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 givesome notion of the problems of the time (in this country, of course, particularly) which are confronting legislators primarily, politicalparties in the second place, but finally all good citizens. Thetreatment was as untechnical as possible. The lectures themselves werefor men who meant to go into business, for journalists, or politicalstudents; a general view--an elemental, broad general view--of theproblems that confront legislation to-day. So is the book not one forlawyers alone; it seeks to cover both what has been accomplishedby law-making in the past, and what is now being adopted or evenproposed; the history of statutes of legislation by the people asdistinct from "judge-made" law; how far legislatures can cure theevils that confront the state or the individual, and what the futureof American legislation is likely to be. Constitutional difficultiesI had merely mentioned, as there was another course of lectures onAmerican constitutional principles, which supplemented it. [1] In thoseI tried to show what we _cannot_ do by legislation; in these I merelydiscussed 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 thegrowth of constitutional law in this country is so wide--in the firstplace including all the English Constitution, and more than that, so many principles of human liberty that have been adopted into ourConstitution, either at the time it was adopted, or which have creptinto it through the Fourteenth Amendment, with all the innovationsof State constitutions as well--that really the discussion of what_cannot_ be done by statute takes one almost over the entire range ofconstitutional law and even into the discussion of what cannot be donein a free country or under ordinary principles of human liberty. 

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

How many of us have ever formulated in our minds what _law_ means? Iam inclined to think that the most would give a meaning that was neverthe meaning of the word _law_, at least until a very few yearsago; 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 alegislature, a thing enacted, made new by representative assembly, isperfectly modern, and yet it has so thoroughly taken possession of ourminds, and particularly of the American mind (owing to the forty-eightlegislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal todeserve their pay in the way of enacting laws), that statutes haveassumed in our minds the main bulk of the concept of law as weformulate 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, evenas we now understand it, is perfectly modern. There were no statuteswithin the present meaning of the word more than a very few centuriesago. But statutes are precisely the subject of this book; legislation, the tendency of statute-making, the spirit of statutes that we havemade, that we are making, and that we are likely to make, or that arenow being proposed; so it is concerned, in a sense, with the last andmost recent and most ready-made of all legal or political matters. Thesubject of statute-making is not thought difficult; it is supposedto be perfectly capable of discussion by any one of our Statelegislators, with or without legal training; and sometimes withlamentable consequences. For the subject is of the most immenseimportance, 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 hasgrown important to consider statute-making, it is necessary to havesome knowledge of the meaning of the word _law_, and of the originboth of representative government and of legislatures, before we cometo statutes, as we understand them; for parliaments existed centuriesbefore they made statutes as we now use this word. _Statutes_ withus are recent; _legislatures_ making statutes are recent everywhere;legislatures themselves are fairly recent; that is, they date onlyfrom the end of the Dark Ages, at least in Anglo-Saxon countries. Representative government itself is supposed, by most scholars, to bethe one invention that is peculiar to the Anglo-Saxon people. 

And there is another invention--if we can call it one--to my mind offar greater importance, which I should urge was also peculiar to theAnglo-Saxon people; that is, the invention or the idea of personalliberty; which is understood, and always has been understood, byAnglo-Saxons in a sense in which it never existed before, so far as Iknow, in any people in the history of the world. It is that notion ofpersonal liberty which was the cause of representative government, notrepresentative government that was the cause of personal liberty. Inother words, the people did not get up a parliament for the sake ofhaving that parliament enact laws securing personal liberty. It wasthe result of a condition of personal liberty which prevailed amongthem and in their laws that resulted in representative government, andin the institution of a legislature, making, as we now would say, thelaws; though a thousand years ago they never said that a legislature_made_ laws, they only said that it _told what the laws were_. This isanother very important distinction. The "law" of the free Anglo-Saxonpeople was regarded as a thing existing by itself, like the sunlight, or at least as existing like a universally accepted custom observed byevery one. It was five hundred years before the notion crept into theminds, even of the members of the British Parliaments, that they couldmake a _new_ law. What they supposed they did, and what they wereunderstood by the people to do, was merely to _declare_ the law, as itwas then and as it had been from time immemorial; the notion alwaysbeing--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 weresomething which came from the beginning of the world, which theyalways held, which were immutable, no more to be changed than theforces of nature; and that no parliament, under the free Anglo-Saxongovernment, or later under the Norman kings, who tried to make themunfree, no king, could ever _make_ a law, but could only declare whatthe law was. The Latin phrase for that distinction is _jus dare_, and_jus dicere_. In early England, in Anglo-Saxon times, the Parliamentnever did anything but tell what the law was; and, as I said, notonly what it was then, but what it had been, as they supposed, forthousands 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, andthat Great Council originally--and I am now talking of centuriesbefore the Conquest--the Witenagemot, included in theory all the freeinhabitants of the realm, just as a modern town meeting does. Mindyou, they were then tribes, living in "Hundreds. " They were notnations, not even states and counties, and in early times it probablywas possible to have a popular assembly which should include at leastall the warriors, all the fighting men, and consequently all the menwhose votes counted. No man who could not fight could share in thegovernment--an historical fact which our suffragists tend to ignorewhen they talk of "rights. " The Witenagemot, undoubtedly, wasoriginally a universal assembly of the tribe in question. But asthe tribes got amalgamated, were associated together, or at leastlocalized instead of wandering about, and particularly when they gotlocalized in England--where before they had been but a roaming peopleon account of their struggles with the Britons--the necessity ofgreater organization probably became obvious to them at once, and theWitenagemot readily assumed a somewhat more formal form; and thatresulted 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 onehall or in one field to discuss laws, so they invented representation. All the authorities appear to be agreed that there is no prototypefor what seems to us such a very simple thing as representation, representative government, among the Greeks or the Romans, or anyof the older civilizations of which we have knowledge. It is verysurprising that it is so, and I am always expecting that some one willdiscover, either in the Achaian League or somewhere, that it is notso, that there is a prototype; but there doesn't seem to be anyregular system of representative government until you get toAnglo-Saxon peoples. So that was the second stage of the Witenagemot, and then it properly begins to be called the Great Assembly orCouncil of the people. This representative assembly was then not onlylegislative, it was also executive, to some extent, and entirelyjudicial; for we are a thousand years before the notion of thethreefold division of government has occurred to any one. The earlySaxon Witenagemot, as later the Norman kings tried to, did unite allthree functions in themselves. Their main function was judicial; forthe reason that there was very little notion as yet of _legislation_, in a people or tribe whose simple customs and simple property demandedvery few laws, where the first remedy for any man for any attack onhis family or property was the remedy of his own good, right hand. When you really only got into a lawsuit, at least as concerningproperty, as a result of a killing of somebody or other, albeit indefence of one's own chattels, it is obvious that there need not bemuch legislation; the laws were too well known, the unwritten law toowell enforced. It probably would have surprised the early Englishmanif he had been told that either he or anybody else didn't _know_ thelaw--still more that there was ever any need for any parliament orassembly to tell him what it was. They all knew the law, and they allknew that they knew the law, and the law was a thing that they knew asnaturally 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, "Historyof 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 largemasses by themselves, they will, without apparently any reading, rapidly invent a notion of law; that is, they will invent a certainset of customs which are the same thing to them as law, and whichindeed are the same as law. They have tried in Johns HopkinsUniversity experiments among children, to leave them entirely alone, without any instruction, and it is quite singular how soon customswill grow up, and it is also quite singular and a thing that alwayssurprises the socialist and communist, that about the earliest conceptat which they _will_ arrive is that of private property! They willsoon 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 anillustration to show how simple the notion of law was among ourancestors in England fifteen hundred years ago, and how it had grownup with them, of course, from many centuries, but in much the same waythat the notion of custom or law grows up among children. The Englishhad acquired naturally, but with the tradition of centuries, thenotion 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 itis very important not to be misled by them at the beginning. I amquite sure that all the American people when they think of law inthe sense I am now speaking of, even when they are not thinkingnecessarily of statute law, do mean, nevertheless, a law which isenforced by somebody with power, somebody with a big stick. Theymean a law, an ordinance, an order or dictate addressed to them bya sovereign, or by at least a power of some sort; and they mean anordinance which if they break they are going to suffer for, either inperson or in property. In other words, they have a notion of law as awritten command addressed by the sovereign to the subject, or at leastby one of the departments of government to the citizen. Now, that, Imust 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 wasunderstood by our Anglo-Saxon ancestors. He didn't think of law asa thing written, addressed to him by the king. Neither did henecessarily think of it as a thing which had any definite punishmentattached or any code attached, any _sanction_, as we call it, or thingwhich enforces the law; a penalty, or fine, or imprisonment. There arejust as good "sanctions" for law outside of the sanctions that ourpeople usually think of as there are inside of them; and often verymuch better. For instance, the sanction of a strong custom. Take anyexample you like; there are many States where marriage between blacksand whites is not made unlawful, but where practically it is madetremendously unlawful by the force of public opinion. Take the case ofdebts of honor, so-called, debts of gambling; they are paid far moreuniversally than ordinary commercial debts, even by the same people;but there is no _law_ enforcing them--there is no _sanction_ for thecollection of gambling debts. And take any custom that grows up. Weknow how strong our customs in college are. Take the mere custom of aclub table; no one dares or ventures to supplant the members at thattable. That kind of sanction is just as good a law as a law madeby statute and imposing five or ten dollars penalty or a week'simprisonment. 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 theNew York Stock Exchange are better enforced than the laws of the Statelegislature. 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 afterbeing first written it wasn't usual to affix any _penalty_; they weremere customs, but of an iron-bound nature--customs that were followedfar more devoutly than the masses of our people follow any of ourwritten laws to-day. And their "sanction" was twofold: In the firstplace, the sanction I have mentioned, universal custom, socialostracism for breach. A second and very obvious sanction, that if youdo a thing that I don't like and think is against the law, I am goingto knock you down or kill you if I can! That was a sanction, and aperfectly good one; and the question that arose, therefore, was not atall as to penalty for the law-breaker; it was whether there should bea penalty for the law-breaker's being killed. That is the reason theydidn't have to have any penalty! In those days if there was a customthat a certain tribe had a certain pasture, and a man of another tribepastured his cattle in that pasture, the first man would go to him andthey 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 themurdered man or neighbors, and if the killer could prove that themurdered man had committed a breach of the law, he went off scotfree--so, as a matter of fact he would to-day, if it were justifiablehomicide. In other words, it was a question of whether it wasjustifiable homicide; and that brought in the question what thelaw was, and it was usually only in that way. For the law was butuniversal custom, and that custom had no _sanction_; but for breachof the custom anybody could make personal attack, or combine with hisfriends to make attack, on the person that committed the breach, andthen, when the matter was taken up by the members of both tribes, andfinally by the Witenagemot as a judicial court, the question was, whatthe law was; and if it was proved, for instance, that the law was thatthere _was_ private property in that pasture belonging to the man whocommitted the murder he went off scot free. That was the working ofthe old Anglo-Saxon law, and it was a great many centuries before thenotion of law changed in their minds from that. And this "unwrittenlaw" perdures in the minds of many of the people to-day. 

So it was that the Witenagemot--this Great Council of the realm--wasprimarily judicial, in the first instance always judicial; that is, itnever made new laws. It got together to try people for the breach oflaw; and that incidentally brought up the validity of the old law, andthen 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 neversupposed they were making new laws. That was the last thing theyintended to do, and the last thing the people would have stood, hadthey tried it. 

So much for the growth of law, the origin of Anglo-Saxon law, as weunderstand it, and for representative government, and for the originof Parliament. I doubt if there was any giving of new law, anythingthat we should call _legislation_, made by the English Parliament, then called the Witenagemot, before the Norman Conquest. I have neverbeen able to find any. You find occasional announcements that the menof Kent "shall have their liberties as they used to, " and perhapsthere will be a statement of what those liberties were, in brief; butit is always clearly meant that they are stating the law as alreadyexisting. How, then, did they invent a legislature?

The Roman law, the whole Roman system, as you know, was absolutelydistinct, and distinct in two great principles which have lasted downreally into modern times, and still divide Continental countriesfrom Anglo-Saxon countries. What I call the first great principle isuniversal law--the principle that no officer of government, no highofficial, no general, no magistrate, no anybody, can do anythingagainst the law without being just as liable, if he infringed upon asubject's liberty, as the most humble citizen. That is a notion whichdoes not yet exist on the Continent or any part of the world exceptEngland and the United States, and the countries or colonies copyingafter them. In Germany, for instance, Dr. Gierke tells me it existsonly partially and by a modern constitution. This is the first greatdifference; and the second one is the notion that laws are made by thepeople only, with or without representative government. The notionof law as a custom is Teutonic; but on the Continent the Germansabandoned it. The Roman law was always law more as we moderns think ofit; it was an _order_, addressed by the sovereign, or at least by apolitical superior, to a subject or to a political inferior; addressedin the form of definite writing, that is to say, a statute, and with asanction, that is to say, a penalty, a threat as to what the sovereignwill do if the subject does not obey. That is the universal notionof Roman law, and it has so far affected certain English writers onjurisprudence that I feel almost one should be warned against them. Not that their side isn't arguable, but the weight of English historyseems the other way. Austin, for instance, was so much impressed withthe notion of law as an order from the sovereign to an inferior thathe practically, even when considering the English Constitution, adoptsthat notion of law, and therefore arrives to some conclusions, as itseems to me, unwarranted, and certainly omits to note a great manythings that would be noted had he kept clearly the Anglo-Saxon theoryof law in mind. 

Now the Normans, mind you, had purely Roman law. While they were inNormandy, being in France, they had imbibed or adopted Roman notionsof law, perhaps because they were then first civilized. They had losttheir old Saxon notions, if they had any, for they were, after all, of the same _race_ as the Saxons. Nevertheless, when they conqueredEngland they brought just as much the notion of the Roman law intoEngland as if they had been Caesar's legions. And that fact mustalways be borne in mind, and that led to centuries of conflict in themaking of English constitutional law. The first thing, of course, thatthey tried to do, that the Norman kings tried to do, was to use law inthe Roman way; that is, to make the law themselves, from the king. Forthat was another consequence of the Roman law, that not only was it anorder by the sovereign power, but that this sovereign power was not intheory a legislature, as it is with us to-day, but the sovereign; inFrance and the Continental countries laws were made in theory and inpractice 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, newlymade order of a sovereign, not a thing that had grown up and was partof the lives and customs of the people, but a thing made out of handby the king; and, secondly, that it was made by the king and not byany legislature. And the first two or three centuries of Englishparliamentary history were mainly taken up, in the English Parliament, so far as it concerns the subject of our course here, in the contestbetween Parliament and the king as to who should make law and whatlaw was. It took more than one century for the Parliament, after theNorman Conquest, to revive as a Parliament at all; then when itdid finally get together it took two or three centuries before itestablished the principle that it had anything to do with the makingof law. The Norman kings regarded the Parliament as a mere method ofgetting money from the people, hardly even as a Council when theysought for popular support; and yet it was through the fact that theyso regarded Parliament that Parliament was enabled ultimately toacquire the law-making or the legislative power which exists in allour legislatures to-day. The king, in those days, derived his revenuemainly from his own land. It was not necessary for the government tohave any revenue except for what we should call the king's privatepurse. What was wanted for public expense was for two or threewell-recognized purposes, all purposes of defence. The old Englishtaxation system was in a sense no system. There wasn't any such thingas taxation. There was the "threefold necessity" as it was called. Itwas necessary for the king to have money, horses, grain, supplies, etc. , to defend the kingdom, and to build forts, and to maintainbridges or defensive works; and that was the only object of taxationin those times. Those were the only "aids"--they were called"aids"--those were the only aids recognized. The first word for tax isan "_aid_", granted voluntarily, in theory at least, by the barons tothe king, and for these three purposes only. The king's private pursewas easily made up by the enormous land he held himself. Even to-daythe crown is probably the largest land-owner in the kingdom, but atthe time of the Conquest, and for many years afterward, he certainlyowned an hundredfold as much, and that gave him enough revenue for hispurse; of course, in those days, money for such things as education, highways, police, etc. , was entirely out of their mind. They werenot as yet in that state of civilization. So the king got alongwell enough for his own income with the land he owned himself asproprietor. But very soon after the Norman Conquest the Norman kingsbegan to want more money. Nominally, of course, they always said theywanted it for the defence of the realm. Then they wanted it, verysoon, for crusades; lastly, for their own favorites. They spent anenormous amount of money on crusades and in the French wars; laterthey began to maintain--always abroad--what we should call standingarmies, and they needed money for all those purposes. And money couldyet be only got from the barons, the nobility, or at least the landedgentry, because the people, the agricultural laborers or serfs, villeins, owned no land. Knights and barons paid part of the tax byfurnishing armed men, but still, as civilization increased, there wasa growing demand on the part of the Norman kings for money. Nowthis money could be got only from the barons, and under theConstitution--and here we first have to use that phrase--it could onlybe got from the barons by their consent. That is, the great barons ofthe realm had always given these aids in theory voluntarily. The kinggot them together, told them what he wanted, and they granted it; butstill it had to come from them, and in the desire to get money theNorman kings first called together the Great Council, first consultedthe parliament which afterward became their master. They made alegislature by calling them together, although only for this purpose, to give them the power of getting more money; but when the GreatCouncil was once together and the kings began to be more and moregrasping in their demands for money, the barons naturally wantedsomething on their side, and they would say to them: "Well, yes--youshall have this aid--we will vote you this tax--but the men of Englandmust have such and such a law as they used to under Anglo-Saxontimes. " And they pretty soon got to using the word "people";the "people" must have "the liberties they had under Edward theConfessor"; and time after time they would wring from a Norman king acharter, or a concession, to either the whole realm or a certain partof the realm, of all the liberties and laws and customs that theyhad under the old Saxon domination--and that ultimately resulted inbringing the whole free English law back. Thus, early law was custom;Anglo-Saxon law was _free_ custom; the English lost it under theConquest; and they got it back because the first Norman kings had tocall the council together, which grew into Parliament, which then, in voting their aids or taxes, demanded their "old liberties"; andfinally, after getting Magna Charta, after getting all their old Saxonliberties back, by easy transition, they began to say: "We would makecertain regulations, ordinances, laws of our own"; though we have notyet got to the time where the notion of making _new_ law, as a statuteis 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--privatecivil law--remained, for centuries, small. You could digest them allinto a book of thirty or forty pages. And even to Charles the Firstall the statutes of the realm fill but five volumes. The legislationunder Cromwell was all repealed; but the bulk, both under him andafter, was far greater. For legislation seems to be considered ademocratic idea; "judge-made law" to be thought aristocratic. And soin our republic; especially as, during the Revolution, the sole powerwas vested in our legislative bodies, and we tried to cover a stillwider field, with democratic legislatures dominated by radicals. Thusat first the American people got the notion of law-making; of themaking of new law, by legislatures, frequently elected; and in thatmost radical period of all, from about 1830 to 1860, the time of"isms" and reforms--full of people who wanted to legislate and makethe world good by law, with a chance to work in thirty differentStates--the result has been that the bulk of legislation in thiscountry, in the first half of the last century, is probably onethousandfold the entire law-making of England for the five centuriespreceding. And we have by no means got over it yet; probably theoutput of legislation in this country to-day is as great as it everwas. If any citizen thinks that anything is wrong, he, or she (as itis almost more likely to be), rushes to some legislature to get a newlaw passed. Absolutely different is this idea from the old Englishnotion of law as something already existing. They have forgottenthat completely, and have the modern American notion of law, asa ready-made thing, a thing made to-day to meet the emergency ofto-morrow. They have gotten over the notion that any parliament, orlegislature, or sovereign, should only _sign_ the law--and I say signadvisedly because he doesn't enact it, doesn't create it, but signs awritten statement of law already existing; all idea that it should bejustified by custom, experiment, has been forgotten. And here is theneed and the value of this our study; for the changes that are beingmade by new legislation in this country are probably more importantto-day than anything that is being done by the executive or thejudiciary--the other two departments of the government. 

But before coming down to our great mass of legislation here it willbe wise to consider the early English legislation, especially thatpart which is alive to-day, or which might be alive to-day. Imentioned one moment ago thirty pages as possibly containing the bulkof it. I once attempted to make an abstract of such legislation inearly England as is significant to us to-day in this country;[1] notthe 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; notmatters of state, of the king and the commons, or the constitution ofgovernment. Except incidentally, we shall not go into executive orpolitical questions, but the sociological--I wish there were somesimpler word for it--let us say, the _human_ legislation; legislationthat concerns not the government, the king, or the state, but each manin 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 questionsof 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 necessaryto have enacted the legislation of the first two or three centuries atall. Its object mainly was political, that is, to enforce Saxon lawfrom Norman kings. No change was made, nothing new was added. Therewas, however, a little early Saxon legislation before the Conquest. The best compilation is contained in Stubbs's "Selected Charters. " Hesays that the earliest English written laws contained amendments ofolder unwritten customs, or qualifications of those customs, when theywere gradually wearing out of popular recollection. Such documents aregenerally obscure. They require for their elucidation a knowledgeof the customs they were intended to amend. That is as I told you:everybody was supposed to know the law, and early written statuteswere either mere compilations of already existing law, slightmodifications of them, or else in the nature of imposing variouspenalties--all of which assume that you know the law already. Whenthey attempted codification, which they did about twice before theConquest (especially under Edward the Confessor, for that reason he iscalled the Father of English law, the English Justinian, because hewas enough of a civilian to understand what a code was), King Edwardmade the attempt to get a certain amount of law written out; but eventhat would be very unintelligible if you tried to read it, for heassumed that one knew it all already, and it also is mainly in thenature of imposing penalties, not stating the law as it was. However, that is called the first English code. All the Saxon laws Dr. Stubbscould find fill only twenty-two pages of his small book; and he saysthat English law, from its first to its latest phase, has neverpossessed an authoritative, constructive, systematic, or approximatelyexhaustive statement, such as was attempted by the great founders ofthe 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 courtsis not "written, " it is not in any code. There are, of course, text-books on the subject, but they are of no binding authority. Itresides in the learning of the judges. It is what is called court-madelaw--"_jus dicere_, " not "_jus dare_. " Our judges are still supposedto tell what the law is, and they sometimes, as the common law is avery elastic thing, have to make new law. That is, if the precise caseisn't covered by any previous decision or by any statute, the judgeor the court will say what the common law ought to be when appliedto that state of facts. So our law is a continually growing law, andlargely made still in the old Saxon way, by custom and the judges, andstill under the theory that the common law is an existing thing; thatthe law exists and the judge only expounds. We have never lost sightof that theory. 

These early Anglo-Saxon laws mostly concern only matters of procedurefor the courts, or the scale of punishment. As they assume a knowledgeof existing law, they are often hard to understand. Here are some ofthe 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 thetime of the Conquest the Domesday Book reports twenty-five thousand. _Slaves_, I mean; not the unfree agricultural laborers, they were in ahigher 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 intoslavery, or men who had voluntarily sold themselves into slavery. Forunder early Saxon law a man could sell his child into slavery if thechild were under seven years old, and above fourteen the child couldsell himself. This refers, of course, to that; it is really a kind ofpredecessor 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 bloodmoney. Every man had a price from the king down; if a man killed theking 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 hundredpounds, 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 astatute is as late as 1100; but this early Saxon law was a recognitionof personal property, because a man cannot steal a thing unless thereis property. This section, therefore, implies property in personalty;because a man cannot steal land; but it never occurred to them to passa law saying that there _shall be_ private property, because that wasthe 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 wouldinfer that the weregild was only paid by a man with relatives on hisfather's side. It doesn't say that, but that is the inference. Weshall have plenty to say about the guilds later--the historicalpredecessors 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 Englishnobility. 

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; forall the free people of England in Saxon times were divided into earlsand churls; that is, noblemen and agricultural laborers or yeomanry;these were the two estates besides the church, always a class byitself. Later there grew up the thanes, who were merely largelandlords; the law became that a man that had five hides of land, fiveor six hundred acres, with a farm, should by the mere fact of havingthat land become a thane, an earl. That method of ennobling a man byland got to be a way, at that time the only way, by which a churl or avillein could become a nobleman or even be emancipated. Exactly as nowwith our American Indians; when an Indian gets one hundred and sixtyacres given to him in severalty he becomes, under the Dawes Act, acitizen of the United States. Later there grew up emancipation by theguilds. The word _guild_ meant the members of a certain handicraft, but that was rather the secondary meaning; it originally meant thefreemen of the town. But the freemen of the towns were made up ofthe freemen of the guilds. No one could become a member of the guildwithout going through certain ceremonies, much as he would now to joina trades-union; and no one could become a freeman of the town unlesshe was a freeman of the guild. The law grew to be, however, that if aman succeeded in staying in a town for a year and a day, without beingturned out, plying his handicraft, he became by that mere fact afreeman of the town; for the citizens of towns established theirliberty, both personal and political, far earlier than the dwellers onagricultural 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 mostpart, to do only with political divisions, what shall be a shire, whata parish, etc. , and certain technical matters that have now grownobsolete. So we may conclude with the statement, substantiallyaccurate, that there was practically no _new_ legislation, noconstructive legislation under the Saxons; their social law was allunwritten. 

And Parliament did not begin by being a law-making body. Itslegislative functions were not very active, as they were confined todeclaring what the law was; more important were its executive andjudicial functions. In modern English government, particularly in ourown, one of the basic principles is that of the three departments, executive, legislative, and judicial; the Norman or Roman theoryrather reposed all power in one; that is, in the sovereign, commonly, of course, the king, the others being theoretically his advisers orservants. 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 wepreserve the three branches distinct, though none, not all threetogether, are sovereign; it is the people who are that. And eachdepartment is of equal dignity; although at one period there was acertain amount of public complaint that Congress was usurping morepower than belongs to it, and recently that power was being usurped bythe 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 pretenceof maintaining the three branches uniform either in importance or inpower. Starting with the Great Council, which had originally only acertain amount of executive power and a great deal of judicial power, they have retained and added to the former, while practically givingup the latter; and, moreover, they have divided into the two houses, the House of Lords and the House of Commons, with a division ofsovereignty between them, the Commons, of course, getting the lion'sshare. The only judicial power substantially now remaining in theEnglish Parliament is the power of impeachment, which is rarelyexercised in England, and the appellate jurisdiction of the Houseof Lords, of the "law" lords, that is, those peers who held legaloffices. On the other hand the legislative function of Parliament, which began merely in the way of saying what the law was, hasenormously developed, and still more so the executive. Thus thelegislative branch of the three divisions in the English governmenthas increased out of all proportion to both the others, having now allthe legislative power and most of the executive. And legislatively itis omnipotent; it is confined by no constitution; even the king cannotwithhold his consent. Parliament can make any law, although againstwhat _was_ the Constitution; the Constitution may be modified by asimple statute. So their legislative function is infinite; and theirexecutive function has, in substance, grown very large, because theBritish government is carried on by the cabinet, which is practicallya committee of the House of Commons. But of the judicial function, which was the principal function of the Great Council at the timeof the Conquest, hardly a shred remains. It is the history of allcountries that people are not jealous of the judicial power, whilethey are extremely anxious to seize the legislative and executive. With us, however, we are supposed to have all three functionsco-ordinate and in good working activity. But in both countries, moneybills, bills imposing taxes, are the function of the lower house. Thatprinciple grew historically from the principle that all taxation mustbe voted by the people, directly or indirectly; must be with thecommon consent and for the common benefit. That principle wasestablished by the House of Commons, and consequently they arrogatedto themselves that part of the legislative power. That principle wehave retained in our Federal Constitution, and in most of our Stateconstitutions; 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 theywouldn't give them until he recognized what they chose to call the oldlaw of England, always a pre-existing law. It was still a long timebefore there was constructive legislation. Just as, before theConquest, in the seventh century, we find it said of the law ofWihtred: "Then the great lords with the consent of all came to aresolution upon these ordinances and added them to the customarylaws of the men of Kent"; and, in the time of King Alfred: "I, then, Alfred, king, gathered these [laws] together, and commanded many ofthose to be written which our forefathers held, those which to meseemed good; and many of those which seemed to me not good I rejectedthem, by the counsel of my 'witan, ' and they then said that it seemedgood to them all to be holden";[1] so, after the Conquest, everyNorman king was made on his coronation oath to promise this, the lawof Edward the Confessor, until Magna Charta; after that they promisedto respect Magna Charta instead, which was thus reissued or confirmedthirty-two times in the eighty-two years which intervened betweenRunnymede 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 beworthy 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 customsinvariably containing a mere list of penalties for the breach of theestablished law; while later charters usually give the inhabitants ofa town all the customs and free privileges enjoyed by the citizens ofLondon. 

