside of them; and often very
much better. For instance, the sanction of a strong custom. Take any
example you like; there are many States where marriage between blacks
and whites is not made unlawful, but where practically it is made
tremendously unlawful by the force of public opinion. Take the case of
debts of honor, so-called, debts of gambling; they are paid far more
universally than ordinary commercial debts, even by the same people;
but there is no _law_ enforcing them--there is no _sanction_ for the
collection of gambling debts. And take any custom that grows up. We
know how strong our customs in college are. Take the mere custom of a
club table; no one dares or ventures to supplant the members at that
table. That kind of sanction is just as good a law as a law made
by statute and imposing five or ten dollars penalty or a week's
imprisonment. And judges or juries recognize those things as laws,
just as much as they do statute laws; when all other laws are lacking,
our courts will ask what is the "custom of the trade." These be laws;
and are often better enforced than the statute law; the rules of the
New York Stock Exchange are better enforced than the laws of the State
legislature. Now all our early Anglo-Saxon law was law of that kind.
And it was not written down for a great many centuries, and even after
being first written it wasn't usual to affix any _penalty_; they were
mere customs, but of an iron-bound nature--customs that were followed
far more devoutly than the masses of our people follow any of our
written laws to-day. And their "sanction" was twofold: In the first
place, the sanction I have mentioned, universal custom, social
ostracism for breach. A second and very obvious sanction, that if you
do a thing that I don't like and think is against the law, I am going
to knock you down or kill you if I can! That was a sanction, and a
perfectly good one; and the question that arose, therefore, was not at
all as to penalty for the law-breaker; it was whether there should be
a penalty for the law-breaker's being killed. That is the reason they
didn't have to have any penalty! In those days if there was a custom
that a certain tribe had a certain pasture, and a man of another tribe
pastured his cattle in that pasture, the first man would go to him and
they would have a fight, and if he killed him he would be, as we say,
arrested; then the matter would be inquired into by the kin of the
murdered man or neighbors, and if the killer could prove that the
murdered man had committed a breach of the law, he went off scot
free--so, as a matter of fact he would to-day, if it were justifiable
homicide. In other words, it was a question of whether it was
justifiable homicide; and that brought in the question what the
law was, and it was usually only in that way. For the law was but
universal custom, and that custom had no _sanction_; but for breach
of the custom anybody could make personal attack, or combine with his
friends to make attack, on the person that committed the breach, and
then, when the matter was taken up by the members of both tribes, and
finally by the Witenagemot as a judicial court, the question was, what
the law was; and if it was proved, for instance, that the law was that
there _was_ private property in that pasture belonging to the man who
committed the murder he went off scot free. That was the working of
the old Anglo-Saxon law, and it was a great many centuries before the
notion of law changed in their minds from that. And this "unwritten
law" perdures in the minds of many of the people to-day.

So it was that the Witenagemot--this Great Council of the realm--was
primarily judicial, in the first instance always judicial; that is, it
never made new laws. It got together to try people for the breach of
law; and that incidentally brought up the validity of the old law, and
then decided whether old law was valid or not. In a sense, therefore,
you see they told what the law was, they announced it; but they never
supposed they were making new laws. That was the last thing they
intended to do, and the last thing the people would have stood, had
they tried it.

So much for the growth of law, the origin of Anglo-Saxon law, as we
understand it, and for representative government, and for the origin
of Parliament. I doubt if there was any giving of new law, anything
that we should call _legislation_, made by the English Parliament,
then called the Witenagemot, before the Norman Conquest. I have never
been able to find any. You find occasional announcements that the men
of Kent "shall have their liberties as they used to," and perhaps
there will be a statement of what those liberties were, in brief; but
it is always clearly meant that they are stating the law as already
existing. How, then, did they invent a legislature?

The Roman law, the whole Roman system, as you know, was absolutely
distinct, and distinct in two great principles which have lasted down
really into modern times, and still divide Continental countries
from Anglo-Saxon countries. What I call the first great principle is
universal law--the principle that no officer of government, no high
official, no general, no magistrate, no anybody, can do anything
against the law without being just as liable, if he infringed upon a
subject's liberty, as the most humble citizen. That is a notion which
does not yet exist on the Continent or any part of the world except
England and the United States, and the countries or colonies copying
after them. In Germany, for instance, Dr. Gierke tells me it exists
only partially and by a modern constitution. This is the first great
difference; and the second one is the notion that laws are made by the
people only, with or without representative government. The notion
of law as a custom is Teutonic; but on the Continent the Germans
abandoned it. The Roman law was always law more as we moderns think of
it; it was an _order_, addressed by the sovereign, or at least by a
political superior, to a subject or to a political inferior; addressed
in the form of definite writing, that is to say, a statute, and with a
sanction, that is to say, a penalty, a threat as to what the sovereign
will do if the subject does not obey. That is the universal notion
of Roman law, and it has so far affected certain English writers on
jurisprudence that I feel almost one should be warned against them.
Not that their side isn't arguable, but the weight of English history
seems the other way. Austin, for instance, was so much impressed with
the notion of law as an order from the sovereign to an inferior that
he practically, even when considering the English Constitution, adopts
that notion of law, and therefore arrives to some conclusions, as it
seems to me, unwarranted, and certainly omits to note a great many
things that would be noted had he kept clearly the Anglo-Saxon theory
of law in mind.

Now the Normans, mind you, had purely Roman law. While they were in
Normandy, being in France, they had imbibed or adopted Roman notions
of law, perhaps because they were then first civilized. They had lost
their old Saxon notions, if they had any, for they were, after all,
of the same _race_ as the Saxons. Nevertheless, when they conquered
England they brought just as much the notion of the Roman law into
England as if they had been Caesar's legions. And that fact must
always be borne in mind, and that led to centuries of conflict in the
making of English constitutional law. The first thing, of course, that
they tried to do, that the Norman kings tried to do, was to use law in
the Roman way; that is, to make the law themselves, from the king. For
that was another consequence of the Roman law, that not only was it an
order by the sovereign power, but that this sovereign power was not in
theory a legislature, as it is with us to-day, but the sovereign; in
France and the Continental countries laws were made in theory and in
practice by the king. So the Normans came over with the Roman notion,
in the first place, as to what law was, that it was a written, newly
made order of a sovereign, not a thing that had grown up and was part
of the lives and customs of the people, but a thing made out of hand
by the king; and, secondly, that it was made by the king and not by
any legislature. And the first two or three centuries of English
parliamentary history were mainly taken up, in the English Parliament,
so far as it concerns the subject of our course here, in the contest
between Parliament and the king as to who should make law and what
law was. It took more than one century for the Parliament, after the
Norman Conquest, to revive as a Parliament at all; then when it
did finally get together it took two or three centuries before it
established the principle that it had anything to do with the making
of law. The Norman kings regarded the Parliament as a mere method of
getting money from the people, hardly even as a Council when they
sought for popular support; and yet it was through the fact that they
so regarded Parliament that Parliament was enabled ultimately to
acquire the law-making or the legislative power which exists in all
our legislatures to-day. The king, in those days, derived his revenue
mainly from his own land. It was not necessary for the government to
have any revenue except for what we should call the king's private
purse. What was wanted for public expense was for two or three
well-recognized purposes, all purposes of defence. The old English
taxation system was in a sense no system. There wasn't any such thing
as taxation. There was the "threefold necessity" as it was called. It
was necessary for the king to have money, horses, grain, supplies,
etc., to defend the kingdom, and to build forts, and to maintain
bridges or defensive works; and that was the only object of taxation
in those times. Those were the only "aids"--they were called
"aids"--those were the only aids recognized. The first word for tax is
an "_aid_", granted voluntarily, in theory at least, by the barons to
the king, and for these three purposes only. The king's private purse
was easily made up by the enormous land he held himself. Even to-day
the crown is probably the largest land-owner in the kingdom, but at
the time of the Conquest, and for many years afterward, he certainly
owned an hundredfold as much, and that gave him enough revenue for his
purse; of course, in those days, money for such things as education,
highways, police, etc., was entirely out of their mind. They were
not as yet in that state of civilization. So the king got along
well enough for his own income with the land he owned himself as
proprietor. But very soon after the Norman Conquest the Norman kings
began to want more money. Nominally, of course, they always said they
wanted it for the defence of the realm. Then they wanted it, very
soon, for crusades; lastly, for their own favorites. They spent an
enormous amount of money on crusades and in the French wars; later
they began to maintain--always abroad--what we should call standing
armies, and they needed money for all those purposes. And money could
yet be only got from the barons, the nobility, or at least the landed
gentry, because the people, the agricultural laborers or serfs,
villeins, owned no land. Knights and barons paid part of the tax by
furnishing armed men, but still, as civilization increased, there was
a growing demand on the part of the Norman kings for money. Now
this money could be got only from the barons, and under the
Constitution--and here we first have to use that phrase--it could only
be got from the barons by their consent. That is, the great barons of
the realm had always given these aids in theory voluntarily. The king
got them together, told them what he wanted, and they granted it; but
still it had to come from them, and in the desire to get money the
Norman kings first called together the Great Council, first consulted
the parliament which afterward became their master. They made a
legislature by calling them together, although only for this purpose,
to give them the power of getting more money; but when the Great
Council was once together and the kings began to be more and more
grasping in their demands for money, the barons naturally wanted
something on their side, and they would say to them: "Well, yes--you
shall have this aid--we will vote you this tax--but the men of England
must have such and such a law as they used to under Anglo-Saxon
times." And they pretty soon got to using the word "people";
the "people" must have "the liberties they had under Edward the
Confessor"; and time after time they would wring from a Norman king a
charter, or a concession, to either the whole realm or a certain part
of the realm, of all the liberties and laws and customs that they
had under the old Saxon domination--and that ultimately resulted in
bringing the whole free English law back. Thus, early law was custom;
Anglo-Saxon law was _free_ custom; the English lost it under the
Conquest; and they got it back because the first Norman kings had to
call the council together, which grew into Parliament, which then,
in voting their aids or taxes, demanded their "old liberties"; and
finally, after getting Magna Charta, after getting all their old Saxon
liberties back, by easy transition, they began to say: "We would make
certain regulations, ordinances, laws of our own"; though we have not
yet got to the time where the notion of making _new_ law, as a statute
is now understood, existed.




II

EARLY ENGLISH LEGISLATION AND MAGNA CHARTA


Parliament began avowedly to make new laws in the thirteenth century;
but the number of such laws concerning private relations--private
civil law--remained, for centuries, small. You could digest them all
into a book of thirty or forty pages. And even to Charles the First
all the statutes of the realm fill but five volumes. The legislation
under Cromwell was all repealed; but the bulk, both under him and
after, was far greater. For legislation seems to be considered a
democratic idea; "judge-made law" to be thought aristocratic. And so
in our republic; especially as, during the Revolution, the sole power
was vested in our legislative bodies, and we tried to cover a still
wider field, with democratic legislatures dominated by radicals. Thus
at first the American people got the notion of law-making; of the
making of new law, by legislatures, frequently elected; and in that
most radical period of all, from about 1830 to 1860, the time of
"isms" and reforms--full of people who wanted to legislate and make
the world good by law, with a chance to work in thirty different
States--the result has been that the bulk of legislation in this
country, in the first half of the last century, is probably one
thousandfold the entire law-making of England for the five centuries
preceding. And we have by no means got over it yet; probably the
output of legislation in this country to-day is as great as it ever
was. If any citizen thinks that anything is wrong, he, or she (as it
is almost more likely to be), rushes to some legislature to get a new
law passed. Absolutely different is this idea from the old English
notion of law as something already existing. They have forgotten
that completely, and have the modern American notion of law, as
a ready-made thing, a thing made to-day to meet the emergency of
to-morrow. They have gotten over the notion that any parliament, or
legislature, or sovereign, should only _sign_ the law--and I say sign
advisedly because he doesn't enact it, doesn't create it, but signs a
written statement of law already existing; all idea that it should be
justified by custom, experiment, has been forgotten. And here is the
need and the value of this our study; for the changes that are being
made by new legislation in this country are probably more important
to-day than anything that is being done by the executive or the
judiciary--the other two departments of the government.

But before coming down to our great mass of legislation here it will
be wise to consider the early English legislation, especially that
part which is alive to-day, or which might be alive to-day. I
mentioned one moment ago thirty pages as possibly containing the bulk
of it. I once attempted to make an abstract of such legislation in
early England as is significant to us to-day in this country;[1] not
the merely political legislation, for ours is a sociological study.
We are concerned with those statutes which affect private citizens,
individual rights, men and women in their lives and businesses; not
matters of state, of the king and the commons, or the constitution of
government. Except incidentally, we shall not go into executive or
political questions, but the sociological--I wish there were some
simpler word for it--let us say, the _human_ legislation; legislation
that concerns not the government, the king, or the state, but each man
in his relations to every other; that deals with property, marriage,
divorce, private rights, labor, the corporations, combinations,
trusts, taxation, rates, police power, and the other great questions
of the day, and indeed of all time.

[Footnote 1: See "Federal and State Constitutions," book II, chap. 2.]

Had it not been for the Conquest, it would hardly have been necessary
to have enacted the legislation of the first two or three centuries at
all. Its object mainly was political, that is, to enforce Saxon law
from Norman kings. No change was made, nothing new was added. There
was, however, a little early Saxon legislation before the Conquest.
The best compilation is contained in Stubbs's "Selected Charters." He
says that the earliest English written laws contained amendments of
older unwritten customs, or qualifications of those customs, when they
were gradually wearing out of popular recollection. Such documents are
generally obscure. They require for their elucidation a knowledge
of the customs they were intended to amend. That is as I told you:
everybody was supposed to know the law, and early written statutes
were either mere compilations of already existing law, slight
modifications of them, or else in the nature of imposing various
penalties--all of which assume that you know the law already. When
they attempted codification, which they did about twice before the
Conquest (especially under Edward the Confessor, for that reason he is
called the Father of English law, the English Justinian, because he
was enough of a civilian to understand what a code was), King Edward
made the attempt to get a certain amount of law written out; but even
that would be very unintelligible if you tried to read it, for he
assumed that one knew it all already, and it also is mainly in the
nature of imposing penalties, not stating the law as it was. However,
that is called the first English code. All the Saxon laws Dr. Stubbs
could find fill only twenty-two pages of his small book; and he says
that English law, from its first to its latest phase, has never
possessed an authoritative, constructive, systematic, or approximately
exhaustive statement, such as was attempted by the great founders of
the civil or Continental law, by Justinian or by Napoleon Bonaparte.
Now this is true, even to-day, of our English and our American law.
That is, the great bulk of the law that is administered in our courts
is not "written," it is not in any code. There are, of course,
text-books on the subject, but they are of no binding authority. It
resides in the learning of the judges. It is what is called court-made
law--"_jus dicere_," not "_jus dare_." Our judges are still supposed
to tell what the law is, and they sometimes, as the common law is a
very elastic thing, have to make new law. That is, if the precise case
isn't covered by any previous decision or by any statute, the judge
or the court will say what the common law ought to be when applied
to that state of facts. So our law is a continually growing law, and
largely made still in the old Saxon way, by custom and the judges, and
still under the theory that the common law is an existing thing; that
the law exists and the judge only expounds. We have never lost sight
of that theory.

These early Anglo-Saxon laws mostly concern only matters of procedure
for the courts, or the scale of punishment. As they assume a knowledge
of existing law, they are often hard to understand. Here are some of
the laws of Wessex:

    A.D. 690. WESSEX KING INI.

    CAP. 11. "If any one sell his own countryman, bond or free, though
    he be guilty, over sea, let him pay for him according to his
    'wer.'"

As to "wer." Now there were slaves in England in those days; at the
time of the Conquest the Domesday Book reports twenty-five thousand.
_Slaves_, I mean; not the unfree agricultural laborers, they were in a
higher class, but the regularly bound _slaves_, who were descendants,
either of the early British inhabitants or of the Saxons themselves,
who had been punished in the courts and had been sentenced into
slavery, or men who had voluntarily sold themselves into slavery. For
under early Saxon law a man could sell his child into slavery if the
child were under seven years old, and above fourteen the child could
sell himself. This refers, of course, to that; it is really a kind of
predecessor of our Thirteenth Amendment; that is, it forbids slavery;
it forbids making new slaves. The word "wer" is the word we have in
"wer-wolf," meaning blood; for instance, "weregild" is a man's blood
money. Every man had a price from the king down; if a man killed the
king he had to pay, we will say, fifty thousand pounds; if a thane,
it might be one or two thousand; if an ordinary freeman, one hundred
pounds, and so on.

    CAP. 36. "Let him who takes a thief, or to whom one taken is
    given, and he then lets him go, or conceals the theft, pay for
    the thief according to his 'wer.' If he be an ealdorman, let him
    forfeit his shire, unless the king is willing to be merciful to
    him."

Now the earliest direct legislation about personal property in a
statute is as late as 1100; but this early Saxon law was a recognition
of personal property, because a man cannot steal a thing unless there
is property. This section, therefore, implies property in personalty;
because a man cannot steal land; but it never occurred to them to pass
a law saying that there _shall be_ private property, because that was
the unwritten law that they were all supposed to know.

    A.D. 890. WESSEX. ALFRED.

    CAP. 27. "If a man, kinless of paternal relatives, fight and slay
    a man, and then if he have maternal relatives, let them pay a
    third of the 'wer'; his guild-brethren a third part; for a
    third let him flee. If he have no maternal relatives, let his
    guild-brethren pay half, for half let him flee."

    CAP. 28. "If a man kill a man thus circumstanced, if he have
    no relatives, let half be paid to the king, half to his
    guild-brethren."

It is very hard for us to understand what that means. One would
infer that the weregild was only paid by a man with relatives on his
father's side. It doesn't say that, but that is the inference. We
shall have plenty to say about the guilds later--the historical
predecessors of the modern trades-unions. We here find the word
_guild_ recognized and spoken of in the law as early as 890.

    A.D. 920. WESSEX. EDWARD.

    "2. And if a ceorl throve, so that had fully five hides of his
    own land, church and kitchen, bell-house and burh-gate-seat,
    and special duty in the king's hall, then was he thenceforth of
    thegn-right worthy.

    "6. And if a merchant throve, so that he fared thrice over the
    wide sea by his own means, then was he thenceforth of thegn-right
    worthy."

Worldly success has thus always been the foundation of English
nobility.

Then there is a good deal about how much you have to pay for a churl,
and how much for an earl, and so on, leaving out only the slaves; for
all the free people of England in Saxon times were divided into earls
and churls; that is, noblemen and agricultural laborers or yeomanry;
these were the two estates besides the church, always a class by
itself. Later there grew up the thanes, who were merely large
landlords; the law became that a man that had five hides of land, five
or six hundred acres, with a farm, should by the mere fact of having
that land become a thane, an earl. That method of ennobling a man by
land got to be a way, at that time the only way, by which a churl or a
villein could become a nobleman or even be emancipated. Exactly as now
with our American Indians; when an Indian gets one hundred and sixty
acres given to him in severalty he becomes, under the Dawes Act, a
citizen of the United States. Later there grew up emancipation by the
guilds. The word _guild_ meant the members of a certain handicraft,
but that was rather the secondary meaning; it originally meant the
freemen of the town. But the freemen of the towns were made up of
the freemen of the guilds. No one could become a member of the guild
without going through certain ceremonies, much as he would now to join
a trades-union; and no one could become a freeman of the town unless
he was a freeman of the guild. The law grew to be, however, that if a
man succeeded in staying in a town for a year and a day, without being
turned out, plying his handicraft, he became by that mere fact a
freeman of the town; for the citizens of towns established their
liberty, both personal and political, far earlier than the dwellers on
agricultural land.

    959-975-EDGAR.

    CAP. 1. "_Secular Ordinance_. Now this is the secular ordinance
    which I will that it be held. This, then, is first what I will:
    that every man be worthy of folk-right, as well poor as rich;
    and that righteous dooms be judged to him; and let there be such
    remission in the 'bot' as may be becoming before God and tolerable
    before the world."

    1016. CANUTE.

    CAP. 71. "And if any one depart this life intestate, be it through
    his neglect, be it through sudden death; then let not the lord
    draw more from his property than his lawful heriot. And according
    to his direction, let the property be distributed very justly to
    the wife and children and relations, to every one according to the
    degree that belongs to him."

    CAP. 81. "And I will that every man be entitled to his hunting in
    wood and in field, on his own possession. And let every one forego
    my hunting: take notice where I will have it untrespaesed on under
    penalty of the full 'wite.'"

But even the great code of Edward the Confessor has, for the most
part, to do only with political divisions, what shall be a shire, what
a parish, etc., and certain technical matters that have now grown
obsolete. So we may conclude with the statement, substantially
accurate, that there was practically no _new_ legislation, no
constructive legislation under the Saxons; their social law was all
unwritten.

And Parliament did not begin by being a law-making body. Its
legislative functions were not very active, as they were confined to
declaring what the law was; more important were its executive and
judicial functions. In modern English government, particularly in our
own, one of the basic principles is that of the three departments,
executive, legislative, and judicial; the Norman or Roman theory
rather reposed all power in one; that is, in the sovereign, commonly,
of course, the king, the others being theoretically his advisers or
servants. In England, to-day, the real sovereign is the Parliament;
the merest shadow of sovereignty is left to the executive, the king,
and none whatever given the judicial branch. In this country we
preserve the three branches distinct, though none, not all three
together, are sovereign; it is the people who are that. And each
department is of equal dignity; although at one period there was a
certain amount of public complaint that Congress was usurping more
power than belongs to it, and recently that power was being usurped by
the president, there has hardly been (except from Mr. Gompers and Mr.
Hearst) any complaint that power is usurped by the _judicial_ branch,
however unpopular its decisions. But in England there is no pretence
of maintaining the three branches uniform either in importance or in
power. Starting with the Great Council, which had originally only a
certain amount of executive power and a great deal of judicial power,
they have retained and added to the former, while practically giving
up the latter; and, moreover, they have divided into the two houses,
the House of Lords and the House of Commons, with a division of
sovereignty between them, the Commons, of course, getting the lion's
share. The only judicial power substantially now remaining in the
English Parliament is the power of impeachment, which is rarely
exercised in England, and the appellate jurisdiction of the House
of Lords, of the "law" lords, that is, those peers who held legal
offices. On the other hand the legislative function of Parliament,
which began merely in the way of saying what the law was, has
enormously developed, and still more so the executive. Thus the
legislative branch of the three divisions in the English government
has increased out of all proportion to both the others, having now all
the legislative power and most of the executive. And legislatively it
is omnipotent; it is confined by no constitution; even the king cannot
withhold his consent. Parliament can make any law, although against
what _was_ the Constitution; the Constitution may be modified by a
simple statute. So their legislative function is infinite; and their
executive function has, in substance, grown very large, because the
British government is carried on by the cabinet, which is practically
a committee of the House of Commons. But of the judicial function,
which was the principal function of the Great Council at the time
of the Conquest, hardly a shred remains. It is the history of all
countries that people are not jealous of the judicial power, while
they are extremely anxious to seize the legislative and executive.
With us, however, we are supposed to have all three functions
co-ordinate and in good working activity. But in both countries, money
bills, bills imposing taxes, are the function of the lower house. That
principle grew historically from the principle that all taxation must
be voted by the people, directly or indirectly; must be with the
common consent and for the common benefit. That principle was
established by the House of Commons, and consequently they arrogated
to themselves that part of the legislative power. That principle we
have retained in our Federal Constitution, and in most of our State
constitutions; all of which have the double house.

The first functions of Parliament were restricted to voting taxes.
The king called the barons together merely to get "aids," and they
wouldn't give them until he recognized what they chose to call the old
law of England, always a pre-existing law. It was still a long time
before there was constructive legislation. Just as, before the
Conquest, in the seventh century, we find it said of the law of
Wihtred: "Then the great lords with the consent of all came to a
resolution upon these ordinances and added them to the customary
laws of the men of Kent"; and, in the time of King Alfred: "I, then,
Alfred, king, gathered these [laws] together, and commanded many of
those to be written which our forefathers held, those which to me
seemed good; and many of those which seemed to me not good I rejected
them, by the counsel of my 'witan,' and they then said that it seemed
good to them all to be holden";[1] so, after the Conquest, every
Norman king was made on his coronation oath to promise this, the law
of Edward the Confessor, until Magna Charta; after that they promised
to respect Magna Charta instead, which was thus reissued or confirmed
thirty-two times in the eighty-two years which intervened between
Runnymede and the final Confirmation of Charters under Edward I. Thus,
William the Conqueror himself, in his charter to the city of London,
says, in Anglo-Saxon: "_And I do you to wit that I will that ye two be
worthy of all the laws that ye were worthy of in King Edward's day_."
So the Domesday Book records "_the customs_," that is to say,
the laws, of various towns and counties; these bodies of customs
invariably containing a mere list of penalties for the breach of the
established law; while later charters usually give the inhabitants of
a town all the customs and free privileges enjoyed by the citizens of
London.

[Footnote 1: Stubbs's "Charters," p. 62.]

But after the Conquest laws could only be enacted with the concurrence
of the king; and the phrase was, and is still, in form, that "the
king wills it"--_Le Roy le veult_. Nevertheless, Parliament usually
originated laws. The early Norman kings cared nothing about
legislation; their sole desire was to get money from the people. For
two centuries, therefore, Parliament was occupied only with laws
recognizing the old Anglo-Saxon laws previously existing, or laws
removing abuses of the royal power; and the desire of the king to tax
the people was used as the lever to get him to assent to these laws.

With the usual sensible indifference of the English race to mere
matters of form, they allowed the Norman kings to go on declaring the
laws and signing them as if they were made only by the crown, which
was the Norman theory--not caring for the shadow, if they could get
the substance. Thus they established, in the first two or three
centuries, the right to force legislation on the king, and they did it
by the instrument of the taxation power. For taxation must be "by the
common consent of the realm"; no taxation without representation, as
the Declaration of Independence puts it, is probably the earliest
principle of the English Constitution; and it is most significant to
the student of the constitutional law, a most necessary reminder to
those who do not value our Constitution, that it was the departure
by George III from this very earliest of English constitutional
principles that caused the loss of his American empire.

This was six hundred years old, therefore, at the time of our
Revolution. Except those two principles, taxation by common consent
and taxation for the common benefit--which latter was not finally
established until two hundred years later (that is, it was put in the
first Magna Charta, John's, and then quietly dropped out by Henry II,
and kept out of the charter for nearly one hundred years),--we have to
come down to the year 1100 before we find the first _sociological_
statute. "Henry I called another convention of all the estates of the
realm to sit in his royal palace at London ... the prohibiting the
priests the use of their wives and concubines was considered, and the
bishops and clergy granted to the king the correction of them for that
offence; by which means he raised vast sums of money compounding with
the priests...."[1]

[Footnote 1: Cobbett's "Parliamentary History of England," I, 4.]

In 1 Henry, cap. VII, is another recognition of personal property--it
says that at a man's death it is to be divided between his widow and
his heirs. Now that may seem commonplace enough; but it is interesting
to note, as in the law, personal property did not come first; property
in land was many centuries earlier. And this suggests the legal basis
and present tendency of the law of property. "Property exists only
by the law"; and extreme socialists say that all private property is
robbery. No law, no property; this is true. Property is an artificial
thing. It is a creation of law. In other words, where there is now no
law except statute, it is the creation of statute. That may sound a
commonplace, but is not, when you remember that socialists, who are
attacking property, do so on precisely that ground. They say it is a
fictitious thing, it is a matter of expediency, it is a matter which
we can recognize or not, as we like; "no law, no property," and they
ask us to consider whether, on the whole, it is a good thing to have
any property at all, or whether the state had not better own all the
property. But our Federal and State constitutions guard it expressly.

Thus, property is the very earliest legal concept expressed in
statutes, just as it is perhaps the earliest notion that gets into a
child's mind. And ownership of land preceded _personal_ property--for
the perfectly simple reason that there was very little personal
property until comparatively late in civilization, and for the other
more significant reason that an Anglo-Saxon freeman didn't bother with
law when he had his good right hand. In the fifth, sixth, and seventh
centuries, when we were barbarous tribes, a man's personal property
consisted chiefly in his spear, his weapons, or his clothes; enemies
were not very apt to take them, and if they did, he was prepared to
defend them. Then, cattle, in those days, belonged to the tribe and
not to the individual. So, I should fancy, of ships--that is, galleys,
not private "coracles," the earliest British boats. Consequently there
wasn't any need for a law as to personal property. What little there
was could be easily defended. But with land it was different. Property
in land was recognized both among the English and, of course, with the
Normans; and in ways so similar that it was very easy for the Normans
to impose the feudal system upon England. There had been no feudal
system before the Norman Conquest; there were then three kinds of
land: the rare and exceptional _individual_ land, owned by one
man--always a freeman, not a villein or slave--and this was very small
in extent, limited to a very few acres around a man's home. Most of
the land was held in common; the folgland, so-called, which belonged
to the tribe; the land on which the cows of the village were pastured.
And finally there was the public, or unappropriated, or waste land.
Most of this last was seized, after the Conquest, by the big feudal
lords. For they came in with their feudal system; and the feudal
system recognized no absolute ownership in individuals. Under it there
were also three kinds of land, and much the same as the Saxon, only
the names were different: there was the crown land--now I am speaking
English and not Norman-French--which belonged to the king and which he
probably let out most profitably; there was the manor, or the feudal
land, which was owned by the great lords, and was not let by the king
directly; and then there was the vacant land, the waste land, which
was in a sense unappropriated. Now all the Norman kings had to do was
to bring the feudal system over the Saxon law of land, so that the
tribal land remained the only private land--that which is called "boke
land." This is land such as all our land is to-day, except land like
our Cambridge Common. With a very few exceptions, all our land is
"boke" land--freehold land. Then there was the public land; but that
very soon was taken by the lords and let out to their inferiors; this
was the great bulk of land in England after the Norman Conquest.
Lastly again there was the crown land, out of which the king got his
revenue. As something like this threefold system of land existed
before the Conquest, a subtle change to the feudal system was
comparatively easy by a mere change of name.

In the same year--1100--is the Charter of "Liberties" of Henry I. It
restores the laws of Edward the Confessor "with the amendments made by
my father with the counsel of his barons." It promises in the first
section relief to the kingdom of England from all the evil customs
whereby it had lately been oppressed, and finally returns to the
people the laws of Edward the Confessor, "with such emendations as my
father made with the consent of his barons."[1] In his charter to the
citizens of London[2] he promises general freedom from feudal taxes
and impositions, from dane-geld and from the fine for the murder of
a Norman; and the Charter of Liberties issued by Henry II in 1154
confirms their "liberties and free customs to all men in the
kingdom."[3] From this dates the equality of Englishmen before the
law, commons as well as barons. Henry II was the first Norman king who
had the old Saxon blood, and therefore he was looked forward to with a
great deal of enthusiasm by the people of England. For although it is
only one hundred years after the Conquest, the Normans and the Saxons
had pretty well fused, and the Normans, who were inferior in number,
had got thoroughly imbued with the free notion of Anglo-Saxon law. So
they got this charter from him; but there is no legislation to concern
us in it, it is only political. It has a great deal to do with the
church, and with what the king will not do; it binds him, but it does
not state any law directly.

[Footnote 1: Stubbs's "Charters," p. 101 (clause 13).]

[Footnote 2: _Ibid_., p. 108.]

[Footnote 3: _Ibid_., p. 135.]

There is further a continued evidence of the efforts of the people to
restore the common law of England as against the king's law or Roman
law, or later against the law of the church, also a kind of Roman law
known as canon law; and later still against the law of the king's
chancellor, what we should now call chancery jurisdiction; for the
jealousy of chancery procedure was quite as great in the twelfth
century as it is with the most radical labor leaders to-day; but of
this later on.

In 1159 they succeeded in doing away with the Norman method of trying
cases by battle and the Saxon method of trying by oath, and by the
machinery of the Norman Great Assize introduced again trial by jury.
For this in itself is probably an old Saxon institution. And in 1164
came the great Constitutions of Clarendon, the principal object of
which was to free the people from the church law and subject
the priests to the ordinary common law as in times before the
Conquest--for now, "as the influence of the Italian lawyers
increased,"[1] all the priests and clergy were above it. It was the
first great statute which clearly subjected the church--which, of
course, was the Church of Rome--to the common secular law. There was a
vast jurisdiction of church law ("Doctors commons" courts lasted until
a generation ago in England); some of it still remains. But in these
early days all matters concerning marriage, divorce, guardianship of
children, ownership of property after death, belonged to church law.
It is hard to see why, except that the mediaeval church arrogated
to itself anything that concerned _sin_ in any way--anything that
concerned the relation of the sexes, that concerned the Holy
Sacraments, and marriage is a sacrament. Consequently the mediaeval
church claimed that it had jurisdiction over all marriage, and over
all divorce; and also took jurisdiction over a man's children at his
death, and over his property, now exercised by our courts of probate.
This they got out of the notion that when a man was dead, there was
something, in a sense, that went beyond this life in looking after his
property and children. And down until twenty or thirty years ago all
jurisdiction in England in matters which concerned a man's property,
after death, belonged to the church courts and their successors. The
church law was based on the Roman law, but was called _canon_ law,
the technical word, because it is the "canons" of the church. It is a
convenient term to distinguish it from the ordinary civil law of the
Continent. So that the Constitutions of Clarendon began what was
completed only under Henry VIII; they very clearly asserted the claim
of the king to be supreme over the Church of England. The Bishop of
Rome, as Henry VIII called the pope, had no more power than any other
foreign bishop.[2] There still remained the institution known as
benefit of clergy, by which any priest, or later any clerk or cleric
(which word came to mean any one who could read and write) could
get off of any criminal accusation, at first even murder, by simply
pleading his clergy; in which case the worst that could happen to him
was that he was branded in the right hand. But the Constitutions of
Clarendon were a great step toward civil liberty. Taken by us in 1164,
it was followed in so neighboring a country as France only so late as
a few years ago. The priests, however, still managed to retain their
jurisdiction over offences among themselves, as well as over marriage,
the relation between the sexes, slander, usury, and wills--of matters
relating to the sacraments, and of sins.

[Footnote 1: Stubbs, p. 136.]

[Footnote 2: Yet "Peter's Pence" were initiated by Ini, King of the
West Saxons, about 690!]

Now this is a very interesting matter, and were it borne in mind by
our modern legislators they would escape a good deal of unintelligent
legislation; that is, the distinction between a sin and a crime. A sin
is against the church, or against one's conscience; matter, therefore,
for the priest, or one's spiritual adviser. A crime is an offence
against other men; that is, against the state, in which all are
concerned. Under the intelligent legislation of the twelfth century
all matters which were _sins_, which concerned the conscience, were
left to the church to prevent or punish. For the same reason usury was
matter for the priest--because it was regarded under the doctrines
of the Bible as a sin. This notion prevailed down to the early
legislation of the colony of Massachusetts, though doubtless many
things which were then considered sins would now be regarded
as crimes, such as bigamy, for instance. The distinction is,
nevertheless, a valid one, and we shall have occasion frequently to
refer to it. We shall find that the defect of much of our modern
legislation--prohibition laws, for instance--is that they attempt to
treat as crimes, as offences against the state, matters which are
merely sins, offences against the conscience or the individual who
commits them.

To-day, the American constitutions all say that a militia is the
natural defence of a state of free men. It is interesting; therefore,
to find, hardly a century after the Norman Conquest. In 1181, the
Assize of Arms, which revived the ancient Saxon "Fyrd," the word for
what we now call militia; and, twenty years before that, "scutage"
replaced military service. To the burdens of the feudal system,
compulsory military service and standing armies, our ancestors
objected from the very beginning. In a sense, scutage was the
beginning of taxation; but it was only a commutation for military
service, much as a man to-day might pay a substitute to go to war in
times of draft. General taxation first appears in 1188 in the famous
Saladin tithe, the first historical instance of the taxation of
personal property as distinct from a feudal burden laid upon land.
The object of this tax was to raise money for the crusade against
the Sultan Saladin. It was followed, five years later, by a tax of
one-fourth of every person's revenue or goods to ransom the king,
Richard I having gone to this crusade against Saladin, and been
captured on his return by his good friend and Christian ally, the
Emperor of the Holy Roman Empire. It is interesting to note that the
worth of the king in those days was considered exactly one-fourth of
the common wealth of England. John was less expensive; but he was not
captured. He levied a tax ten years later of one-seventh part on the
barons, and one-thirteenth on every man.

In 1213 two important things happened. The high-water mark of
domination by the Roman Church is reached when King John surrendered
England to the pope, and took it back as a fief of the pope for a
tribute of one thousand marks. The same year the other early method
of trial of lawsuits was abolished by the Lateran Council--trial by
ordeal. This was the only remaining Saxon method. The Norman trial by
battle had already been superseded by trial by jury; and from this
time on, in practice, no other method than a jury remains, though
trial by battle was not abolished by statute until the nineteenth
century.

And then we come to Magna Charta. The first time it was granted was in
1215 by John, but the charter always quoted is that promulgated ten
years later under Henry III. They were very nearly identical, but the
important omission in the charter of Henry was in regard to "scutage"
("no aid other than the three customary feudal aids shall be imposed
without the common counsel of the kingdom"); that, of course, is the
principle we have discussed above, first put in writing in the charter
of John. The barons claimed it as part of the unwritten law. But Henry
III in his charter cannily dropped it out--which is a trick still
played by legislatures to-day. This Magna Charta was confirmed and
ratified something like thirty times between the time of its adoption
under John and the time it got established so completely that it
wasn't necessary to ratify it any more. There are four sections of
Magna Charta that are most important. Chapter 7, the establishment of
the widow's dower; of no great importance to us except as showing
how early the English law protected married women in their property
rights. Chapter 13 confirmed the liberties and customs of London and
other cities and seaports--which is interesting as showing how early
the notion of free trade prevailed among our ancestors. It gave
rise to an immense deal of commercial law, which has always existed
independent of any act of Parliament. Chapter 17 provided that the
common pleas court--that is, the ordinary trial court--should not
follow the king about, but be held at a place and time certain. That
was the beginning of our legal liberty; because before that the king
used to travel about his realm with his justiciar, as they called his
chief legal officer, and anybody who wanted to have a lawsuit had
to travel around England and get the king to hear his case. But the
uncertainty of such a thing made justice very difficult, so it was a
great step when the leading court of the kingdom was to be held in a
place certain, which was at once established in Westminster. Minor
courts were, of course, later established in various counties, though
usually the old Saxon county or hundred-motes continued to exist.
Chapter 12 is the one relating to scutage, from the word _scutum_,
shield--meaning the service of armed men. Just as, to-day, a man who
does not pay his taxes can in some States work them out on the road,
so conversely in England they very early commuted the necessity of
a knight or land-owner furnishing so many armed men into a money
payment. "The three customary feudal aids" were for the defence of the
kingdom, the building of forts, and the building of bridges--all
the taxes usually imposed upon English citizens in these earliest
times--all other taxation to be only by the Common Council of the
kingdom. This is the first word, council; later, it became "consent";
the word _conseil_ meaning both consent and council. "Council of
England" means, of course, the Great Council. We are still before the
time when the word Parliament was used. Thus Magna Charta expresses it
that there should be no taxation without "the advice" of Parliament,
without legislation; and as Parliament was a representative body, it
is the equivalent of "taxation without representation." This also was
omitted in Henry III's charter, 1217, and only restored under Edward
I in 1297, a most significant omission. And it is also expressed in
early republications of the Great Charter that taxation must be for
the benefit of _all_, "for public purposes only," for the people
and not for a class. On this latter principle of Anglo-American
constitutional law one of our great political parties bases its
objection to the protective tariff, or to bounties; as, for instance,
to the sugar manufacturers; or other modern devices for extorting
wealth from all the people and giving it to the few. All taxation
shall be for the _common_ benefit. Any taxation imposed for the sole
benefit of the land-owning class, for instance, or even for
the manufacturing class, is against the original principles of
constitutional liberty.

Then we come to chapter 39, the great "Liberty" statute. "No freeman
shall be taken or imprisoned or be disseised of his freehold or _his
liberties or his free customs_ [these important words added in 1217]
or be outlawed or exiled or otherwise destroyed but by lawful judgment
of his peers, or by the law of the land." This, the right to law, is
the cornerstone of personal liberty. Any government in any country on
the Continent can seize a man and keep him as long as it likes; it is
only Anglo-Saxons that have an absolute right not to have that happen
to them, and not only are they entitled not to be imprisoned, but
their liberty of free locomotion may not be impeded. An American
citizen has a constitutional right to travel freely through the
whole republic and also not to be excluded therefrom. Punishment by
banishment beyond the four seas was forbidden in very early times in
England. "Disseised of his freehold, of his liberties or his free
customs"--that is the basis of all our modern law of freedom of trade,
against restraint of trade, and the basis on which our actions against
the modern trusts rest; the right to freely engage in any business, to
be protected against monopoly either of the state or brought about
by competitors, to freely make one's own contracts, for labor or
property, to work as long as one chooses, for what wages one wills,
and all the other liberties of labor and trade. "Or be outlawed or
exiled or otherwise destroyed"--that is a broad general phrase for any
interference with a man's property, life, or liberty. "Nor will we go
upon him"--that has been translated in various ways, but it means what
it says; it means that the king won't descend upon a man personally or
with his army; nor will we "send upon him"--a law officer after
him; "but by the lawful judgment of his peers, or by the law of the
land"--that means jury trial, or at least the law of the land, as it
then was; and that phrase, or its later equivalent--due process of
law--is discussed to-day probably in one case out of every ten that
arise in our highest courts. Many books have been written upon it.
To start with, it means that none of these things can be done except
_under law_; that is, except under a lawsuit; except under a process
in a court, having jury trial if it be a civil case, and also
an indictment if it be a criminal case, with all the rights and
consequences that attend a regularly conducted lawsuit. It must be
done by the courts, and not by the executive, not by the mere will of
the king; and, still more important to us to-day, not by legislatures,
not even by Parliament. "We will sell to no man, we will deny or delay
to no man, either right or justice," needs no explanation; it is
equality before the law, repeated in our own Fourteenth Amendment.

Lastly, we have in cap. 41: "Merchants shall have safe conduct in
England, subject only to the ancient and allowed customs, not to evil
tolls"--a forecast of the allowable tariff as well as of the spirit
of modern international law. Finally, there is a chapter on mortmain,
recognizing that land might not be given to monasteries or religious
houses, and particularly under a secret trust; the object being to
keep the land, which made the power of the realm, out of the hands of
the church. As far as that part of it goes, it is merely historical to
us, but it developed into the principle that corporations "which have
no souls," and do not die, should not own too much land, or have too
much power--and that is a very live question in the United States
to-day.

One must not be misled by the generality of the phrase used in chapter
39, and think it unimportant because it looks simple. It is hard for
an American or Englishman to get a fresh mind on these matters. We all
grow up with the notion that nobody has the right to arrest us, nobody
has the right to deprive us of our liberty, even for an hour. If
anybody, be he President of the United States or be he a police
officer, chooses to lay his hand on our shoulder or attempts to
confine us, we have the same right to try him, if he makes a mistake,
as if he were a mere trespasser; and that applies just as much to the
highest authority, to the president, to the general of the army, to
the governor, as it does to a tramp. But one cannot be too often
reminded that this principle is peculiar to English and American
civilization. Throughout the Continent any official, any judge,
anybody "who has a red band around his cap," who, in any indirect way,
represents the state--a railway conductor, a spy, a station agent--not
only has the right to deprive you of your freedom, but you have no
right to question him; the "red band around the cap" is a final
answer. Hence that extraordinary incident, at which all England
laughed, the Kupenick robbery. A certain crook who had been a soldier
and was familiar with the drill and the passwords, obtained possession
of an old captain's uniform, walked into a provincial town of some
importance, ordered the first company of soldiers he met to follow
him, and then with that retinue, appeared before the town hall and
demanded of the mayor the keys of the treasury. These were surrendered
without question and he escaped with the money, representing, of
course, that he had orders from the Imperial government. It never
occurred to any one to question a soldier in full uniform, and it was
only some days later, when the town accounts were sent to Berlin to be
approved, that the robbery was discovered.

Such a thing could by no possibility have happened in England or with
us; the town treasurer would at once have demanded his authority, his
order from the civil authorities; the uniform would have failed to
impress him. Moreover, under our local self-government, under our
decentralized system, nobody is _above_ even a town officer, or a
State or city official at the head of his department, however small it
be, except the courts. State officers may not command town officers,
nor Federal officers State officers; nor soldiers give orders to
policemen. The president, the governor, may perhaps remove them; but
that is all. And even the policeman acts at his peril, and may be sued
in the ordinary courts, if he oversteps his authority. The notion that
a free citizen has a right absolutely to question his constraint by
any State officer is peculiar to the English and American people, and
this cannot be too often repeated; for it is what foreigners simply
fail to understand. And it rests on this chapter in the Great Charter,
originally, as amplified and explained by the courts and later acts of
Parliament, such, as the Habeas Corpus Act. If a man is arrested by
any official, that person, however great, has to justify the arrest.
In theory, a man arrested has a right to sue him for damages, and
to sue him criminally for trespass; and if that man, be he private
individual or be he an official or president, cannot show by a "due
course of law"--that is, by a due lawsuit, tried with a jury--that he
did it under a duly enacted law, and that the facts of the case were
such as to place the man under that law--then that official, however
high, is just as much liable in the ordinary courts, as if he were the
merest footpad trying to stop a man on the highway--a doctrine almost
unknown to any country in the world outside of England, the United
States, and English colonies.




III

RE-ESTABLISHMENT OF ANGLO-SAXON LAW


Going on with the statutes, the next thing we will note is a matter
that concerns the personal relations. It shows again how eagerly our
English common law overruled the church law, the canon law. Although
the church under the pope always pretended that it alone had authority
to regulate relations between the sexes, marriage and divorce, we
found Henry I interfering with the priests themselves, and we now find
as early as 1235, a secular statute which extends the interference of
the secular law over the relations between parent and child; that is,
as to when a child should be legitimate and when not. We shall have a
great deal to say later about marriage and divorce laws, particularly
divorce laws as they exist in this country and as they apparently are
going to be. As early as 1235 the secular courts interfered with the
marriage relation; and the importance of that is here: there is one
great school to-day, including largely clergymen and the divorce
reformers, so-called, who hold substantially that marriage is a
sacrament, or at least a status; that the secular law has nothing to
do with it and should not be allowed to grant a divorce except for
canonical causes, _i.e._, causes recognized by the church; that it
is not like any other contract, which can be set aside with mutual
consent; when a marriage takes place, they say, it is a sacrament,
or, at least, a status ensues which cannot in future be altered.
Consequently, it is not like a contract; for all contracts can be
abrogated by mutual consent. On the other hand, the most radical
people go to the other extreme, and say that marriage _is_ like any
other contract; it is purely a civil contract, not a sacrament, not
a status; just like any other, and some of them go to what is the
logical conclusion of that position and say that therefore marriage,
like any other contract, ought to be ended at any time by the consent
of both parties. The extreme radical view leads to the conclusion that
a man and woman ought to be divorced any time by merely saying that
they want to be; and some States have almost got to this position in
their statutes. This may seem a very far cry from this early statute,
which does not directly concern marriage but the status of children;
nevertheless it has this bearing--it is an interference by Parliament,
by the secular, legislative branch of government, with a relation
which the church believed to belong only to the church. It so happens
that in this instance the secular law instead of being liberal and
kindly was extremely cruel and the reverse of liberal. Under the
church law, when a man married a woman by whom he already had
children, all those children were thereby made legitimate, and that
certainly seems the kindly and the Christian law. But the secular
barons who constituted the Parliament, in their jealousy for the
common law, took the harsher view, that any children born of parents
who are not married at the time they are born shall be illegitimate,
although their parents may marry afterward. Beaumont and Fletcher, in
one of their plays, make a punning reference to that. It seems to have
struck Beaumont and Fletcher as it does us, that it was a cruel law
for the Parliament to make; when the church for once was liberal, it
was queer that the Parliament should be illiberal; so Beaumont and
Fletcher, in one of their plays, say: "The children thou shalt get
_by this civilian_ cannot inherit by the _law_." This is interesting,
because they use all the words I have been trying to define; when they
say "the children thou shalt get by this _civilian_," they mean by
this civilian a person who is under the civil, or Roman, or church
law; that is, they mean to say, although you marry a woman who is
a church member and under the jurisdiction of the bishop, etc.,
nevertheless the church law won't help you; your children by her
cannot inherit by the _law_, and the law as used by Beaumont and
Fletcher and as used by me and as used in English books means the
_common_ law, the common _secular_ law, the law of _England_, not the
civil or canon law.[1] Beaumont and Fletcher evidently thought it was
a very illiberal statute; and our modern American States have all come
to Beaumont and Fletcher's conclusion; they have universally reversed
the old English statute and gone back to the church law, so that
throughout the United States to-day a child born before the marriage
of its parents is legitimate if its parents afterward marry. That is
true, no matter how late it is; if the man marries her even on his
death-bed, all his children are legitimized.

[Footnote 1: "And so all the earls and barons answered with one voice,
that they would not change the laws of England."]

In the same Statute of Merton there is a sentence against usury, "no
usury permitted against minors"; and there are two things to note
here. One is, that the secular legislature is also taking jurisdiction
of minors, who were claimed at that time to be solely under the
jurisdiction of the church; and the other is the reference to usury.
Mind you, usury is interest. It didn't mean excessive interest, as
it does now. As you probably know, the notion prevailed in the early
Middle Ages that all usury--interest--was a sin and wrong; and even
Ruskin has chapter after chapter arguing that principle, that it is
wrong to take interest for money. I should perhaps add another reason
why interest was so disliked in early England: There was very little
money in early England; and it mostly belonged to the Jews. It was
a good deal as it is in Russia to-day; the Jews were persecuted in
Russia as in early England, because, in the country districts of
Russia, the Jews have all the money, and money-lenders are always
unpopular. So in early England. The great barons had their land and
their cattle and crops, but they had little money. When they wanted
money they got the value of it out of their tenants. Nobody carried
large sums of money around with him then, any more than a woman does
to-day--she relies on her husband or father; they went to the nearest
Jew. When the king wanted cash, he also extorted it from the Jews. One
of the early Henrys said seriously, that he regarded the Jews as a
very convenient sponge! That is, they sucked all the money in the
kingdom and got it into a place whence he could easily get it out. But
it made the Jews very unpopular with the masses of the people and with
the Parliament; hence, their great dislike of usury. I doubt very much
if they would have cared much about usury if one gentleman had been in
the habit of loaning money to another; but all the money came from the
Jews, who were very unpopular; and the statutes against usury were
really made against them, and that is why it was so easy to pass
them--they based it, doubtless, on the references to usury in the
Bible. Thus they got the notion that it was wrong to charge interest,
or at least extortionate interest; more than a certain definite per
cent.; and this is the origin of all our interest and usury statutes
to-day. Although most economists will tell you that it is ridiculous
to have any limit on the rate of interest, that the loan of money
may well be worth only four per cent. to one man and twenty-five to
another, and that the best way for everybody would be to leave it
alone; nevertheless, nearly all our States have usury laws. We shall
discuss that later; but here is the first statute on the subject, and
it really arose because of the feeling against the Jews. To show how
strong that prejudice was, there was another statute passed in the
interest of liberality to protect the Jews--a statute which provided
liberally that you must not take from a Jew "more than one-half his
substance." And a very early commentator tells us of a Jew who fell
into a privy on a Friday, but refused to be helped out on Saturday
because it was his Sunday; and on Sunday he besought the Earl of
Gloucester to pull him out, but the Earl of Gloucester refused because
it was his Sunday; so the Jew remained there until Monday morning,
when he was found dead. There is no prejudice against Hebrews to-day
anywhere in Europe stronger than existed even in England for the first
three or four centuries after the Norman Conquest; and had it not been
for the protection given them by the crown, probably they would have
been exterminated or starved out, and in 1289 they were all banished
to the number of 16,160, and their movables seized.

In 1264 citizens of towns were first represented in the Parliament (in
the Great Council, that is, for the word parliament is not yet used),
originally only composed of the great barons, who were the only
land-owners. The notion of there being freemen in towns was slowly
established, but it was fully recognized by 1264, and in that year
citizens of towns first appeared in the Council. To-day, under the
various Reform Acts, tenants or even lodgers in towns are just as much
represented as the land-owners; but the reform which began in 1264
took six hundred years to be thoroughly established.

And now we find the first statutory origin of that utterly fallacious
principle--although alive to-day--that the state, in a free country,
a legislature-governed country, has the right, when expedient, to fix
the _price_ of anything, wages or other commodities; fallacious, I
say, except possibly as to the charges of corporations, which are
given special privileges by the government; the principle, which
prevailed throughout the Middle Ages, of fixing the prices of all
things. In this case the price was on bread; but you find now for many
centuries an attempt to fix the price of almost everything; and of
labor, too, what wages a man should be paid. It lasted persistently
for centuries and centuries, and it was only under the influence of
modern political economy, Adam Smith and other quite modern writers,
that the principle that it was possible to fix prices of commodities
was utterly eradicated from the English mind. And you hardly got it
out of England before it reappeared in the United States. It is not
a new-fangled principle. You find the newspapers commonly talk about
fixing prices by law as if it were something utterly unheard of and
utterly new. It is not so. It Is on the contrary as old as almost any
legislation we have, and you can make no argument against it on that
ground. It has always been the custom of our ancestors to regulate
the prices of wages by law, and the notion that it was either
unconstitutional or inexpedient dates from a very few years back; yet
all such attempts at legislation have utterly disappeared from any
modern statute-book. In no State of our forty-six States is any one so
unintelligent, even in introducing bills in the legislature, as to-day
to propose that the price of a ton of coal or a loaf of bread shall
be so much. Nor is any modern legislature so unintelligent or so
oppressive as to propose sumptuary laws; that is, to prescribe how
expensively a man or woman must dress; but in the mediaeval times
those were thought very important. Every class in England was then
required by law to have exactly so many coats, to spend so much money
on their dress, so much on their wives' dress, and certain men could
have fine cloth and others coarse cloth; everything was graded, even
to the number of buttons on clothes, and they went so far even as to
try in some early legislation to say what men should have to eat; the
number of courses a man should have for his dinner were prescribed by
law at one time in England, varying according to the man's rank. All
such legislation has absolutely vanished and probably no one need know
that it existed--but that when efforts are made, as they sometimes
are, by our more or less uneducated members of legislatures to
introduce bills of such a kind, it is very important for us to know
that those experiments have been tried and have failed, having proved
to be either impracticable or oppressive or not for the general
benefit. This is the importance of these early laws, even when
obsolete; because we never know when some agitator may not pop up
with some new proposal--something he thinks new--which he thinks, if
adopted, will revolutionize society. If you can show him that his
new discovery is not only not new, but was tried, and tried in vain,
during two or three centuries in the life of our own ancestors, until
an enraged public abolished it, it will destroy any effect that he is
likely to make upon the average legislature.

The first general example of an English law fixing the price of a
commodity is in 1266, the Assize of Bread and Beer. That fixed the
price of bread according to the cost of wheat, a sliding scale, in
other words; when a bushel of wheat cost so much, a loaf weighing a
certain amount must cost so much, etc. But you must not confound that
with the modern law that still exists in England, and in some States
and cities here, merely regulating the _size_ of a loaf. That is
perfectly proper, reasonable legislation, done merely for the purpose
of protecting the public and preventing fraud. In England, for
instance, there is a certain standard loaf known as a quartern loaf,
and in order to prevent poor people being cheated it is prescribed
by city ordinance that the quartern loaf shall weigh so much, shall
contain so many ounces of flour. We do have similar laws saying how
much a bushel of potatoes shall weigh, how much a barrel of flour
shall weigh. That isn't fixing the price; it is only fixing a uniform
size so that the public may not be cheated in its dealings, and one
must not take such a law as justifying the fixing of prices.

In the year 1266 I find the first statute in the French language,
Norman French; before that they were all in Latin; and they lasted in
French for some four or five hundred years, and then they were put in
English. The Statute of Marlborough, 1267, is a very important one
historically, but it does not concern us, because it mainly had to
do with the ownership of land, the tenure of land in England, an
extremely important subject, but one that is obsolete here. Then we
have something about the trial of clerks for murder. Of course the
word clerk there means not what we mean by a clerk, but a person who
could read and write; and nothing more than that. It originally meant
persons in holy orders, who were called clerks (clerics), but there
got to be clerks who were not in holy orders. Originally only priests
could read and write. No one else knew how, except possibly great
personages like kings, and consequently it was the same thing whether,
when you said a clerk, you meant a person who could read and write or
a priest. But when there got to be people who could read and write and
who were not priests, it became an important distinction. There was
a privilege in England known as the "benefit of the clergy"; if any
clerk was tried for a criminal offence, no matter what, all he had to
do was to state that he was a priest and he was at once set free. In
other words, he could not be punished. That doesn't concern us; but, I
suppose, it resulted from the old notion that all priests were subject
only to Rome, and to the church courts, and not to the civil law
courts; and consequently when a priest was attempted to be tried in a
civil law court, it was a way of doing what we should call "pleading
to the jurisdiction" of the court. Later, as time went on, in England
it was greatly abused, especially when there got to be clerks who
were not priests. When it meant anybody who could read and write, and
anybody who had committed a murder had only to say, "I can read and
write," and be set free, it led to an extraordinary state of things.
So, from time to time, they modified the benefit of the clergy, until
ultimately it was abolished entirely; first by not allowing it in high
offences like murder; then by imposing certain slight punishment--they
were "burned in the hand"; then by applying it only to the first
offence, and so on, until they got rid of it entirely; and this
Statute of Marlborough is simply one of the first of that long chain
of statutes which finally did away with it and prevented people from
getting rid of a criminal prosecution merely because they knew how to
read and write or were priests.

In 1275 I note the first use of the word parliament. I have used it
from the beginning, but it is important to remember that the thing
was not _called_ parliament until 1275. Before that it was called
the Great Council or the King's Council, and in Saxon times the
Witenagemot.

Then we come down to the Statute of Westminster I. That is considered
a great landmark in statutory legislation mainly because it is the
first attempt to establish a code, or, at least, a large collection of
the laws of England. It is an attempt to put what they supposed to be
a good part of them into writing. We have no codes in this country,
as a rule; nor to-day in England; the ordinary Anglo-Saxon does
not believe in codes. It is the French and Germans who have codes.
Nevertheless, you often find collections of statutes. It is important
not to confound these things with codes, because they never pretend to
be complete. Many States in this country never make revision of the
statutes. Nevertheless, every ten or twenty years they will print a
collection of the statutes arranged alphabetically. In some States, as
in Massachusetts, those collections are official; but in other
States they are simply matters of private enterprise. They are of no
authority, and if they are wrong it is no protection to you. You are
bound to know the laws. These early so-called codes, especially this
code of Edward I, although it caused him to be called the English
Justinian, because it was the first attempt of putting any large
body of the Anglo-Saxon laws in writing at all, are still not at all
_codes_ in the technical sense. This one was merely a collection of a
certain number of laws reduced to writing and re-enacted by Edward I.
We note here the phrase "common right shall be done to rich and poor,"
rather an interesting landmark; it shows what progress was being made
by the people in establishing their rights as freemen and to equal
laws. For the laws of Norman England mainly applied to land-owners,
and were made by the barons, the only people that had property; there
was but a small class in those early days between the land-owners and
actual serfs, villeins, who were practically attached to the soil,
in a condition almost of servitude; they did service, were not paid
wages, and couldn't leave the place where they were born--and both
these are tests of slavery. But in the first two centuries after the
Conquest the number of freemen very rapidly increased; men who were
not property owners, not land-owners, but still freemen. Especially
it increased in the towns, for the towns very early established their
right to be free, far earlier than the country. It was very early
established that the citizens of any town, that is, the members of
the guild of the town, duly admitted to the guild, were freemen, and
probably before this statute. But this is interesting as a recognition
of the fact that there were free poor people--people without property,
who nevertheless were neither villeins nor serfs--and that they were
entitled to equality before the law, just as we are to-day, as early
as 1275. Otherwise, the Statute of Westminster concerns mainly the
criminal law. There is one very important provision--because it has
been historically followed from then down to now--that there shall
be no disturbance of the elections. Elections shall be free and
unimpeded, uncontrolled by any power, either by the crown, or
Parliament, or any trespasser. That has been a great principle of
English freedom ever since, and passed into our unwritten constitution
over here, and of course has been re-enacted in many of our laws. That
is the feeling which lay behind those statutes which we enacted after
our slaves were freed, for the making of elections free in the
South; for protecting negroes in the act of voting and preventing
interference with them by the Ku Klux Klan. The Democratic party
strongly objected and objects still to such legislation on the part of
the government, on the ground that the right of regulating elections
belongs to the States and not to the Federal government; which,
constitutionally speaking, before the Fifteenth Amendment at least,
was true. They do not, of course, deny this great old English
principle that elections must be free and must not be intimidated or
controlled by anybody; but, they say, we left the machinery of the
elections in the hands of the States when we adopted the Federal
Constitution; and although at our State elections some of the officers
elected are Federal officers--as, for instance, the President of the
United States, or rather the presidential electors, and members of
Congress--nevertheless, when we adopted the Federal Constitution, the
founders chose to rely for the machinery of a fair and free election
upon the officers of States; so that the Federal government has
nothing to do with it, and has no business to send Federal troops to
the South; and they called such bills the "force" bill. In theory, of
course, those elections were controlled in these bills just as much in
the North as in the South; but there being practically no complaint in
the North that the negroes were not allowed to vote, as a matter of
fact the strength of the Federal government was only invoked in the
Southern States.

