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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/12235-0.txt b/12235-0.txt new file mode 100644 index 0000000..b171ce5 --- /dev/null +++ b/12235-0.txt @@ -0,0 +1,14754 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 12235 *** + +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 RĂ©gime 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 +aĂ«rial 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 +rĂ©sumĂ© 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 "_Ă 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 + +*** END OF THE PROJECT GUTENBERG EBOOK 12235 *** diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..d81ec18 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #12235 (https://www.gutenberg.org/ebooks/12235) diff --git a/old/12235-8.txt b/old/12235-8.txt new file mode 100644 index 0000000..bd9d966 --- /dev/null +++ b/old/12235-8.txt @@ -0,0 +1,15176 @@ +The Project Gutenberg EBook of Popular Law-making, by Frederic Jesup Stimson + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Popular Law-making + +Author: Frederic Jesup Stimson + +Release Date: May 2, 2004 [EBook #12235] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK POPULAR LAW-MAKING *** + + + + +Produced by the Online Distributed Proofreading Team from images +provided by the Million Book Project. + + + + + +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 + +*** END OF THIS PROJECT GUTENBERG EBOOK POPULAR LAW-MAKING *** + +***** This file should be named 12235-8.txt or 12235-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/1/2/2/3/12235/ + +Produced by the Online Distributed Proofreading Team from images +provided by the Million Book Project. + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Popular Law-making + +Author: Frederic Jesup Stimson + +Release Date: May 2, 2004 [EBook #12235] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK POPULAR LAW-MAKING *** + + + + +Produced by the Online Distributed Proofreading Team from images +provided by the Million Book Project. + + + + + +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 Regime 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 +aerial 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 +resume 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 "_a 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 + +*** END OF THIS PROJECT GUTENBERG EBOOK POPULAR LAW-MAKING *** + +***** This file should be named 12235.txt or 12235.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/1/2/2/3/12235/ + +Produced by the Online Distributed Proofreading Team from images +provided by the Million Book Project. + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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