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

But after the Conquest laws could only be enacted with the concurrenceof the king; and the phrase was, and is still, in form, that "theking wills it"--_Le Roy le veult_. Nevertheless, Parliament usuallyoriginated laws. The early Norman kings cared nothing aboutlegislation; their sole desire was to get money from the people. Fortwo centuries, therefore, Parliament was occupied only with lawsrecognizing the old Anglo-Saxon laws previously existing, or lawsremoving abuses of the royal power; and the desire of the king to taxthe people was used as the lever to get him to assent to these laws. 

With the usual sensible indifference of the English race to merematters of form, they allowed the Norman kings to go on declaring thelaws and signing them as if they were made only by the crown, whichwas the Norman theory--not caring for the shadow, if they could getthe substance. Thus they established, in the first two or threecenturies, the right to force legislation on the king, and they did itby the instrument of the taxation power. For taxation must be "by thecommon consent of the realm"; no taxation without representation, asthe Declaration of Independence puts it, is probably the earliestprinciple of the English Constitution; and it is most significant tothe student of the constitutional law, a most necessary reminder tothose who do not value our Constitution, that it was the departureby George III from this very earliest of English constitutionalprinciples that caused the loss of his American empire. 

This was six hundred years old, therefore, at the time of ourRevolution. Except those two principles, taxation by common consentand taxation for the common benefit--which latter was not finallyestablished until two hundred years later (that is, it was put in thefirst 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 tocome down to the year 1100 before we find the first _sociological_statute. "Henry I called another convention of all the estates of therealm to sit in his royal palace at London . . . The prohibiting thepriests the use of their wives and concubines was considered, and thebishops and clergy granted to the king the correction of them for thatoffence; by which means he raised vast sums of money compounding withthe priests. . . . "[1]

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

In 1 Henry, cap. VII, is another recognition of personal property--itsays that at a man's death it is to be divided between his widow andhis heirs. Now that may seem commonplace enough; but it is interestingto note, as in the law, personal property did not come first; propertyin land was many centuries earlier. And this suggests the legal basisand present tendency of the law of property. "Property exists onlyby the law"; and extreme socialists say that all private property isrobbery. No law, no property; this is true. Property is an artificialthing. It is a creation of law. In other words, where there is now nolaw except statute, it is the creation of statute. That may sound acommonplace, but is not, when you remember that socialists, who areattacking property, do so on precisely that ground. They say it is afictitious thing, it is a matter of expediency, it is a matter whichwe can recognize or not, as we like; "no law, no property, " and theyask us to consider whether, on the whole, it is a good thing to haveany property at all, or whether the state had not better own all theproperty. But our Federal and State constitutions guard it expressly. 

Thus, property is the very earliest legal concept expressed instatutes, just as it is perhaps the earliest notion that gets into achild's mind. And ownership of land preceded _personal_ property--forthe perfectly simple reason that there was very little personalproperty until comparatively late in civilization, and for the othermore significant reason that an Anglo-Saxon freeman didn't bother withlaw when he had his good right hand. In the fifth, sixth, and seventhcenturies, when we were barbarous tribes, a man's personal propertyconsisted chiefly in his spear, his weapons, or his clothes; enemieswere not very apt to take them, and if they did, he was prepared todefend them. Then, cattle, in those days, belonged to the tribe andnot to the individual. So, I should fancy, of ships--that is, galleys, not private "coracles, " the earliest British boats. Consequently therewasn't any need for a law as to personal property. What little therewas could be easily defended. But with land it was different. Propertyin land was recognized both among the English and, of course, with theNormans; and in ways so similar that it was very easy for the Normansto impose the feudal system upon England. There had been no feudalsystem before the Norman Conquest; there were then three kinds ofland: the rare and exceptional _individual_ land, owned by oneman--always a freeman, not a villein or slave--and this was very smallin extent, limited to a very few acres around a man's home. Most ofthe land was held in common; the folgland, so-called, which belongedto 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 feudallords. For they came in with their feudal system; and the feudalsystem recognized no absolute ownership in individuals. Under it therewere also three kinds of land, and much the same as the Saxon, onlythe names were different: there was the crown land--now I am speakingEnglish and not Norman-French--which belonged to the king and which heprobably let out most profitably; there was the manor, or the feudalland, which was owned by the great lords, and was not let by the kingdirectly; and then there was the vacant land, the waste land, whichwas in a sense unappropriated. Now all the Norman kings had to do wasto bring the feudal system over the Saxon law of land, so that thetribal land remained the only private land--that which is called "bokeland. " This is land such as all our land is to-day, except land likeour Cambridge Common. With a very few exceptions, all our land is"boke" land--freehold land. Then there was the public land; but thatvery soon was taken by the lords and let out to their inferiors; thiswas the great bulk of land in England after the Norman Conquest. Lastly again there was the crown land, out of which the king got hisrevenue. As something like this threefold system of land existedbefore the Conquest, a subtle change to the feudal system wascomparatively easy by a mere change of name. 

In the same year--1100--is the Charter of "Liberties" of Henry I. Itrestores the laws of Edward the Confessor "with the amendments made bymy father with the counsel of his barons. " It promises in the firstsection relief to the kingdom of England from all the evil customswhereby it had lately been oppressed, and finally returns to thepeople the laws of Edward the Confessor, "with such emendations as myfather made with the consent of his barons. "[1] In his charter to thecitizens of London[2] he promises general freedom from feudal taxesand impositions, from dane-geld and from the fine for the murder ofa Norman; and the Charter of Liberties issued by Henry II in 1154confirms their "liberties and free customs to all men in thekingdom. "[3] From this dates the equality of Englishmen before thelaw, commons as well as barons. Henry II was the first Norman king whohad the old Saxon blood, and therefore he was looked forward to with agreat deal of enthusiasm by the people of England. For although it isonly one hundred years after the Conquest, the Normans and the Saxonshad pretty well fused, and the Normans, who were inferior in number, had got thoroughly imbued with the free notion of Anglo-Saxon law. Sothey got this charter from him; but there is no legislation to concernus in it, it is only political. It has a great deal to do with thechurch, and with what the king will not do; it binds him, but it doesnot 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 torestore the common law of England as against the king's law or Romanlaw, or later against the law of the church, also a kind of Roman lawknown as canon law; and later still against the law of the king'schancellor, what we should now call chancery jurisdiction; for thejealousy of chancery procedure was quite as great in the twelfthcentury as it is with the most radical labor leaders to-day; but ofthis later on. 

In 1159 they succeeded in doing away with the Norman method of tryingcases by battle and the Saxon method of trying by oath, and by themachinery of the Norman Great Assize introduced again trial by jury. For this in itself is probably an old Saxon institution. And in 1164came the great Constitutions of Clarendon, the principal object ofwhich was to free the people from the church law and subjectthe priests to the ordinary common law as in times before theConquest--for now, "as the influence of the Italian lawyersincreased, "[1] all the priests and clergy were above it. It was thefirst great statute which clearly subjected the church--which, ofcourse, was the Church of Rome--to the common secular law. There was avast jurisdiction of church law ("Doctors commons" courts lasted untila generation ago in England); some of it still remains. But in theseearly days all matters concerning marriage, divorce, guardianship ofchildren, ownership of property after death, belonged to church law. It is hard to see why, except that the mediaeval church arrogatedto itself anything that concerned _sin_ in any way--anything thatconcerned the relation of the sexes, that concerned the HolySacraments, and marriage is a sacrament. Consequently the mediaevalchurch claimed that it had jurisdiction over all marriage, and overall divorce; and also took jurisdiction over a man's children at hisdeath, 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 wassomething, in a sense, that went beyond this life in looking after hisproperty and children. And down until twenty or thirty years ago alljurisdiction in England in matters which concerned a man's property, after death, belonged to the church courts and their successors. Thechurch 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 aconvenient term to distinguish it from the ordinary civil law of theContinent. So that the Constitutions of Clarendon began what wascompleted only under Henry VIII; they very clearly asserted the claimof the king to be supreme over the Church of England. The Bishop ofRome, as Henry VIII called the pope, had no more power than any otherforeign bishop. [2] There still remained the institution known asbenefit of clergy, by which any priest, or later any clerk or cleric(which word came to mean any one who could read and write) couldget off of any criminal accusation, at first even murder, by simplypleading his clergy; in which case the worst that could happen to himwas that he was branded in the right hand. But the Constitutions ofClarendon 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 asa few years ago. The priests, however, still managed to retain theirjurisdiction over offences among themselves, as well as over marriage, the relation between the sexes, slander, usury, and wills--of mattersrelating to the sacraments, and of sins. 

[Footnote 1: Stubbs, p. 136. ]

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

Now this is a very interesting matter, and were it borne in mind byour modern legislators they would escape a good deal of unintelligentlegislation; that is, the distinction between a sin and a crime. A sinis against the church, or against one's conscience; matter, therefore, for the priest, or one's spiritual adviser. A crime is an offenceagainst other men; that is, against the state, in which all areconcerned. Under the intelligent legislation of the twelfth centuryall matters which were _sins_, which concerned the conscience, wereleft to the church to prevent or punish. For the same reason usury wasmatter for the priest--because it was regarded under the doctrinesof the Bible as a sin. This notion prevailed down to the earlylegislation of the colony of Massachusetts, though doubtless manythings which were then considered sins would now be regardedas crimes, such as bigamy, for instance. The distinction is, nevertheless, a valid one, and we shall have occasion frequently torefer to it. We shall find that the defect of much of our modernlegislation--prohibition laws, for instance--is that they attempt totreat as crimes, as offences against the state, matters which aremerely sins, offences against the conscience or the individual whocommits them. 

To-day, the American constitutions all say that a militia is thenatural defence of a state of free men. It is interesting; therefore, to find, hardly a century after the Norman Conquest. In 1181, theAssize of Arms, which revived the ancient Saxon "Fyrd, " the word forwhat 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 ancestorsobjected from the very beginning. In a sense, scutage was thebeginning of taxation; but it was only a commutation for militaryservice, much as a man to-day might pay a substitute to go to war intimes of draft. General taxation first appears in 1188 in the famousSaladin tithe, the first historical instance of the taxation ofpersonal property as distinct from a feudal burden laid upon land. The object of this tax was to raise money for the crusade againstthe Sultan Saladin. It was followed, five years later, by a tax ofone-fourth of every person's revenue or goods to ransom the king, Richard I having gone to this crusade against Saladin, and beencaptured on his return by his good friend and Christian ally, theEmperor of the Holy Roman Empire. It is interesting to note that theworth of the king in those days was considered exactly one-fourth ofthe common wealth of England. John was less expensive; but he was notcaptured. He levied a tax ten years later of one-seventh part on thebarons, and one-thirteenth on every man. 

In 1213 two important things happened. The high-water mark ofdomination by the Roman Church is reached when King John surrenderedEngland to the pope, and took it back as a fief of the pope for atribute of one thousand marks. The same year the other early methodof trial of lawsuits was abolished by the Lateran Council--trial byordeal. This was the only remaining Saxon method. The Norman trial bybattle had already been superseded by trial by jury; and from thistime on, in practice, no other method than a jury remains, thoughtrial by battle was not abolished by statute until the nineteenthcentury. 

And then we come to Magna Charta. The first time it was granted was in1215 by John, but the charter always quoted is that promulgated tenyears later under Henry III. They were very nearly identical, but theimportant omission in the charter of Henry was in regard to "scutage"("no aid other than the three customary feudal aids shall be imposedwithout the common counsel of the kingdom"); that, of course, is theprinciple we have discussed above, first put in writing in the charterof John. The barons claimed it as part of the unwritten law. But HenryIII in his charter cannily dropped it out--which is a trick stillplayed by legislatures to-day. This Magna Charta was confirmed andratified something like thirty times between the time of its adoptionunder John and the time it got established so completely that itwasn't necessary to ratify it any more. There are four sections ofMagna Charta that are most important. Chapter 7, the establishment ofthe widow's dower; of no great importance to us except as showinghow early the English law protected married women in their propertyrights. Chapter 13 confirmed the liberties and customs of London andother cities and seaports--which is interesting as showing how earlythe notion of free trade prevailed among our ancestors. It gaverise to an immense deal of commercial law, which has always existedindependent of any act of Parliament. Chapter 17 provided that thecommon pleas court--that is, the ordinary trial court--should notfollow the king about, but be held at a place and time certain. Thatwas the beginning of our legal liberty; because before that the kingused to travel about his realm with his justiciar, as they called hischief legal officer, and anybody who wanted to have a lawsuit hadto travel around England and get the king to hear his case. But theuncertainty of such a thing made justice very difficult, so it was agreat step when the leading court of the kingdom was to be held in aplace certain, which was at once established in Westminster. Minorcourts were, of course, later established in various counties, thoughusually 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 whodoes not pay his taxes can in some States work them out on the road, so conversely in England they very early commuted the necessity ofa knight or land-owner furnishing so many armed men into a moneypayment. "The three customary feudal aids" were for the defence of thekingdom, the building of forts, and the building of bridges--allthe taxes usually imposed upon English citizens in these earliesttimes--all other taxation to be only by the Common Council of thekingdom. This is the first word, council; later, it became "consent";the word _conseil_ meaning both consent and council. "Council ofEngland" means, of course, the Great Council. We are still before thetime when the word Parliament was used. Thus Magna Charta expresses itthat there should be no taxation without "the advice" of Parliament, without legislation; and as Parliament was a representative body, itis the equivalent of "taxation without representation. " This also wasomitted in Henry III's charter, 1217, and only restored under EdwardI in 1297, a most significant omission. And it is also expressed inearly republications of the Great Charter that taxation must be forthe benefit of _all_, "for public purposes only, " for the peopleand not for a class. On this latter principle of Anglo-Americanconstitutional law one of our great political parties bases itsobjection to the protective tariff, or to bounties; as, for instance, to the sugar manufacturers; or other modern devices for extortingwealth from all the people and giving it to the few. All taxationshall be for the _common_ benefit. Any taxation imposed for the solebenefit of the land-owning class, for instance, or even forthe manufacturing class, is against the original principles ofconstitutional liberty. 

Then we come to chapter 39, the great "Liberty" statute. "No freemanshall be taken or imprisoned or be disseised of his freehold or _hisliberties or his free customs_ [these important words added in 1217]or be outlawed or exiled or otherwise destroyed but by lawful judgmentof his peers, or by the law of the land. " This, the right to law, isthe cornerstone of personal liberty. Any government in any country onthe Continent can seize a man and keep him as long as it likes; it isonly Anglo-Saxons that have an absolute right not to have that happento them, and not only are they entitled not to be imprisoned, buttheir liberty of free locomotion may not be impeded. An Americancitizen has a constitutional right to travel freely through thewhole republic and also not to be excluded therefrom. Punishment bybanishment beyond the four seas was forbidden in very early times inEngland. "Disseised of his freehold, of his liberties or his freecustoms"--that is the basis of all our modern law of freedom of trade, against restraint of trade, and the basis on which our actions againstthe modern trusts rest; the right to freely engage in any business, tobe protected against monopoly either of the state or brought aboutby competitors, to freely make one's own contracts, for labor orproperty, to work as long as one chooses, for what wages one wills, and all the other liberties of labor and trade. "Or be outlawed orexiled or otherwise destroyed"--that is a broad general phrase for anyinterference with a man's property, life, or liberty. "Nor will we goupon him"--that has been translated in various ways, but it means whatit says; it means that the king won't descend upon a man personally orwith his army; nor will we "send upon him"--a law officer afterhim; "but by the lawful judgment of his peers, or by the law of theland"--that means jury trial, or at least the law of the land, as itthen was; and that phrase, or its later equivalent--due process oflaw--is discussed to-day probably in one case out of every ten thatarise 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 processin a court, having jury trial if it be a civil case, and alsoan indictment if it be a criminal case, with all the rights andconsequences that attend a regularly conducted lawsuit. It must bedone by the courts, and not by the executive, not by the mere will ofthe 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 delayto no man, either right or justice, " needs no explanation; it isequality before the law, repeated in our own Fourteenth Amendment. 

Lastly, we have in cap. 41: "Merchants shall have safe conduct inEngland, subject only to the ancient and allowed customs, not to eviltolls"--a forecast of the allowable tariff as well as of the spiritof modern international law. Finally, there is a chapter on mortmain, recognizing that land might not be given to monasteries or religioushouses, and particularly under a secret trust; the object being tokeep the land, which made the power of the realm, out of the hands ofthe church. As far as that part of it goes, it is merely historical tous, but it developed into the principle that corporations "which haveno souls, " and do not die, should not own too much land, or have toomuch power--and that is a very live question in the United Statesto-day. 

One must not be misled by the generality of the phrase used in chapter39, and think it unimportant because it looks simple. It is hard foran American or Englishman to get a fresh mind on these matters. We allgrow up with the notion that nobody has the right to arrest us, nobodyhas the right to deprive us of our liberty, even for an hour. Ifanybody, be he President of the United States or be he a policeofficer, chooses to lay his hand on our shoulder or attempts toconfine 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 thehighest authority, to the president, to the general of the army, tothe governor, as it does to a tramp. But one cannot be too oftenreminded that this principle is peculiar to English and Americancivilization. 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--notonly has the right to deprive you of your freedom, but you have noright to question him; the "red band around the cap" is a finalanswer. Hence that extraordinary incident, at which all Englandlaughed, the Kupenick robbery. A certain crook who had been a soldierand was familiar with the drill and the passwords, obtained possessionof an old captain's uniform, walked into a provincial town of someimportance, ordered the first company of soldiers he met to followhim, and then with that retinue, appeared before the town hall anddemanded of the mayor the keys of the treasury. These were surrenderedwithout question and he escaped with the money, representing, ofcourse, that he had orders from the Imperial government. It neveroccurred to any one to question a soldier in full uniform, and it wasonly some days later, when the town accounts were sent to Berlin to beapproved, that the robbery was discovered. 

Such a thing could by no possibility have happened in England or withus; the town treasurer would at once have demanded his authority, hisorder from the civil authorities; the uniform would have failed toimpress him. Moreover, under our local self-government, under ourdecentralized system, nobody is _above_ even a town officer, or aState or city official at the head of his department, however small itbe, except the courts. State officers may not command town officers, nor Federal officers State officers; nor soldiers give orders topolicemen. The president, the governor, may perhaps remove them; butthat is all. And even the policeman acts at his peril, and may be suedin the ordinary courts, if he oversteps his authority. The notion thata free citizen has a right absolutely to question his constraint byany State officer is peculiar to the English and American people, andthis cannot be too often repeated; for it is what foreigners simplyfail to understand. And it rests on this chapter in the Great Charter, originally, as amplified and explained by the courts and later acts ofParliament, such, as the Habeas Corpus Act. If a man is arrested byany official, that person, however great, has to justify the arrest. In theory, a man arrested has a right to sue him for damages, andto sue him criminally for trespass; and if that man, be he privateindividual or be he an official or president, cannot show by a "duecourse of law"--that is, by a due lawsuit, tried with a jury--that hedid it under a duly enacted law, and that the facts of the case weresuch as to place the man under that law--then that official, howeverhigh, is just as much liable in the ordinary courts, as if he were themerest footpad trying to stop a man on the highway--a doctrine almostunknown to any country in the world outside of England, the UnitedStates, and English colonies. 

III

RE-ESTABLISHMENT OF ANGLO-SAXON LAW

Going on with the statutes, the next thing we will note is a matterthat concerns the personal relations. It shows again how eagerly ourEnglish common law overruled the church law, the canon law. Althoughthe church under the pope always pretended that it alone had authorityto regulate relations between the sexes, marriage and divorce, wefound Henry I interfering with the priests themselves, and we now findas early as 1235, a secular statute which extends the interference ofthe 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 agreat deal to say later about marriage and divorce laws, particularlydivorce laws as they exist in this country and as they apparently aregoing to be. As early as 1235 the secular courts interfered with themarriage relation; and the importance of that is here: there is onegreat school to-day, including largely clergymen and the divorcereformers, so-called, who hold substantially that marriage is asacrament, or at least a status; that the secular law has nothing todo with it and should not be allowed to grant a divorce except forcanonical causes, _i. E. _, causes recognized by the church; that itis not like any other contract, which can be set aside with mutualconsent; 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 beabrogated by mutual consent. On the other hand, the most radicalpeople go to the other extreme, and say that marriage _is_ like anyother contract; it is purely a civil contract, not a sacrament, nota status; just like any other, and some of them go to what is thelogical conclusion of that position and say that therefore marriage, like any other contract, ought to be ended at any time by the consentof both parties. The extreme radical view leads to the conclusion thata man and woman ought to be divorced any time by merely saying thatthey want to be; and some States have almost got to this position intheir 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 relationwhich the church believed to belong only to the church. It so happensthat in this instance the secular law instead of being liberal andkindly was extremely cruel and the reverse of liberal. Under thechurch law, when a man married a woman by whom he already hadchildren, all those children were thereby made legitimate, and thatcertainly seems the kindly and the Christian law. But the secularbarons who constituted the Parliament, in their jealousy for thecommon law, took the harsher view, that any children born of parentswho are not married at the time they are born shall be illegitimate, although their parents may marry afterward. Beaumont and Fletcher, inone of their plays, make a punning reference to that. It seems to havestruck Beaumont and Fletcher as it does us, that it was a cruel lawfor the Parliament to make; when the church for once was liberal, itwas queer that the Parliament should be illiberal; so Beaumont andFletcher, 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 theysay "the children thou shalt get by this _civilian_, " they mean bythis civilian a person who is under the civil, or Roman, or churchlaw; that is, they mean to say, although you marry a woman who isa church member and under the jurisdiction of the bishop, etc. , nevertheless the church law won't help you; your children by hercannot inherit by the _law_, and the law as used by Beaumont andFletcher and as used by me and as used in English books means the_common_ law, the common _secular_ law, the law of _England_, not thecivil or canon law. [1] Beaumont and Fletcher evidently thought it wasa very illiberal statute; and our modern American States have all cometo Beaumont and Fletcher's conclusion; they have universally reversedthe old English statute and gone back to the church law, so thatthroughout the United States to-day a child born before the marriageof its parents is legitimate if its parents afterward marry. That istrue, no matter how late it is; if the man marries her even on hisdeath-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, "nousury permitted against minors"; and there are two things to notehere. One is, that the secular legislature is also taking jurisdictionof minors, who were claimed at that time to be solely under thejurisdiction of the church; and the other is the reference to usury. Mind you, usury is interest. It didn't mean excessive interest, asit does now. As you probably know, the notion prevailed in the earlyMiddle Ages that all usury--interest--was a sin and wrong; and evenRuskin has chapter after chapter arguing that principle, that it iswrong to take interest for money. I should perhaps add another reasonwhy interest was so disliked in early England: There was very littlemoney in early England; and it mostly belonged to the Jews. It wasa good deal as it is in Russia to-day; the Jews were persecuted inRussia as in early England, because, in the country districts ofRussia, the Jews have all the money, and money-lenders are alwaysunpopular. So in early England. The great barons had their land andtheir cattle and crops, but they had little money. When they wantedmoney they got the value of it out of their tenants. Nobody carriedlarge sums of money around with him then, any more than a woman doesto-day--she relies on her husband or father; they went to the nearestJew. When the king wanted cash, he also extorted it from the Jews. Oneof the early Henrys said seriously, that he regarded the Jews as avery convenient sponge! That is, they sucked all the money in thekingdom and got it into a place whence he could easily get it out. Butit made the Jews very unpopular with the masses of the people and withthe Parliament; hence, their great dislike of usury. I doubt very muchif they would have cared much about usury if one gentleman had been inthe habit of loaning money to another; but all the money came from theJews, who were very unpopular; and the statutes against usury werereally made against them, and that is why it was so easy to passthem--they based it, doubtless, on the references to usury in theBible. Thus they got the notion that it was wrong to charge interest, or at least extortionate interest; more than a certain definite percent. ; and this is the origin of all our interest and usury statutesto-day. Although most economists will tell you that it is ridiculousto have any limit on the rate of interest, that the loan of moneymay well be worth only four per cent. To one man and twenty-five toanother, and that the best way for everybody would be to leave italone; nevertheless, nearly all our States have usury laws. We shalldiscuss that later; but here is the first statute on the subject, andit really arose because of the feeling against the Jews. To show howstrong that prejudice was, there was another statute passed in theinterest of liberality to protect the Jews--a statute which providedliberally that you must not take from a Jew "more than one-half hissubstance. " And a very early commentator tells us of a Jew who fellinto a privy on a Friday, but refused to be helped out on Saturdaybecause it was his Sunday; and on Sunday he besought the Earl ofGloucester to pull him out, but the Earl of Gloucester refused becauseit was his Sunday; so the Jew remained there until Monday morning, when he was found dead. There is no prejudice against Hebrews to-dayanywhere in Europe stronger than existed even in England for the firstthree or four centuries after the Norman Conquest; and had it not beenfor the protection given them by the crown, probably they would havebeen exterminated or starved out, and in 1289 they were all banishedto the number of 16, 160, and their movables seized. 