"Fines are to be reasonable." You find that principle in all our
constitutions to-day in the clause that there shall be no cruel or
unusual punishments, and that fines shall be proportionate to the
offence; this principle is expressed also in Magna Charta.

Then slander and rape were made criminal at common law; before this
only the church took jurisdiction. Slander Is the imputing of crime to
a person by speech, by word of mouth. If it be a written imputation,
it is libel and not slander. Then in this statute also we find the
first import tax upon wool. The constitutionality of revenue taxes,
duties, or taxes on imports, was once disputed by our parties; one
party denying the constitutional right to impose any tax upon imports
except for the strict purpose of raising necessary revenue; the
argument being perfectly logical and based upon the constitutional
principle we already have had that all taxation must be for the common
benefit. Democrats argued that if a tax upon imports was imposed to
raise the necessary revenue, that is for the common benefit; but if it
was imposed, as it avowedly is imposed in Republican legislation, for
the purpose of benefiting certain industries or classes, why that,
of course, is not for the common or general benefit and therefore
unconstitutional. The trouble with this position is that early English
laws were prohibitive of imports--that is, they were imposed for
prohibition _before_ they allowed importation on payment of duties.
This Statute of Westminster is a landmark, as showing how slow the
Commons were in even allowing taxation upon imports at all. They
earlier allowed the ordinary direct taxes. All that the Norman kings
got they got with the consent of Parliament, direct taxes, for the
common benefit; but they struggled for two centuries before they got
the permission of Parliament to impose duties, taxes upon imports;
here first they finally got it on wool, the thing produced of most
value of anything in England; and consequently an important protective
duty. It is a curious historical fact that this article, wool, seems
to be the chief bone of contention ever since; in our tariffs nothing
has been more bitter than the dispute on wool; the duty on wool is the
shibboleth of the extreme protectionist.[1] Ohio, which is the home
of the strong protection feeling, regards the duty on wool as the
corner-stone to the whole fabric. It is argued that "a cheap coat
makes a cheap man." In the East the feeling is that the duty on wool
makes clothing poor and shoddy, and the prices excessively high for
the poor. It is odd to find that the very first thing that did make
trouble was the duty on wool, and it is still making the same trouble
to-day.

[Footnote 1: The "ancient" customs were on wool, woolfels and leather;
all other were "evil" customs. Holt, afterward C.J., in "The Great
Case of Monopolies."]

There is another interesting clause in this statute; I don't know
whether in this country so much as there, but it is in England the
almost universal custom of ships to have a dog or cat on board. You
never will find a coasting vessel without a dog or cat, usually both;
and I believe it is for this strange historical reason, as shown in
this Statute of Westminster I: In those days all wrecks belonged to
the king. (Pretty much everything, in fact, did belong to the king,
except the land that was held by book or charter, or such personal
property as a man had in his own house--all mines, all franchises, all
monopolies, even all whales and sturgeons that were thrown up on the
beach--the head to the king and the tail to the queen.) So all wrecks
belonged to the king. The result was, that whenever any vessel went
ashore the king's officers seized it; and naturally the owner of the
vessel didn't like that, because it very often happened that the
vessel was perfectly good and could be easily repaired and the cargo
saved. It is still a great principle in marine law that if one-half of
the cargo is good, the man who owns the vessel cannot surrender and
claim from the insurance company as a total loss; it is important
still how much of a wreck a wreck is. But in those days the king, even
if the vessel was stranded and could be raised, would seize it on
the plea it was a wreck. The man who owned the ship would say she is
perfectly seaworthy; and then would come the dispute as to what a
wreck was. Or even when the vessel was destroyed, a great part of the
cargo might be saved, and the owner of the vessel thought it very
unjust that the king should claim it all. So the Parliament of England
established as part of the liberties of the English merchant or trader
that he should still have a property in his wreck; and then the
question came up as to what was a wreck. It was generally admitted
that when all hands were lost, that was a wreck; but they wanted to
get as narrow a definition as they could, so they got Parliament to
establish this law, that in future nothing shall be considered a wreck
out of which a cat or a dog escapes alive; and from that time until
the present day no vessel coasts about England without carrying a cat
or dog.

But the great achievements of legislation up to 1300 remain the
re-establishment of English law, as shown in the great charters of
John, Henry III, and the confirmation of Edward I. And Magna Charta
had to be read once a year (like our Declaration of Independence),
and for breach of it a king might be excommunicated; and Henry III
himself, according to Cobbet, feared that the Archbishop of Canterbury
was about to do so.




IV

EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS


(1275) Far the most important phrase to us found in the Statute of
Westminster I, save perhaps that common right should be done to rich
and poor, is to be found in this sentence: "Excessive toll, contrary
to the common custom of the realm," is forbidden. The statute applies
only to market towns, but the principle established there would
naturally go elsewhere, and indeed most towns where there was any
trade were, in those days, market towns. Every word is noticeable:
"Excessive toll"--extortion in rates. As this statute passed into the
common law of England and hence our own, it has probably always been
law in America except, possibly, in those few States which expressly
repealed the whole common law[1] and those where civil law
prevailed.[2] It was therefore equally unnecessary to adopt new
statutes providing against extortion or discrimination, for the last
part of the phrase "contrary to the common custom of the realm" means
discrimination. But this is one of the numerous cases where our
legislatures, if not our bar and bench, erred through simple
historical ignorance. They had forgotten this law, or, more
charitably, they may have thought it necessary to remind the people of
it. There has been a recent agitation in this country with the object
of compelling great public-service companies, such as electric
lighting or gas companies, to make the same rates to consumers, large
or small. This also was very possibly the common law, and required no
new statutes; there are cases reported as far back as the fourteenth
and fifteenth centuries where, for instance, a ferryman was punished
for charging less for the ferriage of a large drove of sheep or cattle
than for a smaller number, "contrary to the common custom of the
realm." Nine years before this statute is the Assize of Bread and
Beer, attempting to fix the price of bread according to the cost
of wheat, but notable to us as containing both the first pure-food
statute and the first statute against "forestalling."

[Footnote 1: Florida, Texas, and the old Territory of Dakota.]

[Footnote 2: Louisiana, New Mexico, and Arizona.]

Now forestalling, regrating, and engrossing are the early English
phrases for most of the unlawful or unmoral actions which we ascribe
to the modern trust. In fact, there is hardly one legal injury which
a trust is said to commit in these days which cannot be ranked under
those three heads, or that of monopoly or that of restraint of trade.

"Forestalling" is the buying up provisions on the way to a market with
intent to sell at a higher price; and the doctrine applied primarily
to provisions, that is to say, necessaries of life. Precisely the same
thing exists to-day, only we term it the buying of futures, or the
attempt to create a corner. We shall find that the buying of futures,
that is to say, of crops not yet grown or outputs not yet created,
is still obnoxious to many of our legislatures to-day, and has been
forbidden, or made criminal, in many States. "Regrating" is defined
in some of the early dictionaries as speculating in provisions; the
offence of buying provisions at a market for the purpose of reselling
them within four miles of the place. The careful regulation of markets
and market towns that existed in early times in England would not
suffer some rich capitalist to go in and buy all that was offered for
sale with intent of selling it to the same neighborhood at a higher
price. Bishop Hatto of the Rhine, you may remember, paid with his life
for this offence. The prejudice against this sort of thing has by no
means ended to-day. We have legislation against speculation in theatre
tickets, as well as in cotton or grain. "Engrossing" is really the
result of a successful forestalling, with or without regrating; that
is to say, it is a complete "corner of the market"; from it our word
"grocer" is derived. Such corners, if completely successful, would
have the public at their mercy; luckily they rarely are; the
difficulty, in fact, begins when you begin to regrate. But in
artificial commodities it is easier; so in the Northern Pacific
corner, a nearly perfect engrossing; the shares of stock went to a
thousand dollars, and might have gone higher but for the voluntary
interference of great financiers. Leiter's Chicago corner in wheat,
Sully's corner in cotton, were almost perfect examples of engrossing,
but failed when the regrating began. All these tend to monopoly, and
act, of course, in restraint of trade; the broader meanings of these
two latter more important principles we leave for later discussion.

(1285) The Statute of Bakers, or Assize of Bread and Ale, is by some
assigned to the 13th of Edward I. If so, we find all these great
modern questions treated by statute in the reign of the same
great law-making king, Edward I, who well was called the "English
Justinian"; for, in 1305, twenty years later, we have the first
Statute of Conspiracy. This statute only applies to the maintaining
of lawsuits; but the Statute of Laborers of 1360 declares void _all_
alliances and covins between masons, carpenters, and guilds, chapters
and ordinances; and from this time on the statutes recognize the
English common law of conspiracy in general words.

As this is one of the most important doctrines of the English law, and
moreover one which is most criticised to-day by large interests, both
of capital and labor, it will be wise to dwell upon its historical and
logical origin in this place, though we shall consider it at length
later as it touches various fields of legislation. It is notable for
two most important principles: first, that it recognizes the great
menace of combined action, and both forbids and punishes combinations
to do an act which might be lawful for the individual; second, of all
branches of civil, as distinct from criminal, law, it is the one which
most largely recognizes intent; that is to say, the ethical purposes
of the combination. It has been urged in some judicial opinions that
in matters of boycotts, strikes, etc., the law cannot go into the
motive; this argument obviously proves too much, for it is no more
easy to examine motives in the criminal law, and this is done all
the time. A homicide, for instance, will vary in all degrees between
justifiable guilt or manslaughter up to murder in the first degree,
according to the motive which prompted the act. It is really no more
difficult, and the reported cases do not show it to be any more
difficult, to consider the motive behind a combination of men or the
motive inspiring a series of related acts. The real trouble comes only
in the Federal anti-trust act, because the machinery of this clumsy
statute, a bill in equity, imposes upon judges the duty of finding the
facts.

This doctrine of conspiracy is so old in England that I am unable to
trace it to its source. From the wording of repeated early statutes
it would seem that they recognized this law of conspiracy as already
existing and merely applied it to new forms, such as, for instance,
the combination of masons, carpenters, and guilds, just mentioned. It
is, perhaps, not to us important whether it is originally based on
common law or these early statutes, for these statutes are quite early
enough to have passed into the common law of England, and consequently
into the common law in this country. Moreover, early statutes merely
express the common law; therein lies their significance. Now, many
State laws and constitutions, as well as most State courts, recognize
that the common-law statutes of England existing at least before 1775,
if not 1620,[1] are common law in the States of this Union. In a
general way, any statute that antedates the time of our settlement we
took over as part of our common law.

[Footnote 1: 1607 (Virginia, West Virginia, Illinois, Indiana,
Missouri, Arkansas, Colorado, Wyoming); 1776 (Florida, Maryland, Rhode
Island, Pennsylvania). None, however, are law in New York.]

We are now coming also to that great range of statutes, which, on the
one hand, control labor and regulate the rights of the laborer, both
in his prices and in his hours; and, on the other, those statutes
relating to what we call "trusts," conspiracy, and trades-unions,
which have made common-law principles which are to-day, all of them,
invoked by our courts; and form the precedents of practically all
our modern legislation on matters affecting labor, labor disputes,
injunctions, strikes, boycotts, blacklists, restraint of trade, and
trusts--in fact, the largest field of discussion now before the mind
of the American people. The subjects are more or less connected. That
is, you have the growth of legislation as to laborers on the one
hand, and on the other you have the growth of this legislation as to
combinations or conspiracies, trades-unions, guilds, etc.

(1304) Now let us begin at that first statute of conspiracy, and find
what the definition of a conspiracy is; because it is a very important
question to-day, whether we are going to stick to the old common-law
idea or not. The very title of this statute is "A definition of
conspirators," and it begins: "Conspirators be they that do confeder
or bind themselves together by oath, covenant or other alliance"
either to indict or maintain lawsuits; "and such as retain men in
the Countrie with Liveries or Fees for to maintain their malicious
Enterprises, and this extends as well to the Takers as to the Givers."
And as it gradually assumed shape and got definite and broad, the
idea, we will say, by 1765, when Blackstone wrote, was this: _A
conspiracy is a combination by two or more men, persons or companies,
to bring about, either an unlawful result by means lawful or unlawful,
or a lawful result by unlawful means._ Now so far the definition is
admitted. Everybody agrees, both the labor leaders and the courts,
on that definition--that when two or more people combine together
to effect an _unlawful_ object, it is a conspiracy; which is both a
criminal offence under the laws of the land everywhere, and also gives
the party injured a right to damages, that is, what we call a civil
suit; and furthermore no _act_ is necessary. There is no doubt about
that part of the definition. Or where they combine to get a lawful
end by unlawful means, as, for instance, when laborers combine to get
their employer to raise their wages by the process of knocking on the
head all men that come to take their places, that is gaining a lawful
end by unlawful means, by intimidation--and is a conspiracy. But now
the whole doctrine in discussion comes in: If you have a combination
to bring about by _lawful_ means the _injury_ of a third person in his
lawful rights--not amounting to crime--is that an unlawful conspiracy?
Yes--for it is a "malicious enterprise." So is our law, and the common
law of England, yes. And you can easily see the common-sense of it.
The danger to any individual is so tremendous if he is to be conspired
against by thousands, hundreds of thousands, not by one neighbor, but
by all the people of the town, that it early got established as a
principle of the common law, and of these early English statutes,
that, although one man alone might do an act which, otherwise lawful,
was to the injury of a third person, and be neither restrained nor
punished for it, he could not _combine with others_ for that purpose
by the very same acts. For instance, I don't like the butcher with
whom I have been doing business; I take away my trade. That, of
course, I have a perfect right to do. But going a step farther, I
tell my friends I don't like Smith and don't want to trade with
him--probably I have a right to do that; but when I get every citizen
of that town together at a meeting and say: "Let us all agree to
ruin Smith, we will none of us trade with him"--Smith is bound to
be ruined. The common law early recognized this importance of the
principle of combination, and therefore it was part of the English
common law and is still, barring one recent statute, that a
combination to injure a person, although by an act which if done
by one individual would be lawful, is nevertheless an unlawful
combination; that is, a _conspiracy_ under the law; for all
"conspiracies" are unlawful, under the law; the meaning of the word
_conspiracy_ in the law is, not an innocent combination, but a guilty
one, and anything which is a _conspiracy_ at law can be punished
criminally, or will give rise to civil suits for damages by the
parties injured, or usually entitle one to the protection of an
injunction. A conspiracy, therefore, is not only a guilty combination,
of two or more persons, for an unlawful end by any means, or for a
lawful end by unlawful means, but also one for an immoral end, a
malicious end, as, let us say, the ruin of a third person, or the
injury of the public. All the dispute about the law of conspiracy and
the statutes and what laborers can do and what employers can do to-day
really hinges about that last clause. The labor leaders, the radicals,
want to say that nothing shall be a conspiracy where the end is
not unlawful and where the acts done are such as, if done by an
individual, would not be wrong. In other words, they want statutes
to provide that nothing is a conspiracy where the acts done are
in themselves lawful if done by one individual. But this English
conspiracy law was of the most immense sociological value, in that it
did recognize the tremendous power of _combination_. It said, although
you don't have to trade with Smith alone, yet a combination of a
great many individuals for the purpose of ruining Smith, by all
simultaneously refusing to trade with him, is such a tremendous injury
to Smith that the law will take cognizance of it and hold that kind of
a combination to be unlawful.

This definition should be further extended, perhaps, to remind you
that the courts hold that there are certain kinds of combinations,
contemplating ends which will necessarily result in the use of
unlawful means; the most familiar example is picketing. The courts
mostly hold that although in theory a labor union can march up and
down the highway and peacefully advise non-union men or other laborers
not to take their jobs, in practice such action usually, if not
necessarily, goes to the point of intimidation; and intimidation is
nearly always made unlawful by statute. Now I should only add that
it is very important to remember--and even the courts do not always
remember it--that the thing being punished as a conspiracy is not the
end, but the combining; the conspiracy itself is the criminal act.
Suppose in Pennsylvania one thousand men meet and say: "John Smith
has taken a job and is a scab, and we will go around and maul him
to-night," and they do, or they don't; if they are tried, the fact
whether they did maul him or not has nothing to do with the matter
of the conspiracy. They might, of course, be tried for assault and
battery, or for an attempt to commit murder; but if they are being
tried for the _conspiracy_ the criminal act is the combining and
meeting, not what they do afterward. Therefore it is of no importance
whatever what the result of the matter is. The thing that is criminal
is the combining; and this leads to a very curious consequence:
All conspiracies are criminal; but the object aimed at may be very
slightly so. So that it is perfectly possible to have a conspiracy
which shall result to its members in five or ten years in the
state-prison, whereas the object itself, the act aimed at, may have
been comparatively slight, a mere misdemeanor. Take the case of mere
intimidation without assault or battery; one man goes to another
and says: "If you take that work I shall smash your head," that is
intimidation. Thirty of our States have made that unlawful, but it is
only a misdemeanor. But if one thousand men get together and say:
"We will go around to tell him we will smash his head," that is
conspiracy; and conspiracy may subject them to penalty of years in
prison. It has been found in the experience of the English people to
be such a dangerous power, this power of combination, that to use it
for an unlawful or wrongful end may be more of an offence than the end
itself.

A combination to injure a man's trade is, therefore, an unlawful
conspiracy; well shown in a recent Ohio case where a combination of
several persons to draw their money out of a bank simultaneously for
the purpose of making it fail, was held criminal. It gives a claim
for damages in a civil suit and may be enjoined against. But is it
necessarily criminal? It is possible that the offence to the public is
so slight that the criminal courts would hardly take cognizance of it
in minor cases where there is not some statute expressly providing for
a criminal remedy. The Sherman Act, our Anti-trust Act, does so where
even two persons conspire together to restrain interstate commerce. It
is a crime at common law, however slight, for even two to combine to
injure any person's trade. But, independent of statutes, suppose only
two persons agree not to buy of a certain butcher in Cambridge: in
theory, he might have a civil remedy; but it may be doubted that it
would amount to a criminal offence. _Lex non curat de minimis_. So,
it is an offence under most State anti-trust laws, as it was at the
common law, to fix the price of an article--that is restraint of
trade--or to limit the output. Two grocers going to the city in the
morning train agree that they will charge seven dollars a barrel for
flour during the ensuing week; two icemen, to harvest only a thousand
tons of ice. The contract between them could not be enforced; it is
undoubtedly unlawful; but it would hardly be a criminal offence at the
common law. There is, at least at the common law, some middle ground
between those contracts which are merely unenforceable, and those
which subject the co-makers to a criminal liability; although under
the cast-iron wording of a statute it may be that no such distinction
can be made.

Independent of combination, there is probably no legal wrong in merely
wishing ill to a man, withdrawing one's custom from him, competing
with him, or even, possibly, in injuring his trade. There is an
ancient case where the captain of an English ship engaged in a certain
trade, to wit, the slave trade, arrived off a beach on the coast
of Africa and was collecting his living cargo, when a second ship,
arriving too late to get a load itself, fired a cannon over the heads
of the negroes, and they, with the chief who was selling them, fled
in terror to the forest. The captain of the first ship went back to
London and brought suit against the captain of the second ship for
injuring his trade and was allowed to recover damages; but it may
be doubted if that is good law; although in 1909 a Minnesota court
decided that a barber could sue an enemy if he maintained an
opposition barbershop solely for the purpose of injuring his business;
and a few years ago in Louisiana a street railway foreman was held
liable in damages for instructing his men not to frequent the
plaintiff's store.[1] I say to you: "Do not trade with Smith, he is
not a good person to deal with," or, "Do not take employment with
him, he will treat you cruelly"; and in either case, unless I can
be convicted of slander, he has no remedy against me if I am acting
alone.

[Footnote 1: Tarleton _v_. McGawley, Peak, N.P.C. 270; Tuttle _v_.
Buck, 110 N.W. 946; Graham _v_. St. Charles St. Ry. Co., 47 La. Ann.
214.]

Now, this great law of conspiracy applies equally and always to
combinations of capital or of employers, to trusts, contracts in
restraint of trade and blacklists, as well as to unlawful labor
combinations, unlawful union rules, and boycotts. The statutes
directed against both originated about the same time and have run
historically on all-fours together. The old offences of forestalling
and regrating may have been lost sight of, and possibly the statutes
against them fallen into disuse, although they were expressly made
perpetual by the 13th Elizabeth in 1570 and not repealed until the
12th George III in 1772; but the principle invalidating restraint of
trade and contracts in restraint of trade remained as alive as that
prohibiting unlawful combinations of labor. The latter, indeed, has
largely disappeared. Both strikes and trades-unions, once thought
unlawful in England, are made lawful now by statute, but a contract
in restraint of trade or a monopolistic combination of capital is as
unlawful as it ever was both in England and in this country; and the
common law is only re-enforced by our State statutes and applied to
matters of interstate commerce as well, by the Sherman Act. Closely
connected with both is the principle of reasonable rates in the
exercise of franchises; excessive toll contrary to common custom, as
we found forbidden in 1275. The first statute against forestalling
merely inflicts a punishment on forestallers and dates ten years
later, 1285, though the time of this, the Statute concerning Bakers,
is put by some still earlier, with the Assize of Bread and Beer, in
1266. It provides the standard weight and price of bread, ale, and
wine, the toll of a mill. It anticipates our pure-food laws and
punishes butchers for selling unwholesome flesh or adulterating
oatmeal, and says "that no Forestaller be suffered to dwell in
any Town, which is an open Oppressor of Poor People ... which for
Greediness of his private Gain doth prevent others in buying Grain,
Fish, Herring, or any other Thing to be sold coming by land or Water,
oppressing the Poor, and deceiving the Rich, which carrieth away such
Things, intending to sell them more dear,... and an whole Town or a
Country is deceived by such Craft and Subtilty," and the punishment is
put at a fine at the first offence with the loss of the thing bought,
the pillory for the second offence, fine and imprisonment for the
third, and the fourth time banishment from the town.

The first definition of forestalling is here given. Our modern
equivalent is the buying of futures or dealing in stocks without
intent to deliver, both of which have been forbidden or made criminal
in many of our States. And forestalling, regrating, and engrossing
were things early recognized as criminal in England, and these
statutes embody much of what is sound in the present legislation
against trusts.

Forestalling was very apt to be done in a _staple_, that is, in the
town which was specially devoted to that article of trade; so that
the laws of forestalling got very much mixed up with the laws of the
staple; but forestalling would equally mean going into any market and
buying up all the production. If the article was produced abroad, the
forestaller would try to buy up the entire importation.

(1352) We now find another statute; it applies to wines and liquors
"and all other wares that come to the good towns of England," and the
penalty imposed by that law was that the forestaller must forfeit the
surplus over cost to the crown and be imprisoned two years. We are
still enforcing remedies of that kind in our anti-trust laws, only
instead of having him forfeit the surplus to the crown we usually have
him pay damages, sometimes treble damages to the persons injured. In
the Beef Trust case, the parties were duly convicted, and instead of
being imprisoned, they were fined $25,000. In other words, we still
have not the courage to go to the length that our ancestors did in
enforcing the penalties of these unlawful combinations. Of course it
is a much more difficult thing to have forestalling and engrossing
laws against foreign importations than against home productions; and
so to-day we have not tried, except by a tariff, forestalling laws
against foreign importations, but we have attempted to apply them very
much as to home productions. In England, however, the statute at that
time said that a person who bought up all the foreign product must
forfeit all the profits to the state. Now this is nothing but the
"Iowa idea" of two years ago. It was suggested very urgently by
Governor Cummins that there should be a law providing that where a
trust got complete control of a certain industry in this country its
surplus profit should be forfeited either indirectly by the taking
off of the tariff, or by way of a franchise tax, that is, of a United
States tax upon its franchises, which could be increased in such a way
as to tax it out of existence if it persisted. The latter remedy is at
the root of President Taft's new corporation tax, but Congress has not
yet applied the former, although it was very seriously advocated that
there should be statutes which should indirectly forfeit the profits
of the trust that had secured a monopoly; that is an engrossing
trust--covin or alliance, as our ancestors would have called it--"a
gentleman's agreement"--and that it should be done by a reduction of
the tariff on the articles in which that trust dealt; this reduction
to be ordered by the president. When he determined that a trust had
completely engrossed an industry, he might say so by proclamation; and
then the act of Congress should go into effect and the duties upon
that product be abolished, all the protection of the trust taken away.
There is a trouble with such legislation, in that it may be said to
allow the president to make the law; and under our Constitution the
president cannot make laws. The legislative branch and the executive
branch of the government must be kept distinct; and it probably would
be argued by constitutional lawyers, and in this instance by either
party that was not in favor of such legislation, that to reduce the
duties of such a class of goods was a legislative act, and therefore
any such law would be unconstitutional because the president cannot
legislate. But the point I wish to make now in both these cases is the
exact correspondence of the problem; what are remedies to-day were
remedies five hundred years ago. So far we have found nothing new,
either in remedy or offence.

(1349) Now there is a third great line of legislation that we must
consider in connection with these other two, and that is the Statutes
of Labor. It was the custom in early times to attempt to regulate
prices; both of wages and commodities. The first Statute of Laborers
dates from 1349. Its history was economic. They had had a great plague
in England known as the Black Death; and it had carried off a vast
number of people, especially the laboring people. There was naturally
great demand for workers. Laborers were very scarce. It is estimated
that one-third of the entire population had died; and there has never
been a time when wages were so high relatively, that is, when wages
would buy so much for the workingman, as about the middle of the
fourteenth century. But the employers were no fonder of high wages
than they are to-day. All England was used to sumptuary laws, laws
regulating the price of commodities, and villeins still existed. They
were only just beginning to consider agricultural laborers as freemen;
they were used to the notion of exerting a control over laboring men,
who were still often appendant to the land on which they worked, for
it was unlawful for an agricultural laborer to change his abode; and
in many other ways they were under strict laws. So that it didn't
seem much of a step to say also, we will regulate the rate of
wages--particularly as the payment of wages in money was rather a new
thing. Probably two or three centuries before most wages were paid in
articles of food or in the use of the land. So they got this first
Statute of Laborers through; it required all persons able in body
under sixty to do labor to such persons as require labor or else be
committed to gaol. That, of course, is compulsory labor; the law would
therefore be unconstitutional with us to-day except in so far as it
applied, under a criminal statute, in regard to tramps or vagrants. In
some States we commit tramps and vagrants to gaol if they won't do a
certain amount of work for their lodging, under the theory that they
have committed a criminal act in being vagrants. Otherwise this
principle, a law requiring all persons to work, is now obsolete. Then
it went on to say, no workman or servant can depart from service
before the time agreed upon; lawful enough, to-day, although laborers
do not like to make a definite contract. The South, however, has
adopted this principle as to agricultural labor, just as in the
England of the fourteenth century. Southern States have an elaborate
system of legislation for the purpose of enforcing labor upon idle
negroes, which, when it creates a system of "peonage," is forbidden by
the Federal laws and Constitution. They are compelled, as in the old
English statute, to serve under contract or for a period of time, and
if they break it, are made liable by this statute to some fine or
penalty imposed by the nearest justice of the peace; and when they
cannot pay this, they may be Imprisoned. Finally, this Statute of
Laborers first states the principle that the old "wage and no more"
shall be given, thus establishing the notion that there was a legal
wage, which lasted in England for centuries and gave rise to the later
law under which strikes were held unlawful. Here, they meant such
wages as prevailed before the Black Death.

(1350) The next year the statute is made more elaborate, and
specifies, for common laborers, one penny a day; for mowers,
carpenters, masons, tilers, and thatchers, three pence, and so on. It
is curious that the relative scale is much the same as to-day: masons
a little more than tilers, tilers a little more than carpenters;
though unskilled labor was paid less in proportion. The same statute
attempts to protect the laborer by providing that victuals shall be
sold only at reasonable prices, which were apparently fixed by the
mayor.

Here, therefore, we have the much-discussed Standard Wage fixed by
law, but in the interest of the employer; not a "living wage" fixed
in the interest of the employee, as modern thought requires. The same
statute makes it unlawful to give to able-bodied beggars, which is of
a piece with the compulsory labor of the able-bodied. Now this first
Statute of Laborers, which led to centuries of English law unjust to
the laborers, it is interesting to note, was possibly never a valid
law, for it was never agreed to by the House of Commons. However that
may be, the confirming statute of 1364 was duly enacted by Parliament,
and this was not in terms repealed until the year 1869, although labor
leaders claim it to have been repealed by general words in the 5th
Elizabeth.

Thorold Rogers tells us that those, after all, were the happy days of
the laborer--when masons got four pence a day, and the Black Prince,
the head of the army, only got twenty shillings--sixty times as much.
This is a fair modern proportion, however, for military and other
state service; though we pay the president a salary of nearly double
that proportion to the yearly pay of a carpenter. But then, these
English statutes applied mainly to agricultural labor; and domestic
labor was paid considerably less.

This Statute of Laborers was again re-enacted in 1360, with a clause
allowing work in gross, and forbidding "alliances and covins between
masons, carpenters, and guilds." Work "in gross" means work by
contract, piece-work, thus made expressly lawful by statute in England
in 1360, but still objected to by many of our labor unions to-day.
The provision against alliances and covins was extended to cover
trades-unions, their rules and by-laws, as well as strikes, which were
also considered combinations in restraint of trade. Now this was never
law in this country.

There was a very early case in Pennsylvania, while it was still a
colony, and there were others in the States soon after, which held
that the Statutes of Laborers were never law in America. Our statutes
early authorized trades-unions, but without this there is, I think, no
American case where either a trades-union or a simple strike was held
to be an unlawful combination. It was these early statutes which gave
rise to the law that existed until the nineteenth century in England,
that both strikes and unions were unlawful; a strike because it was
usually a combination to raise the rate of wages, which was in theory
fixed by law. Therefore, a strike was a combination with an unlawful
aim, consequently a conspiracy. The logic is simple; and in the same
way a trades-union was certainly an alliance between skilled workmen,
and as such forbidden under the Statute of Laborers, besides being a
combination in restraint of trade.

Now the guild, in so far as it was a combination of a trade in a town,
was a perfectly lawful thing; in so far as it bore upon the right of a
man to be a freeman, it was a perfectly lawful thing; it was only from
the other end, from this statute I read as to combinations, that two
or three centuries later they got the notion that a trades-union was
an unlawful thing; so you may say that a trades-union in England has
a lawful root and an unlawful root, and it is rather important to see
from which each class springs. The first case in which the modern
strike was considered was a case known as the Journeymen Tailors'
case, which happened more than two hundred years ago; and in that case
it was definitely held to be an unlawful combination, while the first
case on the modern boycott, where an injunction was awarded, is as
late as 1868, this being the origin of that process which has evoked
so much criticism here, the use of the injunction in labor disputes.
The unskilled laborers in England have never combined; the only people
who combined were the guilds, the skilled men, and in so far as they
combined they did it rather as capitalists, employees, or as freemen,
to govern the town; this was a lawful object; and the guilds rapidly
grew into little aristocracies. They very soon ceased to be journeyman
laborers, and became combinations of employers. Thus, the guild
movement didn't amount to much in bringing about the modern
trades-union or combinations of laboring men; it began before it
occurred to these latter that they also could combine; just as,
even now, it is more difficult among _women_ to get them to join
trades-unions, or for working women to combine; they have not
apparently got into that stage of evolution; and so with the negroes
in the South. But about the end of the eighteenth century you begin to
find the first strikes and combinations of workingmen; and then what
the courts promptly applied to them was not the old line of statutes,
the historical common-law growth, deriving from a guild which in its
origin was a lawful body and so making the union free and lawful, but
naturally--for the magistrates were capitalists and land-owners, and
all the courts were in sympathy with that class--they went back to the
long series of Statutes of Laborers, and said "this is a combination
of workingmen to break the law by getting more than lawful wages,"
and consequently found both combinations unlawful, trades-unions and
strikes, as well as when they were combinations to injure somebody,
what we should now call a boycott.

The great Statute of Laborers which was for centuries supposed to
settle the law of England is that of Elizabeth in 1562. Meantime,
agricultural labor as well as industrial was getting to be free. A
statute of 1377, which requires villeins refusing to labor to be
committed to prison on complaint of the landlord, without bail, itself
recognizes that villeins fleeing to a town are made free after a year
and day's habitation therein. In 1383 came Wat Tyler's rising; the
villeins demanded a commutation of agricultural labor to a money rent
(four pence) and full freedom of trade and labor in all the market
towns; and about this time was great growth of small freeholders.

(1388) The Statute of Richard II restricts laborers to their hundred
and makes it compulsory for them to follow the same trade as their
father after the age of twelve. The wages of both industrial and
agricultural laborers are again fixed-shepherds, ten shillings a year;
ploughmen, seven; women laborers, six shillings, and so on. Servants
are permitted to carry bows and arrows, but not swords, and they may
not play tennis or foot-ball. And here is the historical origin of
the important custom of exacting recommendations: servants leaving
employment are required to carry a testimonial, and none are to
receive servants without such letter--the original of the blacklist.
Here, also, we find the beginning of poor-law legislation, those
unable to work are to be supported in the town where born. Villeinage,
which began at the Norman Conquest, according to Fitz-Herbert,
"because the Conqueror gave lordships with all the inhabitants to do
with them at their pleasure to his principal followers, and they,
needing servants, pardoned the inhabitants of their lives, and caused
them to do all manner of service"--was now abolished by compensation
in a money wage payment. The institution of villeinage is last
mentioned in a commission of Queen Elizabeth, 1574, directing Lord
Burleigh and others in certain counties to compound with all such
bondmen or bondwomen for their manumission and freedom.

(1389) The next year the practice of fixing wages at a permanent sum
is abandoned and they are to be fixed semi-annually at Easter and
Michaelmas by a justice of the peace. In 1402 we find the remarkable
provision that laborers are not to work on feast days nor for more
than half a day before a holiday. Such legislation would hardly be
necessary in modern England, where, in many trades, no one works for
a whole day after the holiday as well. In 1425 is another statute
forbidding masons to confederate themselves in chapters; and in 1427
the attempt to fix wages by law is again abandoned and they are to
be fixed by the justices as in 1389, "because Masters could not get
Servants without giving higher Wages than allowed by the Statute."

(1436) Now, perhaps, we find the first use of the expression
"restraint of trade," that most important phrase, in a statute
forbidding by-laws of guilds or corporate companies "in restraint of
trade," also forbidding unlawful ordinances by them as to the price
of their wares "_for their own profit and to the common, hurt of the
people_," and such by-laws are made penal and invalid except when
approved by the chancellor; and this statute of Henry VI is re-enacted
again in 1503 under Henry VII, where by-laws of guilds, etc.,
restraining suits at law are made unlawful, and so "_ordinances
against the common weal of the people_." The meaning and importance of
such legislation as this has been, I hope, made clear above. Note the
words "_to the common hurt of the people_" and "_against the common
weal of the people_." From this century, at least, therefore, dates
that doctrine of the common law which makes unlawful any contract or
combination in restraint of trade, and it was left for the succeeding
century to develop the last great principle, that against monopoly,
caused either by unlawful combination of individuals or grant by the
crown itself.

The right to labor or to trade was thus fully established in England,
and from the very earliest times we find statutes that merchants may
freely buy and sell. The Statute of York, to this effect (1335), is
re-enacted sixteen years later, and again under Richard II in 1391;
and their right to carry away one-half the value of their imports in
money, spending the other half in English commodities, in 1401.

This general right of trade may be defined as the right of any man
to work at what trade he chose, and to buy or sell what and where he
will, in the cheapest market. This right was indeed fundamental and
needed no express statute. But all these laws concerning by-laws or
combinations to prevent people from exercising their trade, or showing
what were the liberties of trade in London and other towns (of which
there are many) are exemplifications of it. That this law is far older
than the statutes is well shown by an actual law report of a case
decided in 1221 and first published by the Selden Society in 1877:

"The Abbot of Lilleshall complains that the bailiffs of Shrewsbury
do him many injuries against his liberty, and that they have caused
proclamation to be made in the town that none be so bold as to sell
any merchandise to the Abbot or his men upon pain of forfeiting ten
shillings, and that Richard Peche, the bedell of the said town, made
this proclamation by their orders. And the bailiffs defend all of it,
and Richard likewise defends all of it and that he never heard any
such proclamation made by anyone. It is considered that he do defend
himself twelve-handed (with eleven compurgators), and do come on
Saturday with his law."

This is a remarkable report, for in twelve lines (ten lines of the law
Latin) we have here set forth all the important principles of the law
of boycott. The abbot complains that the Shrewsbury people do him
many injuries "against his liberty," _i.e._, the abbot claims a
constitutional right to freely conduct his own business; then we have
the recognition of the threat of a boycott as a particularly illegal
act: "They have caused _proclamation_ to be made that none sell
merchandise to the abbot." This is nothing but our modern "unfair
list." The defendants admit the illegality of their conspiracy,
because they deny it as a fact; and the bedell likewise denies that he
ever made such proclamation or threat, whereupon (the plaintiff being
a man of the church) they are set to trial by wager of law instead of
by actual battle, neither party nor the court making any question of
the illegality both of the conspiracy and of the act complained of.

There is no question then that all contracts in unreasonable restraint
of trade were always unlawful in England and are so therefore by
our common law. There was probably no real necessity for any of our
anti-trust acts, except to impose penalties, or, as to the Federal or
Sherman Act so-called, to extend the principles of the common law to
interstate commerce, which is under the exclusive jurisdiction of the
Federal government. The common law, however, made the exception of
_reasonable_ restraint of trade, which the Sherman Act does not; that
is to say, a contract between two persons, one of whom sells his
business and good-will to the other and agrees not to embark in the
same trade for a certain number of years or in a certain prescribed
locality, was a reasonable restriction at the common law. So, if two
merchants going down town to their business agree in the street car
that they will charge a certain amount for a barrel of flour or a ton
of coal that week, this would probably be regarded as reasonable at
the common law; but the common law, like these early statutes of
England, looked primarily, if not exclusively, to the welfare of the
consumer; they always speak of the common weal of the people, or
of combinations to the general hurt of the people, and general
combinations to fix prices or to limit output are therefore always
unlawful; so a combination that only one of them should exercise a
certain business at a certain place--like that of our four great
meatpacking firms, who are said to have arranged to have the buyer
for each one in turn appear in the cattle market, thus being the
only buyer that day--would be unlawful, when the restraint of trade
resulting from an ordinary purchase would not be.

The fixing of ordinary prices, not tolls, was thoroughly tried in the
Middle Ages and failed. Nor has it been attempted since as to wages,
except in New Zealand by arbitration, and in England and (as to public
labor) in the State of New York and a few other States where we have a
recent statute that all employment in public work (that is, work
for any city, county, or town, or the State, or for any contractor
therefor) must be paid for "at the usual rate of wages prevailing in
the trade"; this principle, taken from the last form of the English
Statute of Laborers, being passed in the interest of the laborers
themselves and not of the employers, as it was in early England. The
result of this first piece of legislation was to impose some twenty
thousand lawsuits upon the city of New York alone; the laborers
working for a year or two at the rates paid by the city and then,
after discharge, bringing suit and claiming that they had not been
paid the "usual rate" of the trade; and as there were very heavy
penalties, it is said to have cost the city of New York many millions
of dollars. In the same way the union idea of having all trades under
the control of an organization was carried to its extreme result in
the Middle Ages also, so that the guilds became all-powerful; they
imposed their rules and regulations to such an extent that it was
almost impossible for any man to get employment except by their
permission and under their regulation, or without membership. They
naturally developed into wealthy combinations, more of employers than
of journeymen, until they ended as the richly endowed dinner-giving
corporations that we see in the city of London to-day. In France, at
least, they were considered the greatest menace to labor, and were all
swept away at the time of the French Revolution amid the joy of the
masses and the pealing of bells. Unfortunately, our labor leaders are
sometimes scornful of history and unmindful of past example; the
fact that a thing has been tried and failed or has, in past history,
developed in a certain manner, carries no conviction to their minds.

(1444) A servant in husbandry had to give six months' notice before
leaving and wages were again fixed; and in 1452, the time of Jack
Cade's Rebellion, one finds the first prototype of "government
by injunction," that is to say, of the interference by the lord
chancellor or courts of equity with labor and the labor contract,
particularly in times of riot or disorder.

But the first trace of this practice, now obnoxious to many under
the phrase quoted, dates back to 1327, when King Edward III found it
necessary to adopt some more effectual measures of police than those
which already existed. For this purpose justices of the peace were
first instituted throughout the country with power to take security
for the peace and bind over parties who threatened offence.[1] Fifty
years later, in the reign of Richard II, it was found necessary to
provide further measures for repressing forcible entries on lands.
The course of justice was interrupted and all these provisions were
rendered in a great degree ineffectual by the lawless spirit of the
times. The Statute of 1379 recites that "our Sovereign Lord the King
hath perceived ... that divers of his Liege People claiming to have
Right to divers Lands, Tenements, and other Possessions, and some
espying Women and Damsels unmarried ... do gather them together to a
great Number of Men of Arms and Archers ... not having Consideration
to God, but refusing and setting apart all Process of the Law, do ride
in great Routs ... and take Possession of Lands and in some Places
do ravish Women and Damsels, and bring them into strange Countries."
Therefore the Statute of Northampton, the 2d of Edward III, is recited
and confirmed and the justices of the king's commission ordered to
arrest such persons incontinent without tarrying for indictment or
other process of law. But that this summary process was already
obnoxious to the people was shown by the fact that it was repealed the
very following year because the articles "seemeth to the said Commons
very grievous." Only the Statute of Northampton is preserved, and
those who had been so taken and imprisoned by virtue of said article
without other indictment "shall be utterly delivered."

[Footnote 1: See "Injunctions in Conspiracy Cases," Senate Document
No. 190, 57th Congress, 1st Session, p. 117.]

(1384) It is noteworthy that at the same time that this
extra-common-law process begins in the statutes, we have other
statutes vindicating the power of the common-law courts. For instance,
six years later, in the 8th of Richard II is a clause complaining that
"divers Pleas concerning the Common Law, and which by the Common Law
ought to be examined and discussed, are of late drawn before the
Constable and Marshal of England, to the great Damage and Disquietness
of the People." Such jurisdiction is forbidden and the common law
"shall be executed and used, and have that which to it belongeth ...
as it was accustomed to be in the time of King Edward." Again, four
years later, it is ordained "that neither Letters of the Signet, nor
of the King's Privy Seal, shall be from henceforth sent in Damage or
Prejudice of the Realm, nor in Disturbance of the Law."

(1388) The next year we find a new Statute of Laborers confirming all
previous statutes and forbidding any servant or laborer to depart from
service without letters testimonial, and if found wandering without
such letters shall be put in the stocks. Short of the penalty of the
stocks, a condition of things not very dissimilar is said to exist
to-day in the non-union mining towns of the West. In Cripple Creek,
for instance, no one is allowed without a card from his previous
employer which, among other things, sets forth that he is not
associated with any labor union. This Statute of Richard II also
provides that artificers and people of Mystery, that is to say,
handicraftsmen, shall be compelled to do agricultural labor in harvest
time. (The high prices of to-day, some one has said, are really caused
not so much by the trusts or even by the tariff, as by voluntary
idleness; if a man will not work, neither shall he eat, but the lesson
has been forgotten! In the more prosperous parts of the country, in
Massachusetts, for instance, it is sometimes impossible to give away
a standing crop of grain for the labor of cutting it, nor can
able-bodied labor be secured even at two dollars per day. The
Constitution of Oklahoma, which goes to the length of providing that
there shall be no property except in the fruits of labor, might
logically have embodied the principle of this Statute of Richard II;
and we know that in Kansas they invite vacation students to harvest
their crop. So in France, practically every one turns out for the
vendange, and in Kent for the hops; a merriment is made of it, but
at least the crop is garnered.) The Statute of Richard goes on to
complain of the outrageous and excessive hire of labor, and attempts
once more to limit the prices, but already at more than double those
named in the earlier statute: ploughmen seven pence, herdsmen six
pence, and even women six pence a day, and persons who have served in
husbandry until the age of twelve must forever continue to do so.
They may not learn a trade or be bound as apprentices. Servants and
laborers may not carry arms nor play at foot-ball or tennis; they
are encouraged, however, to have bows and arrows and use the same on
Sundays and holidays. Impotent beggars are to be supported by the town
where they were born.

(1387) The barons protested that they would never suffer the kingdom
to be governed by the Roman law, and the judges prohibited it from
being any longer cited in the common-law tribunals;[1] and in 1389 we
find another statute complaining of the courts of the constable and
marshal having cognizance of matters which can be determined by the
common law, and forbidding the same; and the statute of the previous
year concerning laborers is confirmed, except that wages are to be
fixed by a justice of the peace, "Forasmuch as a Man cannot put the
Price of Corn and other Victuals in certain." Shoemakers are forbidden
to be tanners, and tanners to be shoemakers; a statute which seems
to have been much debated, for it is continually being repealed and
re-enacted for a hundred years to follow.

[Footnote 1: Spence, I Eq. Jur., 346.]

(1392) The Statute of York, giving free trade to merchants, is
re-enacted, and it is specified that they may sell in gross or by
retail "notwithstanding any Franchise, Grant or Custom," but they are
forbidden to sell to each other for purposes of regrating and they
must sell wines in the original package and "Spicery by whole Vessels
and Bales." "All the weights and measures throughout the Realm
shall be according to the Standard of the Exchequer"--save only in
Lancashire, where they are used to giving better measure.

(1402) Laborers are forbidden to be hired by the week or to be paid
for holidays or half days. In 1405 the old Statute of Laborers is
re-enacted, particularly the cruel law forbidding any one to take up
any other trade than husbandry after the age of twelve, nor can any
one bind his child as apprentice to learn a trade unless he has twenty
shillings per annum in landed property.

(1414) The 2d of Henry V recites the Statute of the 13th of Henry
IV against rioters, but power to suppress them is intrusted to the
justices of the peace and the common-law courts "according to the law
of the land." Only if default is made in suppressing them the king's
commission goes out under the great seal, showing the beginning of
the use of the executive arm in suppressing riots, of which our
most famous instance was the action of President Cleveland in the
Pullman-car strike in Chicago in 1893. And in the same statute the
chancery arm is invoked, that is to say, if any person complain that
a rioter or offender flee or withdraw himself, a bill issues from
the chancery, and if the person do not appear and yield, a writ of
proclamation issues that he be attainted, a more severe punishment
than the six months' imprisonment usually meted out to our contemners.
It is interesting to notice that the bills (petitions for legislation)
are now in English; though the statutes enacted are still in French or
Latin.

(1425) A statute recites that "by the yearly Congregations and
Confederacies made by the Masons in their general Chapiters and
Assemblies, the good Course and Effect of the Statute of Labourers be
openly violated ... and such Chapiters and Congregations are forbidden
and all Masons that come to them are to be punished by imprisonment
and fine"--an excellent example of the kind of statute which led to
the doctrine that trades-unions were forbidden by the common law of
England.

(1427) The next year the attempt to fix wages by law is again
abandoned, and they are to be fixed by the justices, "because Masters
cannot get Servants without giving higher Wages than allowed by the
Statute."

The exact time of the appearance of the modern corporation has been
a matter of some doubt. Its invention was probably suggested by the
monastic corporation, or the city guild. This whole matter must be
left for a later chapter, but we must note the phraseology of a
statute of Henry VI in 1426, which speaks of "Guilds, Fraternities,
and other Companies corporate," and requiring them to record before
justices of the peace all their charters, letters-patent, and
ordinances or by-laws, _which latter must not be against the common
profit of the people_, and the justices of the peace or chief marshal
are given authority to annul such of their by-laws as are not
reasonable and for the common profit--the fountain and origin of a
most important doctrine of the modern law of restraint of trade and
conspiracy.

(1444) Servants in husbandry purposing to leave their masters were
required to give warning by the middle of the term of service so that
the "Master may provide another Servant against the End of his Term."
Again a maximum price is fixed for the wages of servants, laborers,
and artificers: the common servant of husbandry, fifteen shillings a
year, with money for clothing, eleven shillings; and women servants
ten shillings, with clothing price of four shillings, and meat and
drink. But winter wages are less and harvest wages more than in
summer; and men who refuse to serve by the year are declared
vagabonds.

(1450) John Cade was attainted of treason, and in 1452 comes the
famous statute giving the chancellor power to issue writs of
proclamation against rioters or persons guilty of other offences
against the peace, with power to outlaw upon default, quoted by
Spence[1] as the foundation of the practice of issuing injunctions
to preserve the peace, now bitterly complained of by Mr. Gompers and
others; and it is most noteworthy as sustaining this adverse view
that the Statute of Henry VI itself makes special exception, "That no
Matter determinable by the Law of this Realm shall be by the same Act
determined in other Form than after the Course of the same Law in
the King's Courts having Determination of the same Law," and the act
itself is only to endure for seven years.

[Footnote 1: "1 Eq. Jur.," 353.]

(1487) This year a Statute of Henry VII originates the criminal
jurisdiction of the Court of Star Chamber,[1] an interesting statute
reciting that the Mayor and Aldermen of London have forbidden citizens
to go to fairs or markets, or trade outside the city, which is
declared "contrary to the common weal of England" and the ordinance
made void. In 1495 the laws against riots and unlawful assemblies are
recited and confirmed, and authority to punish and prevent them given
to the justices and the common-law courts, except that the justices
themselves in a case of such disorder by more than forty persons are
to certify the names of the offenders to the king and his council
(that is to say, the Star Chamber) for punishment. In 1495 the
wages of servants in husbandry and of artificers and shipwrights,
master-masons and carpenters are again fixed, with the hours of work
and meal time provided; in March, from 5 a.m. till 7 or 8 p.m., but
with half an hour for breakfast, an hour and a half for dinner, and
half an hour for supper, and in winter time from dawn till sunset, and
"said Artificers and Laborers shall slepe not by day" except between
May and August; but this whole act "for the common wealth of the poor
artificers" is repealed the following year.

[Footnote 1: This court, says Lord Coke, was originally established to
protect subjects against the offences and oppressions of great men by
extortion, frauds, riots, unlawful assemblies, etc., leaving ordinary
offences to the courts of common law, and Clarendon adds that "whilst
it was gravely and moderately governed, it was an excellent expedient
to preserve the peace and security of the kingdom." Nevertheless,
"having become odious by a tyrannical exercise of its powers, it was
abolished by a Statute of 16 Charles I."]

(1503) This year there is another important statute against private
and illegal by-laws, reciting that "companies corporate by color of
rule and governance to them granted and confirmed by charters and
letters patent of divers Kings made among themselves many unlawful and
unreasonable ordinances as well in price of wares as other things for
their own singular profit and to the common hurt and damage of the
people," and such by-laws are forbidden unless specially authorized by
some official such as the chief governor of the city. The law so
far dates from the 15th of Henry VI; but the present act goes on to
provide that "no masters, fellowships of crafts or rulers of guilds or
fraternities make any acts or ordinances against the common profit of
the people but with the examination and approval of the Chancellor and
Chief Justice of England, and that there shall never be any by-law to
restrain any person from suits in the common-law courts." A Federal
statute similar to this was proposed by a late president to apply
to all corporations, or at least to all corporations conducting
interstate commerce; the approval of their by-laws or other contracts
to be by the Federal commissioner of corporations; while the last
section forbidding trades-unions to deny to their members the right
of suing them or other persons in the ordinary courts is part of
our constitutional law to-day and much objected to by the unions
themselves, as it was in the time of Henry VII The tendency to create
special courts (commerce, patents, etc.) seems to be beginning anew,
despite the malign history of the ancient courts of the Constable and
Marshal, Star Chamber, Requests, Royal Commissions, etc.

(1512) Under Henry VIII the penalty for paying higher wages than the
law allowed was removed from the employer and applied only to the
employee taking the wage; and in 1514 comes perhaps the most elaborate
of all the earlier acts fixing the wages and hours of labor. Their
meal times and sleep times are carefully regulated, they are forbidden
to take full wages for half-day's work and forbidden to leave a job
until it is finished, and the rates of pay of bailiffs, servants,
free masons, master carpenters, rough masons, bricklayers, tilers,
plumbers, glaziers, carvers, joiners, shipwrights, ship carpenters,
calkers, clinchers, agricultural laborers, both men and women, mowers,
reapers, carters, shepherds, herdsmen, and possibly others, are again
prescribed; this list of trades in the England of the early sixteenth
century is interesting. Bailiffs who assault their overseers may be
imprisoned for a year, and an exception is made from the act of
all miners of lead, iron, silver, tin, or coal, "called See Cole,
otherwise called Smythes Coole," or for making of glass, but that part
of the act fixing wages was repealed the very next year as to the city
of London.

(1514) The abuse of monopolies begins to be shown this year (but see
also 1503, above) in a statute complaining of the grant of second
patents of a matter already granted; and avoiding in such cases the
later patent unless the king express that "he hath determined his
pleasure against the first."

The appearance of the gypsies in England is marked by a statute
of 1530, describing them as "outlandish people called Egyptians,"
complaining of their robberies, and requiring them to depart the
realm. In the same year first appeared the celebrated Act for the
punishment of beggars and vagabonds and forbidding beggary, and
requiring them to labor or be whipped. Herbert Spencer states in his
"Descriptive Sociology" that it punishes with loss of an ear the third
conviction for joining a trades-union, which, if true, would justify
much of the bitterness of modern labor unions against the common
law. The provision evidently referred to (22 Henry VIII, chapter 12,
section 4) applies, however, not to guilds, but to "Scolers of the
Universities of Oxford and Cambridge that go about begging not being
authorized under the seal of the said Universities" as well as to
other beggars or vagabonds playing "subtile, crafty and unlawful games
such as physnomye or palmestrye." The same year is an Interesting
statute against foreign artificers exercising handicrafts in England,
not without example in the labor legislation of our modern States;
but exempting beggars, brewers, surgeons, and scriveners as not
handicraftsmen, possibly the origin of the vulgar notion that those
trades are more genteel than skilled labor.

(1535) Another statute against sturdy vagabonds and "rufflers found
idling after being assigned to labor," and already having their ears
so slit, are punishable with death. This year Wales was joined to
England; and we see the first act for the suppression of monasteries;
the next year came the statute extinguishing the authority of the
Bishop of Rome. With the struggle against the Roman Church went
the contest for freedom; _inter arma silent leges_; sociological
legislation came to an end for the rest of the reign and arbitrary
laws passed at the king's desire; in 1536, the act authorizing kings
of England, on arriving at the age of twenty-four, to repeal any act
of Parliament made during their minority, and in 1539 the "Act that
Proclamations made by the King shall be obeyed"--the high-water mark
of executive usurpation in modern times. Proclamations made by the
king and council were to have the force of acts of Parliament, yet not
to prejudice estates, offices, liberties, goods or lives, or repeal
existing laws; the cardinal constitutional rights were thus preserved,
even as against this royal aggression.

(1548) Under Edward VI and Elisabeth we may expect more enlightened
legislation, and are not disappointed. Indeed, no one can read the
statutes of the great queen without seeing that modern times here
begin. Nevertheless, while trade is becoming free, labor is no less
severely, if more intelligently, regulated. We first note a short
but important statute touching victuallers and handicraftsmen, worth
quoting in part: "Forasmuche as of late dayes divers sellers of
vittayles, not contented withe moderate and reasonable gayne ...
have conspyred and covenanted together to sell their vittels at
unreasonable price; and lykewise Artyficers handycrafte men and
laborers have made confederacyes and promyses and have sworne mutuall
othes, not onlye that they shoulde not meddle one withe an others
worke, and performe and fynishe that an other hathe begone, but also
to constitute and appoynt howe muche worke they shoulde doe in a daye
and what bowers and tymes they shall work, _contrarie to the Lawes and
Statutes of this Realme_" (It is extraordinary how closely this old
statute sets forth some practices of the modern trades-union.) "Everie
person so conspiring covenantinge swearing or offendinge ... shall
forfeyt for the firste offence tenne pounds ... or twentie dayes
ymprisonment" with bread and water; for the second offence, twenty
pounds or the pillory, and for the third offence forty pounds, or the
pillory and lose one of his ears. After that he is to be taken as a
man infamous and his oath not to be credited at any time, and if
there be a corporation of dealers in victuals or of handicraftsmen so
conspiring, it shall be dissolved--the origin and precedent of the
Sherman Act! This, of course, is the statute which Herbert Spencer
cites as making a "third conviction for joining a trades-union
punished with loss of an ear"; but he places the date at 1535 instead
of 1548. The statute, however, goes on to provide absolute freedom of
employment or trade for all skilled mechanics in any town, although
not freemen thereof, whether they dwell there or not, any town or
guild by-law to the contrary notwithstanding; so that this important
statute may be said to establish the most enlightened view that there
must be absolute liberty of employment granted any one, only that they
must not conspire to the injury of others. Unfortunately, in the
very next year this last part is repealed as to the city of London,
"Artificers and Craftmen of that ancient City complaining that it was
contrary to their ancient privilege," a view as modern as is the law
itself. Immediately after this law is one providing that journeymen,
clothiers, weavers, tailors, and shoemakers shall not be hired for
less than a quarter of a year on penalty of Imprisonment to them
and the employer, the statute reciting that, once out of their
apprenticehood, they "will not commonly be retained in service by
the year, but at their liberty by the day, week or otherwise, to the
intent that they will live idly, and at their pleasure flee and resort
from place to place, whereof ensuith more incovenyencies then can be
at this present expressed and declared"--an inconvenience not unknown
in modern intelligence offices. All employers having more than three
apprentices shall keep at least one journeyman, and unmarried servants
in husbandry must serve by the year.

(1550) In the 3d of Edward VI we find the first Riot Act, aimed at
persons to the number of twelve or above assembling together and
proposing to alter the laws and not dispersing when so required by
the sheriff, and even persons more than two and less than twelve
assembling for such purpose are subject to fine and imprisonment with
treble damages to parties injured, and if forty persons so assemble
and do not disperse in three hours, they are declared felons. This
statute was re-enacted and made more severe in the reign of Queen
Mary.

(1562) In the 5th of Elizabeth comes the last and greatest Statute of
Laborers. This statute is a consolidation of all previous laws, and
it begins by recognizing the principle that the fixing of wages is a
mistake and all such laws are repealed so far as they relate to terms
of hiring and wages. Servants in certain employments, generally
speaking the tailoring and shoemaking trades, may still be hired
by the year, and persons unmarried, not having an income of forty
shillings a year, may be compelled to serve in their own handicraft.
Such yearly servants may not be dismissed or depart during the year
except by cause allowed by two justices, nor at the end of a year,
without a quarter's warning. Unmarried persons under thirty, not
having any trade and not belonging to a nobleman's household, may
be compelled to labor at the request of any person using an art or
mystery, and all persons between twelve and sixty not otherwise
employed may be compelled to serve by the year in husbandry. The
masters may not dismiss, nor the servants unduly depart; nor leave the
city or parish of their service without a testimonial; that is to say,
a certificate of due cause under the seal of the town or constable and
two honest householders. The hours of labor are still fixed from 5
A.M. to 7 P.M., between March and September, with two and one-half
hours for meal times, drink times, and sleep. From September to May,
from dawn to sunset, and sleep times only allowed from May to
August. A penalty of one month's imprisonment and fine is imposed on
artificers and laborers leaving their work unfinished. Wages are still
to be fixed by the justices of the peace, and it is made a penal
offence to give or receive higher wages than the lawful rate, and all
contracts for higher wages are void. Unmarried women between twelve
and forty may be compelled to serve in like manner, and everybody
has to work at harvest time, that is to say, artificers as well as
laborers. The elaborate law of apprenticeship dates also from this
great statute, and no one can use a manual art who has not been
apprenticed to the same for seven years. One journeyman shall be kept
for each three apprentices; disputes are to be settled by the justices
of the peace, and indeed the whole labor contract is regulated as
carefully as the most statute-mad of modern labor leaders could
desire, though hardly, perhaps, then, in the sole interest of the
workingman. If this statute was ever repealed, it was in very recent
times.