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

And now we find the first statutory origin of that utterly fallaciousprinciple--although alive to-day--that the state, in a free country, a legislature-governed country, has the right, when expedient, to fixthe _price_ of anything, wages or other commodities; fallacious, Isay, except possibly as to the charges of corporations, which aregiven special privileges by the government; the principle, whichprevailed throughout the Middle Ages, of fixing the prices of allthings. In this case the price was on bread; but you find now for manycenturies an attempt to fix the price of almost everything; and oflabor, too, what wages a man should be paid. It lasted persistentlyfor centuries and centuries, and it was only under the influence ofmodern political economy, Adam Smith and other quite modern writers, that the principle that it was possible to fix prices of commoditieswas utterly eradicated from the English mind. And you hardly got itout of England before it reappeared in the United States. It is nota new-fangled principle. You find the newspapers commonly talk aboutfixing prices by law as if it were something utterly unheard of andutterly new. It is not so. It Is on the contrary as old as almost anylegislation we have, and you can make no argument against it on thatground. It has always been the custom of our ancestors to regulatethe prices of wages by law, and the notion that it was eitherunconstitutional or inexpedient dates from a very few years back; yetall such attempts at legislation have utterly disappeared from anymodern statute-book. In no State of our forty-six States is any one sounintelligent, even in introducing bills in the legislature, as to-dayto propose that the price of a ton of coal or a loaf of bread shallbe so much. Nor is any modern legislature so unintelligent or sooppressive as to propose sumptuary laws; that is, to prescribe howexpensively a man or woman must dress; but in the mediaeval timesthose were thought very important. Every class in England was thenrequired by law to have exactly so many coats, to spend so much moneyon their dress, so much on their wives' dress, and certain men couldhave fine cloth and others coarse cloth; everything was graded, evento the number of buttons on clothes, and they went so far even as totry in some early legislation to say what men should have to eat; thenumber of courses a man should have for his dinner were prescribed bylaw at one time in England, varying according to the man's rank. Allsuch legislation has absolutely vanished and probably no one need knowthat it existed--but that when efforts are made, as they sometimesare, by our more or less uneducated members of legislatures tointroduce bills of such a kind, it is very important for us to knowthat those experiments have been tried and have failed, having provedto be either impracticable or oppressive or not for the generalbenefit. This is the importance of these early laws, even whenobsolete; because we never know when some agitator may not pop upwith some new proposal--something he thinks new--which he thinks, ifadopted, will revolutionize society. If you can show him that hisnew 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, untilan enraged public abolished it, it will destroy any effect that he islikely to make upon the average legislature. 

The first general example of an English law fixing the price of acommodity is in 1266, the Assize of Bread and Beer. That fixed theprice of bread according to the cost of wheat, a sliding scale, inother words; when a bushel of wheat cost so much, a loaf weighing acertain amount must cost so much, etc. But you must not confound thatwith the modern law that still exists in England, and in some Statesand cities here, merely regulating the _size_ of a loaf. That isperfectly proper, reasonable legislation, done merely for the purposeof protecting the public and preventing fraud. In England, forinstance, there is a certain standard loaf known as a quartern loaf, and in order to prevent poor people being cheated it is prescribedby city ordinance that the quartern loaf shall weigh so much, shallcontain so many ounces of flour. We do have similar laws saying howmuch a bushel of potatoes shall weigh, how much a barrel of flourshall weigh. That isn't fixing the price; it is only fixing a uniformsize so that the public may not be cheated in its dealings, and onemust 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 inFrench for some four or five hundred years, and then they were put inEnglish. The Statute of Marlborough, 1267, is a very important onehistorically, but it does not concern us, because it mainly had todo with the ownership of land, the tenure of land in England, anextremely important subject, but one that is obsolete here. Then wehave something about the trial of clerks for murder. Of course theword clerk there means not what we mean by a clerk, but a person whocould read and write; and nothing more than that. It originally meantpersons in holy orders, who were called clerks (clerics), but theregot to be clerks who were not in holy orders. Originally only priestscould read and write. No one else knew how, except possibly greatpersonages like kings, and consequently it was the same thing whether, when you said a clerk, you meant a person who could read and write ora priest. But when there got to be people who could read and write andwho were not priests, it became an important distinction. There wasa privilege in England known as the "benefit of the clergy"; if anyclerk was tried for a criminal offence, no matter what, all he had todo was to state that he was a priest and he was at once set free. Inother words, he could not be punished. That doesn't concern us; but, Isuppose, it resulted from the old notion that all priests were subjectonly to Rome, and to the church courts, and not to the civil lawcourts; and consequently when a priest was attempted to be tried in acivil law court, it was a way of doing what we should call "pleadingto the jurisdiction" of the court. Later, as time went on, in Englandit was greatly abused, especially when there got to be clerks whowere not priests. When it meant anybody who could read and write, andanybody who had committed a murder had only to say, "I can read andwrite, " and be set free, it led to an extraordinary state of things. So, from time to time, they modified the benefit of the clergy, untilultimately it was abolished entirely; first by not allowing it in highoffences like murder; then by imposing certain slight punishment--theywere "burned in the hand"; then by applying it only to the firstoffence, and so on, until they got rid of it entirely; and thisStatute of Marlborough is simply one of the first of that long chainof statutes which finally did away with it and prevented people fromgetting rid of a criminal prosecution merely because they knew how toread and write or were priests. 

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

Then we come down to the Statute of Westminster I. That is considereda great landmark in statutory legislation mainly because it is thefirst attempt to establish a code, or, at least, a large collection ofthe laws of England. It is an attempt to put what they supposed to bea 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 doesnot believe in codes. It is the French and Germans who have codes. Nevertheless, you often find collections of statutes. It is importantnot to confound these things with codes, because they never pretend tobe complete. Many States in this country never make revision of thestatutes. Nevertheless, every ten or twenty years they will print acollection of the statutes arranged alphabetically. In some States, asin Massachusetts, those collections are official; but in otherStates they are simply matters of private enterprise. They are of noauthority, and if they are wrong it is no protection to you. You arebound to know the laws. These early so-called codes, especially thiscode of Edward I, although it caused him to be called the EnglishJustinian, because it was the first attempt of putting any largebody 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 acertain 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 madeby the people in establishing their rights as freemen and to equallaws. For the laws of Norman England mainly applied to land-owners, and were made by the barons, the only people that had property; therewas but a small class in those early days between the land-owners andactual serfs, villeins, who were practically attached to the soil, in a condition almost of servitude; they did service, were not paidwages, and couldn't leave the place where they were born--and boththese are tests of slavery. But in the first two centuries after theConquest the number of freemen very rapidly increased; men who werenot property owners, not land-owners, but still freemen. Especiallyit increased in the towns, for the towns very early established theirright to be free, far earlier than the country. It was very earlyestablished that the citizens of any town, that is, the members ofthe guild of the town, duly admitted to the guild, were freemen, andprobably before this statute. But this is interesting as a recognitionof the fact that there were free poor people--people without property, who nevertheless were neither villeins nor serfs--and that they wereentitled to equality before the law, just as we are to-day, as earlyas 1275. Otherwise, the Statute of Westminster concerns mainly thecriminal law. There is one very important provision--because it hasbeen historically followed from then down to now--that there shallbe no disturbance of the elections. Elections shall be free andunimpeded, uncontrolled by any power, either by the crown, orParliament, or any trespasser. That has been a great principle ofEnglish freedom ever since, and passed into our unwritten constitutionover here, and of course has been re-enacted in many of our laws. Thatis the feeling which lay behind those statutes which we enacted afterour slaves were freed, for the making of elections free in theSouth; for protecting negroes in the act of voting and preventinginterference with them by the Ku Klux Klan. The Democratic partystrongly objected and objects still to such legislation on the part ofthe government, on the ground that the right of regulating electionsbelongs 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 Englishprinciple that elections must be free and must not be intimidated orcontrolled by anybody; but, they say, we left the machinery of theelections in the hands of the States when we adopted the FederalConstitution; and although at our State elections some of the officerselected are Federal officers--as, for instance, the President of theUnited States, or rather the presidential electors, and members ofCongress--nevertheless, when we adopted the Federal Constitution, thefounders chose to rely for the machinery of a fair and free electionupon the officers of States; so that the Federal government hasnothing to do with it, and has no business to send Federal troops tothe South; and they called such bills the "force" bill. In theory, ofcourse, those elections were controlled in these bills just as much inthe North as in the South; but there being practically no complaint inthe North that the negroes were not allowed to vote, as a matter offact the strength of the Federal government was only invoked in theSouthern States. 

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

Then slander and rape were made criminal at common law; before thisonly the church took jurisdiction. Slander Is the imputing of crime toa 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 thefirst import tax upon wool. The constitutionality of revenue taxes, duties, or taxes on imports, was once disputed by our parties; oneparty denying the constitutional right to impose any tax upon importsexcept for the strict purpose of raising necessary revenue; theargument being perfectly logical and based upon the constitutionalprinciple we already have had that all taxation must be for the commonbenefit. Democrats argued that if a tax upon imports was imposed toraise the necessary revenue, that is for the common benefit; but if itwas imposed, as it avowedly is imposed in Republican legislation, forthe purpose of benefiting certain industries or classes, why that, of course, is not for the common or general benefit and thereforeunconstitutional. The trouble with this position is that early Englishlaws were prohibitive of imports--that is, they were imposed forprohibition _before_ they allowed importation on payment of duties. This Statute of Westminster is a landmark, as showing how slow theCommons were in even allowing taxation upon imports at all. Theyearlier allowed the ordinary direct taxes. All that the Norman kingsgot they got with the consent of Parliament, direct taxes, for thecommon benefit; but they struggled for two centuries before they gotthe permission of Parliament to impose duties, taxes upon imports;here first they finally got it on wool, the thing produced of mostvalue of anything in England; and consequently an important protectiveduty. It is a curious historical fact that this article, wool, seemsto be the chief bone of contention ever since; in our tariffs nothinghas been more bitter than the dispute on wool; the duty on wool is theshibboleth of the extreme protectionist. [1] Ohio, which is the homeof the strong protection feeling, regards the duty on wool as thecorner-stone to the whole fabric. It is argued that "a cheap coatmakes a cheap man. " In the East the feeling is that the duty on woolmakes clothing poor and shoddy, and the prices excessively high forthe poor. It is odd to find that the very first thing that did maketrouble was the duty on wool, and it is still making the same troubleto-day. 

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

There is another interesting clause in this statute; I don't knowwhether in this country so much as there, but it is in England thealmost universal custom of ships to have a dog or cat on board. Younever will find a coasting vessel without a dog or cat, usually both;and I believe it is for this strange historical reason, as shown inthis Statute of Westminster I: In those days all wrecks belonged tothe king. (Pretty much everything, in fact, did belong to the king, except the land that was held by book or charter, or such personalproperty as a man had in his own house--all mines, all franchises, allmonopolies, even all whales and sturgeons that were thrown up on thebeach--the head to the king and the tail to the queen. ) So all wrecksbelonged to the king. The result was, that whenever any vessel wentashore the king's officers seized it; and naturally the owner of thevessel didn't like that, because it very often happened that thevessel was perfectly good and could be easily repaired and the cargosaved. It is still a great principle in marine law that if one-half ofthe cargo is good, the man who owns the vessel cannot surrender andclaim from the insurance company as a total loss; it is importantstill how much of a wreck a wreck is. But in those days the king, evenif the vessel was stranded and could be raised, would seize it onthe plea it was a wreck. The man who owned the ship would say she isperfectly seaworthy; and then would come the dispute as to what awreck was. Or even when the vessel was destroyed, a great part of thecargo might be saved, and the owner of the vessel thought it veryunjust that the king should claim it all. So the Parliament of Englandestablished as part of the liberties of the English merchant or traderthat he should still have a property in his wreck; and then thequestion came up as to what was a wreck. It was generally admittedthat when all hands were lost, that was a wreck; but they wanted toget as narrow a definition as they could, so they got Parliament toestablish this law, that in future nothing shall be considered a wreckout of which a cat or a dog escapes alive; and from that time untilthe present day no vessel coasts about England without carrying a cator dog. 

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

IV

EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS

(1275) Far the most important phrase to us found in the Statute ofWestminster I, save perhaps that common right should be done to richand poor, is to be found in this sentence: "Excessive toll, contraryto the common custom of the realm, " is forbidden. The statute appliesonly to market towns, but the principle established there wouldnaturally go elsewhere, and indeed most towns where there was anytrade were, in those days, market towns. Every word is noticeable:"Excessive toll"--extortion in rates. As this statute passed into thecommon law of England and hence our own, it has probably always beenlaw in America except, possibly, in those few States which expresslyrepealed the whole common law[1] and those where civil lawprevailed. [2] It was therefore equally unnecessary to adopt newstatutes providing against extortion or discrimination, for the lastpart of the phrase "contrary to the common custom of the realm" meansdiscrimination. But this is one of the numerous cases where ourlegislatures, if not our bar and bench, erred through simplehistorical ignorance. They had forgotten this law, or, morecharitably, they may have thought it necessary to remind the people ofit. There has been a recent agitation in this country with the objectof compelling great public-service companies, such as electriclighting or gas companies, to make the same rates to consumers, largeor small. This also was very possibly the common law, and required nonew statutes; there are cases reported as far back as the fourteenthand fifteenth centuries where, for instance, a ferryman was punishedfor charging less for the ferriage of a large drove of sheep or cattlethan for a smaller number, "contrary to the common custom of therealm. " Nine years before this statute is the Assize of Bread andBeer, attempting to fix the price of bread according to the costof wheat, but notable to us as containing both the first pure-foodstatute 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 Englishphrases for most of the unlawful or unmoral actions which we ascribeto the modern trust. In fact, there is hardly one legal injury whicha trust is said to commit in these days which cannot be ranked underthose three heads, or that of monopoly or that of restraint of trade. 

"Forestalling" is the buying up provisions on the way to a market withintent to sell at a higher price; and the doctrine applied primarilyto provisions, that is to say, necessaries of life. Precisely the samething exists to-day, only we term it the buying of futures, or theattempt 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 beenforbidden, or made criminal, in many States. "Regrating" is definedin some of the early dictionaries as speculating in provisions; theoffence of buying provisions at a market for the purpose of resellingthem within four miles of the place. The careful regulation of marketsand market towns that existed in early times in England would notsuffer some rich capitalist to go in and buy all that was offered forsale with intent of selling it to the same neighborhood at a higherprice. Bishop Hatto of the Rhine, you may remember, paid with his lifefor this offence. The prejudice against this sort of thing has by nomeans ended to-day. We have legislation against speculation in theatretickets, as well as in cotton or grain. "Engrossing" is really theresult of a successful forestalling, with or without regrating; thatis to say, it is a complete "corner of the market"; from it our word"grocer" is derived. Such corners, if completely successful, wouldhave the public at their mercy; luckily they rarely are; thedifficulty, in fact, begins when you begin to regrate. But inartificial commodities it is easier; so in the Northern Pacificcorner, a nearly perfect engrossing; the shares of stock went to athousand dollars, and might have gone higher but for the voluntaryinterference 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, andact, of course, in restraint of trade; the broader meanings of thesetwo latter more important principles we leave for later discussion. 

(1285) The Statute of Bakers, or Assize of Bread and Ale, is by someassigned to the 13th of Edward I. If so, we find all these greatmodern questions treated by statute in the reign of the samegreat law-making king, Edward I, who well was called the "EnglishJustinian"; for, in 1305, twenty years later, we have the firstStatute of Conspiracy. This statute only applies to the maintainingof lawsuits; but the Statute of Laborers of 1360 declares void _all_alliances and covins between masons, carpenters, and guilds, chaptersand ordinances; and from this time on the statutes recognize theEnglish common law of conspiracy in general words. 

As this is one of the most important doctrines of the English law, andmoreover one which is most criticised to-day by large interests, bothof capital and labor, it will be wise to dwell upon its historical andlogical origin in this place, though we shall consider it at lengthlater as it touches various fields of legislation. It is notable fortwo most important principles: first, that it recognizes the greatmenace of combined action, and both forbids and punishes combinationsto do an act which might be lawful for the individual; second, of allbranches of civil, as distinct from criminal, law, it is the one whichmost largely recognizes intent; that is to say, the ethical purposesof the combination. It has been urged in some judicial opinions thatin matters of boycotts, strikes, etc. , the law cannot go into themotive; this argument obviously proves too much, for it is no moreeasy to examine motives in the criminal law, and this is done allthe time. A homicide, for instance, will vary in all degrees betweenjustifiable guilt or manslaughter up to murder in the first degree, according to the motive which prompted the act. It is really no moredifficult, and the reported cases do not show it to be any moredifficult, to consider the motive behind a combination of men or themotive inspiring a series of related acts. The real trouble comes onlyin the Federal anti-trust act, because the machinery of this clumsystatute, a bill in equity, imposes upon judges the duty of finding thefacts. 

This doctrine of conspiracy is so old in England that I am unable totrace it to its source. From the wording of repeated early statutesit would seem that they recognized this law of conspiracy as alreadyexisting and merely applied it to new forms, such as, for instance, the combination of masons, carpenters, and guilds, just mentioned. Itis, perhaps, not to us important whether it is originally based oncommon law or these early statutes, for these statutes are quite earlyenough to have passed into the common law of England, and consequentlyinto the common law in this country. Moreover, early statutes merelyexpress the common law; therein lies their significance. Now, manyState laws and constitutions, as well as most State courts, recognizethat 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 ageneral way, any statute that antedates the time of our settlement wetook over as part of our common law. 

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

We are now coming also to that great range of statutes, which, on theone hand, control labor and regulate the rights of the laborer, bothin his prices and in his hours; and, on the other, those statutesrelating 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 allour modern legislation on matters affecting labor, labor disputes, injunctions, strikes, boycotts, blacklists, restraint of trade, andtrusts--in fact, the largest field of discussion now before the mindof the American people. The subjects are more or less connected. Thatis, you have the growth of legislation as to laborers on the onehand, and on the other you have the growth of this legislation as tocombinations or conspiracies, trades-unions, guilds, etc. 

(1304) Now let us begin at that first statute of conspiracy, and findwhat the definition of a conspiracy is; because it is a very importantquestion to-day, whether we are going to stick to the old common-lawidea or not. The very title of this statute is "A definition ofconspirators, " and it begins: "Conspirators be they that do confederor bind themselves together by oath, covenant or other alliance"either to indict or maintain lawsuits; "and such as retain men inthe Countrie with Liveries or Fees for to maintain their maliciousEnterprises, and this extends as well to the Takers as to the Givers. "And as it gradually assumed shape and got definite and broad, theidea, we will say, by 1765, when Blackstone wrote, was this: _Aconspiracy 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 isadmitted. Everybody agrees, both the labor leaders and the courts, on that definition--that when two or more people combine togetherto effect an _unlawful_ object, it is a conspiracy; which is both acriminal offence under the laws of the land everywhere, and also givesthe party injured a right to damages, that is, what we call a civilsuit; and furthermore no _act_ is necessary. There is no doubt aboutthat part of the definition. Or where they combine to get a lawfulend by unlawful means, as, for instance, when laborers combine to gettheir employer to raise their wages by the process of knocking on thehead all men that come to take their places, that is gaining a lawfulend by unlawful means, by intimidation--and is a conspiracy. But nowthe whole doctrine in discussion comes in: If you have a combinationto bring about by _lawful_ means the _injury_ of a third person in hislawful rights--not amounting to crime--is that an unlawful conspiracy?Yes--for it is a "malicious enterprise. " So is our law, and the commonlaw 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 conspiredagainst by thousands, hundreds of thousands, not by one neighbor, butby all the people of the town, that it early got established as aprinciple 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 norpunished for it, he could not _combine with others_ for that purposeby the very same acts. For instance, I don't like the butcher withwhom I have been doing business; I take away my trade. That, ofcourse, I have a perfect right to do. But going a step farther, Itell my friends I don't like Smith and don't want to trade withhim--probably I have a right to do that; but when I get every citizenof that town together at a meeting and say: "Let us all agree toruin Smith, we will none of us trade with him"--Smith is bound tobe ruined. The common law early recognized this importance of theprinciple of combination, and therefore it was part of the Englishcommon law and is still, barring one recent statute, that acombination to injure a person, although by an act which if doneby one individual would be lawful, is nevertheless an unlawfulcombination; 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 guiltyone, and anything which is a _conspiracy_ at law can be punishedcriminally, or will give rise to civil suits for damages by theparties injured, or usually entitle one to the protection of aninjunction. A conspiracy, therefore, is not only a guilty combination, of two or more persons, for an unlawful end by any means, or for alawful end by unlawful means, but also one for an immoral end, amalicious end, as, let us say, the ruin of a third person, or theinjury of the public. All the dispute about the law of conspiracy andthe statutes and what laborers can do and what employers can do to-dayreally hinges about that last clause. The labor leaders, the radicals, want to say that nothing shall be a conspiracy where the end isnot unlawful and where the acts done are such as, if done by anindividual, would not be wrong. In other words, they want statutesto provide that nothing is a conspiracy where the acts done arein themselves lawful if done by one individual. But this Englishconspiracy law was of the most immense sociological value, in that itdid recognize the tremendous power of _combination_. It said, althoughyou don't have to trade with Smith alone, yet a combination of agreat many individuals for the purpose of ruining Smith, by allsimultaneously refusing to trade with him, is such a tremendous injuryto Smith that the law will take cognizance of it and hold that kind ofa combination to be unlawful. 

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

A combination to injure a man's trade is, therefore, an unlawfulconspiracy; well shown in a recent Ohio case where a combination ofseveral persons to draw their money out of a bank simultaneously forthe purpose of making it fail, was held criminal. It gives a claimfor damages in a civil suit and may be enjoined against. But is itnecessarily criminal? It is possible that the offence to the public isso slight that the criminal courts would hardly take cognizance of itin minor cases where there is not some statute expressly providing fora criminal remedy. The Sherman Act, our Anti-trust Act, does so whereeven two persons conspire together to restrain interstate commerce. Itis a crime at common law, however slight, for even two to combine toinjure any person's trade. But, independent of statutes, suppose onlytwo persons agree not to buy of a certain butcher in Cambridge: intheory, he might have a civil remedy; but it may be doubted that itwould 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 thecommon law, to fix the price of an article--that is restraint oftrade--or to limit the output. Two grocers going to the city in themorning train agree that they will charge seven dollars a barrel forflour during the ensuing week; two icemen, to harvest only a thousandtons of ice. The contract between them could not be enforced; it isundoubtedly unlawful; but it would hardly be a criminal offence at thecommon law. There is, at least at the common law, some middle groundbetween those contracts which are merely unenforceable, and thosewhich subject the co-makers to a criminal liability; although underthe cast-iron wording of a statute it may be that no such distinctioncan be made. 

Independent of combination, there is probably no legal wrong in merelywishing ill to a man, withdrawing one's custom from him, competingwith him, or even, possibly, in injuring his trade. There is anancient case where the captain of an English ship engaged in a certaintrade, to wit, the slave trade, arrived off a beach on the coastof Africa and was collecting his living cargo, when a second ship, arriving too late to get a load itself, fired a cannon over the headsof the negroes, and they, with the chief who was selling them, fledin terror to the forest. The captain of the first ship went back toLondon and brought suit against the captain of the second ship forinjuring his trade and was allowed to recover damages; but it maybe doubted if that is good law; although in 1909 a Minnesota courtdecided that a barber could sue an enemy if he maintained anopposition barbershop solely for the purpose of injuring his business;and a few years ago in Louisiana a street railway foreman was heldliable in damages for instructing his men not to frequent theplaintiff's store. [1] I say to you: "Do not trade with Smith, he isnot a good person to deal with, " or, "Do not take employment withhim, he will treat you cruelly"; and in either case, unless I canbe convicted of slander, he has no remedy against me if I am actingalone. 

[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 tocombinations of capital or of employers, to trusts, contracts inrestraint of trade and blacklists, as well as to unlawful laborcombinations, unlawful union rules, and boycotts. The statutesdirected against both originated about the same time and have runhistorically on all-fours together. The old offences of forestallingand regrating may have been lost sight of, and possibly the statutesagainst them fallen into disuse, although they were expressly madeperpetual by the 13th Elizabeth in 1570 and not repealed until the12th George III in 1772; but the principle invalidating restraint oftrade and contracts in restraint of trade remained as alive as thatprohibiting unlawful combinations of labor. The latter, indeed, haslargely disappeared. Both strikes and trades-unions, once thoughtunlawful in England, are made lawful now by statute, but a contractin restraint of trade or a monopolistic combination of capital is asunlawful as it ever was both in England and in this country; and thecommon law is only re-enforced by our State statutes and applied tomatters of interstate commerce as well, by the Sherman Act. Closelyconnected with both is the principle of reasonable rates in theexercise of franchises; excessive toll contrary to common custom, aswe found forbidden in 1275. The first statute against forestallingmerely inflicts a punishment on forestallers and dates ten yearslater, 1285, though the time of this, the Statute concerning Bakers, is put by some still earlier, with the Assize of Bread and Beer, in1266. It provides the standard weight and price of bread, ale, andwine, the toll of a mill. It anticipates our pure-food laws andpunishes butchers for selling unwholesome flesh or adulteratingoatmeal, and says "that no Forestaller be suffered to dwell inany Town, which is an open Oppressor of Poor People . . . Which forGreediness 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 suchThings, intending to sell them more dear, . . . And an whole Town or aCountry is deceived by such Craft and Subtilty, " and the punishment isput at a fine at the first offence with the loss of the thing bought, the pillory for the second offence, fine and imprisonment for thethird, and the fourth time banishment from the town. 

The first definition of forestalling is here given. Our modernequivalent is the buying of futures or dealing in stocks withoutintent to deliver, both of which have been forbidden or made criminalin many of our States. And forestalling, regrating, and engrossingwere things early recognized as criminal in England, and thesestatutes embody much of what is sound in the present legislationagainst trusts. 

Forestalling was very apt to be done in a _staple_, that is, in thetown which was specially devoted to that article of trade; so thatthe laws of forestalling got very much mixed up with the laws of thestaple; but forestalling would equally mean going into any market andbuying up all the production. If the article was produced abroad, theforestaller 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 thepenalty imposed by that law was that the forestaller must forfeit thesurplus over cost to the crown and be imprisoned two years. We arestill enforcing remedies of that kind in our anti-trust laws, onlyinstead of having him forfeit the surplus to the crown we usually havehim pay damages, sometimes treble damages to the persons injured. Inthe Beef Trust case, the parties were duly convicted, and instead ofbeing imprisoned, they were fined $25, 000. In other words, we stillhave not the courage to go to the length that our ancestors did inenforcing the penalties of these unlawful combinations. Of course itis a much more difficult thing to have forestalling and engrossinglaws against foreign importations than against home productions; andso to-day we have not tried, except by a tariff, forestalling lawsagainst foreign importations, but we have attempted to apply them verymuch as to home productions. In England, however, the statute at thattime said that a person who bought up all the foreign product mustforfeit all the profits to the state. Now this is nothing but the"Iowa idea" of two years ago. It was suggested very urgently byGovernor Cummins that there should be a law providing that where atrust got complete control of a certain industry in this country itssurplus profit should be forfeited either indirectly by the takingoff of the tariff, or by way of a franchise tax, that is, of a UnitedStates tax upon its franchises, which could be increased in such a wayas to tax it out of existence if it persisted. The latter remedy is atthe root of President Taft's new corporation tax, but Congress has notyet applied the former, although it was very seriously advocated thatthere should be statutes which should indirectly forfeit the profitsof the trust that had secured a monopoly; that is an engrossingtrust--covin or alliance, as our ancestors would have called it--"agentleman's agreement"--and that it should be done by a reduction ofthe tariff on the articles in which that trust dealt; this reductionto be ordered by the president. When he determined that a trust hadcompletely engrossed an industry, he might say so by proclamation; andthen the act of Congress should go into effect and the duties uponthat product be abolished, all the protection of the trust taken away. There is a trouble with such legislation, in that it may be said toallow the president to make the law; and under our Constitution thepresident cannot make laws. The legislative branch and the executivebranch of the government must be kept distinct; and it probably wouldbe argued by constitutional lawyers, and in this instance by eitherparty that was not in favor of such legislation, that to reduce theduties of such a class of goods was a legislative act, and thereforeany such law would be unconstitutional because the president cannotlegislate. But the point I wish to make now in both these cases is theexact correspondence of the problem; what are remedies to-day wereremedies 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 mustconsider in connection with these other two, and that is the Statutesof Labor. It was the custom in early times to attempt to regulateprices; both of wages and commodities. The first Statute of Laborersdates from 1349. Its history was economic. They had had a great plaguein England known as the Black Death; and it had carried off a vastnumber of people, especially the laboring people. There was naturallygreat demand for workers. Laborers were very scarce. It is estimatedthat one-third of the entire population had died; and there has neverbeen a time when wages were so high relatively, that is, when wageswould buy so much for the workingman, as about the middle of thefourteenth century. But the employers were no fonder of high wagesthan they are to-day. All England was used to sumptuary laws, lawsregulating the price of commodities, and villeins still existed. Theywere 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, forit was unlawful for an agricultural laborer to change his abode; andin many other ways they were under strict laws. So that it didn'tseem much of a step to say also, we will regulate the rate ofwages--particularly as the payment of wages in money was rather a newthing. Probably two or three centuries before most wages were paid inarticles of food or in the use of the land. So they got this firstStatute of Laborers through; it required all persons able in bodyunder sixty to do labor to such persons as require labor or else becommitted to gaol. That, of course, is compulsory labor; the law wouldtherefore be unconstitutional with us to-day except in so far as itapplied, under a criminal statute, in regard to tramps or vagrants. Insome States we commit tramps and vagrants to gaol if they won't do acertain amount of work for their lodging, under the theory that theyhave committed a criminal act in being vagrants. Otherwise thisprinciple, a law requiring all persons to work, is now obsolete. Thenit went on to say, no workman or servant can depart from servicebefore the time agreed upon; lawful enough, to-day, although laborersdo not like to make a definite contract. The South, however, hasadopted this principle as to agricultural labor, just as in theEngland of the fourteenth century. Southern States have an elaboratesystem of legislation for the purpose of enforcing labor upon idlenegroes, which, when it creates a system of "peonage, " is forbidden bythe Federal laws and Constitution. They are compelled, as in the oldEnglish statute, to serve under contract or for a period of time, andif they break it, are made liable by this statute to some fine orpenalty imposed by the nearest justice of the peace; and when theycannot pay this, they may be Imprisoned. Finally, this Statute ofLaborers first states the principle that the old "wage and no more"shall be given, thus establishing the notion that there was a legalwage, which lasted in England for centuries and gave rise to the laterlaw under which strikes were held unlawful. Here, they meant suchwages as prevailed before the Black Death. 