(1571) The year of the statute against fraudulent conveyances, and
of another poor law, with provisions for the punishment of "rogues,
vagabonds and sturdy beggars," who are defined to include those going
about the country "using sybtyll craftye and unlawfull Games or Playes
... Palmestrye ... or fantasticall Imaginacons.... Fencers Bearewardes
and Common Players," and the penalty for harboring such vagabonds was
twenty shillings. We are a long time from the knighting of Sir Henry
Irving. In 1575 comes another act for setting the poor to work, and
the punishing of tramps and beggars.

In 1571 also is the first formal complaint of monopolies by the
Commons. Coal, oil, salt, vinegar, starch, iron, glass, and many other
commodities were all farmed out to individuals and monopolies; coal,
mentioned first, is still, to-day, the subject of our greatest
monopoly; while oil, mentioned fourth, is probably the subject of our
second greatest monopoly; and iron, mentioned seventh, is probably the
third. Conditions have not changed. The only reason we don't have salt
still a monopoly is on account of the numerous sources and processes
for obtaining it from mines and from the sea; Fugger, the John D.
Rockefeller of the sixteenth century (whose portrait in Munich
strongly resembles him), had a monopoly of the salt mines of all
Germany. The conditions have maintained themselves, even as to the
very articles. This grievance was first mooted in Parliament in 1571
by a Mr. Bell, "who was at once summoned before the Council." This
council was the King's Council, or Privy Council--a body roughly
corresponding to our United States Senate. He was summoned before the
council for objecting because coal, oil, salt, vinegar, starch, iron,
glass, were the subjects of monopoly; and he "returned to the House
with such an amazed countenance that it daunted all the rest." That is
very much the fate of the tariff reformer to-day, if we may credit the
tales of those returning from Washington.

After a lapse of twenty-six years the Commons ventured again. This
time the queen replied that she hoped her dutiful and loving subjects
would not take away her prerogative, which is the choicest flower
in her garden, but promised to examine all patents and abide the
touchstone of the law. Nevertheless, four years later the list of
articles subject to monopoly was so numerous that when it was read
over to the House in 1601 an indignant member exclaimed: "Is not bread
amongst them? Nay, if no remedy is found for these, bread will be
there before the next Parliament." The Populists openly cursed the
monopolies and declared that the prerogatives should not be suffered
to touch the old liberties of England. Seeing that resistance was no
longer politic, Elizabeth sent a message to the House saying that some
of these monopolies should be presently repealed, some superseded, and
none put in execution but such as should first have a trial according
to law for the good of the people; and Robert Cecil, the secretary,
added an assurance that all existing patents should be revoked and no
others granted for the future. The Commons waited upon the queen with
an address of thanks, to which she replied almost affectionately that
never since she had been queen "did I put my pen to any grant but upon
pretence made to me that it was good and beneficial to the subjects in
general, though a private profit to some of my ancient servants who
had deserved well. Never thought was cherished in my heart which
tended not to my people's good." Notwithstanding these fair words, the
House of Commons found it necessary to enact the Great Statute against
Monopolies.

(1623) In the beginning, the statute recites that "Your most excellent
Majestie in your Royall Judgment ... did In the yeare ... 1610 ...
publish in Print to the whole Realme and to all Posteritie, that all
Graunt of Monapolyes and of the benefitt of any penall Lawes, or of
power to dispence with the Lawe ... are contrary to your Majesties
Lawes, which your Majesties Declaracon is truly consonant and
agreeable to the auncient and fundamentall Lawes of this your
Realme.... Nevertheles ... many such Graunts have bene undulie
obteyned ... For avoyding whereof and preventinge of the like in tyme
to come, May it please your most excellent Majestic ... that it may be
declared and enacted, and be it declared and enacted by the authoritie
of this present Parliament That all Monapolies and all Commissions
Graunts Licenses Charters and lettres patents heretofore made or
graunted, or hereafter to be made or graunted to any person or persons
Bodies Politique or Corporate whatsoever of or for the sole buyinge
sellinge makinge workinge or usinge of any things within this Realme
or the Dominion of Wales, or of any other Monopolies, or of Power
Libertie or Facultie to dispence with any others, or to give Licence
or Toleracon to doe use or exercise any thinge against the tenor or
purport of any Lawe or Statute ... are altogether contrary to the laws
of this realm and so are or shall be utterly void and in no wise to be
put in use or execution." Section 2 provides that all such monopolies
and the force and validity of them ought to be and should forever
hereafter be examined, tried, and determined by and according to
the common law; section 4, that a party aggrieved might have treble
damages, as in our modern Sherman Act. There followed provisos for
exempting existing patents for twenty-one years or less for new
inventions or like future patents for fourteen years or less, the
charters of the city of London, or any custom or customs of London, or
any other city or town, for corporations, companies, or fellowships of
any art, trade, occupation, or mystery; that is to say, exempting the
guilds, but these guilds by this time had long ceased to be societies
of actual journeymen or handicraftsmen. This great statute may fairly
be classed among the constitutional documents of England, and it left
the great fabric of the English common law guaranteeing freedom of
labor and liberty of trade, Magna Charta itself recognizing this
principle, and the Statute of Westminster I forbidding forestalling
and excessive toll contrary to the laws of England, as it has remained
until the present day--only rediscovered in the statutes of our
Southern and Western States aimed against trusts, and reapplied by
Congress, in the Sherman Act, to interstate commerce; but in neither
case added to, nor, possibly, improved.

Two years before this great statute, the process of impeachment, not
employed for nearly two hundred years, had been revived against Sir
Giles Mompesson and Sir Francis Mitchell, who in the Parliament of
1621 were impeached "for fraud and oppression committed as patentees
for the exclusive manufacture of gold and silver thread, for
the inspection of inns and hostelries, and for the licensing of
ale-houses. While no definite articles were presented according to
modern forms, an accusation was made by the Commons and a judgment
rendered by the Lords, condemning both to fine, imprisonment, and
degradation from the honor of knighthood." Nevertheless, Charles
I revived the system of monopolies and raised revenue by their
application to almost every article of ordinary consumption as well as
by enormous fines inflicted through the Star Chamber, both important
matters leading to his dethronement.[1] Elizabeth granted monopolies
on the perfectly madern pretence that a monopoly, be it made by law or
by tariff, is for the benefit of the public good, though at the same
time possibly a private profit to certain individuals, friends of the
sovereign.

[Footnote 1: See Dowell, "History of Taxation," vol. I, pp. 204-209.]

But all this early legislation of England was far better and more
advanced than our own; for in all these questions of duties on exports
and duties on imports and monopolies, they never consider the man who
has the monopoly, the producer; but always they are avowed to
be, petitioned for, declared to be, only in the interests of the
_consumer_; which cannot be said to be the case with ourselves.




V

OTHER LEGISLATION IN MEDIAEVAL ENGLAND


(1275) The Statute of Westminster I has sometimes been termed a great
English code; it is certainly a comprehensive statement by statute of
a considerable portion of existing law. In our consideration of
labor and conspiracy laws we have had to include statutes of later
centuries. Now, returning to the year of the Statute of Westminster,
we found, in 1275, also the Statute of Bigamy, aimed against priests
with more than one wife. It is to be noted that this was centuries
before the celibacy of priests became one of the doctrines of the
Roman Catholic Church. It is also interesting that this early statute
refers to the pope as "the Bishop of Rome"--but only as printed since
1543.

(1279) The Statute of Mortmain, aimed at the holding of land in large
quantities by religious corporations, was a true constructive statute,
and the principle it establishes has grown ever since. The law
regards with jealousy the ownership of land by any corporation;
the presumption is against the power, and it extends to-day to all
corporations, and particularly to alien corporations (see chapter 7);
and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 and
called the "Statute Merchant," equally important. It provides for the
speedy recovery of debts due merchants, and is the foundation of all
our modern law of pledge, sales of collateral, etc. It is distinctly
an innovation on the common law; for in those days there was no method
of collecting ordinary money debts. You could levy on a man's land,
but there really seems to have been no method of recovering a debt
contracted in trade; and this is the first of many statutes adopting
foreign ideas as to matters of trade, and the customs of merchants,
drawn frequently from the Lombard or Jew traders of the Continent,
which, by statute law, custom, or court decision, has since become
such a considerable body of the English law as to have a name
to itself--the "Law Merchant." This first statute provides for
imprisonment for debt; "if he have no goods to be seized the debtor is
to be imprisoned, but the creditor shall find him bread and water."
A foreigner coming to England to recover a debt may also recover the
expenses of his trip; and the statute is further liberal in that it
does away with the _Droit d'Aubaine_, that narrow-minded custom by
which the goods or personal property of any person who died passing
through the kingdom were seized by the authorities and could not be
recovered by his heirs. This mediaeval injustice continued for some
centuries in Germany and France, and we can hardly say that the notion
is extinct in this country when a State like California, by her system
of public administrators, practically impounds a large proportion of
all personal property owned by non-residents at their death. Cases
have been known where it cost the executor more than one-third of
the money to collect a mortgage, owned by a deceased citizen of
Massachusetts, in California; and for that reason, among others,
Eastern lawyers have advised against investments in that State; for
the public administrators are usually petty politicians in search of a
job. The increasing burden of our State inheritance tax laws, whereby
every State wherein a corporation exists besides the State of the
deceased seizes its percentage of the stock of such corporation in the
hands of the executors, is another step in this direction. This early
Statute Merchant, liberal in other respects, still excludes Jews from
its benefits.

(1284) Jury trial was well established by this time, for the Statute
of Wales includes it in its code of procedure for that principality.
The great Statute _De Donis_, or Westminster II, came the following
year; most interesting to lawyers as the foundation of estates tail;
but it also regulates "assizes or juries" that "rich men do not abide
at home by reason of their bribes." It also specifically requires
indictment "of twelve lawful men at least," and gives an action
against sheriffs imprisoning without such warrant "as they should have
against any other person." Rape, ten years before made punishable only
by two years' imprisonment, is now made an offence punishable by
loss of life or member; showing how our ancestors treated a burning
question, at least in our Southern States, of to-day. Finally, it
confirms and explains the writ _de odio et atia_, the predecessor of
the modern _habeas corpus_. Some writers have doubted whether this
writ existed as a practical remedy much before the Statute of Charles
II; but here it says that parties indicted, etc., are to have the writ
_de odio et atia_ "lest they be kept long in prison, like as it is
declared in Magna Charta." This can only refer to C. 36 of John's
Charter, "the writ of inquest of life or limb to be given gratis and
not denied"; and taken in connection with the action for damages just
given affords a fairly complete safeguard to personal liberty. It also
contains the first game law, protecting "salmons." "There are salmons
in Wye," says Shakespeare, and we are reminded of it because the
Statute of Winchester in the same year contains a provision that is
almost literally quoted by Dogberry in "Twelfth Night." It provides
for the gates of great towns to be shut at sunset, and that no citizen
should bear arms, and no tavern sell drink after 9 P.M., and then it
comes to the duties of the watch, which are described in such like
manner that Dogberry's language seems a mere paraphrase. Whoever wrote
the play certainly had read the Statutes of the Realm for the year
1285, but so far as I am aware, the Baconians have not yet called
attention to this. And the same statute shows us how much better
police protection the England of 1285 gave than the New York or
Chicago of 1909; for all the people dwelling in the hundred or country
(county) if they do not deliver the body of the offender, "shall be
answerable for the robberies done and also the damages." The same year
was a statute of "The common customs of the City of London," among
which was one that "taverns should not be open after 9 P.M. for the
selling of wine or ale," a regulation for their "tenderloin," which
itself is described in quite modern terms; "none shall walk the
streets after curfew." Possibly the same year is the Statute of
Bakers, with careful provisions against putrid meat, worthy of
consideration by our cold-storage plants. Butchers selling unwholesome
flesh, or buying it of the Jews, were severely punished.

(1289) The Statute of Quo Warranto is another historical landmark,
showing the jealousy our ancestors felt of officials, bureaucracy; a
writ specially devised to enable them to challenge the right of any
magnate who pretended to power by virtue of holding office, and the
predecessor of our modern _quo warranto_, which we still use at all
times for that purpose, not only as against officers but to test
any special privileges or charters claimed, such as the right to a
monopoly, a franchise, a ferry, etc. These may be still tried by _quo
warranto_; meaning, by what warrant do you claim to exercise this
office, this monopoly, this privilege?

About this time is another statute forbidding usury, and permitting
Christian debtors to retain half of all debts they may owe to the
Jews, who are required to wear the mark of two cables joined on their
coats; and there is the great Statute of Westminster III, _Quia
Emptores_, affecting land tenures, still of importance to the
conveyancers. In 1295 we have the famous Model Parliament; that is to
say, the first one where kings, lords, and commons were joined, the
legislative branches sitting separately and the Commons represented.
Two years later Edward I, carrying on the war in Flanders, was
compelled to grant that great confirmation of the charters already
referred to, that no aid or tax should be taken but by the common
consent of the realm and for the common profit; restoring thus into
the recognized charter that important provision of the original
Charter of John; and it provides that the great charter shall be read
twice a year in every cathedral in England. In our country I am aware
of no provision for reading the Constitution, though the Declaration
of Independence, an obsolete document, is occasionally read upon the
Fourth of July.

In 1305 the Anglo-Norman law reports begin, the Year Books. From then
to now, at least, we have continuous written reports of all important
cases decided in England. This is not to say that we do not have them
before (our people, first in the world's history, has the records of
all its cases in high courts for nigh a thousand years), but they are
now for the first time systematic.

(1309) On the accession of Edward II came the Summary of Grievances,
recited in the Statute of Stamford as recognized by Edward I at the
close of his reign. The seizure of supplies by the king without due
payment; the maintenance of courts at the gates of the king's castles
in derogation of the common-law courts; the taking of "new customs,"
two shillings per tun of wine, two shillings for cloth and other
imports, "_whereby the price to the people is enhanced"_; the
debasement of current coin; that petitions of the Commons to
Parliament were not received, etc., etc. All duties were then
suspended, in order to know and be advised "what Profit and Advantage
will accrue to him and his People by ceasing the taking of those
Customs"--a precedent it were to be wished we might have the
intelligence to follow to-day--surely better than a tariff commission!

Two years later came the New Ordinances, which contain a most
interesting precedent, hitherto almost unnoted, of the American
principle of having the courts construe the Constitution. Section VI:
"It is Ordained, That the Great Charter be kept in all its points in
such manner, that if there be in the said Charter any point obscure or
doubtful, it shall be declared by the said Ordainours, and others
whom they will, for that purpose, call to them, when they shall see
occasion and season during their power." Section XXXVIII: "That the
Great Charter ... and the Points which are doubtful in it be explained
by the advice of the Baronage and of the Justices, and of other sage
Persons of the Law." It was ordained that the king should not go out
of the realm, a precedent never violated until modern times, and even
followed by our own presidents, except for Roosevelt's trip to Panama
and Taft's to the borders of Mexico. Again we find "new customs"
abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and other
Things, whereby the Merchants come more seldom, and bring fewer Goods
into the Land, and the Foreign Merchants abide longer than they were
wont to do, by which abiding things become more dear," saving only to
the king his duty on wool and leather, half a mark for a sack of wool
and one mark for a last of leather. "The king shall hold a Parliament
once in the year or twice if need be, and that in a convenient place."
This principle has maintained itself in the English mind, still more
in the American mind, ever since. To this day, in Massachusetts,
for instance, we cannot get a constitutional amendment to have the
legislature sit only once in two years, though it would probably be a
very wise reform, on account of this old inherited feeling that there
is something peculiarly free about an annual parliament, as indeed
there is. The Anglo-Norman kings called parliaments once a year
or oftener. Most of the States in this country now have their
legislatures sit every two years. Alabama and some other States have
recently changed, that they only sit once in four years. But the
conservative old States, like Massachusetts and New Jersey, have still
the rule that the legislature sits every year; and the prejudice in
favor of the annual legislature goes back at least as far as this law
of 1330, where the Commons succeeded in getting a law that Parliament
should sit as often as once in a year, and is incorporated in
England's and Massachusetts' Bill of Rights.

And then we find the first statute restraining what we should now call
chancery jurisdiction, complaining that the law of the land and
common right was delayed by letters issued under the king's will, and
ordaining that henceforth they shall not be disturbed by said letters
and nothing done in any of the places of the court of the king or
elsewhere by such letters against right or the law of the land shall
avail.

In 1313 the coming armed to Parliament is forbidden. These were
troublous times and there was little legislation in consequence,
and in 1322 Edward II secured the revocation of the New Ordinances
themselves, but as in all such cases of royal grant and withdrawal
the principles shown are even the more important historically. Of
uncertain period is the Statute of Jewrie forbidding usury to the
Jews, and Christians from living among them, but permitting them
freedom of trade and exempting them from taxation except to the king;
and a statute of the usages and customs of the men of Kent beginning
with the statement that "all the Bodies of Kentishmen be free, as well
as the other free Bodies of England," which dates at least as late as
the early part of the fourteenth century, but still exemplifying the
notion that a statute should only express law or custom previously
existing.

(1327) The Statute of Northampton, at the beginning of the reign of
Edward III, confirms many of the earlier statutes, but abolishes all
staples beyond the sea and on this side, on the ground that they
tended to monopoly, and provided that all merchants, strangers, and
citizens may go and come with their merchandises into England after
the tenor of the great charter (cap. IX). In the next year is another
provision for annual parliaments, and in 1335 the Statute of York
again allows merchants to buy and sell freely except only enemies, and
giving double damages for the disturbance by any one of such freedom
of trade, and the Statute _de Moneta_, forbidding carrying money
abroad; which is notable to the student of economics as showing how
early what we now call the fallacy of the mercantile system appeared.
Our ancestors thought that there was something peculiarly advantageous
in a tariff or system of duties which put all the money into a country
and allowed only goods to go out; and that opinion is perhaps not yet
extinct.

There always seems to have been a notion that there is something
peculiarly sacred about wool. So we find that in 1337 they made it
a felony to carry wool out of England, or to wear cloth made out of
England; and no clothes made beyond the seas were to be brought into
England. That notion that a man ought to dress on home products lies
behind our present McKinley tariff. Then, in 1340, you will find
another statute for the liberties of merchants, that they should be
allowed the freedom of the kingdom; and a new duty is imposed on wool.
Then we find the abolition of the laws of "the staple"; foreign staple
towns had been abolished just before. The "staple" was the _town_ in
which one commodity was mainly dealt in. Every commodity in England
had some particular town, where the principal market was for it; just
as, with us, the boot and shoe market of the United States is supposed
to be in Boston, the money market in New York, beef and hogs in
Chicago. In England, in the Middle Ages, they really provided that a
certain trade should have its home in a certain town; not necessarily
the only one, but very often in that one only. Thus there were certain
towns for the carrying on of the wool industry; you could only trade
in wool in those towns. The word "staple," from meaning the town or
market, got applied by an easy process to the commodity dealt in; so
that when we now say that the Vermont staple is hay, we mean that this
is the main crop raised in Vermont. But the staple--like the modern
stockyard or exchange--tended to monopoly and was abolished for this
reason.

In 1340 and 1344 we find two picturesque statutes showing how the
English were getting jealous of the Norman kings: "The realm and
people of England shall not be subject to the King or people of
France"--that is, that the customs and law of France, although their
kings were French, were not to be applied to England. Then in the
royal edict that year when King Edward assumed the title, King of
France, they caused him to put in a statement that no inference was to
be drawn from his assuming the flower de luces in the first quarter
of his arms. The present English coat of arms is modern; instead of
having the Norman leopards in the upper right hand and lower left
hand, they then had the blue field and the fleurs de lys of France in
the upper, and the Norman leopards only in the lower corner; and this
lasted until the time of Charles I. In that part of Normandy which now
still remains to the English crown, that is, in Guernsey and Jersey,
you find to-day that only the leopards, not the arms of Great Britain,
are in use. But then again, in 1344, we have a statute (which, by the
way, itself is written in French) complaining that the French king is
trying to destroy the English language. They were getting very jealous
of anything French; the Normans had already been absorbed; modern
England was beginning to appear.

(1344) And now comes a liberal statute, repealing those restrictions
on wool, and allowing it to be exported; and another statute that "the
Sea be open to all manner of merchants." Now this is the origin of the
great English notion of freedom to trade with foreign parts; and was
principally relied upon three centuries later in the great case of
monopoly (7 State Trials) brought against the East India Company. And
England has assumed dominion of the sea ever since; "the boundaries of
Great Britain are the high-water mark upon every other country."

(1348) This year was the plague of the Black Death, and the following
year is the first Statute of Laborers discussed in an earlier chapter
and elaborately amended in the following year. In 1350 also we find
the Statute of Cloths, providing again for free trade in victuals,
cloths, and any other manner of merchandise in all the towns and ports
of England, and punishing forestalling of any merchandise with two
years' imprisonment and forfeiture of the goods, one-half to go to the
informer. Two years later the forestalling and engrossing of Gascony
wines is forbidden and even the selling of them at an advanced price,
and this offence is made capital!--and the next year we have the most
elaborate of the Statutes of the Staple re-established. This ordinance
(1353) provides for a staple of wools, leather, wool fells, and
lead in various towns in England, Wales, and Ireland. The safety of
merchant strangers is provided for, and it is again made a felony for
the king's subjects to export wool; and more important still, all
merchants coming to the staple and matters therein "shall be ruled by
the Law-Merchant and not by the common Law of the Land nor by Usage
of Cities, Boroughs or other Towns," and any plaintiff is given the
option whether he will sue his action or quarrel before the justices
of the staple by the law thereof, or in the common-law court.
Merchandise may be sold in gross or by parcels, but may not be
forestalled; and the goods of strangers suffering shipwreck shall be
restored to their owners on payment of salvage. Houses in staple towns
must be let at a reasonable rate, and conspiracies or combinations
against the law of the staple made criminal. Again our ancestors
showed themselves more civilized than we, this time in their
Custom-house proceedings; for Article 26 of this statute provides that
"whereas a Duty is payable of three pence in the pound by all merchant
strangers coming into the kingdom, they may show their letters or
invoices to prove the value of their goods, and if they have no
letters, they shall be believed by their oath ... and now of late we
understand by the Complaint of the said Merchants that although they
have Letters or have made oath, nevertheless after the Oath made the
bailiffs of the customs do unseal their Barrels, Fardels, and Bales
for which they have taken their oath. We, not willing that Strangers
that come into our Realm be in such Manner grieved, establish that
when the Letters or the oath be taken their Goods shall be delivered
to them without delay and the bailiffs meddle no more of the same
Goods upon Pain of Imprisonment and pay the Party grieved quatreple
Damages." As is well known, it is the United States custom to insist
upon the oath of the importer, and notwithstanding that, rummage open
his trunks. Or are we to infer that people were more truthful in those
days?

(1354) The export of iron is forbidden, and the justices given power
to punish them that sell iron at too dear a price, but it does not
appear how the prices are to be determined; and the Statute of the
Staple is again re-enacted and the provision made that duty shall be
paid only upon those goods which are actually sold in England and the
merchant may re-export the balance--the first precedent of our laws
of importing under bond. It is notable that this year the Statute of
Laborers is extended to the city of London.

(1357) The Ordinance of Herrings is a most interesting example of
early intelligence in dealing with a modern abuse. It provides "that
no herring shall be bought or sold in the Sea, till the Fishers be
come into the Haven with their Herring, and that the Cable of the Ship
be drawn to the Land." That thereupon they may sell freely, but only
between sunrise and sunset. "The Hundred of Herring shall be ... six
score, and the Last by ten Thousand and all Merchants must sell the
Thousand of Herring after the Rate of the Price of the Last, and the
people of Yarmouth shall sell the last [that is, the ten thousand red
herring], bought for forty shillings for half a mark of gain and not
above; and so the people of London for one mark of gain"; and the
destruction of fish is prevented, but all caught must be sold. It is
well known that the custom was to destroy all the fish brought into
Billingsgate market above a certain quantity, which led Ruskin to cry
out furiously that the real prices of the world were regulated by
Rascals, while the fools are bleating their folly of Supply and
Demand. One may guess to-day that most of the proceedings in the ports
of Boston, New York, or Gloucester would be highly criminal under this
ancient law. So, in the Statute of Dogger (this ancient word meaning
the ships that carry fish for salting to Blakeney, Cromer, and other
ports in the east of England), the price of dogger fish is settled at
the beginning of the day and must be sold at such price "openly, and
not by covin, or privily," nor can fish be bought for resale, but must
be sold within the bounds of the market. To-day there is not a quart
of milk that goes into Boston that is not forestalled, nor possibly
a fish that is not sold at sea or even before its capture; and
the number of middlemen is many--when, indeed, they all are not
consolidated into a trust. The destruction, directly or by cold
storage, of milk, fish, eggs, or other food in order solely to
maintain the price should to-day be a misdemeanor; and these early
doctrines of forestalling and restraining trade should be to-day more
intelligently applied by our judges--or by the legislatures, if our
lawyers have forgotten them--for they all are "highly criminal at the
common law."

In the reign of Edward III appears one of many cruel ordinances for
Ireland. Although the Roman Church was then, of course, universal, the
statute is addressed to "the Archbishops, Bishops, Abbots, Priors and
our Officers both great and small of our land of Ireland," and
recites that "through default of good government and the neglect
and carelessness of the royal officers there [this is probably true
enough] our land of Ireland and the Clergy and People thereof have
been manifoldly disturbed and grieved; and the Marches of said Land
situate near the Enemy, laid waste by Hostile Invasions, the Marches
being slain and plundered and their Dwellings horribly burnt." The
Marchers were, of course, mainly of English descent; and one notes
that the Irish are frankly termed the Enemy. As a method of meeting
this evil, the Saxon intelligence of the day could find no better
remedy than to lay it to "marriages and divers other Ties and the
nursing of Infant Children among the English and the Irish, and
Forewarnings and Espyals made on both Sides by the Occasions
aforesaid," and it therefore forbids such marriages to be contracted
between English and Irish, "and other private Ties and nursing of
Infant Children." The statute notes that these dissensions do not
occur only between the English and those of Irish blood, but as well
between the English of birth and the English of descent living in
Ireland; a condition which has, indeed, continued till to-day, Parneil
and a host of famous Irishmen being of pure English descent.

In 1360 the exportation of corn is forbidden. We now, therefore, have
that principle applied to wool, iron, and bread-stuffs--corn, of
course, meaning all kinds of grain. There is another statute requiring
Parliament to be held once a year; and, more interesting, that pleas
should be made in the English language, for "the French tongue is
much unknown in said Realm of England," but the judgments are to be
enrolled in Latin. In 1363 another statute concerning diet and apparel
fixes the price of poultry, a young capon three pence, an old one four
pence, a hen two pence, and a pullet one penny "for the great Dearth
that is in many Places." Department stores are anticipated by a clause
complaining that the merchants called grocers do engross all manner
of merchandise "by Covin and Ordinance made betwixt them, called the
Fraternity and Gild of Merchants," and anticipates the prejudice
against the modern department store by ordaining that merchants shall
deal in only one sort of merchandise; and furthermore handicraftsmen
are allowed to "use only one Mystery," that is, trade--which also
anticipates a principle dear to modern trades-unions. The statute then
regulates the diet and apparel of servants. They may eat once a day of
flesh or fish, but the rest of their diet must be milk or vegetarian.
Their clothing may not exceed two marks in value. People of handicraft
and yeomen, however, are allowed to wear clothing worth forty
shillings, but not silk, silver, nor precious stones. Squires and
gentlemen of a landed estate less than one hundred pounds a year may
wear clothing to the value of four marks and a half, but not gold nor
silver, precious stones nor fur. Merchants having goods to the value
of five hundred pounds may dress like esquires and gentlemen to a
value of six marks. Clerks, that is to say, persons having degrees
from colleges, may dress like knights of the same income and may
wear fur in winter and lawn in summer, and clothiers make clothes
accordingly and drapers and tailors charge proportionately. This most
interesting effort to interfere with private life stops short of
regulating the use of wine or beer; and tobacco had not yet been
discovered. It is all the more interesting to note that it was found
so intolerable that it was repealed the following year; and little
effort since then has been made to regulate the diet or dress or
expenditure of Englishmen; it was declared in memorable language that
"which was ordained at the last Parliament, of Living and of Apparel,
and that no English Merchant should use but one Merchandise" be
repealed, and "It is ordained, That all People shall be as free as
they were before the said Ordinance," and "all Merchants, as well
Aliens as Denizens, may sell and buy all Manner of Merchandises, and
freely carry them out of the Realm ... saving the Victuallers of Fish
that fish for Herring and other Fish, and they that bring Fish within
the Realm." Thus, after trying the opposite, we find triumphantly
established in the middle of the fourteenth century the great English
principle of freedom of life and trade. The legislation of this great
reign ends with the prohibition of practising lawyers from sitting in
Parliament and an ordinance that women might not practise law or "sue
in court by way of Maintenance or Reward, especially Alice Perrens,"
Alice Perrers or Pierce having become unpopular as the mistress of the
elderly king. Our courts have usually held that there is no common-law
principle forbidding women to practise law, but from this ancient
statute it would appear that such decisions are erroneous.

(1381) In 5 Richard II is a law absolutely forbidding the sale of
sweet wines at retail. This law, with the testimony of Shakespeare,
goes to show that England liked their wines dry (sack), but the act is
repealed the following year, only that sweet wines must be sold at
the same price as the wines of the Rhine and Gascony; and in the same
year, more intelligent than we, is a statute permitting merchants to
ship goods in foreign ships when no English ships are to be had. In
1383, according to Spence, the barons protested that they would never
suffer the kingdom to be governed by the Roman law, and the judges
prohibited it from being any longer cited in the common-law tribunals.
The rest of the statutes of Richard II are taken up with the important
statutes concerning riots and forcible entries, and regulating labor,
as set forth in the last chapter.

The troublesome reign of Richard II closes with an interesting attempt
to make its legislation permanent, as has sometimes been attempted
in our State constitutions. The last section of the last law of King
Richard declares "That the King by the Assent of the said Lords and
Knights [note it does not say by consent of the Commons], so assigned
by the said Authority of Parliament, will and hath ordained that ...
to repeal or to attempt the repeal of any of the said Statutes
is declared to be high treason," and the man so doing shall have
execution as a traitor. Notwithstanding, in the following year the
first act of Henry IV repeals the whole Parliament of the 21st of
Richard II and all their statutes; that it be "wholly reversed,
revoked, voided, undone, repealed, and adnulled for ever"--so we with
the States in rebellion, and so Charles II with the acts of Cromwell.

(1400) Under Henry IV is the first secular law against heresy, making
it a capital offence. Upon conviction by the ordinary the heretic
is to be delivered to the secular arm, _i.e._, burnt. Note that the
trial, however, still remains with the ordinary, _i.e._, the clerical
court. Under Henry IV also we find a statute banishing all Welshmen
and forbidding them to buy land or become freemen in England; and
under Henry VI the same law is applied to Irishmen, and in the next
reign to Scotchmen as well. The Irishmen complained of, however,
were only those attending the University of Oxford. In 1402 we find
Parliament asserting its right to ratify treaties and to be consulted
on wars; matters not without interest to President Roosevelt's
Congress, and in 1407 we find definite recognition of the principle
that money bills must originate in the lower house.

For the purpose of his Chicago speech, it is a pity that Mr. Bryan's
attention was never called to the Statute of the 8th of Henry VI,
which forbids merchants from compelling payment in gold and from
refusing silver, "which Gold they do carry out of the Realm into
other strange Countries." An enlightened civic spirit is shown in the
Statute of 1433, which prohibits any person dwelling at the Stews in
Southwark from serving on juries in Surrey, whereby "many Murderers
and notorious Thieves have been saved, great Murders and Robberies
concealed and not punished." And the statute sweepingly declares
everybody inhabiting that part of Southwark to be thieves, common
women, and other misdoers. Fortunately, this was before the time that
John Harvard took up his residence there.

In 1430 was the first statute imposing a property qualification upon
voters.

In 1452 is a curious statute reciting that "Whereas in all Parts
of this Realm divers People of great Power, moved with unsatiable
Covetousness ... have sought and found new Inventions, and them
continually do execute, to the Danger, Trouble and great abusing of
all Ladies, Gentlewomen, and having any Substance ... perceiving their
great Weakness and Simplicity, will take them by Force, or otherwise
come to them seeming to be their great Friends ... and so by great
Dissimulation ... get them into their Possession; also they will
many Times compell them to be married by them, contrary to their own
liking." A writ of chancery is given to persons so constrained of
their liberty to summon the person complained of, and if he make
default be outlawed--an early example of "government by injunction"
applied to other than labor disputes! I know no example of an American
statute to this effect; presumably our women are lacking in "weakness
and simplicity."

In 1463 is another curious sumptuary law prescribing with great care
the apparel of knights, bachelors, gentlemen and their wives, making
it criminal for tailors to make cloths not according to this fashion,
and for shoemakers to make boots or shoes having pikes more than two
inches long. No draper shall sell or women wear hose to the value of
more than fourteen pence, nor kerchiefs worth more than ten shillings,
but scholars of the universities "may wear such Array as they may,"
nor does the ordinance extend to judges or soldiers. The provision
against long pikes to shoes appears to be considered of importance,
for it was re-enacted in 1464. I have searched in vain for a statute
relating to hatpins. Again in 1482 there is another long statute
concerning apparel which seems to have been considered under the reign
of Edward IV quite the most important thing in life. A more manly
clause of the statute is concerned with the benefits of archery to
England, reciting that "In the Time of the victorious Reign ... the
King's Subjects have virtuously occupied and used shooting with their
Bows, whereby and under the Protection of Almighty God, victorious
acts have been done in Defence of this Realm," and the price of long
bows of yew is limited to three and four pence. The statutes now begin
to be in English.

In 1488 the Isle of Wight is to be repeopled with English people for
"defence of the King's auncien ennemyes of the realme of Fraunce."

In 1491 all Scots are to depart the realm within forty days upon pain
of forfeiture of all their goods; it is not recorded that any remained
in England. In 1491 Henry VII levied an amazingly heavy tax upon
personal property, that is to say, two fifteenths and tenths upon all
"movable goodes cattales and othre thinges usuelly to suche xvmes and
xmes contributory," with the exception of Cambridge and a few other
favored towns. In 1495 the famous Oklahoma statute is anticipated by a
law regulating abuses in the stuffing of feather beds.

In 1503 a statute recites that the "Longe Bowes hathe ben moche used
in this his Realme, wherby Honour & Victorie hathe ben goten ... and
moche more drede amonge all Cristen Princes by reasone of the same,
whiche shotyng is now greatly dekayed." So this mediaeval Kipling
laments that they now delight in cross-bows to the great hurt and
enfeebling of the Realm and to the comfort of outward enemies,
wherefore cross-bows are forbidden except to the lords, on penalty of
forfeiture of the bow.

(1509) The reign of Henry VIII was one of personal government; and
in those days personal government resulted in a small output of
law-making by Parliament. Indeed, after 1523, under Cardinal Wolsey,
Parliament was not summoned for seven years. In 1539 the attempt to do
without popular legislation is shown in the act already referred to,
giving royal proclamations of the king and council the force of law, a
definite attempt at personal government which might have resulted in
the establishment of an administrative law fashioned by the executive,
had it not been for the sturdy opposition of the people under weaker
reigns. But under the reign of Henry VIII also the great right of free
speech in Parliament was established; and in 1514 the king manumitted
two villeins with the significant words "Whereas God created all
men free," vulgarly supposed to be original with our Declaration of
Independence.

The important principle of a limitation for prosecutions by the
government for penal offences dates from the first year of Henry
VIII, the period being put, as it still is, at three years; and it is
expressed to be for better peace and justice and to avoid the taking
up of old charges after the evidence has disappeared.

In 1515 is another act of apparel providing, among other things, that
the king only shall wear cloth-of-gold or purple color, or black
fur, and that no man under the degree of a knight may wear "pinched
Shirts." In this reign also comes the famous Statute of Wills,
permitting the disposal of land by devise, the Statute of Uses
and other matters primarily of interest to the lawyer; the first
Bankruptcy Act and the first legislation recognizing the duty of the
secular law to support the poor, perfected only under Queen Elizabeth;
but in the latter part of his reign there is little law-making that
need concern us. The Statutes of Apparel continue, and the statutes
fixing the price of wine, which, indeed, seems to have been the last
subject so regulated. There is the "Bloody Statute" against heresy,
and the first act against witchcraft, Tindale's translation of the
Bible is prohibited, and women and laborers forbidden to read the New
Testament. There is the first act for the preservation of the river
Thames, and also for the cleaning of the river at Canterbury; and the
first game law protecting wild-fowl, and a law "for the breeding of
horses" to be over fifteen hands. The king is allowed to make bishops
and dissolve monasteries; physicians are required to be licensed. The
regrating of wools and fish is again forbidden, and finally there is
an act for the true making of Pynnes; that is to say, they are to be
double headed and the heads "soudered fast to the Shanke."

We are now approaching the end of our task, for the legislation after
James I, with the exception of a few great acts, such as the Statute
of Frauds and the Habeas Corpus Act, hardly concerns us as not being
part of our inherited common law. The reigns of Elizabeth and James
are to us principally notable for the increase of the feeling against
monopolies, ending in the great Statute of James I. While we still
find restrictions upon trade in market towns or in the city of
London, they always appear as local restrictions and are usually soon
repealed. The prejudice against regrating, that is to say, middlemen,
continues, as is shown in a Statute of Edward VI, providing that no
one shall buy butter or cheese unless to sell the same only by retail
in open shop. That is to say, there must be no middleman between the
producer and the retailer, and a definition of the word "retail" is
given. In 1552, the 7th of Edward VI is a celebrated statute called
the Assize of Fuel, applied to the city of London, notable because
it forbids middlemen and provides that no one shall buy wood or coal
except such as will burn or consume the same, "Forasmuche as by the
gredye appetite and coveteousnes of divers persons, Fuell Coles and
Woodd runethe many times throughe foure or fyve severall handes or
moe before it comethe to thandes of them that for their necessite doo
burne ... the same"--under penalty of treble value.

In 1551 is the last elaborate act against regrators, forestallers, and
engrossers, made perpetual by 13 Elizabeth, and only repealed in 1772.
It recognizes all previous laws against them, but recites that they
have not had good effect, and therefore in the first section gives a
precise definition. _Forestalling_--the buying of victuals or other
merchandise on their way to a market or port, or contracting to buy
the same before they arrive at such market or city, or making any
motion for the enhancing of the price thereof, or to prevent the
supply, that is, to induce any person coming to the market, etc., to
stay away. _Regrating_ is narrowed to victuals, alive or dead, and to
the reselling them at the fair or market where they were bought or
within four miles thereof; and _engrossing_ is given a definition very
similar to our "buying of futures." That is to say, it is the buying
or contracting to buy any corn growing in the fields or any other
victuals within the Realm of England with intent to sell the same
again. The penalty for all such offences is two months' imprisonment
and forfeiture of the value of the goods, but for a third offence the
person suffers forfeiture and may be imprisoned. There is an important
recognition of modern political economy made in the proviso that
persons may engross corn, etc., when it sells at or below a certain
price, not, however, forestalling it.

In 1554 is a statute for the relief of weavers, prohibiting "the
engrossing of looms," thus anticipating one of the principal doctrines
of Lassalle. In the same year, 1st of Philip and Mary, is a statute
prohibiting countrymen from retailing goods in cities, boroughs, or
market towns, but selling by wholesale is allowed, and they may sell
if free of a corporation; and so cloth may be retailed by the
maker, and the statute only applies to cloth and grocery wares, not
apparently to food.

(1562) From the reign of Elizabeth dates the great Poor Law, enacted
and re-enacted in 1562, 1572, and finally in 1601, recognizing fully
the duty of the parishes to support their poor, but providing a system
of organized charity and even licensing beggars in towns too poor to
support all their paupers. Side by side with this, however, went the
severe statutes against idlers and vagabonds recited in the last
chapter. The first game laws date from about this period, prohibiting
the snaring of birds and establishing close seasons, and also in 1584
we find the first forestry law for the preservation of timber in the
southern counties. There is no provision for seeding, but the use in
the iron works of wood for fuel is carefully regulated, and in order
to preserve the forests in Sussex, Surrey, and Kent, it is provided
that no new iron mills, furnaces, etc., shall be erected in those
counties, showing the relative value that our forefathers placed upon
these matters. The first incorporation of a trading company seems
also to date from the time of Elizabeth. That is to say, the Muscovy
Company was chartered in 1564, and the Merchant Adventurers for the
discovery of new trades in 1566. In this same year is the celebrated
act of Speaker Onslow, in telling Elizabeth that she is subject to the
common law; from henceforward we are in modern times. In 1534 Henry
VIII declared himself supreme head of the Church of England; five
years later with the dissolution of monasteries came the "Bloody
Statute," whereby he attempted to vindicate his orthodoxy. The act was
entitled "An Act abolishing diversity of opinion on certain articles
concerning the Christian Religion," and insisted upon the sacraments,
celibacy, masses, and confessions, but in 1548 the marriage of priests
was made lawful, and in 1566 the pope forbade attendance at the
English Church. Thus, Roman law was expelled in the first two or
three centuries after the Conquest, the Roman Church in the sixteenth
century, and it remained for the seventeenth to struggle with the
last serious attempt at the Roman or Continental theory of personal
government.

(1602) King James at his accession asserted the divine right, and his
legislation, other than special bills for the restoration of attainted
persons, or the confirmation of titles, is scanty, his reign being
principally occupied with the conflict with Parliament, which he
forbade from meddling with affairs of state. In the first year of his
reign, the Statute of Laborers of Elizabeth was confirmed, as well
as that against rogues and vagabonds; the ninth act of his first
Parliament was "To restraine the inordinate hauntinge and tiplinge in
Innes and Alehouses," and, indeed, much of his legislation is aimed at
what should properly be called "sins" rather than "crimes"; the next
act after this was one to restrain "all persons from Marriage until
their former Wyves and former Husbandes be deade." And next came a
statute against witchcraft. In 1603 is an act to prohibit people from
eating anything but fish in Lent, entitled "An Acte to encourage
the Seamen of England to take Fishe, wherebie they may encrease to
furnishe the Navie of England." There was an act for the relief of
skinners, and a charter given by Queen Elizabeth in the twenty-first
year of her reign to the Eastland merchants for a monopoly of trade in
those countries; it would be interesting could these early corporation
charters and monopoly grants be printed, for they are not usually
found in the statutes of the realm. In 1605 stage players are
forbidden from swearing on the stage. In 1606 is an elaborate act for
the regulation of the spinning, weaving, dyeing, and width of woollen
cloth, and the same year is an act for "repressinge the odious and
loathsome synne of Drunckennes," imposing a penalty or fine and the
stocks. In 1609 an act of Edward IV is revived, forbidding the sale of
English horns unwrought, that people of strange lands do come in and
carry the same over the sea and there work them, one of the latest
statutes against the export of raw material. In the last year of his
reign comes the great Statute of Monopolies noted in the last chapter,
and an act extending the benefit of clergy to women convicted of small
felonies, for which they had previously suffered death, and another
act for the repression of drunkenness. And the last statute we shall
note, like the first, is concerned with regrating and engrossing;
that is to say, it re-enacts the Statute of Edward VI prohibiting
the engrossing of butter and cheese, and prohibiting middlemen. Thus
restraint of trade and freedom of labor begin and end as the most
usual subjects of English popular law-making.

       *       *       *       *       *

A few words upon Cromwell's legislation may be of interest; for though
it was all repealed and left no vestige in the laws of England, it had
some effect upon the legislation of Massachusetts, Rhode Island, and
Connecticut. Under the Commonwealth there was but one legislative
chamber, and over that the protector exercised far more control than
had been ventured by the maddest Stuart or Tudor. One would suppose
that a period which represented the supremacy of the common people
would be marked by a mass of popular legislation. Quite the contrary
is the fact. In the first place, the Instrument of Government,
prepared by the so-called Barebones Parliament, was supposed to be a
sort of constitution; as a symbol of the change from absolute personal
government to constitutional government under this Instrument,
Cromwell exchanged his military sword for the civil common sword
carried by General Lambert, who was at the head of the deputation
praying the Lord General to accept the office of protector. It vested
the supreme power in him, acting with the advice of the Council, with
whose consent alone he could make war, and that Council was to choose
future protectors. The legislative power resided in a single chamber,
upon which he had a veto. There was an ordinary property qualification
for voting, and religious liberty was guaranteed, except as to the
papists. Only one Parliament, as a matter of fact, assembled under
this Instrument of Government, and the very first legislative function
it endeavored to exercise seemed to offend Cromwell, who promptly
dissolved it with a file of soldiers. That was the end of
constitutional government under the protector. The laws of the Rump
Parliament, and the Barebones Parliament, are entirely omitted from
the official Statutes of England, and only to be found in a rather
rare volume. They mostly concern military affairs. The real reforms of
government, like the abolition of the Star Chamber and feudal tenures,
had in fact been carried out under Charles I.

A further word should be given to the origin of the business
corporation, an almost accidental event, which has affected the world
of trade and affairs more than the invention of printing, of the
bill of exchange, and the Law Merchant combined. It would have been
perfectly possible for the world to get on and do business without
the modern corporation--without the invention of a fictitious person
clothed with the enormously powerful attributes of immortality
and irresponsibility. That is to say, men can act together or in
partnership, but they are mortal, and at their death their personal
powers end. The corporation may be immortal, and its powers, as well
as its acquisitions, increase forever. Men are liable with all their
estates for their contracts and obligations. Men in corporations are
only liable to the amount of their aliquot share of stock, or often
not at all. Corporations may dissolve, and be reborn, divide, and
reunite, swallow up other corporations or often other persons.
Individuals cannot do so except by the easily broken bond of
co-partnership.

Trading corporations for profit were _practically_ unknown to the
Romans, or even to Continental countries--scholastic precedents
and the Venetian _commendam_ to the contrary notwithstanding. They
developed in England first out of the guild or out of the monastery;
but the religious corporation, although regarded with great jealousy
in the Statutes against Mortmain, which show that from the earliest
times our ancestors feared the attribute of immortality that
characterizes the corporation, have never had the principle of
limited, or no, personal liability. That, indeed, is said to have been
invented by the State of Connecticut (see below, chapter 10). They
were, however, often clothed with monopoly. In 1643 we find the
Fellowship of Merchant Adventurers of England, a business corporation,
with power to levy money on the members, and exclusive powers to trade
in its own products, which seem to have been clothing and woollen
manufactures. We have already mentioned the earlier charter to the
Eastland merchants. Mr. James Bryce has pointed out to me that the
objection of monopoly would not have been felt so much to apply to a
corporation chartered only for purposes of trade out of England. It
would seem, therefore, that the invention and growth of the secular
corporation was an accident of the legislation of Queen Elizabeth's
time; and arose rather from this desire to get a monopoly, than from
any conscious copying of the trade guilds, still less the religious
corporations of earlier dates; for the trade guilds were nothing but
a more or less voluntary association of men bound together in a very
indefinite bond, hardly more of a permanent effective body than any
changing group of men, such as a political party is, from year to
year; the only bond between them being that they happen at some
particular time to exercise a certain claim at a certain place; and
even the trade guilds, as we know, had somewhat the course of a modern
corporation. They became overgrown, aristocratic, swollen in fortune,
and monopolistic in tendency. To some extent in the English cities and
towns, and still more in France, they became tyrannous. And in the
previous reign of Henry VIII all religious corporations had been
dissolved.

Not much, perhaps, remained for Cromwell's Parliament to do. The
abuses of law-making, of the Star Chamber, and other non-common-law
courts, of personal government, had been swept away under Charles I.
In 1644 the Book of Common Prayer was abolished. In 1646 the bishops
were abolished, in 1648 the king and the House of Peers, and in 1649
the king was beheaded. Cromwell's Parliament was more interested
in the raising of money and the dividing up royal lands than in
constructive legislation. They did find time to forbid the planting
of tobacco in England, and to pass an act furthering the religion of
Jesus Christ in New England; also a society for the foundation of the
gospel in New England, with power to raise money or make collections
for that purpose, provided always, they did not carry any gold,
silver, plate, or money outside of England. An act claiming that "the
Indians are renouncing their heathen sorceries and betaking themselves
to English schools and universities," possibly refers to one Indian
graduate of Harvard, Caleb Cheeshahteaumuck, of the class of 1665.
There are statutes concerning the impressing of seamen; a bankruptcy
act, a statute authorizing secular marriage without a priest or church
ceremony, and the act for preferring veterans in the Spanish War in
civil service, a statute which gives a respectable antiquity to our
laws making a privileged class of veterans or the descendants of
veterans of the Civil and Spanish Wars. Under Cromwell they could
exercise any trade without apprenticeship; a recent South Carolinian
statute providing that Confederate veterans could exercise any trade
without paying the usual license tax was held unconstitutional by the
Supreme Court of South Carolina itself.




VI

AMERICAN LEGISLATION IN GENERAL


Before approaching the actual field of American legislation, it may be
wise to make a few general statements concerning it. It was some fifty
years after the adoption of the Federal Constitution before it began
in great bulk, but to-day we find in the States alone forty-six
legislative bodies, and two of Territories, besides the Federal
Congress and the limited legislatures of our insular possessions.
Nearly all of these turn out laws every year; even when the
legislatures meet biennially, they frequently have an annual session.
Only in one or two Southern States have recent constitutions
restricted them to once in four years. It would be a fair estimate
that they average five hundred statutes a year, which would make,
roughly speaking, twenty-five thousand annual laws. It has been well
doubted by students of modern democracy, by Lecky and Carlyle, if this
immense mass of legislation is a benefit at all. Carlyle, indeed, is
recorded to have taken Emerson down to the House of Commons and showed
him that legislative body in full function, only taking him away when
he was sufficiently exhausted, with the query whether Emerson, though
a Unitarian, did not now believe in a personal devil. Administrative
law-making for the machinery of government there must always be, but
for the rest, if we rely on the common law and its natural development
alone, our condition will be far less hopeless than most of us might
imagine. Indeed, as we shall so often find, it is the very ease and
frequency of legislation that has caused our courts and law-makers
to forego the well-tried doctrines of the common law. Many of our
statutes but re-enact it; when they go beyond it, it is frequently to
blunder. Moreover, it is a commonplace that no law is successful that
does not fairly express the thought and customs, the conditions, of
the mass of the people. Professor Jenks of Oxford applies to all other
legislation the term "fancy legislation," or, as we might say, freak
legislation--the caprices and desires of the present legislature or
their constituents, carried immediately into law; and we may say at
the outset that such legislation has rarely proved wise, and
hardly ever effective. It is needless to state that many modern
statutes--like prohibition laws, for instance--are passed for that
very reason. Yet whatever the fact may have been in the past, there is
no doubt that for the future, legislation by the people, constructive
law-making at the popular behest, is the great new fact of
Anglo-American civilization. There has just been brought out an
immense index, under the auspices of the British Government, called
"The Legislation of the Empire, being a Survey of the Legislative
Enactments of the British Dominions, from 1897 to 1907." This
work fills four huge volumes, and gives but the briefest possible
index-headings of the statutes of the British Empire for that period.
Our excellent "Index of Legislation," published by the New York State
Library, contains about six hundred pages, and even this is hardly
more than an index, as the title suggests.

Now, this tremendous increase in legislative output, most notable in
the States of the United States, did not begin with us at once. For
some forty or fifty years after the Revolution our State legislatures
made as little constructive legislation as did the Parliament of
George III. It was with the end of the first quarter of the nineteenth
century that the great increase began. It seems to have taken
democratic legislatures some fifty years to become conscious that they
had this new unlimited power, and not only that they possessed it but
were expected to exercise it; the power of making absolutely new laws,
statutes which did not exist before as law, either by the common law
or by the custom of the people. It is true, our ancestors had some
taste of radical legislation during the Revolution, and the checks of
the State constitutions were adopted for that reason; but subject only
to this limitation, it was the first modern experiment in popular
legislation. The great wave of radical law-making that began with the
moral movements--the prohibition movement, the anti-slavery movement,
and the women's rights movement--of the second quarter of the
nineteenth century, lasted down until the Civil War. After that
there was a conservative reaction, followed by a new radical wave in
reconstruction times, which ended with another conservative reaction
at the time of the first election of President Cleveland. Since then,
new moral or social movements, mainly those concerned with the desire
to benefit labor and repress the trusts, with the desire to protect
women and children, seem to have brought up a new radical wave, the
progress of which has hardly ended yet. Before the Civil War, the
women's rights movement and the anti-slavery movement always worked
together. They were in great part composed of the same persons. In
fact, the historical origin of the women's suffrage movement was a
large abolition meeting held in England, but attended by many women
delegates from America, where they excluded a leading American woman
abolitionist and would only allow her husband to take her seat in her
place. We shall, of course, consider this precise question later, and
pause now merely to note the fact that with the anti-slavery movement,
ending with the adoption of the war amendments and the women's
suffrage movement, ceasing to progress soon after, there came the
period of conservative reaction, or, at least, of quiescence, which
lasted down to the recent labor and social movements that have caused
our increasing mass of constructive legislation in the last few years.
It is true that some of the far Western Territories adopted women's
suffrage soon after being made States, or at the time they were
admitted; but no other State, even of those surrounding them, has
followed their example, though the people have repeatedly voted on the
point. Whatever progress the cause may have made in England, or in the
larger cities of the East, I think that no unprejudiced observer would
say that it looks so near to accomplishment as it did in the twenty
years preceding the Civil War. Then, also, there was during the same
decades a great increase in personal property; that is to say, in
corporate stocks and bonds, the kind of property most easily attacked
by legislation; but the very possession of such securities by large
numbers of the people tended to make them more conservative in
ordinary property matters. It is in the times when you have but
farmers on the one side, as in the Shay Rebellion in Massachusetts
after the Revolution, or when the proletariat on the one side is
opposed to the bourgeoisie on the other, as in certain Continental
countries, that you find radical legislation. We were fortunate in
that a large number of our citizens were thus arrayed on both sides of
the question. Property rights, of course, have been granted to women
most completely throughout the Union, but in twenty years they have
made little progress toward the vote.

Blackstone says that democracy is peculiarly fitted to the making of
laws, and calls attention to the importance of legislation, with the
regret that there should be no other state of life, arts, or science,
in which no preliminary instruction is looked upon as requisite; but
by "democracy" Blackstone really meant representative government,
which still acts quite differently from the referendum and the
initiative. Democracies, he says, are usually the best calculated to
direct the end of a law. But in no sense, says Professor Jenks, was
the British Parliament the result of a democracy; while our State
legislatures during the Revolution were, indeed, democratic, and
practically omnipotent, and for that very reason were promptly curbed
by the State constitutions, which were adopted even before the
Federal. And of late the distrust of our legislatures is shown by the
most exaggerated list of restrictions we find placed upon them in the
newer constitutions of the Southern and Western States. Another thing
Blackstone oddly says, is that in legislation by the people they will
show great caution in making new laws that may interfere with their
rights and liberties. Precisely the contrary is experienced. Nobody is
so willing to interfere with the rights or liberties of the people
as the people themselves, or their supposed representatives in the
legislature; and a body or faction of the people is far more ready and
reckless to impose its will upon the others than have been the most
masterful English monarchs.

The recklessness of legislatures has two or three most evil
consequences. They pass foolish or unconstitutional laws, relying on
the governor to veto them, or the courts to declare them void--which
has the effect of shirking their responsibility and imposing unjust
and obnoxious duties on the other branches of government, to which
they do not fairly belong; increases the growing disrespect for
all law, and deteriorates the moral and intellectual fibre of the
legislature itself. Finally, also, it provokes that hypertrophic
modern State constitution of the South and West, which tries to bind
down future legislatures in infinite particulars, thereby again
diminishing their importance and responsibility, making it more
difficult to get able men to serve in them, and, by the frequent
necessary amendment of State constitutions, resulting in a continual
referendum, which nearly does away with representative government
itself.

Moreover, when a law is unconstitutional it should ever be only
because it violates some great natural right of humanity, personal
liberty, property, or the right to common law. When constitutions go
into details which are not substantially connected with these cardinal
rights, they bring themselves into contempt, and justify the growing
prejudice of our labor leaders against them. The people should
believe, as I think they do believe under the Federal Constitution and
under the older ones of the States, that when a law is declared _no_
law by a high court for being counter to the higher will of the
people as expressed in their permanent constitution, it is not on a
technicality, but because some great liberty right is infringed by it.
Yet it is a curious thing that whereas our people only got the power
to legislate by democratic assemblies freely and completely from the
year 1776, in hardly more than a hundred years after their conscious
possession of that power we find a respectably strong popular movement
attempting to reverse it, or, at least, to limit its field. Most of
our advocates of direct legislation by the people assume that a great
mass of law-making would result in practice; probably the contrary
is true; the referendum would destroy more than the initiative would
create. They would go back to a condition of things which, in theory
at least, existed in the England of the early Saxon times; although,
of course, in those days only the freemen, and no women, had the
law-making vote. Anyhow, it is curious that that representative
government upon which we have been priding ourselves as the one great
Anglo-Saxon political invention should be precisely the thing that we
are now urged to give up. In the _Federalist_ there is much discussion
as to whether it is possible to have so big a democracy as the United
States, and the answer made by Hamilton was; "Yes, because we shall
have representative government." But detailed discussion of the
initiative we must leave for a later chapter.

Perhaps we begin to detect the prejudice in the general mind, which is
notable in the works of a few earlier theorists, to prefer statute law
to what is known as judge-made law, on that ground alone. The writer
is not of the school that admits there is such a thing as judge-made
law, but believes the phrase to be a misnomer, at least in ninety-nine
cases out of a hundred. The whole theory of the English law is that
it exists in and by the people and is known of them before it is
announced by a judge, and although the extreme of this theory be
somewhat metaphysical, it is certainly true that a judge is a very bad
judge who does not decide a point of law apparently new or doubtful
according to the entire body of English-American precedent,
experience, rather than by his own way of looking at things. If judges
really made new law, particularly if they made it consciously, it
would be more than "aristocratic"--it would be simply tyrannical, and,
of course, be unconstitutional as well as being an interference with
the legislative branch of government. But it is doubtless this theory,
that it is the statute law that is the democratic kind, which has
given form and body to the vast mass of statutes we are here to
consider. Certain of our legislators seem to be horrified when a court
applies a precedent a hundred years old, still more when it is a
thousand years old, although to the jurist, in most cases at least, if
never since questioned and never grown obsolete, it is entitled to all
the more respect for that reason. Both the labor interests and
the "special interests" resent excessively the recent tendency of
intelligent judges to look at precedent and history. Mr. Debs will
tell you that such matters are aristocratic and reactionary; Mr.
Rockefeller, or his lawyer, that they are both visionary and obsolete.
Yet a statute may only represent the sudden will of a small body of
mediocre intelligence on a new subject (or an old one) which they have
never studied. It is true that if they make a mistake they can amend
it to-morrow; but so, also, may be amended the decisions of the court.




VII

AMERICAN LEGISLATION ON PROPERTY RIGHTS


When we come to the vast field of legislation in the United States,
comprising the law-making of forty-six States, two Territories, the
National Congress, and the Federal District, it is difficult to decide
how to divide the subject so as to make it manageable. The division
made by State codes and revisions, and the United States Revised
Statutes, hardly suits our purpose, for it is made rather for lawyers
than sociologists or students in comparative legislation. The division
made by the valuable "Year Book of Legislation," published by the New
York State Library, comprises some twenty subjects: Constitutional
Law; Organic Law; Citizenship and Civil Rights; Elections; Criminal
Law; Civil Law; Property and Contracts; Torts; Family; Corporations;
Combinations and Monopolies; Procedure; Finance; Public Order; Health
and Safety; Land and Waters; Transportation; Commerce and Industry;
Banking; Insurance; Navigation and Waterways; Agriculture; Game and
Fish; Mines and Mining; Labor; Charities; Education; Military Matters;
and Local Government. This division, however convenient in practice,
crosscuts the various fields of legislation as divided in any logical
manner. The same criticism may be applied to a somewhat simpler
division I have used in tabulating State legislation for the last
twenty years into thirteen columns, the titles of these being, roughly
speaking, Property and Taxation; Regulation of Trades and Commercial
Law; Personal Liberty and Civil Rights; Labor; Criminal Law, Health
and Morality; Government; Elections and Voting; Courts and Procedure;
Militia and Military Law; Women, Children, Marriage and Divorce;
Charities, Education, Religion and Jails; Agriculture, Mining and
Forestry; Corporations, Trusts and Interstate Commerce. Is it not
possible to begin with a broader and more simple division?