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

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

Thorold Rogers tells us that those, after all, were the happy days ofthe 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 otherstate service; though we pay the president a salary of nearly doublethat proportion to the yearly pay of a carpenter. But then, theseEnglish statutes applied mainly to agricultural labor; and domesticlabor was paid considerably less. 

This Statute of Laborers was again re-enacted in 1360, with a clauseallowing work in gross, and forbidding "alliances and covins betweenmasons, carpenters, and guilds. " Work "in gross" means work bycontract, piece-work, thus made expressly lawful by statute in Englandin 1360, but still objected to by many of our labor unions to-day. The provision against alliances and covins was extended to covertrades-unions, their rules and by-laws, as well as strikes, which werealso considered combinations in restraint of trade. Now this was neverlaw in this country. 

There was a very early case in Pennsylvania, while it was still acolony, and there were others in the States soon after, which heldthat the Statutes of Laborers were never law in America. Our statutesearly authorized trades-unions, but without this there is, I think, noAmerican case where either a trades-union or a simple strike was heldto be an unlawful combination. It was these early statutes which gaverise to the law that existed until the nineteenth century in England, that both strikes and unions were unlawful; a strike because it wasusually a combination to raise the rate of wages, which was in theoryfixed by law. Therefore, a strike was a combination with an unlawfulaim, consequently a conspiracy. The logic is simple; and in the sameway a trades-union was certainly an alliance between skilled workmen, and as such forbidden under the Statute of Laborers, besides being acombination 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 aman to be a freeman, it was a perfectly lawful thing; it was only fromthe other end, from this statute I read as to combinations, that twoor three centuries later they got the notion that a trades-union wasan unlawful thing; so you may say that a trades-union in England hasa lawful root and an unlawful root, and it is rather important to seefrom which each class springs. The first case in which the modernstrike was considered was a case known as the Journeymen Tailors'case, which happened more than two hundred years ago; and in that caseit was definitely held to be an unlawful combination, while the firstcase on the modern boycott, where an injunction was awarded, is aslate as 1868, this being the origin of that process which has evokedso much criticism here, the use of the injunction in labor disputes. The unskilled laborers in England have never combined; the only peoplewho combined were the guilds, the skilled men, and in so far as theycombined they did it rather as capitalists, employees, or as freemen, to govern the town; this was a lawful object; and the guilds rapidlygrew into little aristocracies. They very soon ceased to be journeymanlaborers, and became combinations of employers. Thus, the guildmovement didn't amount to much in bringing about the moderntrades-union or combinations of laboring men; it began before itoccurred to these latter that they also could combine; just as, even now, it is more difficult among _women_ to get them to jointrades-unions, or for working women to combine; they have notapparently got into that stage of evolution; and so with the negroesin the South. But about the end of the eighteenth century you begin tofind the first strikes and combinations of workingmen; and then whatthe courts promptly applied to them was not the old line of statutes, the historical common-law growth, deriving from a guild which in itsorigin was a lawful body and so making the union free and lawful, butnaturally--for the magistrates were capitalists and land-owners, andall the courts were in sympathy with that class--they went back to thelong series of Statutes of Laborers, and said "this is a combinationof workingmen to break the law by getting more than lawful wages, "and consequently found both combinations unlawful, trades-unions andstrikes, 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 tosettle the law of England is that of Elizabeth in 1562. Meantime, agricultural labor as well as industrial was getting to be free. Astatute of 1377, which requires villeins refusing to labor to becommitted to prison on complaint of the landlord, without bail, itselfrecognizes that villeins fleeing to a town are made free after a yearand day's habitation therein. In 1383 came Wat Tyler's rising; thevilleins demanded a commutation of agricultural labor to a money rent(four pence) and full freedom of trade and labor in all the markettowns; and about this time was great growth of small freeholders. 

(1388) The Statute of Richard II restricts laborers to their hundredand makes it compulsory for them to follow the same trade as theirfather after the age of twelve. The wages of both industrial andagricultural laborers are again fixed-shepherds, ten shillings a year;ploughmen, seven; women laborers, six shillings, and so on. Servantsare permitted to carry bows and arrows, but not swords, and they maynot play tennis or foot-ball. And here is the historical origin ofthe important custom of exacting recommendations: servants leavingemployment are required to carry a testimonial, and none are toreceive servants without such letter--the original of the blacklist. Here, also, we find the beginning of poor-law legislation, thoseunable 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 dowith them at their pleasure to his principal followers, and they, needing servants, pardoned the inhabitants of their lives, and causedthem to do all manner of service"--was now abolished by compensationin a money wage payment. The institution of villeinage is lastmentioned in a commission of Queen Elizabeth, 1574, directing LordBurleigh and others in certain counties to compound with all suchbondmen or bondwomen for their manumission and freedom. 

(1389) The next year the practice of fixing wages at a permanent sumis abandoned and they are to be fixed semi-annually at Easter andMichaelmas by a justice of the peace. In 1402 we find the remarkableprovision that laborers are not to work on feast days nor for morethan half a day before a holiday. Such legislation would hardly benecessary in modern England, where, in many trades, no one works fora whole day after the holiday as well. In 1425 is another statuteforbidding masons to confederate themselves in chapters; and in 1427the attempt to fix wages by law is again abandoned and they are tobe fixed by the justices as in 1389, "because Masters could not getServants 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 statuteforbidding by-laws of guilds or corporate companies "in restraint oftrade, " also forbidding unlawful ordinances by them as to the priceof their wares "_for their own profit and to the common, hurt of thepeople_, " and such by-laws are made penal and invalid except whenapproved by the chancellor; and this statute of Henry VI is re-enactedagain in 1503 under Henry VII, where by-laws of guilds, etc. , restraining suits at law are made unlawful, and so "_ordinancesagainst the common weal of the people_. " The meaning and importance ofsuch legislation as this has been, I hope, made clear above. Note thewords "_to the common hurt of the people_" and "_against the commonweal of the people_. " From this century, at least, therefore, datesthat doctrine of the common law which makes unlawful any contract orcombination in restraint of trade, and it was left for the succeedingcentury to develop the last great principle, that against monopoly, caused either by unlawful combination of individuals or grant by thecrown 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 mayfreely buy and sell. The Statute of York, to this effect (1335), isre-enacted sixteen years later, and again under Richard II in 1391;and their right to carry away one-half the value of their imports inmoney, spending the other half in English commodities, in 1401. 

This general right of trade may be defined as the right of any manto work at what trade he chose, and to buy or sell what and where hewill, in the cheapest market. This right was indeed fundamental andneeded no express statute. But all these laws concerning by-laws orcombinations to prevent people from exercising their trade, or showingwhat were the liberties of trade in London and other towns (of whichthere are many) are exemplifications of it. That this law is far olderthan the statutes is well shown by an actual law report of a casedecided in 1221 and first published by the Selden Society in 1877:

"The Abbot of Lilleshall complains that the bailiffs of Shrewsburydo him many injuries against his liberty, and that they have causedproclamation to be made in the town that none be so bold as to sellany merchandise to the Abbot or his men upon pain of forfeiting tenshillings, and that Richard Peche, the bedell of the said town, madethis proclamation by their orders. And the bailiffs defend all of it, and Richard likewise defends all of it and that he never heard anysuch proclamation made by anyone. It is considered that he do defendhimself twelve-handed (with eleven compurgators), and do come onSaturday with his law. "

This is a remarkable report, for in twelve lines (ten lines of the lawLatin) we have here set forth all the important principles of the lawof boycott. The abbot complains that the Shrewsbury people do himmany injuries "against his liberty, " _i. E. _, the abbot claims aconstitutional right to freely conduct his own business; then we havethe recognition of the threat of a boycott as a particularly illegalact: "They have caused _proclamation_ to be made that none sellmerchandise to the abbot. " This is nothing but our modern "unfairlist. " The defendants admit the illegality of their conspiracy, because they deny it as a fact; and the bedell likewise denies that heever made such proclamation or threat, whereupon (the plaintiff beinga man of the church) they are set to trial by wager of law instead ofby actual battle, neither party nor the court making any question ofthe illegality both of the conspiracy and of the act complained of. 

There is no question then that all contracts in unreasonable restraintof trade were always unlawful in England and are so therefore byour common law. There was probably no real necessity for any of ouranti-trust acts, except to impose penalties, or, as to the Federal orSherman Act so-called, to extend the principles of the common law tointerstate commerce, which is under the exclusive jurisdiction of theFederal government. The common law, however, made the exception of_reasonable_ restraint of trade, which the Sherman Act does not; thatis to say, a contract between two persons, one of whom sells hisbusiness and good-will to the other and agrees not to embark in thesame trade for a certain number of years or in a certain prescribedlocality, was a reasonable restriction at the common law. So, if twomerchants going down town to their business agree in the street carthat they will charge a certain amount for a barrel of flour or a tonof coal that week, this would probably be regarded as reasonable atthe common law; but the common law, like these early statutes ofEngland, looked primarily, if not exclusively, to the welfare of theconsumer; they always speak of the common weal of the people, orof combinations to the general hurt of the people, and generalcombinations to fix prices or to limit output are therefore alwaysunlawful; so a combination that only one of them should exercise acertain business at a certain place--like that of our four greatmeatpacking firms, who are said to have arranged to have the buyerfor each one in turn appear in the cattle market, thus being theonly buyer that day--would be unlawful, when the restraint of traderesulting from an ordinary purchase would not be. 

The fixing of ordinary prices, not tolls, was thoroughly tried in theMiddle Ages and failed. Nor has it been attempted since as to wages, except in New Zealand by arbitration, and in England and (as to publiclabor) in the State of New York and a few other States where we have arecent statute that all employment in public work (that is, workfor any city, county, or town, or the State, or for any contractortherefor) must be paid for "at the usual rate of wages prevailing inthe trade"; this principle, taken from the last form of the EnglishStatute of Laborers, being passed in the interest of the laborersthemselves and not of the employers, as it was in early England. Theresult of this first piece of legislation was to impose some twentythousand lawsuits upon the city of New York alone; the laborersworking for a year or two at the rates paid by the city and then, after discharge, bringing suit and claiming that they had not beenpaid the "usual rate" of the trade; and as there were very heavypenalties, it is said to have cost the city of New York many millionsof dollars. In the same way the union idea of having all trades underthe control of an organization was carried to its extreme result inthe Middle Ages also, so that the guilds became all-powerful; theyimposed their rules and regulations to such an extent that it wasalmost impossible for any man to get employment except by theirpermission and under their regulation, or without membership. Theynaturally developed into wealthy combinations, more of employers thanof journeymen, until they ended as the richly endowed dinner-givingcorporations that we see in the city of London to-day. In France, atleast, they were considered the greatest menace to labor, and were allswept away at the time of the French Revolution amid the joy of themasses and the pealing of bells. Unfortunately, our labor leaders aresometimes scornful of history and unmindful of past example; thefact 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 beforeleaving and wages were again fixed; and in 1452, the time of JackCade's Rebellion, one finds the first prototype of "governmentby injunction, " that is to say, of the interference by the lordchancellor 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 underthe phrase quoted, dates back to 1327, when King Edward III found itnecessary to adopt some more effectual measures of police than thosewhich already existed. For this purpose justices of the peace werefirst instituted throughout the country with power to take securityfor the peace and bind over parties who threatened offence. [1] Fiftyyears later, in the reign of Richard II, it was found necessary toprovide further measures for repressing forcible entries on lands. The course of justice was interrupted and all these provisions wererendered in a great degree ineffectual by the lawless spirit of thetimes. The Statute of 1379 recites that "our Sovereign Lord the Kinghath perceived . . . That divers of his Liege People claiming to haveRight to divers Lands, Tenements, and other Possessions, and someespying Women and Damsels unmarried . . . Do gather them together to agreat Number of Men of Arms and Archers . . . Not having Considerationto God, but refusing and setting apart all Process of the Law, do ridein great Routs . . . And take Possession of Lands and in some Placesdo ravish Women and Damsels, and bring them into strange Countries. "Therefore the Statute of Northampton, the 2d of Edward III, is recitedand confirmed and the justices of the king's commission ordered toarrest such persons incontinent without tarrying for indictment orother process of law. But that this summary process was alreadyobnoxious to the people was shown by the fact that it was repealed thevery following year because the articles "seemeth to the said Commonsvery grievous. " Only the Statute of Northampton is preserved, andthose who had been so taken and imprisoned by virtue of said articlewithout other indictment "shall be utterly delivered. "

[Footnote 1: See "Injunctions in Conspiracy Cases, " Senate DocumentNo. 190, 57th Congress, 1st Session, p. 117. ]

(1384) It is noteworthy that at the same time that thisextra-common-law process begins in the statutes, we have otherstatutes 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 Lawought to be examined and discussed, are of late drawn before theConstable and Marshal of England, to the great Damage and Disquietnessof 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, fouryears later, it is ordained "that neither Letters of the Signet, norof the King's Privy Seal, shall be from henceforth sent in Damage orPrejudice of the Realm, nor in Disturbance of the Law. "

(1388) The next year we find a new Statute of Laborers confirming allprevious statutes and forbidding any servant or laborer to depart fromservice without letters testimonial, and if found wandering withoutsuch letters shall be put in the stocks. Short of the penalty of thestocks, a condition of things not very dissimilar is said to existto-day in the non-union mining towns of the West. In Cripple Creek, for instance, no one is allowed without a card from his previousemployer which, among other things, sets forth that he is notassociated with any labor union. This Statute of Richard II alsoprovides that artificers and people of Mystery, that is to say, handicraftsmen, shall be compelled to do agricultural labor in harvesttime. (The high prices of to-day, some one has said, are really causednot so much by the trusts or even by the tariff, as by voluntaryidleness; if a man will not work, neither shall he eat, but the lessonhas been forgotten! In the more prosperous parts of the country, inMassachusetts, for instance, it is sometimes impossible to give awaya standing crop of grain for the labor of cutting it, nor canable-bodied labor be secured even at two dollars per day. TheConstitution of Oklahoma, which goes to the length of providing thatthere shall be no property except in the fruits of labor, mightlogically have embodied the principle of this Statute of Richard II;and we know that in Kansas they invite vacation students to harvesttheir crop. So in France, practically every one turns out for thevendange, and in Kent for the hops; a merriment is made of it, butat least the crop is garnered. ) The Statute of Richard goes on tocomplain of the outrageous and excessive hire of labor, and attemptsonce more to limit the prices, but already at more than double thosenamed in the earlier statute: ploughmen seven pence, herdsmen sixpence, and even women six pence a day, and persons who have served inhusbandry until the age of twelve must forever continue to do so. They may not learn a trade or be bound as apprentices. Servants andlaborers may not carry arms nor play at foot-ball or tennis; theyare encouraged, however, to have bows and arrows and use the same onSundays and holidays. Impotent beggars are to be supported by the townwhere they were born. 

(1387) The barons protested that they would never suffer the kingdomto be governed by the Roman law, and the judges prohibited it frombeing any longer cited in the common-law tribunals;[1] and in 1389 wefind another statute complaining of the courts of the constable andmarshal having cognizance of matters which can be determined by thecommon law, and forbidding the same; and the statute of the previousyear concerning laborers is confirmed, except that wages are to befixed by a justice of the peace, "Forasmuch as a Man cannot put thePrice of Corn and other Victuals in certain. " Shoemakers are forbiddento be tanners, and tanners to be shoemakers; a statute which seemsto have been much debated, for it is continually being repealed andre-enacted for a hundred years to follow. 

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

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

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

(1414) The 2d of Henry V recites the Statute of the 13th of HenryIV against rioters, but power to suppress them is intrusted to thejustices of the peace and the common-law courts "according to the lawof the land. " Only if default is made in suppressing them the king'scommission goes out under the great seal, showing the beginning ofthe use of the executive arm in suppressing riots, of which ourmost famous instance was the action of President Cleveland in thePullman-car strike in Chicago in 1893. And in the same statute thechancery arm is invoked, that is to say, if any person complain thata rioter or offender flee or withdraw himself, a bill issues fromthe chancery, and if the person do not appear and yield, a writ ofproclamation issues that he be attainted, a more severe punishmentthan 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 orLatin. 

(1425) A statute recites that "by the yearly Congregations andConfederacies made by the Masons in their general Chapiters andAssemblies, the good Course and Effect of the Statute of Labourers beopenly violated . . . And such Chapiters and Congregations are forbiddenand all Masons that come to them are to be punished by imprisonmentand fine"--an excellent example of the kind of statute which led tothe doctrine that trades-unions were forbidden by the common law ofEngland. 

(1427) The next year the attempt to fix wages by law is againabandoned, and they are to be fixed by the justices, "because Masterscannot get Servants without giving higher Wages than allowed by theStatute. "

The exact time of the appearance of the modern corporation has beena matter of some doubt. Its invention was probably suggested by themonastic corporation, or the city guild. This whole matter must beleft for a later chapter, but we must note the phraseology of astatute of Henry VI in 1426, which speaks of "Guilds, Fraternities, and other Companies corporate, " and requiring them to record beforejustices of the peace all their charters, letters-patent, andordinances or by-laws, _which latter must not be against the commonprofit of the people_, and the justices of the peace or chief marshalare given authority to annul such of their by-laws as are notreasonable and for the common profit--the fountain and origin of amost important doctrine of the modern law of restraint of trade andconspiracy. 

(1444) Servants in husbandry purposing to leave their masters wererequired to give warning by the middle of the term of service so thatthe "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 ayear, with money for clothing, eleven shillings; and women servantsten shillings, with clothing price of four shillings, and meat anddrink. But winter wages are less and harvest wages more than insummer; and men who refuse to serve by the year are declaredvagabonds. 

(1450) John Cade was attainted of treason, and in 1452 comes thefamous statute giving the chancellor power to issue writs ofproclamation against rioters or persons guilty of other offencesagainst the peace, with power to outlaw upon default, quoted bySpence[1] as the foundation of the practice of issuing injunctionsto preserve the peace, now bitterly complained of by Mr. Gompers andothers; and it is most noteworthy as sustaining this adverse viewthat the Statute of Henry VI itself makes special exception, "That noMatter determinable by the Law of this Realm shall be by the same Actdetermined in other Form than after the Course of the same Law inthe King's Courts having Determination of the same Law, " and the actitself is only to endure for seven years. 

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

(1487) This year a Statute of Henry VII originates the criminaljurisdiction of the Court of Star Chamber, [1] an interesting statutereciting that the Mayor and Aldermen of London have forbidden citizensto go to fairs or markets, or trade outside the city, which isdeclared "contrary to the common weal of England" and the ordinancemade void. In 1495 the laws against riots and unlawful assemblies arerecited and confirmed, and authority to punish and prevent them givento the justices and the common-law courts, except that the justicesthemselves in a case of such disorder by more than forty persons areto certify the names of the offenders to the king and his council(that is to say, the Star Chamber) for punishment. In 1495 thewages of servants in husbandry and of artificers and shipwrights, master-masons and carpenters are again fixed, with the hours of workand meal time provided; in March, from 5 a. M. Till 7 or 8 p. M. , butwith half an hour for breakfast, an hour and a half for dinner, andhalf an hour for supper, and in winter time from dawn till sunset, and"said Artificers and Laborers shall slepe not by day" except betweenMay and August; but this whole act "for the common wealth of the poorartificers" is repealed the following year. 

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

(1503) This year there is another important statute against privateand illegal by-laws, reciting that "companies corporate by color ofrule and governance to them granted and confirmed by charters andletters patent of divers Kings made among themselves many unlawful andunreasonable ordinances as well in price of wares as other things fortheir own singular profit and to the common hurt and damage of thepeople, " and such by-laws are forbidden unless specially authorized bysome official such as the chief governor of the city. The law sofar dates from the 15th of Henry VI; but the present act goes on toprovide that "no masters, fellowships of crafts or rulers of guilds orfraternities make any acts or ordinances against the common profit ofthe people but with the examination and approval of the Chancellor andChief Justice of England, and that there shall never be any by-law torestrain any person from suits in the common-law courts. " A Federalstatute similar to this was proposed by a late president to applyto all corporations, or at least to all corporations conductinginterstate commerce; the approval of their by-laws or other contractsto be by the Federal commissioner of corporations; while the lastsection forbidding trades-unions to deny to their members the rightof suing them or other persons in the ordinary courts is part ofour constitutional law to-day and much objected to by the unionsthemselves, as it was in the time of Henry VII The tendency to createspecial courts (commerce, patents, etc. ) seems to be beginning anew, despite the malign history of the ancient courts of the Constable andMarshal, Star Chamber, Requests, Royal Commissions, etc. 

(1512) Under Henry VIII the penalty for paying higher wages than thelaw allowed was removed from the employer and applied only to theemployee taking the wage; and in 1514 comes perhaps the most elaborateof all the earlier acts fixing the wages and hours of labor. Theirmeal times and sleep times are carefully regulated, they are forbiddento take full wages for half-day's work and forbidden to leave a jobuntil 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 againprescribed; this list of trades in the England of the early sixteenthcentury is interesting. Bailiffs who assault their overseers may beimprisoned for a year, and an exception is made from the act ofall miners of lead, iron, silver, tin, or coal, "called See Cole, otherwise called Smythes Coole, " or for making of glass, but that partof the act fixing wages was repealed the very next year as to the cityof London. 

(1514) The abuse of monopolies begins to be shown this year (but seealso 1503, above) in a statute complaining of the grant of secondpatents of a matter already granted; and avoiding in such cases thelater patent unless the king express that "he hath determined hispleasure against the first. "

The appearance of the gypsies in England is marked by a statuteof 1530, describing them as "outlandish people called Egyptians, "complaining of their robberies, and requiring them to depart therealm. In the same year first appeared the celebrated Act for thepunishment of beggars and vagabonds and forbidding beggary, andrequiring them to labor or be whipped. Herbert Spencer states in his"Descriptive Sociology" that it punishes with loss of an ear the thirdconviction for joining a trades-union, which, if true, would justifymuch of the bitterness of modern labor unions against the commonlaw. The provision evidently referred to (22 Henry VIII, chapter 12, section 4) applies, however, not to guilds, but to "Scolers of theUniversities of Oxford and Cambridge that go about begging not beingauthorized under the seal of the said Universities" as well as toother beggars or vagabonds playing "subtile, crafty and unlawful gamessuch as physnomye or palmestrye. " The same year is an Interestingstatute 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 nothandicraftsmen, possibly the origin of the vulgar notion that thosetrades are more genteel than skilled labor. 

(1535) Another statute against sturdy vagabonds and "rufflers foundidling after being assigned to labor, " and already having their earsso slit, are punishable with death. This year Wales was joined toEngland; and we see the first act for the suppression of monasteries;the next year came the statute extinguishing the authority of theBishop of Rome. With the struggle against the Roman Church wentthe contest for freedom; _inter arma silent leges_; sociologicallegislation came to an end for the rest of the reign and arbitrarylaws passed at the king's desire; in 1536, the act authorizing kingsof England, on arriving at the age of twenty-four, to repeal any actof Parliament made during their minority, and in 1539 the "Act thatProclamations made by the King shall be obeyed"--the high-water markof executive usurpation in modern times. Proclamations made by theking and council were to have the force of acts of Parliament, yet notto prejudice estates, offices, liberties, goods or lives, or repealexisting laws; the cardinal constitutional rights were thus preserved, even as against this royal aggression. 

(1548) Under Edward VI and Elisabeth we may expect more enlightenedlegislation, and are not disappointed. Indeed, no one can read thestatutes of the great queen without seeing that modern times herebegin. Nevertheless, while trade is becoming free, labor is no lessseverely, if more intelligently, regulated. We first note a shortbut important statute touching victuallers and handicraftsmen, worthquoting in part: "Forasmuche as of late dayes divers sellers ofvittayles, not contented withe moderate and reasonable gayne . . . Have conspyred and covenanted together to sell their vittels atunreasonable price; and lykewise Artyficers handycrafte men andlaborers have made confederacyes and promyses and have sworne mutuallothes, not onlye that they shoulde not meddle one withe an othersworke, and performe and fynishe that an other hathe begone, but alsoto constitute and appoynt howe muche worke they shoulde doe in a dayeand what bowers and tymes they shall work, _contrarie to the Lawes andStatutes of this Realme_" (It is extraordinary how closely this oldstatute sets forth some practices of the modern trades-union. ) "Everieperson so conspiring covenantinge swearing or offendinge . . . Shallforfeyt for the firste offence tenne pounds . . . Or twentie dayesymprisonment" with bread and water; for the second offence, twentypounds or the pillory, and for the third offence forty pounds, or thepillory and lose one of his ears. After that he is to be taken as aman infamous and his oath not to be credited at any time, and ifthere be a corporation of dealers in victuals or of handicraftsmen soconspiring, it shall be dissolved--the origin and precedent of theSherman Act! This, of course, is the statute which Herbert Spencercites as making a "third conviction for joining a trades-unionpunished with loss of an ear"; but he places the date at 1535 insteadof 1548. The statute, however, goes on to provide absolute freedom ofemployment or trade for all skilled mechanics in any town, althoughnot freemen thereof, whether they dwell there or not, any town orguild by-law to the contrary notwithstanding; so that this importantstatute may be said to establish the most enlightened view that theremust be absolute liberty of employment granted any one, only that theymust not conspire to the injury of others. Unfortunately, in thevery next year this last part is repealed as to the city of London, "Artificers and Craftmen of that ancient City complaining that it wascontrary to their ancient privilege, " a view as modern as is the lawitself. Immediately after this law is one providing that journeymen, clothiers, weavers, tailors, and shoemakers shall not be hired forless than a quarter of a year on penalty of Imprisonment to themand the employer, the statute reciting that, once out of theirapprenticehood, they "will not commonly be retained in service bythe year, but at their liberty by the day, week or otherwise, to theintent that they will live idly, and at their pleasure flee and resortfrom place to place, whereof ensuith more incovenyencies then can beat this present expressed and declared"--an inconvenience not unknownin modern intelligence offices. All employers having more than threeapprentices shall keep at least one journeyman, and unmarried servantsin husbandry must serve by the year. 