Now, all statutes are limitations on a state of pure individualism,
defining this latter word to mean a state of society recognizing
personal liberty and private property, and allowing all possible
freedom of action and contract relating thereto; with a court
administration for the purpose of protecting such liberty and
enforcing such contracts in the courts. The usual rough division of
our constitutional rights, following the phraseology of the Fourteenth
Amendment, is that of life, liberty, and property; but the rights to
life and liberty obviously belong to the same broad field. Our first
division, therefore, may well be that which divides life and liberty
rights from property rights; although in some cases, notably in the
earnings of labor, they would be found to run together. Liberty rights
are multifarious and indefinite; we may, therefore, first take the
field of property as presenting, after all, a more simple subject.
Considering all possible organizations of human society from this
point of view, we shall find that all may be expressed, all at least
that have hitherto been conceived, under the systems of anarchism,
individualism, and socialism, these words expressing all possible
states of human society when expressed in terms of individual liberty,
that is to say, the free exercise of the individual will. Either
one of these may exist either with or without the notion of private
property; though, of course, one's action as to property would be
controlled under a system of socialism, and property itself would have
no legal protection under a system of anarchism. Nevertheless, the
notion of property might still exist and be recognized by the custom
of mankind without any sanction or enforcement from the entire
community, _i.e._, what people call the state. When we are speaking in
terms of property, we use the word _communism_--meaning that state of
society where the conception of property exists, but the law or custom
will not recognize individualism. Communism, therefore, usually
implies ownership by the entire community, while in anarchism there is
no property at all. There has been much confusion in the use of these
terms in the popular mind, and even in ordinary writing. Many people
have confounded, for instance, socialism with anarchism or nihilism,
when the two things are whole poles apart. In the same manner,
communism has been confounded with socialism, although the term should
be used in entirely different connections--communism when we are
speaking in terms of property, socialism when we are speaking in
terms of individual liberty. The word _individualism_ was used by
the present writer in a series of articles entitled "The Ethics
of Democracy," beginning in 1887, as the most convenient term
for describing that state of society where the greatest possible
individual liberty is conjoined with a strong recognition of the right
of private property, substantially the _laissez faire_ school as
it existed in England in the first half of the last century; "the
distinction between communistic and socialistic laws being, that the
former are concerned solely with the taking or redistribution of money
or property; the latter regulate or prohibit men's mode of life, acts,
or contracts, either among themselves or as concerning the state." [1]

[Footnote 1: _Scribner's Magazine_, vol. XV, p. 653.]

Now, property is but the creature of law; and that is to say, in
those of our States which have no common law, of statute. Jurists
and communists are alike agreed on this. "Property is robbery," said
Proudhon; property is but the creature of law, all English jurists
admit. It is, of course, possible to conceive of a social system which
recognizes no right of property, or one which makes all property
belong to the community, or a middle ground which admits the
institution, but holds that every individual holds property subject
to the state's, that is, the organized community's, regulation and
control. A convenient term for this state of affairs to which,
perhaps, in our statutes, we are approaching, is "allowable
_socialism_"; private property is recognized, but its use is
regulated. In England they call it "gas-and-water socialism"; but this
term, though picturesque, is not sufficiently comprehensive, relating,
as it does, only to municipal activities. There is a third variety,
the latest and perhaps the most intelligent of all, that believed in
by leading modern German and American socialists, which we will call
nationalism--the nationalization or municipalization of productive
industry--the science of this doctrine being that private property may
exist in all personal belongings, articles of pleasure, or domestic
necessity, but not in lands, mines, works, or other instrumentalities
used for the further production of wealth.

Whatever the future may bring, we must start with the institution of
private property recognized to its fullest extent. It is expressly
guaranteed in our Federal Constitution, as for the matter of that it
was also in Magna Charta, as clearly as the right to liberty, and
usually in the very same clause. Not only that, but when we adopted
our first State constitutions, from 1776 to 1788, and the Federal
Constitution in 1789, every one of them made express guarantee of this
right. One or two, following the lead of Massachusetts and Virginia,
recognized equality also, or, at least, equality by birth and before
the law; but without exception property was expressly recognized as
one of two leading constitutional rights, and even in some States,
like Virginia, it was termed a natural right. The same thing is
true of the Massachusetts Bill of Rights and in the Federal Fifth
Amendment, though it is significant that the Declaration of
Independence omits the word _property_, and only mentions among
unalienable rights, life, liberty, and the pursuit of happiness--which
some courts have held to include private property.[1] Nevertheless,
under our constitutions to-day, the right is not only doubly, but even
triply, guaranteed; that is to say, by all State constitutions against
State action; by the Federal Constitution against national action;
and finally, by the Federal government in the Fourteenth Amendment
as against State action also. This is the reason why, in any case
affecting a cardinal liberty or property right, a litigant may
carry his case not only through the State courts, which have sole
jurisdiction of ordinary business and domestic matters, but to the
courts of the United States as well.

[Footnote 1: Justice Brewer, in the _Yale Law Review_, for June, 1891.
He holds that under "the pursuit of happiness" comes the acquisition,
possession, and enjoyment of property, and that they are matters which
even government cannot forbid nor destroy. That, except in punishment
for crime, no man's property can be taken without just compensation,
and he closes: "Instead of saying that all private property is held at
the mercy of the public, it is a higher truth that all rights of the
state in the property of the individual are at the expense of the
people."]

When we come to legislation on the subject, or to modern State
constitutions, there is hardly a change in this particular. Naturally,
we find no new legislation confirming the right of property
abstractly, or restating that that institution is part of our
civilization. There is but one significant exception to this
statement. While most of the States in their constitutions declare
that men have a natural right to acquire, possess, and protect
property, and Kentucky and Arkansas go to the length of saying that
the right of property is "before and higher than any constitutional
sanction"--which latter statement is a legal hyperbole--Oklahoma in
its recent constitution, North Carolina, and Missouri state only that
men have a natural right to the enjoyment of the fruits of their own
labor; on the other hand there are recent intimations coming from
Federal sources that individualism or private property rights, at
least, and not anarchism or socialism, are part of our constitutional
system. Before 1907 a Texas district judge refused to naturalize an
immigrant on the ground that he was a socialist and that socialism was
inconsistent with the Federal Constitution; and in that year Congress
passed an act to regulate all immigration of aliens, which excludes,
among other classes, persons who believe in or advocate the overthrow
by force or violence of the government of the United States or of all
government, or of all forms of law--a definition which would exclude
anarchists, but not socialists; and in the case of South Carolina _v_.
United States (199 U.S. 437), the Supreme Court of the United States
gave serious consideration to the question whether State socialism was
compatible with a republican form of government. This is all, so far
as I am aware, that a century and a half of legislation has given us
affirming the abstract right of property, though there are several
constructive statutes and constitutional provisions applied to the
general right to trade or labor, which we shall consider when we come
to that subject.

When a right is expressly guaranteed by the Constitution, we need
ordinarily have no affirmative legislation about it. Liberty and
property being always guaranteed by the State constitutions, it has
not been necessary for the States to legislate to protect them.

Our study of this subject, therefore, will be confined to the
restrictive or limiting legislation affecting private property or
property rights, and of this we shall find plenty. Now there are four,
and only four, methods by which the state, that is to say, American
society as organized into governments, interferes with the right to
property or the enjoyment and use thereof; that is to say, taxation,
which is, of course, general; eminent domain, a peculiarly American
doctrine; the police power; and the regulation of rates and charges.
Some authorities place the last under the police power; but It does
not seem to me that it historically, if logically, belongs there.

Starting with the simplest first--eminent domain, an American doctrine
which, in its simplest form, subjects the land of any one to the need
of the state or, in cases authorized by the Federal Constitution,
of the nation. It is questionable whether it applies to personal
property. It is an American doctrine, for in England where the king
remained in theory the feudal over-lord, it was not necessary for him
or the sovereign Parliament, wishing to take or control land, and
having no constitution protecting property rights against such action,
to invent any new doctrine; but with us all land is allodial. The old
charters of the original States creating tenures in free and common
socage are, of course, obsolete. Everybody is a freeholder, and the
States are not, still less the Federal government, a feudal over-lord.
Nevertheless, the property of every one must be subject to the supreme
common necessity; and the right is absolute in the States, although
limited in the national government by the Federal Constitution. It
is an American constitutional principle; and this principle also
provides, as does Magna Charta and the early charters of England as to
_personal_ property seized by royal purveyors, that full damages must
be paid; and to this general principle our constitutions have added
that the damages must be paid at the time of the taking and the amount
be determined by due process of law; that is to say, in most cases
by a jury. Blackstone says: "So great is the regard of the law for
private property that it will not authorize the least violation of it;
no, not even for the general good of the whole community";[1] a new
road, for instance, cannot be made without consent of the owner of the
land, and the words "eminent domain" do not appear in the text of his
book. But though we hold the contrary doctrine, the rights of the
property owner are sufficiently protected when the taking is directed
by the State, or even by a city or town. The menace to property here,
with the increasing bulk of legislation, comes in the number of _new_
uses, not only directly for the State or for cities and towns, but for
public-service corporations, or often other private corporations, and
associations of persons, who are permitted by legislation to take land
under eminent domain, or, what is often worse, to acquire easements
over it. Most of the States give damages for land not actually taken,
but damaged, though our Federal courts have not held this to be
necessary under the Fourteenth Amendment; but although land can still,
in theory, only be taken for a public use, the number of uses which
our legislation makes public Is being enormously increased. The usual
national purposes are forts, magazines, arsenals, dockyards, and other
needful buildings. Independent of some express permission in the
Constitution, the Federal government has no power to take, or even to
own, land at all within the State limits. Therefore, it is questioned
whether land may be taken for national parks or forest reservations
except in the Territories, where title still remains with the Federal
government. But the State's power of eminent domain is unlimited,
although it began only with the towns or counties taking roads for
highways, and cities and towns appropriating lands for schools and
other public buildings. Probably the only serious addition of a
wholly public use is covered by the general expression, parks and
playgrounds; but the analogy of the highway led to the taking of land
under eminent domain for railroads, when they were first invented,
then for street railways, then for telegraph, telephone, and
electric-light lines, underground pipe-lines or conduits of all sorts,
and finally, for drains, sewerage districts, public, and often private
irrigation purposes. Most of the more complex State constitutions
define at great length to the extent of some twenty or thirty
paragraphs just what purposes shall be considered a public use under
eminent domain. In the absence of such definition, or without such
definition, the number of such uses is being enormously increased by
statute. Thus, reservoirs, storage basins, irrigation canals, ditches,
flumes, and pipes for water drainage, or mining purposes, working
mines, as dumps, hoists, shafts, tunnels, are made a public use by the
constitutions of the arid States, Idaho and Wyoming. So as to water
only in Montana, but in Idaho also to any other use "necessary for the
complete development of the material resources of the State or the
preservation of the health of its inhabitants."[2] And even by private
parties, land may be taken for ways of necessity in many States, and
for drains, flumes, and aqueducts by the constitutions of the arid
States.

[Footnote 1: Book I, p. 139.]

[Footnote 2: These provisions are collated in "Federal and State
Constitutions," p. 159.]

At common law, of course, a man or a set of men, who happen to be
neighbors, would have had no right to take my land for a private way,
or for drainage or irrigation purposes, however beneficial to their
land; still less to take water from my stream across my land to their
fields. But this precise thing can be done in an increasing number of
States, although it has been held unconstitutional in the courts
of one or two of the far Western States, and has even yet not been
decided by the Supreme Court of the United States as to the powers of
the Federal government. Under the broad definition given in Idaho
and Wyoming, you can probably take land to establish a municipal
coal-yard, or dispensary, or anything else that the legislature might
suppose to be for the general health or benefit of the people. Yet
a hotel company would not, as yet, be considered a public use, nor,
probably, a private recreation park. And land taken for one use may be
subjected to other and totally distinct uses without giving any new
right of damages, as was decided in Massachusetts, at least, when land
given or taken for an ordinary city street was afterward occupied by a
steam railroad. A notable limitation on the use of streets, however,
we find imposed by the statutes of New York and many other States,
which provide that no railway shall be placed therein without the
consent of a majority of the property owners or abutters. There is
frequent legislation providing that the betterment taxes collected in
case of public improvement shall not exceed the damages given for the
property actually taken. In the last two or three years there has been
an extension of the doctrine, authorizing cities and towns to take
more land than is actually needed, for the purpose of convenience, or
in order to get a better bargain, and then sell the surplus; but such
laws may be unconstitutional.

Land may, of course, be taken for all municipal purposes, including
public squares or parks, playgrounds, reformatories and penal
institutions, levees, ditches, drains, and for cemeteries; and the
right is being granted to private companies other than those above
mentioned, in Colorado, to tunnel, transportation, electric power, and
aërial tramway companies; in North Carolina to flume companies; in
many States for private irrigation districts; in the West generally to
mining or quarrying companies; in West Virginia and other States to
electric power, light, or gas companies; while in North Carolina,
Washington, and Wisconsin, we find the dangerous grant of this great
power to electric-power companies, which are, in Wisconsin at least,
expressly permitted to flood lands by right of eminent domain in order
to form ponds for power purposes. It is easy to see that under such
legislation everybody holds his land not only subject to public need,
but to the greed of any designing neighbor. Perhaps the most important
question of eminent domain is or was whether it authorized
general schemes of internal improvement made by the State or by a
municipality, or, worse still, by a private corporation chartered for
the purpose. The Constitution of Michigan, with those of the Dakotas
and Wyoming, provides that the State cannot be interested in works of
internal improvement, nor, in North Dakota and Wyoming, engage in them
except on two-thirds vote of the people; nor, in Alabama, may it
loan its credit in support of such works; nor, also, in Maryland,
Minnesota, Ohio, and Wisconsin, create or contract debts for them;
nor, in Kansas and Michigan again, be a party to carrying on such
works. But the Tennessee Constitution declares that a well-regulated
system of internal improvement should be encouraged by the
legislature. So, in Virginia, no town or county may become a party to
any work of internal improvement except roads, and they are frequently
forbidden from borrowing money for such purposes. There is, therefore,
considerable constitutional check to legislation in this direction.[1]

[Footnote 1: See "Federal and State Constitutions," book III, secs.
92, 324, 345 370, 391, and 395.]

Taxation, of course, has from all time been the universal limitation
upon property rights, though it is important to remember that until
the present budget there has not in modern times been an attempt at
direct taxation of the capital value of land in England; Cobbett
records many "aids" of a few shillings per hide of land in
Anglo-Norman times. The earliest taxation was the feudal aids imposed
purely for defensive purposes, for building forts and bridges; later
for foreign wars or crusades. We have traced the origin of the
scutage tax as a substitute for military service and the two great
constitutional principles that all taxation must be with the common
consent of the realm; that is to say, of Parliament, later of the
House of Commons; and must also and equally be for the common benefit.
Theorists have argued, particularly with us, that under the latter
principle protective tariffs are unconstitutional; but even if it be
admitted that they are not for the benefit of the whole people, the
exception is as old as the rule; protective tariff laws, and, earlier
still, laws absolutely prohibitive of importation, being plentiful
on the English statute-books before and at the time this earliest
of constitutional principles appeared. There is a step beyond the
protective tariffs, however, which is naturally mentioned in this
connection, and that is the bounty--sums of money paid to certain
interests and derived from the general taxes fund. Under the Acts of
Congress there has been, I think, only one instance of a bounty; that
is in the case of the Louisiana sugar-growers. In State legislation it
has been a little more usual. Foreign countries, notably Germany and
France, as to beet sugar, etc., have been in the habit of giving
bounties. This precedent undoubtedly suggested it; but these countries
do not enjoy our constitutional principles. There has hardly been a
direct decision on the constitutionality of the Federal bounty, but as
to State bounties we find several, with an increasing tendency to hold
void such laws. There can be no question that they are utterly against
our whole constitutional system. The Supreme Court, when considering
sugar-bounty laws, seems to have thought that it might be sustained
as a compensation made for a moral obligation, the Louisiana planters
having been led into industries from which the protection was suddenly
removed; of such nature must be the justification, if any, for
bounties given in times of flood, fire, or public disaster, which,
however, are really sustained only in the absence of objection and on
the principle _lex non curat de minimis._ The most insidious form of
the bounty, however, is that of exemption from taxation, or, still
worse, granting subsidies or subscribing to the stock and bonds of
public-service, or even ordinary private, corporations. Undoubtedly
the exception has been established in the case of railroads. The
granting of State, city, or county aid to railroads has existed almost
from their invention, probably on the analogy of highways; at all
events, it is too late to be constitutionally questioned now. The
exemption from taxation of private profitable enterprises, such as
mills or factories, is less defensible. Frequently, however, they go
without question, it being to no one's particular interest to do so.
The usual subjects of State bounties were, in 1890, beet-root sugar,
binding twine, iron and iron pipe, potato starch, and rope, with tax
exemptions to Portland-cement works. Ramie fibre continued a favorite
subject of bounty for some years, with seed distributions to farmers,
which were in some States held unconstitutional. In 1896 Utah gave a
bounty on canaigre leather and silk culture. There was an exemption
on salt plants in Michigan, but beet sugar continued the favorite
beneficiary. There has been a reaction against bounty legislation of
recent years. In 1908, for instance, New York repealed its bounty
on beet sugar, and it may be hoped, with greater intelligence
of constitutional principles, that all such legislation will be
abandoned.

Coming to matters of ordinary taxation, of course the first thing to
note is its extraordinary extent. In direct taxation it is not
an unfair estimate to say that the States and their municipal
organizations undertake to impose an annual assessment on real
and personal property which would average at least two per cent.
throughout the country; amounting to from one-third to one-half of the
income derived therefrom. In indirect taxation, duties, and revenue
taxes, a sum far greater is taken from the average household. One
might very much wish that the individual householder might at least
know how large a sum is thus taken from his earnings annually, for it
is safe to say that in no civilized country, not even in the France
before the Revolution, was individual taxation anything like so heavy.
Therefore, we are beginning to find legislation, even constitutional
provisions, carefully limiting the tax rate. The amount of the State
tax is thus limited in probably half the States, mostly Southern or
Western, and nearly all of them limit also the amount of taxation to
be imposed by the counties, cities, towns, school districts, or for
other special purposes. In the North-eastern States such limitation
is not usual, though in Massachusetts and New York it exists as to
certain cities. It may properly be said of such legislation that it
does not appear to be so futile as one might have expected. There
is, of course, a tendency to raise the limit, involving frequent
constitutional amendment, or, in Massachusetts, for instance,
where the limitation is put on only by statutes, by later statutes
authorizing the borrowing outside of the debt limit; for it should be
said that such limitations do usually apply both to the appropriations
and to the funded indebtedness incurred. Still I have not observed
in the last twenty years any repeal of such laws or constitutional
provisions, but rather an increasing number of States adopting them,
from which it may be inferred that they work satisfactorily. Nearly
all the States purport to tax the capital value of both real and
personal property, not, as in England, rents or incomes; and they tax
"tangibles" and also "intangibles." That is to say, they undertake to
tax stocks or bonds or mortgage debts; the evidence of property, as
well as the property itself; and the debt as well as the property
securing It. Some States, such as Pennsylvania, impose a smaller, more
nominal, tax upon stocks and bonds in the hands of the owner, for
the sake of getting a larger return, but in many States, such as
Massachusetts, this legislation would be unconstitutional, as not
proportional taxation.

There is a mass of legislation every year directed to the
assessing and collecting of taxes, tending more and more to become
inquisitorial, requiring the tax payer under oath to furnish full
schedules of his property, with provision for an arbitrary assessment
if he fails to do so. One effect of this has been to drive very
wealthy men from Ohio or other Western States to a legal residence in
the East, where the laws are more lenient, or their enforcement more
lax. The problem is a most important one and I see no signs yet of any
solution in the increasing mass of legislation one finds upon this
subject every year. It is to be noted--what our socialist friends have
never seemed to observe--that just in so far as a man's earnings or
income are taken from him in the form of taxation, you are already in
a state of socialism. That is to say, to that extent is his income
taken from him and administered by the state. This is an observation
most unwelcome to the opponents of capitalism, so-called, who resent
the conclusion that if the State and Federal governments are already
taking forty per cent. of his income from him, a state of perfect
socialism could do no more than take the other sixty per cent. This
whole problem of taxation, indeed, is evaded at present only by the
miserable solution of fraud; hardly any one, except the non-propertied
classes, paying what the law purports to take from them; and the
non-propertied classes only pay it because their taxation, being
indirect, is paid for them by others.

Coming to other forms of taxation, we may distinguish three: Income,
succession, and license. Income taxation in England dates, it is said,
from 1435; but (in the shape of tithes) it is far older. The power of
income taxation (except upon earnings and profits) belongs here only
to the States; just as the sole power of imposing duties on imports is
given to the Federal government. Many of the States impose an income
tax, but I observe no particular increase in that kind of taxation in
the legislation of the last twenty years. A man's income is commonly
taxed with his other property. It is a form of tax far more evaded
here than in England, probably because the English law provides a
machinery for collecting a large part of income taxation from the
persons from whom the income is derived, as, for instance, from the
tenant who pays rent to a landlord; just as with us a corporation
is made to pay the tax on its capital stock nominally due from the
individual owner. The only notable extension of income tax legislation
is in the establishment of the principle of the _graded_ income tax,
which is beginning to be adopted in a few States, as in North and
South Carolina in 1897.

This principle of graduated taxation has, however, been nearly
universal in our next and more modern variety--the succession tax. The
old English precedents are the "aids" and fines for alienation. But
beginning here about 1893, this form of taxation has now been adopted
by nearly all the States, the amount of the tax being graded both
according to the relation of the inheritors to the person from
whom the succession is derived, and according to the amount of the
inheritance itself; the rate of the tax thus varying all the way from
an absolute exemption, as to the wife or children, to a tax as high as
twenty-five per cent. (in New York) in the case of large estates going
to remote relatives. The Federal inheritance tax imposed at the time
of the Spanish war was soon repealed, and this domain of taxation,
with the income tax, is now almost universally employed by the States.
The principle itself can hardly be carried much farther, but it will
be necessary to have some understanding or arrangement between the
States, whereby double or treble succession taxes are not imposed
on the same estate, as notably in the case of the stock or bonds of
railroads chartered in several States, all of which may undertake to
impose full succession taxes upon such stock. It has been held
that succession taxes may be graded even in cases where a State
constitution provides for proportionate taxation, the tax being an
excise tax and not a direct property tax; but this is not so in
respect to income taxes. We may assume therefore that income taxes
must be equal in States which have this constitutional provision,
although in one or two of them recent statutes have exempted a portion
of the income of veterans of the Civil War. This might be sustained as
a pension, pensions being for actual military service constitutional,
and are in the Southern States expressly permitted to Confederate
soldiers and their families--despite the implied prohibition of the
Fourteenth Amendment.

The last form of taxation, that of an excise upon licenses or trades,
is most usual in the South. An increasing number of trades are thus
being taxed or regulated. Sometimes the taxation is put under the
guise of a fee for examination and licensing, sometimes plainly as an
excise tax. Undoubtedly such taxation is against all the history
of our legislation demanding complete freedom of labor and trade.
Nevertheless, it has not been held unconstitutional by the States
except, of course, when touching a trade which is interstate commerce,
though the _examination_ occasionally has been. Such taxation has not
yet become popular in the North, except definitely for the purpose of
examination and license; but it is almost universal in the South, many
States indeed providing by their constitution or laws that all trades
and callings may be thus taxed. These taxes may be arbitrary in
amount, but are sometimes graded according to the amount of business
done. Such legislation has been sustained in so far as it is a tax or
a license imposed for protecting the public health in a reasonable
manner; thus, doctors, plumbers, nurses, dentists, etc., have been
submitted to such regulation, but in the case of blacksmiths its
constitutionality was in one State denied, and the law as to barbers
in several States annulled. Nevertheless, it will always be a popular
method of raising money in the poorer States, where land already bears
its full burden and little personal property can be found.

Commissions of inquiry on this whole subject of taxation are
continually being appointed--we have had two in Massachusetts in
the past ten years--and their recommendations nearly always prove
unacceptable. The probable scientific answer, that you must only tax
property and not money or the evidence of property, and that if direct
taxation thereby becomes too burdensome we must reduce our rate of
expenditure, is a conclusion our legislators are yet unwilling to
accept. The taxation of corporations presents a different problem
and we shall therefore leave it for special consideration with that
subject. The matter of betterment taxes may be dismissed with a
word, as it is hardly, in theory, taxation at all, but rather using
municipal agencies to collect the cost, or part of the cost, of a
local work or benefit. It is, of course, closely connected with the
subject of eminent domain. That is to say, only a public use, or at
least a general local benefit, can justify a betterment tax. There is
still considerable legislation on this matter, confined generally to
the objects of securing a jury trial, or at least a public hearing, on
the amount of the assessment, defining the purposes for which it
may be imposed, as, for instance, paving, sewers, water-works where
public, and--perhaps the most contested case of all--that of parks or
pleasure-grounds; and providing that the amount of betterment taxes
imposed shall not exceed one-half the value of the improvement of the
property, and shall never exceed the amount paid as damages when part
of the owner's land is taken.

By far the greatest mass of legislation relating to property is
concerned with the police power and modern extensions thereof. It
is also by far the most dangerous to property rights, and this for
several reasons: firstly, it involves the destruction of property
without any compensation whatever, not upon payment of damages, as in
the ease of eminent domain; secondly, on account of the extraordinary
extension by our modern legislation of this power to matters not
hitherto deemed necessary for the safety, health, or even the
well-being of the public, vague as the legal application of the last
word is; thirdly, and perhaps most important, because the police
power is usually exercised without any common-law guarantees, without
process of law or jury trial, but by the arbitrary ruling of some
board, or even single commissioner, and often, so far as the statute
is concerned, without a jury or even an appeal from the commissioner's
ruling to any court of law.

I believe this to be the most dangerous tendency that now confronts
the American people--government by commission, tenfold more dangerous
than "government by injunction." Not only is there no liberty, no
appeal to common right and the courts, but all permanent "boards" tend
to become narrow and pedantic or, worse, to be controlled by the works
they are created to control.[1] The constitutionality of such boards
is, of course, always questionable, but the tendency to create them is
perhaps the most striking thing in modern American legislation. Not
only do we find them in enormously increased numbers in all the
States, but even a late President of the United States seriously
recommended that the contracts and affairs of all corporations at
least (and the bulk of modern business is done in corporate form)
should be so submitted to the control or dictation, or even the
nullification, of such an administrative board or commission, and this
again with no appeal to the courts. So audacious an upsetting of
all Anglo-Saxon ideas of the right to law, it may be said without
exaggeration, has never been attempted in the history of the English
people, not even by the Stuart kings, who were most of all disposed
to interfere in such particulars. Wiser counsels deterred the
administration from insisting on this measure, but the fact that it
could be brought up, and that with the approval of a large portion of
the public, indicates how radical our legislation is getting to be in
this particular.

[Footnote 1: Two singular instances happened only the past year: at
common law any one may build railroads, and they are certainly for the
general advantage whether profitable to the owners or not. Yet the
railroad commissions of New York and Massachusetts have recently
in each State prevented the building of most important lines, by
responsible applicants--under the opposition of other railroads.]

It is a commonplace in the law that no court has defined, or ever will
consent to define, the exact limits of this police power; suffice
it to say that in the classic words of Chief Justice Shaw of
Massachusetts, "it is all that makes for the health, safety, or
comfort of the people." As to the health and safety, there can be
little question; but when it comes to indefinite words like "comfort"
or "well-being," too wide a field is left for the imagination. It
has recently been decided that the aesthetic part of life does not
necessarily concern the comfort or well-being of the people. That is
to say, laws forbidding the use of land for the erection of hideous
signs, or forbidding the height of buildings at an inartistic excess
have been declared not to fall within the police power, but under
eminent domain. So of statutes forbidding the taking of a man's
picture, or a woman's portrait for advertising purposes, when not
properly obtained; yet it may be questioned if any law is more
certainly for the comfort of the persons concerned than such a
statute. On the other hand, noisy or noxious trades, mosquito ponds,
trees infected with moths, etc., sawdust in water, offensive smoke,
and, in Vermont, signs, were all made nuisances by statute of one
State or other in 1905 alone. The first historical instance, perhaps,
of destruction of property under the police power was the blowing
up of buildings to check a conflagration, a practice still common,
although its utility was much questioned after the Boston fire,
and which, at common law at least, gave the owner no right to
compensation; but the more usual use of the police power until very
recent years has been limited to the prohibition of offensive trades
in certain localities, and the suppression of public nuisances. Later,
the prohibition of the manufacture of intoxicating or malt liquors,
and the regulation of tenement houses at the orders of the Board of
Health. This led to the regulation or prohibition of certain trades
conducted in tenement houses or in sweat shops, and to other matters
which we shall find it more convenient to consider under the head of
labor legislation.

Whether there are any limits to this power is much discussed. There is
no question that the power must not be arbitrary or utterly without
reason, and of that reason the courts must and do in fact judge.
Taking property for a purpose unjustified by the police power is,
of course, taking property without due process of law. An arbitrary
statute taking the property of _A_ and giving it to _B_, or even to
the public, without compensation has, from the time of Lord Coke
himself, been the classic definition of an unjustifiable law and one
which with us at least is unconstitutional; but our courts wisely
refuse to judge if, when a proper police motive is disclosed in the
statute, it is the _best_ method of effecting the result. This, I
think, is a clear statement of the principle of our court decisions.
If, upon the face of the statute, the court can see no possible
relation to the public health or safety, or, possibly, general
welfare, it will hold the law null in so far as it invades either
property or liberty rights because not under the police power. If, on
the other hand, they can see _some_ relation to the public health,
safety, or general welfare, even though they do not think it the best
method of bringing about the desired result, they will not presume to
run counter to legislative opinion. Of the expediency of the statute,
the legislature must be and is the final judge.

With us the police power is exercised largely for moral reasons. That
is to say, the great instances of its extension have been connected
with moral or sanitary reform. No doubt the police power may broaden
with advancing civilization and more complex appliances and possibly
greater medical knowledge and social solidarity. No doubt purposes
which were once lawful may be unlawful, and property devoted to them
thus be destroyed by a change in the law. Mr. Justice Brewer, of
our Supreme Court, holding the contrary view, was overruled by the
majority, and that decision is final.[1] Not only we, but a State, may
not even make a contract which shall be immune from future extension
of the police power, the Dartmouth College case notwithstanding. For
instance, the State of Massachusetts in 1827 granted a perpetual
franchise to a corporation to make beer. It was allowed, forty years
later, to pass a law that no corporation should make beer, and the
brewery became valueless. The State of Minnesota granted a perpetual
franchise to a railroad to fix its own fares. Twenty years later
it took away that right, thereby, as claimed, making the railroad
property valueless; the railroad had no remedy. A man in Connecticut
had barrels of whiskey in a cellar for many years, but the State was
allowed to pass a law prohibiting its sale; which, of course, had he
been a teetotaler, would have deprived that property of all value, and
in any case, of all exchange value. A man in Iowa owns one glass of
whiskey for several years, and then a law is passed forbidding him to
sell it; the law is valid. A youth in Nebraska buys tobacco and paper
and rolls a cigarette. The State afterward passes a law forbidding
smoking by minors. It is a crime if he light it. Sufficient has,
perhaps, been said to show the extraordinary scope and elasticity of
this, the widest, vaguest, and most dangerous domain of our modern
legislation, though perhaps we should add one or two striking
cases affecting personal liberty, as, for instance, a citizen of
Pennsylvania marries his first cousin in Delaware and returns to
Pennsylvania, where the marriage is void and he becomes guilty of a
criminal offence; a white man in Massachusetts who marries a negress
or mulatto may be guilty of the crime of miscegenation in other
States; a woman might work fifty-eight hours a week in Rhode Island,
but if she work over fifty-six in Massachusetts may involve her
employer, as well as herself, in a penal offence.

[Footnote 1: Mugler _v_. Kansas, 123 U. S, 623.]

The most valuable of all police legislation is, of course, that to
protect public health and safety; and prominent in the legislation of
the last twenty years are the laws to secure pure and wholesome
food and drugs. Possibly "wholesome" is saying too much, for our
legislative intelligence has not yet arrived at an understanding of
the danger from cold storage or imperfectly canned food, though Canada
and other English colonies have already legislated on the subject, to
say nothing of our tariff war with Germany on the point. One may guess
that ninety-nine per cent. of the present food of the American people,
leaving out the farmers themselves, is of meat of animals which have
been dead many months, If not years, and from vegetables which date at
least many months back. It is nonsense to suppose that such food is
equally wholesome with fresh food, or that there is not considerable
risk of acute poisoning or a permanent impairment of the digestive
system. Senator Stewart, of Nevada, has shown that nearly fifty per
cent. of the soldiers of the Spanish War had permanent digestive
trouble, as against less than three per cent. in the Civil War, which
took place before cold-storage food was known, or canned food largely
in use. It was hopeless for the States to act until there was
Federal legislation on the subject, as the health authorities had no
constitutional power over goods imported from other States; but the
passage, under Roosevelt, of a national food and drugs act has given
a great impetus to the reform, and by this writing more than half the
States have passed pure-food laws, being usually, as they obviously
should be, an exact copy of the Federal Act. Among the articles
specially mentioned in such legislation we find candy, vinegar, meat,
fertilizers, milk, butter, spices, sugar, cotton seed, formaldehyde,
insecticide, and general provisions against adulteration, false
coloring, the use of colors and preservatives, etc.

Going from matters merely unwholesome to actual poisons, the course of
legislation on intoxicating liquors is too familiar to the reader
to make it necessary to more than refer to it, with the general
observation that in the North and East the tendency has been toward
high licensing or careful regulation, always with local option; while
in the West originally, and now in the South, the tendency is to
absolute "State-wide" prohibition and even to express this principle
in the constitution. How much this extreme measure is based on the
racial question, in the South at least, is a matter of some debate;
and the working of such laws everywhere from Maine to Georgia, of
considerably more. One may hazard the guess that the wealthier
classes have no difficulty in getting their liquor through interstate
commerce, while the more disreputable classes succeed in getting it
surreptitiously. Prohibition, therefore, if effective at all, is
probably only effective among the respectable middle class where,
perhaps, of all it is least needed. In the older States, at least in
Massachusetts, there has been a decided tendency away from prohibition
in the last twenty years, and even from local prohibition in the
larger cities. Worcester, for instance, after being the largest
prohibition city in the world, ceased to be so this year by the
largest vote ever cast upon the question.

Whatever may be said of the strict prohibition of liquor dealing, no
one can have any objection to such laws as applied to cocaine, opium,
or other poisonous drugs, and we find statutes of this sort in
increasing number; while the manufacture and sale of cigarettes
to minors or even in some States, their consumption, is strictly
prohibited, under criminal penalty. Laws of a similar sort were aimed
at oleomargarine when invented, but this probably not so much to
protect the health of the people as the prosperity of the dairymen.
The mass of such legislation has emerged from the scrutiny of the
courts, State and Federal, with the general result that only such laws
will be sustained as are aimed to prevent fraud; but the manufacture
and sale of oleomargarine under that name cannot be prohibited.
Artificial coloring matter may be forbidden, but a New Hampshire law
was not sustained which required all oleomargarine to be colored pink;
so it may be guessed that the laws of those States which make criminal
the sale or use of cigarettes to or by children "_apparently_" less
than sixteen or eighteen, will hardly be sustained as a constitutional
police measure; yet such laws existed in 1890, while the State of
Washington in 1893 made the sale even of cigarette paper criminal.

Another important line of modern legislation consists in the
subjecting of trades to a license for the purpose of _examination_
(the tax feature has been discussed above). Such laws are
constitutional when applied to a trade really relating to the public
health, but as we have found above, black-smithing is not such an
one; when imposed merely for the purpose of raising revenue,
such legislation is undoubtedly constitutional under our written
constitutions, but opposed to historic English principles, which
insisted for seven centuries of statute-making on the utmost liberty
of trade. In a South American republic you have to get a concession
before going into almost any business, even maintaining a shoe-shop,
or a milk farm, which concession is, of course, often obtained by
bribery or withheld for corrupt reasons. It is to be hoped that the
citizens of our States will never find themselves in that predicament.
Still, certain State constitutions, as that of South Carolina, provide
absolutely that all trades may be made subject to a tax, and the
tendency--particularly in the South--to raise revenue in this way is
increasing by leaps and bounds. Among the trades already subjected to
such licensing or taxing, we find doctors, of course, and properly,
pharmacists, plumbers, pedlars, horse-shoers, osteopaths, dentists,
veterinary surgeons, accountants, bakers, junk dealers, coal dealers,
optometrists, architects, barbers, commission merchants, embalmers,
and nurses. Of course it is a motive to novel or irregular trades to
secure a licensing law from the State, for the slight tax insures them
protection. This is the reason that we find common statutes allowing
osteopaths, etc., to be licensed. So far as I have observed, there is
no such statute as yet in any State applying to Christian Scientists.

Police regulation for the _safety_ of the public is found nearly
entirely in the laws regulating labor, factories, mines, or machinery,
and will be accordingly treated in that connection. Laws protecting
the public against fraud, which from earliest times has been a branch
of police legislation, have been of late years numerous, principally
in connection with the prohibition of dealing in futures or sales on
margin, of sales of goods in bulk without due precautions and notice
to creditors, of the issue of trading stamps or other device tending
to mislead the public. Some States have prohibited department stores,
but this legislation has been held unconstitutional, though the early
English labor statutes forbidding to any person more than one trade or
mystery will by the historical student be borne in mind. Usury laws,
of course, are still frequent, but decreasing in number with the
increasing modern tendency to allow freedom of contract in this as
in other matters, except only to such persons as, for instance,
pawn-brokers, who peculiarly require police regulation.

Coming to statutes which merely facilitate business as it now exists,
by far the most important movement has been the successful work of the
State Commissioners on Uniformity of Law in getting their negotiable
instrument act passed in nearly all the States, and in several already
their uniform law statute on sales, only recommended in 1907. Some
progress has been made in getting a uniform standard of weights and
measures, and there is an increasing tendency to prescribe specific
weights and markings for packages--possibly unconstitutional
legislation. Still more important as a change in previously existing
law has been the increasing tendency to make documents other than
bills and notes negotiable. Perhaps this is a matter which requires
explanation to the lay reader.

The early Anglo-Saxon law could not conceive of ownership of property
as distinct from possession, and to their simple minds, when ownership
was once acquired it was impossible to divest the owner of his
property by any symbolical delivery. Hence the very early statutes
making fraudulent sales or conveyances of property without actual
and visible change of possession. The notion of a symbol, a paper or
writing, which should represent that property would probably have
impressed them like a spell or charm in a child's fairy tale. Even
theft with asportation could not alter property rights, even in
favor of innocent purchasers, when the owner did not intend to part
therewith. A moment's recollection of what is now perhaps the most
familiar of Teutonic saga to the ordinary reader, the text of Wagner's
"Ring of the Nibelung," will give ample evidence of that mental
attitude. But the Oriental mind was far more subtile. To the Jews or
Lombards we owe the discovery of that _bill of exchange_--the first of
negotiable instruments, and the first historically to bring into
our law the legal concept of a symbol of ownership which might be
instantly transferred with an absolute change of title in the property
thereby represented, and this either to a present transferee or to one
far away. Thus, a simple bill of exchange might transfer the ownership
in a pile of gold in a moment from a man in Venice to a man in London,
thereby (if the law-merchant was respected) freeing the treasure
itself from attack at the hands of the Venetian authorities. And not
only was this change of ownership instantaneously effected by the
transfer of some symbol or document representing it, but there also,
and as a necessary part of the invention, grew up the doctrine that
the transferee was relieved of any claims against the property at the
hands of the previous owner. This is what we mean by negotiable;
and it is essential that the precise meaning of the word should be
understood if we are to understand the importance of this legislation.
Even most business men have a very vague understanding of the
difference between _negotiable_ and _assignable_. Substantially
all property and choses in action are assignable, except personal
contracts; and in ordinary business many of them are assumed to
be negotiable, such as bills of lading, warehouse receipts, trust
receipts, or certificates of stock. Most brokers, or even bankers,
assume that when they have a stock certificate duly endorsed to
them by the owner mentioned on its face they have an absolute and
unimpeachable title to the stock therein represented. Such, of course,
is not the case except for recent statutes in a few States. To take a
familiar example, and I can think of none better to show exactly the
difference between a personal contract non-assignable, a document
which is assignable, and one which is negotiable--a Harvard-Yale
foot-ball ticket. If the ticket is issued by the management to a
person under his name, with a condition that it shall be used by no
one else, it is a contract non-assignable. If it is issued to him in
the same manner, but with no provision against assignment or the use
by another person, it would entitle such other person to whom the
ticket was given to use the seat, but only under the title of the
original holder; and if the assignment was later forbidden, or for
other reasons the right recalled by the management, the holder would
have no greater title to the seat; the contract is _assignable_, but
not negotiable. The assignee takes it merely as standing in the place
of the original holder and subject to all the equities between him and
the management. If, for instance, the ticket were given him by fraud,
the right to use it might be revoked and the transferee would have
no greater right than the original holder. But if the ticket were
_negotiable_, like a bank-note payable to bearer, the holder, not
actually himself the thief, would have an absolute title to the
seat without regard to anything that happened prior to his getting
possession of the ticket.

Now it is obvious that it is for the enormous convenience of business
to have business documents made negotiable. If a banker can loan on a
bill of lading or a warehouse receipt, or a trader can buy the same,
or if a man can give a trust receipt to his banker agreeing that all
his general shipments or stock in trade shall be the property of that
banker until his debt is paid, it makes enormously for the rapid
turning over of capital, and the extension of credit. Of course, an
enormous proportion of business in the United States is conducted upon
credit, and without the invention of the negotiable instrument those
credits could not be secured without an actual delivery of the
commodities intended to secure them. And the custom of business is to
consider most such documents negotiable even when in fact they are not
so. It is more than usual to loan money upon warehouse receipts, bills
of lading, stock certificates or trust receipts of all descriptions,
regardless of the question whether the law of the State makes them
negotiable. Hence the very great tendency to make such instruments
negotiable by statute; and I find many such laws, beginning in 1893
in North Carolina, as to warehouse receipts, while the Massachusetts
statute concerning stock dates from 1884.

A reaction to the English common law is the statute, common in recent
years, prohibiting sales in bulk. It appears to have been a growing
custom for merchants, particularly retail merchants, when in financial
difficulties to sell their entire stock in trade to some professional
purchaser by a simple bill of sale without physical delivery. Nearly
all States have adopted statutes against this practice, although in
several they have been held unconstitutional. The feeling that they
are dishonest is doubtless justified by the facts; but it may also be
truly described as a reaction to the simpler English law as against
Oriental innovations.

The descent of property throughout the United States is regulated by
English common-law ideas. That is to say, there is no primogeniture,
although in early colonial times the older son took a double portion;
and there is, except in Louisiana, complete liberty of testamentary
disposition, although in one or two other States there have been
statutes forbidding a man to dispose of all his estate to a charity
within a short time previous to his death, to the prejudice at least
of his direct heirs. The Code Napoleon, of course, limits testamentary
disposition in favor of these latter, so in Louisiana, only half of
a man's estate can be given away from his children or widow, and not
more than three-fourths of his estate can be bequeathed to strangers
or to charity, to the prejudice even of collateral heirs.

In matters of general business the usual lines of legislation have
been the ordinary ones found in English history. That is to say,
statutes of frauds, usury or interest laws, and other familiar
matters. The only tendency one can note is a broad range of
legislation devised in the interest of the debtor--not only liberal
insolvency laws now superseded by the national bankruptcy act, which
is still more liberal than the laws of the States preceding it, but
statutes restricting or delaying foreclosure of mortgages, statutes
exempting a substantial amount of property, implements of trade,
agricultural articles, goods, land, or even money, from the claims of
his creditors. The exemption of tools or implements of trade goes back
to Magna Charta, it will be remembered, but the exemption of other
articles is modern and American. There is probably, however, no
subject which is so apt to be let alone by our legislatures as that of
business law. Upon that subject, at least, they are fairly modest
and inclined to think that the laws of business are known better
by business men. Imprisonment for debt is, of course, absolutely
abolished everywhere, and in most States a woman is not subject to
personal arrest in civil process. The statutes prevailing throughout
the country, which give special preference to claims for wages or even
for material furnished by "material men," have already been noted. It
may be broadly stated that the presumption is that such claims are
everywhere a preferred debt to be paid out of the estate of the
insolvent, living or dead, in preference to all claims except taxes.

The security of mortgages is very generally impaired by legislation
confining the creditor to only one remedy and delaying his possession
under foreclosure. That is to say, in far Western States generally, he
cannot take the land or other security, and at the same time sue the
debtor in an action for debt for the amount due, or the deficiency.
This, of course, makes of a mortgage a simple pledge. Moreover, with
the practice of delaying possession under foreclosure, appointing
receivers in the interest of the debtor, etc., he is in many States
so delayed in getting possession of his security that by the time he
acquires it he will find it burdened with overdue taxes and in a state
of general dilapidation. We have already alluded to the practice in
California of compelling the executor of a mortgage to submit
himself to the jurisdiction of the local public administrator, which
practically results in a sequestration of a considerable portion of
the property. For all these reasons, many conservative lawyers in the
East, at least, would not permit their clients to invest their money
in mortgages in California, Minnesota, Washington, or the other States
indulging in such legislation, and partly for this reason the rate of
interest prevailing in mortgages is very much higher in the far West
than it is in States east of the Missouri River.

The greatest mass of legislation is, of course, that upon mechanic's
liens, which are burdensome to a degree that is vexatious, besides
being subject to amendment almost every year. In a general way, no
land-owner is free from liability for the debt of any person who has
performed labor or furnished materials on the buildings placed upon
the land, even without the knowledge or consent of the land-owner in
some States, though in one or two instances, notably in California,
such legislation has been carried to such an extreme as to make it
unconstitutional.

The matter of nuisances has been already somewhat covered. Legislation
extending the police power and declaring new forms or uses of property
to be a nuisance is, of course, rapidly increasing in all States. The
common-law nuisance was usually a nuisance to the sense of smell or
a danger to life, as, for instance, an unsanitary building or drain.
Noise, that is to say, extreme noise, might also be a nuisance, and
in England the interference with a man's right to light and air.
Legislation is now eagerly desired in many States of this country to
make in certain cases that which is a nuisance to the sense of sight
also a legal nuisance, as, for instance, the posting of offensive
bills on the fences, or the erection of huge advertising signs
in parks or public highways. Such a law was, however, held
unconstitutional in Massachusetts. There is some legislation against
the blowing of steam whistles by locomotives, although I believe
none against the morning whistle of factories, and some against the
emission of black smoke in specified durations or quantities.

But perhaps the most important legislation affecting simple matters of
business other than the line of statutes already mentioned, making new
negotiable instruments and controlling the title of property by the
possession of a bill of exchange, bill of lading, warehouse or trust
receipt, are those statutes prohibiting the buying of "futures," or
the enforcement of gambling contracts to buy or sell stocks or shares
or other commodities without actual or intended change of possession,
which we have necessarily referred to in our discussion of restraint
of trade (chapter 4). There is a very decided tendency throughout the
country, particularly in the South, to prohibit all buying or selling
of futures, that is to say, of a crop not actually sold, or of any
article where physical delivery is never intended, and it will be
remembered we found plenty of precedent for such legislation in
early English statutes. Gambling contracts may be forbidden only in
specified places, such as stock exchanges; and the buying of futures
may be specially permitted to favored persons, such as actual
manufacturers intending to use the goods; and both such statutes will
be held constitutional and not an undue interference with the liberty
of contract. These matters were largely covered by the statutes of
forestalling in early times. Legislation more distinctly modern is
that against sales in bulk, and against department stores; more
striking still is the statute, already passed in Wisconsin and
Virginia, forbidding all tips, commissions, or private advantages
secured by any servant or agent in carrying on the business of his
principal, his master, or the person with whom he deals; the statute
even forbids a gratuity intentionally given directly from the one to
the other. It is hard to see how the last clause of the law can be
held constitutional, any more than the laws forbidding department
stores, although such commissions may be forbidden to be given
"unbeknownst."

Weights and measures are standardized by the Federal government, and
to these standards the States in practice all conform, but the legal
weight of a bushel or other measure of articles varies widely in the
different States, and the State Commissioners on Uniformity of Law
have tried in vain to get the matter generally regulated. At one time
the weight of a barrel of potatoes in New York City was fourteen
pounds more than it was in Hoboken, across the river. In Massachusetts
the weight of a barrel of onions was increased two pounds to
conform with the uniform law recommended to all the States by the
commissioners; but a representative in the State Legislature coming
from a locality of onion farms lost his seat in consequence, which
inspired such terror in other members of the State Legislature that
the uniform law was promptly repealed, the weight of the barrel of
onions put back at the former figure, and this over the veto of the
governor. It is needless to say that the whole value and object of the
whole movement for uniformity is to have actual uniformity. That is to
say, unless the lawyer or citizen reading the statute can be sure that
it is uniform with the laws of all other States without taking the
trouble to consult them, the reform has no value. But it has proved
almost hopeless to get this through the brain of the average
legislator. The uniform law upon bills and notes, indeed, already
mentioned, is treated with more respect; because, as has been said
above, they regard that as a matter of business, and they have some
respect for the expert knowledge of business affairs possessed by
business men.

The licensing of trades might be made a very valuable line of
legislation to prevent the fleecing of the ultimate consumer by the
middleman. Our ancestors were of the opinion that the middleman, the
regrator, was the source of all evils, and they were also of the
opinion that any combination whatever to control the price of an
article of food, or other human necessity, or to resell it elsewhere
than at its actual market and at the proper time, was a conspiracy
highly criminal and prejudicial to the English people; in both of
which matters they were, in the writer's opinion, perfectly right, and
far more wise than our modern delusion that "business"--that is to
say, the making of a little more profit from the larger number of
people--justifies everything. Now, at the time of the coal famine of
1903, Massachusetts passed a statute licensing dealers in coal; the
law for the municipal coal-yard having been declared unconstitutional.
The object of this statute was not to derive revenue or to restrict
trade, but to regulate profits; and in particular to prevent
the retail coal-dealers from combining to fix the price of coal
themselves. Yet in spite of this legislation, the ice-dealers of
Massachusetts only this year (1910) assembled in convention in Boston
upon a call, widely advertised in the newspapers, that they were
holding the assembly for that precise purpose, that is to say, to
fix and control the price and the output of ice. They were, indeed,
"malefactors of great wealth"; at least we may guess the latter, and
the animus of a more intelligent precedent may some day hopefully be
directed to such definite evils, of which our ancestors were well
aware, rather than blindly running amuck at all. The coal-dealers in
Boston, by the way, made the same argument that is always made, and
was made at Athens in the grain combination of the third century
B.C.--to wit, that they put up the prices in order to prevent other
people buying all the coal and speculating in it; but notwithstanding
that showing of their altruistic motives, the secretary of state
revoked the license of the coal company in question. The statute
also forbade the charging extortionate prices, which, again, was a
perfectly proper subject of legislation under the common law; but,
unfortunately, was carelessly drawn, so that it resulted in a somewhat
cloudy court opinion.

For the matter of uniform legislation the reader must be referred
in general to reports of the National Commission. Their greatest
achievement has been the code of the law of bills and notes just
mentioned. Besides this they have just adopted a code on the law of
sales, and they have recommended brief and uniform formalities as well
as forms for the execution and acknowledgment of deeds and wills, and
have very considerably improved the procedure in matters of divorce.

The best modern legislation concerning trade and business is, of
course, that of the pure-food laws. The Federal law has certainly
proved effective, although it is in danger of being repealed or
emasculated in the interest of the "special interests"; most of the
State laws simply copy it. Undoubtedly the laws should be identical in
interstate commerce and in all the States; and this can only be done
by voluntary uniform action.




VIII

REGULATION OF RATES AND PRICES


This, the last method of infringing upon absolute rights of property,
has assumed such importance of recent years as to deserve and require
a chapter by itself. The reader will remember what precedents we found
for the fixing of prices, wages, and rates or tolls in England. It may
be convenient for our purposes to use these three definite words to
mean the three definite things--prices in the sense of prices of goods
or commodities; wages the reward of labor or personal services; and
rates (the English word is tolls) for the charges of what we should
now term public-service corporations, or in old English law,
franchises, or what our Supreme Court has termed "avocations affected
with a public interest." The reader will remember that the attempted
regulation of prices began early and was short-lived, dating from the
Assize of Bread and Beer in 1266, to the Statute of Victuals of 1362,
hardly a century, and even these two precedents are not really such,
for the first only fixed the price of bread and beer according to the
cost of wheat or barley, just as to-day we might conceivably fix the
price of bread at some reasonable relation to the price of flour in
Minneapolis, and as it was fixed in ancient Greece by the wholesale
price of wheat at Athens[1]--not as it now is, from three to four
times the cost of bread in London, although made out of the same flour
shipped there from Minneapolis; and the two latest statutes expressly
say that they fix the price by reason of the great dearness of such
articles on account of the Black Death or plague, and the consequent
scarcity of labor. Then the Statute of Laborers of 1349 provided that
victuals should be sold only at reasonable prices, which apparently
were to be fixed by the mayor. With these statutes the effort to fix
prices by general statute disappeared from English civilization save,
of course, as prices may be indirectly affected by laws against
monopoly, engrossing, and restraint of trade; and local ordinances in
towns continued probably for some time longer.

[Footnote 1: For an actual report of an indictment and jury trial
for forestalling and regrating wheat in the third century B.C., see
Lysias's oration, translated by Dr. Frederic Earle Whitaker, in
_Popular Science Monthly_, April, 1910.]

Legal regulation of _wages_ lasted much longer in England; and
has reappeared in very recent years, at least in the Australasian
colonies, with a beginning of such legislation in Great Britain and
Ireland and the State of New York. The first Statute of Laborers
merely provides that the old wages and no more shall be given. The
next year, however, in 1350, the exact rate of wages was fixed; and
this lasted for more than two centuries, to the reign of Elizabeth,
the so-called "great" Statute of Laborers consolidating all the
previous ones. It is apt to be the case that when a statutory system
has reached its full development it falls into disuse; and that is
certainly the case here. There is no later statute in England until
1909 fixing directly or indirectly the rate of wages; and it may be
doubted whether the justices of the peace continued to fix them for
many years under the Statute of Elizabeth. More than three centuries
were to go by before this principle reappeared in legislation or
attempted legislation; but in Australia,[1] New Zealand,[2] and
England[3] there has been recent legislation for a legally fixed rate
of wages to be determined for practically all trades by a board of
referees, consisting, as such boards usually do consist, of one
member to represent capital, one to represent labor, and the third to
represent the public or the state. As such third representative almost
invariably votes on the side of the greatest number of voters, this
practically makes a commission hardly impartial. The working of the
system in New Zealand will be found discussed in the _Westminster
Review_ for January, 1910. There is an appeal to the courts from the
rate of wages fixed by such commission; and it appears that out
of four such appeals, in three the decision of the commission was
confirmed, and in the fourth set aside; but the workingmen disregarded
the judgment of the court and struck for a higher wage--contrary to
the whole theory of such legislation, which is to _prevent_ strikes.
This strike succeeding, there has, therefore, been no case so far
where the increasing rate of wages was checked by any appeal to the
courts.

[Footnote 1: So. Australia, 1906, no. 915; 1900, no. 752; Victoria,
1903, no. 1,857; 1905, no. 2,008.]

[Footnote 2: See New Zealand Law of 1900, no. 51; frequently amended
since.]

[Footnote 3: 60 and 61 Victoria, c. 37, 9 Edward VII.]

In the British Parliament last year (and the identical bill has
been introduced in the State of New York under championship of the
Consumers League, as applied to women and children), a bill was
introduced,[1] not backed, however, by the government as such,
although bearing the name of Lloyd-George, providing in effect that
wages might be fixed in this manner in certain definite named trades,
and also in such other trades as might be designated from time to time
by the home secretary. The economic effect of such measures we are not
to discuss. In the United States, except as to public work, they would
be probably unconstitutional.

[Footnote 1: Since enacted, see below in chap. XI.]

Coming, therefore, to public work, we use this phrase for all labor
contributed directly to the State, to any county, city, town, village,
or municipality thereof, to any municipal-owned public-service
corporation, gas, water, etc., company, or, finally, and most
important, to or under any contractor for the same, or any of them.
Some years ago the State of New York adopted legislation to the effect
that in all such public employment the wages paid should be the usual
rate paid for similar work in the same locality at the same time. As
a result of this legislation, many thousands of lawsuits were brought
against the City of New York by persons who had done labor for that
municipality in the past, complaining that they had not in fact been
paid "the prevailing rate," although in fact the work had long since
terminated, and they had been discharged, paid in full, and apparently
satisfied. Shortly after, the law itself was declared unconstitutional
by New York courts. Thereupon the labor interests proposed a
constitutional amendment in 1905, to the effect that "the legislature
may regulate and fix the wages or salaries, the hours of work or
labor, and make provision for the protection, safety, and welfare of
persons employed by the State or by any county, city, town, village,
or other civil subdivision of the State, or by any contractor or
subcontractor performing work, labor, or services for the State or for
any city, county, town, village, or other civil division thereof." A
very small proportion of the voters of New York took the trouble to
vote upon this amendment, although it revolutionized the economic, if
not the constitutional, system of the State, so far as property and
contract rights are concerned; and it was adopted by a substantial
majority. In Indiana there was a statute at one time fixing the rate
of wages in public employment at a minimum of not less than fifteen
cents per hour, but it was held unconstitutional. It is customary in
New England villages to vote annually that the town shall pay its
unskilled labor a prescribed rate for the following year, usually two
dollars per day. The effect of this has been sometimes to cause the
discharge of all but the very most skilful and able-bodied; of those
who had, by working at less than full pay, been kept out of the
poorhouse; and the selectmen of some towns, notably Plymouth, have
refused to obey such a vote. The California Code of 1906 provides a
minimum compensation of two dollars per day for public labor, except
as to persons regularly employed in public institutions. Delaware has
copied the New York statute as to the prevailing rate. Hawaii, in
public labor, provides a minimum wage of one dollar and twenty-five
cents per day. Nebraska goes further, and provides not only for two
dollars per day for public work, but that it must be done by union
labor in cities of the first class, while Nevada has a minimum wage
of three dollars and an eight-hour day for unskilled labor in public
work. On the other hand, the Constitution of Louisiana prescribes that
no law shall ever be passed fixing the price of manual labor.[1]

[Footnote 1: This matter will be found further discussed in chap. XI.]

Coming lastly to _tolls_, or rates of persons or corporations enjoying
a franchise, that is to say, a legalized monopoly, or exclusive
legislation, or special privilege, such as eminent domain, or the
right to occupy the streets; such are, in fact, identical with what we
term public-service corporations, the older, the most universal, and
certainly the most, if not the only, justifiable example of legal
regulation of the returns for the use of property or personal
services.

Whatever may be thought of the economic wisdom of attempting to
regulate any rate or prices by law (and for a discussion of this
subject as to railways, at least, the reader may well be referred
to the valuable treatise of Mr. Hugo R. Meyer, "State Regulation of
Railways"), such legislation was at least in England constitutional;
but in this country, owing to our specific adoption of the principle
of property rights and freedom of labor and hence of freedom of
contract in our Federal and State constitutions, and as it has been
repeatedly decided that to take away the income from property or a
reasonable return for labor by legislation is to infringe on the
property or liberty right itself, we have a universally recognized
constitutional objection which has, in fact, made impossible all
regulation of prices and wages, except as above mentioned, and as we
are now about to discuss. The first attempt to regulate rates (with
the possible exception of some early colonial laws) was the so-called
Granger legislation, as shown in the Illinois Constitution of 1870,
authorizing a warehouse commission to fix charges for elevating grain,
the Act of Iowa of 1874 establishing reasonable maximum rates for
railways, a similar act in Wisconsin of the same year relating to
railroad, express, and telegraph companies, and in Minnesota; which
legislation was all sustained by a divided opinion in the so-called
Granger cases headed by Munn _v._ Illinois, 94 U.S. 113.

In the many years which have elapsed since this famous decision, the
clouds have rolled away and the shape and basis of that apex of our
jurisprudence been fairly surveyed. It will appear, I think, to any
dispassionate jurist to have been rightly decided, at least as to
the railroads, though the reasons given by Chief Justice Waite are
unsatisfactory and have little logical basis. The true basis of
regulation of rates at the common law and in English history was
_monopoly_; either a franchise directly granted by the crown, such as
a bridge, ferry, or dock, or one which was geographically, at least,
exclusive, like a dock without a franchise. As Lord Ellenborough said
in the decision quoted by the Chief Justice himself: "Every man may
fix what price he pleases upon his own property, or the use of it; but
if for a particular purpose the public have a right to resort to his
premises and make use of them, and he have a monopoly in them for that
purpose, if he will take the benefit of that monopoly, he must, as an
equivalent, perform the duty attached to it on reasonable terms." "_If
for a particular purpose the public have a right to resort to his
premises_"--this important qualification from now on seems to have
been lost sight of in the majority opinion. Quoting the early
precedents such as that statute of William and Mary regulating the
charges of common carriers--and our readers will remember many
more--and the case of cabmen whose charges are regulated by city
ordinances--but they are given stands or exclusive privileges in the
streets--the chief justice concluded with the startling proposition
that "if they do not wish to submit themselves to such interference,
they should not have clothed the public with an interest in their
concerns." But the public has an interest, as was afterward pointed
out in dissenting opinions, in the price of shoes; yet it has never
been supposed that that gave any power of legal regulation of factory
prices. A still stronger case is that of inns or hotels, which have
always been "a public avocation." They have had to take in all
travellers without discrimination; yet there is not a vestige of
legislation in the English statute-book regulating the prices to be
charged by hotels. Indeed in early times most employments--millers,
barbers, bakers--were public in the sense that the man could not
refuse a job; yet their prices were never regulated. Yet it was upon
this phrase, "_public employment_" or "_private property affected with
a public interest_," taken from the opinion of Justice LeBlanc in the
London Dock Company case, decided in 1810, without its context, that
the chief justice built up the whole reason of his decision. The
_decision_ in Munn _v._ Illinois, subject to court review as to
whether the rate be confiscatory, remains good law, but the _opinion_
is still open to question; and indeed the most recent decisions of the
Supreme Court show a desire to get away from it.

Some writers endeavor to justify, under our constitutions, the
regulation of rates by the principle of eminent domain; but this
source seems far-fetched and unnecessary. It is, of course, done under
the police power; but the precedent for that use of the police power
is to be found in the history of English law and statutes. Thus we
have noted in the Statute of Westminster I, A.D. 1275, that excessive
toll contrary to the common custom of the realm was forbidden in
market towns. The very phraseology of this statute indicates the
antiquity of the doctrine that tolls must be reasonable; but "toll"
was always a technical term, not for ordinary prices of commodities,
but for a use or service which was in some way dependent upon law or
ordinance. In the very opinion of Chief Justice Waite, he quotes Lord
Hale, saying that the king "has a right of franchise or privilege,
that no man may set up a common ferry without a prescription time out
of mind, or a charter from the king," and so later he quotes Lord Hale
as saying that the same principle applies to a public wharf "because
they are the wharves only licensed by the king." We also found
legislation fixing rents and so on in staple towns, and consequently
of the charges of property owners therein, such towns having grant of
a special privilege. The early law books are full of cases showing
that discrimination and extortion were unlawful, even criminal,
offences. And finally, as Chief Justice Waite points out, we find the
rates of carriers fixed by law in 1691. Ordinary carriers, not having
the right of eminent domain such as express companies, might to-day be
considered to have no legal monopoly, and indeed, possibly for that
reason, the regulation of charges of express companies has not yet
been attempted; but in King William's time it was doubtless considered
that the carriers had special privileges on the highways, as indeed
they did.

It seems to me, therefore, that the real reason, both logical and
historical, for regulation of rates rests on the fact that the person
or corporation so regulated is given a monopoly or franchise by some
law or ordinance, or at least a special privilege from the State; or
at least that he maintains a wharf, a bridge, or a ferry, or
other avocation which (really for the same reason) has, from time
immemorial, been subject to such regulation. This, indeed, has been
the doctrine officially adopted by the Commonwealth of Massachusetts
in its legislation--"Where monopoly is permitted, State regulation
is necessary." The new "Business" Corporation Act of 1903 makes the
express distinction between public-service corporations and all other
private corporations for gain: it applies to "all corporations ...
established for the purpose of carrying on business for profit ... but
not to ... railroad or street railway company, telegraph or telephone
company, gas or electric light, heat or power company, canal, aqueduct
or water company, cemetery or crematory company, or to any other
corporations which now have or may hereafter have the right to take or
condemn land or to exercise franchises in public ways granted by the
commonwealth or by any county, city, or town." The implication is that
such other corporations are not given the entire freedom of action and
contract conferred by this Business Corporation Act. Where the State
creates a monopoly, it puts the public at the mercy of the grantee
of that franchise. Therefore, it is logical and just that it should
regulate the rates. The test, however, is not and cannot be, that the
man is ready to serve all comers, or even that he is compelled so to
do; hotel-keepers, barbers, restaurants, doctors, etc., have never
had their charges regulated by law. In early days most tradesmen were
compelled to serve any and all, at an equal price, under liability
for damages.[1] Mills, indeed, have always been subject to have their
tolls regulated; at least, a certain proportion of the grist had to go
to the miller; but even if it be held they had no peculiar franchise,
the exception is as old as the rule.

[Footnote 1: Holmes J., _ex banco_, in United States _v_. Standard Oil
Co., March 14, 1910.]

It is further noteworthy that since the Granger cases themselves,
there has been no extension of the doctrine of Chief Justice Waite to
other trades or industries, while the extent of the doctrine, that is,
the amount of regulation permissible under the Constitution, has
been very much limited. Waite's opinion gives no intimation of any
constitutional limit whatever, but dozens of the decisions of
the Supreme Court since draw the limit this side of the point of
confiscation; that is to say, at a "reasonable return," whatever that
phrase may mean. It was, indeed, at first extended to semi-private
grain elevators on the prairies, to elevators monopolizing the water
front of Buffalo, New York, and to floating elevators in New York
Harbor, the first and last of which show certainly no element of legal
monopoly, while the Buffalo case at most only a geographical one.
Still, elevators were the subject of Munn _v_. Illinois itself.[1] And
it has never been extended to a mere _de facto_ or "virtual" monopoly
arising only from the accident of trade. Moreover, in matters of
interstate commerce, although it might have been argued that such
affairs were left absolutely to the plenary power of Congress, which
might well, if it chose, pass laws preventing any railroad from
engaging in interstate business, except at a certain rate per mile for
passengers or freight--or that no vessel should be allowed to carry
passengers or freight from foreign countries except at a certain price
per head or per ton--yet the Supreme Court seems to have held that
even this plenary power over commerce expressly given to Congress in
the Constitution, is limited by the ordinary property guarantees of
that instrument; possibly because the Fifth Amendment is of later date
than the body of the Constitution.

[Footnote 1: We may divide monopolies into legal, geographical, and
_de facto_, or "virtual" monopolies--phrases which sufficiently
describe themselves.]

We thus find that the earliest legislation regulating rates was that
of the States. It was thirteen years after the Iowa statute above
referred to that the Interstate Commerce Act was passed, which was
supposed to give a power--afterward denied by our Supreme Court--to
the Interstate Commerce Commission to fix rates. It certainly did give
them power to find, upon complaint, what was a reasonable rate, which
was _prima facie_ evidence in case of appeal. In hundreds of cases
actual rates were complained of, in probably many more discrimination
was complained of, and, according to Mr. Meyer, the commission was
found by the Supreme Court to have decided rightly about half the
time. In 1903 came the intelligent Elkins Bill against discrimination,
which merely re-enacts the common law, and up to within two or three
years has proved the only really effective measure of controlling the
rates themselves. In 1906 came the Hepburn Act under Roosevelt, giving
general power to the commission to fix rates upon complaint, to make
joint rates, extending the statute to the oil pipe-lines, express
companies, and sleeping-car companies, and going to the verge of
the Constitution in an effort to provide that rates fixed by the
commission should take immediate effect. So far as most recent
decisions go, however, this great statute has not altered the position
of the Supreme Court of the United States as to the constitutional
necessity of a reasonable return to the carrier, and perhaps the
cardinal question remains to be decided, whether such rate-making
power is legislative, and, if so, may under the Federal Constitution
be delegated by Congress to any board. Congress merely proclaims that
the rates shall be reasonable and without discrimination--both mere
expressions of the common law--and leaves the determination of what is
reasonable between the Interstate Commerce Commission and the Supreme
Court, neither of them legislative bodies. The common law may, indeed,
be decided by a judicial body; but it is difficult to see why the
alteration of the common law is not legislation. And this criticism
applies _a fortiori_ to the Taft Bill just enacted (June, 1910), which
gives the Interstate Commerce Commission power to fix rates of their
own motion. When, therefore--if the author may venture to repeat his
words--the commission fix a "just and reasonable" rate,[1] if they are
applying the common law, their act is judicial; if they are fixing
other standards, it is legislative.[2]

[Footnote 1: United States Act of February 4, 1887, as amended June
29, 1906, sec. 15.]

[Footnote 2: Stimson's "Federal and State Constitutions of the United
States," p. 53.]

Coming to the States again, this constitutional difficulty does not
concern us, for it has been decided that the division of powers into
legislative, executive, and judicial must, as to the States, be
expressly provided in the State constitutions and is not guaranteed
under the Fourteenth Amendment. Broadly speaking, the history of
legislation has been as follows: The States have usually exercised
their rate-making power through a railroad or corporation commission.
New York and Virginia now employ the more comprehensive phrase "public
service" or "corporation" commission. The Massachusetts statute, like
the Granger statutes, dates from 1874. Just as we found in the Middle
Ages in the case of the Black Death in times of famine, so times of
panic with us have always produced radical legislation: this, it
will be noted, is the year after the great panic of 1873. But the
Massachusetts law, the earliest of all, did not and does not authorize
any fixing of rates, or even any finding as to what was reasonable
upon rates. It extends only to the other conditions of service. The
statute is, perhaps, broad enough to permit such a finding as matter
of opinion; but it would have no legal effect. The commission, section
15, were authorized to find that a change in rates of fares for
transporting freight or passengers was reasonable and expedient, and
so inform the corporation and the public, through their annual report.
All the Western States, however, did give such power.

As has been said, no constitutional objection has been sustained by
the United States Court as to this delegation of power, if it be one;
but in later years, possibly dissatisfied with the conservatism of
such boards, we find drastic legislation, particularly in the West
and South, fixing maximum rates, at least as to passengers (it is
obviously difficult, if not impossible, to enact express legislation
as to freight rates). Such legislation stands in as strong (or
stronger) constitutional position, as rates made by the commission;
and only fails when "confiscatory" or when in conflict with Federal
legislation. Perhaps the most notable clash between the States and the
Federal power has been on this subject in this very last year, where
State laws have been annulled and even high State officers enforcing
them restrained by injunction of Federal courts. Still, in the
legislation of all States, I find as yet none overstepping the limits
we have above defined as proper.

The question of the _amount_ of return required by the court is, of
course, a most important one. It is a difficult subject, because no
fixed rule takes any account of risk to the original investment. It is
all very well to say that six or eight per cent, is a fair return on
invested capital, or even on "cost of reproduction"; but when, as to
original promoters, the chance of even any return was as one against
ten of a total loss, _fifty_ per cent. of annual profit would not
be more than a "fair return"! The original Massachusetts railway
legislation seems to contemplate that ten per cent. should be the
normal return on railway stock, for it provides that at any time the
commonwealth may purchase any or all its railroads upon the payment of
the cost, plus ten per cent. a year profit.

Other than in railroads, the main fixing of rates has been in
illuminating gas. Many cities are permitted to legislate on this
point. In New York it was decided that they might so do, provided the
gas company got a fair return on its capital, not including the value
of its franchise; and certainly it would seem to be the height of
audacity to claim more. Much as if a boy, presented by his father with
hens and the feed to support them, were to demand the capitalization
of the value of all future eggs upon going out of business! In
Boston, intelligent legislation was adopted--based on good mediaeval
principles--which allows dividends at a sliding scale according to the
price of gas to the consumer.[1] The great reason, of course, of the
cessation of legislative activity on the part of the States, as to
railway rates, has been that the great bulk of rates appertained to
interstate commerce, or at least must be controlled by the rates of
interstate commerce; so only legislation as to strictly local rates
remains.

[Footnote 1: It will be remembered that the very earliest Statute of
Bread and Ale (1266) established such a sliding scale.]

The two most important questions, aside from that of an actual
extortionate rate (which has hardly ever been claimed) are that of
discrimination, and of the long-and-short-haul clause, which is really
a derivative of the former. We have found the principle against
discrimination time-honored in the common law; but modern statutes
wisely recognize that discrimination only exists when two persons
or two localities are given different rates _under equivalent
circumstances._ There has, therefore, been great dispute what these
words, "similar circumstances and conditions," in the Federal law may
mean. There is no doubt that actual differences in cost of service
make dissimilar conditions; but does geographical situation, such as
is recognized in the long-and-short-haul clause? or still more, the
amount of business offering, or the amount of possible competition?
Very early the Interstate Commerce Commission and our legislation got
to the point of recognizing competition by water; but the competition
of other railroads was a thing harder to recognize. Many people
think they have a right to a fairly equivalent service at a fairly
equivalent cost throughout the United States, and that they have
a right to all the advantages of their geographical position. The
farmers in Westchester County, about New York, thought they had
undoubted reason to complain when the rates on milk were made the same
from their farms to the city as from farms in Ohio; pointing out,
indeed, that they had bought their farms originally, and paid high
prices for the land, for the very reason of its geographical situation
close to a great market. Yet in our courts the economic rule has
usually prevailed; although no legislation, so far as I have found,
recognizes such differences, except under some vague expression such
as service or discrimination "under like or similar conditions."
Whether legislation will ever come to the point of recognizing the
railroad man's shibboleth, "charge what the traffic will bear," is
perhaps dubious. And the new Taft Act, in its long-and-short-haul
provision, takes a long step in the direction of geographical
uniformity and rigidity of rates.

A few examples of modern rate regulation may be given. In 1896 South
Carolina fixed a flat passenger rate of three and one-quarter cents
per mile. Both South Carolina and Virginia have empowered the railway
or public service commission to fix all rates, including telephone and
telegraph. Passenger rates are now usually fixed at two cents per mile
in the East, or at two and one-half cents in the South or West. In
1907 Kansas and Nebraska arbitrarily reduced all freight rates fifteen
per cent. on the price then charged. In 1907 there was some evidence
of reaction; Alabama, in an extra session, repealed her law enacted
the same year prescribing maximum freight rates, substituting more
moderate rates in seven "groups" (which, however, may be changed by
the railway commission!), and also enacted a statute directing the
commission and the attorney-general not to enforce the earlier law;
while the heavily penal Minnesota law was declared unconstitutional by
the United States Supreme Court. In the British empire the power to
fix rates is, of course, unquestioned; and they are, as to railways
at least, generally regulated by law. Canada in 1903 established
a railroad commission, and Nova Scotia in 1908 imposed various
restrictions as to tolls, still the English word for rates. So in
Ontario and Quebec in 1906, and in Tasmania in 1901. In many States,
such as Victoria, the railways are owned by the state, in which case,
of course, no question as to the right to fix rates can arise.




IX

TRUSTS AND MONOPOLIES


Legislation against combinations of properties to bring about
monopoly, or contracts in restraint of trade, is the last field of
legislation we have to consider in connection with property, and
possibly in the public mind the most important. Although the law
against combinations of laborers rests upon much the same principles,
it is perhaps best to give a special chapter to combinations of
property, leaving labor combinations to be treated in that special
connection. The matter has been written up so voluminously that it
might be difficult to say anything new upon the subject, yet for that
very reason it may be as well to analyze it into its simplest elements
at the common law, and then trace its recent development in our
somewhat unintelligent statute-making. At common law, then, these
obnoxious acts may be analyzed into five definite heads: forestalling,
regrating, and engrossing--which have been thoroughly defined in an
earlier chapter and the modern form of which in modern language might
be called restraining production or fixing prices, the buying
and selling of futures or gambling contracts, and cornering the
market--restraint of trade, and monopoly. The broad principles,
however, upon which the gravamen of even these first three rests, is
restraint of trade, which was always obnoxious at the common law.
Contracts in restraint of trade, except such reasonable contracts as
partnership, or the sale of a business with condition not to engage in
the same trade in a certain limited locality or for a certain, limited
time, have always been void at the common law. They are not, however,
criminal except by statute, though a combination in restraint of
trade, etc., was always so. We found many such statutes as we also
found laws which gave a penalty in double or treble damages to the
person injured by such combination or contract. The great case of
monopolies, reported in full in the seventh volume of the State
Trials, is a perfect mine of information on this subject, having been
argued many months at great length by the greatest lawyers, three of
whom later were chief-justices of England. This is not the case of
the playing cards, Darcy's case, commonly called the "Monopoly Case,"
which is briefly reported in Coke and covers a far narrower subject,
the royal grant for a monopoly in the importation (not manufacture or
sale) of playing cards, presumably because Coke's reports are far more
accessible than the somewhat rare editions of the State Trials; but
the great case brought by the British East India Company against one
Sandys, the loss of which would have forfeited its charter and its
business, and possibly put an end to British dominion in the East.
Its charter dated from the early years of Charles II and the 43d
Elizabeth. It brought suit against the defendant, who freighted a
vessel to East Indian ports. Mention in it is made of a charter to the
Muscovy Company as early as Philip and Mary, a much earlier date than
is elsewhere assigned to trading corporations. Hundreds of cases of
unlawful monopolies are cited, among them the case of the tailors of
Norwich, where a combination to work only for certain wages and to
advise others not to work for less and to prevent such others from
getting employment with their own employer, was held a conspiracy and
an attempt to gain a monopoly at the common law. Another case, of one
Peachy, who had by royal grant an exclusive right to sell sweet wine
in London, was held to disclose an odious monopoly at common law and
the king's franchise void.

In the opinion of the writer, had this common law been thoroughly
remembered and understood by our bench and bar, to say nothing of our
legislatures, very little anti-trust legislation by the States
would have been necessary except, again, of course, to affix modern
penalties to such offences. There has, however, been a vast amount
of such legislation. In so far as such legislation has embodied the
common law, it has stood the test of the courts and been of some value
in repressing objectionable trusts or contracts. In so far as it has
gone beyond the common law, it has often proved futile and still more
often been declared unconstitutional by the courts.

To the five principles of the common law set forth above we have,
perhaps, added two new ones. Besides fixing prices, limiting outputs,
cornering the market, contracting in restraint of trade, and acting or
contracting with the purpose of gaining a monopoly--all of which were
objectionable at common law--we have legislated in some States against
the securing of discriminatory railway rates for the purpose of
establishing a monopoly, and against what we have termed "unfair
competition"--that being generally defined to be the making of an
artificially low price in a certain locality for the purpose of
destroying a competitor, or the making of exclusive contracts; that is
to say, refusing to deal with a person unless he binds himself not to
deal with anybody else. This last thing can hardly, however, be said
to add to common-law principles. Nevertheless, some of the newer State
anti-trust statutes prescribe it so definitely that it may be treated
as a modern invention.

All this legislation is extremely recent. In the writer's digest of
"American Statute Law," published in 1886, I find no mention of trusts
in this modern sense, though a special chapter is given to them in
volume II, published in 1892. The first legal writing in which the
word was used and the rise of the thing itself adverted to is, so
far as I know, a contribution to the _Harvard Law Review_, entitled
Trusts, vol. I, page 132; but the trust then had in mind was the
simple early form of the railway equipment trust said to have been
invented in Pennsylvania, which was indeed copied in the first
agreement, so long kept secret, of the Standard Oil Trust; and also
the corporate stock trust, that is to say, the practice then beginning
of persuading stockholders to intrust a majority of the capital stock
of the corporation into the hands of trustees, receiving in return
therefor trust certificates, with a claim to the net earnings of the
corporation, but without real voting power; and there are cases in
which such trusts were sought to be held invalid and enjoined in
equity, sometimes with and sometimes without success.

Before going into the details of anti-trust legislation, it would be
well to sketch its history on the broadest possible lines. Legislation
began first in the States some years before the Federal Anti-trust
Law, or Sherman Act, first enacted in 1890. These earlier statutes,
including the Sherman Act itself, made illegal all contracts or
combinations between persons or corporations in restraint of trade;
and their direct result was to compel the formation of the gigantic
modern trust as we now understand it. Had the Sherman Act, instead of
being called "An Act to Protect Trade and Commerce Against Unlawful
Restraints and Monopolies," been entitled "An Act to Compel the
Formation of Large Trusts by all Persons Engaged in Similar Lines of
Business," it would have been far more correctly described in its
title. For whereas, before this act persons or corporations could make
contracts or arrangements among themselves which were good and valid
working agreements unless so clearly monopolistic as to be held
unreasonable restraint of trade at the common law (which, indeed,
so far as I know, was never done in any American court), after
the Sherman Act was passed all such contracts, combinations, or
arrangements, even when reasonable and proper, were made illegal and
criminal. The only escape, therefore, was to bring all such persons
and corporations in the same trade together in one corporation, and
this is precisely what we now term a trust. Before 1890, in other
words, a trust was really an agreement, a combination of individuals
or corporations usually resting upon an actual deed of trust under
which the constituent parties surrendered their property or the
control of their property to a central board of trustees; since 1890
this kind of trust has practically disappeared and been replaced by
the single large corporation, either a holding company which holds
the stock of all constituent companies, or under still more modern
practice, because more likely to stand the scrutiny of the courts,
a huge corporation, with a charter given by the liberal laws of New
Jersey, West Virginia, or other State, which actually holds, directly,
all the properties and business of the constituent corporations
or persons. The modern question, therefore, has become really the
question of the large corporation, its regulation and its control;
further complicated, of course, by the fact that hitherto there has
been no power to control such large corporations except the very State
which creates them, which is usually quite indifferent to their acts
so long as they pay the corporation tax. It is therefore a question
not only of the large corporation, but of the powers of the States
over each other's corporations and of the Federal government over all.
Until the Northern Securities case, it was probably supposed that a
corporation, being an individual, could not be guilty of a criminal
conspiracy, and consequently could not in itself offend against the
anti-trust acts. That case, and more recent decisions still, show a
disposition of the courts to look behind the screen of the fictitious
entity of the corporation to the merits and demerits of the persons
making it up, and the objects with which they came together and the
methods they continued to use.

The Federal statute was indeed necessary to this extent, that,
although the common law was unquestioned, as there is no Federal
common law in the absence of statute, and as interstate commerce
cannot be controlled by State law, either common or statute, it was
necessary for Congress to declare that the principles of the common
law should apply to interstate commerce. It was also doubtless wise to
remind the public of the existence of this body of law and to affix
definite prohibitions and penalties. To this extent the anti-trust
legislation, both State and Federal, is fully justified. Nevertheless,
it is noteworthy that the older States, where both the legislatures
and the bar had presumably a higher degree of legal education, rarely
found it necessary to enact statutes against trusts. There has
never been, for instance, any anti-trust law in Massachusetts or in
Pennsylvania, or for a long time in New York, for the first statute
of that State against trusts was made intentionally futile by being
applied only to a trust which secured a complete--_i.e._, one hundred
per cent.--monopoly of its trade.

The economic consideration of all such legislation we do not propose
to consider; whether it was wise to forbid all forestalling, for
instance--which at the common law meant buying at a definite distance
as well as at a distant time; that is to say, a person who bought
all the leather in Cordova was guilty of forestalling as well as the
person who bought all the sherry that was to be made in Spain in the
ensuing year--what we call the buying of futures. This is certainly
very unpopular, and we find most of our States legislating against it;
yet, of course, many economists argue that it is only by allowing
such contracts that the price of any article can be made stable and a
supply stored in years of plenty against years of famine. The first
historical example of forestalling and engrossing is to be found in
the book of Genesis. Joseph was not, I believe, a regrator, but he
was one of the most successful forestallers and engrossers that ever
existed, and made a most successful corner in corn in Egypt; and his
case is cited as a precedent in the Great Case of Monopolies above
mentioned. James C. Carter tells us[1] that all these laws are
contrary to modern principles and were repealed a century ago. I
cannot find that such is the case. On the contrary, they were made
perpetual in the thirteenth year of Elizabeth, and we find perfectly
_modern_ trust legislation as early as Edward I, in 1285. In 1892 I
find legislation already in nineteen States and Territories; North
Dakota, indeed, having already a constitutional provision. Three
States at least, Kansas, Michigan, and Nebraska, seem to have been
before the Federal Act, their laws dating from 1889; while several
States have statutes in 1890, the year in which the Sherman Act was
enacted. There has hardly a year passed since without a good many
statutes aimed against trusts, though they have shown a tendency
to decrease of late years, and it is especially noticeable that
anti-trust legislation is apt to cease entirely in the years following
a panic, as if legislatures had learned the lesson that too much
interference is destructive of business prosperity; I find that by
1908 just about half the States had embodied a prohibition of trusts
in their organic law.[2]

[Footnote 1: "Law, Its Origin, History, and Function," N.Y., 1907.]

[Footnote 2: These provisions will be found digested in the writer's
"Federal and State Constitutions," pp. 339-341.]

One of the principal earlier objects of the trust was to evade the
corporation law. To-day they specially aim at becoming a legal
corporation. In like manner their earliest object and desire was to
escape all Federal supervision and interference by legislation or
otherwise; to-day they are desirous of such regulation under Federal
charters, for the purpose of escaping the more multifarious and
radical law-making of the forty-six different States. Before the
Industrial Commission in 1897-1900, all the heads of the great
"trusts"--Rockefeller, Archbold, Havemeyer--testified in favor of
Federal incorporation; almost all other witnesses, except one or two
New York or New Jersey corporation lawyers, against it.

In the article in the _Harvard Law Review_, above referred to, the
writer suggested that the evil might be cured by compelling trusts to
organize as corporations, thereby bringing them under the regulation
and control that the State exercises over corporations. That has come
to pass, but the remedy has not seemed adequate. In the early Sugar
Trust case, the New York Supreme Court decided that combinations to
sell through a common agent, thereby, of course, fixing the price,
with other common devices for controlling the market and preventing
competition, were illegal at the common law; and also that a
corporation which, in order to bring about such a combination, put
all its stock in the hands of trustees or a holding company, thereby
forfeited its charter, the only result of which decision was to drive
the Sugar Trust from its New York charters to a legal organization in
the State of New Jersey. It is noteworthy that one or two of the
most obvious remedies for this condition of things have never been
employed, possibly because they would be too effective. That is to
say, there might be legislation that a corporation should not act out
of the State chartering it--that a New Jersey corporation, holding no
property and doing no business in New Jersey, should not be used to
carry on business in New York. We also might have legislated, going
back to the strict principles of the common law, to forbid any
corporation, any artificial body, from holding shares in another
corporation. It is doubtful, to-day, whether this can be done under
the common law, and the authors of the Massachusetts corporation law
refused expressly to provide for it; on the other hand the proposed
Federal Incorporation Act expressly validates it. We do, however,
begin to see some legislation on this line of approach, notably in the
case of competing companies, several Western States at least having
statutes forbidding a corporation from holding stock in such
companies; and it was one of the recommendations of President Taft's
recent message, at least as to railroad companies not holding half of
such stock.

It will well repay us now to make a careful study of all these
anti-trust statutes, for the purpose of seeing whether they have
introduced any new principles into the law, and also in what manner
they express the old. Up to two or three years ago one might have said
that not a single case had been decided in the courts of any State or
of the Federal government against trusts or combinations, which might
not have been decided the same way under common-law principles had
there been no anti-trust legislation whatever. As is well known, the
great exception to this statement is the interpretation of the Federal
Act by the Supreme Court of the United States, declaring that any
contract in restraint of trade was unlawful under it, although it
would have been reasonable and proper at the common law. Later
indications are, as President Taft has said, that the courts will see
a way to modify this somewhat extravagant position by reintroducing
the common-law test, viz.: Whether the contract is done with the
_purport_ (or effect) of making a monopoly for destroying competition,
or whether such result is trivial and incidental to a reasonable and
lawful business arrangement. The earliest statutes, those of Michigan,
Kansas, and Nebraska, in 1889, denounce the following principles:
"All contracts, agreements, understandings, and combinations ... the
_purpose_ or object of which shall be to limit or control the output,
to enhance or regulate the price, to prevent or restrict free
competition in production or sale." This, the Michigan statute, merely
states the common law, but goes on to declare such contract, etc., a
criminal conspiracy, and any act done as part thereof, a misdemeanor,
and, in the case of a corporation, subjects it to forfeiture of its
charter. The law makes the exception, nearly universal in the Southern
and Western States, that this anti-trust legislation shall not apply
to agricultural products, live stock in the hands of the producer, nor
to the services of laborers or artisans who are formed into societies
or trades-unions--an exception which, of course, makes it
class legislation, and has caused the whole law to be declared
unconstitutional, so far as I know, by the highest court of every
State where it has been drawn in question, and under the Fourteenth
Amendment also by the Supreme Court of the United States; and in this
spirit President Taft has just acted in preventing a joint resolution
of Congress appropriating money to prosecute trusts from exempting
labor unions. The Kansas statute is substantially like the Michigan,
but more vague in wording (Kansas, 1889, 257). It denounces
arrangements, contracts, agreements, etc., which (also) _tend_ to
advance, reduce, or control the price or the cost to the producer or
consumer of any productions or articles, or the rate of insurance or
interest on money or any other service. The Maine law (Maine, 1889,
266, 1) is aimed only against the old-fashioned trust; that is to say,
the entering of firms or incorporated companies into an agreement or
combination, or the assignment of powers or stock to a central board,
and such trust certificates or other evidences of interest are
declared void. The Alabama statute of 1891 is to similar effect.

The Tennessee statute of 1891 is about the same as the Kansas statute
of 1889, above referred to, except that it adds the words "which tend
in any way to create a monopoly," and the Kansas statute makes trust
certificates unlawful, that being still the usual way of organizing a
trust at that time. The Nebraska law (Nebraska, 1889, 69) is much the
same, except that it also denounces combinations, etc., whereby
a common price shall be fixed and whereby any one or more of the
combining parties shall cease the sale or manufacture of such
products, or where the products or profits of such manufacture or
sale shall be made a common fund to be divided among parties to
the combination, and goes on to add that "pooling between persons,
partnerships, corporations ... engaged in the same or like business
for any purpose whatever, and the formation of combinations or common
understanding" between them is declared unlawful, and the persons are
made liable for the full damage suffered by persons injured thereby,
and each day of the continuance of any such pool or trust shall
constitute a separate offence; this, the doctrine of a continuing
conspiracy, being for the first time before the Supreme Court of the
United States at the time of writing. North Carolina the same year
(N.C., 1889, 374) defines a trust to be an arrangement, understanding,
etc. for the purpose of increasing or reducing the price beyond
what would be fixed by natural demand, and makes it a felony with
punishment up to ten years' imprisonment. Here for the first time
appears a statute against unfair competition. "Any merchant,
manufacturer ... who shall sell any ... goods ... for less than actual
cost for the purpose of breaking down competitors shall be guilty of
a misdemeanor." Tennessee the same year (Tennessee, 1899, 250) in its
elaborate statute, which is a fairly good definition of the law, also
denounces throwing goods on the market for the purpose of creating
an undue depression, whatever that may mean. In the next year, 1890,
there were many more State statutes, but we should first notice a
simple law of New York forbidding any stock corporation from combining
with any other corporation for the prevention of competition (N.Y.,
1890, 564, 7). The usual statute in other States of that year is
addressed against combinations to regulate or fix prices or limit
the output, but Texas (4847a, 1) and Mississippi (1890, 36, 1) have
elaborate laws, which, however, add hardly any new principles to the
common law. They define a trust to be a combination of capital, skill,
or acts, by two or more persons or corporations, (1) to create or
carry out restrictions in trade; (2) to limit or reduce the output, or
increase or reduce the price; (3) to prevent competition; (4) to fix
at any standard or figure whereby its price to the public shall be in
any manner controlled, any article intended for sale, etc.; (5) to
make or carry out any contract or agreement by which they are bound
not to sell or trade, etc., below a common standard figure, or to
keep the price at a fixed or graduated figure, or to preclude free or
unrestricted competition among themselves or others, or to pool or
unite any interest. To much the same effect is the statute of South
Dakota (1890, 154, 1), but it also denounces any combination which
tends to advance the price to the consumer of any article beyond the
reasonable cost of production or manufacture. The Louisiana (1890, 36)
and New Mexico laws (1891, 10) are aimed particularly at attempts
to monopolize, while the Oklahoma statute (6620) was aimed only at
corporations, and the broad wording of the Federal act passed this
year should be noted: "Every contract, combination, in the form of
trust or otherwise, or conspiracy in restraint of trade or commerce
among the several States or with foreign nations, is hereby declared
to be illegal" (U.S., 1890, 647, 1); and in the second section: "Every
person who shall monopolize, or attempt to monopolize, or combine or
conspire with any other person or persons to monopolize, any part
of the trade or commerce among the several States, or with foreign
nations, shall be deemed guilty under this act." And in the third
section: "Every person who shall make any such contract, or engage
in any such combination or conspiracy, shall be deemed guilty of a
misdemeanor." The rest of the legislation provides penalties, manner,
and machinery for the enforcement of these laws by prosecuting
attorneys, etc., with a usual allowance to informants; and it may be
here noted that one great trouble has resulted from this machinery,
for it provided injunction remedies and dissolution, which may well
be too severe a penalty, and, furthermore, dispenses with a jury and
throws unnecessarily upon the court--even now, as in the Standard Oil
case, a distant high court of appeal--the burden of determining a
complicated and voluminous mass of fact. Our ancestors never would
have suffered such matters to be adjudged by the Chancellor!

South Dakota has an extraordinary statute making the agents for
agricultural implements, etc., guilty of a criminal offence when their
principals refuse to sell at wholesale prices to dealers in the State
(S.D., 1890, 154, 2). But beside these remedies, there is a frequent
statute dating from the earliest Kansas act of 1889, that debts for
goods sold by a so-called trust, contracts made in violation of
the law, will not be enforced in favor of the offending person or
corporation. That is to say, the person buying the goods of a trust
may simply refuse to pay for them; and the constitutionality of this
legislation has recently been sustained by a divided opinion in the
Supreme Court of the United States.[1] The possession or ownership
of trust certificates is in some States made criminal. Corporations
offending against the statute are to have their charters taken away,
or, if chartered in other States, to be expelled from the State. All
contracts or agreements in violation of any of these statutes are, of
course, made void.

[Footnote 1: Continental Wall Paper Co. _v_. Voight, 212 U.S. 227.]

There are special statutes in Kansas, Nebraska, and North Dakota
against trusts in certain lines of business, as, for instance, the
buying or selling of live-stock or grain of any kind.

In the twenty years that have elapsed since this early legislation
there has been considerable clarifying in the legislative mind; modern
statutes, and especially constitutional provisions, stating the
offence much more concisely, with a simple reliance upon the common
law, leaving it, in other words, for the courts to define. The
Southern State constitutions generally enact that the legislatures
shall enact laws to prevent trusts. New Hampshire says: "Full and fair
competition in the trades and industries is an inherent and essential
right of the people, and should be protected against all monopolies
and conspiracies which tend to hinder or destroy." Oklahoma provides
that "the legislature shall define what is an unlawful combination,
monopoly, trust, act, or agreement, in restraint of trade, and enact
laws to punish persons engaged in any unlawful combination, monopoly,
trust, act, or agreement, in restraint of trade, or composing any
such monopoly, trust, or combination." In Wyoming, monopolies and
perpetuities, in South Dakota and Washington, monopolies and trusts,
are "contrary to the genius of a free State and should not be
allowed." The constitutional provisions of North Dakota, Minnesota,
and Utah are again a mere repetition of the common law. The New
Hampshire statute grants "all just power ... to the general court to
enact laws to prevent operations within the State of ... trusts ...,"
or the operations of persons and corporations who "endeavor to raise
the price of any article of commerce or to destroy free and fair
competition ... through conspiracy, monopoly or any other unfair means
to control and regulate the acts of all such persons." This last
clause, though a clear statement of the common law, would, of course,
render hopeless Mr. Gompers's crusade in favor of the boycott, the
object of a boycott invariably being to control the acts of somebody
else. Alabama directs the legislature to provide for the prohibition
of trusts, etc., so as to prevent them from making scarce articles
of necessity, trade, or commerce, increasing unreasonably the cost
thereof, or preventing reasonable competition; and to much the same
effect in Louisiana.

We may well close this brief survey by a study of the volume of such
legislation. We have, for instance, in 1890, seven anti-trust laws;
in 1891, six; in 1892, one; in 1893, eight. In 1894, doubtless as a
consequence of the panic, anti-trust legislation absolutely ceased,
and in 1895 there is only one law, passed by the State of Texas, its
old law having been declared unconstitutional. In 1896, under the
influence of President Cleveland's administration, we find four such
statutes, and in 1897, with reviving prosperity, thirteen. Still,
we find no new principle, except, indeed, the somewhat startling
statement in Kansas that it is unlawful to handle goods made or
controlled by monopolies. The Illinois statute of that year permitted
combinations as to articles whose chief cost is wages when the object
or effect is to maintain or increase wages, a qualification which led
to the whole law's being declared unconstitutional. In Tennessee there
is a special statute penalizing combinations to raise the price of
coal, a statute with good old precedents in early English legislation.
By this time most of the States had adopted anti-trust statutes. In
1898 we find only one law, that of Ohio, giving the same five-fold
definition of the trust that we found above in Alabama, but it
adds the somewhat startling statement that "the character of the
combination may be established by proof of its general reputation as
such," and again it is made criminal to own trust certificates, with
double damages in all cases to persons injured. A constitutional
lawyer might well doubt whether a conviction under the last half of
this statute would be sustained. In 1899 eleven of the remaining
States adopted anti-trust laws. In 1900 there is a new statute in
Mississippi prohibiting, among other things, the pooling of bids for
public work, this again being a mere statement of the common law,
although a law which has possibly grown uncommon by being generally
forgotten.

In 1901 there are four statutes, that of Minnesota also including a
prohibition of boycotts, and the first piece of legislation upon the
subject in the old Commonwealth of Massachusetts--an ordinary statute
against exclusive dealing; that is to say, the making it a condition
of the sale of goods that the purchaser shall not sell or deal in the
goods of any other person. In 1902 both the Georgia and Texas laws
were declared unconstitutional because they exempted agricultural
pursuits. South Carolina has a statute actually prohibiting any sale
at less than the cost of manufacture, doubtless also unconstitutional.
In Ohio corporations are forbidden to own stock in competing
companies. The Illinois anti-trust act was declared unconstitutional
in 1903, while Texas amended its statute to meet the constitutional
objection, and followed South Carolina in prohibiting the sale of
goods at less than cost.

In 1904 there is no anti-trust legislation. In 1905 the South Carolina
law is held unconstitutional, and in 1906, that of Montana. In 1907,
however, under the Roosevelt administration, there was a decided
revival of interest, seventeen States adopting new statutes or
amendments, but still I can find no new principles. Kansas copies the
Massachusetts statute, and Massachusetts extends it to the sale
or lease of machinery or tools. Minnesota and North Carolina have
interesting statutes prohibiting discrimination between localities
in the sale of any commodity. Most of the States by this time have
statutes compelling persons to give testimony in litigation about
trusts and exempting them from prosecution therefor. North Dakota has
also a statute prohibiting unfair competition and discrimination as
against localities, while Tennessee makes it a misdemeanor to sell any
article below cost or to give it away for the purpose of destroying
competition. In 1908 Louisiana and Mississippi adopted the principle
forbidding discrimination against localities, and the new State of
Oklahoma comes into line with the usual drastic anti-trust statute,
and we may, perhaps, conclude this review of a somewhat unintelligent
legislative history by perhaps the most amusing example of all.
The Commonwealth of Massachusetts, which had so far refrained from
unnecessary legislation on this great question, thought it necessary
to adopt a statute making void contracts to create monopolies in
restraint of trade, which well shows the necessity of a legislative
reference bureau or professional draftsman, as discussed in a later
chapter. That is to say, it says literally: "Every contract, etc.,
in violation of the common law ... is hereby declared to be against
public policy, illegal, and void." As the law of Massachusetts is the
common law, and always has been the common law, this amounts to saying
that a contract which has always been void in Massachusetts is now
declared to be void. But, moreover, on a familiar principle of
hermeneutics, it might be argued to repeal the whole _criminal_ common
law of restraint of trade--doubtless the last thing they intended to
do!

As this is a book upon actual legislation, it would be out of place
to attempt a serious discussion of the problem that lies before us.
Suffice it to say that there are three possible methods of approaching
the question, as it is complicated with the interstate commerce power
of the Federal government. That is to say, either to surrender this
power to the States, at least so far as it may be necessary to enable
them to regulate or prohibit the actions of combinations in the
States, even when engaged In interstate commerce; or, second,
by perfecting the present dual system and establishing Federal
supervision over State corporations engaged in interstate commerce by
way of license and control; or, third, the most radical remedy of all,
apparently adopted by the present administration, of surrendering
entirely the State power over corporations to the Federal government,
at least as to such corporations as might choose to take advantage of
such legislation. This would result in a centralization of nearly all
business under the control of the Federal government, as well as the
removal of the great bulk of litigation from State to Federal courts.
If not carefully guarded it would deprive the States not only of their
power to tax corporations, but of their ordinary police powers over
their administration. Such a radical step was unanimously opposed by
the United States Industrial Commission in 1900, and by nearly all
their expert witnesses, and was then, at least, only favored by the
heads of the great trusts, Mr. Archbold, Mr. Rockefeller, and Mr.
Havemeyer.[1] But whichever way we look at it, there is no question
that the problem of the modern trust is that of the corporation, both
as to what laws shall regulate such a corporation, and whether they
shall be acts of Congress, or State statutes, or both.

[Footnote 1: For the full arguments on this most important question,
the reader may be referred to the article by Horace L. Wilgus in the
_Michigan Law Review_, February and April, 1904, and to the writer's
debate with Judge Grosscup, printed in the _Inter-Nation Magazine_ for
March, 1907.]




X

CORPORATIONS


The earliest trading or business corporation in the modern sense now
extant seems to have been chartered in England about the year 1600,
though Holt in the monopoly case dates the Muscovy Company from 1401,
and, despite the Roman civic corporations, has really no actual
precedent in economic history; that is to say, as a phenomenon under
which the greater part of business affairs was in fact conducted.
Whether derived historically from the guild or the monastic
corporation of the Middle Ages is a question merely of academic
importance, for the business corporation rapidly became a very
different thing from either; and, indeed, its most important
characteristic, that of relieving the members of responsibility for
the debts of the corporation, is an invention of very modern times
indeed, the first statute of that sort having been invented in the
State of Connecticut, enacted in May, 1818. These early English
corporations, such as the Turkey Company, the Fellowship of Merchant
Adventurers, chartered in 1643, or the Hudson Bay Company, usually
gave a monopoly of trade with the respective countries indicated, such
monopolies in foreign countries not being considered obnoxious.[1] The
wording of such early charters follows substantially the language of
a town or guild charter, and was doubtless suggested by them.
Unfortunately, it has never been the custom to print corporation
charters in the Statutes of the Realm, and it is practically
impossible to get a sight of the original documents if, indeed, in
many cases, they now exist. So far as I have been able to study them,
they always give the right to transfer shares freely, with the other
great right, perpetual succession; but no notion appears, for at least
two centuries, that the shareholders are relieved from any of the
legal obligations of the corporation.

[Footnote 1: The charter of the East India Company was attacked on
this ground and successfully defended by Holt on the ground that the
common law did not mind monopolies in trade with heathens!]

In order to understand this whole problem it is necessary to bear
in mind certain cardinal principles of our constitutional law. All
corporations, with the exception of national banks, two or three
railroad companies, and the Panama Canal, have been and are creatures
of the State, not, as yet, of the Federal government, which can only
create them for purposes specifically delegated to it and not merely
for private profit. The power to create corporations is essential to
sovereignty, and the sovereign may decline to recognize all but its
own corporations. Under the doctrine of comity, such corporations can
act in any other State with all the powers given them in the State
where they are created, except only they be expressly limited by a
statute of such other State. They may, however, be entirely excluded;
only not to the destruction of property rights once acquired. On the
other hand, corporations conducting interstate commerce may not be
excluded or such business interfered with by State legislation.

The writer was for four years counsel to the Industrial Commission at
Washington and one of the commissioners appointed to draw the present
business corporation law of Massachusetts. In both such capacities he
had the advantage of hearing the expert opinions of many witnesses.
There were two, and only two, broad theories of legislation about
private business corporations: One view, the older view, that they
should be carefully limited and regulated by the State at every point,
and that their solvency, or at least the intrinsic value of their
capital stock, should, as far as possible, be guaranteed by
legislation, to the public as well as to their creditors and
stockholders; and that for any fraud, or even defect of organization,
the stockholders, or at least the directors, should be liable. On the
other hand, the modern view, that it was no business of the public to
protect investors, or even creditors, and that the corporations should
be given as free a hand as possible, with no limitation as to their
size, the nature of business they are to transact, or the payment
in of their capital stock. This is the corporation problem. The
State-and-Federal problem may be called that other difficulty which
arises from the clashing jurisdictions of the States among themselves
and with the Federal government, their laws and their courts, as to
the corporations now created, particularly railroads and corporations
"engaged in interstate commerce" which may include all the "trusts,"
if the mere fact that they do business in many States makes them so.

Suppose you had a world where one man in every ten was gifted with
immortality and with the right not to be answerable for anything that
he did. You can easily see that the structure of society, at least
as to property, labor, and business affairs, would be very decidedly
altered. Yet this is what really happened with the invention of the
modern corporation; only we have got completely used to it. It would
be possible to have got on without any business corporations at all.
Striking as this may seem at first thought, one must remember that the
world got on very well without corporations for thousands of years,
and that it was by a mere historical accident and a modern invention
that the two great attributes of the corporation, immortality and
personal irresponsibility, were brought about. All business might
still be conducted, as it was in the Middle Ages, by individual men
or by partnerships, and still we should have had very great single
fortunes like that of Jacques Coeur in France, an early prototype of
Mr. J. Pierpont Morgan, or even vast hereditary fortunes kept in
one family, like the Fuggers of Augsburg, and based on a natural
monopoly--mineral salt--as is Mr. Rockefeller's upon mineral oil. Yet
as lives are short and abilities not usually hereditary, the great
corporation question of to-day would hardly have arisen. Nevertheless,
it is presumed that no one, not even the greatest radical, would now
propose to dispense with the invention of the business corporation
with limited liability.

A careful discussion of the two theories above referred to will be
found in pages 1 to 28 of the report of the Committee on Corporation
Laws to the legislature of Massachusetts, of January, 1903. The bill
for a business corporation law recommended by this committee was
enacted into law without substantial change, and has apparently been
satisfactory in the six years it has been in force, as the amendments
to it, except only as to the system of taxation of corporations, have
been few and trifling. I venture to quote from the report referred to
a few of the remarks of the commissioners upon the general question,
as it is now out of print:

    The investigations of the committee, the results of which have
    been briefly summarized, have led to the following conclusions:

    _First_.--That the more important provisions of the present law
    regulating the organization and conduct of business corporations
    and the liability of its stockholders and officers are unsuited to
    modern business conditions.

    _Second_.--That the restrictions governing capitalization and the
    payment of stock as shown in the piecemeal legislation enlarging
    the classes of corporations which may organize under general laws
    are arbitrary or impossible of execution.

    _Third_.--That it is a general practice to organize under the laws
    of other States corporations to carry on enterprises which are
    owned and managed by citizens of Massachusetts, particularly where
    a part or all the property is situated outside the State.

THEORY OF LEGISLATION RECOMMENDED

The history of corporations, as well as the logic of the case, shows
that there are possible two general theories as to the State's duty in
creating corporations: first, the old theory that, being creatures
of the State, they should be guaranteed by it to the public in all
particulars of responsibility and management; and the modern quite
opposite theory that, in the absence of fraud in its organization or
government, an ordinary business corporation should be allowed to do
anything that an individual may do. Under the old theory the capital
stock of a corporation was, in the law, considered to be a guarantee
fund for the payment of creditors, as well as affording a method of
conveniently measuring the interests of the individual owners of a
corporate enterprise. There resulted from this principle not only the
fundamental proposition that the capital stock, being in the nature of
a guarantee fund, should be paid up at its full par in actual cash,
but all the other provisions to protect creditors or other persons
having dealings with the corporation; such as, that the debts of a
corporation should not exceed its capital stock--designed primarily in
the interest of creditors and secondarily in that of the stockholders,
who were looked after as carefully as if they were the wards of the
State when dealing in corporation matters. Under the modern theory,
the State owes no duty, to persons who may choose to deal with
corporations, to look after the solvency of such artificial bodies;
nor to stockholders, to protect them from the consequences of going
into such concerns, the idea being that, in the case of ordinary
business corporations, the State's duty ends in providing clearly that
creditors and stockholders shall at all times be precisely informed of
all the facts attending both the organization and the management
of such corporations, and particularly that there should be full
publicity given to all details of the original organization thereof.

The committee has had little hesitation in determining which of these
theories it should adopt. The limit of capitalization both in amount
and in valuation to the net tangible assets of the corporation has
unquestionably had much to do with the arrest of corporate growth in
this commonwealth. Good-will, trade-marks, patents may unquestionably
be valuable assets, which, under our present method, may not be
capitalized. Admirable as this theory may have been, of payment of
capital stock in full in cash, the condition is so easily avoided
in practice that the result is that our existing law promises a
protection which, in reality, it does not afford, and is merely an
embarrassment to those who feel obliged to comply not only with the
letter but with the spirit of the law. It is no longer true that
persons dealing with corporations rely upon the State laws to
guarantee their solvency or their proper management. The attempts of
the commonwealth to do so by laws still remaining on its statute books
result, as we apprehend, only in a false sense of security; and we
believe that the act proposed, while giving up the attempt to do the
impossible thing, will really, by its greater attention to the details
of organization required to be made public by all corporations, result
in an advantage to stockholders and creditors more substantial than
the present partial attempt to enforce a principle impossible of
complete realization and which is, under existing laws, easily evaded.

It is impossible to reconcile or combine the two systems. Either the
old theory must be maintained, under which the State attempts though
vainly to guarantee both to stockholders and creditors that there is
one hundred dollars of actual value behind each one hundred dollars
of par value of capital stock, or some other system must be adopted
which, while not being chargeable with the vagueness and laxity of
the newer legislation of other States, will permit a share of capital
stock, although nominally one hundred dollars in value, to represent,
as the word implies, only a certain share or proportion, which may
be more or less than par, of whatever net assets the corporation may
prove to have. Under a system of this sort the State machinery will
only provide that the stockholders and, perhaps, the creditors, may at
all times have access to the corporation records or returns in such
manner as clearly to show, both at organization and thereafter, all of
the property or assets of which such share of capital stock actually
represents its proportion of ownership.

The question of monopoly the committee does not conceive to have
been left to its consideration. The limitations now existing on the
capitalization of business corporations are, no doubt, attributable
to the sentiment which has always existed against monopoly, but it
is clearly the policy of the commonwealth, as shown in its
recent legislation, to do away with the attempt to prevent large
corporations, simply because they are large. Moreover, it is
apprehended that the question of monopoly, or rather of the abuse of
the power of large corporations, does not result necessarily from the
size of corporations engaged in business throughout the United States.
In the opinion of the committee, some confusion has been created,
in the discussion of the form of so-called trust legislation, by a
failure to appreciate that its real object is not to protect the
investor, who can or should learn to take care of himself, or the
creditor who has already learned to do so. The real purpose of such
legislation is the protection of the consumer. In other words, there
is no reason for an arbitrary limitation of capitalization unless it
can be used as a means of creating a monopoly which will influence the
price of commodities. In the opinion of the committee, the question
of capitalization is not a contributing factor in the fight for a
monopoly. The United States Steel Company would have no greater and
no less a monopoly of the steel business if it were organized with
one-half of its present capitalization. The Standard Oil Company has
a very conservative capitalization, and yet it is the most complete
monopoly of any industrial corporation in this country.

It has not been the intention of the committee to draft a law which
will be favorable to the organization of large corporations popularly
known as "trusts." Inasmuch as the recommended law requires taxes to
be paid upon the full value of the corporate franchise, which is, at
least to some extent, measured by the amount of capitalization, there
will always be this very potent reason for keeping capitalization
at the lowest possible point. Indeed, it is apprehended that the
organization of a corporation large enough to control a monopoly of
any staple article is practically prohibited by the provisions of the
recommended law as to taxation, which will be referred to in greater
detail in part II of this report. At all events, it is no better for
the State to leave its citizens at the mercy of the large corporations
created by other less careful sovereignties, than to permit the
organization of corporations adequate to the demands of modern
business under its own laws, subject to its own more careful
regulation and control. Under our State and Federal system it is
practically impossible for any one State, by its own laws, to control
foreign corporations, but so far as possible at present the committee
has sought to subject them to the same safeguards of reasonable
publicity and accurate returns, both as to organization and annual
condition, as the State requires of its own corporations. The simple
requirement of an annual excise tax, based on the capitalization of
such foreign corporations, will serve to bring them under the control
of this State and the way will be open for their further regulation if
desirable. This annual tax has been levied upon the same principle
as the corresponding tax paid by home corporations. The State should
impose no greater burden on foreign corporations than on its own, but
should, so far as possible, subject them to its own laws.

The recommendations of the committee have, therefore, been controlled
by three principles, which may be summarized as follows:

_First_.--The relation of the State to the corporation.

The committee would repeat its opinion that, so far as purely business
corporations are concerned, and excluding insurance, financial and
public service corporations, the State cannot assume to act, directly
or indirectly, as guarantor or sponsor for any organization under
corporate form. It can and should require for itself and for the use
of all persons interested in the corporation, the fullest and most
detailed information, consistent with practical business methods,
as to the details of its organization, the powers and restrictions
imposed upon its stockholders and as to the property against which
stock is to be or has been issued. Provision is, therefore, made
in the law drafted by the committee for the organization of such
corporations for any lawful purpose other than for such purposes as
the manufacture and distilling of intoxicating liquors or the buying
and selling of real estate which it has been the consistent policy of
the commonwealth to except from incorporation under the general law.
Any desired capitalization above a minimum of one thousand dollars may
be fixed. Capital stock may be paid for in cash or by property. If it
is paid for in cash, it may be paid for in full or by instalments, and
a machinery has been created for protecting the corporation against
the failure of the subscribers to stock to pay the balance of their
subscriptions. If stock is paid for by property, the incorporators and
not the State are to pass upon its value. Before any stock, however,
can be issued for property, a description of the property sufficient
for purposes of identification, to the satisfaction of the
Commissioner of Corporations, must be filed in the office of the
Secretary of the Commonwealth. This document becomes a public record
and may be consulted by any one interested in the corporation. If the
officers of a corporation make a return which is false and which is
known to be false, they are liable to any one injured for actual
damages. If a full and honest description is made of property against
which stock is issued, a stockholder cannot complain because of his
failure to inform himself by personal examination or investigation of
the value of the property in which he is, or contemplates becoming, an
investor.

_Second_.--Duties of the State in regulating the relations between the
corporation and its officers and stockholders.

The second principle upon which the committee has acted in its
specific recommendations is this: that the State should permit the
utmost freedom of self-regulation if it provides quick and effective
machinery for the punishment of fraud, and gives to each stockholder
the right to obtain the fullest information in regard to his own
rights and privileges before and after he becomes the owner of stock.

Upon this theory the committee has recommended a law which permits the
corporation to determine the classes of its stock and the rights and
liabilities of its stockholders. The recommended law provides for
increasing or decreasing the amount of capital stock upon the
affirmative vote of a majority of its stockholders. For the protection
of a minority interest of stockholders it requires a two-thirds vote
to change the classes of capital stock or their voting power, to
change the corporate name or the nature of the business of the
corporation, or to authorize a sale, lease, or exchange of its
property or assets.

Directors are made liable, jointly and severally, for actual damages
caused by their fraudulent acts, but no director is made so liable
unless he concurs in the act and has knowledge of the fraud. The
liability of stockholders is limited to the payment of stock for
which they have subscribed, to debts to employees, and in cases of
a reduction of capital when they concur in the vote authorizing
a distribution of assets which results in the insolvency of the
corporation. An attempt has been made to give to the stockholder an
opportunity of securing for himself the fullest information on all
points touching his interest.

_Third_.--The relation of the State to foreign corporations.

The committee has been guided upon this subject by the theory that the
treatment of foreign corporations by the Commonwealth should, so far
as practicable, be the same as of its own, particularly so far as
concerns the liabilities of officers and stockholders, the statements
filed with the State authorities for the information of stockholders
or others as to their capitalization and the methods adopted of paying
in their stock, and the annual reports of condition required for
taxation purposes or otherwise. On the same principle a nominal
franchise tax is annually imposed corresponding to the tax imposed by
the State on its own corporations and made approximately proportional
in amount.

A few broad general principles are almost universal in American
legislation on the subject. Ordinary business corporations are now
almost universally created under general law, and indeed by the
constitutions of many States are forbidden to be created by special
charter.[1] There is generally, however, no limitation by constitution
on the size or capitalization, though the duration of corporations is
frequently limited to twenty, thirty, or fifty years; and there is
generally no limitation on the nature of the business that may be
done, except, in a large number of States, banking and insurance, and
except that there is in many States, as, notably, Massachusetts, a
prejudice against land companies, so that they may not be created
without a special charter.

[Footnote 1: See Stimson's "Federal and State Constitutions," pp. 295,
315, 316.]

The liability of stockholders is commonly limited to the shares of
stock actually held or such portion of them as may not have been paid
up by the stockholder in cash or property value. Massachusetts and the
more conservative States attempt to provide that the stock shall be
actually paid up in money or in property of the real value of money,
at par. New Jersey, New York, Maine, West Virginia, and the laxer
States, practically allow their directors to issue stock for anything
they choose--labor, contracts, property, or a patent right--and their
judgment on the value of such property is held to be final in the
absence of fraud. Corporations are usually taxed, like individuals,
on their tangible, visible property, real and personal, and in many
States there is also a franchise tax on their shares.[1] There is a
frequent limitation that the corporate indebtedness shall not exceed
the amount of the capital stock.[2] No States, except Vermont and
New Hampshire, seem now to have any limitation on the amount of the
capital stock, or if there be a limitation, as of one million dollars
at the time of formation, the corporation may subsequently increase
its stock to any amount.[3] Michigan, however, had a limitation of
five million dollars as to manufacturing or mercantile corporations,
and two million five hundred thousand dollars as to mines; while
Alabama and Missouri had a general limit of ten million dollars. The
general tendency is clearly to have no limitation whatever. Commonly
only a nominal proportion of the capital stock is to be paid in before
the company begins business, but the stockholders are always liable
to creditors for the amount unpaid. As already remarked, stock may
usually be paid up in property, labor, or services, or, indeed,
any legal consideration; and though most States provide that such
property, etc., shall be taken at its actual cash value, such laws,
except in Massachusetts, are not believed to be effectual.

[Footnote 1: A valuable report on this subject, brought down to 1903,
prepared by F.J. MacLeod, of Massachusetts, will be found in the
"Report of the Committee on Corporation Laws," above referred to, at
pp. 207-295.]

[Footnote 2: MacLeod, pp. 165-166.]

[Footnote 3: MacLeod, p. 169.]

That stockholders are individually liable to the extent of the unpaid
balance on their stock is merely a statutory statement of the ordinary
rule in equity. It is, therefore, law without statute. Apparently only
Indiana and Kansas now impose a double liability, the law in Ohio
having been recently altered by constitutional amendment. In several
States, however, they are liable for debts due for labor; in
California they are absolutely liable for such proportion of all
liabilities of the corporation as their stock bears to the total
capital stock, while in Nevada they are expressly exempted from any
liability whatever.