(1550) In the 3d of Edward VI we find the first Riot Act, aimed atpersons to the number of twelve or above assembling together andproposing to alter the laws and not dispersing when so required bythe sheriff, and even persons more than two and less than twelveassembling for such purpose are subject to fine and imprisonment withtreble damages to parties injured, and if forty persons so assembleand do not disperse in three hours, they are declared felons. Thisstatute was re-enacted and made more severe in the reign of QueenMary. 

(1562) In the 5th of Elizabeth comes the last and greatest Statute ofLaborers. This statute is a consolidation of all previous laws, andit begins by recognizing the principle that the fixing of wages is amistake and all such laws are repealed so far as they relate to termsof hiring and wages. Servants in certain employments, generallyspeaking the tailoring and shoemaking trades, may still be hiredby the year, and persons unmarried, not having an income of fortyshillings a year, may be compelled to serve in their own handicraft. Such yearly servants may not be dismissed or depart during the yearexcept by cause allowed by two justices, nor at the end of a year, without a quarter's warning. Unmarried persons under thirty, nothaving any trade and not belonging to a nobleman's household, maybe compelled to labor at the request of any person using an art ormystery, and all persons between twelve and sixty not otherwiseemployed may be compelled to serve by the year in husbandry. Themasters may not dismiss, nor the servants unduly depart; nor leave thecity 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 andtwo honest householders. The hours of labor are still fixed from 5A. M. To 7 P. M. , between March and September, with two and one-halfhours for meal times, drink times, and sleep. From September to May, from dawn to sunset, and sleep times only allowed from May toAugust. A penalty of one month's imprisonment and fine is imposed onartificers and laborers leaving their work unfinished. Wages are stillto be fixed by the justices of the peace, and it is made a penaloffence to give or receive higher wages than the lawful rate, and allcontracts for higher wages are void. Unmarried women between twelveand forty may be compelled to serve in like manner, and everybodyhas to work at harvest time, that is to say, artificers as well aslaborers. The elaborate law of apprenticeship dates also from thisgreat statute, and no one can use a manual art who has not beenapprenticed to the same for seven years. One journeyman shall be keptfor each three apprentices; disputes are to be settled by the justicesof the peace, and indeed the whole labor contract is regulated ascarefully as the most statute-mad of modern labor leaders coulddesire, though hardly, perhaps, then, in the sole interest of theworkingman. If this statute was ever repealed, it was in very recenttimes. 

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

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

After a lapse of twenty-six years the Commons ventured again. Thistime the queen replied that she hoped her dutiful and loving subjectswould not take away her prerogative, which is the choicest flowerin her garden, but promised to examine all patents and abide thetouchstone of the law. Nevertheless, four years later the list ofarticles subject to monopoly was so numerous that when it was readover to the House in 1601 an indignant member exclaimed: "Is not breadamongst them? Nay, if no remedy is found for these, bread will bethere before the next Parliament. " The Populists openly cursed themonopolies and declared that the prerogatives should not be sufferedto touch the old liberties of England. Seeing that resistance was nolonger politic, Elizabeth sent a message to the House saying that someof these monopolies should be presently repealed, some superseded, andnone put in execution but such as should first have a trial accordingto law for the good of the people; and Robert Cecil, the secretary, added an assurance that all existing patents should be revoked and noothers granted for the future. The Commons waited upon the queen withan address of thanks, to which she replied almost affectionately thatnever since she had been queen "did I put my pen to any grant but uponpretence made to me that it was good and beneficial to the subjects ingeneral, though a private profit to some of my ancient servants whohad deserved well. Never thought was cherished in my heart whichtended not to my people's good. " Notwithstanding these fair words, theHouse of Commons found it necessary to enact the Great Statute againstMonopolies. 

(1623) In the beginning, the statute recites that "Your most excellentMajestie in your Royall Judgment . . . Did In the yeare . . . 1610 . . . Publish in Print to the whole Realme and to all Posteritie, that allGraunt of Monapolyes and of the benefitt of any penall Lawes, or ofpower to dispence with the Lawe . . . Are contrary to your MajestiesLawes, which your Majesties Declaracon is truly consonant andagreeable to the auncient and fundamentall Lawes of this yourRealme. . . . Nevertheles . . . Many such Graunts have bene undulieobteyned . . . For avoyding whereof and preventinge of the like in tymeto come, May it please your most excellent Majestic . . . That it may bedeclared and enacted, and be it declared and enacted by the authoritieof this present Parliament That all Monapolies and all CommissionsGraunts Licenses Charters and lettres patents heretofore made orgraunted, or hereafter to be made or graunted to any person or personsBodies Politique or Corporate whatsoever of or for the sole buyingesellinge makinge workinge or usinge of any things within this Realmeor the Dominion of Wales, or of any other Monopolies, or of PowerLibertie or Facultie to dispence with any others, or to give Licenceor Toleracon to doe use or exercise any thinge against the tenor orpurport of any Lawe or Statute . . . Are altogether contrary to the lawsof this realm and so are or shall be utterly void and in no wise to beput in use or execution. " Section 2 provides that all such monopoliesand the force and validity of them ought to be and should foreverhereafter be examined, tried, and determined by and according tothe common law; section 4, that a party aggrieved might have trebledamages, as in our modern Sherman Act. There followed provisos forexempting existing patents for twenty-one years or less for newinventions or like future patents for fourteen years or less, thecharters of the city of London, or any custom or customs of London, orany other city or town, for corporations, companies, or fellowships ofany art, trade, occupation, or mystery; that is to say, exempting theguilds, but these guilds by this time had long ceased to be societiesof actual journeymen or handicraftsmen. This great statute may fairlybe classed among the constitutional documents of England, and it leftthe great fabric of the English common law guaranteeing freedom oflabor and liberty of trade, Magna Charta itself recognizing thisprinciple, and the Statute of Westminster I forbidding forestallingand excessive toll contrary to the laws of England, as it has remaineduntil the present day--only rediscovered in the statutes of ourSouthern and Western States aimed against trusts, and reapplied byCongress, in the Sherman Act, to interstate commerce; but in neithercase added to, nor, possibly, improved. 

Two years before this great statute, the process of impeachment, notemployed for nearly two hundred years, had been revived against SirGiles Mompesson and Sir Francis Mitchell, who in the Parliament of1621 were impeached "for fraud and oppression committed as patenteesfor the exclusive manufacture of gold and silver thread, forthe inspection of inns and hostelries, and for the licensing ofale-houses. While no definite articles were presented according tomodern forms, an accusation was made by the Commons and a judgmentrendered by the Lords, condemning both to fine, imprisonment, anddegradation from the honor of knighthood. " Nevertheless, CharlesI revived the system of monopolies and raised revenue by theirapplication to almost every article of ordinary consumption as well asby enormous fines inflicted through the Star Chamber, both importantmatters leading to his dethronement. [1] Elizabeth granted monopolieson the perfectly madern pretence that a monopoly, be it made by law orby tariff, is for the benefit of the public good, though at the sametime possibly a private profit to certain individuals, friends of thesovereign. 

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

But all this early legislation of England was far better and moreadvanced than our own; for in all these questions of duties on exportsand duties on imports and monopolies, they never consider the man whohas the monopoly, the producer; but always they are avowed tobe, 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 greatEnglish code; it is certainly a comprehensive statement by statute ofa considerable portion of existing law. In our consideration oflabor and conspiracy laws we have had to include statutes of latercenturies. Now, returning to the year of the Statute of Westminster, we found, in 1275, also the Statute of Bigamy, aimed against priestswith more than one wife. It is to be noted that this was centuriesbefore the celibacy of priests became one of the doctrines of theRoman Catholic Church. It is also interesting that this early statuterefers to the pope as "the Bishop of Rome"--but only as printed since1543. 

(1279) The Statute of Mortmain, aimed at the holding of land in largequantities by religious corporations, was a true constructive statute, and the principle it establishes has grown ever since. The lawregards with jealousy the ownership of land by any corporation;the presumption is against the power, and it extends to-day to allcorporations, and particularly to alien corporations (see chapter 7);and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 andcalled the "Statute Merchant, " equally important. It provides for thespeedy recovery of debts due merchants, and is the foundation of allour modern law of pledge, sales of collateral, etc. It is distinctlyan innovation on the common law; for in those days there was no methodof collecting ordinary money debts. You could levy on a man's land, but there really seems to have been no method of recovering a debtcontracted in trade; and this is the first of many statutes adoptingforeign 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 becomesuch a considerable body of the English law as to have a nameto itself--the "Law Merchant. " This first statute provides forimprisonment for debt; "if he have no goods to be seized the debtor isto be imprisoned, but the creditor shall find him bread and water. "A foreigner coming to England to recover a debt may also recover theexpenses of his trip; and the statute is further liberal in that itdoes away with the _Droit d'Aubaine_, that narrow-minded custom bywhich the goods or personal property of any person who died passingthrough the kingdom were seized by the authorities and could not berecovered by his heirs. This mediaeval injustice continued for somecenturies in Germany and France, and we can hardly say that the notionis extinct in this country when a State like California, by her systemof public administrators, practically impounds a large proportion ofall personal property owned by non-residents at their death. Caseshave been known where it cost the executor more than one-third ofthe money to collect a mortgage, owned by a deceased citizen ofMassachusetts, in California; and for that reason, among others, Eastern lawyers have advised against investments in that State; forthe public administrators are usually petty politicians in search of ajob. The increasing burden of our State inheritance tax laws, wherebyevery State wherein a corporation exists besides the State of thedeceased seizes its percentage of the stock of such corporation in thehands of the executors, is another step in this direction. This earlyStatute Merchant, liberal in other respects, still excludes Jews fromits benefits. 

(1284) Jury trial was well established by this time, for the Statuteof Wales includes it in its code of procedure for that principality. The great Statute _De Donis_, or Westminster II, came the followingyear; most interesting to lawyers as the foundation of estates tail;but it also regulates "assizes or juries" that "rich men do not abideat home by reason of their bribes. " It also specifically requiresindictment "of twelve lawful men at least, " and gives an actionagainst sheriffs imprisoning without such warrant "as they should haveagainst any other person. " Rape, ten years before made punishable onlyby two years' imprisonment, is now made an offence punishable byloss of life or member; showing how our ancestors treated a burningquestion, at least in our Southern States, of to-day. Finally, itconfirms and explains the writ _de odio et atia_, the predecessor ofthe modern _habeas corpus_. Some writers have doubted whether thiswrit existed as a practical remedy much before the Statute of CharlesII; 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 isdeclared in Magna Charta. " This can only refer to C. 36 of John'sCharter, "the writ of inquest of life or limb to be given gratis andnot denied"; and taken in connection with the action for damages justgiven affords a fairly complete safeguard to personal liberty. It alsocontains the first game law, protecting "salmons. " "There are salmonsin Wye, " says Shakespeare, and we are reminded of it because theStatute of Winchester in the same year contains a provision that isalmost literally quoted by Dogberry in "Twelfth Night. " It providesfor the gates of great towns to be shut at sunset, and that no citizenshould bear arms, and no tavern sell drink after 9 P. M. , and then itcomes to the duties of the watch, which are described in such likemanner that Dogberry's language seems a mere paraphrase. Whoever wrotethe play certainly had read the Statutes of the Realm for the year1285, but so far as I am aware, the Baconians have not yet calledattention to this. And the same statute shows us how much betterpolice protection the England of 1285 gave than the New York orChicago of 1909; for all the people dwelling in the hundred or country(county) if they do not deliver the body of the offender, "shall beanswerable for the robberies done and also the damages. " The same yearwas a statute of "The common customs of the City of London, " amongwhich was one that "taverns should not be open after 9 P. M. For theselling of wine or ale, " a regulation for their "tenderloin, " whichitself is described in quite modern terms; "none shall walk thestreets after curfew. " Possibly the same year is the Statute ofBakers, with careful provisions against putrid meat, worthy ofconsideration by our cold-storage plants. Butchers selling unwholesomeflesh, 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; awrit specially devised to enable them to challenge the right of anymagnate who pretended to power by virtue of holding office, and thepredecessor of our modern _quo warranto_, which we still use at alltimes for that purpose, not only as against officers but to testany special privileges or charters claimed, such as the right to amonopoly, a franchise, a ferry, etc. These may be still tried by _quowarranto_; meaning, by what warrant do you claim to exercise thisoffice, this monopoly, this privilege?

About this time is another statute forbidding usury, and permittingChristian debtors to retain half of all debts they may owe to theJews, who are required to wear the mark of two cables joined on theircoats; and there is the great Statute of Westminster III, _QuiaEmptores_, affecting land tenures, still of importance to theconveyancers. In 1295 we have the famous Model Parliament; that is tosay, the first one where kings, lords, and commons were joined, thelegislative branches sitting separately and the Commons represented. Two years later Edward I, carrying on the war in Flanders, wascompelled to grant that great confirmation of the charters alreadyreferred to, that no aid or tax should be taken but by the commonconsent of the realm and for the common profit; restoring thus intothe recognized charter that important provision of the originalCharter of John; and it provides that the great charter shall be readtwice a year in every cathedral in England. In our country I am awareof no provision for reading the Constitution, though the Declarationof Independence, an obsolete document, is occasionally read upon theFourth of July. 

In 1305 the Anglo-Norman law reports begin, the Year Books. From thento now, at least, we have continuous written reports of all importantcases decided in England. This is not to say that we do not have thembefore (our people, first in the world's history, has the records ofall its cases in high courts for nigh a thousand years), but they arenow 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 theclose of his reign. The seizure of supplies by the king without duepayment; the maintenance of courts at the gates of the king's castlesin derogation of the common-law courts; the taking of "new customs, "two shillings per tun of wine, two shillings for cloth and otherimports, "_whereby the price to the people is enhanced"_; thedebasement of current coin; that petitions of the Commons toParliament were not received, etc. , etc. All duties were thensuspended, in order to know and be advised "what Profit and Advantagewill accrue to him and his People by ceasing the taking of thoseCustoms"--a precedent it were to be wished we might have theintelligence to follow to-day--surely better than a tariff commission!

Two years later came the New Ordinances, which contain a mostinteresting precedent, hitherto almost unnoted, of the Americanprinciple of having the courts construe the Constitution. Section VI:"It is Ordained, That the Great Charter be kept in all its points insuch manner, that if there be in the said Charter any point obscure ordoubtful, it shall be declared by the said Ordainours, and otherswhom they will, for that purpose, call to them, when they shall seeoccasion and season during their power. " Section XXXVIII: "That theGreat Charter . . . And the Points which are doubtful in it be explainedby the advice of the Baronage and of the Justices, and of other sagePersons of the Law. " It was ordained that the king should not go outof the realm, a precedent never violated until modern times, and evenfollowed by our own presidents, except for Roosevelt's trip to Panamaand Taft's to the borders of Mexico. Again we find "new customs"abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and otherThings, whereby the Merchants come more seldom, and bring fewer Goodsinto the Land, and the Foreign Merchants abide longer than they werewont to do, by which abiding things become more dear, " saving only tothe king his duty on wool and leather, half a mark for a sack of wooland one mark for a last of leather. "The king shall hold a Parliamentonce in the year or twice if need be, and that in a convenient place. "This principle has maintained itself in the English mind, still morein the American mind, ever since. To this day, in Massachusetts, for instance, we cannot get a constitutional amendment to have thelegislature sit only once in two years, though it would probably be avery wise reform, on account of this old inherited feeling that thereis something peculiarly free about an annual parliament, as indeedthere is. The Anglo-Norman kings called parliaments once a yearor oftener. Most of the States in this country now have theirlegislatures sit every two years. Alabama and some other States haverecently changed, that they only sit once in four years. But theconservative old States, like Massachusetts and New Jersey, have stillthe rule that the legislature sits every year; and the prejudice infavor of the annual legislature goes back at least as far as this lawof 1330, where the Commons succeeded in getting a law that Parliamentshould sit as often as once in a year, and is incorporated inEngland's and Massachusetts' Bill of Rights. 

And then we find the first statute restraining what we should now callchancery jurisdiction, complaining that the law of the land andcommon right was delayed by letters issued under the king's will, andordaining that henceforth they shall not be disturbed by said lettersand nothing done in any of the places of the court of the king orelsewhere by such letters against right or the law of the land shallavail. 

In 1313 the coming armed to Parliament is forbidden. These weretroublous times and there was little legislation in consequence, and in 1322 Edward II secured the revocation of the New Ordinancesthemselves, but as in all such cases of royal grant and withdrawalthe principles shown are even the more important historically. Ofuncertain period is the Statute of Jewrie forbidding usury to theJews, and Christians from living among them, but permitting themfreedom of trade and exempting them from taxation except to the king;and a statute of the usages and customs of the men of Kent beginningwith the statement that "all the Bodies of Kentishmen be free, as wellas the other free Bodies of England, " which dates at least as late asthe early part of the fourteenth century, but still exemplifying thenotion that a statute should only express law or custom previouslyexisting. 

(1327) The Statute of Northampton, at the beginning of the reign ofEdward III, confirms many of the earlier statutes, but abolishes allstaples beyond the sea and on this side, on the ground that theytended to monopoly, and provided that all merchants, strangers, andcitizens may go and come with their merchandises into England afterthe tenor of the great charter (cap. IX). In the next year is anotherprovision for annual parliaments, and in 1335 the Statute of Yorkagain allows merchants to buy and sell freely except only enemies, andgiving double damages for the disturbance by any one of such freedomof trade, and the Statute _de Moneta_, forbidding carrying moneyabroad; which is notable to the student of economics as showing howearly what we now call the fallacy of the mercantile system appeared. Our ancestors thought that there was something peculiarly advantageousin a tariff or system of duties which put all the money into a countryand allowed only goods to go out; and that opinion is perhaps not yetextinct. 

There always seems to have been a notion that there is somethingpeculiarly sacred about wool. So we find that in 1337 they made ita felony to carry wool out of England, or to wear cloth made out ofEngland; and no clothes made beyond the seas were to be brought intoEngland. That notion that a man ought to dress on home products liesbehind our present McKinley tariff. Then, in 1340, you will findanother statute for the liberties of merchants, that they should beallowed 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 stapletowns had been abolished just before. The "staple" was the _town_ inwhich one commodity was mainly dealt in. Every commodity in Englandhad some particular town, where the principal market was for it; justas, with us, the boot and shoe market of the United States is supposedto be in Boston, the money market in New York, beef and hogs inChicago. In England, in the Middle Ages, they really provided that acertain trade should have its home in a certain town; not necessarilythe only one, but very often in that one only. Thus there were certaintowns for the carrying on of the wool industry; you could only tradein wool in those towns. The word "staple, " from meaning the town ormarket, got applied by an easy process to the commodity dealt in; sothat when we now say that the Vermont staple is hay, we mean that thisis the main crop raised in Vermont. But the staple--like the modernstockyard or exchange--tended to monopoly and was abolished for thisreason. 

In 1340 and 1344 we find two picturesque statutes showing how theEnglish were getting jealous of the Norman kings: "The realm andpeople of England shall not be subject to the King or people ofFrance"--that is, that the customs and law of France, although theirkings were French, were not to be applied to England. Then in theroyal edict that year when King Edward assumed the title, King ofFrance, they caused him to put in a statement that no inference was tobe drawn from his assuming the flower de luces in the first quarterof his arms. The present English coat of arms is modern; instead ofhaving the Norman leopards in the upper right hand and lower lefthand, they then had the blue field and the fleurs de lys of France inthe upper, and the Norman leopards only in the lower corner; and thislasted until the time of Charles I. In that part of Normandy which nowstill 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 theway, itself is written in French) complaining that the French king istrying to destroy the English language. They were getting very jealousof anything French; the Normans had already been absorbed; modernEngland was beginning to appear. 

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

(1348) This year was the plague of the Black Death, and the followingyear is the first Statute of Laborers discussed in an earlier chapterand elaborately amended in the following year. In 1350 also we findthe Statute of Cloths, providing again for free trade in victuals, cloths, and any other manner of merchandise in all the towns and portsof England, and punishing forestalling of any merchandise with twoyears' imprisonment and forfeiture of the goods, one-half to go to theinformer. Two years later the forestalling and engrossing of Gasconywines 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 mostelaborate of the Statutes of the Staple re-established. This ordinance(1353) provides for a staple of wools, leather, wool fells, andlead in various towns in England, Wales, and Ireland. The safety ofmerchant strangers is provided for, and it is again made a felony forthe king's subjects to export wool; and more important still, allmerchants coming to the staple and matters therein "shall be ruled bythe Law-Merchant and not by the common Law of the Land nor by Usageof Cities, Boroughs or other Towns, " and any plaintiff is given theoption whether he will sue his action or quarrel before the justicesof the staple by the law thereof, or in the common-law court. Merchandise may be sold in gross or by parcels, but may not beforestalled; and the goods of strangers suffering shipwreck shall berestored to their owners on payment of salvage. Houses in staple townsmust be let at a reasonable rate, and conspiracies or combinationsagainst the law of the staple made criminal. Again our ancestorsshowed themselves more civilized than we, this time in theirCustom-house proceedings; for Article 26 of this statute provides that"whereas a Duty is payable of three pence in the pound by all merchantstrangers coming into the kingdom, they may show their letters orinvoices to prove the value of their goods, and if they have noletters, they shall be believed by their oath . . . And now of late weunderstand by the Complaint of the said Merchants that although theyhave Letters or have made oath, nevertheless after the Oath made thebailiffs of the customs do unseal their Barrels, Fardels, and Balesfor which they have taken their oath. We, not willing that Strangersthat come into our Realm be in such Manner grieved, establish thatwhen the Letters or the oath be taken their Goods shall be deliveredto them without delay and the bailiffs meddle no more of the sameGoods upon Pain of Imprisonment and pay the Party grieved quatrepleDamages. " As is well known, it is the United States custom to insistupon the oath of the importer, and notwithstanding that, rummage openhis trunks. Or are we to infer that people were more truthful in thosedays?

(1354) The export of iron is forbidden, and the justices given powerto punish them that sell iron at too dear a price, but it does notappear how the prices are to be determined; and the Statute of theStaple is again re-enacted and the provision made that duty shall bepaid only upon those goods which are actually sold in England and themerchant may re-export the balance--the first precedent of our lawsof importing under bond. It is notable that this year the Statute ofLaborers is extended to the city of London. 

(1357) The Ordinance of Herrings is a most interesting example ofearly intelligence in dealing with a modern abuse. It provides "thatno herring shall be bought or sold in the Sea, till the Fishers become into the Haven with their Herring, and that the Cable of the Shipbe drawn to the Land. " That thereupon they may sell freely, but onlybetween sunrise and sunset. "The Hundred of Herring shall be . . . Sixscore, and the Last by ten Thousand and all Merchants must sell theThousand of Herring after the Rate of the Price of the Last, and thepeople of Yarmouth shall sell the last [that is, the ten thousand redherring], bought for forty shillings for half a mark of gain and notabove; and so the people of London for one mark of gain"; and thedestruction of fish is prevented, but all caught must be sold. It iswell known that the custom was to destroy all the fish brought intoBillingsgate market above a certain quantity, which led Ruskin to cryout furiously that the real prices of the world were regulated byRascals, while the fools are bleating their folly of Supply andDemand. One may guess to-day that most of the proceedings in the portsof Boston, New York, or Gloucester would be highly criminal under thisancient law. So, in the Statute of Dogger (this ancient word meaningthe ships that carry fish for salting to Blakeney, Cromer, and otherports in the east of England), the price of dogger fish is settled atthe beginning of the day and must be sold at such price "openly, andnot by covin, or privily, " nor can fish be bought for resale, but mustbe sold within the bounds of the market. To-day there is not a quartof milk that goes into Boston that is not forestalled, nor possiblya fish that is not sold at sea or even before its capture; andthe number of middlemen is many--when, indeed, they all are notconsolidated into a trust. The destruction, directly or by coldstorage, of milk, fish, eggs, or other food in order solely tomaintain the price should to-day be a misdemeanor; and these earlydoctrines of forestalling and restraining trade should be to-day moreintelligently applied by our judges--or by the legislatures, if ourlawyers have forgotten them--for they all are "highly criminal at thecommon law. "

In the reign of Edward III appears one of many cruel ordinances forIreland. Although the Roman Church was then, of course, universal, thestatute is addressed to "the Archbishops, Bishops, Abbots, Priors andour Officers both great and small of our land of Ireland, " andrecites that "through default of good government and the neglectand carelessness of the royal officers there [this is probably trueenough] our land of Ireland and the Clergy and People thereof havebeen manifoldly disturbed and grieved; and the Marches of said Landsituate near the Enemy, laid waste by Hostile Invasions, the Marchesbeing slain and plundered and their Dwellings horribly burnt. " TheMarchers were, of course, mainly of English descent; and one notesthat the Irish are frankly termed the Enemy. As a method of meetingthis evil, the Saxon intelligence of the day could find no betterremedy than to lay it to "marriages and divers other Ties and thenursing of Infant Children among the English and the Irish, andForewarnings and Espyals made on both Sides by the Occasionsaforesaid, " and it therefore forbids such marriages to be contractedbetween English and Irish, "and other private Ties and nursing ofInfant Children. " The statute notes that these dissensions do notoccur only between the English and those of Irish blood, but as wellbetween the English of birth and the English of descent living inIreland; a condition which has, indeed, continued till to-day, Parneiland a host of famous Irishmen being of pure English descent. 