We can trace two other decided tendencies in recent legislation about
corporations. First, the increasing effort to bring about publicity of
all such matters as well as of the annual books and accounts, well
exemplified in the Massachusetts statute; second, the usual strong
prohibitions against consolidations to permit trusts or contracts to
further monopoly. There has also been a still more recent line of
legislation to prevent corporations from holding stock in other
corporations, or, at least, in competing companies; and to prevent alien
corporations from holding land.[1] Under the strict common law no
corporation could own or hold stock in another corporation or in itself.
This has been completely departed from in practice in this country, and
though not affirmatively recognized in most statutes--the Massachusetts
statute, for instance, carefully avoids providing that the corporation
may own stock in other companies--yet the practice has been universally
ratified by the courts, if not by the implications of legislation. This
new tendency to forbid it therefore is merely a return to common-law
doctrine. Thus,[2] in 1903 only five States--Connecticut, Delaware,
Maine, New Jersey, and Pennsylvania--provided generally that a
corporation might own stock in another corporation; two States--Indiana
and Minnesota--so provided as to manufacturing or mining companies. In
New York, Ohio, and other States, a corporation could only own stock in
another corporation engaged in a similar business, or a business useful
or subsidiary, or in a corporation (New York) with which it was legally
entitled to consolidate; but the tendency of recent legislation is
precisely opposite on this point, forbidding stockholding by all
corporations in similar or competing companies, or more specifically
forbidding stockholding in similar or competing companies, as well as
stockholding by railroads in railroad companies.

[Footnote 1: See below, chap. 16.]

[Footnote 2: MacLeod, p. 203.]

The practice of permitting the free holding of stock by corporations,
and especially by holding corporations, has been undoubtedly harmful
to the public, and to the public morals, and has been the main cause
making possible the speedy acquisition of immense private fortunes.
The stockholding trust or the device by which (as in the Rock Island
Railway system) a corporation is created for the purpose of holding
half the stock of the real corporation and then possibly a third
corporation, still to hold half the stock in the second, each of them
parting with the other half, obviously makes possible the control
of immense properties by persons having a comparatively small real
interest. It is a mere arithmetical proposition, for instance, in the
case mentioned, that whereas in one corporation it takes one-half of
the stock to control it, the first holding company will enable it
to be controlled by one-fourth and the second by one-eighth of the
original stock. Legislation should properly be much more drastic on
this point; but indeed our whole corporation legislation seems rather
to have been drawn by able lawyers with a view of protecting the
corporation or the person who profits by the abuse thereof, than with
a real desire to apply intelligent and practicable remedies to the
situation. Thus, until very recently, if now, there has been no
legislation along this great line of preventing the holding and
governing of corporations by such a system of Chinese boxes; nor has
there been up to date any legislation whatever along the other great
line of excluding objectionable corporations from doing business in
the State, which any State has, except as to interstate commerce
corporations, the unquestioned right to do. This right will, of
course, disappear entirely if the recommendation of the present
administration for a general Federal corporation law be adopted. The
invention of the corporate share enables a clever few to control the
many; a small minority to control the vast bulk of the real interest
of all property in the country; the problem has obviously proved too
great for popular intelligence, for so far little real legislation in
the people's interest has been effected. Like most ancient popular
prejudices, however, the blind instinct against corporations, common
among our Populists, has a strong historical basis; it comes directly
down from the prejudice against Mortmain, the dead hand, and from that
against the Roman law; for corporations were unknown to the common
law, and legislation against Mortmain dates from Magna Charta
itself.[1]

[Footnote 1: The legislation against trusts, as it existed up to 1900,
will be found at the back of vol. II of the "Reports of the United
States Industrial Commission."]

It would perhaps be possible for Congress to pass an act forbidding
any corporation to carry on its business outside of the State where it
is chartered, unless, of course, it got charters from other States;
certainly the States themselves might do so. This remedy also has
never been tried, and hardly, in Congress, at least, been suggested.
Yet it were a more constitutional and far safer thing to do than
to cut the Gordian knot by a Federal incorporation act, which will
forever securely intrench the trusts against State power. Even if New
Jersey or the Island of Guam goes on with its lax corporation laws,
permitting its creatures to do business all over the land without
proper regulation, this power could thus be instantly taken away from
it by such an act of Congress, even if the States themselves remained
unready or unwilling to act. Then no corporation could be "chartered
in New Jersey to break the laws of Minnesota," even if Minnesota
permitted it.

Trusts started as combinations and ended as corporations. They began
as State corporations, subject both to State and Federal control and
regulation; they may end as Federal corporations subject to no control
except by Congress. It is too early yet to predict the result, but
one assertion may be hazarded, that just as the original Sherman Act
against trusts compelled the formation of trusts, so this proposed
Federal legislation will compel the formation of Federal trusts, by
all but the most local of business corporations.

As to public-service corporations, both the legislation and the
principle on which it rests are, of course, quite different. There is
no serious difference of opinion that the stock should be paid up in
actual money at par nor that dividends at the expense of the public
should not be paid on watered stock. More and more the States are
putting this sort of legislation into effect. There is also the
general provision discussed in a former chapter that the rates or
charges of all such corporations may be regulated by law or ordinance;
and by far the most notable trend of legislation in this particular
has been that franchises of corporations should be limited in time and
should be sold at auction to the highest bidder. Thus, by a California
law of 1897, all municipal franchises must be sold for not less than
three per cent. of the gross receipts and after a popular vote or
referendum on the question. It has been matter of party platform for
some years that all franchises should thus be submitted to the local
referendum. That is, all exclusive franchises whereby rights in
the streets, or other rights of the public, are given away to a
corporation organized for purposes of gain. In Louisiana, street
railway franchises may only be granted on petition of a majority of
the abutters, and must be sold at auction for the highest percentage
of gross receipts, and so substantially in South Carolina. In
Washington, an elaborate statute against discrimination by
public-service corporations was passed by the initiative; but as the
statute itself omitted the enacting clause the law has been held to be
of no effect. Lastly, we will note as the most recent tendency, a
more intelligent limitation by the States themselves of corporations
organized in and by other States, frequently denying to such the right
of eminent domain or, as in Massachusetts, to do business or make
contracts without making full annual returns and submitting in all
respects to the State jurisdiction. Under recent decisions of the
Supreme Court, however, this power does not extend to any corporation
doing an interstate commerce business; and, of course, under the
Federal Incorporation Act, proposed by the present administration, the
States would be completely deprived of such power, except, possibly,
in so far as Congress may choose to relinquish it to them. How far,
independent of such permission by Congress, the ordinary police power
would extend, it will be almost impossible to define.




XI

LABOR LAWS


Much of the law affecting employers or combinations of capital has
its correlative, or rather equivalent, in combinations of labor; but
leaving the matter of combinations for the next chapter, and reserving
for this only statutes affecting the individual, we must again insist
upon that great cardinal liberty of labor under the English common
law, which already gives it a certain privilege and dispenses it from
the laws affecting ordinary contracts, that is to say: _the contract
of labor, alone of contracts under the English law, may not be
enforced_. When we say "enforced" we of course mean that the laborer
may not be compelled to carry it out; what, in the law, we call
specific performance. This is a matter of such essential importance
that it cannot be too strongly accentuated, as it is surprising how
ignorant still the popular mind is upon this subject, how little it
realizes labor's peculiar advantage in this particular. But it has
always been true of the English and American law, at least since that
early labor legislation sketched above in chapter 4 which came to
a final end at least as early as Elizabeth, that no man could be
compelled to work--except, of course, by way of punishment for
crime--and more than that, he could not even be compelled to work or
carry out a specific contract of labor to which he had bound himself
by all possible formality. "Specific performance" is the peculiar
process of a court of chancery, and at this point the resistance of
the freemen of England we have traced in earlier chapters became
absolutely effectual; that is to say, the court of chancery was never
allowed to extend its strong arm over the labor contract. Even that
famous first precedent of "government by injunction" discussed by us
above (page 74) was resisted in early times, the precedent was not
followed, it fell into complete desuetude, and it remained for the
case of Springhead Spinning Company _v_. Riley,[1] decided as late as
1868, to extend the injunction process to the prohibition of a strike.
And in more recent labor cases it has been found that the line between
prohibiting a man from leaving his employment, even under peculiar
circumstances, and ordering him to proceed with his contract
of employment and to carry it out, is extremely fine, if not
indistinguishable.[2]

[Footnote 1: L.R. 6 Eq. 551.]

[Footnote 2: For instance, the injunction against the employees of the
Southern California Railroad requiring defendants to perform all
their regular and accustomed duties "so long as they remain in the
employment of the company" (62 Fed. 796), has always been severely
criticised.]

Now, the reason of this great principle (peculiar, I think, to
Anglo-Saxon law) lies at its very root. It is the principle of
personal liberty again. To English notions, and to English courts,
indefinite labor continued for an indefinite time, or applied to an
indefinite number of services, is indistinguishable from slavery; and
compulsory labor even under a definite labor contract, such as to work
for a week or a month or a year, or in limited directions, as, for
instance, to work at making shoes or weaving cloth, when enforced by
the strong arm of the law, smacked too much of slavery to be tolerable
by our ancestors. Thus it is that, alone of all contracts, if a man
sign an agreement to work for us to-day, he may break it to-morrow and
will not be compelled to perform it; our only redress is to sue him
for damages, and this again because we can only act under the common
law. Chancery at this point at least is forbidden to take cognizance
of matters affecting personal liberty and labor; and the common law,
as has been said, "sounds only in damages." It is only chancery that
can compel a man to do or not to do some thing or to carry out a
contract.

The other basic principle affecting all questions of labor law is that
of freedom of trade or labor, correlative to the principle of freedom
of contract as to property right, and, indeed, embodying that notion
also. That is to say (perhaps I should say, to repeat) that an
Englishman, an American, has a right to labor where and for whom and
at what he will, and freely to make contract for such labor, and
freely to exercise all trades, and not to be combined against by
others, or competed with by a monopoly favored by the state. These
last two clauses, of course, belong to our next chapter. This right of
contract is not peculiar to the English law, as is the right not to be
compelled to personal service, and is much better understood; though
it is still earnestly argued by many advocates of union labor that
there is no real freedom of contract, or, at least, equality of
contract, between the employer and the employee; that therefore
"collective bargaining" should be allowed, and that therefore, and
furthermore, the wiser or the better organized should be permitted to
combine to control the contract or the labor of the individual. But if
we hold thoroughly these two principles before our mind we shall have
the key to the understanding of our labor legislation; and if we add
to that the third principle against conspiracy, we shall have the key
to our more complicated legislation against trusts and blacklists and
boycotts, and to an understanding of the more difficult questions,
affecting labor in combination and the regulation of labor unions.

That there has been a vast deal of interference, or attempted
interference, with these principles in modern American legislation
goes without saying. The motive or force behind such legislation has
pretty clearly two sources: First, the behest or desire of the "Labor
interest" or organized labor, the trades-unions themselves; and when
we analyze these and their constituents we shall find that it really
means only mechanical or industrial labor, not farm or agricultural
labor (which is still in numbers the greatest body of labor in the
United States), nor, as yet, domestic service labor, nor what the
census calls "personal service," which is probably next in numerical
importance, nor clerks; it is a comparatively small class in numbers,
this class of skilled mechanical or manufacturing labor, that has
brought about this immense mass of legislation of our modern States
aimed at improving their own labor conditions; and which therefore,
necessarily perhaps, interferes with personal liberty as to the labor
contract, or, at least, seeks to regulate it.

The other great influence is rather a motive than a source; we may
call it, for want of a better word, the sentimental or the altruistic
motive--the moral motive; the forces behind it being mainly of a
religious or moral origin, philanthropists, students of ethics, and
recently, to a great extent, the women and the women's clubs. The
activity of these great forces may be clearly traced through the
nineteenth century. It first belonged to the antislavery movement,
which directly and historically led to the women's suffrage movement,
owing to the fact that at a great antislavery convention in England
a woman delegate was refused a seat upon the platform, while her
husband, a comparatively obscure person, was recognized as the
leading representative from America; and ending of late years in
the prohibition movement, to regulate or prohibit the trade in
intoxicating liquors, and to exclude the canteen from the army. But in
the latest years, in these last very few years indeed, the forces of
this category have devoted a large proportion of their "categorical
imperative" to labor conditions and the labor contract.

These great forces are entirely impatient of constitutional principles
and somewhat indifferent as to the law, while always very desirous
of making new statutes themselves. But their combined influence is
enormous, so much so that almost any cause to which they devote
themselves will in the long run succeed; unless, indeed, their
attention is diverted to some other need, for it may be suggested that
they are somewhat fickle of purpose. For example, their success in
the antislavery movement makes the American history of the nineteenth
century; in the prohibition movement they were, in the middle decades
of that century, almost entirely successful, and while apparently
there was a set-back in the twenty years of individualistic feeling
which marked the growth of the Democratic party to an equality with
its great rival, the movement of late years seems to have taken on
renewed strength, probably on account of the so-called negro question
in the South. And while, as to votes for women, they seem to have made
no progress beyond the adoption twenty years ago of women's suffrage
in four new Western States and Territories, this last year, it must be
admitted, the movement has taken on a new strength in sympathy with
the agitation in England. There are now already symptoms of a fourth
cause--the reform of marriage, divorce and the laws regulating
domestic relations, and the control of children. It is possible that
these matters will be taken up actively in coming decades, and we,
therefore, reserve them for a future chapter; this new effort is
itself partly bound up with the women's suffrage movement, and in its
latest manifestation--that of proposing legislation preventing
men from marrying without permission from the state--it is a most
picturesque example of that absence of constitutional feeling we have
just adverted to.

Now this freedom-of-contract principle is one which, of course,
legislation attempting to regulate the labor contract is peculiarly
liable to "run up against"; and it is, for this reason, not only or
chiefly because "labor" is opposed to the Constitution or because the
courts are opposed to "labor," that so many statutes, passed at
least nominally in the interest of labor, have been by them declared
unconstitutional. For instance, it is a primary principle that an
English free man of full age, under no disability, may control his
person and his personal activities. He can work six, or four, or
eight, or ten, or twelve, or twenty-four, or no hours a day if he
choose, and any attempt to control him is impossible under the
simplest principle of Anglo-Saxon liberty. Yet there is possibly a
majority of the members of the labor unions who would wish to control
him in this particular to-day; and will take for an example that
under the police power the state has been permitted to control him in
matters affecting the public health or safety, as, for instance, in
the running of railway trains, or, in Utah, in labor in the mines. But
freedom of contract in this connection results generally from personal
liberty itself; although it results also from the right to property;
that is to say, a man's wages (or his trade, for matter of that) is
his property, and the right of property is of no practical use if you
cannot have the right to make contracts concerning it.

The only matter more important doubtless in the laborer's eye than the
length of time he shall work is the amount of wages he shall receive.
Now we may say at the start that in the English-speaking world there
has been practically no attempt to regulate the _amount_ of wages. We
found such legislation in mediaeval England, and we also found that
it was abandoned with general consent. But of late years in these
socialistic days (using again socialistic in its proper sense of that
which controls personal liberty for the interest of the community or
state) it is surprisingly showing its head once more. In Australasia
and more recently in England we see the beginning of a minimum wage
system which we must most carefully describe before we leave the
subject. There was in the State of Indiana a law that in ordinary
unskilled labor in public employment there should be a minimum wage of
fifteen cents per hour or twenty-five cents for a man and horse--since
declared unconstitutional by Indiana courts: while to-day such labor
receives a minimum of two dollars per day in California and Nebraska,
one dollar and a quarter in Hawaii, three dollars in Nevada, and
"the usual rate" in Delaware and New York,[1] and we are many of us
familiar with the practice of towns and villages in New England or New
York in passing a vote or town ordinance fixing the price of wages
at two dollars per day, or a like sum; but this practice, it must be
remarked, is in no sense a _law_ regulating wages; it is merely the
resolution or resolve of an employer himself, as a private citizen
might say that he would give his gardener fifty dollars a month
instead of forty. And, on the other hand, the Constitution of
Louisiana provides that the price of wages shall never be fixed by
law. Now it will be remembered that the Statutes of Laborers of the
Middle Ages, when they regulated the price of wages, led directly to
the result that they made all strikes, all concerted efforts to get an
increase of wages, unlawful and even criminal; in fact, it may be said
that this attempt to bind the workmen to a wage fixed by law was the
very cause of the notion that strikes were illegal, which, indeed, was
the English common law down to early in the last century. Moreover,
when an English mediaeval peasant refused to labor for his three pence
a day he might be sent to gaol by the nearest justice of the peace,
as, perhaps, some employers would like to do to-day in our South, and
which resulted--if not in slavery--in precisely that condition which
we call "peonage." Economically speaking, the attempt to regulate
wages was, of course, a mistake; politically speaking, it was
universally unpopular, and no class was more desirous than the working
class themselves of getting rid of all such legislation, which they
did in France at the French Revolution, and in England nearly two
centuries earlier. Only socialists should logically desire to go back
to the system, and in the one modern English-speaking State which is
largely socialistic--New Zealand--it is said that the minimum wage law
has had the effect that a similar resolve has had in Massachusetts
towns: to drive all the old men and all the weaker or less skilled out
of employment entirely, and into the poorhouse;[2] for, at a fixed
price, it is obvious that the employer will employ only the most
efficient labor, and the same argument causes some of their more
thoughtful friends to dissuade the women school-teachers in New York
from their present effort to get their wages or salaries fixed by law
at a price equal to that paid a man.[3]

[Footnote 1: See above, p. 161; below, p. 213.]

[Footnote 2: In the old town of Plymouth the chairman of the selectmen
asked what, he should do under vote of town meeting requiring him to
pay two dollars a day for all unskilled labor employed by the town.
"We have," he said, "about one hundred and twenty old men in Plymouth,
largely veterans of the Civil War. We have been in the habit of giving
them one dollar and a quarter per day. Under this two-dollar vote we
cannot do it without bankrupting the town." He was advised to go ahead
and still pay them the dollar and a quarter per day and take the
chance of a lawsuit, which he did, and so far as the writer knows no
lawsuit has ever been brought; but in all cases that would not be the
result.]

[Footnote 3: This is law in Utah; but nevertheless a letter from a
State government official informs me that women are willing to [and
do?] work for a smaller salary.]

A principle somewhat akin to that of a vote of a town fixing the rate
of wages is the recent constitutional amendment in the State of New
York (see above, p. 161) which validated the statute requiring that in
public work (that is to say, labor for the State, for cities, towns,
counties, villages, school districts, or any municipality of the
State), or _for contractors employed directly or indirectly by the
State or such municipality_, that rate shall be paid which is usual
at the time in the same trade in the same neighborhood. This was the
earliest statute, which was declared unconstitutional (see above, p.
161). The lack of interest in this tremendously important matter is
shown in the fact that not one-third of the voters took the trouble
to vote on the amendment at all, and that for three days after the
election no New York newspaper took notice of the fact that the
amendment had passed. Up to this constitutional amendment the courts
of New York, as well as those of California and even of the United
States, had resented with great vigor the attempt of statutes to make
a crime the permitting of a free American citizen to work over eight
hours if he liked so to do. But in New York at least (now followed
in Delaware, Maryland, and Oklahoma) it is now settled that so much
interference even with the rate of wages may be allowed, and as the
percentage of public employment is, of course, very large--covering as
it does not only all public contractors, but all labor in or for gaols
or public institutions--it will necessarily, it would seem, drag with
it a certain practical regulation of private industry corresponding to
the public rules.

In England, the New Zealand experiment has been tentatively begun;
that is to say, in the last radical Parliament, in the autumn of 1909,
the law was enacted, already referred to, for fixing wages by mixed
commission (see above, p. 159); but otherwise than as above there is
in the States and Territories of the United States, and in the United
States itself, no regulation of wages, even of women or children, and
no attempt, as yet, at a minimum wage law.

When we come to hours, the matter is very different. In the first
place, we must be reminded that without a constitutional amendment
you cannot have any direct or indirect legislation, as to general
occupations, on the hours of labor of a man of full age.[1] You can
have regulation of the hours of labor of a woman of full age
in general employments, by court decision, in three States
(Massachusetts, Oregon, and Illinois), the Massachusetts decision,
carelessly rendered in 1876, without citing any authority whatever,[2]
being based apparently on a vague notion of general sanitary reasons,
without argument or apparently due consideration of the historical and
constitutional law; but the Oregon case,[3] decided both by the State
Supreme Court and by the Federal Court in so far as the Fourteenth
Amendment was concerned, after most careful and thorough discussion
and reasoning, reasserted the principle that a woman is the ward of
the state, and therefore does not have the full liberty of contract
allowed to a man. Whether this decision will or will not be pleasing
to the leaders of feminist thought is a matter of considerable
interest. A similar statute in Illinois had been declared
unconstitutional twenty years before, largely on the ground that
to limit or prohibit the labor of woman would handicap her in her
industrial competition with man, pointing out also that the Illinois
Constitution itself prescribes and requires that the rights of the
sexes should in all respects be identical, save only in so far as jury
and militia service and political rights were concerned. A new statute
since the Oregon decision has been passed in Illinois and the law was
sustained, reversing the older case. On the other hand New York courts
take a position squarely contrary,[4] and so in Colorado.[5] The
constitutional justification of these decisions must probably be
that the health not only of the women themselves, but of the general
public, or at least of posterity, is concerned, for, as we shall find
more particularly when we discuss general legislation on the police
power, to justify an interference with personal liberty of freemen
there must, under English ideas, be a motive based upon the health,
safety, and well-being of all of the whole community, not merely
of the particular citizen concerned. He has the right to work in
unhealthy trades at unhealthy times, or under unhealthy conditions,
just as he has the right to consume unhealthy food and drink. If it be
prohibited, it must be prohibited when it has a direct relation to the
general welfare. For example, a railway engineer may be prohibited
from working continuously for more than sixteen hours, for that is
a direct danger to the safety of the public; but a man may not
be prohibited from taking service for long hours as stoker on a
steamship, although the life of a stoker be a short one and not over
merry. Apparently, however, a woman can be; and indeed there have for
a long time been laws prohibiting the labor of women in England and
regulating their hours. But then there are laws prohibiting women from
serving in immoral occupations, or occupations which are supposed to
be dangerous to their morals, as, for instance, many States have laws
against the serving of liquor, or even of food, by women or girls in
places or restaurants where liquor is served, or for certain hours, or
in certain places. Very conceivably a law might be passed prohibiting
women and girls from the selling of programmes, or attending upon dime
museums, or even selling newspapers, or being district messengers;
but, as we all know, there are women cabmen in Paris. Would
legislation prohibiting such employment to women be unconstitutional?
There is already a considerable amount of it. The cases are
conflicting, the earlier view, and the view taken in the South and in
at least one Federal court, being that such laws are unconstitutional.
The modern doctrine, backed up by that public opinion which we have
above described as the ethical force, would seem to sustain them. The
truth is probably that the legislature must be the sole judge of the
expediency of such legislation; where the court can see that it does
bear a direct relation to the morals of the young women concerned,
or the morals of the general community, it will be sustained as
constitutional under the police power, although to that extent
interfering with the personal liberty of women and with their means of
getting a livelihood.

[Footnote 1: Georgia and South Carolina have such law requiring
sixty-six and sixty hours a week respectively in cotton and woollen
manufacturing; but their constitutionality has never been tested. For
_public_ work, see below.]

[Footnote 2: Commonwealth _v._ Hamilton Manufacturing Co. 120 Mass.
383.]

[Footnote 3: Muller _v._ Oregon, 208 U.S. 412. So in Pennsylvania:
Commonwealth _v._ Beatty, 23 Penn. C.C. 300.]

[Footnote 4: People _v._ Williams, 81 N.E. 778.]

[Footnote 5: Bucher _v._ People, 93 Pac. 14.]

As to children there is, of course, no question. Laws limiting their
labor are perfectly constitutional, and some child-labor laws exist
already in all States and Territories except Nevada. The only dispute
on the child-labor question is whether such legislation should be
Federal, or rather whether the Constitution should be so amended as to
make Federal legislation possible. Practically this would meet with
a very much wider opposition than is commonly supposed. The writer,
acting as chairman of the National Conference of Commissioners on
Uniformity of Legislation appointed under laws of more than thirty
States of the Union and meeting in Detroit, Michigan, in 1895, brought
this matter up under a resolution of the Legislature of the State of
Massachusetts requesting him to do so. Nearly every Southern delegate
and most of those from the West and from the Middle States were on
their feet at once objecting, and the best he could do was to get
it referred to a committee rather than have the Commonwealth of
Massachusetts summarily snubbed. This committee, of course, never
reported.

Undoubtedly climatic effects, social conditions, and dozens of other
reasons make it difficult, if not unwise, to attempt to have the same
rules as to hours of labor in all the States of our wide country. Boys
and notably girls mature much earlier in the South than they do in
the North; schooling conditions are not the same, homes are not so
comfortable, the money may be more needed, the general level of
education is less. Doubtless there are still areas in the South where
on the whole it is better for a child of fourteen to be in a cotton
mill than anywhere else he is likely to go, schools not existing. The
Southern delegates resented interference with their State police power
for these reasons. The Massachusetts Legislature, on the other hand,
had in mind the competition of Southern mills, with cheap child labor,
quite as much as any desire to benefit the white or negro children
of the South; but the writer's experience convinced him that a
constitutional amendment on this point is impossible, although one has
been repeatedly proposed, notably by the late Congressman Lovering of
Massachusetts, and such an amendment is still pending somewhere in
that limbo of unadopted constitutional amendments for which no formal
cemetery seems to have been prepared.

Even as to men, the labor of the Southern States is notably different
from the labor of Lowell or Lawrence, Massachusetts, or even
Cambridge; while on the Panama Canal or in most tropical countries the
ordinary laborer likes to pretend that he is working eighteen hours
a day, although most of the time is spent in eating or sleeping.
Nevertheless, under the Federal law, all employees at Panama have
to be given the eight-hour day required by the Federal statute, the
Supreme Court having upheld that act as constitutional.

It is curious to note, in passing, the alignment of our courts upon
this subject of hours of labor and general interference with the
freedom of contract of employment. The Western and Southern States
are most conservative; that is to say, most severe in enforcing the
constitutional principles of liberty of contract as against any
statute. The courts of the North and East are more radical, and the
courts of Massachusetts and the United States most radical of all. I
account for this fact on the ground that where the legislatures are
over-radical, the courts tend to react into conservatism, and as the
Western legislatures try many more startling experiments than are
usually attempted in Massachusetts or New Jersey, the more intelligent
public opinion has to depend on the courts to apply the curb.
All this, of course, is a great mistake; for it forces undue
responsibility on the courts, at least tends to control in an improper
way the appointment of judges, and at best forces the most upright
judge into a position where he should not be put--that of being a kind
of king or lord chamberlain, with power to set aside improper or wrong
legislation.

With these preliminary remarks we are now prepared to examine the
legislation as it exists to-day (1910); cautioning our readers that
this subject, as indeed all others concerning labor legislation, is so
often tinkered in all our States as to make our statements of little
permanent value, except that restrictions once imposed are rarely
repealed. We may assume, therefore, that the law is at least as
radical as it is herein presented.

The hours of labor of _adults_, males, in ordinary industries remain
as yet unrestricted by law in any State of the Union; but several
States have laws making a certain number of hours a day's work in the
absence of contract;[1] and New York and a few other States have an
eight-hour day in "public" work--that is to say, work directly for
the State or any municipality or for a contractor undertaking such
work.[2]

[Footnote 1: Thus eight hours (California, Connecticut, Illinois,
Indiana, Missouri, New York, Ohio, Pennsylvania, Wisconsin); ten hours
(Florida, Maine, Michigan--with pay for overtime--Minnesota, Montana,
Maryland--for manufacturing corporations--Nebraska, New Hampshire,
Rhode Island, South Carolina--in cotton and woollen mills--in New
Jersey), fifty-five hours a week in factories; in Georgia eleven hours
in manufacturing establishments, or from sunrise to sunset by all
persons under twenty-one, mealtimes excluded (see below). But these
laws do not usually apply to agricultural or domestic employment or to
persons hired by the month.]

[Footnote 2: In public work, that is, work done for the State, or any
county or municipality or for contractors therefor, the eight-hour day
is prescribed (California, Colorado, Delaware, District of Columbia,
Hawaii, Idaho, Indiana, Kansas, Maryland, Massachusetts, Minnesota,
Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania,
Porto Rico, Utah, Washington, West Virginia, Wisconsin, Wyoming, and
the United States). But the provisions for overtime and compensation
for overtime differ considerably.]

The labor of women (in mechanical trades, factories and laundries in
Illinois, or in mercantile, hotel, telegraph, telephone, etc., as
well, in Oregon) for more than a limit of ten hours per day in
Illinois, or nine in Oregon, is prohibited and made a misdemeanor; and
both these statutes have been held constitutional. But in many
other States the hours of labor in factories or manufacturing
establishments, even of adult women, are now regulated; while the
labor of children, as we shall find, is regulated in nearly all. Thus,
Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Nebraska, New Hampshire, New York, North Dakota, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia,
and Washington have a ten-hour day in all manufacturing or mechanical
employments for women of any age, which in Connecticut, Massachusetts,
Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, and
Washington extends to mercantile avocations also, in Louisiana only
to specified dangerous trades; in Wisconsin, eight hours; and in
Connecticut, Maine, Minnesota, New Hampshire there may not be more
than fifty-eight hours a week, or in Massachusetts and Rhode Island,
fifty-six, and in Michigan and Missouri, fifty-four. Arizona has an
eight-hour day in laundries.

And these laws are extended to specified occupations, viz., in
Connecticut to manufacturing, mechanical, and mercantile; in Illinois,
mechanical, factory, or laundry; in Louisiana, unhealthful or
dangerous occupations except agricultural or domestic; in Maine,
mechanical and manufacturing except of perishable products; in
Maryland, special kinds of manufactories; in Massachusetts,
manufacturing, mechanical, mercantile, and restaurants; in Michigan,
Minnesota, and Missouri, manufacturing, mechanical, and mercantile
or laundries; in Nebraska, manufacturing, mercantile, hotel, or
restaurant; in New Hampshire, New York,[1] North Dakota, Oklahoma,
Rhode Island, manufacturing and mechanical; in Tennessee and
Virginia, manufacturing only; in Washington and Oregon manufacturing,
mechanical, mercantile, laundry, hotel, or restaurant, and in
Wisconsin, mechanical or manufacturing. Georgia and South Carolina
regulate the labor of women as they do of adult men[2] in factories.
Such laws of course would not be unconstitutional or, if so, not for
the reason of sex discrimination.

[Footnote 1: Possibly unconstitutional. See above.]

[Footnote 2: See above.]

Now all these laws arbitrarily regulate the hours of labor of women
at any season without regard to their condition of health, and are
therefore far behind the more intelligent legislation of Belgium,
France, and Germany, which considers at all times their sanitary
condition, and requires a period of rest for some weeks before and
after childbirth. The best that can be said of them, therefore, is
that they are a beginning. No law has attempted to prescribe the
social condition of female industrial laborers, the bill introduced in
Connecticut that no married woman should ever be allowed to work in
factories having failed in its passage.

The hours of labor of minors, male and female, are limited in all
States, except Florida, Missouri, Montana, Nebraska, Nevada, New
Mexico, South Carolina, Texas, Vermont, Utah, Washington, West
Virginia, and Wyoming, particularly in factories and stores, usually
under an age limit of sixteen, to ten hours per day or fifty-eight
hours a week.[1] But in Alabama, Arkansas, and Virginia, the age is as
low as fourteen, and in California, Indiana,[2] Louisiana, Maine,[2]
Massachusetts, Michigan, North Carolina, Ohio,[2] Pennsylvania,[2] and
South Dakota,[2] it is eighteen. In California, Delaware, Idaho, and
New York, it is nine hours, and in Colorado, District of Columbia,
Illinois, Indiana, Kansas, New York,[3] North Dakota, Ohio, and
Oklahoma, it is as low as eight hours a day, though the laws in
several States, as in New York, are contrary and overlie each other. A
corresponding limit, but sometimes less, is fixed for the week; that
is, in the nine-hour States and some others, weekly labor may not
exceed fifty-four hours or less.[4]

[Footnote 1: Connecticut, Maine, Massachusetts (in manufacturing,
fifty-six), Mississippi, New Hampshire (nine hours, forty minutes),
Pennsylvania. In others, sixty hours a week (Alabama, Arkansas,
Indiana, Iowa, Kentucky, Maryland (in Baltimore only), Minnesota, New
York, Oregon, South Dakota, Tennessee, Wisconsin).]

[Footnote 2: As to females only (Indiana, Maine, Ohio, Pennsylvania,
South Dakota).]

[Footnote 3: In factories (New York).]

[Footnote 4: Fifty-four hours (Delaware, Idaho, Michigan, New York),
fifty-five hours (New Jersey), fifty-six hours (Massachusetts, Rhode
Island), forty-eight hours (District of Columbia, Illinois, Kansas,
Ohio, Oklahoma), sixty-six hours (North Carolina).]

Night work in factories, etc., is prohibited in nearly all the States
mentioned and in others.[1] Many States require working papers or
certificates of age of the person employed, and there are often also
certificates as to the required amount of schooling when necessary.
Indeed it may be said that we are on the way to the German system of
having time cards or certificates furnished by State machinery for all
industrial workers, and such a system will, of course, be absolutely
necessary should the State ever engage in old-age insurance, as has
been done in Germany and England; though the practical difficulty of
such a scheme would have been thought by our fathers insuperable
on account of our Federal and State system of government, and the
necessary free immigration of American workmen from one State into
another.

[Footnote 1: Thus, night labor in factories to minors under fourteen
(Arkansas, Georgia, Massachusetts, North Carolina, Texas, Virginia),
twelve (South Carolina), eighteen (New Jersey), or sixteen (Alabama,
California, Connecticut, Delaware, District of Columbia, Idaho,
Illinois, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota,
Mississippi, New York, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, Vermont, Wisconsin) is prohibited in
factories or mercantile establishments (Connecticut, Iowa, Kansas,
Michigan, New York), or any gainful occupation (Delaware, District
of Columbia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, Texas, Vermont, Wisconsin). In South Carolina the law
only protects children under twelve from night labor in mines and
factories. So in some as to all females only (Indiana), females
under eighteen (Louisiana, Michigan, Ohio, Oklahoma, Pennsylvania),
twenty-one (New York), and to any minor between 10 P.M. and 6 A.M.
(Massachusetts).]

These laws will be found summarized in full in _Legislative Review_,
No. 5, of the American Association for Labor Legislation, by Laura
Scott ("Child Labor"), and in No. 4, by Maud Swett ("Woman's Work").

It will be seen that in all respects practicable with our necessary
system of individual liberty, doubly guaranteed by the constitutions,
State and Federal, we are quite abreast of the more intelligent
legislation of European countries as to hours of labor, women's and
children's, except in a few States. But it should be remembered that
these are largely agricultural or mining States, and doubtless when
the abuse of child and woman labor presents itself it will be met as
frankly and fairly there as in others.

On the constitutionality, if not the economic wisdom of laws
regulating the hours of labor of women, at least of adult years, there
still is decided difference of opinion. Logically it would perhaps
seem as if those who believe in the "Woman's Rights" movement of
uniform function for women and men, should be opposed to all such
legislation; both on theoretical grounds as being a restraint of
personal liberty, and as unequal legislation handicapping woman in her
industrial competition with man. This was certainly the earlier
view; but under the influence of certain voluntary philanthropic
associations the tendency at present seems to be the other way.

The States which have laws prohibiting any labor of children whatever,
even, apparently, agricultural or domestic,[1] are: Arizona, Arkansas,
Connecticut, Colorado, Delaware, Florida, Idaho, Illinois, Kansas,
Kentucky, Maryland, Missouri, Massachusetts, Minnesota, Montana,
Nebraska, New York, North Dakota, Oregon, Washington, and Wisconsin.

[Footnote 1: The New York law applies to "any business or service,"
but I assume this cannot mean service rendered to the parents in the
house or on the farm; in fact it may be generally assumed that all
these laws, even when they do not say so, mean only employment for
hire; the Oregon and Wisconsin laws, to "any work for compensation";
the Washington law to "any inside employment, factory, mine, shop,
store, except farm or household work." Arkansas, Delaware, Idaho, and
Wisconsin, to "any gainful occupation"; Maryland, to "any business,"
etc., except farm labor in summer; Colorado, to labor for
corporations, firms, or persons; the other State laws to any work.]

And the age limit fixed for such general employment is (without regard
to schooling) under twelve, in Idaho and Maryland; under fourteen in
Delaware, Illinois, and Wisconsin; and under fourteen for boys and
sixteen for girls in Washington, if without permit, and under fifteen,
for more than sixty days without the consent of the parent or guardian
in Florida; in other States the prohibition rests on educational
reasons, and covers only the time of year during which schools are in
session; thus, under eight during school hours, or fourteen without
certificate (Missouri); under fourteen during the time or term of
school sessions (Connecticut, Colorado,[1] Massachusetts, Idaho,
Kansas, Kentucky, Minnesota, New York, North Dakota); or under
fourteen during actual school hours (Arizona,[2] Kentucky, Nebraska,
Oregon); or under fifteen in Washington,[1] and under sixteen as
to those who cannot read and write (Colorado, Connecticut,[3]
Illinois,[3],[4]) or have not the required school instruction (Idaho,
New York[1],[4]), or during school hours (Arkansas, Montana[1]), or
who have not a labor permit (Maryland, Minnesota, Wisconsin). This
résumé shows a pretty general agreement on the absolute prohibition of
child labor under fourteen, or under sixteen as to the uneducated; and
the penalty is in most States only a fine inflicted on the employer,
or, in some cases, the parent; but in Florida and Wisconsin it may be
imprisonment; as it is in Alabama for a second offence.

[Footnote 1: Without schooling certificate.]

[Footnote 2: Without certificate of excuse.]

[Footnote 3: Unless the child attends a night school.]

[Footnote 4: Without age certificate.]

But more States fix a limit of age in the employment of children in
factories or workshops, and particularly in mines; not so usually,
however, in stores.[1] The age of absolute prohibition is usually
fixed at fourteen or at sixteen in the absence of a certain amount of
common-school education. These States are: Alabama,[2] Arkansas,[3,9]
California,[4,9] Colorado,[5] Connecticut,[5] Delaware,[5,6]
District of Columbia,[7,9] Florida,[3,9] Georgia,[8] Illinois,[5,9]
Indiana,[9,10] Iowa.[11,9] Kansas and Kentucky[8] forbid factory labor
for children under fourteen or between fourteen and sixteen without
an age certificate or an employment certificate; Louisiana[9] has the
usual statute, that is, absolute prohibition under fourteen and age
certificate required for those between fourteen and sixteen, or, in
the case of girls, between fourteen and eighteen, and the law applies
to mercantile occupations where more than five persons are employed;
the Maine statute is similar, but children above fifteen may work in
mercantile establishments without age or schooling certificate, which
is required of all those under sixteen in manufacturing or mechanical
employment; in Maryland,[12] the prohibition age is still twelve, and
the law applies to any business except farm labor in the summer; in
Massachusetts,[12] absolute prohibition below fourteen, fourteen
to sixteen without age or schooling certificate, and fourteen to
eighteen, who cannot read and write; in Michigan,[12] absolute
prohibition under fourteen, or sixteen without written permit; in
Minnesota, the same ages, but the law applies to any employment; in
Mississippi the ages are twelve and sixteen; in Missouri, absolute
prohibition under eight, or fourteen without school certificate. New
Hampshire[12] lags behind and has only an absolute prohibition to
children under twelve, or during school under fourteen, or under
sixteen without schooling certificate. In New Jersey, under fourteen,
or sixteen with medical certificate; Nebraska[l2] and New York,[12]
the usual absolute prohibition under fourteen, or under sixteen
without employment certificate; North Carolina, under twelve, with an
exception of oyster industries; North Dakota,[12] fourteen, or from
fourteen to sixteen without employment certificate. In Ohio,[12]
Oklahoma, Oregon,[12] Pennsylvania,[12] and Rhode Island,[12] the laws
are practically identical, fourteen, or sixteen with certificate of
schooling. South Carolina, absolute prohibition only under twelve, and
not even then in textile establishments if the child has a dependency
certificate. South Dakota,[12] under fifteen when school is in
session; Tennessee, absolute under fourteen; Texas, under twelve, or
under fourteen to those who cannot read and write unless the child has
a parent to support. Vermont's limitation is purely educational; no
child under sixteen can be employed in factories or mines who has not
completed nine years of study. In Virginia[12] from March 1, 1910,
there is absolute prohibition under fourteen except as to children
between twelve and fourteen with a dependency certificate; Washington,
under fifteen without schooling certificate, or in stores, etc.,
twelve. West Virginia, twelve, or fourteen when school is in session.
Utah and Wyoming have no legislation except as to mines, nor do
Colorado and Idaho protect women in them. Yet these are the four
woman-suffrage States.

[Footnote 1: The law does apply to "mercantile establishments"
(Alabama, Arkansas, California, District of Columbia, Florida,
Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts,
Michigan, Missouri, Nebraska, New York, North Dakota, Ohio, Oregon,
Pennsylvania, Rhode Island, Virginia, West Virginia).]

[Footnote 2: Absolute prohibition only under twelve. School and age
certificate from twelve to sixteen; age certificate from sixteen to
eighteen.]

[Footnote 3: The ages are fourteen and eighteen respectively, or
sixteen in stores during school hours; in Florida, twelve, or when
school is not in session, without an age, schooling, and medical
certificate.]

[Footnote 4: Absolute prohibition under twelve or from twelve to
fourteen during the school term or under sixteen to those who cannot
read and write, and the law applies to mercantile establishments,
hotel and messenger work, etc., making expressly the usual exemption
of agricultural or domestic labor.]

[Footnote 5: Absolute prohibition under fourteen; from fourteen to
sixteen without certificate (Connecticut, Illinois, Kansas, Kentucky),
and medical certificate if demanded (Delaware).]

[Footnote 6: Any gainful occupation under fourteen. Except canning
fruit, etc. (Delaware).]

[Footnote 7: Any business or occupation during school hours, except in
the United States Senate, and the age is absolute prohibition under
twelve; twelve to fourteen without a dependency permit, and fourteen
to sixteen without schooling certificate.]

[Footnote 8: Absolute under twelve; twelve to fourteen without
schooling certificate; fourteen to eighteen without age and schooling
certificate except as to those who have already entered into
employment. Does not apply to mines.]

[Footnote 9: This law applies to mercantile establishments, etc., as
well.]

[Footnote 10: Absolute under fourteen, or under sixteen to those who
cannot read and write.]

[Footnote 11: Prohibition is absolute under the age of fourteen, and
applies to employment in mercantile establishments as well, or stores
where more than eight people are employed.]

[Footnote 12: This law applies to mercantile establishments, etc., as
well.]

The laws as to labor in mines are naturally more severe; although in
some they are covered by the ordinary factory laws (Colorado, Florida,
Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, North Dakota,
Oregon, South Carolina, South Dakota, Tennessee, Vermont, Virginia,
Wisconsin). Female labor is absolutely forbidden in mines or works
underground in Alabama, Arkansas, Illinois, Indiana, Missouri, New
York, North Carolina, Oklahoma, Pennsylvania, Utah, Washington,
Wyoming, and West Virginia,--in short, in most of the States except
Idaho, Kansas, Iowa, Kentucky, Virginia, Wyoming, where mines exist;
and the limit of male labor is usually put at from fourteen. (Alabama,
Arkansas, Idaho, Indiana, Missouri, Ohio,[1] South Dakota, Tennessee,
Utah, Wyoming) to sixteen (Illinois, Missouri,[2] Montana, New York,
Oklahoma, Pennsylvania, Washington); or twelve (North Carolina,
South Carolina, West Virginia), even in States which have no such
legislation as to factories.

[Footnote 1: Fifteen during school year.]

[Footnote 2: Of those who can read and write.]

The laws as to elevators,[1] dangerous machinery,[2] or dangerous
employment generally,[3] are even stricter, and as a rule apply to
children of both sexes; the Massachusetts standard being, in the
management of rapid elevators, the age of eighteen, in cleaning
machinery in motion, fourteen, etc.; in other States, sixteen to
eighteen.[4] The labor of all women in some States, and of girls or
women under sixteen or eighteen in other States, is forbidden in
occupations which require continual standing.[5] Females,[6] or
minors,[7] or young children[8] are very generally forbidden from
working or waiting in bar-rooms or restaurants where liquor is sold,
and in a few States girls are prohibited from selling newspapers or
acting as messengers.[9] The Northern States have a usual age limit
for the employment of children in ordinary theatrical performances,
and an absolute prohibition of such employment or of acrobatic,
immoral, or mendicant employment. But in some States it appears there
is only an age limit as to these.[10]

[Footnote 1: Indiana, Massachusetts, New York, Rhode Island, Kansas,
Oregon.]

[Footnote 2: Connecticut, Iowa, Missouri, Oregon, Louisiana, New
York.]

[Footnote 3: Illinois, Kansas, Kentucky, Massachusetts, Michigan,
Minnesota, Missouri, Montana, New Jersey, New York, Ohio, Oklahoma,
Pennsylvania, Wisconsin.]

[Footnote 4: Indiana, Iowa, Louisiana, New Jersey, New York, South
Carolina.]

[Footnote 5: Illinois (under sixteen), Michigan (all), Minnesota
(sixteen), Missouri (all), New York (sixteen), Ohio (all), Oklahoma
(sixteen), Wisconsin (sixteen), Colorado (all over sixteen).]

[Footnote 6: Iowa, Louisiana, Michigan, Missouri, New Hampshire, New
York, Vermont, Washington (except the wife of the proprietor or a
member of the family).]

[Footnote 7: Arizona, Connecticut, Georgia, Pennsylvania, Idaho,
Maryland, Michigan, Missouri, New Hampshire, South Dakota, Vermont.]

[Footnote 8: Florida, Illinois, Massachusetts, Missouri, Nebraska.]

[Footnote 9: New York, Oklahoma, Wisconsin.]

[Footnote 10: California, Kentucky, Maine, Maryland, Michigan,
Missouri, Montana, New York, Oregon, Rhode Island, (sixteen years);
Colorado, District of Columbia, Florida, Illinois, Kansas, New
Hampshire, Virginia, Wisconsin, Wyoming (fourteen); Connecticut,
Georgia, (twelve); Delaware, Indiana, Louisiana, Massachusetts, West
Virginia (fifteen); Minnesota, New Jersey, Pennsylvania, Washington
(eighteen).]

The hours for railroad and telegraph operators are limited in several
States, but rather for the purpose of protecting the public safety
than the employees themselves.[1] The following other trades are
prohibited to women or girls: Boot-blacking,[2] or street trades
generally;[3] work upon emery wheels, or wheels of any description in
factories (Michigan), and in New York no female is allowed to operate
or use abrasives, buffing wheels, or many other processes of polishing
the baser metals, or iridium; selling magazines or newspapers in any
public place, as to girls under sixteen,[4] public messenger service
for telegraph and telephone companies as to girls under nineteen.[5]

[Footnote 1: Colorado, New York.]

[Footnote 2: District of Columbia, Wisconsin.]

[Footnote 3: District of Columbia, Wisconsin.]

[Footnote 4: New York, Oklahoma, Wisconsin.]

[Footnote 5: Washington.]

Leaving now the question of general employment, where no general laws
limiting time or price would seem to be constitutional, except in
certain cases as to the employment of women and in all cases that of
children, and going to special occupations, we shall find quite a
different principle; for in a special occupation known to be dangerous
or unhealthy, certainly if dangerous or unhealthy to the general
public, it has always been the custom and has always been
constitutional with us to control conditions by statute. The question
of what is a dangerous or unhealthy occupation to the public rather
than merely to the persons employed is, of course, a difficult one;
and the Supreme Court of the United States have split so closely
on this point that they have in Utah decided that mining was an
occupation dangerous to the public health, and in New York that
the baking of bread was not. That is to say, that the condition of
bakeshops bore no relation to the general health of the community. One
might, perhaps, have expected that they would have decided each case
the other way; but we must take our decisions as we get them from the
Supreme Court, reserving our dissent for the text-books. In any event,
it can be seen that the line is very close, certainly in the case of
adult male labor. The same statute as to mines existed in Colorado
that the United States Supreme Court sustained in Utah. The Colorado
Supreme Court had declared it unconstitutional, and after the decision
of the United States Supreme Court they continued to declare it
unconstitutional, simply saying that the United States Supreme Court
was wrong. Anyhow, it is obvious that in trades which involve a great
mass of the people, or affect the whole community, or particularly
where there are definite dangers, such as noxious vapors or
tuberculosis-breeding dust, it will be constitutional, as it is common
sense, to limit the conditions and even the hours of labor of women
or men, as well as children. Students interested in such matters will
find the universal legislation of the civilized world set forth in the
invaluable labor-laws collection of the government of Belgium; and he
will find that all countries of the world do regulate the hours of
labor as well as the conditions, in all such trades, and we should not
remain alone in refusing to do so.

The difficulty of regulating the hours of farm labor is, of course,
obvious, and so far as I know, no attempt has yet been made. The same
thing remains still true of domestic labor, though it has been more
questioned. It should be noted that both domestic labor and farm
labor belong to the class of what we call indefinite service. Now,
indefinite service must always be regulated very carefully as to the
length of the contract, which is never to be indefinite; that is to
say, if it be both indefinite in the services rendered and in the time
during which they are to last, it is in no way distinguishable from
slavery. For instance, in Indiana, many years before the Civil War,
there was an old negro woman who was induced to sign a contract to
serve in a general way for life; that, of course, was held to be
slavery. More recently the United States Supreme Court has held that a
contract imposed upon a sailor whereby he agreed to ship as a mariner
on the Pacific coast for a voyage to various other parts of the world
and thence back was a contract so indefinite in length of time as to
be unenforceable under free principles, although a sailor's contract
is one which in a peculiar way carries with it indefinite service. And
a contract "_à tout faire_" even for a week might be held void.

In all these matters the labor of women, and even that of children,
will very often control the hours of labor of men; for instance, in
the mills of New England, more than half the labor is not adult male;
yet when any large class of the mill's operatives stop, the whole
mill must stop; consequently, a law limiting the labor of women and
children to fifty-six hours a week will be in practice enforced upon
the adult males employed in the same mill.

Continental legislation has gone far beyond us in all these important
particulars. In most countries the conditions surrounding the labor of
women, particularly married women, are carefully regulated by law.
She is not allowed to go back to the mill for a certain period after
childbirth, and in many more particular respects her health is
carefully looked after. Such legislation would possibly be impossible
to enforce with our notions in America. The most interesting of all
is perhaps the attempt made in the State of Connecticut within a few
years to improve social conditions by providing that no married woman
should be employed in factories at all. The bill was not, of course,
carried, but it raises a most interesting sociological question.
Ruskin probably would have been in favor of it. He described as the
very last act of modern barbarism for the woman to be made "to shriek
for a hold of the mattock herself." It was argued in Connecticut that
the employment of married women injured the health of the children,
which is perfectly true. Indeed, the death-rate in England is very
largely determined by the fact whether their mothers are employed in
mills or not. It was also argued that her competition with man merely
halved his wages; that if no women were employed, the men would get
much higher wages. On the other side it was argued that the effect of
the law would be largely immoral because it would simply prevent women
from getting married. Knowing that after marriage they would get no
employment, they would simply dispense with the marriage ceremony; for
it is obvious that under such legislation a man living with a woman
unmarried could get double wages, which would be halved the moment he
made her his wife. This last was evidently the view which prevailed;
and so far as I know, no such law has in the civilized world yet been
enacted, though there is doubtless a much stronger social prejudice
against women entering ordinary employments in some countries than in
others.

The constitutional question underlying all this discussion was perhaps
best set forth by an experiment of the late Mr. Edward Atkinson, which
he always threatened to bring into the courts, but I believe did not
do so. "An Englishman's house is his castle"; an English woman's house
is her castle. Atkinson proposed that a woman of full age, living in
her own house, should connect her loom or spindles by electric wire to
the nearest mill or factory, and then proceed to weave or spin _more_
than the legal limit of nine hours per day. Would the state, under the
broadest principles of English constitutional liberty, have the right
to come in and tell her not to do so; particularly when the man in the
next house remained free? Up to this time there is no doubt that a
factory, a large congregation of labor, under peculiar conditions,
presents a different question and a different constitutional aspect
from that of the individual. This, indeed, is the principle which must
justify the constitutional regulation of sweat-shops, as to which we
will speak next.

The sweat-shop is the modern phrase for a house, frequently a
dwelling, tenement, or home, not a factory, and not under the
ownership or control of the person giving out the employment.

Now a factory may obviously be regulated under ordinary police
principles; but when the first great case came up as to regulating
labor in a man's own home, even though it was but one floor of a
tenement, it was decided by the highest court of New York to be
unconstitutional. The case was one concerning the manufacture of
cigars, which by the statute was prohibited in tenement houses on any
floor partly occupied for residence purposes.[1] Nevertheless it may
be questioned whether, with the advancing social feeling in such
matters, legislation would not be now sustained when clearly aimed at
sanitary purposes, even though it interfered with trades conducted in
a man's dwelling house. I hold that it is quite as possible for the
arm of the state to interfere to prevent the baking of bread in
bedrooms, for instance, as it is to seize upon clothing which has been
exposed to scarlet fever. A man's home, under modern theories, is
no more sacred against this police power than is his body against
vaccination; and the last has been decided by the Supreme Court of the
United States.[2]

[Footnote 1: In re Jacobs, 98 N.Y. 98. See the author's "Handbook to
the Labor Law of the U.S.," p. 151.]

[Footnote 2: Massachusetts _v._ Jacobson, 197 U.S. 11.]

At all events, legislation may be aimed against sweat-shops which in
any sense resemble factories--that is, where numbers of persons not
the family of the occupier are engaged in industrial labor; so
in Pennsylvania it has been extended to jurisdiction over shops
maintained in the back yards of tenements; while in most States the
statute applies to any dwelling where any person not a member of
the family is employed, and general legislation against sweat-shops
already exists in the twelve north-eastern industrial States from
Massachusetts to Missouri and Wisconsin, leaving out only Rhode
Island.

The Massachusetts law as at present forbids work upon clothing
except by members of the family in any tenement without license, and
thereupon subjects the premises to the inspection of the police, and
registers of all help must be kept. Whoever offers for sale clothing
made in a tenement not licensed must affix a tag or label two inches
long bearing the words "Tenement Made," with the name of the State and
city or town in which the garment was made. Moreover, any inspector
may report to the State board of health that ready-made clothing
manufactured under unhealthy conditions is being shipped into the
State, which "shall thereupon make such orders as the public safety
may require."[1] In New York the law applies to the manufacture
of many articles besides clothing, such as artificial flowers,
cigarettes, cigars, rubber, paper, confectionery, preserves, etc. A
license may be denied to any tenement house if the records show that
it is liable to any infectious or communicable disease or other
unsanitary conditions. Articles not manufactured in tenements so
licensed may not be sold or exposed for sale, and there is the same
law as in Massachusetts as to goods coming in from outside the State,
and there is the same exemption of apartments occupied by members of
the family, and even then it appears that they are subject to the
visitation of the board of health and must have a permit. The
Pennsylvania law is similar to the New York law, and in addition, all
persons are forbidden to bargain for sweat-shop labor, that is, labor
in any kitchen, living-room, or bedroom in any tenement house except
by the family actually resident therein, who must have a certificate
from the board of health. The Wisconsin law apparently applies to
persons doing the work in their own homes, who must have a license
like anybody else, and the owner of the building is liable for its
unlawful use. The Illinois and Maryland laws are similar to the New
York law, while the Michigan statute resembles that of Wisconsin,
apparently applying to members of the family as well. The Missouri law
forbids the manufacture of clothing, etc., in tenements by more than
three persons not immediate members of the family, while the New
Jersey and Connecticut statutes content themselves with making
such manufacture by persons not members of the family subject to
inspection.

[Footnote 1: Massachusetts R.L., 106, secs. 56 to 60 inclusive.]

It is a curious commentary that the very dream of the social reformers
of only twenty years ago is so rudely dispelled by the march of
events; for in the late nineties it was the hope of the enthusiast,
particularly the student in electrical science, that the factory
system might in time be done away with, and by the use of power served
from long or short distance over wires to a man's own habitation,
all the industries of manufacture might be carried on in a man's own
home--just as used to be the case with the spinners and weavers of
olden time. Far from being a hope, it turns out that this breeds the
very worst conditions of all, and the most difficult to regulate by
law. For modern homes for the most part are not sanitary dwellings in
the country, but single floors or parts of floors in huge tenement
houses in great cities. It is probable to-day, therefore, that there
is a perfect reversal of opinion, and that the social reformer now
dreams of a world where no work is permitted in the home, other than
ordinary domestic avocations, but all is compelled to be done in
factories under the supervision of public authorities--a splendid
example of the dangers of hasty legislation; for had we carried into
law the eager desire of the reformers of only twenty years since, we
should, it appears, have been on a hopelessly wrong track.

It should be noted, however, that the reform of conditions is very
largely arrived at by a different path--that of the _building_ laws
in our cities. No more arbitrary rule exists to-day or was ever in
history than the despotic sway of a board or commission created under
modern police-power ideas. In everything else you have a right to a
hearing, if not an appeal to the common-law courts and a jury; but the
power of a building inspector is that of an Oriental despot. He can
order you summarily to do a thing, or do it himself; or destroy or
condemn your property; and you have no redress, nor compensation, nor
even a lawsuit to recover compensation. Therefore, if the sweat-shop
reformers may not constitutionally regulate the conditions and
business of sweating so far as they would like to go, they can turn
about and directly regulate the actual building of residences where
the trade is carried on. They can require not only so many cubic feet
of air per person in the sweat-shop, but so many cubic feet of air per
person in every bedroom; as Ruskin said, not only, of grouse, so many
brace to the acre, but of men and women--so many brace to the garret.
A California law[1] once made it a criminal offence for any person to
sleep with less than one thousand feet of air in his room for his own
exclusive use! It is indeed a crime to be poor.

[Footnote 1: See Ah Kow, Nunan, 5 Sawyer, 552.]

This legislation to reform sweat-shops is a field which has been
almost entirely cultivated by what I have termed the moral reformers,
with little or no help from organized labor. One's observation is that
organized labor has been mainly concerned with the price of wages, the
length of hours, and with the closed shop; it has devoted very little
of its energies to factory or trade _conditions_, except, indeed, that
it has been very desirous of enforcing the union label, on which it
asserts that union-made goods are always made under sanitary and moral
conditions, and implies that the goods of "scab" manufacturers are not
so.

The usual sweated trades in this country are the manufacture of
clothing, underwear, tobacco, and artificial flowers. There has also
been considerable regulation of laundries and bakeries, but not
because they are what is commonly called sweated trades.

The bulk of factory legislation is too vast for more than mention in a
general way. It fills probably one-fourth in mass of the labor laws
of the whole country, and applies in great and varying detail to the
general condition of factories, workshops, and in most States to large
stores--department stores--using the word in the American sense.
It may be broadly analyzed as legislation for the construction
of factories, for fresh air in factories, for general sanitary
conditions, such as the removal of dust and noxious gases,
white-washing, sanitary appliances, over-crowding, stair-cases,
fire-escapes, and the prohibition of dangerous machinery. As has been
said, it was begun in Massachusetts in the fifth decade of the last
century, based originally almost entirely on the English factory acts,
which were bitterly attacked by the _laissez-faire_ school of the
early nineteenth century, but soon vindicated themselves as legitimate
legislation in England, although not even there--still less in our
States--have we gone so far as the Continental countries.

Closely connected with this may be mentioned that vast domain of
law which is known as employers' liability. Under the old strict
common-law rule, a servant or employee could never recover damages for
any injury caused in whole or in part by his own negligence, by the
negligence of a fellow servant or even by defective machinery, unless
he was able to prove beyond peradventure that this existed known to
the employer and was the sole and direct cause of the accident. As is
matter of common knowledge, the tendency of all modern legislation,
particularly the English and our own, has been to chip one corner
after another off these principles. The fellow-servant rule has been
very generally abolished by statute, or in many States fellow servants
have been defined and divided into classes so that the master is not
relieved of liability when the injury to the servant is caused by
the negligence of a servant not in actual fact his fellow, _i.e._,
employed with him in his own particular work. In like manner the
exemption for contributory negligence has been pared down and the
liability for dangerous or defective appliances increased, practically
to the point that the master becomes the insurer of his machinery in
this particular. The recent English statute goes to the length of
putting the liability on the employer or on an employment fund in all
cases.