In 1360 the exportation of corn is forbidden. We now, therefore, havethat principle applied to wool, iron, and bread-stuffs--corn, ofcourse, meaning all kinds of grain. There is another statute requiringParliament to be held once a year; and, more interesting, that pleasshould be made in the English language, for "the French tongue ismuch unknown in said Realm of England, " but the judgments are to beenrolled in Latin. In 1363 another statute concerning diet and apparelfixes the price of poultry, a young capon three pence, an old one fourpence, a hen two pence, and a pullet one penny "for the great Dearththat is in many Places. " Department stores are anticipated by a clausecomplaining that the merchants called grocers do engross all mannerof merchandise "by Covin and Ordinance made betwixt them, called theFraternity and Gild of Merchants, " and anticipates the prejudiceagainst the modern department store by ordaining that merchants shalldeal in only one sort of merchandise; and furthermore handicraftsmenare allowed to "use only one Mystery, " that is, trade--which alsoanticipates a principle dear to modern trades-unions. The statute thenregulates the diet and apparel of servants. They may eat once a day offlesh or fish, but the rest of their diet must be milk or vegetarian. Their clothing may not exceed two marks in value. People of handicraftand yeomen, however, are allowed to wear clothing worth fortyshillings, but not silk, silver, nor precious stones. Squires andgentlemen of a landed estate less than one hundred pounds a year maywear clothing to the value of four marks and a half, but not gold norsilver, precious stones nor fur. Merchants having goods to the valueof five hundred pounds may dress like esquires and gentlemen to avalue of six marks. Clerks, that is to say, persons having degreesfrom colleges, may dress like knights of the same income and maywear fur in winter and lawn in summer, and clothiers make clothesaccordingly and drapers and tailors charge proportionately. This mostinteresting effort to interfere with private life stops short ofregulating the use of wine or beer; and tobacco had not yet beendiscovered. It is all the more interesting to note that it was foundso intolerable that it was repealed the following year; and littleeffort since then has been made to regulate the diet or dress orexpenditure 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" berepealed, and "It is ordained, That all People shall be as free asthey were before the said Ordinance, " and "all Merchants, as wellAliens as Denizens, may sell and buy all Manner of Merchandises, andfreely carry them out of the Realm . . . Saving the Victuallers of Fishthat fish for Herring and other Fish, and they that bring Fish withinthe Realm. " Thus, after trying the opposite, we find triumphantlyestablished in the middle of the fourteenth century the great Englishprinciple of freedom of life and trade. The legislation of this greatreign ends with the prohibition of practising lawyers from sitting inParliament and an ordinance that women might not practise law or "suein court by way of Maintenance or Reward, especially Alice Perrens, "Alice Perrers or Pierce having become unpopular as the mistress of theelderly king. Our courts have usually held that there is no common-lawprinciple forbidding women to practise law, but from this ancientstatute it would appear that such decisions are erroneous. 

(1381) In 5 Richard II is a law absolutely forbidding the sale ofsweet wines at retail. This law, with the testimony of Shakespeare, goes to show that England liked their wines dry (sack), but the act isrepealed the following year, only that sweet wines must be sold atthe same price as the wines of the Rhine and Gascony; and in the sameyear, more intelligent than we, is a statute permitting merchants toship goods in foreign ships when no English ships are to be had. In1383, according to Spence, the barons protested that they would neversuffer the kingdom to be governed by the Roman law, and the judgesprohibited it from being any longer cited in the common-law tribunals. The rest of the statutes of Richard II are taken up with the importantstatutes 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 attemptto make its legislation permanent, as has sometimes been attemptedin our State constitutions. The last section of the last law of KingRichard declares "That the King by the Assent of the said Lords andKnights [note it does not say by consent of the Commons], so assignedby the said Authority of Parliament, will and hath ordained that . . . To repeal or to attempt the repeal of any of the said Statutesis declared to be high treason, " and the man so doing shall haveexecution as a traitor. Notwithstanding, in the following year thefirst act of Henry IV repeals the whole Parliament of the 21st ofRichard II and all their statutes; that it be "wholly reversed, revoked, voided, undone, repealed, and adnulled for ever"--so we withthe States in rebellion, and so Charles II with the acts of Cromwell. 

(1400) Under Henry IV is the first secular law against heresy, makingit a capital offence. Upon conviction by the ordinary the hereticis to be delivered to the secular arm, _i. E. _, burnt. Note that thetrial, however, still remains with the ordinary, _i. E. _, the clericalcourt. Under Henry IV also we find a statute banishing all Welshmenand forbidding them to buy land or become freemen in England; andunder Henry VI the same law is applied to Irishmen, and in the nextreign to Scotchmen as well. The Irishmen complained of, however, were only those attending the University of Oxford. In 1402 we findParliament asserting its right to ratify treaties and to be consultedon wars; matters not without interest to President Roosevelt'sCongress, and in 1407 we find definite recognition of the principlethat money bills must originate in the lower house. 

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

In 1430 was the first statute imposing a property qualification uponvoters. 

In 1452 is a curious statute reciting that "Whereas in all Partsof this Realm divers People of great Power, moved with unsatiableCovetousness . . . Have sought and found new Inventions, and themcontinually do execute, to the Danger, Trouble and great abusing ofall Ladies, Gentlewomen, and having any Substance . . . Perceiving theirgreat Weakness and Simplicity, will take them by Force, or otherwisecome to them seeming to be their great Friends . . . And so by greatDissimulation . . . Get them into their Possession; also they willmany Times compell them to be married by them, contrary to their ownliking. " A writ of chancery is given to persons so constrained oftheir liberty to summon the person complained of, and if he makedefault be outlawed--an early example of "government by injunction"applied to other than labor disputes! I know no example of an Americanstatute to this effect; presumably our women are lacking in "weaknessand simplicity. "

In 1463 is another curious sumptuary law prescribing with great carethe apparel of knights, bachelors, gentlemen and their wives, makingit criminal for tailors to make cloths not according to this fashion, and for shoemakers to make boots or shoes having pikes more than twoinches long. No draper shall sell or women wear hose to the value ofmore 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 provisionagainst long pikes to shoes appears to be considered of importance, for it was re-enacted in 1464. I have searched in vain for a statuterelating to hatpins. Again in 1482 there is another long statuteconcerning apparel which seems to have been considered under the reignof Edward IV quite the most important thing in life. A more manlyclause of the statute is concerned with the benefits of archery toEngland, reciting that "In the Time of the victorious Reign . . . TheKing's Subjects have virtuously occupied and used shooting with theirBows, whereby and under the Protection of Almighty God, victoriousacts have been done in Defence of this Realm, " and the price of longbows of yew is limited to three and four pence. The statutes now beginto 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 painof forfeiture of all their goods; it is not recorded that any remainedin England. In 1491 Henry VII levied an amazingly heavy tax uponpersonal property, that is to say, two fifteenths and tenths upon all"movable goodes cattales and othre thinges usuelly to suche xvmes andxmes contributory, " with the exception of Cambridge and a few otherfavored towns. In 1495 the famous Oklahoma statute is anticipated by alaw regulating abuses in the stuffing of feather beds. 

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

(1509) The reign of Henry VIII was one of personal government; andin those days personal government resulted in a small output oflaw-making by Parliament. Indeed, after 1523, under Cardinal Wolsey, Parliament was not summoned for seven years. In 1539 the attempt to dowithout popular legislation is shown in the act already referred to, giving royal proclamations of the king and council the force of law, adefinite attempt at personal government which might have resulted inthe establishment of an administrative law fashioned by the executive, had it not been for the sturdy opposition of the people under weakerreigns. But under the reign of Henry VIII also the great right of freespeech in Parliament was established; and in 1514 the king manumittedtwo villeins with the significant words "Whereas God created allmen free, " vulgarly supposed to be original with our Declaration ofIndependence. 

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

In 1515 is another act of apparel providing, among other things, thatthe king only shall wear cloth-of-gold or purple color, or blackfur, and that no man under the degree of a knight may wear "pinchedShirts. " In this reign also comes the famous Statute of Wills, permitting the disposal of land by devise, the Statute of Usesand other matters primarily of interest to the lawyer; the firstBankruptcy Act and the first legislation recognizing the duty of thesecular law to support the poor, perfected only under Queen Elizabeth;but in the latter part of his reign there is little law-making thatneed concern us. The Statutes of Apparel continue, and the statutesfixing the price of wine, which, indeed, seems to have been the lastsubject so regulated. There is the "Bloody Statute" against heresy, and the first act against witchcraft, Tindale's translation of theBible is prohibited, and women and laborers forbidden to read the NewTestament. There is the first act for the preservation of the riverThames, and also for the cleaning of the river at Canterbury; and thefirst game law protecting wild-fowl, and a law "for the breeding ofhorses" to be over fifteen hands. The king is allowed to make bishopsand dissolve monasteries; physicians are required to be licensed. Theregrating of wools and fish is again forbidden, and finally there isan act for the true making of Pynnes; that is to say, they are to bedouble headed and the heads "soudered fast to the Shanke. "

We are now approaching the end of our task, for the legislation afterJames I, with the exception of a few great acts, such as the Statuteof Frauds and the Habeas Corpus Act, hardly concerns us as not beingpart of our inherited common law. The reigns of Elizabeth and Jamesare to us principally notable for the increase of the feeling againstmonopolies, ending in the great Statute of James I. While we stillfind restrictions upon trade in market towns or in the city ofLondon, they always appear as local restrictions and are usually soonrepealed. The prejudice against regrating, that is to say, middlemen, continues, as is shown in a Statute of Edward VI, providing that noone shall buy butter or cheese unless to sell the same only by retailin open shop. That is to say, there must be no middleman between theproducer and the retailer, and a definition of the word "retail" isgiven. In 1552, the 7th of Edward VI is a celebrated statute calledthe Assize of Fuel, applied to the city of London, notable becauseit forbids middlemen and provides that no one shall buy wood or coalexcept such as will burn or consume the same, "Forasmuche as by thegredye appetite and coveteousnes of divers persons, Fuell Coles andWoodd runethe many times throughe foure or fyve severall handes ormoe before it comethe to thandes of them that for their necessite dooburne . . . The same"--under penalty of treble value. 

In 1551 is the last elaborate act against regrators, forestallers, andengrossers, made perpetual by 13 Elizabeth, and only repealed in 1772. It recognizes all previous laws against them, but recites that theyhave not had good effect, and therefore in the first section gives aprecise definition. _Forestalling_--the buying of victuals or othermerchandise on their way to a market or port, or contracting to buythe same before they arrive at such market or city, or making anymotion for the enhancing of the price thereof, or to prevent thesupply, that is, to induce any person coming to the market, etc. , tostay away. _Regrating_ is narrowed to victuals, alive or dead, and tothe reselling them at the fair or market where they were bought orwithin four miles thereof; and _engrossing_ is given a definition verysimilar to our "buying of futures. " That is to say, it is the buyingor contracting to buy any corn growing in the fields or any othervictuals within the Realm of England with intent to sell the sameagain. The penalty for all such offences is two months' imprisonmentand forfeiture of the value of the goods, but for a third offence theperson suffers forfeiture and may be imprisoned. There is an importantrecognition of modern political economy made in the proviso thatpersons may engross corn, etc. , when it sells at or below a certainprice, not, however, forestalling it. 

In 1554 is a statute for the relief of weavers, prohibiting "theengrossing of looms, " thus anticipating one of the principal doctrinesof Lassalle. In the same year, 1st of Philip and Mary, is a statuteprohibiting countrymen from retailing goods in cities, boroughs, ormarket towns, but selling by wholesale is allowed, and they may sellif free of a corporation; and so cloth may be retailed by themaker, and the statute only applies to cloth and grocery wares, notapparently to food. 

(1562) From the reign of Elizabeth dates the great Poor Law, enactedand re-enacted in 1562, 1572, and finally in 1601, recognizing fullythe duty of the parishes to support their poor, but providing a systemof organized charity and even licensing beggars in towns too poor tosupport all their paupers. Side by side with this, however, went thesevere statutes against idlers and vagabonds recited in the lastchapter. The first game laws date from about this period, prohibitingthe snaring of birds and establishing close seasons, and also in 1584we find the first forestry law for the preservation of timber in thesouthern counties. There is no provision for seeding, but the use inthe iron works of wood for fuel is carefully regulated, and in orderto preserve the forests in Sussex, Surrey, and Kent, it is providedthat no new iron mills, furnaces, etc. , shall be erected in thosecounties, showing the relative value that our forefathers placed uponthese matters. The first incorporation of a trading company seemsalso to date from the time of Elizabeth. That is to say, the MuscovyCompany was chartered in 1564, and the Merchant Adventurers for thediscovery of new trades in 1566. In this same year is the celebratedact of Speaker Onslow, in telling Elizabeth that she is subject to thecommon law; from henceforward we are in modern times. In 1534 HenryVIII declared himself supreme head of the Church of England; fiveyears later with the dissolution of monasteries came the "BloodyStatute, " whereby he attempted to vindicate his orthodoxy. The act wasentitled "An Act abolishing diversity of opinion on certain articlesconcerning the Christian Religion, " and insisted upon the sacraments, celibacy, masses, and confessions, but in 1548 the marriage of priestswas made lawful, and in 1566 the pope forbade attendance at theEnglish Church. Thus, Roman law was expelled in the first two orthree centuries after the Conquest, the Roman Church in the sixteenthcentury, and it remained for the seventeenth to struggle with thelast serious attempt at the Roman or Continental theory of personalgovernment. 

(1602) King James at his accession asserted the divine right, and hislegislation, other than special bills for the restoration of attaintedpersons, or the confirmation of titles, is scanty, his reign beingprincipally occupied with the conflict with Parliament, which heforbade from meddling with affairs of state. In the first year of hisreign, the Statute of Laborers of Elizabeth was confirmed, as wellas that against rogues and vagabonds; the ninth act of his firstParliament was "To restraine the inordinate hauntinge and tiplinge inInnes and Alehouses, " and, indeed, much of his legislation is aimed atwhat should properly be called "sins" rather than "crimes"; the nextact after this was one to restrain "all persons from Marriage untiltheir former Wyves and former Husbandes be deade. " And next came astatute against witchcraft. In 1603 is an act to prohibit people fromeating anything but fish in Lent, entitled "An Acte to encouragethe Seamen of England to take Fishe, wherebie they may encrease tofurnishe the Navie of England. " There was an act for the relief ofskinners, and a charter given by Queen Elizabeth in the twenty-firstyear of her reign to the Eastland merchants for a monopoly of trade inthose countries; it would be interesting could these early corporationcharters and monopoly grants be printed, for they are not usuallyfound in the statutes of the realm. In 1605 stage players areforbidden from swearing on the stage. In 1606 is an elaborate act forthe regulation of the spinning, weaving, dyeing, and width of woollencloth, and the same year is an act for "repressinge the odious andloathsome synne of Drunckennes, " imposing a penalty or fine and thestocks. In 1609 an act of Edward IV is revived, forbidding the sale ofEnglish horns unwrought, that people of strange lands do come in andcarry the same over the sea and there work them, one of the lateststatutes against the export of raw material. In the last year of hisreign comes the great Statute of Monopolies noted in the last chapter, and an act extending the benefit of clergy to women convicted of smallfelonies, for which they had previously suffered death, and anotheract for the repression of drunkenness. And the last statute we shallnote, like the first, is concerned with regrating and engrossing;that is to say, it re-enacts the Statute of Edward VI prohibitingthe engrossing of butter and cheese, and prohibiting middlemen. Thusrestraint of trade and freedom of labor begin and end as the mostusual subjects of English popular law-making. 

 * * * * *

A few words upon Cromwell's legislation may be of interest; for thoughit was all repealed and left no vestige in the laws of England, it hadsome effect upon the legislation of Massachusetts, Rhode Island, andConnecticut. Under the Commonwealth there was but one legislativechamber, and over that the protector exercised far more control thanhad been ventured by the maddest Stuart or Tudor. One would supposethat a period which represented the supremacy of the common peoplewould be marked by a mass of popular legislation. Quite the contraryis the fact. In the first place, the Instrument of Government, prepared by the so-called Barebones Parliament, was supposed to be asort of constitution; as a symbol of the change from absolute personalgovernment to constitutional government under this Instrument, Cromwell exchanged his military sword for the civil common swordcarried by General Lambert, who was at the head of the deputationpraying the Lord General to accept the office of protector. It vestedthe supreme power in him, acting with the advice of the Council, withwhose consent alone he could make war, and that Council was to choosefuture protectors. The legislative power resided in a single chamber, upon which he had a veto. There was an ordinary property qualificationfor voting, and religious liberty was guaranteed, except as to thepapists. Only one Parliament, as a matter of fact, assembled underthis Instrument of Government, and the very first legislative functionit endeavored to exercise seemed to offend Cromwell, who promptlydissolved it with a file of soldiers. That was the end ofconstitutional government under the protector. The laws of the RumpParliament, and the Barebones Parliament, are entirely omitted fromthe official Statutes of England, and only to be found in a ratherrare volume. They mostly concern military affairs. The real reforms ofgovernment, 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 businesscorporation, an almost accidental event, which has affected the worldof trade and affairs more than the invention of printing, of thebill of exchange, and the Law Merchant combined. It would have beenperfectly possible for the world to get on and do business withoutthe modern corporation--without the invention of a fictitious personclothed with the enormously powerful attributes of immortalityand irresponsibility. That is to say, men can act together or inpartnership, but they are mortal, and at their death their personalpowers end. The corporation may be immortal, and its powers, as wellas its acquisitions, increase forever. Men are liable with all theirestates for their contracts and obligations. Men in corporations areonly liable to the amount of their aliquot share of stock, or oftennot at all. Corporations may dissolve, and be reborn, divide, andreunite, swallow up other corporations or often other persons. Individuals cannot do so except by the easily broken bond ofco-partnership. 

Trading corporations for profit were _practically_ unknown to theRomans, or even to Continental countries--scholastic precedentsand the Venetian _commendam_ to the contrary notwithstanding. Theydeveloped in England first out of the guild or out of the monastery;but the religious corporation, although regarded with great jealousyin the Statutes against Mortmain, which show that from the earliesttimes our ancestors feared the attribute of immortality thatcharacterizes the corporation, have never had the principle oflimited, or no, personal liability. That, indeed, is said to have beeninvented by the State of Connecticut (see below, chapter 10). Theywere, however, often clothed with monopoly. In 1643 we find theFellowship of Merchant Adventurers of England, a business corporation, with power to levy money on the members, and exclusive powers to tradein its own products, which seem to have been clothing and woollenmanufactures. We have already mentioned the earlier charter to theEastland merchants. Mr. James Bryce has pointed out to me that theobjection of monopoly would not have been felt so much to apply to acorporation chartered only for purposes of trade out of England. Itwould seem, therefore, that the invention and growth of the secularcorporation was an accident of the legislation of Queen Elizabeth'stime; and arose rather from this desire to get a monopoly, than fromany conscious copying of the trade guilds, still less the religiouscorporations of earlier dates; for the trade guilds were nothing buta more or less voluntary association of men bound together in a veryindefinite bond, hardly more of a permanent effective body than anychanging group of men, such as a political party is, from year toyear; the only bond between them being that they happen at someparticular time to exercise a certain claim at a certain place; andeven the trade guilds, as we know, had somewhat the course of a moderncorporation. They became overgrown, aristocratic, swollen in fortune, and monopolistic in tendency. To some extent in the English cities andtowns, and still more in France, they became tyrannous. And in theprevious reign of Henry VIII all religious corporations had beendissolved. 

Not much, perhaps, remained for Cromwell's Parliament to do. Theabuses of law-making, of the Star Chamber, and other non-common-lawcourts, of personal government, had been swept away under Charles I. In 1644 the Book of Common Prayer was abolished. In 1646 the bishopswere abolished, in 1648 the king and the House of Peers, and in 1649the king was beheaded. Cromwell's Parliament was more interestedin the raising of money and the dividing up royal lands than inconstructive legislation. They did find time to forbid the plantingof tobacco in England, and to pass an act furthering the religion ofJesus Christ in New England; also a society for the foundation of thegospel in New England, with power to raise money or make collectionsfor that purpose, provided always, they did not carry any gold, silver, plate, or money outside of England. An act claiming that "theIndians are renouncing their heathen sorceries and betaking themselvesto English schools and universities, " possibly refers to one Indiangraduate of Harvard, Caleb Cheeshahteaumuck, of the class of 1665. There are statutes concerning the impressing of seamen; a bankruptcyact, a statute authorizing secular marriage without a priest or churchceremony, and the act for preferring veterans in the Spanish War incivil service, a statute which gives a respectable antiquity to ourlaws making a privileged class of veterans or the descendants ofveterans of the Civil and Spanish Wars. Under Cromwell they couldexercise any trade without apprenticeship; a recent South Carolinianstatute providing that Confederate veterans could exercise any tradewithout paying the usual license tax was held unconstitutional by theSupreme Court of South Carolina itself. 

VI

AMERICAN LEGISLATION IN GENERAL

Before approaching the actual field of American legislation, it may bewise to make a few general statements concerning it. It was some fiftyyears after the adoption of the Federal Constitution before it beganin great bulk, but to-day we find in the States alone forty-sixlegislative bodies, and two of Territories, besides the FederalCongress and the limited legislatures of our insular possessions. Nearly all of these turn out laws every year; even when thelegislatures meet biennially, they frequently have an annual session. Only in one or two Southern States have recent constitutionsrestricted them to once in four years. It would be a fair estimatethat they average five hundred statutes a year, which would make, roughly speaking, twenty-five thousand annual laws. It has been welldoubted by students of modern democracy, by Lecky and Carlyle, if thisimmense mass of legislation is a benefit at all. Carlyle, indeed, isrecorded to have taken Emerson down to the House of Commons and showedhim that legislative body in full function, only taking him away whenhe was sufficiently exhausted, with the query whether Emerson, thougha Unitarian, did not now believe in a personal devil. Administrativelaw-making for the machinery of government there must always be, butfor the rest, if we rely on the common law and its natural developmentalone, our condition will be far less hopeless than most of us mightimagine. Indeed, as we shall so often find, it is the very ease andfrequency of legislation that has caused our courts and law-makersto forego the well-tried doctrines of the common law. Many of ourstatutes but re-enact it; when they go beyond it, it is frequently toblunder. Moreover, it is a commonplace that no law is successful thatdoes not fairly express the thought and customs, the conditions, ofthe mass of the people. Professor Jenks of Oxford applies to all otherlegislation the term "fancy legislation, " or, as we might say, freaklegislation--the caprices and desires of the present legislature ortheir constituents, carried immediately into law; and we may say atthe outset that such legislation has rarely proved wise, andhardly ever effective. It is needless to state that many modernstatutes--like prohibition laws, for instance--are passed for thatvery reason. Yet whatever the fact may have been in the past, there isno doubt that for the future, legislation by the people, constructivelaw-making at the popular behest, is the great new fact ofAnglo-American civilization. There has just been brought out animmense index, under the auspices of the British Government, called"The Legislation of the Empire, being a Survey of the LegislativeEnactments of the British Dominions, from 1897 to 1907. " Thiswork fills four huge volumes, and gives but the briefest possibleindex-headings of the statutes of the British Empire for that period. Our excellent "Index of Legislation, " published by the New York StateLibrary, contains about six hundred pages, and even this is hardlymore than an index, as the title suggests. 

Now, this tremendous increase in legislative output, most notable inthe States of the United States, did not begin with us at once. Forsome forty or fifty years after the Revolution our State legislaturesmade as little constructive legislation as did the Parliament ofGeorge III. It was with the end of the first quarter of the nineteenthcentury that the great increase began. It seems to have takendemocratic legislatures some fifty years to become conscious that theyhad this new unlimited power, and not only that they possessed it butwere expected to exercise it; the power of making absolutely new laws, statutes which did not exist before as law, either by the common lawor by the custom of the people. It is true, our ancestors had sometaste of radical legislation during the Revolution, and the checks ofthe State constitutions were adopted for that reason; but subject onlyto this limitation, it was the first modern experiment in popularlegislation. The great wave of radical law-making that began with themoral movements--the prohibition movement, the anti-slavery movement, and the women's rights movement--of the second quarter of thenineteenth century, lasted down until the Civil War. After thatthere was a conservative reaction, followed by a new radical wave inreconstruction times, which ended with another conservative reactionat the time of the first election of President Cleveland. Since then, new moral or social movements, mainly those concerned with the desireto benefit labor and repress the trusts, with the desire to protectwomen and children, seem to have brought up a new radical wave, theprogress of which has hardly ended yet. Before the Civil War, thewomen's rights movement and the anti-slavery movement always workedtogether. They were in great part composed of the same persons. Infact, the historical origin of the women's suffrage movement was alarge abolition meeting held in England, but attended by many womendelegates from America, where they excluded a leading American womanabolitionist and would only allow her husband to take her seat in herplace. We shall, of course, consider this precise question later, andpause now merely to note the fact that with the anti-slavery movement, ending with the adoption of the war amendments and the women'ssuffrage movement, ceasing to progress soon after, there came theperiod of conservative reaction, or, at least, of quiescence, whichlasted down to the recent labor and social movements that have causedour increasing mass of constructive legislation in the last few years. It is true that some of the far Western Territories adopted women'ssuffrage soon after being made States, or at the time they wereadmitted; but no other State, even of those surrounding them, hasfollowed their example, though the people have repeatedly voted on thepoint. Whatever progress the cause may have made in England, or in thelarger cities of the East, I think that no unprejudiced observer wouldsay that it looks so near to accomplishment as it did in the twentyyears preceding the Civil War. Then, also, there was during the samedecades a great increase in personal property; that is to say, incorporate stocks and bonds, the kind of property most easily attackedby legislation; but the very possession of such securities by largenumbers of the people tended to make them more conservative inordinary property matters. It is in the times when you have butfarmers on the one side, as in the Shay Rebellion in Massachusettsafter the Revolution, or when the proletariat on the one side isopposed to the bourgeoisie on the other, as in certain Continentalcountries, that you find radical legislation. We were fortunate inthat a large number of our citizens were thus arrayed on both sides ofthe question. Property rights, of course, have been granted to womenmost completely throughout the Union, but in twenty years they havemade little progress toward the vote. 

Blackstone says that democracy is peculiarly fitted to the making oflaws, and calls attention to the importance of legislation, with theregret that there should be no other state of life, arts, or science, in which no preliminary instruction is looked upon as requisite; butby "democracy" Blackstone really meant representative government, which still acts quite differently from the referendum and theinitiative. Democracies, he says, are usually the best calculated todirect the end of a law. But in no sense, says Professor Jenks, wasthe British Parliament the result of a democracy; while our Statelegislatures during the Revolution were, indeed, democratic, andpractically omnipotent, and for that very reason were promptly curbedby the State constitutions, which were adopted even before theFederal. And of late the distrust of our legislatures is shown by themost exaggerated list of restrictions we find placed upon them in thenewer constitutions of the Southern and Western States. Another thingBlackstone oddly says, is that in legislation by the people they willshow great caution in making new laws that may interfere with theirrights and liberties. Precisely the contrary is experienced. Nobody isso willing to interfere with the rights or liberties of the peopleas the people themselves, or their supposed representatives in thelegislature; and a body or faction of the people is far more ready andreckless to impose its will upon the others than have been the mostmasterful English monarchs. 

The recklessness of legislatures has two or three most evilconsequences. They pass foolish or unconstitutional laws, relying onthe governor to veto them, or the courts to declare them void--whichhas the effect of shirking their responsibility and imposing unjustand obnoxious duties on the other branches of government, to whichthey do not fairly belong; increases the growing disrespect forall law, and deteriorates the moral and intellectual fibre of thelegislature itself. Finally, also, it provokes that hypertrophicmodern State constitution of the South and West, which tries to binddown future legislatures in infinite particulars, thereby againdiminishing their importance and responsibility, making it moredifficult to get able men to serve in them, and, by the frequentnecessary amendment of State constitutions, resulting in a continualreferendum, which nearly does away with representative governmentitself. 