The writer is strongly of opinion that this radical reform is, so far
as constitutional, the end to be aimed at. The immense expense and
waste caused by present litigation, the complete uncertainty both
as to liability and as to the amount of damages, the general fraud,
oppression, and deceit that the present system leads to, and finally
its hideous waste and extravagance, are all reasons for doing away
with it entirely. He believes that for the employer's own benefit
if there were a statute with a definite scale of damages, providing
definitely, and as part of the employment contract if necessary,
with a certain small deduction from the wages, that there should be
insurance, that the master should be actually liable on a fixed scale
for all injuries suffered while in his employment not in disobedience
to his orders or solely and grossly negligent, it would be far better
both for employer and employee. To-day it is possible that in many
cases the employee gets no damages or is cheated out of them, or they
are wasted in litigation expense (the Indiana Bar Association reported
this year that only about thirty per cent. of the damages actually
recovered of the employer reaches the party injured); while on the
other hand the master can never know for how much he is going to be
liable, and in the rare cases which get to a jury they are apt to find
an excessive verdict. It is the custom with most gentlemen to pay a
reasonable allowance to any servant injured while in their employ,
unless directly disobedient of orders. There is no practical reason
why this moral obligation should not be embodied in a statute and
extended to everybody. The scale of damages should of course be put so
low as not to encourage persons to expose themselves, still less their
own children, to injury in the hope of getting monetary compensation.
But although in India we are told the natives throw themselves under
the wheels of automobiles, it is not probable that in American
civilization there would be serious abuse of the law in this
particular. Five thousand dollars, for instance, for loss of life or
limb or eye, with a scale going down, as does the German law, to a
mere compensation for time lost and medical attendance in ordinary
injuries, would be sufficient in equity and would surely not encourage
persons voluntarily to maim themselves.

The next great line of legislation concerns the mode of payment of
wages. The _amount_, as has been said, is never regulated; but it has
been customary for nearly a century for the law to require payment
in cash, or at least that it be not compulsorily made in goods or
supplies, or still worse in store orders. This line of legislation is
commonly known as the anti-truck laws and exists in most States, but
has been strenuously opposed in the South and Southwest as interfering
with the liberty of contract, so that in those more conservative
States the courts have very often nullified such legislation. It may
be summarized as follows:

(1) Weekly or time payment laws. These exist in more than half the
States, and are always constitutional as to corporations, but are
possibly unconstitutional in all States except Massachusetts when
applied to private employers.

(2) Cash-payment laws, requiring payments to be made in actual money.
These statutes are commonly combined with those last mentioned and are
subject to the same constitutional objections. As a part of them,
or in connection with them, we will put the ordinary anti-truck
laws--that is, legislation forbidding payment in produce or supplies
or commodities of any kind. Finally, the store-order laws forbidding
payment to be made in orders for indefinite supplies on any particular
store, still less on a store owned or operated by the company or
employer. Such laws have sometimes been held unconstitutional in all
particulars, sometimes when they apply only to certain industries,
as, for instance, mines. In the writer's opinion they are never
constitutional when applied to corporations, nor are they class
legislation when applied to mines, for the reason that it is well
known that mines are situated in remote districts where there are few
stores, and that the maintenance of a company store has not only led
to much cheating but to an actual condition of peonage. That is to
say, the miners would be held in debt and led to believe that they
could not leave the mine or employment until the debt was liquidated.
Belonging usually to the most ignorant class, it is matter of common
knowledge that this has been done, and that Poles, negroes, or others
of the more recent immigrants have been permanently kept in debt to
the company store or by advances or in other ways, as for rent or
board.

(3) Closely allied to such legislation, of course, is the legislation
against factory tenements or dwellings, but there is probably less
real abuse here, and therefore a greater constitutional objection
against laws forbidding houses, especially model houses, to be built
and rented by the employer. Such efforts, unfortunately, have not
usually been popular. Far from helping labor conditions, they seem
to have caused great resentment, as was notably the case in Pullman,
Illinois, and very recently in Ludlow, Massachusetts. It may be that
the American temperament prefers its own house, and resents being
compelled to live in a house, however superior, designed for him and
assigned to him by his employer.

(4) The next matter which has evoked the attention of philanthropists
and the angry resentment of the persons they supposed they were trying
to benefit, is that of the benefit or company insurance or pension
funds. The principle of withholding, or contracting with the employees
to withhold, a small proportion of their wages weekly or monthly to
go into an endowment or benefit fund, even when the company itself
contributes as much or more, was instituted with sanguine hopes some
forty years ago, first in the great Calumet & Hecla Copper Company,
and then in some of the larger railroads; and was on the point of
meeting general acceptance when it evoked the hostility of organized
labor, which secured legislation in Ohio and other States making it
a crime, or at least unlawful, for either side to make a contract
whereby any part of the wages was taken or withheld for such purposes.
The German theory of old-age pensions is based upon this principle;
but it is so unpopular in America that frequently in the South, when
things are done for the workmen, they are hardly permitted to know it;
a pretence, at least, is made that their own contributions are the
entire support of the hospital, library, reading-room, or whatever it
may be, when, in fact, the lion's share is borne by the company. There
is no doubt that the American laborer resents being done good
to, except by himself; and is organized to resent any system of
beneficence to the point of making it actually prohibited by the law.

Much of the legislation described in this chapter is wise, and
probably all of it is wise in intention. Yet, in closing, one cannot
resist calling attention to the unforeseen dangers that always attend
legislation running counter to the broad general basis of Anglo-Saxon
civilization. One need make no fetich of freedom of contract to
believe that laws aimed against it may hit us in unexpected ways. For
one famous example, the cash weekly-payment law in Illinois existed in
1893. In that year there was a great panic. Nobody could obtain any
money; mills and shops were closing down, particularly in Chicago.
Everybody was being thrown out of employment, and distress to the
point of starvation ensued. In the very worst days of that panic
some of the largest and most charitable employers of labor met their
employees in a monster mass meeting, and reported that while they
could not pay in full and nothing apparently was in prospect but an
actual shutdown, they had succeeded in getting enough cash to keep all
their employees, provided they would take weekly half what was owing
to them in money, and the short-time notes or obligations of the
firms, or even of banks, for the remainder. The offer evoked the
greatest enthusiasm, was unanimously accepted by the thousands of
employees, and amid great rejoicing the meeting adjourned;--only to
find by the advice of their counsel next morning that under the laws
of the State of Illinois such a settlement was made a crime, and that
for every workman who received his wages each week only half in cash,
the employer would be liable to a one-hundred-dollar fine, and thirty
days' imprisonment.

The great reform, not of legislation but of condition, in the labor
question, is unquestionably to arrive at a status of _contract_.
Hitherto the principle that seems to have been accepted by organized
labor, at least in America, is that of being organized for purposes
of offence, not for defence; like a mob or rabble which can attack
united, but retreats each for himself; which demands, but cannot give;
which, like a naughty child or person _non compos_, is not responsible
for its own actions. Still there is, as yet, no legislation aimed at
or permitting a definite contract in ordinary industrial employment;
although there are a few laws which provide that when the employee may
not leave without notice, the employer may not discharge him without a
corresponding notice except for cause.

As relating mainly to strikes or concerted action, the question of
arbitration and conciliation laws will be left for the next chapter;
but we may close our discussion of individual legislation by calling
attention to the striking attempt to revive mediaeval principles of
compulsory labor in certain avocations and in certain portions of
this country. The cardinal rule that the contract of labor may not
be compelled to be carried out, that an injunction will not issue to
perform a labor contract, or even in ordinary cases against breaking
it, is, of course, violated by any such legislation; but ingenious
attempts have been made to get around it in the Southern States.

This world-wide problem is really rather a racial problem than an
economic one amongst Anglo-Saxons. The inability of the African and
the Caucasian to live side by side on an equality largely results from
this economic 'question' which, broadly stated, is that the Caucasian
is willing to work beyond his immediate need voluntarily and without
physical compulsion; the African in his natural state is not. The
American Indian had the same prejudice against manual labor; but
rather that, as a gentleman, he thought himself above it; and his
character was such that he always successfully resisted any attempts
at enslavement or even compulsory service. The negro, on the other
hand, is not above such work, but merely is lazy and needs the impulse
of actual hunger or the orders of an overseer. We are, of course,
speaking of the mass of the people, in their natural state, before any
enlightenment gained by contact with more civilized races. The whole
question is discussed on its broadest lines by Mr. Meredith Townsend
in his luminous work, "Asia and Europe." He seems hopelessly to
conclude that there is no possibility of white and black permanently
living together as part of one industrial civilization unless the
latter race is definitely under the orders of the former. Without
assenting to this view it may be admitted that it is one which has
very largely prevailed in the Southern States, and the difficulty
there is, of course, with agricultural labor. So fast as the negro can
be made a peasant proprietor, the question seems to be in a measure
solved; but it is alleged to be almost impossible to get the necessary
labor from negroes when done for others, under contract or otherwise.
There is, therefore, a mass of recent legislation in the Southern
States which we may entitle the _peonage_ laws, which range from the
highly objectionable and unconstitutional statute compelling a person
to carry out his contract of labor under penalty as for a misdemeanor,
to the more ingenious statutes which get at the same result by the
indirect means of declaring a person guilty of breaking a contract
under which he has acquired money or supplies punishable as for fraud.
There are also statutes applying and very greatly extending the old
common-law doctrine of loss of service; making it highly criminal for
a neighbor to incite a servant or employee to break his contract or
even to accept the work of a laborer without ascertaining that he
has not broken such contract, as, for instance, by a certificate of
discharge from his last master. These laws, it will be seen, differ in
no particular from the early labor laws in England, which we carefully
summarized for this purpose; except, indeed, that they do stop short
of the old English legislation which provided that when a laborer
broke his contract or refused to work he could be committed before the
nearest magistrate and summarily punished. Even this result, however,
has been arrived at by the more circuitous and ingenious legislation
of Southern States such as in Georgia, cited in the charge to the
Grand Jury.[1] The principle of this elaborate machinery is always
that money advances, or supplies, or a lease of a farm for a season
or more, or the loan of a mule, having first been made under written
contract to the negro, the breaking of such contract or the omission
to repay such advances, is declared to be in the nature of fraud; the
entering into such contract with intention to break it is declared to
be a misdemeanor, etc., etc. The negro refusing to carry out his labor
contract is then cited before the nearest magistrate, who imposes
under the statute a nominal fine. The negro, being of course unable to
pay this fine, is remanded to the custody of his bondsmen, who pay it
for him, one of them of course being the master. The negro leaves the
court in custody of his employer and carries away the impression with
him that he has escaped jail only by being committed by the court to
his employer to do his employer's work, an impression possibly not too
remote from the fact. It is easy to see how to the African mind the
magistrate may appear like an Oriental cadi, and how he may be led to
carry out his work as submissively as would the Oriental under similar
circumstances.

[Footnote 1: Jaremillo _v._ Parsons, 1 N.M. 190; _in re_ Lewis, 114
Fed. 963; Peonage cases, 123 Fed. 671; United States _v._ McClellan,
127 Fed. 971; United States _v._ Eberhard, 127 Fed. 971; Peonage
cases, 136 Fed. 707; charge to jury, 138 Fed. 686; Robertson _v._
Baldwin, 165 U.S. 275; Clyatt _v._ United States, 197 U.S. 207; Vance
_v._ State, 57 S.E. 889, Bailey _v._ Alabama, 211 U.S. 452; Torrey
_v._ Alabama, 37 So. 332.]

There can be no question, except in the minds of those utterly
unfamiliar with the tropics and Southern conditions generally, of the
difficulty of this labor problem throughout the world. It has appeared
not only in our Southern States but in the West Indies and South
Africa--in any country where colored labor is employed. The writer
knows of at least one large plantation in the South where many hundred
negroes were employed to get in the cotton crops, and the employer
was careful never to deliver their letters until the season had
terminated; for on the merest invitation to attend a ball or a wedding
in some neighboring county, the bulk of the help would leave for
that purpose and might or might not return. Railway labor is not
so difficult, because the workmen commonly work in gangs under an
overseer who usually assumes, if he is not vested with, some physical
authority; but the case of the individual farmer who is trusted upon
his own exertions to till a field or get in the crop seems to be
almost impossible of regulation under a strict English common-law
system. Farming on shares appears to be almost equally unsatisfactory.
The farmer gets his subsistence, but the share of the proprietor in
the crop produced is almost inappreciable.

In closing this chapter reference should be made to a large amount
of American legislation, most of which was absolutely unnecessary as
merely embodying the common law. Still it has its use in extending the
definition of the "unlawful act." It will be remembered that one of
the three branches of conspiracy was the combination to effect a
lawful end by unlawful acts. Now many of the States have statutes
declaring even threats, or intimidation without physical violence, to
be such unlawful act. It may possibly be doubted whether it might not
have been so held at the common law; but such legislation has always
the advantage of getting a uniform line of decisions from all the
judges. The New York statute passed many years ago may serve as a
sample: It provides in substance that any threat or intimidation or
abusive epithets or the hiding of tools or clothes, when done even by
one individual, is an unlawful act; therefore when strikers, although
engaged in a lawful strike, as to raise their own wages, or any one
of them, intend or do any such act, they become guilty of unlawful
conspiracy.

This is probably the only legislation on such matters which adds
anything to the common law. Many of the States, usually Western
States--apt to be more forgetful of the common law than the older
Commonwealths--have been at pains to pass statutes against blacklists.
Such statutes are entirely unnecessary, but as they relate to
combinations they will be considered in the next chapter.

From the official report of the U.S. government, prepared by the
Commission of Labor in 1907, it appears that twenty States and
Territories, including Porto Rico, have provisions against
intimidation, of which the best example is the New York statute quoted
above. Alabama and Colorado have express statutes against picketing,
other than the general statutes against interference with employment.
Nineteen other States, of which, however, only a few--Massachusetts,
Michigan, Oregon, Texas, and Utah--are the same, have provisions
against the coercion of employees in trading or industry, usually to
prevent them from joining unions, but such statutes are also levelled
against the compelling them to buy or trade in any shop, or to rent or
board at any house. Five States have statutes prohibiting the hiring
of armed guards other than the regular police, and especially the
importing such from other States, Massachusetts and Illinois among the
number, though none of the five are so radical as the later statute
of Oklahoma quoted below. Statutes for the enforcement of the labor
contract exist usually only in the South, but we find a beginning of
similar legislation in the North, both Michigan and Minnesota having
statutes making it a misdemeanor to enter into a labor contract
without intent to perform it in cases where advances are made by way
of transportation, supplies, or other benefits. The new anti-tip
statute or law forbidding commissions to any servant or employee is
to be found in Michigan, Wisconsin, and other States (see page 155
above). A few States require any employer to give a discharged
employee a written statement of the reason for his discharge, but such
statutes are probably unconstitutional. Colorado has the extraordinary
statute forbidding employees to be discharged by reason of age.
The common law of loss of service is strengthened generally in the
Southern States by statutes against the enticing of employees. Public
employment offices, as well as State labor bureaus, are now maintained
in nearly all the States.

Examinations and licenses are now required in the several States
of electricians, engineers, horse-shoers, mining foremen, elevator
operators, plumbers, railroad employees, stationary firemen and
engineers, and street railway employees, in addition to the trades
enumerated on page 147.

All the Northeastern States except Maine and Vermont, and Maryland,
Delaware, West Virginia, Alabama, Missouri, Tennessee, Wisconsin,
Michigan, Illinois, Indiana, South Dakota, and Washington have general
factory acts, and all the mining States have elaborate statutes for
the safety of mines.

New York and Wisconsin have statutes forbidding or making illegal
labor unions which exclude their members from serving in the militia.

Connecticut and Massachusetts have laws to facilitate profit-sharing
by corporations. Such statutes would seem hardly necessary, as profits
may be shared or stock distributed or sold without a law to that
effect; if it be regarded as part of the reward of wages, no
injunction would be granted to protesting stockholders. Fifteen States
and Territories, including Porto Rico, have laws for the protection
of employees as members of labor unions, and five as members of the
national guard or militia, similar to the New York statute just
mentioned. Nearly all the States have laws for the protection of
employees as voters, as by requiring half holidays or reasonable time
to vote, or that their pay should not be given them in envelopes upon
which is printed any request to vote or other political material.

Nearly all the States require seats for female employees, and New
Jersey requires seats for horse-car drivers. Five States have general
provisions regulating the employment of women; ten forbid their
employment in bar-rooms (see page 226 above); three regulate their
hours of labor to an inequality with men; and most of the States
forbid females to be employed in mines or underground generally, or,
as we have noted above, in night labor. California, Illinois,
and Washington provide that sex shall be no disqualification for
employment. Four States, among them Illinois, require employers
seeking labor by advertisement to mention (if such be the case) that
there is a strike in their establishment; twelve States (see
above, page 231) have so far tackled the sweat-shop problem, while
practically every State in the Union makes wages a preferred claim in
cases of death or insolvency of the employer.

There is, however, one matter we have reserved for the last, because
it is one of the two or three points about which the immediate contest
before us is to rage. That is the case of individual discharge. It is
elementary that just as an employee may leave with cause or without
cause, so an employer may discharge without cause or with cause, nor
is he bound to state his reasons, and certain statutes requiring him
to do so with the object of avoiding a blacklist have been declared
unconstitutional in Southern States. But organized labor is naturally
very desirous of resenting the discharge of anybody for no other
reason than that of being a union man. In fact it is not too much to
say that this, with the legalization of the boycott, are the two great
demands the unions are now making upon society. Therefore, statutes
have been passed in many States making it unlawful for the employer to
make it a condition of employment that the employee should not be a
member of a union; or to discharge a person for the reason that he
is a member of a union. And closely connected with this is the
combination of union employees to force an employer to discharge a man
because he is not a member of a union. This last will come logically
under the next chapter covering combinations and is not yet the
subject of any statute. Now the difficulty of these statutes, about
the discharge of union labor, is that it is almost impossible to go
into the motive; a man is discharged "for the good of the service."
It is easy, of course, to provide that there should be no written
or definite contract on the matter; but it is not easy to punish or
prohibit the discharge itself without such contract. Such legislation
has, however, been universally held unconstitutional, so that at
present this must be the final word on the subject. The right of the
employer to employ whom he likes and to discharge whom he likes and
make a preference, if he choose, either for union or non-union labor,
is one which cannot be taken away from him by legislation, according
to decisions of the Supreme Courts of Missouri, New York, and the
United States. Therefore, as the matter at present stands, the
constitutions, State and Federal, must be amended if that cardinal
right of trade and labor is to be interfered with.

In closing it may be wise to run over the actual labor laws passed in
the States during the last twenty years, mentioning the more important
lines of legislation so as to show the general tendency.

Beginning in 1890 we find most of the statutes concern the
counterfeiting of union labels, arbitration laws, hours of labor in
State employments, weekly payment laws, the preference of debts for
labor in cases of insolvency, the prohibition of railroad relief
funds, the hours of women and children in factories, seats for women
in shops, the restriction of prison labor, dangerous machinery
in factories, protection in mines, and the incorporation of
trades-unions. Mechanics' lien laws are passed in large quantities
every year and are the subject of endless amendment. We will,
therefore, leave this out for the rest of our discussion as after all
affecting only the owners of real estate.

In 1891 we find more laws regulating or limiting the hours of labor
of women and children, prohibiting it entirely in mines; several
anti-truck laws; two laws against the screening of coal before the
miner is paid, and in Massachusetts, laws against imposing fines
for imperfect weaving and deducting the fine from the wages paid.
Pennsylvania thinks it necessary to enact by statute that a strike
is lawful when the wages are insufficient or it is contrary to union
rules to work, which latter part is clearly unconstitutional. There is
one statute against boycotting and three against blacklisting.

In 1892 there are more laws limiting the hours of labor of women and
children to fifty-eight, or in New Jersey, fifty-five, hours a week;
laws against weavers' fines, and restricting the continuous hours of
railway men. The sweat-shop acts first appear in this year, and the
statutes forbidding the discharge of men for belonging to a union or
making a condition of their employment that they do not belong to one.

In 1893 the laws establishing State bureaus of labor become numerous.
Four more States adopt sweat-shop laws, and there is further
regulation of child labor. Six States adopt statutes against
blacklisting.

In 1894, being the year after the panic, labor legislation is largely
arrested. New York adopts the statute, afterward held constitutional,
requiring that only citizens of the United States should be employed
on public works, and statutes begin to appear to provide for the
unemployed. There is legislation also against intimidation by unions,
against blacklisting, and against convict-made goods.

In 1895 there is still less legislation; only a statute for State
arbitration, against payment of wages in store orders, against
discrimination against unions, and for factory legislation may be
noted.

In 1896 there are a few statutes for State arbitration and weekly
payment, for regulating the doctrine of fellow servants, and some
legislation concerning factories and sweat-shops.

In 1897 California provides a minimum wage of two dollars on public
contracts, and Kansas adopts the first statute against what are termed
indirect contempts; that is, requiring trial by jury for contempts not
committed in the presence of the court. There is a little legislation
against blacklisting, and Southern States forbid the farming out of
convict labor.

In 1898 Virginia copies the Kansas statute against indirect contempts,
and one or two States require convict-made goods manufactured outside
the State to be so labelled, which statutes have since been held
unconstitutional as an interference with interstate commerce.

In 1899 the question of discrimination against union labor becomes
still more prominent and it is in some States made a misdemeanor
to make the belonging or not belonging to a union a condition of
employment. All these statutes have since been held unconstitutional.

In 1900, a year of great prosperity, there is almost no labor
legislation.

In 1901 we only find laws establishing free employment bureaus, except
that California provides a maximum time for women and children of nine
hours a day in both manufacturing and mercantile occupations, and a
minimum wage upon all public work of twenty cents an hour.

In 1902 Colorado overrules her Supreme Court by getting by
constitutional amendment an eight-hour day in mines. Massachusetts
passes a joint resolution of the Legislature asking for a Federal
constitutional amendment which shall permit Congress to fix uniform
hours of labor throughout the United States, and Kentucky and other
Southern States begin to legislate to control the hours of labor of
women and children.

In 1903 this movement continues and in the Northwestern States, Oregon
and Colorado, the length of hours of labor of women of all ages is
generally limited. Weekly payments and anti-truck laws are adopted.
Montana forbids company boarding-houses and Colorado makes the
striking attempt to do away with the so-called dead line; that is to
say, a statute forbidding any person to be discharged by reason of
age, between the years of eighteen and sixty. California follows
Maryland in abolishing the conspiracy law, both as applied to
employers and employees.[1] It does not seem that in either State this
statute has yet been tested as class legislation. Legislation against
the open shop continues in far Western States, while Minnesota makes
it a misdemeanor for an employer to exact as a condition of employment
that the employee shall not take part in a strike.

[Footnote 1: See the next chapter.]

In 1904 there is little legislation. Far Western States go on with the
protection of child labor, particularly in mines, and Alabama adopts a
general statute against picketing, boycotting, and blacklisting.

In 1905 we first find legislation against peonage or compulsory labor
in the Southern States, North Carolina and Alabama. The celebrated
constitutional amendment of New York is enacted, which gives the
Legislature full power to regulate wages, hours, and conditions in
public labor. (See above, p. 161.) Further regulation of factories
and mines goes on, with State employment agencies and reform of the
employers' liability laws. Colorado and Utah prohibit boycotts and
blacklisting, and in one or two States corporations are required
to give every person discharged a letter stating the reason of his
discharge, which statute was since held unconstitutional in Georgia.

In 1906 the usual sanitary legislation goes on. Massachusetts adopts
an eight-hour law for public work. Arkansas and Louisiana attempt
legislation preventing the violation of contract by persons farming on
shares, or the hiring of farm laborers by others, and Massachusetts
establishes free employment bureaus.

In 1907 four more Southern States attempt laws to control agricultural
labor; the factory acts and child-labor laws continue to spread
through the South; New York largely develops its line of sweat-shop
legislation, and more child-labor laws and laws prohibiting the work
of women in mines are introduced in the South.

In 1908 Oklahoma adopts the Kansas contempt statute, and Virginia
provides for appeals to the Supreme Court in contempt cases. South
Carolina makes it a misdemeanor to fail to work after being employed
on a contract for personal services, or for the employer on his side
to fail to carry it out. Oklahoma adopts a curious strike statute
which, besides the usual provision for the closed shop, makes it a
felony to bring workmen, _i.e._, strike-breakers, from other places in
the State or from other States under false pretences, including, in
the latter, concealment of the existence of the strike; and makes it a
felony to hire armed men to guard such persons.

With this climax of labor legislation our review may properly end, but
the reader will not fail to note the advantage that may be derived
from experience of these extraordinary statutes as they are tried out
in the different States and Territories. It could be wished that some
machinery could be provided for obtaining information as to their
practical working. The legislation of 1909 was principally concerned
with the matter of employers' liability for accidents, a conference
upon this subject having been held by three State commissions, New
York, Minnesota, and Wisconsin. Massachusetts extended the act of 1908
permitting employers and employees to contract for the compensation
of accidents; and Montana established a State accident insurance for
coal-miners. California and Montana exempted labor in a large degree
from the operation of the State anti-trust laws; but Washington
adopted a new statute defining a conspiracy to exist when two or more
persons interfere or threaten to interfere with the trade, tools, or
property of another, and proof of an overt act is not necessary. North
and South Carolina, Texas, and Connecticut passed the usual statute
protecting employees from being discharged because of membership in a
trades-union, which, as we have said, has been held unconstitutional
wherever contested. Arizona, California, Idaho, Washington, Wyoming
and Nevada enacted or amended eight-hour measures for employees in
mines, but little was accomplished for children in the Southern
States.[1]

[Footnote 1: See "Progressive Tendencies in the Labor Legislation of
1909," by Irene Osgood, in the _American Political Science Review_ for
May, 1910.]

The labor-injunction question has been recently covered by an
admirable study prepared by the Massachusetts Bureau of Statistics and
published in December, 1909. The investigation covers eleven years,
from 1898 to 1908, in which there occurred two thousand and two
strikes. In sixty-six of these strikes the employers sought
injunctions and in forty-six cases injunctions were actually issued.
In only nine cases were there proceedings for contempt of these
injunctions, while only in two cases out of the two thousand were
there any convictions for contempt of court. In eighteen cases
injunctions were sought to prevent employees from striking, but
only in four of these were they granted, and one of these was later
dissolved. Seven bills were brought by employees against unions for
interference with their employment, etc., and in three cases unions
sought injunctions against other unions. In one case a union brought
a bill against an employer and in one case an employer sought an
injunction against an employers' association. Under a decision of the
Massachusetts Supreme Court it was declared unlawful for a trade-union
to impose fines upon those of its members who refused to obey its
orders to strike or engage in a boycott. In 1909 a bill was introduced
in the Legislature with the special object of permitting this, but it
failed of passage. The _Bulletin_ contains a brief history of equity
jurisdiction in labor cases and reprints all the decisions of the
Supreme Court of Massachusetts down to the year 1909, and the actual
injunctions issued by Superior Courts in five late cases, with a
chronological summary of proceedings in cases concerning industrial
disputes in all Massachusetts courts for the eleven years covered by
the report.

The matter of labor legislation is of such world-wide importance that
a word or two may not be out of place concerning recent legislation in
other countries. Other than factory and sweat-shop acts and hours
of labor laws, there are three great lines of modern legislation in
Europe, North America, and Australasia: employers' liability, old-age
pensions, minimum wage. On the first point, the tendency of modern
legislation, as has been intimated, is to make the employer liable in
all cases for personal injuries suffered in his employ without regard
to contributory negligence or the cause of the accident. That is, it
is in the nature of an insurance which the employer is made to carry
as part of his business expenses. It has the great advantage of
doing away with litigation and confining his liability to reasonable
amounts, and in the writer's opinion is in the long run for the
benefit of the employer himself. There is one exception. The employer
is not liable when the injury was caused by the wilful misconduct of
the workman injured.

Old-age pensions, or State insurance against old age as well as
disability, now exist in several countries, notably Germany, New
Zealand, and England. The German law[1] is much the most intelligent
and the least communistic in that it provides that half the fund is
raised by deductions made from the wages of the workmen themselves.
It applies to all persons, male and female, employed under salary or
wages as workmen, journeymen, apprentices, or servants; also to all
industrial workmen, skilled laborers, clerks, porters, and assistants;
also to all other persons whose occupation consists principally in
the service of others, such as teachers who do not receive an annual
salary of more than five hundred dollars; also to sailors and railway
employees; also to domestic servants. No one is obliged to insure
himself who is over the age of seventy, and no one is bound to insure
who does not work in a required insurance class for more than twelve
weeks or fifty days in each year. When women get married, they insist
on reimbursement of one half of all the insurance assessments they
have paid up to that time, provided such assessments amount to two
hundred weeks, or four years--a provision which must very much help
out marriages, and from which the amusing deduction may be drawn that
the average value of a husband in Germany is considered to be about
one-half the expense of supporting his wife for a period of two
hundred weeks, or four years. On the other hand, the law has the
effect of postponing marriage for the first four years of a woman's
employment, as it practically imposes a penalty upon a woman marrying
before four years from the time when she begins to pay to the State
insurance money.

[Footnote 1: U.S. Industrial Commission Reports, vol. V, pp. 228-241.]

The English old-age pension law is a mere gratuity in the nature of
outdoor relief, giving to everybody who has reached a certain age,
without reference to any previous service, tramps or drones as well as
workmen. It is a law indefensible in principle and merely the accident
of a radical government. It provides that every person over seventy
whose yearly means do not exceed thirty-one pounds ten shillings
(_i.e._ income from property or privilege) and is not in "regular
receipt of poor relief" and has not "habitually failed to work
according to his ability, opportunity and need" nor been sentenced to
any imprisonment for a criminal offence--all to be determined by
a local pension committee with appeal to the central pension
authority--shall receive a pension of five shillings a week when his
annual means do not exceed twenty-one pounds, that is, thirteen pounds
a year, down to one shilling a week when they exceed twenty-eight
pounds seventeen shillings six pence.

The New Zealand law is more intelligent. It extends old-age pensions
to every person over the age of sixty-five who has resided thirty-five
years in the colony and not been imprisoned for a criminal offence,
nor has abandoned his wife, nor neglected to provide for his or her
children. It does not, however, appear that any previous employment is
necessary. The pension amounts to eighteen pounds, say ninety dollars,
a year and is not given to any one who has an income of fifty-two
pounds a year. The machinery of the law is largely conducted through
the post-office and the entire expense is met by the state. That is to
say, there is no contribution from the laborers themselves.

Austria, Italy, Norway, and Denmark in 1901 had also state insurance
systems.

The minimum-wage idea has so far been attempted only In New Zealand
and in Great Britain.[1] (See above, p. 160.) The New Zealand law of
1899 provided a minimum wage of four shillings per week for boys and
girls, and five shillings for boys under eighteen, but the principle
has been much extended by a more recent statute. The English law
is not yet in active operation, and may or may not receive great
extension. It provides in substance for the fixing of a minimum wage
in the clothing trade or _any other_ trade specified by the Home
Secretary. The obvious probability is that it will, as in New Zealand,
soon be extended to all trades. This wage is to be fixed by a board of
arbitrators with the usual representation given to each side, and it
will doubtless work, as it does in New Zealand, for the elevation of
wages, as such commissions rarely reduce them.

[Footnote 1: This, the Trade Boards Act, the 22d chapter of the ninth
of Edward VII., enacted October 20, 1909, took effect January 1, 1910.
The act applies without specification to ready-made and wholesale
tailoring, the making of boxes, machine-made lace and chain-making,
and may be applied to other trades by provisional order of the Board
of Trade, when confirmed by Parliament. The Board of Trade may make
such provisional order applying the act to any specified trade if
they are satisfied that the rate of wages prevailing in that trade is
exceptionally low as compared with that in other employments, and
that the other circumstances of the trade are such as to render the
application of the act expedient; and in like manner they may make a
provisional order providing that the act shall cease to apply to any
trade to which it already was applied. Section 2 provides that the
Board of Trade shall establish one or more trade boards for any trade
to which the act is to be applied, with separate trade boards
for Ireland. These trade boards (section 11) consist of members
representing employers and members representing workers in equal
proportions, and of certain appointed members. Women are eligible,
and the representative members may be elected or nominated as the
regulations determine. The chairman and secretary are appointed by the
Board of Trade. Such boards are given power to fix minimum rates of
wages both for time and piece work, which thereafter must be observed
under penalty. There is further a machinery for the establishment of
district trade committees. All regulations made by such Boards
of Trade shall be laid as soon as possible before both houses of
Parliament; but there does not appear to be any other appeal.]

Co-operation and profit-sharing, the great hope of the middle years
of the nineteenth century, has made little progress in England or the
United States since. Such successful experiments as now exist consist
principally in offering to the employees the opportunity to buy the
stock of the company at a reasonable rate, as in the case of the
Illinois Central Railroad and the United States Steel Company. Many
mills, however, give a certain increase in wages at the end of regular
periods proportionate to the profits. This technically is what we
call profit-sharing. The word "co-operation" should be reserved
for institutions actually co-operative; that is to say, where the
employees are partners in business with the employers. Of such there
are very few in the United States, although there are quite a
number in England. In 1901 there were only nineteen co-operative
establishments in the United States, most prominent among which are
the Peacedale Woolen Mills in Rhode Island; the Riverside Press in
Cambridge; Rand, McNally & Co., Chicago; the Century Company, of New
York; the Proctor & Gamble Soap Co., of Cincinnati; the Bourne Mills,
of Fall River, and the Pillsbury Flour Mills, of Minneapolis. Yet
these institutions are really profit-sharing rather than co-operative,
for the return is merely an extra cash dividend to employees who have
no voice in the management. Mr. Oilman in his book, "A Dividend to
Labor," tells us that there are thirty-nine other cases at least where
profit-sharing once adopted has been abandoned. On the other hand,
in Great Britain there were in 1899 one hundred and ten important
co-operative productive establishments. There are many more on the
Continent.

Arbitration laws are also far more developed and successful in
European and Australasian countries than in Great Britain or the
United States, although the first English act concerning arbitration
was passed as early as 1603. In the first year of Queen Anne, 1701,
was the first act referring specially to arbitration of labor, and the
next, Lord St. Leonard's act, in 1867, which attempted to establish
councils of conciliation, something after the pattern of the French
_conseils de prudhommes_; but in 1896 these acts were repealed and the
Conciliation Act of the 59th Victoria, chapter 30, substituted. It
provides that the boards of arbitration may act of their own motion in
so far as to make inquiry and take such steps as they deem expedient
to bring the parties together, and upon application of either side may
appoint a conciliator, and on the application of both sides, appoint
an arbitrator. Their award is filed of record and made public, but
no provision is made for its compulsory enforcement. In France, the
legislation is much more intelligent. There the distinction between
individual and collective labor is clearly made and within recent
years there is elaborate legislation for the settlement of strikes,
disputes of the collective class, which we will later describe. For
the adjustment of individual disputes, France has long had in her
_conseils de prudhommes_ a special system of labor courts that
constitutes one of her most distinctive social institutions.[1] These
are special tribunals composed of employers and workingmen, created
for the purpose of adjusting disputes by conciliation if possible, or
judicially if conciliation fails. Appeal from their decisions is made
to the tribunals of commerce. The first such council was created in
Lyons in 1806, but since they have spread through all France. When the
amount involved does not exceed two hundred francs, the judgment of
the council is final; above that sum an appeal may be made to the
tribunal of commerce. The most important element of all, perhaps, is
that these councils have to some extent criminal powers, or powers of
punishment. They can examine the acts of workingmen in the industries
under their jurisdiction tending to disturb order or discipline, and
impose penalties of imprisonment not exceeding three days, having for
this concurrent jurisdiction with the justices of the peace. Elaborate
arbitration laws also exist in France, and whenever any strike occurs,
if the parties do not invoke arbitration the justices of the peace
must intervene to conciliate. Still there is no compulsory arbitration
except by agreement of both sides.

[Footnote 1: See the author's Report to the U.S. Industrial
Commission, vol. XVI, page 173.]

Similar laws exist in Belgium, Switzerland, Germany, Austria, Holland,
New Zealand, Australia, and Canada.

The apprentice system still exists in perfection in all European
states, including Great Britain, although there most of the unions
restrict the number that may be employed. In the United States it has,
unfortunately, fallen entirely into disuse.

It has already been mentioned that the factory laws, laws regulating
the sanitary conditions, etc., of factories and sweat-shops, are far
more complicated and intelligent upon the Continent, and even in
England, than in the United States of America.

Coming finally to what most persons consider the most important line,
that of strikes, boycotts, and intimidation, the legislation of the
Continent of Europe where common-law principles of individual liberty
do not interfere, is, of course, far more complex and far more
effective than that of either England or the United States. The
principle of combination we leave for the next chapter. In European
legislation, where we are met with no constitutional difficulties,
we shall expect to find a more paternalistic control by the state,
although in France the decree of March 2, 1791, provided that every
person "shall be free to engage in such an enterprise or exercise,
such profession, art or trade, as he may desire." In Germany an
elaborate attempt has been recently made to re-introduce the old guild
system made over from its mediaeval form to suit modern conditions,
and in other countries where the government does not interfere, the
trade guilds, or unions, present insuperable obstacles to any one
engaging in their industry who is not a member of the guild or has not
gone through the required apprenticeship.[1]

[Footnote 1: U.S. Industrial Commission Reports, vol. XVI, p. 9.]

The French decree of 1791 freeing labor took effect also in French
Switzerland. A most interesting account of the experiment of the Swiss
Cantons on freedom of labor and the guild system will be found in
the U.S. Industrial Commission Report above referred to.[1] Germany
differs from England and France in that the old guild system was never
absolutely done away with; in 1807 serfdom was abolished in Prussia,
and a decree of December, 1808, apparently under the influence of
Napoleon, proclaimed the right of citizens freely to engage in such
occupations as they desired. Exclusive privileges and industrial
monopolies were abolished by subsequent decrees, and the general
movement for the freeing of industry was consummated in 1845 by the
labor code of that year, which, by the labor code of 1883, extends
over all Germany: "The practice of any trade is made free to all....
The distinctions between town and country in relation to the practice
of any handicraft trade is abolished.... Trade and merchant guilds
have no right to exclude others from the practice of any trade.... The
right to the independent exercise of a trade shall in no way depend
upon the sex...."[2]

[Footnote 1:_Ibid_., p. 10.]

[Footnote 2: _Ibid_., pp. 11 and 12.]

It will be seen that the more enlightened European countries arrived,
under the influence of Napoleon probably, or the French Revolution,
in the early part of the last century, to the point of specifically
adopting the English common law of liberty of labor and trade which
"organized labor" seems already desirous of departing from; but the
German Civil Code goes on to say (Section 611): "By the contract of
hiring of services the person who promises service is obliged to
render the promised service, and the other party is obliged to the
payment of the salary or wage agreed upon. All nature of services may
be the subject of the service contract." It would seem, therefore,
that the contract may be specifically enforced. So, in France, by the
law of 1890, "A person can only bind himself to give his services for
a certain time or a special enterprise. The hiring of services made
without a fixed duration can always cease at the wish of one of the
contracting parties. Nevertheless, the cancellation of the contract
at the wish of one only of the contracting parties may give rise to
damages." It would appear, therefore, that definite contracts may be
specifically enforced, Austria has somewhat similar laws, although
a larger proportion of industrial employment is subject to state
regulation, and here no employer can employ any workingman without
a book or passbook, which serves both as identification and record.
Generally in Europe the use of a written contract in labor engagements
is far more usual than with us. This, perhaps, makes it easier to
enforce such contracts specifically. Nevertheless, I find no specific
statute on the subject. Indeed, the Code Napoleon adopts the English
law and provides[1] that "every obligation to do or not to do resolves
itself into damages in the case of non-performance," while the modern
English law act of 1875 provides a special and summary remedy in the
county courts for labor disputes whereby when the contract is not
rescinded the court may award damages or take security for the
performance of the labor contract itself. This, however, does not
include domestic servants. Both France and Belgium copy the common
law as to slavery, requiring contracts to be for a certain time or a
determined work. In Russia, however, contracts may be made for five
years.

[Footnote 1: _Ibid_., p. 64.]

It is still true that no European country outside of Turkey has yet
fixed by law the amount of wages in private employments or the minimum
amount, though that result is effected by the machinery of arbitration
in Great Britain and New Zealand. Continental countries, however,
universally legislate as to hours of labor even of adult women, there
being no constitutional principle protecting their personal liberty
in that particular, although in Belgium and Great Britain the laws do
not, as a rule, apply to adult male labor. The hours are generally
eleven or twelve, instead of eight or nine as in England or the United
States. There is elaborate special regulation of times and conditions
in labor in railways, laundries, bakeries, etc. The English law
generally divides persons, according to their age, into three classes,
adults, young persons (from fourteen to eighteen), or children, and
the system is most elaborate. Generally no children under the age of
eleven may be employed at all.

Sanitary and social regulations are far more intelligent than ours.
Generally, the employment of women in factories within four weeks
after childbirth is forbidden; and in Switzerland it is forbidden to
employ pregnant women in certain occupations dangerous to the health
of posterity. The German Civil Code declares that "A married woman has
both the right and the obligation of keeping house. She is obliged to
attend to all domestic labor and the affairs of her husband in so
far as such labor or occupation is usual according to her social
condition. She is supreme within her sphere, or at least has power to
act or bind her husband in domestic matters, and he cannot limit her
powers without a divorce. He may, however, annul any contract made by
her for her personal labor with a third party."[1]

[Footnote 1: _Ibid_., p. 53.] [Footnote 2: _Ibid_., p. 77.]

The anti-truck and weekly-payment laws exist in all countries.
Europe generally, particularly Great Britain and the Roman Catholic
countries, are handicapped by an infinity of holidays. In Roman
Catholic countries they are generally single days, saints' days, etc.,
scattered throughout the year, but in Great Britain no skilled laborer
will work at all for some weeks at a time.

The English law against intimidation is the model of the New York
statute and most others. It defines in great detail what intimidation
is--substantially, that it is violence or threats, the persistently
following, the hiding of tools, etc. or the watching or besetting the
house or place of business--and menaces, as well as actual violence,
are recognized as unlawful and punishable by imprisonment, in Germany,
Italy, Sweden, and other countries. Germany and Austria copy the
English common law as to enticing from service.

There is as yet, however, no evidence in Europe outside of Great
Britain of the American tendency to make a special privileged class of
skilled or industrial labor. So far as appears, there is no special
legislation in any European country which is concerned particularly
with the legal or political rights of industrial laborers.[2] There is
much more co-operation and sympathy between employers and employees,
at least in Continental countries, and possibly for this reason
co-operation has proved far more successful.[1] State labor bureaus,
state insurance, saving banks, and employment agencies are almost
universal throughout the Continent.

[Footnote 1: See Oilman's "A Dividend to Labor," Boston, 1899. Jones's
"Cooperative Production," Oxford, 1894.]




CHAPTER XII

COMBINATIONS IN LABOR MATTERS


We have now gone over the history of modern legislation in the two
great fields of property and personal liberty, and we have generally
found that the same principles of jurisprudence govern both. So shall
we now find when we come to combinations that there is no difference
or distinction in the law between combinations of capital and
combinations of individual faculties. In both fields a "combine" is
obnoxious, as the untutored mind instinctively feels. Combinations
may, of course, be lawful; but the fact that no actually criminal
purpose or act can be found against them is not conclusive of their
legality. At the risk of wearying the reader I would reiterate my
belief that this was one of the greatest juristic achievements of the
English common law; and that the question whether it shall be all done
away with or retained is the most momentous public question now before
us in industrial and social matters.[1] Whether, on the one hand,
Standard Oil combinations shall be permitted to the point of universal
monopoly of trade and opportunity; or, on the other, close unions
built up, even by legislation itself, to an equally impregnable
position of monopoly of opportunity, or so as to become a universal
privileged guild--are questions to be determined by the same
principles; and equally momentous to the future of our republic and of
human society as now constituted. And before passing to a review of
the legislation itself, I would lay down the principle which I believe
to be the one which will ultimately be found to be the controlling
test: that of _intent_. The _effect_ (often proposed as the test) is
really immaterial as determining the illegality of the combination,
except so far as it may be evidence of the probable intention of the
participators at its inception.

[Footnote 1: Professor Dicey, I find, in his recent book, "Law and
Opinion in England," opens this subject with a statement equally
strong (Appendix, note 1, pp. 465-6).]

For the early English conspiracies were by no means necessarily or
usually aimed at the commission of some definite crime; they were
rather described to be the conspiracies of great lords for the general
"oppression" of a weaker neighbor, for which he sought refuge or
protection in the court of chancery. Now, general oppression or
wrongdoing, the exclusion from land or labor or property or trade,
by a powerful combination, is precisely the moral injury suffered in
modern boycotts when there is no actual crime committed. Indeed, one
of the earliest kinds of conspiracy expressly mentioned and described
in the English statutes is a conspiracy for the maintenance of
lawsuits, which by the very definition of the thing must be a
combination for an end not in itself unlawful. The American courts
have been curiously obscure or vacillating on this point. With their
too general forgetfulness of historical legislation and the early
common law, they have gone from one extreme to the other, often with
a trivial consideration of the importance of the points involved, and
always with an entire absence of a universal point of view, of that
genius which grasps a question in its entirety and is not confused by
irrelevant details. It is only of late when the matter has come before
the Federal Supreme Court and the courts of a few States which have
been educated by a frequent recurrence of disputes of this sort that
we begin again to see the principle clearly, as I shall venture to lay
it down here: that the acts of a number of persons combined are to
be judged by their _intent_. In individual acts the intent is of no
importance except as it turns an accident into a crime; chance-medley
for instance into murder, or mere asportation into larceny, or
ordinary conversation into slander; yet these few instances serve to
show how universal is the recognition of intent in the law and how
little difficulty it presents. Juries have very rarely any difficulty
in determining this question of intent in individual acts; and in
like manner they will have no difficulty when it is recognized as the
fundamental test in cases of combination, _i.e._, conspiracy. And for
the antiquity of this our law we need but mention a few cases: Rex _v.
_ Crispe, cited in the Great Case of Monopolies (7 State Trials 513):"
Here was lately an agreement between copperas makers and copperas
merchants for the buying of _all_ copperas, and that these copperas
makers shall for three years make at so much a ton and restraining
them from selling to others"--_held_ a criminal conspiracy; of the
tailors of Ipswich (6 Coke 103) where a company of tailors made a
by-law to exclude non-members from exercising their trade; and the
Lilleshall case (see p. 71 above).

Thus in matters of _capital_: is the _first_ intent, the _immediate_
object, to increase profits, to acquire or enjoy property, to enlarge
one's business,[1] or is the _first_ intention to destroy a competitor
or create a monopoly? So in _labor_ combinations: is the _first_
object to get better terms for the persons combining, an increase of
wages or a reduction of hours, improved conditions in factories and
shops, etc., etc., or is the _first_ thing they are seeking to do to
injure a third person, not concerned in the dispute, or to control
the liberty and constitutional right of the employer himself? If the
latter, it is "oppression" within the meaning of the early common law,
and should be so held to-day.

[Footnote 1: What Mr. Cooke calls, in his preface, "the natural
incident or outgrowth of some lawful relation." _Combination,
Monopolies and Labor Unions_, p. iv.]

And not only is this great domain of English law noteworthy because it
is so subtle as to grasp the effect of a combination other than that
of the individual acts, and the intent of that combination other than
its effect, but it is perhaps the only great realm of law which really
attempts to carry out the principle of the Golden Rule. In all other
matters, if an act be lawful, it remains lawful, although done with
the intent of injuring another; it does not usually even give rise to
an action for damages; but the great principle of the English law
of conspiracy was crystallized two hundred years ago in the classic
phrase of Hawkins, in his "Pleas of the Crown," vol. II, p. 121:
"There is no doubt that a combination made to the prejudice of a third
person is highly criminal at the common law."[1] The usual definition
of conspiracy, that is, of unlawful combination, is a combination made
for an unlawful purpose or for a lawful purpose using unlawful means;
this is to be found in all the text-books; but it should be amplified
in accordance with our earliest and deepest law so as to include a
combination for the mere purpose of injuring another, or molesting him
or controlling him in the exercise of his ordinary lawful rights; and
_a fortiori_--as of combinations to enhance the price of food--to
injure the public. It is for this reason that the combination of
many to diminish the trade of one is an unlawful combination; the
combination may be punished although all the acts done are within the
letter of the law; and when the conspiracy is evidenced by unlawful
acts, the conspiracy may be punished far more severely than the acts
could have been punished themselves. We have noted that one of the
great attempts of organized labor to-day is to do away with this
principle, to provide that no combination should be punished when the
acts committed are not punishable in themselves, and that in fact it
should be the acts and not the combination which is punishable at all.
This, it is true, was enacted by the English Conspiracy and Protection
of Property Act of 1875, as to industrial disputes only, in England;
and it is just as true that it would be unconstitutional in this
country, both under the Federal and State constitutions. Yet the
agitation for this revolution in the common law has been successful in
Maryland, California, and Oklahoma, though, as has been said, it does
not appear that any cases have yet been tried where the exception was
pleaded in defence, still less where the statute has been sustained as
constitutional.

[Footnote 1: "The position cited by Chitty from Hawkins, by way
of summing up the result of the cases, is this: 'In a word, all
confederacies wrongfully to prejudice another are misdemeanors at
common law, whether the intention is to injure his property, his
person, or his character.' And Chitty adds that 'the object of
conspiracy is not confined to an immediate wrong to individuals; it
may be to injure public trade, to affect public health, to violate
public police, to insult public justice, or to do any act in itself
illegal (3 Chit. Crim. Law, 1139)." Quoted by Shaw, Chief Justice of
Massachusetts, in Commonwealth _v_. Hunt (4 Mete. Illinois), printed
as a Senate Document in the 57th Congress, 1st session (Mass.) III.]

It is to be noted that the original English Act of 1875 only did away
with the criminal liability and left the victims of the boycott or
blacklist free to sue the combination for damages; but by the "Trade
Disputes Act," 6 Edward 7, chapter 47 (December 21, 1906) the
following paragraph was added:

"An act done in pursuance of an agreement or combination by two or
more persons shall, if done in contemplation or furtherance of a trade
dispute, not be actionable unless the act, if done without any such
agreement or combination, would be actionable."

And also a clause as to picketing:

"It shall be lawful for one _or more[1]_ persons, acting on their own
behalf or on behalf of a trade-union or of an individual employer or
firm in contemplation or furtherance of a trade dispute, to attend at
or near a house or place where a person resides or works or carries on
business or happens to be, if they so attend merely for the purpose of
peacefully obtaining or communicating information, or of peacefully
persuading any person to work or to abstain from working."

[Footnote 1: The italics are our own.]

And another upon inducing the breaking of contracts, loss of service:

"An act done by a person in contemplation or furtherance of a trade
dispute shall not be actionable on the ground only that it induces
some other person to break a contract of employment or that it is an
interference with the trade, business, or employment of some other
person, or with the right of some other person to dispose of his
capital or his labor as he wills."

Furthermore, after the Taff Vale case, trades-unions were exempted
from all liability:

"(1) An action against a trade-union, whether of workmen or masters,
or against any members or officials thereof on behalf of themselves
and all other members of the trade-union in respect of any tortious
act alleged to have been committed by or on behalf of the trade-union,
shall not be entertained by any court.

"(2) Nothing in this section shall affect the liability of the
trustees of a trade-union to be sued in the events provided for by
the Trades-Union Act, 1871, section nine, except in respect of any
tortious act committed by or on behalf of the union in contemplation
or in furtherance of a trade dispute.

"(3) In this act and in the Conspiracy and Protection of Property
Act, 1875, the expression 'trade dispute' means any dispute between
employers and workmen, or between workmen and workmen, which is
connected with the employment or non-employment, or the terms of the
employment, or with the conditions of labor, of any person, and the
expression 'workmen' means all persons employed in trade and industry,
whether or not in the employment of the employer with whom a trade
dispute arises; and, in section three of the last-mentioned act, the
words 'between employers and workmen' shall be repealed."

It is hard to say whether any part of this surprising statute would be
constitutional in this country, except the second paragraph (p. 267,
above); leaving out even there the words "or more." Certain it is that
by it industrial conditions are placed under the sway of the labor
unions, and the commerce and prosperity of England now lie in the
"hollow of the hand" of those who work with it.

This effort to do away with the law of combinations in labor matters
with that aimed at forbidding or controlling the injunction in labor
disputes, and with also the statutes which give a special privilege to
union labor, we have found to be among the most important pieces of
modern legislation. Alabama and Colorado have statutes legalizing
"picketing," but a similar bill in Massachusetts failed repeatedly of
enactment. But when we come to the statutes applying to _combinations_
solely, and defining them, there have been many statutes declaring
blacklisting and boycotts to be unlawful--which is merely the common
law--and a few statutes especially forbidding them. Thus, by the year
1907, twenty-two States and the United States had statutes against
blacklisting, five had statutes against boycotting, ten had adopted
laws regulating strikes in cases of railway employment, Minnesota a
law forbidding any employer to require as a condition of employment
any statement as to the participation of the applicant in a strike for
more than one year immediately preceding, Oklahoma a law requiring
him to advise new applicants for employment of any labor dispute then
pending with him, and to give such notice in his advertisements;
which statute barely failed of enactment in Massachusetts. The best
definition of the boycott is, perhaps, to be found in the law of
Alabama: "Any two or more persons who conspire together for the
purpose of preventing any person, persons, firm, or corporation from
carrying on any lawful business, or for the purpose of interfering
with the same, shall be guilty of a misdemeanor." The most cumbrous
is that of Indiana, which, attempting to express the matter in more
detail, is far too long to quote.[1] Many acts which are really part
of a boycott, or unlawful, _i.e._, sympathetic strikes, will be found
under the heading "Intimidation" or "Interference with Employment" in
other States; such is the recent statute of Washington (see above, p.
251). Unless the function of a statute be to instruct the ignorant, it
would probably be better to forego all such definitions and rely upon
the elasticity of the common law.

[Footnote: Indiana Revision of 1901, Sec. 3312 M. There is also an
elaborate definition of "trusts," "conspiracies," and "boycotts" in
chapter 94 of the Laws of Texas, 1903.]

As an example of the most advanced labor legislation we may briefly
digest the Oklahoma laws of 1907-8:

By the Act of May 29, 1908, two hours must be allowed by every
corporation or individual employer to his employees to vote, and it is
made a misdemeanor to in any way influence his vote; and there is a
general labor code enacted May 22, 1908, which, with its supplements,
is perhaps the most radical labor legislation to be found in the
United States. After establishing a State commissioner of labor, a
board of conciliation and arbitration, and free employment offices,
all of which are usual in other States, there is an elaborate chapter
on factory regulation and one upon mine regulations, and to protect
persons working on buildings, railroads, steam boilers, etc., and a
carefully drawn statute regulating the labor of children. Then there
are other provisions which are more unusual. The Canadian statute
substantially is enacted as to strikes: "whenever there shall exist
a strike or lockout where (in the judgment of the State Board of
Conciliation) the general public shall appear likely to suffer injury
or inconvenience, and neither party consents to an arbitration," then
the board, having failed to effect a conciliation, may proceed on
its own motion to make investigation and propose a settlement, with
recommendations to both parties, and presumably publish the same.
It has, of course, no power to enforce a settlement, but may compel
testimony, etc. (Article II, section 4.)

Private employment offices are carefully regulated, the fees limited
to two dollars, and the money must be returned if no place is found,
with careful provisions against sending help to immoral resorts.

The compelling of an agreement, either written or "verbal,"[1] not
to join, a labor union as a condition of obtaining or continuing in
employment is made a misdemeanor, punishable with one thousand dollars
fine and twelve months imprisonment.

[Footnote 1: A common vulgarism; the law probably means "oral."]

Section 2 of this act (June 6, 1908) copies the _older_ English
statute of 1875; that is to say, it does away with all _criminal_
liability for conspiracies in labor matters, and it further provides
that no "such agreement, combination, or contract be construed as in
restraint of trade or commerce; nor shall any restraining order or
injunction be issued with relation thereto, provided only that nothing
in this act shall be construed to authorize force or violence." We
have already commented on the possible unconstitutionality of this
act.

Section 3 makes it unlawful for anybody to induce or persuade workmen
to change from one place to another (except presumably the labor
unions themselves), or to bring workmen into the State by means of
any false or deceptive representations, false advertising or false
pretences, or by reason of the existence of a strike or other
"trouble." Failure to state in an advertisement, proposal or contracts
for the employment of workmen that there is a strike or other
"trouble" is made a criminal offence, punishable with a year's
imprisonment or two thousand dollars fine (this is the law which
failed of passage in the Massachusetts Legislature of 1910).

The hiring of armed guards, as is usual in the West, is made heavily
criminal. Finally, to workmen who have been influenced or persuaded
to do anything by anybody except another workman, is given a suit for
damages against the person so persuading them. The lot of the employer
in Oklahoma is indeed a parlous one!

By the law of April 24, whenever a workman is discharged, his employer
must give him a letter stating the reason truly, under penalty of five
hundred dollars fine and one year's imprisonment, and such letter must
be written, not printed, and the form and appearance of the stationery
is carefully provided for and all secret marks forbidden. Oklahoma is
one of the eight-hour States, with the minimum average wage in public
work, referred to above; and all contracts must be made on that basis.
Wages must be paid fortnightly in cash, by all persons or corporations
engaged in mining or manufacturing.

Oklahoma is the test-tube of American legislative reactions. We shall
await with interest the legislation of 1911, as well as the effect
of the laws we have summarized above. In the meantime Oklahoma has
presented to the constitutional lawyer the long-sought problem of
whether a sovereign State once admitted to the Union is bound by
the Act of Congress authorizing such admission. The enabling act of
Oklahoma required that its capital should be fixed at Guthrie and
not moved for a period of years. In May, 1910, within such period of
limitation, by act of legislature, supplemented by a plebiscitum of
the people and the executive action of Governor Haskell, the capital
was removed to Oklahoma City, and the State seal conveyed there
surreptitiously, in spite of the injunction of a Federal district
court. A more beautiful American constitutional question could hardly
be presented. It may not at first seem to the reader so important, but
when he considers that, for instance, Utah and other Western States
have abolished Mormonism in the same manner, or have agreed to give
equal treatment to the Japanese and Chinese in the same manner--by
an enabling act of Congress, ratified and perpetuated in the State
Constitution--he will see the importance of the question. It was
anticipated in the writer's work on constitutional law ("Federal and
State Constitutions," p. 186, note 8): "The enabling acts admitting
the eight new Western States usually provided against polygamy on
account of the Mormon influence, and this, with other provisions
concerning schools, etc., was made forever irrepealable without the
consent of the United States; see Utah 3, 1. This is probably only a
moral obligation; a State when once admitted comes in with all the
rights of the older States. So far as this section is concerned, Utah
could probably amend her Constitution and re-establish Mormonism
to-morrow."

European legislation is necessarily more elaborate because there is
usually no body of existing common law. Trades-unions are universally
made lawful, as they are with us. But in France in certain cases the
consent of the government to the formation of such organizations is
necessary; and the Code Napoleon made unlawful all combinations of
persons with an "evil end."[1] So, "full freedom of association" is
now guaranteed in Switzerland; and in Germany the trade guilds are
largely recognized, but membership must not be compulsory. In Austria
a strict governmental control is exercised, and the principle of
obligatory guilds is unreservedly accepted. There does not appear to
be any legislation upon strikes except in Great Britain, France, and
Italy, such matters being left largely to the political or police
authorities. Strikes were unlawful in England until comparatively
recent times, but were always lawful in this country, and are so by
the modern French law, which is much similar to ours, as is the case
in Italy; but in Russia the leaders of a strike may be imprisoned.

[1] Quoted in Dane's Abridgment, published in 1800.

In no country do I find any specific legislation as to boycotts,
except the English statute already referred to, repealing the common
law of conspiracy, both civil and criminal, in industrial disputes.
Germany and Austria have blacklisting laws. The matter of riots, etc.,
is generally left to the criminal law to control. In no country other
than the United States do I find any prohibition against a man's
protecting his own property with private guards, armed or otherwise.

Arbitration laws in the British colonies are very generally aimed
at the prevention of strikes. Otherwise there seems to be less
legislation on the subject during the last ten years than might have
been expected. The Orange River Colony has severe laws concerning the
labor of the blacks, of a nature resembling our peonage laws in
the Southern States. Similar conditions seem to lead to similar
legislation throughout the modern world.