Moreover, when a law is unconstitutional it should ever be onlybecause it violates some great natural right of humanity, personalliberty, property, or the right to common law. When constitutions gointo details which are not substantially connected with these cardinalrights, they bring themselves into contempt, and justify the growingprejudice of our labor leaders against them. The people shouldbelieve, as I think they do believe under the Federal Constitution andunder 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 thepeople as expressed in their permanent constitution, it is not on atechnicality, but because some great liberty right is infringed by it. Yet it is a curious thing that whereas our people only got the powerto legislate by democratic assemblies freely and completely from theyear 1776, in hardly more than a hundred years after their consciouspossession of that power we find a respectably strong popular movementattempting to reverse it, or, at least, to limit its field. Most ofour advocates of direct legislation by the people assume that a greatmass of law-making would result in practice; probably the contraryis true; the referendum would destroy more than the initiative wouldcreate. They would go back to a condition of things which, in theoryat least, existed in the England of the early Saxon times; although, of course, in those days only the freemen, and no women, had thelaw-making vote. Anyhow, it is curious that that representativegovernment upon which we have been priding ourselves as the one greatAnglo-Saxon political invention should be precisely the thing that weare now urged to give up. In the _Federalist_ there is much discussionas to whether it is possible to have so big a democracy as the UnitedStates, and the answer made by Hamilton was; "Yes, because we shallhave representative government. " But detailed discussion of theinitiative we must leave for a later chapter. 

Perhaps we begin to detect the prejudice in the general mind, which isnotable in the works of a few earlier theorists, to prefer statute lawto what is known as judge-made law, on that ground alone. The writeris not of the school that admits there is such a thing as judge-madelaw, but believes the phrase to be a misnomer, at least in ninety-ninecases out of a hundred. The whole theory of the English law is thatit exists in and by the people and is known of them before it isannounced by a judge, and although the extreme of this theory besomewhat metaphysical, it is certainly true that a judge is a very badjudge who does not decide a point of law apparently new or doubtfulaccording to the entire body of English-American precedent, experience, rather than by his own way of looking at things. If judgesreally made new law, particularly if they made it consciously, itwould be more than "aristocratic"--it would be simply tyrannical, and, of course, be unconstitutional as well as being an interference withthe legislative branch of government. But it is doubtless this theory, that it is the statute law that is the democratic kind, which hasgiven form and body to the vast mass of statutes we are here toconsider. Certain of our legislators seem to be horrified when a courtapplies a precedent a hundred years old, still more when it is athousand years old, although to the jurist, in most cases at least, ifnever since questioned and never grown obsolete, it is entitled to allthe more respect for that reason. Both the labor interests andthe "special interests" resent excessively the recent tendency ofintelligent judges to look at precedent and history. Mr. Debs willtell 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 ofmediocre intelligence on a new subject (or an old one) which they havenever studied. It is true that if they make a mistake they can amendit 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, theNational Congress, and the Federal District, it is difficult to decidehow to divide the subject so as to make it manageable. The divisionmade by State codes and revisions, and the United States RevisedStatutes, hardly suits our purpose, for it is made rather for lawyersthan sociologists or students in comparative legislation. The divisionmade by the valuable "Year Book of Legislation, " published by the NewYork State Library, comprises some twenty subjects: ConstitutionalLaw; Organic Law; Citizenship and Civil Rights; Elections; CriminalLaw; Civil Law; Property and Contracts; Torts; Family; Corporations;Combinations and Monopolies; Procedure; Finance; Public Order; Healthand Safety; Land and Waters; Transportation; Commerce and Industry;Banking; Insurance; Navigation and Waterways; Agriculture; Game andFish; 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 logicalmanner. The same criticism may be applied to a somewhat simplerdivision I have used in tabulating State legislation for the lasttwenty years into thirteen columns, the titles of these being, roughlyspeaking, Property and Taxation; Regulation of Trades and CommercialLaw; Personal Liberty and Civil Rights; Labor; Criminal Law, Healthand Morality; Government; Elections and Voting; Courts and Procedure;Militia and Military Law; Women, Children, Marriage and Divorce;Charities, Education, Religion and Jails; Agriculture, Mining andForestry; Corporations, Trusts and Interstate Commerce. Is it notpossible 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 recognizingpersonal liberty and private property, and allowing all possiblefreedom of action and contract relating thereto; with a courtadministration for the purpose of protecting such liberty andenforcing such contracts in the courts. The usual rough division ofour constitutional rights, following the phraseology of the FourteenthAmendment, is that of life, liberty, and property; but the rights tolife and liberty obviously belong to the same broad field. Our firstdivision, therefore, may well be that which divides life and libertyrights from property rights; although in some cases, notably in theearnings of labor, they would be found to run together. Liberty rightsare multifarious and indefinite; we may, therefore, first take thefield of property as presenting, after all, a more simple subject. Considering all possible organizations of human society from thispoint of view, we shall find that all may be expressed, all at leastthat have hitherto been conceived, under the systems of anarchism, individualism, and socialism, these words expressing all possiblestates of human society when expressed in terms of individual liberty, that is to say, the free exercise of the individual will. Eitherone of these may exist either with or without the notion of privateproperty; though, of course, one's action as to property would becontrolled under a system of socialism, and property itself would haveno legal protection under a system of anarchism. Nevertheless, thenotion of property might still exist and be recognized by the customof mankind without any sanction or enforcement from the entirecommunity, _i. E. _, what people call the state. When we are speaking interms of property, we use the word _communism_--meaning that state ofsociety where the conception of property exists, but the law or customwill not recognize individualism. Communism, therefore, usuallyimplies ownership by the entire community, while in anarchism there isno property at all. There has been much confusion in the use of theseterms in the popular mind, and even in ordinary writing. Many peoplehave 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 shouldbe used in entirely different connections--communism when we arespeaking in terms of property, socialism when we are speaking interms of individual liberty. The word _individualism_ was used bythe present writer in a series of articles entitled "The Ethicsof Democracy, " beginning in 1887, as the most convenient termfor describing that state of society where the greatest possibleindividual liberty is conjoined with a strong recognition of the rightof private property, substantially the _laissez faire_ school asit existed in England in the first half of the last century; "thedistinction between communistic and socialistic laws being, that theformer are concerned solely with the taking or redistribution of moneyor 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, inthose of our States which have no common law, of statute. Juristsand communists are alike agreed on this. "Property is robbery, " saidProudhon; property is but the creature of law, all English juristsadmit. It is, of course, possible to conceive of a social system whichrecognizes no right of property, or one which makes all propertybelong to the community, or a middle ground which admits theinstitution, but holds that every individual holds property subjectto the state's, that is, the organized community's, regulation andcontrol. 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 isregulated. In England they call it "gas-and-water socialism"; but thisterm, 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 inby leading modern German and American socialists, which we will callnationalism--the nationalization or municipalization of productiveindustry--the science of this doctrine being that private property mayexist in all personal belongings, articles of pleasure, or domesticnecessity, but not in lands, mines, works, or other instrumentalitiesused for the further production of wealth. 

Whatever the future may bring, we must start with the institution ofprivate property recognized to its fullest extent. It is expresslyguaranteed in our Federal Constitution, as for the matter of that itwas also in Magna Charta, as clearly as the right to liberty, andusually in the very same clause. Not only that, but when we adoptedour first State constitutions, from 1776 to 1788, and the FederalConstitution in 1789, every one of them made express guarantee of thisright. One or two, following the lead of Massachusetts and Virginia, recognized equality also, or, at least, equality by birth and beforethe law; but without exception property was expressly recognized asone of two leading constitutional rights, and even in some States, like Virginia, it was termed a natural right. The same thing istrue of the Massachusetts Bill of Rights and in the Federal FifthAmendment, though it is significant that the Declaration ofIndependence omits the word _property_, and only mentions amongunalienable rights, life, liberty, and the pursuit of happiness--whichsome courts have held to include private property. [1] Nevertheless, under our constitutions to-day, the right is not only doubly, but eventriply, guaranteed; that is to say, by all State constitutions againstState action; by the Federal Constitution against national action;and finally, by the Federal government in the Fourteenth Amendmentas against State action also. This is the reason why, in any caseaffecting a cardinal liberty or property right, a litigant maycarry his case not only through the State courts, which have solejurisdiction of ordinary business and domestic matters, but to thecourts 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 whicheven government cannot forbid nor destroy. That, except in punishmentfor crime, no man's property can be taken without just compensation, and he closes: "Instead of saying that all private property is held atthe mercy of the public, it is a higher truth that all rights of thestate in the property of the individual are at the expense of thepeople. "]

When we come to legislation on the subject, or to modern Stateconstitutions, there is hardly a change in this particular. Naturally, we find no new legislation confirming the right of propertyabstractly, or restating that that institution is part of ourcivilization. There is but one significant exception to thisstatement. While most of the States in their constitutions declarethat men have a natural right to acquire, possess, and protectproperty, and Kentucky and Arkansas go to the length of saying thatthe right of property is "before and higher than any constitutionalsanction"--which latter statement is a legal hyperbole--Oklahoma inits recent constitution, North Carolina, and Missouri state only thatmen have a natural right to the enjoyment of the fruits of their ownlabor; on the other hand there are recent intimations coming fromFederal sources that individualism or private property rights, atleast, and not anarchism or socialism, are part of our constitutionalsystem. Before 1907 a Texas district judge refused to naturalize animmigrant on the ground that he was a socialist and that socialism wasinconsistent with the Federal Constitution; and in that year Congresspassed an act to regulate all immigration of aliens, which excludes, among other classes, persons who believe in or advocate the overthrowby force or violence of the government of the United States or of allgovernment, or of all forms of law--a definition which would excludeanarchists, but not socialists; and in the case of South Carolina _v_. United States (199 U. S. 437), the Supreme Court of the United Statesgave serious consideration to the question whether State socialism wascompatible with a republican form of government. This is all, so faras I am aware, that a century and a half of legislation has given usaffirming the abstract right of property, though there are severalconstructive statutes and constitutional provisions applied to thegeneral right to trade or labor, which we shall consider when we cometo that subject. 

When a right is expressly guaranteed by the Constitution, we needordinarily have no affirmative legislation about it. Liberty andproperty being always guaranteed by the State constitutions, it hasnot been necessary for the States to legislate to protect them. 

Our study of this subject, therefore, will be confined to therestrictive or limiting legislation affecting private property orproperty rights, and of this we shall find plenty. Now there are four, and only four, methods by which the state, that is to say, Americansociety as organized into governments, interferes with the right toproperty or the enjoyment and use thereof; that is to say, taxation, which is, of course, general; eminent domain, a peculiarly Americandoctrine; the police power; and the regulation of rates and charges. Some authorities place the last under the police power; but It doesnot seem to me that it historically, if logically, belongs there. 

Starting with the simplest first--eminent domain, an American doctrinewhich, in its simplest form, subjects the land of any one to the needof the state or, in cases authorized by the Federal Constitution, of the nation. It is questionable whether it applies to personalproperty. It is an American doctrine, for in England where the kingremained in theory the feudal over-lord, it was not necessary for himor the sovereign Parliament, wishing to take or control land, andhaving no constitution protecting property rights against such action, to invent any new doctrine; but with us all land is allodial. The oldcharters of the original States creating tenures in free and commonsocage are, of course, obsolete. Everybody is a freeholder, and theStates are not, still less the Federal government, a feudal over-lord. Nevertheless, the property of every one must be subject to the supremecommon necessity; and the right is absolute in the States, althoughlimited in the national government by the Federal Constitution. Itis an American constitutional principle; and this principle alsoprovides, as does Magna Charta and the early charters of England as to_personal_ property seized by royal purveyors, that full damages mustbe paid; and to this general principle our constitutions have addedthat the damages must be paid at the time of the taking and the amountbe determined by due process of law; that is to say, in most casesby a jury. Blackstone says: "So great is the regard of the law forprivate property that it will not authorize the least violation of it;no, not even for the general good of the whole community";[1] a newroad, for instance, cannot be made without consent of the owner of theland, and the words "eminent domain" do not appear in the text of hisbook. But though we hold the contrary doctrine, the rights of theproperty owner are sufficiently protected when the taking is directedby 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 forpublic-service corporations, or often other private corporations, andassociations of persons, who are permitted by legislation to take landunder eminent domain, or, what is often worse, to acquire easementsover it. Most of the States give damages for land not actually taken, but damaged, though our Federal courts have not held this to benecessary under the Fourteenth Amendment; but although land can still, in theory, only be taken for a public use, the number of uses whichour legislation makes public Is being enormously increased. The usualnational purposes are forts, magazines, arsenals, dockyards, and otherneedful buildings. Independent of some express permission in theConstitution, the Federal government has no power to take, or even toown, land at all within the State limits. Therefore, it is questionedwhether land may be taken for national parks or forest reservationsexcept in the Territories, where title still remains with the Federalgovernment. But the State's power of eminent domain is unlimited, although it began only with the towns or counties taking roads forhighways, and cities and towns appropriating lands for schools andother public buildings. Probably the only serious addition of awholly public use is covered by the general expression, parks andplaygrounds; but the analogy of the highway led to the taking of landunder eminent domain for railroads, when they were first invented, then for street railways, then for telegraph, telephone, andelectric-light lines, underground pipe-lines or conduits of all sorts, and finally, for drains, sewerage districts, public, and often privateirrigation purposes. Most of the more complex State constitutionsdefine at great length to the extent of some twenty or thirtyparagraphs just what purposes shall be considered a public use undereminent domain. In the absence of such definition, or without suchdefinition, the number of such uses is being enormously increased bystatute. Thus, reservoirs, storage basins, irrigation canals, ditches, flumes, and pipes for water drainage, or mining purposes, workingmines, as dumps, hoists, shafts, tunnels, are made a public use by theconstitutions of the arid States, Idaho and Wyoming. So as to wateronly in Montana, but in Idaho also to any other use "necessary for thecomplete development of the material resources of the State or thepreservation of the health of its inhabitants. "[2] And even by privateparties, land may be taken for ways of necessity in many States, andfor drains, flumes, and aqueducts by the constitutions of the aridStates. 

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

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

At common law, of course, a man or a set of men, who happen to beneighbors, would have had no right to take my land for a private way, or for drainage or irrigation purposes, however beneficial to theirland; still less to take water from my stream across my land to theirfields. But this precise thing can be done in an increasing number ofStates, although it has been held unconstitutional in the courtsof one or two of the far Western States, and has even yet not beendecided by the Supreme Court of the United States as to the powers ofthe Federal government. Under the broad definition given in Idahoand Wyoming, you can probably take land to establish a municipalcoal-yard, or dispensary, or anything else that the legislature mightsuppose to be for the general health or benefit of the people. Yeta hotel company would not, as yet, be considered a public use, nor, probably, a private recreation park. And land taken for one use may besubjected to other and totally distinct uses without giving any newright of damages, as was decided in Massachusetts, at least, when landgiven or taken for an ordinary city street was afterward occupied by asteam 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 theconsent of a majority of the property owners or abutters. There isfrequent legislation providing that the betterment taxes collected incase of public improvement shall not exceed the damages given for theproperty actually taken. In the last two or three years there has beenan extension of the doctrine, authorizing cities and towns to takemore land than is actually needed, for the purpose of convenience, orin order to get a better bargain, and then sell the surplus; but suchlaws may be unconstitutional. 

Land may, of course, be taken for all municipal purposes, includingpublic squares or parks, playgrounds, reformatories and penalinstitutions, levees, ditches, drains, and for cemeteries; and theright is being granted to private companies other than those abovementioned, in Colorado, to tunnel, transportation, electric power, andaërial tramway companies; in North Carolina to flume companies; inmany States for private irrigation districts; in the West generally tomining or quarrying companies; in West Virginia and other States toelectric power, light, or gas companies; while in North Carolina, Washington, and Wisconsin, we find the dangerous grant of this greatpower to electric-power companies, which are, in Wisconsin at least, expressly permitted to flood lands by right of eminent domain in orderto form ponds for power purposes. It is easy to see that under suchlegislation everybody holds his land not only subject to public need, but to the greed of any designing neighbor. Perhaps the most importantquestion of eminent domain is or was whether it authorizedgeneral schemes of internal improvement made by the State or by amunicipality, or, worse still, by a private corporation chartered forthe purpose. The Constitution of Michigan, with those of the Dakotasand Wyoming, provides that the State cannot be interested in works ofinternal improvement, nor, in North Dakota and Wyoming, engage in themexcept on two-thirds vote of the people; nor, in Alabama, may itloan 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 suchworks. But the Tennessee Constitution declares that a well-regulatedsystem of internal improvement should be encouraged by thelegislature. So, in Virginia, no town or county may become a party toany work of internal improvement except roads, and they are frequentlyforbidden 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 limitationupon property rights, though it is important to remember that untilthe present budget there has not in modern times been an attempt atdirect taxation of the capital value of land in England; Cobbettrecords many "aids" of a few shillings per hide of land inAnglo-Norman times. The earliest taxation was the feudal aids imposedpurely for defensive purposes, for building forts and bridges; laterfor foreign wars or crusades. We have traced the origin of thescutage tax as a substitute for military service and the two greatconstitutional principles that all taxation must be with the commonconsent of the realm; that is to say, of Parliament, later of theHouse of Commons; and must also and equally be for the common benefit. Theorists have argued, particularly with us, that under the latterprinciple protective tariffs are unconstitutional; but even if it beadmitted that they are not for the benefit of the whole people, theexception is as old as the rule; protective tariff laws, and, earlierstill, laws absolutely prohibitive of importation, being plentifulon the English statute-books before and at the time this earliestof constitutional principles appeared. There is a step beyond theprotective tariffs, however, which is naturally mentioned in thisconnection, and that is the bounty--sums of money paid to certaininterests and derived from the general taxes fund. Under the Acts ofCongress there has been, I think, only one instance of a bounty; thatis in the case of the Louisiana sugar-growers. In State legislation ithas been a little more usual. Foreign countries, notably Germany andFrance, as to beet sugar, etc. , have been in the habit of givingbounties. This precedent undoubtedly suggested it; but these countriesdo not enjoy our constitutional principles. There has hardly been adirect decision on the constitutionality of the Federal bounty, but asto State bounties we find several, with an increasing tendency to holdvoid such laws. There can be no question that they are utterly againstour whole constitutional system. The Supreme Court, when consideringsugar-bounty laws, seems to have thought that it might be sustainedas a compensation made for a moral obligation, the Louisiana plantershaving been led into industries from which the protection was suddenlyremoved; of such nature must be the justification, if any, forbounties given in times of flood, fire, or public disaster, which, however, are really sustained only in the absence of objection and onthe principle _lex non curat de minimis. _ The most insidious form ofthe bounty, however, is that of exemption from taxation, or, stillworse, granting subsidies or subscribing to the stock and bonds ofpublic-service, or even ordinary private, corporations. Undoubtedlythe exception has been established in the case of railroads. Thegranting of State, city, or county aid to railroads has existed almostfrom their invention, probably on the analogy of highways; at allevents, it is too late to be constitutionally questioned now. Theexemption from taxation of private profitable enterprises, such asmills or factories, is less defensible. Frequently, however, they gowithout 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 taxexemptions to Portland-cement works. Ramie fibre continued a favoritesubject of bounty for some years, with seed distributions to farmers, which were in some States held unconstitutional. In 1896 Utah gave abounty on canaigre leather and silk culture. There was an exemptionon salt plants in Michigan, but beet sugar continued the favoritebeneficiary. There has been a reaction against bounty legislation ofrecent years. In 1908, for instance, New York repealed its bountyon beet sugar, and it may be hoped, with greater intelligenceof constitutional principles, that all such legislation will beabandoned. 

Coming to matters of ordinary taxation, of course the first thing tonote is its extraordinary extent. In direct taxation it is notan unfair estimate to say that the States and their municipalorganizations undertake to impose an annual assessment on realand personal property which would average at least two per cent. Throughout the country; amounting to from one-third to one-half of theincome derived therefrom. In indirect taxation, duties, and revenuetaxes, a sum far greater is taken from the average household. Onemight very much wish that the individual householder might at leastknow how large a sum is thus taken from his earnings annually, for itis safe to say that in no civilized country, not even in the Francebefore the Revolution, was individual taxation anything like so heavy. Therefore, we are beginning to find legislation, even constitutionalprovisions, carefully limiting the tax rate. The amount of the Statetax is thus limited in probably half the States, mostly Southern orWestern, and nearly all of them limit also the amount of taxation tobe imposed by the counties, cities, towns, school districts, or forother special purposes. In the North-eastern States such limitationis not usual, though in Massachusetts and New York it exists as tocertain cities. It may properly be said of such legislation that itdoes not appear to be so futile as one might have expected. Thereis, of course, a tendency to raise the limit, involving frequentconstitutional amendment, or, in Massachusetts, for instance, where the limitation is put on only by statutes, by later statutesauthorizing the borrowing outside of the debt limit; for it should besaid that such limitations do usually apply both to the appropriationsand to the funded indebtedness incurred. Still I have not observedin the last twenty years any repeal of such laws or constitutionalprovisions, but rather an increasing number of States adopting them, from which it may be inferred that they work satisfactorily. Nearlyall the States purport to tax the capital value of both real andpersonal property, not, as in England, rents or incomes; and they tax"tangibles" and also "intangibles. " That is to say, they undertake totax stocks or bonds or mortgage debts; the evidence of property, aswell as the property itself; and the debt as well as the propertysecuring It. Some States, such as Pennsylvania, impose a smaller, morenominal, tax upon stocks and bonds in the hands of the owner, forthe sake of getting a larger return, but in many States, such asMassachusetts, this legislation would be unconstitutional, as notproportional taxation. 

There is a mass of legislation every year directed to theassessing and collecting of taxes, tending more and more to becomeinquisitorial, requiring the tax payer under oath to furnish fullschedules of his property, with provision for an arbitrary assessmentif he fails to do so. One effect of this has been to drive verywealthy men from Ohio or other Western States to a legal residence inthe East, where the laws are more lenient, or their enforcement morelax. The problem is a most important one and I see no signs yet of anysolution in the increasing mass of legislation one finds upon thissubject every year. It is to be noted--what our socialist friends havenever seemed to observe--that just in so far as a man's earnings orincome are taken from him in the form of taxation, you are already ina state of socialism. That is to say, to that extent is his incometaken from him and administered by the state. This is an observationmost unwelcome to the opponents of capitalism, so-called, who resentthe conclusion that if the State and Federal governments are alreadytaking forty per cent. Of his income from him, a state of perfectsocialism could do no more than take the other sixty per cent. Thiswhole problem of taxation, indeed, is evaded at present only by themiserable solution of fraud; hardly any one, except the non-propertiedclasses, paying what the law purports to take from them; and thenon-propertied classes only pay it because their taxation, beingindirect, 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 ofincome taxation (except upon earnings and profits) belongs here onlyto the States; just as the sole power of imposing duties on imports isgiven to the Federal government. Many of the States impose an incometax, but I observe no particular increase in that kind of taxation inthe legislation of the last twenty years. A man's income is commonlytaxed with his other property. It is a form of tax far more evadedhere than in England, probably because the English law provides amachinery for collecting a large part of income taxation from thepersons from whom the income is derived, as, for instance, from thetenant who pays rent to a landlord; just as with us a corporationis made to pay the tax on its capital stock nominally due from theindividual owner. The only notable extension of income tax legislationis in the establishment of the principle of the _graded_ income tax, which is beginning to be adopted in a few States, as in North andSouth Carolina in 1897. 

This principle of graduated taxation has, however, been nearlyuniversal in our next and more modern variety--the succession tax. Theold English precedents are the "aids" and fines for alienation. Butbeginning here about 1893, this form of taxation has now been adoptedby nearly all the States, the amount of the tax being graded bothaccording to the relation of the inheritors to the person fromwhom the succession is derived, and according to the amount of theinheritance itself; the rate of the tax thus varying all the way froman absolute exemption, as to the wife or children, to a tax as high astwenty-five per cent. (in New York) in the case of large estates goingto remote relatives. The Federal inheritance tax imposed at the timeof 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 willbe necessary to have some understanding or arrangement between theStates, whereby double or treble succession taxes are not imposedon the same estate, as notably in the case of the stock or bonds ofrailroads chartered in several States, all of which may undertake toimpose full succession taxes upon such stock. It has been heldthat succession taxes may be graded even in cases where a Stateconstitution provides for proportionate taxation, the tax being anexcise tax and not a direct property tax; but this is not so inrespect to income taxes. We may assume therefore that income taxesmust be equal in States which have this constitutional provision, although in one or two of them recent statutes have exempted a portionof the income of veterans of the Civil War. This might be sustained asa pension, pensions being for actual military service constitutional, and are in the Southern States expressly permitted to Confederatesoldiers and their families--despite the implied prohibition of theFourteenth 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 thusbeing taxed or regulated. Sometimes the taxation is put under theguise of a fee for examination and licensing, sometimes plainly as anexcise tax. Undoubtedly such taxation is against all the historyof our legislation demanding complete freedom of labor and trade. Nevertheless, it has not been held unconstitutional by the Statesexcept, of course, when touching a trade which is interstate commerce, though the _examination_ occasionally has been. Such taxation has notyet become popular in the North, except definitely for the purpose ofexamination and license; but it is almost universal in the South, manyStates indeed providing by their constitution or laws that all tradesand callings may be thus taxed. These taxes may be arbitrary inamount, but are sometimes graded according to the amount of businessdone. Such legislation has been sustained in so far as it is a tax ora license imposed for protecting the public health in a reasonablemanner; thus, doctors, plumbers, nurses, dentists, etc. , have beensubmitted to such regulation, but in the case of blacksmiths itsconstitutionality was in one State denied, and the law as to barbersin several States annulled. Nevertheless, it will always be a popularmethod of raising money in the poorer States, where land already bearsits full burden and little personal property can be found. 

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

By far the greatest mass of legislation relating to property isconcerned with the police power and modern extensions thereof. Itis also by far the most dangerous to property rights, and this forseveral reasons: firstly, it involves the destruction of propertywithout any compensation whatever, not upon payment of damages, as inthe ease of eminent domain; secondly, on account of the extraordinaryextension by our modern legislation of this power to matters nothitherto deemed necessary for the safety, health, or even thewell-being of the public, vague as the legal application of the lastword is; thirdly, and perhaps most important, because the policepower is usually exercised without any common-law guarantees, withoutprocess of law or jury trial, but by the arbitrary ruling of someboard, or even single commissioner, and often, so far as the statuteis concerned, without a jury or even an appeal from the commissioner'sruling to any court of law. 

I believe this to be the most dangerous tendency that now confrontsthe American people--government by commission, tenfold more dangerousthan "government by injunction. " Not only is there no liberty, noappeal to common right and the courts, but all permanent "boards" tendto become narrow and pedantic or, worse, to be controlled by the worksthey are created to control. [1] The constitutionality of such boardsis, of course, always questionable, but the tendency to create them isperhaps the most striking thing in modern American legislation. Notonly do we find them in enormously increased numbers in all theStates, but even a late President of the United States seriouslyrecommended that the contracts and affairs of all corporations atleast (and the bulk of modern business is done in corporate form)should be so submitted to the control or dictation, or even thenullification, of such an administrative board or commission, and thisagain with no appeal to the courts. So audacious an upsetting ofall Anglo-Saxon ideas of the right to law, it may be said withoutexaggeration, has never been attempted in the history of the Englishpeople, not even by the Stuart kings, who were most of all disposedto interfere in such particulars. Wiser counsels deterred theadministration from insisting on this measure, but the fact that itcould be brought up, and that with the approval of a large portion ofthe public, indicates how radical our legislation is getting to be inthis particular. 