Legislation is now much desired here also to obviate the effect of
the Taff Vale case and that of the Danbury hatters which applies its
principals to interstate commerce; that is to say, which shall secure
the funds of a trades-union to its benevolent purposes, or even to its
use in industrial disputes, strikes, boycotts, etc., without making it
liable for the results of litigation. In these cases the moneys in the
treasury of a trades-union, although unincorporated, have been held
responsible for damages awarded in a suit brought against the union or
its members for conspiracy under the Sherman Act, or otherwise. It
is, however, difficult to see how such legislation with us could be
devised so as to be constitutional, for it would necessarily extend
only to a certain class of persons, and be framed to exempt them
alone from a certain definite legal liability. Nevertheless it has in
England been enacted.[1]

[Footnote 1: See above, p. 268: The Trade Disputes Act, 1906, sec. 4.]




CHAPTER XIII

MILITARY AND MOB LAW, AND THE RIGHT TO ARMS


We now come to a field of legislation related to the early English
constitutional right to be protected from military law or molestation
by the army, and the corresponding right of protection of one's
person, or one's house, by force, if necessary.

The right of law, even as against the military, has been anticipated
in an early chapter; the right to try an officer, or even a soldier
obeying orders, in the ordinary tribunals, for homicide, or for
ordinary trespass, as when, in the Dorr rebellion in Rhode Island,
a company of militia invaded a woman's house.[1] The constitutional
principle against the quartering of soldiers upon private dwellings,
and the limitations to the military power caused by the strict
confinement of the use of the army to cases of invasion or
insurrection, have been added by American constitutions. But most
important of all is the supremacy of the common law; the grudging
permission of military law even to the army themselves only by
a temporary vote; for in England, the Mutiny Act must be passed
annually, and in the United States, appropriations for the army and
navy may not last over two years. It is these statutes alone that
make possible the very government of the army, the enforcement of the
contract of enlistment, and the condign punishment of deserters.

[Footnote 1: Martin _v_. Mott, 12 Wheaton, 19.]

For example, let us remember the Boston Massacre. Ten years before the
Revolution, some turbulent men, mostly negroes, started a riot against
British soldiers on what is now State Street (then King Street), and
under the orders of the commanding officer the soldiers fired, and two
or three men were killed. Yet although the colonies were already under
military occupation, and their courts and legislatures more than
unpopular with the home government, these British soldiers were tried
for manslaughter and murder, not in England, but in the ordinary
common-law courts of the Colony of Massachusetts. James Otis defended
them and they were acquitted. The fact that a monument to Crispus
Attocks, the negro, now stands on Boston Common, and that ten or
twelve years later the British flag was expelled from Boston to seek
refuge in New York, does not modify the significance of the incident.
Some years since in a Pennsylvania strike a small company of militia,
being attacked by a mob, were ordered to fire. They did so, and killed
one of the striking rioters. It was found out which private had fired
the fatal shot; he was indicted and tried for murder; and it was ruled
that the order of the commanding officer was no defence.

These principles, we should be reminded, are fundamental; in our own
country in time of peace, or even in time of war, except in hostile
territory, there is no such thing as martial law; and no such thing
as military law, except for the army itself, and then only by the
sufferance of a biennial vote, which vote also limits the duration
of existence of the regular army; besides which, all our State
constitutions and the Declaration of Independence have a general
provision against standing armies. The proclamations of military
officers, of mayors of cities, or even State governors, declaring
martial law, or suspending the writ of habeas corpus, are of no legal
validity; this is true of a similar proclamation by the President of
the United States, though it was frequently done by Abraham Lincoln.
The act of Mayor Ruef of San Francisco, even at the time of the
earthquake, declaring martial law, or giving troops or vigilance
committees summary powers of punishment, was a mere "bluff." Such an
order, though in practice obeyed by all good citizens, would in no
way protect those acting under it from prosecution in the criminal or
civil courts.

On the other hand, the right to bear arms is inherent under English
ideas, and this alone, with the corresponding right of political
assembly, has served largely to maintain English liberty; while the
absence of these two important rights has relieved countries like
Russia from all fear of revolution. One has only to read Mr. George
Trevelyan's vivid account of the difficulties of the Garibaldi
movement to free Italy in 1860, to realize the enormous difficulties
under which the great patriot labored from the absence of these
underlying principles. Indeed, but for the connivance of the
Piedmontese government in allowing somebody to sell a thousand
condemned rifles, it is probable that there would have been no
revolution in Sicily.

Now this Anglo-Saxon right to arms goes back to times before the very
dawn of the English Constitution, and the fyrd or local militia was
in Saxon times, as it was declared to be by our American State
constitutions of the eighteenth century, "the natural and only defence
of a free country." This principle was very soon re-established after
the Conquest. We find, as early as 1181, the Assize of Arms, which
revives the ancient fyrd or militia. Twenty-two years before scutage
had been substituted for military service; but this was merely a
matter of feudal tenure. Yet so early was a direct call for troops
forbidden to the crown. The contest of English ideals against Norman
ideas was one of the principal causes of Magna Charta itself (it is
significant that the Great Charter was never published in French);
the barons were required to support the king in war, but complained
against being led out of the kingdom; and King John's insistence
upon this led to the assembly at Runnymede. Thus the militia and the
maintenance of arms other than of feudal retainers--and this exception
led to the statutes against maintainors--passed out of the executive
power and became the province of the legislative branch; a principle
carried out in all our constitutions; they make the executive the
commander-in-chief of the army, navy, or militia, but the governor may
usually not command in the field, nor order troops out of a State; and
the president cannot employ Federal troops _in_ a State, except when
requested by its legislature; save only where necessary to maintain
the functions of the Federal government itself, or when a State
government ceases to be republican in form--but of that last who is to
be the judge?

With the doing away of direct military service, never yet to be
re-established in England, though the threat of conscription is now
made, disappeared the power of the king to control his people;
and this prevented the establishment of a royal autocracy and the
extinction of representative government which took place in every
Continental State. It is a picturesque fact that mercenary soldiers
were first employed in England in small numbers to suppress Jack Cade
in 1449, who was leading a labor insurrection; just as the first
instance where Federal troops were employed in intra-State matters in
America was when President Cleveland sent them to suppress rioters
interfering with the movement of mails in the Pullman strike in
Chicago.

With standing armies abolished, and the fear of invasion removed, the
practice of keeping arms fell into disuse, so that curiously enough we
find under the Stuarts statutes compelling citizens to keep and bear
arms, just as we find statutes compelling them to take their seats
in Parliament. For quite three centuries we find no legislation
concerning arms, and Hallam mentions that by 1485 six liberty rights
were established, among them that "officers, administrators or
soldiers are liable for their acts at the common law." It is not until
1679 under Charles II, the very year of the Habeas Corpus Act, that
standing armies are definitely established in England, and the Mutiny
Act concerning the government of the army was first passed. The
struggle of the people with the army under Charles I may be well shown
by these quotations from the Petition of Right in 1628:

" ... of late great companies of soldiers and mariners have been
dispersed into divers counties of the realm, and the inhabitants
against their wills have been compelled to receive them into their
houses and there to suffer them to sojourn, against the laws and
customs of this realm ..."

" ... certain persons have been appointed commissioners, with power
and authority to proceed ... according to ... martial law ... and by
such summary course and order as is agreeable to martial law, and
as is used in armies in time of war, to proceed to the trial and
condemnation of such offenders, and them to cause to be executed and
put to death according to the law martial. By pretext whereof some of
your Majesty's subjects have been by some of the said commissioners
put to death, when and where, if by the laws and statutes of the land
they had deserved death, by the same laws and statutes also they might
and by no other ought, to have been judged and executed."

And by the Bill of Rights of 1689:

"That the subjects which are Protestants may have arms for their
defence suitable to their conditions, and as allowed by law."

"That the raising or keeping a standing army, within the kingdom in
time of peace, unless it be with consent of Parliament, is against
law."

Now it often happens that a great constitutional principle established
with some difficulty in England is amplified and perfected by the
bolder statement in American constitutions. Thus, the Virginia Bill of
Rights, 1776, has the perfect definition:

"That a well-regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free
State; that standing armies in time of peace should be avoided as
dangerous to liberty; and that in all cases the military should be
under strict subordination to, and governed by, the civil power."

Similar declarations are found in the Declaration of Independence the
same year, and the Massachusetts Bill of Rights four years later; but
the Virginia definition, being the work of Thomas Jefferson, is both
the most compendious and the most concise, and is substantially copied
in the Second and Third Amendments of the Federal Constitution. Modern
legislation on the subject has found little to improve, although, with
the ignorance of constitutional history too often found in modern
statutes, we do find State laws which recognize martial law as a
really existent domain of English and American jurisprudence. As our
greatest jurists have often enough declared: "martial law" is nothing
but the will of the commanding officer, the negation of all law, which
exists when the courts do not sit and the writ of habeas corpus does
not run. Even in these imperial days, I detect no tendency in the
legislation of the States, or even of the Federal government in North
America, to infringe upon these great principles of freedom. On the
contrary, many State constitutions, as well as an act of Congress,
declare that the writ of habeas corpus can never be suspended by
the executive, but only by the people's representatives in the
legislature. The prejudice against standing armies does not seem to be
as strong, in that ours has recently been quadrupled in size; but this
is probably no more than proportionate to our national expansion. Many
of the States in this time of increasing civic disorder have had to
give their attention to the suppression of mobs, and correspondingly
we very generally find new complete codes governing the militia. Thus
statutes are frequent exempting a private soldier from prosecution for
murder when he fires under the orders of his commanding officer; and
the honest judgment of the commanding officer is made a defence
for all acts of his troops in attacking mobs, even to the point of
fatalities resulting. Counties or cities are very generally made
liable for damage to property done by mobs, and in some States for
damage to life done by lynchers; the widow and children of the person
lynched may recover damages. In Kansas, by a statute of 1900, it is
made a misdemeanor for a bystander to refuse to assist a sheriff
in quelling a riotous disorder. Most significant, perhaps, of this
militia legislation is that concerning its relation to the labor
unions, and more significant still, the too apparent desire of labor
unions to prevent their members from serving in the militia. Thus,
New York and other States have already found it necessary to enact
statutes prohibiting any discrimination against persons because they
serve in the militia; prohibiting their employers from discharging
them by reason of their necessary absence on such service, and
forbidding the labor unions from in any way preventing them, or
passing by-laws against their serving in the militia. Such by-laws
are, however, unlawful under the common law.

The law-making most in the popular mind on this whole question is that
concerning pensions. As is well known, the Federal pension list has
swollen to a sum far in excess of the total expense of the standing
army of Germany. An enormous number of Spanish War veterans who never
even left the country are being added to the list, and their widows
will be after them; the last survivor of such may not die before A.D.
2140, and the States themselves have not lagged far behind, all to the
enormous corruption of our citizenship; indeed, one or two more wars
(which the very motive of such wholesale pensioning is the more likely
to bring on) would bankrupt the nation more rapidly than even our
battleships. Not only that, but there is a distinct tendency to make a
privileged class of veterans, and the sons of veterans--and perhaps we
shall find of the sons of sons of veterans--by giving them preference
in civic employment and special education, support, or privileges at
the State's expense. Sometimes they get pedlar's licenses for nothing;
sometimes they are to be preferred in all civic employment; sometimes
they have special schools or asylums as well as soldiers' homes;
sometimes they are given free text-books in the public schools. The
Confederate States have not been behindhand in enacting similar
laws for their own soldiers, despite the implied prohibition of the
Fourteenth Amendment; but Southern courts have held them void.

The general right to bear arms is frequently restricted by the
prohibition of concealed weapons, or of the organization, drilling,
and training of armed companies not under State or Federal control,
both of which limitations have been held constitutional; and the
legislation prohibiting the employment or importation of private armed
guards, such as the Pinkerton men, has been already alluded to in our
chapter on labor legislation. The precedent for the latter is to be
found in the early English legislation against retainers; that is to
say, the armed private guard, or "livery," of the great noblemen;
whence is derived the custom of putting servants in livery. The
legislation against private drill companies is closely allied, and had
a somewhat amusing test in Chicago where, during a labor strike, a
number of the strike sympathizers organized a so-called drill company
and furnished themselves with guns, for the purpose really of
intimidating the public and helping the law-breakers. Unfortunately it
so happened, for this purpose, that the first time they sallied forth
with sword and musket on warfare bent, they were stopped by one or two
policemen on the nearest street corner, taken to the station-house,
deprived of their arms, and locked up for the night. The next morning
a fine was imposed upon their captain, who appealed to the United
States Supreme Court without success.[1]

[Footnote 1: Presser _v_. Illinois, 116 U.S. 252.]

The legislation for giving damages for injuries to property done by
mobs was tested after the Pittsburg riots of 1873, and that yellow
metropolis was mulcted in heavy damages, which it took twenty-three
years to pay off. But no damages in this country were ever given for
criminal homicide directly, although there is an interesting case in
the Federal Circuit Court of a gentleman in Georgia who was awaited by
a party of neighboring gentlemen with the intention of shooting him
up when he arrived. One of his friends secretly got to the railway
station and sent a telegram to his wife, shortly to become his widow,
not to come. The Western Union Telegraph Company delayed the message,
its operator being in sympathy with the gentlemen of the neighboring
town, and the widow failed to recover damages from the telegraph
company. But these modern statutes in Ohio and the Southern States,
making towns responsible in a definite sum to the kin of a murdered
man, are the exact re-enactment of the early Anglo-Saxon law; except
that the blood damages--the were gild--were in those days put upon the
neighbors or the kin of the enemy.

"Organized labor" is hostile to the use of the militia, still more of
the regular army, in any labor dispute or riot resulting therefrom. It
is never justifiably hostile where actual offences are committed, but
there is something to be said, at least there is some precedent
for their hostility, in cases where by the accident of Federal
jurisdiction the whole power of the United States army is called in to
back up the injunction of a judge, perhaps improperly issued. That is
to say, if the parties to the dispute are citizens of the same State
the National government may not interfere except, of course, where
the mails or inter-State commerce are obstructed; but, by the mere
accident that plaintiff and defendant come from different States--and
this may nearly always be made the case by the plaintiff corporation,
if it be a citizen of another State than where it owns its mine or
operates its mill--it may always pick out strike leaders, walking
delegates, who are citizens of another State, so that the litigation
may be brought in a United States court. If, then, the orders or
processes of that Federal court be interfered with, under the law of
our Constitution the entire Federal government, first the Federal
marshals and then the Federal army, may be called into the fight.




CHAPTER XIV

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,
  chapter XIX;
  general principle that of home rule,
  by individual heads,
  by boards or commissions,
  system of taxation,
Grand Army of the Republic given special privileges,
"Granger" cases, laws, etc.,
Gratuities forbidden,
Great Case of monopolies cited,
Grievances, summary of, A.D. 1309,
Grosscup, Judge, on Federal incorporation,
Guards, private (_see Pinkerton Men_),
Guilds (_see Trade Unions_),
  freedom gained in,
  meaning of word,
  all members freemen in towns,
  partly lawful,
  partly unlawful in English history,
  history of,
  became combinations of employers,
  their control of all trades,
  abolished by French Revolution,
  monopolies recognized under Elizabeth,
  getting charters take corporate form,
  may have suggested the corporation,
  growth of the trade guilds,
Gypsies, early statutes against.

Habeas Corpus act,
  foreshadowed in Magna Charta,
  its predecessor,
  writ _de odio et atia_
  suspension of, by Lincoln, etc.
Harvard, John, residence in Southwark,
Harvard University, recognized in the Massachusetts Constitution,
Hat-pins, legislation against,
Hawkins's, definition of conspiracy in pleas of the crown,
Health (_see Pure Food Laws, Police Power_).
Henry II, laws of,
Henry IV, legislation of,
Henry VIII, legislation of,
  declares God created all men free,
  personal government under,
  declares himself head of the church,
  history of the Bloody Statute,
Hepburn act (_see Rates_), (_see Interstate Commerce Act_).
Hereditary privilege (_see Privilege_).
Heresy, first secular law against, A.D. 1400;
  the bloody statute of Henry VIII against;
  the statutes.
Heretics to be tried in clerical courts and burned if guilty.
Hermeneutics, meaning of word.
Herrings, ordinance of, to prevent waste and extortion.
Highways, State, exist in some States.
Hindoos may be naturalized.
"Holding" companies (_see Corporations_).
Holidays, laws concerning in early England.
Holt cited as to conspiracy.
Horses, breeding of encouraged by statute;
  to be over fifteen hands;
  sale of forbidden.
Hotels not entitled to eminent domain.
Hours of labor, first fixed in 1495;
  fixed again, 1514;
  repealed next year as to city of London;
  regulation of by combination forbidden;
  freedom in;
  modern statutes;
  of women;
  in special employments;
  of child labor;
  Federal laws concerning;
  in dangerous trades;
  in factories, effect of on male labor;
  attitude of the courts;
  laws regulating labor of adult males;
  of women;
  in special occupations;
  of children;
  night work;
  general discussion;
  child labor prohibited;
  age limit;
  school certificates, etc.;
  educational restrictions;
  mines;
  dangerous or immoral occupations;
  railroads and telegraph;
  unsanitary trades;
  foreign legislation.
House of Commons, has sole power of taxation;
  growth of legislative power (_see Parliament_).
House of Lords, abolished 1648.
"House of Mirth" at Albany.
Husband and wife, may testify against each other;
  contracts between may be regulated;
  in divorce matters;
  right to guardianship of children;
  husband is head of the family;
  may fix the abode;
  power of mother over children;
  duty of the husband to support the wife and children;
  they are joint guardians of children;
  may be witnesses against each other.

Ice, Massachusetts convention to regulate price of.
Immigration, restriction of by act of Congress.
Immorality made a crime.
Immunity, principle of discussed (_see Incriminating Evidence_).
Impeachment, revival of, process for, in 1621.
Imports (_see Duties_).
Imprisonment for debt, in the law merchant;
  forbidden in United States.
Improvements (_see Internal Improvements_.)
Income tax, history of;
  in England;
  may be graded.
Incriminating evidence, principle protecting a man from
    self incrimination;
  of corporations.
Indeterminate sentences.
Indexes (_see Statutes_), should be some system of.
Indians, American, legislation referring to, under Cromwell;
  citizenship;
  history of legislation concerning.
Individual rights, legislation relating to, chapter concerning, chapter
    XV.
Individualism, definition of;
  in labor matters.
Industrial Commission, United States,
  report of on trusts, etc..
Inheritance taxes,
  in United States;
  in England.
Initiative (_see also Referendum_).
Injunction (_see Riots_),
  origin of in Jack Cade's Rebellion;
  early use of principle, A.D. 1327;
  justices of the peace instituted for;
  under Richard II;
  repeal of these powers given justices of the peace the very next
    year;
  the common law vindicated;
  power given to chancellor in Jack Cade's case;
  jealousy of common law still preserved;
  given against the seduction of heiresses;
  in labor disputes;
  (_see also Chancery, Equity Jurisdiction_),
  government by, may bring on, military abuses;
  misuse of in America.
Injury, to another when not criminal usually not a legal wrong;
  otherwise, if by two or more working together;
  to trade, examples of.
Inns and ale houses, tippling at, forbidden under King James.
Inquisition, constitutional principle against.
Insane persons have no right to marriage.
Insolvency laws, liberal in United States (_see Bankruptcy_).
Instrument of government under Cromwell;
  only lasted one Parliament;
  dissolved by Cromwell's soldiers at its first sitting.
Insurance funds, legislation against;
  compulsory and benefit funds (_see Life Insurance_).
Intent, a cardinal question in conspiracy questions;
  a test of the legality of combined action.
Internal improvements,
  States may not engage in, etc.;
  chapter concerning, chapter XIX;
  usually prohibited by State Constitution;
  taxation to aid.
Interstate commerce, regulation of acts in;
  by the commission;
  the Sherman act;
  corporations uncontrollable by States;
  bearing of law on trusts;
  denied convict-made goods;
  does not control the treatment of races in public conveyances;
  in intoxicating liquors;
  act, discussion of its form.
Interstate succession.
Intimidation (_see Conspiracy, Boycotts_);
  in elections.
Intoxicating liquor,
  may not be sold to minors, etc.;
  tendency to local option;
  interstate commerce act regarding;
  general discussion;
  high license;
  State-wide prohibition.
Intoxication (_see Drunkenness_),
  formerly made a crime.
"Iowa Idea," the.
Ipswich (see _Norwich_) tailors of, case cited.
Ireland, cruel laws of Edward III.
Irish, termed the enemies of the English in 1309;
  laws against.
Irishmen, banished from England;
  not to attend the University of Oxford.
Iron, export of forbidden in 1354.
Irrigation, eminent domain for;
  private, eminent domain for;
  districts created in the South.

James I,
  legislation of;
  against sin.
Japanese (_see Mongolian_),
  included in laws against.
Jefferson, Thomas, his work on Virginia bill of rights.
Jenks, Professor (Oxon), quoted.
Jews,
  and usury;
  source of revenue in England;
  excluded from benefit of statute merchant;
  trade of, in early England;
  Christians forbidden to live among them;
  exempt from taxation except to the king.
John, King,
  surrenders England to the Pope.
Judge-made law,
  criticisms of.
Judges,
  method of appointment, changes in.
Judicial power,
  jealousy of;
  system;
  present needs.
Juries,
  early regulation of by statute;
  by 1285 must be of twelve men;
  compulsory service of jurors dates from 1285;
  right to, how far preserved;
  may be less than twelve in criminal cases;
  three-fourths verdict unconstitutional.
Jury trial in contempt of court matters.
Juvenile courts statutes for;
  laws.

Keller _vs._ U.S.;
  U.S.;
  case cited.
Kent, laws and customs of.
Kidnapping, made a crime;
  laws against.
King,
  might not make law;
  Norman kings attempting to make the law;
  derived his revenue from his own land;
  early methods of securing money from Parliament;
  sovereignty of supreme over the church;
  power of to repeal laws of England asserted by Henry VIII;
  proclamation made by to be obeyed by act of 1539;
  may not leave the realm;
  proclamations of given the force of law in 1539;
  subject to common law.
Kodaks, legislation against.

Labor, general chapter concerning, chapter XI,
  law of;
  makes men free;
  statutes of;
  early problems in England;
  compulsory in early England;
  attempt to make it so in the South;
  right to early established in England;
  still regulated;
  freedom of by statute of 1548;
  handicraftsmen to use only one mystery in 1360;
  claims for preferred;
  combinations, chapter concerning, chapter XII;
  contracts of labor not enforceable;
  American statutes, chapter XI;
  New York legislation, amendment;
  length of service;
  freedom of trade and labor;
  hours of in peculiar trades;
  in Europe;
  foreign legislation;
  legality of combinations;
  (_see Public Work, Wages etc_).
Labor hours of (_see Hours of Labor_).
Labor laws (see _Hours of Labor, Factories)_,
  early English statutes relating to, chapter IV;
  closely connected with laws against trusts;
  twenty years of legislation.
Labor Unions _(see Trades Unions)_;
  exemption from anti-trust laws;
  agreement not to join not to be required;
  lawful in Europe;
  funds of to be protected from attack;
  desire to be exempt from militia service;
  hostile to militia;
  may not establish a privileged caste;
  generally exclude negroes.
Laborers, first statute of 1349;
  possibly never law;
  confirmed in 1364 and not repealed until 1869;
  re-enacted in 1360;
  never law in America;
  great statute of, 1562;
  statute of 1388;
  requiring testimonials;
  statute of 1402, forbids laborers to be hired by the week;
  statute of, re-enacted in 1405;
  statute of Elizabeth, 1562;
  statute of, extended to London city;
  confirmed under James I;
  fixed prices of victuals;
  laborers not to be imported into State of Oklahoma.
Laissez faire school (_see Individualism_)
Land system of tenure before the conquest;
  allodial in United States;
  subject to eminent domain.
Lassalle, doctrine of, anticipated;
  ideas of, in modern socialism.
Lateran council, abolishes trial by ordeal.
Laundries, regulation of, etc.
Law, English idea of, chapter concerning, chapter I;
  definition of;
  American notion of;
  Anglo-Saxon idea of;
  originally in England unwritten;
  law enforced each man for himself;
  supposed to be known by all;
  growth of among children;
  sanction of;
  notion of as an order of a sovereign to a subject;
  Roman notion of not understood;
  unwritten in early England;
  Austinian notion of quite modern in England;
  sanction of, not necessarily punishment;
  early English all customary;
  always made by the people under Teutonic ideas;
  English not codified;
  right to, recognized in Magna Charta;
  of the land, as expressed in Magna Charta;
  extended to all people;
  right to as against military law;
  form of American statutes.
Law merchant, history of;
  governs all persons coming to the staple.
Law reports continuous among the English people since 1305.
Laws _(see Statutes_), not made by early Parliaments, but only
  declared;
  "We are unwilling to change the laws of England."
Lawyers may not sit in Parliament.
Legislation _(see also Statutes_);
  American in general, chapter concerning, chapter VI;
  proper field of;
  makes the bulk of modern law;
  not supposed to be difficult;
  none in modern sense before the Norman conquest;
  early growth of in England;
  beginning of new legislation;
  sociological only considered;
  State;
  our subject;
  early necessity of;
  Anglo-Saxon;
  early English laws recognized order law;
  form of in England;
  apt to cease under personal government;
  American in general;
  of the British Empire, index to;
  growth of constructive legislation in America;
  radical tendency of;
  to enact unconstitutional laws;
  division of into subjects;
  method of in United States;
  form of, discussed in chapter XX;
  should not be delegated to commissions;
  final discussion;
  no book upon the contents of.
Legislatures (_see also Parliament_),
  history of;
  to make new laws a modern conception;
  origin of representative;
  early, included all fighting men;
  annual sessions, history of;
  biennial or quadrennial sessions of;
  moral cowardice of;
  modern distrust of;
  sessions of limited.
Legitimacy, common law as to.
Lent, observation of, required by statute of James I.
Levees on the Mississippi.
Liability (_see Corporation_).
Libel, and slander,
  legislation relating to;
  against government;
  modern statute abolishing law.
Liberties, charter of (_see Charter_),
  declared by early statutes;
  restoration of in England;
  personal, secured by writs _de odio et atia_ and habeas corpus.
"Liberty Clause," the great.
Liberty (_see also Personal Liberty, Life and Liberty, etc_.),
  right to, recognized in Magna Charta;
  special to Kentishmen;
  in labor matters;
  of trade.
Licensing of trade, laws concerning.
Life, liberty, and property (_see Constitutional Law_),
  makes a convenient division of legislation;
  identity of constitutional rights to.
Life insurance,
  must be given the negro on the same terms as the white;
  of children forbidden.
Lilleshall case cited.
Limitations, statute of,
  for prosecutions for crime, dates from 1509.
Limited liability (see _Corporation_).
Liquor (_see Prohibition_),
  interstate commerce in; (see _Intoxicating Liquor_).
Litigation,
  early, always by way of justification.
Lobbying,
  laws against (_see Bribery_);
  acts.
Local option (_see Intoxicating Liquor_).
Local self-government preserved in municipal law.
London dock case.
London, liberties and customs of recognized in Magna Charta;
  laws of relating to labor;
  statute of, customs of, 1285.
"Long and short haul clause" (_see Rates_).
Looms, engrossing forbidden.
Loss of service laws.
Ludlow Company, strike at.
Lynching,
  State or county liable for;
  civil damages for;
  law of.

Machine politics, entrenched by regulation of.
Magna Charta, chapter concerning,
  chapter II, marks the complete restoration of Anglo-Saxon liberties;
  sworn to in the coronation oath;
  taxation clause;
  history of the grants of by King John;
  of Henry III omits taxation clauses;
  confirmed more than thirty times by later kings;
  history of the grant of by Henry III;
  important clauses of;
  of John further discussed;
  to be read twice a year in every cathedral;
  to be interpreted in the courts as is the American Constitution,
    under the new ordinances of 1311;
  never published in French;
  causes of.
Maintenance, statutes against.
Majority, powers of, not unlimited.
Malice in conspiracy (_see Conspiracy_).
Manufacture of cloth regulated by statute.
Margins, sales on forbidden.
Marine law (_see Sea_).
Market towns, regulation of tolls in.
Markets, citizens of London forbidden to trade in.
Marlborough, statute of.
Marriage (_see also Miscegenation_),
  jurisdiction over first in church;
  is a sacrament by Roman view;
  creates a status;
  not a mere contract at common law;
  forbidden between English and Irish;
  religious ceremony first dispensed with under Cromwell;
  between first cousins invalid in Pennsylvania;
  modern legislation;
  may be forbidden to parties of different races;
  discussion of the common-law marriage;
  now abolished in New York;
  the ceremony;
  chapter concerning, chapter XVII, lawfulness of, determined by law of
    State;
  law of formerly appertained to the church;
  in some States a simple contract;
  when void because of age;
  when void because of failure of parents to consent, restriction of by
    modern statute;
  between near relations;
  of insane persons void;
  of impotent persons;
  of epileptics;
  of drunkards;
  State examination to permit;
  tuberculosis disqualification for;
  of consumptives forbidden;
  of unchaste persons forbidden;
  medical examinations may be required;
  common-law marriage abolished in Illinois.
Marriage and divorce, chapter relating to, chapter XVII, as related to
  women's rights question.
Married women, regulation of labor of;
  original laws;
  have same property rights as men;
  may be protected by the State;
  as by hours of labor law;
  have control of separate property;
  laws permitting them to act as sole traders;
  wife-beating made criminal;
  privileges of.
Martial law;
  struggle against in England;
  recognition of, in modern State legislation;
  definition of;
  habeas corpus suspended under martial law;
  only by the executive.
Martin _vs._ Mott
  Wheaton
  case of cited.
Massachusetts, business corporations act;
  body of liberties.
Material men (_see Labor_).
Meats, servants to eat more than once a day.
Mechanics' liens, legislation concerning.
Mercantile system, recognized in the statutes of the early fourteenth
century.
Mercenary soldiers, first employed against Jack Cade.
Merchant adventurers incorporated in 1565;
  charter of.
Merchant tailors' case.
Merchant (_see Statute_).
Merchants (_see Trade_), rights of under Magma Charta;
  rights of in England early recognized;
  liberties of reaffirmed in statute of York;
  free to come and move in England;
  freedom of in England by statute of York;
  liberties of in statute of 1340;
  safety of in England guarded by legislation;
  having goods to the value of five hundred pounds may dress like
gentlemen;
  may freely trade in England and carry goods out of the realm;
  may ship in foreign ships.
Meyer, Dr. Hugo R., quoted.
Middlemen (_see Regrating_), nearly all regraters;
  laws against;
  forbidden by law of King James;
  modern statutes aimed at;
  need of legislation against.
Military law (chapter relating to, chapter XIII), does not exist under
English ideas;
  complained of in petition of right.
Military service, chapter concerning, chapter XIII; early objections
    to;
  law of;
  done away with in England;
  should be subordinated to civil power.
Militia, the natural defence of a free State;
  power of, to enter houses, etc.;
  to suppress riot;
  a proper defence, etc.;
  companies not under government control unlawful (_see
Political_).
Militia law, new acts concerning;
  exemption of labor unions from.
Milk universally forestalled and regrated in American markets.
Mills, tolls of, always regulated.
Mines, labor in, hours, etc.;
  company stores.
Minimum wage laws (_see Wages_).
Mining companies may have eminent domain.
Minor _vs._ Happersett
  Wallace
  case cited.
Miscegenation, made unlawful by custom;
  may be forbidden by statute.
Mobs (_see Riots_), mob laws, chapter concerning, chapter XIII;
  prevention of by recent statute;
  counties or cities liable for damage;
  damages by, considered in Pittsburg riots;
  modern statute against.
Monasteries, first suppressed 1535;
  dissolution by Henry VIII.
Money, statute of;
  forbidden to be carried abroad in 1335.
Money bills, the province of the lower house.
Mongolians, legislation against.
Monopolies, abuse of, first appears in statute of 1514;
  growth of;
  statute of;
  growth of feeling against under Elizabeth and James;
  great case of.
Monopoly (_see Trusts_), doctrine foreshadowed in Magna Charta;
  principle of, makes combination unlawful;
  still our common law;
  first formal complaint by the commons, 1571;
  history of agitation against;
  statute of 1623;
  under Charles I;
  early legislation in the interest of the consumer;
  staples tending to abolished;
  of foreign trade frequently granted by Elizabeth;
  statute of;
  frequently if not usually given in franchises to corporations;
  no objection to in foreign trade;
  corporations invented to gain;
  general discussion of, chapter IX; rates of, may be regulated;
  test of unlawful monopoly;
  in trust cases;
  of corporations;
  how far to be permitted.
Mormonism (_see Polygamy_), not permitted by the Constitution;
  agreement to abolish not binding on the State.
Mortgages (_see Foreclosure_), foreclosure of, difficult in United
States;
  modern legislation in United States impairs security of.
Municipal government (_see Government_), tendency of.
Municipal socialism, modern tendency;
  tendency to decrease;
  of street railways unconstitutional;
  of telephone lines permitted;
  of gas, water, oil, tramways, etc.;
  of coal yards, unconstitutional;
  of any public utility in Missouri.
Municipal trading (_see Socialism_);
  elections.
Munn _vs._. Illinois
  U.S.
  case cited.
Murder, trial of clerks for;
  civil damages for.
Mutiny Act in England.

Nationalism (_see Socialism_).
Natural rights (_see Liberty, Freedom, etc._).
Naturalization of socialists, etc.;
  of aliens, Mongolians, negroes, etc. (_see titles_).
Negotiable, meaning of word;
  what documents are;
  modern legislation increasing number of;
  uniform act.
Negroes, our treatment of in the past;
  Africans may be citizens;
  general analysis of legislation;
  their political and social relations;
  in labor;
  sexual relation;
  in criminal law;
  their property rights;
  in life-insurance matters;
  their treatment in hotels, jails, etc.;
  their disfranchisement in the South;
  a misdemeanor in South Carolina to serve meals to blacks and whites
    in the same room.
Negro labor (_see Peonage_);
  suffrage.
New ordinance of Edward II enacted 1311, revoked 1322.
Newspapers, legislation of, relief from libel law.
New York, constitutional amendment concerning public work.
Nomination, direct;
  papers.
Norman law, substantially Roman;
  law brought to England by the Normans.
Normans, their notion of law;
  of sovereignty;
  murder of (_see Englishry_).
Northampton, statute of.
Northern Securities case
  U.S. 177.
Norwich tailors, case of, cited.
Nuisances (_see Police Power_), modern legislation declaring;
  recent statutes against.
Nurses, trained, may be privileged.
Nursing of children by Irish nurses forbidden.

Oath (_see Religious Tests_).
Obstruction of mails and interstate commerce.
Ocean (_see Sea_).
Oklahoma, labor legislation of discussed;
  capital of must not be removed under enabling act.
Old-age pensions, German.
Oleomargarine, legislation concerning.
Onslow, Speaker, tells Elizabeth that she is subject to the common law.
Oppression (_see Conspiracy, Boycott_), antiquity of.
Ordeal, trial by abolished by Lateran Council.
Ordinance (_see New Ordinance_) of a city.
Oregon, the effect of the initiative in.
Organized labor (_see Labor Unions_).
Osteopaths, laws concerning;
  statutes permitting practice of.
Outlawry (_see Unwritten Law_), early method of enforcing law;
  result of personal enforcement of law when mistaken.
Output, limitations of, unlawful (_see Restraint of Trade,
Trusts_).

Parent and child, early control of, by church.
Parents (_see Husband and Wife_).
Parks (_see Eminent Domain_).
Parliament (_see also Legislature_), early function purely
    judicial;
  retains the right to tax;
  early history of, its attempt to recover legislative power;
  the source of supply;
  judicial power of;
  taxation powers of;
  origin of;
  word not used in Magna Charta;
  first represented in;
  word first used in 1275;
  first "model" sat in 1295;
  to be held once or twice in the year A.D. 1311;
  must be annual;
  claims the right to ratify treaties;
  to be consulted on war;
  rarely summoned under Henry VIII;
  the Barebones;
  single chamber under Cromwell;
  the rump;
  (_see House of Commons_).
Parole (_see Crime_);
  new laws concerning.
Patents (_see Monopolies_) regulated by statute of monopoly.
Paupers (_see Poor Laws_).
Peachy's monopoly case.
Peers (_see House of Lords_) may not speak in elections.
Penology, principles of.
Pensions, by way of exemption from taxation;
  vast increase of in United States;
  to Confederate soldiers;
  discussion of.
Peonage laws, etc.;
  cases.
Perrers, Alice, legislated against;
  women may not be lawyers.
Personal government under Henry VIII;
  struggle for.
Personal liberty, Anglo-Saxon idea of;
  English idea of;
  recognized in Magna Charta;
  in labor contracts.
Personal property (_see Property_).
Personal rights, chapter relating to, chapter XVI.
Petition of the Commons to Parliament not received.
Petition of Right, its bearing upon standing armies, etc.;
  right to.
Petrie, Flinders, quoted.
Philadelphia railway strike.
Philip and Mary, legislation of.
Photographs, legislation to prevent.
Physicians, may be compelled to testify;
  privilege of.
Picketing, statute against;
  in modern English legislation;
  by modern American statutes.
"Piece work," work by contract, first permitted by a statute of 1360.
Pinkerton men, laws against;
  armed guards forbidden in Oklahoma;
  armed guards permitted in Europe;
  legislation against.
Pins must be double headed and have the heads fast soldered.
Pittsburg, riots in.
Plague (_see Black Death_).
Players (_see Actors_).
Police power, as controlling property;
  legislation concerning;
  definition of;
  increased legislation in;
  growth of boards and commissions;
  definition of by Shaw, C.J.;
  history of;
  extends to offensive trades, smells, or sounds but not sights;
  as to sweat-shops, tenements;
  no limit to;
  legislation based on moral reasons;
  sanitary laws;
  for safety of public;
  as to nuisances;
  prohibition of self-regardant acts;
  pure food laws;
  factory acts, etc.;
  chapter concerning, chapter XVIII.
Police protection, guaranteed by liability of the hundred or county;
  the power;
  modern extension of.
Political rights, chapter concerning, chapter XIV, as to militia
    duties;
  interference with.
Polygamy not guaranteed by the right to free religion.
Pooling of bids in public work unlawful.
Pools, unlawful (see _Trusts_).
Poor laws, first origin in England, A.D. 1388;
  of Elizabeth.
Poor, support of, in towns where born, 1388;
  support of, the duty of the State.
Pope, powers of in England;
  authority of extinguished in England, 1535;
  referred to as Bishop of Rome;
  may no longer appoint bishops;
  Henry VIII becomes head of the church A.D. 1534;
  forbids attendance at English church A.D. 1566.
Popular assemblies originally included all fighting men.
Popular legislation under Cromwell.
Precedent, the true value of.
President, proclamations as to tariff, constitutionality of discussed;
  the commander-in-chief of the army.
Press (see _Freedom of Press_).
Presser _vs_. Illinois
  U.S.
  case cited.
Price, prices (see _Tolls, Wages, etc._), the fixing of,
  early regulation of;
  fixing of by combination early unlawful except when approved by
    chancellor;
  fixing of tried and abandoned in the early Middle Ages;
  regulation of definitely abandoned, 1389;
  selling at unreasonable profit forbidden;
  iron regulated;
  of poultry fixed in 1363 by reason of the great dearth;
  regulation of generally, chapter IX, fixing of unlawful, modern
    statutes;
  older statutes.
Price of bread.
Primaries, direct, etc..
Primogeniture abolished in United States.
Privacy, right to vindicated under police power;
  right to.
Private armed guards (_see Pinkerton Men_), prohibited.
Private property (_see Property_), socialists' attack on.
Privilege (_see Class Legislation_), given by recent legislation
    to certain classes;
  of physicians, etc., in giving evidence.
Probate (_see Administration_), jurisdiction of in courts.
Probation (_see Crime_).
Procedure, legislation concerning;
  in the courts.
Professions, examinations for.
Profit-sharing, miscellaneous matters, etc..
Prohibition laws, effects of;
  movement for discussed;
  laws made self-regardant actions a crime (_see Intoxicating
    Liquors_);
  tendency to State-wide.
Property, private;
  growth of among children;
  descent of;
  personal recognition of in early English statutes;
  exists only by the law;
  real, preceded personal property;
  personal, early protection of;
  rights of as recognized in Magna Charta;
  qualifications A.D. 1430;
  American legislation concerning, chapter VII, rights of simple;
  rights to;
  a constitutional right;
  not a natural right;
  the creature of law;
  rights to recognized in Magna Charta;
  in American constitutions;
  word first used in Virginia Bill of Rights;
  natural right to;
  recognized in State constitutions;
  attacks upon by legislation;
  personal taxation of.
Protection (_see Tariff_).
Protector, power of, exceeded the king's.
Protective tariff (_see Tariff_).
Public administrators, abuse of.
Public domain, chapter concerning, chapter XIX.
"Public Interest" (_see Granger Cases, Rates_).
Public service corporations, rates may be regulated;
  distinguished from other corporations in modern statutes.
Public work (_see Wages_), definition of.
Pullman Company, strike at.
Punishment (_see Fines_), must not be cruel or unusual;
  reform in.
Pure-food laws, first example of in Assize of Bread and Beer A.D. 1266;
  applying to grain, meat, fish;
  selling unwholesome meat severely punishable in early England;
  American laws;
  history of;
  in States;
  matters to which they apply;
  effect of;
  history of;
  the Federal act;
Pure food and drug laws, their criminal side.
Purple the color of royalty.
Purveyors (_see Supplies_), royal, might seize property.

_Quia emptores_, statute of.
_Quo warranto_, statute of, 1289.

Race legislation as to labor;
  question.
Racial rights, chapter concerning, chapter XVI, question on labor
  matters.
Railroads (_see Rates_), steam, bonds for voted by cities,
    counties, etc.;
  interstate commerce power over rates;
  hours of labor on.
Railways, street, abutters' consent necessary for franchise.
Rape, made criminal at common law by statute Westminster I;
  made a capital offence in 1285;
  penalty made death in the South as at common law;
  rigor of the common law preserved.
Rates (_see Extortion, Discrimination_), must be reasonable at
    common law;
  of public service companies must be uniform;
  regulation of generally, chapter VIII, of railways;
  "granger" laws;
  by State commissions;
  clash between State and Federal governments;
  what are reasonable;
  of gas, water, light companies, etc.;
  need not be uniform;
  modern examples of;
  reason for regulation of;
  in foreign countries;
  railway rate act of 1910;
  the long and short haul clause.
Raw material, laws against export of, common in England.
Real property, real estate (_see Property_).
Recall, the, a new reform.
Recommendations, of servants, etc. (_see Black List_), have early
  origin in England.
Referendum (_see Initiative_), modern movement for;
  in case of franchise.
Reform, movements of, in nineteenth century.
Regrating (_see Forestalling, Middle Men_), first statute against;
  definition of;
  of fish and wool forbidden under Henry VIII;
  of butter and cheese forbidden under Edward VI;
  of coal forbidden;
  final definition of;
  in early Greece by trusts;
  especially obnoxious in early England.
Religion, religious liberty guaranteed first under Cromwell, except as
    to papists;
  of Jesus Christ furthered.
Religious tests;
  rights under American Constitution;
  as to instruction in public schools;
  as to taxation.
Rents in staple towns must be reasonable.
Reporters, newspaper, privilege of.
Representative government, and the right to law;
  origin of;
  peculiar to Anglo-Saxon people;
  origin of, in England;
  in America;
  distrust of.
Republican form of government.
Reputation, right to.
Restraint of trade (_see Forestalling, Trusts, Monopoly_),
    general, discussion chapter IX, doctrine of foreshadowed in Magna
    Charta;
  origin of doctrine;
  instance of;
  still our common law;
  expression first used in 1436;
  double damages for, recognized in statute of York;
  an element of "Trusts";
  under the Sherman act;
  the Massachusetts statute.
Retail (_see Wholesale_).
Retailing by countrymen forbidden in towns by statute of Philip.
Retainers, feudal, laws against.
Revenue bills (_see also Money Bills_);
  must originate in lower house, A.D. 1407.
Revenue officers may not meddle with the goods of travellers under pain
  of quadruple damages and imprisonment.
Revisions, need of authorized.
Rex _vs._ Crispe, monopoly case.
Richard I imposes taxes to pay for crusade.
Richard II, legislation of;
  all his laws declared to be permanent;
  their repeal declared to be high treason;
  the following year they were all repealed under Henry IV.
Right to privacy (_see Privacy_).
Rights, indefinite.
Riotous assemblies, laws against.
Riots (_see Injunctions_), law against under Henry V;
  suppression of by common-law courts in chancery;
  use of executive power to suppress, dates from 1414;
  use of chancery power permitted;
  law of 1495;
  punishment of by Star Chamber;
  act of Edward VI;
  counties liable for damages in 1285;
  European law of;
  Star Chamber's authority over;
  duty of by-standers.
Rivers, pollution of, regulated as early as Henry VIII.
Roads (_see Internal Improvements_).
Roman law, distinct in two great principles from English law;
  individual liberty and law-making by the sovereign;
  an order to the subject;
  protest of barons against, A.D. 1383;
  forbidden to be cited in the courts.
Rome, Church of (_see Church, Canon Law, Pope_), high-water mark
  of domination over England in 1213.

Sack (_see Wine_).
Sacraments, jurisdiction over in church alone.
Sales in bulk prohibited.
Sales, uniform law of;
  sales at less than cost forbidden.
San Francisco earthquake, martial law in.
Saxon (_see Anglo-Saxon_).
Schools, to be no religious instruction in;
  appropriations may be divided.
Scotchmen banished from England.
Scots to depart realm within forty days.
Scott, Laura, her report upon child labor.
Scutage, the beginning of taxation;
  tax or money paid in lieu furnishing men-at-arms;
  replaced military service.
Sea, navigation of, free to all English (_see Monopoly_).
Seamen, imprisonment of, statute against under Cromwell.
Search, right of, denied.
Seduction, injunction issued against;
  of service;
  action for.
Segregation of races;
  of sects.
Senators, United States, direct election of.
Separation, legal (_see Divorce_);
  may exist without divorce;
  of the powers (_see Three Functions of Government_).
Serfs (_see Villeins_).
Servants, regulation of in early England;
  laws affecting in early England, had to give notice, etc.;
  regulation of food and clothing.
Sewerage (_see Drains_).
Sex legislation, chapter concerning, chapter XVII, limitations in
    industry;
  relations formerly the province of the church.
Sexual questions (_see Woman's Rights, Married Women, etc._),
offences made secular crimes.
Sherman act (_see Trusts_), precedent in statute of monopoly;
  enacted 1890;
  meaning of;
  still uncertain.
Ships, principle restricting merchants to domestic ships very old.
Shirts may not be "pinched".
Shoes, long pikes to, forbidden.
Signs (_see Trades_), public, may not be regulated under police
  power.
Silver, payment in, may not be refused.
"Single standard" and free divorce.
Sins, the province of the church courts;
  distinction of from crime;
  legislation against common under James I.
Slander, made criminal act at common law by Westminster I;
  and libel, legislation relating to;
  of women made a crime.
Slavery, in England;
  distinction between, and labor;
  thirteenth amendment is self-executing.
Smoke, laws against.
Socage, free and common, abolished in United States.
Socialism (_see Anarchism, Individualism_), allowable, definition
    of;
  those professing may not be naturalized;
  is it compatible with a republican form of government;
  helped by women's suffrage movement;
  municipal.
Socialists, may be denied immigration.
Society, possible systems of, described.
Soldiers and sailors (_see Pensions_), to be treated free.
Southwark, inhabitants of, declared to be thieves, men and women.
Sovereign, the king under Norman ideas.
Sovereignty, in the legislature;
  in Parliament.
Spain, war veterans of, pensions, etc.
Spanish war (_see Veterans of_)
Special courts declared odious.
Specific performance of labor contracts.
Speech (_see Free Speech_)
Spence quoted.
Stage players (_see Actors_)
Stamford, statute of.
Standard Oil Trust;
  legality of.
Standard wage (_see Wages_), principle gives place to modern
  principle of living wage.
Standing armies, origin of;
  early objections to;
  forbidden in Bill of Rights;
  first established in England under Charles II.
Staple (_see Forestalling_), definition of;
  abolished beyond the seas;
  generally abolished in 1340;
  last statute of 1353;
  extends to wool, leather, hides, and lead;
  statute of re-enacted in 1354.
Star Chamber (_see Chancery, Riots_) abolished under Charles I.
State aid, to railroads;
  to industries;
  present questions.
State and Federal questions (_see Centralization_).
State legislation, early increase of;
  the Constitution.
State regulation of rates (_see Rates_).
State, general powers of;
  may not engage in any internal improvements or industry;
  rights and powers of as to corporations;
State socialism, whether compatible with the Constitution.
Statute (_see Statutes, Common Law_), modern notion of;
  earliest social;
  why more democratic than the common law, (For special statutes, see
    their titles)
Statute, law, modern importance of.
Statute merchant 1285.
Statutes, the subject of this book;
  are comparatively recent;
  making law a new discovery;
  declare the law;
  importance of in modern times;
  our study sociological;
  early nature of;
  early English, what are in force in the United States;
  began to be in English A.D. 1463;
  when should be unconstitutional;
  limitations upon individualism;
  proper classification of;
  form of;
  no authenticated revision usually;
  present functions;
  method of enacting;
  many laws of doubtful authority;
  lack of official publication;
  need of scientific draftsmen;
  reforms recommended;
  indexing and arrangement;
  final discussion of the system of statute-making;
  difficulty of interpreting;
  their general uncertainty;
Statutes of the realm, the earliest sociological statute about 1100;
Stevenson, G.T., quoted;
Stock certificates, not negotiable;
Stock Exchange, rules of, customary law.
Street Railways (_see Municipal Socialism_)
Streets, use of, by railways subject to vote of abutters.
Strikes (_see also Conspiracy_), early law of;
  once unlawful in England;
  never unlawful in America;
  modern statutes concerning;
  European law of;
  illegal under a lawful wage;
  participation of employees in;
  notice of by employers required in modern statutes;
  lawful in France;
  use of Federal courts in,
Stubbs, on early English legislation.
Succession taxes, history of;
  common, now in all States;
  Federal tax repealed;
  may be graded.
Succession (_see Interstate_).
Suffrage (_see Women's Suffrage, Elections_), qualifications for;
  reforms in;
  disqualification of public servants;
  "grandfather clause";
  property and qualification legislation.
Sugar Trust cases.
Sumptuary laws, in early England;
  statute _de cibariis_;
  courses at dinner regulated by law;
  diet and apparel;
  statute of A.D. 1463, prescribing apparel;
  women not to wear hose to the value of more than fourteen pence.
Sunday laws, tendency to abolish;
  barbers may not shave on Sunday.
Supplies, seizure by the king forbidden.
Sweatshop, definition of;
  laws regulating;
  bakeries, cigar, clothing, artificial flowers, etc., trades
    principally regulated;
  laws concerning.

Taff Vale case, legislation against.
Taft, railway rate bill;
  court of commerce criticised;
  Federal incorporation;
  judicial reforms.
Tail (_see Entail_).
Tariff, constitutional objection to;
  increased cost to the people recognized by statute of 1309.
Tariff laws, effect upon engrossing and monopoly;
  early history of.
Taxation (_see Taxes_), origin of in England;
  must be by common consent;
  general taxation first, in Saladin tithe;
  must be for common benefit;
  for public purposes;
  first taxation on personal property in 1188;
  by common consent omitted from later charters;
  principle of consent restored in confirmation of charters;
  a usual method of invading property rights;
  never direct in England;
  history of;
  exemption from as to certain industries;
  possibly unconstitutional;
  extent of in the United States;
  laws limiting tax rate;
  must be proportional under State constitutions;
  burden of in United States;
  double taxation;
  graduated taxation;
  commissions to study;
  as a function of government;
  final discussion of;
  graded taxation;
  income inheritance tax;
  principles of taxation;
  bounties.
Taxation without representation;
  the earliest constitutional principle.
Taxes (_see Betterment Taxes_), early, in England paid by
furnishing men-at-arms;
  later transformed into scutage, a money taxation;
  first voted by Parliament;
  heavy taxes upon personal property under Henry VII;
  amount of frequently limited by modern statute;
  income taxes;
  assessment and collection of in America;
  legislation concerning;
  inheritance taxes;
  on trades and callings;
  license common in South;
  betterment, reason for;
  double taxation;
  rate of limited by statute;
  limited by law in South and West.
Telegraph, hours of labor in.
Tenures (_see Land_).
Thames, preservation of.
Theatrical employment of children, etc..
Threefold necessity, the.
Three functions of government, origin of;
  American co-operation of powers;
  does not exist in England;
  in the States.
Tips (_see Commissions_), forbidden;
  laws against.
Tobacco (_see Sumptuary Legislation_), forbidden to plant in
  England under Cromwell.
Tolls (_see Rates_), must be reasonable under Magna Charta;
  under statute Westminster I.
Towns, citizens of, first represented in Parliament of 1264 (_see
  Government_).
Townsend, Meredith, quoted.
"Trade Boards Act" of Edward VII.
Trades (_see Restraint of, Freedom of_), withdrawing one's self
  from (_see Boycott, Conspiracy_), lawful in individuals but not
    in combinations;
  right to early established in England;
  made generally free under Elizabeth;
  freedom of extends to the Jews;
  in more than one commodity forbidden A.D. 1360;
  law repealed the following year;
  freedom of triumphantly established in fourteenth century;
  restrictions begin to disappear under Elizabeth;
  license for necessary in many States;
  Trade Disputes Act, the English, 1906 (_see Conspiracy_);
  trade guilds (_see Guilds_) recognized in modern German
    legislation;
  licenses for may be required.
Trades, men forbidden to use more than one (_see Signs_);
  license taxes for;
  examination for (_see Taxation_).
Trades-unions, once unlawful in England;
  never unlawful in America;
  early law of;
  punishment for joining;
  early combinations of forbidden;
  convictions for joining;
  European law of;
  Norwich tailors' case;
  condition not to join made unlawful.
Trading corporations, the first.
Trading stamps, use of, forbidden.
Transfers of stock, laws regulating.
Travel, right to.
Treason.
Trial by jury, origin of;
  by battle;
  by compurgation.
Truant laws.
Trust certificate, unlawful.
Trust receipts, laws of.
Trusts (_see Conspiracy, Monopoly_), chapter concerning, chapter
  IX;
  origin of common law making them unlawful;
  at common law;
  early English statutes relating to;
  laws against always connected with laws directed against combinations
    of labor;
  punishment of by removal of tariff laws;
  taxation on franchise of;
  American statutes against unnecessary except to apply common-law
principles to interstate commerce;
  and labor combinations;
  earliest use of word;
  invention of;
  earliest State legislation;
  the Sherman act;
  Federal supervision;
  State laws against;
  exemption of laborers and agricultural products;
  as affected by corporation laws;
  early combinations in Athens;
  coal, milk, etc.;
  question of intent;
  modern legislation largely unnecessary;
  voting trusts;
  legislation against in 1890;
  review of modern legislation;
  definitions of the trust;
  State statutes;
  may not enforce contracts or collect debts;
  recent laws more intelligent;
  constitutional provisions against;
  volume of legislation;
  the problem analyzed;
  history and summary.
Tyler, Watt, rising of.
Tyndale's translation of the Bible under Henry VIII.

Unconstitutional laws (_see Constitution_), tendency to enact;
  true reason for.
"Unfair competition," modern legislation against;
  definition of.
Unfair list, the right to publish, discussed.
Uniform law, commissioners on.
Uniform laws, already recommended;
  as to bills and notes;
  weights and measures.
Uniformity of law, work of commissioners.
Union labor (_see Trades-Unions_);
  no condition to be made concerning;
  discrimination against;
  special privileges of in legislation.
United States Industrial Commission, report on trusts.
United States senators, direct election of.
Universities, State, exist in nearly all States.

Vagabonds, early statutes against;
  and Idlers;
  punishment of rogues and sturdy beggars;
  severe statutes against under Elizabeth.
Vessels (_see Ships_).
Veterans, of the Spanish war, to be preferred in civil service in
  England under Cromwell;
  in the United States;
  preference legislation.
Victuals, statute of (_see Assize of Bread_).
Villeinage, finally abolished for money compensation;
  laws mentioned under Elizabeth.
Villeins, in early England had no property;
  early condition of;
  made free when they seek refuge in towns;
  manumitted by Henry VIII.
Vote, right of employees to, in modern statutes.
Voters, qualifications of;
  property qualifications under Cromwell (_see Suffrage_).

Wages, early regulation of;
  highest in early England;
  fixed by the statute of laborers;
  must be at customary rate in early England;
  standard fixed;
  fixed semi-annually in England;
  repeated demands to fix by law and continued punishment of extortion;
  rates of fixed in New York;
  litigation caused by such legislation;
  rate of again fixed in 1388;
  attempt to regulate by law again abandoned, 1427;
  maximum price again fixed in 1444;
  again fixed, 1495;
  most elaborate fixing, 1514;
  in New Zealand and Austria;
  in England;
  in New York, Indiana, etc.;
  in public work;
  fixed by town vote;
  minimum wage in Hawaii;
  Nebraska and Nevada;
  forbidden by Louisiana Constitution;
  claims for preferred in insolvency, etc.;
  wage legislation in modern times;
  in towns by vote;
  of public labor;
  New York amendment;
  fixed by modern statutes in England, New Zealand, etc.;
  Plymouth case;
  effect of minimum wage laws;
  time and manner of payment, (_see Minimum Wage_).
Wales, joined to England;
  statute of.
War amendments and their effects.
Warehouse receipts negotiable.
Warrants, general, may not be employed (_see Search, Right of_).
Watch, duties of.
Water (_see Municipal Socialism_), public control of in arid
  States.
Weavers, statute for relief of.
Weights and measures, early laws regulating;
  standard required by statute of York A.D. 1392;
  American legislation.
Welshmen banished from England.
Were, meaning of.
Were gild, prototype of modern lynching laws.
Wessex, early laws of.
Westminster I, first statute of.
Westminster III, statute of _quia emptores_.
Wharves, charges regulated in early times.
Wheat, price of, regulated, Athens.
Whistles, laws against.
Whitaker, Dr. F.E., on Athenian corn laws.
Wholesale and retail selling recognized as lawful, but not
  forestalling.
Wight, Isle of, to be repeopled with English people.
Wilgus, Horace L., on Federal incorporation.
William the conqueror, charter to the City of London.
Wills, statute of.
Winchester, statute of.
Wine, or beer, use of never regulated by sumptuary legislation;
  sweet white wine not to be sold at retail;
  sweet wine (Spanish?) must be sold at the same price as the wine of
    the Rhine and Gascony.
Witchcraft, first act against under Henry VIII;
  forbidden by statute of James I.
Witenagemot (_see also Council_), included originally all freemen
  in England;
  main function of judicial legislation;
  little known of in early times;
  functions of, as a court.
Witnesses, number of, limited in criminal cases.
Wolstonecraft, Mary, her book discussed.
Women, may not practice law;
  forbidden to read New Testament;
  might be hanged in early England when men could plead benefit of
    clergy;
  suffrage movement, origin of;
  progress;
  laws limiting labor of;
  may not stand;
  not sell liquor;
  nor ply street trades;
  constitutional right to labor;
  sale of liquor to forbidden;
  industrial employment of;
  legislation to protect in industrial matters;
  their health may be protected by statute;
  may not work in factories shortly after childbirth;
  effort to forbid married women from working in factories at all;
  statutes on employment of in industry;
  teachers to be paid the same as men (_see Married Women_).
Women's suffrage (_see Women_), recent progress in;
  by property owners, etc.;
  results of discussed;
  tendency of movement to socialism;
  votes on matters of finance permitted in some States;
  constitutional amendments continually defeated;
  subsidence of agitation over;
  the right of property owners to vote in money elections.
Women's rights, discussed in chapter XVII;
  in all respects citizens except for voting, holding office, and
compulsory service on jury or in the army;
  may not serve liquor or engage in immoral occupations;
  may be subject to protective legislation even when over twenty-one;
  hours of labor may be regulated by law;
  in property matters same as men;
  with certain special privileges;
  political rights;
  to hold office;
  female juries;
  in educational matters;
  may practice law;
  may practice medicine;
  in jails, etc.;
  are not liable for husband's debts;
  female labor in England and United States.
Wool, early duties on;
  regulation of trade in;
  numerous statutes referring to;
  may not be carried out of England;
  no clothing made out of England to be worn;
  trade in made free again;
  again made a felony to export.
Woolsey does not summon Parliament for seven years.
Wrecks, definition of by statute of Westminster I;
  the law of;
  to be restored to their owners on payment of salvage.

Year Books begin in 1305.
York, statute of.







End of Project Gutenberg's Popular Law-making, by Frederic Jesup Stimson