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

It is a commonplace in the law that no court has defined, or ever willconsent to define, the exact limits of this police power; sufficeit to say that in the classic words of Chief Justice Shaw ofMassachusetts, "it is all that makes for the health, safety, orcomfort of the people. " As to the health and safety, there can belittle question; but when it comes to indefinite words like "comfort"or "well-being, " too wide a field is left for the imagination. Ithas recently been decided that the aesthetic part of life does notnecessarily concern the comfort or well-being of the people. That isto say, laws forbidding the use of land for the erection of hideoussigns, or forbidding the height of buildings at an inartistic excesshave been declared not to fall within the police power, but undereminent domain. So of statutes forbidding the taking of a man'spicture, or a woman's portrait for advertising purposes, when notproperly obtained; yet it may be questioned if any law is morecertainly for the comfort of the persons concerned than such astatute. 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 oneState or other in 1905 alone. The first historical instance, perhaps, of destruction of property under the police power was the blowingup 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 tocompensation; but the more usual use of the police power until veryrecent years has been limited to the prohibition of offensive tradesin 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 ofHealth. This led to the regulation or prohibition of certain tradesconducted in tenement houses or in sweat shops, and to other matterswhich we shall find it more convenient to consider under the head oflabor legislation. 

Whether there are any limits to this power is much discussed. There isno question that the power must not be arbitrary or utterly withoutreason, 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 arbitrarystatute taking the property of _A_ and giving it to _B_, or even tothe public, without compensation has, from the time of Lord Cokehimself, been the classic definition of an unjustifiable law and onewhich with us at least is unconstitutional; but our courts wiselyrefuse to judge if, when a proper police motive is disclosed in thestatute, it is the _best_ method of effecting the result. This, Ithink, is a clear statement of the principle of our court decisions. If, upon the face of the statute, the court can see no possiblerelation to the public health or safety, or, possibly, generalwelfare, it will hold the law null in so far as it invades eitherproperty or liberty rights because not under the police power. If, onthe other hand, they can see _some_ relation to the public health, safety, or general welfare, even though they do not think it the bestmethod of bringing about the desired result, they will not presume torun 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. Thatis to say, the great instances of its extension have been connectedwith moral or sanitary reform. No doubt the police power may broadenwith advancing civilization and more complex appliances and possiblygreater medical knowledge and social solidarity. No doubt purposeswhich were once lawful may be unlawful, and property devoted to themthus be destroyed by a change in the law. Mr. Justice Brewer, ofour Supreme Court, holding the contrary view, was overruled by themajority, and that decision is final. [1] Not only we, but a State, maynot even make a contract which shall be immune from future extensionof the police power, the Dartmouth College case notwithstanding. Forinstance, the State of Massachusetts in 1827 granted a perpetualfranchise to a corporation to make beer. It was allowed, forty yearslater, to pass a law that no corporation should make beer, and thebrewery became valueless. The State of Minnesota granted a perpetualfranchise to a railroad to fix its own fares. Twenty years laterit took away that right, thereby, as claimed, making the railroadproperty valueless; the railroad had no remedy. A man in Connecticuthad barrels of whiskey in a cellar for many years, but the State wasallowed to pass a law prohibiting its sale; which, of course, had hebeen a teetotaler, would have deprived that property of all value, andin any case, of all exchange value. A man in Iowa owns one glass ofwhiskey for several years, and then a law is passed forbidding him tosell it; the law is valid. A youth in Nebraska buys tobacco and paperand rolls a cigarette. The State afterward passes a law forbiddingsmoking by minors. It is a crime if he light it. Sufficient has, perhaps, been said to show the extraordinary scope and elasticity ofthis, the widest, vaguest, and most dangerous domain of our modernlegislation, though perhaps we should add one or two strikingcases affecting personal liberty, as, for instance, a citizen ofPennsylvania marries his first cousin in Delaware and returns toPennsylvania, where the marriage is void and he becomes guilty of acriminal offence; a white man in Massachusetts who marries a negressor mulatto may be guilty of the crime of miscegenation in otherStates; a woman might work fifty-eight hours a week in Rhode Island, but if she work over fifty-six in Massachusetts may involve heremployer, 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 toprotect public health and safety; and prominent in the legislation ofthe last twenty years are the laws to secure pure and wholesomefood and drugs. Possibly "wholesome" is saying too much, for ourlegislative intelligence has not yet arrived at an understanding ofthe danger from cold storage or imperfectly canned food, though Canadaand other English colonies have already legislated on the subject, tosay nothing of our tariff war with Germany on the point. One may guessthat ninety-nine per cent. Of the present food of the American people, leaving out the farmers themselves, is of meat of animals which havebeen dead many months, If not years, and from vegetables which date atleast many months back. It is nonsense to suppose that such food isequally wholesome with fresh food, or that there is not considerablerisk of acute poisoning or a permanent impairment of the digestivesystem. Senator Stewart, of Nevada, has shown that nearly fifty percent. Of the soldiers of the Spanish War had permanent digestivetrouble, as against less than three per cent. In the Civil War, whichtook place before cold-storage food was known, or canned food largelyin use. It was hopeless for the States to act until there wasFederal legislation on the subject, as the health authorities had noconstitutional power over goods imported from other States; but thepassage, under Roosevelt, of a national food and drugs act has givena great impetus to the reform, and by this writing more than half theStates have passed pure-food laws, being usually, as they obviouslyshould be, an exact copy of the Federal Act. Among the articlesspecially mentioned in such legislation we find candy, vinegar, meat, fertilizers, milk, butter, spices, sugar, cotton seed, formaldehyde, insecticide, and general provisions against adulteration, falsecoloring, the use of colors and preservatives, etc. 

Going from matters merely unwholesome to actual poisons, the course oflegislation on intoxicating liquors is too familiar to the readerto make it necessary to more than refer to it, with the generalobservation that in the North and East the tendency has been towardhigh licensing or careful regulation, always with local option; whilein the West originally, and now in the South, the tendency is toabsolute "State-wide" prohibition and even to express this principlein the constitution. How much this extreme measure is based on theracial question, in the South at least, is a matter of some debate;and the working of such laws everywhere from Maine to Georgia, ofconsiderably more. One may hazard the guess that the wealthierclasses have no difficulty in getting their liquor through interstatecommerce, while the more disreputable classes succeed in getting itsurreptitiously. Prohibition, therefore, if effective at all, isprobably only effective among the respectable middle class where, perhaps, of all it is least needed. In the older States, at least inMassachusetts, there has been a decided tendency away from prohibitionin the last twenty years, and even from local prohibition in thelarger cities. Worcester, for instance, after being the largestprohibition city in the world, ceased to be so this year by thelargest vote ever cast upon the question. 

Whatever may be said of the strict prohibition of liquor dealing, noone can have any objection to such laws as applied to cocaine, opium, or other poisonous drugs, and we find statutes of this sort inincreasing number; while the manufacture and sale of cigarettesto minors or even in some States, their consumption, is strictlyprohibited, under criminal penalty. Laws of a similar sort were aimedat oleomargarine when invented, but this probably not so much toprotect the health of the people as the prosperity of the dairymen. The mass of such legislation has emerged from the scrutiny of thecourts, State and Federal, with the general result that only such lawswill be sustained as are aimed to prevent fraud; but the manufactureand sale of oleomargarine under that name cannot be prohibited. Artificial coloring matter may be forbidden, but a New Hampshire lawwas not sustained which required all oleomargarine to be colored pink;so it may be guessed that the laws of those States which make criminalthe sale or use of cigarettes to or by children "_apparently_" lessthan sixteen or eighteen, will hardly be sustained as a constitutionalpolice measure; yet such laws existed in 1890, while the State ofWashington in 1893 made the sale even of cigarette paper criminal. 

Another important line of modern legislation consists in thesubjecting of trades to a license for the purpose of _examination_(the tax feature has been discussed above). Such laws areconstitutional when applied to a trade really relating to the publichealth, but as we have found above, black-smithing is not such anone; when imposed merely for the purpose of raising revenue, such legislation is undoubtedly constitutional under our writtenconstitutions, but opposed to historic English principles, whichinsisted for seven centuries of statute-making on the utmost libertyof trade. In a South American republic you have to get a concessionbefore going into almost any business, even maintaining a shoe-shop, or a milk farm, which concession is, of course, often obtained bybribery or withheld for corrupt reasons. It is to be hoped that thecitizens of our States will never find themselves in that predicament. Still, certain State constitutions, as that of South Carolina, provideabsolutely that all trades may be made subject to a tax, and thetendency--particularly in the South--to raise revenue in this way isincreasing by leaps and bounds. Among the trades already subjected tosuch 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 tosecure a licensing law from the State, for the slight tax insures themprotection. This is the reason that we find common statutes allowingosteopaths, etc. , to be licensed. So far as I have observed, there isno such statute as yet in any State applying to Christian Scientists. 

Police regulation for the _safety_ of the public is found nearlyentirely in the laws regulating labor, factories, mines, or machinery, and will be accordingly treated in that connection. Laws protectingthe public against fraud, which from earliest times has been a branchof police legislation, have been of late years numerous, principallyin connection with the prohibition of dealing in futures or sales onmargin, of sales of goods in bulk without due precautions and noticeto creditors, of the issue of trading stamps or other device tendingto mislead the public. Some States have prohibited department stores, but this legislation has been held unconstitutional, though the earlyEnglish labor statutes forbidding to any person more than one trade ormystery will by the historical student be borne in mind. Usury laws, of course, are still frequent, but decreasing in number with theincreasing modern tendency to allow freedom of contract in this asin 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 theState Commissioners on Uniformity of Law in getting their negotiableinstrument act passed in nearly all the States, and in several alreadytheir uniform law statute on sales, only recommended in 1907. Someprogress has been made in getting a uniform standard of weights andmeasures, and there is an increasing tendency to prescribe specificweights and markings for packages--possibly unconstitutionallegislation. Still more important as a change in previously existinglaw has been the increasing tendency to make documents other thanbills and notes negotiable. Perhaps this is a matter which requiresexplanation to the lay reader. 

The early Anglo-Saxon law could not conceive of ownership of propertyas distinct from possession, and to their simple minds, when ownershipwas once acquired it was impossible to divest the owner of hisproperty by any symbolical delivery. Hence the very early statutesmaking fraudulent sales or conveyances of property without actualand visible change of possession. The notion of a symbol, a paper orwriting, which should represent that property would probably haveimpressed them like a spell or charm in a child's fairy tale. Eventheft with asportation could not alter property rights, even infavor of innocent purchasers, when the owner did not intend to parttherewith. A moment's recollection of what is now perhaps the mostfamiliar of Teutonic saga to the ordinary reader, the text of Wagner's"Ring of the Nibelung, " will give ample evidence of that mentalattitude. But the Oriental mind was far more subtile. To the Jews orLombards we owe the discovery of that _bill of exchange_--the first ofnegotiable instruments, and the first historically to bring intoour law the legal concept of a symbol of ownership which might beinstantly transferred with an absolute change of title in the propertythereby represented, and this either to a present transferee or to onefar away. Thus, a simple bill of exchange might transfer the ownershipin 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 treasureitself from attack at the hands of the Venetian authorities. And notonly was this change of ownership instantaneously effected by thetransfer of some symbol or document representing it, but there also, and as a necessary part of the invention, grew up the doctrine thatthe transferee was relieved of any claims against the property at thehands of the previous owner. This is what we mean by negotiable;and it is essential that the precise meaning of the word should beunderstood if we are to understand the importance of this legislation. Even most business men have a very vague understanding of thedifference between _negotiable_ and _assignable_. Substantiallyall property and choses in action are assignable, except personalcontracts; and in ordinary business many of them are assumed tobe negotiable, such as bills of lading, warehouse receipts, trustreceipts, or certificates of stock. Most brokers, or even bankers, assume that when they have a stock certificate duly endorsed tothem by the owner mentioned on its face they have an absolute andunimpeachable title to the stock therein represented. Such, of course, is not the case except for recent statutes in a few States. To take afamiliar example, and I can think of none better to show exactly thedifference between a personal contract non-assignable, a documentwhich is assignable, and one which is negotiable--a Harvard-Yalefoot-ball ticket. If the ticket is issued by the management to aperson under his name, with a condition that it shall be used by noone else, it is a contract non-assignable. If it is issued to him inthe same manner, but with no provision against assignment or the useby another person, it would entitle such other person to whom theticket was given to use the seat, but only under the title of theoriginal holder; and if the assignment was later forbidden, or forother reasons the right recalled by the management, the holder wouldhave no greater title to the seat; the contract is _assignable_, butnot negotiable. The assignee takes it merely as standing in the placeof the original holder and subject to all the equities between him andthe management. If, for instance, the ticket were given him by fraud, the right to use it might be revoked and the transferee would haveno greater right than the original holder. But if the ticket were_negotiable_, like a bank-note payable to bearer, the holder, notactually himself the thief, would have an absolute title to theseat without regard to anything that happened prior to his gettingpossession of the ticket. 

Now it is obvious that it is for the enormous convenience of businessto have business documents made negotiable. If a banker can loan on abill 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 allhis general shipments or stock in trade shall be the property of thatbanker until his debt is paid, it makes enormously for the rapidturning over of capital, and the extension of credit. Of course, anenormous proportion of business in the United States is conducted uponcredit, and without the invention of the negotiable instrument thosecredits could not be secured without an actual delivery of thecommodities intended to secure them. And the custom of business is toconsider most such documents negotiable even when in fact they are notso. It is more than usual to loan money upon warehouse receipts, billsof lading, stock certificates or trust receipts of all descriptions, regardless of the question whether the law of the State makes themnegotiable. Hence the very great tendency to make such instrumentsnegotiable by statute; and I find many such laws, beginning in 1893in North Carolina, as to warehouse receipts, while the Massachusettsstatute concerning stock dates from 1884. 

A reaction to the English common law is the statute, common in recentyears, prohibiting sales in bulk. It appears to have been a growingcustom for merchants, particularly retail merchants, when in financialdifficulties to sell their entire stock in trade to some professionalpurchaser by a simple bill of sale without physical delivery. Nearlyall States have adopted statutes against this practice, although inseveral they have been held unconstitutional. The feeling that theyare dishonest is doubtless justified by the facts; but it may also betruly described as a reaction to the simpler English law as againstOriental innovations. 

The descent of property throughout the United States is regulated byEnglish 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 testamentarydisposition, although in one or two other States there have beenstatutes forbidding a man to dispose of all his estate to a charitywithin a short time previous to his death, to the prejudice at leastof his direct heirs. The Code Napoleon, of course, limits testamentarydisposition in favor of these latter, so in Louisiana, only half ofa man's estate can be given away from his children or widow, and notmore than three-fourths of his estate can be bequeathed to strangersor to charity, to the prejudice even of collateral heirs. 

In matters of general business the usual lines of legislation havebeen the ordinary ones found in English history. That is to say, statutes of frauds, usury or interest laws, and other familiarmatters. The only tendency one can note is a broad range oflegislation devised in the interest of the debtor--not only liberalinsolvency laws now superseded by the national bankruptcy act, whichis still more liberal than the laws of the States preceding it, butstatutes restricting or delaying foreclosure of mortgages, statutesexempting a substantial amount of property, implements of trade, agricultural articles, goods, land, or even money, from the claims ofhis creditors. The exemption of tools or implements of trade goes backto Magna Charta, it will be remembered, but the exemption of otherarticles is modern and American. There is probably, however, nosubject which is so apt to be let alone by our legislatures as that ofbusiness law. Upon that subject, at least, they are fairly modestand inclined to think that the laws of business are known betterby business men. Imprisonment for debt is, of course, absolutelyabolished everywhere, and in most States a woman is not subject topersonal arrest in civil process. The statutes prevailing throughoutthe country, which give special preference to claims for wages or evenfor material furnished by "material men, " have already been noted. Itmay be broadly stated that the presumption is that such claims areeverywhere a preferred debt to be paid out of the estate of theinsolvent, living or dead, in preference to all claims except taxes. 

The security of mortgages is very generally impaired by legislationconfining the creditor to only one remedy and delaying his possessionunder foreclosure. That is to say, in far Western States generally, hecannot take the land or other security, and at the same time sue thedebtor in an action for debt for the amount due, or the deficiency. This, of course, makes of a mortgage a simple pledge. Moreover, withthe practice of delaying possession under foreclosure, appointingreceivers in the interest of the debtor, etc. , he is in many Statesso delayed in getting possession of his security that by the time heacquires it he will find it burdened with overdue taxes and in a stateof general dilapidation. We have already alluded to the practice inCalifornia of compelling the executor of a mortgage to submithimself to the jurisdiction of the local public administrator, whichpractically results in a sequestration of a considerable portion ofthe property. For all these reasons, many conservative lawyers in theEast, at least, would not permit their clients to invest their moneyin mortgages in California, Minnesota, Washington, or the other Statesindulging in such legislation, and partly for this reason the rate ofinterest prevailing in mortgages is very much higher in the far Westthan it is in States east of the Missouri River. 

The greatest mass of legislation is, of course, that upon mechanic'sliens, which are burdensome to a degree that is vexatious, besidesbeing subject to amendment almost every year. In a general way, noland-owner is free from liability for the debt of any person who hasperformed labor or furnished materials on the buildings placed uponthe land, even without the knowledge or consent of the land-owner insome States, though in one or two instances, notably in California, such legislation has been carried to such an extreme as to make itunconstitutional. 

The matter of nuisances has been already somewhat covered. Legislationextending the police power and declaring new forms or uses of propertyto be a nuisance is, of course, rapidly increasing in all States. Thecommon-law nuisance was usually a nuisance to the sense of smell ora danger to life, as, for instance, an unsanitary building or drain. Noise, that is to say, extreme noise, might also be a nuisance, andin England the interference with a man's right to light and air. Legislation is now eagerly desired in many States of this country tomake in certain cases that which is a nuisance to the sense of sightalso a legal nuisance, as, for instance, the posting of offensivebills on the fences, or the erection of huge advertising signsin parks or public highways. Such a law was, however, heldunconstitutional in Massachusetts. There is some legislation againstthe blowing of steam whistles by locomotives, although I believenone against the morning whistle of factories, and some against theemission of black smoke in specified durations or quantities. 

But perhaps the most important legislation affecting simple matters ofbusiness other than the line of statutes already mentioned, making newnegotiable instruments and controlling the title of property by thepossession of a bill of exchange, bill of lading, warehouse or trustreceipt, are those statutes prohibiting the buying of "futures, " orthe enforcement of gambling contracts to buy or sell stocks or sharesor other commodities without actual or intended change of possession, which we have necessarily referred to in our discussion of restraintof trade (chapter 4). There is a very decided tendency throughout thecountry, particularly in the South, to prohibit all buying or sellingof futures, that is to say, of a crop not actually sold, or of anyarticle where physical delivery is never intended, and it will beremembered we found plenty of precedent for such legislation inearly English statutes. Gambling contracts may be forbidden only inspecified places, such as stock exchanges; and the buying of futuresmay be specially permitted to favored persons, such as actualmanufacturers intending to use the goods; and both such statutes willbe held constitutional and not an undue interference with the libertyof contract. These matters were largely covered by the statutes offorestalling in early times. Legislation more distinctly modern isthat against sales in bulk, and against department stores; morestriking still is the statute, already passed in Wisconsin andVirginia, forbidding all tips, commissions, or private advantagessecured by any servant or agent in carrying on the business of hisprincipal, his master, or the person with whom he deals; the statuteeven forbids a gratuity intentionally given directly from the one tothe other. It is hard to see how the last clause of the law can beheld constitutional, any more than the laws forbidding departmentstores, although such commissions may be forbidden to be given"unbeknownst. "

Weights and measures are standardized by the Federal government, andto these standards the States in practice all conform, but the legalweight of a bushel or other measure of articles varies widely in thedifferent States, and the State Commissioners on Uniformity of Lawhave tried in vain to get the matter generally regulated. At one timethe weight of a barrel of potatoes in New York City was fourteenpounds more than it was in Hoboken, across the river. In Massachusettsthe weight of a barrel of onions was increased two pounds toconform with the uniform law recommended to all the States by thecommissioners; but a representative in the State Legislature comingfrom a locality of onion farms lost his seat in consequence, whichinspired such terror in other members of the State Legislature thatthe uniform law was promptly repealed, the weight of the barrel ofonions put back at the former figure, and this over the veto of thegovernor. It is needless to say that the whole value and object of thewhole movement for uniformity is to have actual uniformity. That is tosay, unless the lawyer or citizen reading the statute can be sure thatit is uniform with the laws of all other States without taking thetrouble to consult them, the reform has no value. But it has provedalmost hopeless to get this through the brain of the averagelegislator. The uniform law upon bills and notes, indeed, alreadymentioned, is treated with more respect; because, as has been saidabove, they regard that as a matter of business, and they have somerespect for the expert knowledge of business affairs possessed bybusiness men. 

The licensing of trades might be made a very valuable line oflegislation to prevent the fleecing of the ultimate consumer by themiddleman. Our ancestors were of the opinion that the middleman, theregrator, was the source of all evils, and they were also of theopinion that any combination whatever to control the price of anarticle of food, or other human necessity, or to resell it elsewherethan at its actual market and at the proper time, was a conspiracyhighly criminal and prejudicial to the English people; in both ofwhich matters they were, in the writer's opinion, perfectly right, andfar more wise than our modern delusion that "business"--that is tosay, the making of a little more profit from the larger number ofpeople--justifies everything. Now, at the time of the coal famine of1903, Massachusetts passed a statute licensing dealers in coal; thelaw for the municipal coal-yard having been declared unconstitutional. The object of this statute was not to derive revenue or to restricttrade, but to regulate profits; and in particular to preventthe retail coal-dealers from combining to fix the price of coalthemselves. Yet in spite of this legislation, the ice-dealers ofMassachusetts only this year (1910) assembled in convention in Bostonupon a call, widely advertised in the newspapers, that they wereholding the assembly for that precise purpose, that is to say, tofix and control the price and the output of ice. They were, indeed, "malefactors of great wealth"; at least we may guess the latter, andthe animus of a more intelligent precedent may some day hopefully bedirected to such definite evils, of which our ancestors were wellaware, rather than blindly running amuck at all. The coal-dealers inBoston, by the way, made the same argument that is always made, andwas made at Athens in the grain combination of the third centuryB. C. --to wit, that they put up the prices in order to prevent otherpeople buying all the coal and speculating in it; but notwithstandingthat showing of their altruistic motives, the secretary of staterevoked the license of the coal company in question. The statutealso forbade the charging extortionate prices, which, again, was aperfectly proper subject of legislation under the common law; but, unfortunately, was carelessly drawn, so that it resulted in a somewhatcloudy court opinion. 

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

The best modern legislation concerning trade and business is, ofcourse, that of the pure-food laws. The Federal law has certainlyproved effective, although it is in danger of being repealed oremasculated in the interest of the "special interests"; most of theState laws simply copy it. Undoubtedly the laws should be identical ininterstate commerce and in all the States; and this can only be doneby 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 requirea chapter by itself. The reader will remember what precedents we foundfor the fixing of prices, wages, and rates or tolls in England. It maybe convenient for our purposes to use these three definite words tomean the three definite things--prices in the sense of prices of goodsor commodities; wages the reward of labor or personal services; andrates (the English word is tolls) for the charges of what we shouldnow term public-service corporations, or in old English law, franchises, or what our Supreme Court has termed "avocations affectedwith a public interest. " The reader will remember that the attemptedregulation of prices began early and was short-lived, dating from theAssize 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 thecost of wheat or barley, just as to-day we might conceivably fix theprice of bread at some reasonable relation to the price of flour inMinneapolis, and as it was fixed in ancient Greece by the wholesaleprice of wheat at Athens[1]--not as it now is, from three to fourtimes the cost of bread in London, although made out of the same flourshipped there from Minneapolis; and the two latest statutes expresslysay that they fix the price by reason of the great dearness of sucharticles on account of the Black Death or plague, and the consequentscarcity of labor. Then the Statute of Laborers of 1349 provided thatvictuals should be sold only at reasonable prices, which apparentlywere to be fixed by the mayor. With these statutes the effort to fixprices by general statute disappeared from English civilization save, of course, as prices may be indirectly affected by laws againstmonopoly, engrossing, and restraint of trade; and local ordinances intowns continued probably for some time longer. 

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

Legal regulation of _wages_ lasted much longer in England; andhas reappeared in very recent years, at least in the Australasiancolonies, with a beginning of such legislation in Great Britain andIreland and the State of New York. The first Statute of Laborersmerely provides that the old wages and no more shall be given. Thenext year, however, in 1350, the exact rate of wages was fixed; andthis lasted for more than two centuries, to the reign of Elizabeth, the so-called "great" Statute of Laborers consolidating all theprevious ones. It is apt to be the case that when a statutory systemhas reached its full development it falls into disuse; and that iscertainly the case here. There is no later statute in England until1909 fixing directly or indirectly the rate of wages; and it may bedoubted whether the justices of the peace continued to fix them formany years under the Statute of Elizabeth. More than three centurieswere to go by before this principle reappeared in legislation orattempted legislation; but in Australia, [1] New Zealand, [2] andEngland[3] there has been recent legislation for a legally fixed rateof wages to be determined for practically all trades by a board ofreferees, consisting, as such boards usually do consist, of onemember to represent capital, one to represent labor, and the third torepresent the public or the state. As such third representative almostinvariably votes on the side of the greatest number of voters, thispractically makes a commission hardly impartial. The working of thesystem in New Zealand will be found discussed in the _WestminsterReview_ for January, 1910. There is an appeal to the courts from therate of wages fixed by such commission; and it appears that outof four such appeals, in three the decision of the commission wasconfirmed, and in the fourth set aside; but the workingmen disregardedthe judgment of the court and struck for a higher wage--contrary tothe whole theory of such legislation, which is to _prevent_ strikes. This strike succeeding, there has, therefore, been no case so farwhere the increasing rate of wages was checked by any appeal to thecourts. 

[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 amendedsince. ]

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

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

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

Coming, therefore, to public work, we use this phrase for all laborcontributed directly to the State, to any county, city, town, village, or municipality thereof, to any municipal-owned public-servicecorporation, gas, water, etc. , company, or, finally, and mostimportant, to or under any contractor for the same, or any of them. Some years ago the State of New York adopted legislation to the effectthat in all such public employment the wages paid should be the usualrate paid for similar work in the same locality at the same time. Asa result of this legislation, many thousands of lawsuits were broughtagainst the City of New York by persons who had done labor for thatmunicipality in the past, complaining that they had not in fact beenpaid "the prevailing rate, " although in fact the work had long sinceterminated, and they had been discharged, paid in full, and apparentlysatisfied. Shortly after, the law itself was declared unconstitutionalby New York courts. Thereupon the labor interests proposed aconstitutional amendment in 1905, to the effect that "the legislaturemay regulate and fix the wages or salaries, the hours of work orlabor, and make provision for the protection, safety, and welfare ofpersons employed by the State or by any county, city, town, village, or other civil subdivision of the State, or by any contractor orsubcontractor performing work, labor, or services for the State or forany city, county, town, village, or other civil division thereof. " Avery small proportion of the voters of New York took the trouble tovote upon this amendment, although it revolutionized the economic, ifnot the constitutional, system of the State, so far as property andcontract rights are concerned; and it was adopted by a substantialmajority. In Indiana there was a statute at one time fixing the rateof wages in public employment at a minimum of not less than fifteencents per hour, but it was held unconstitutional. It is customary inNew England villages to vote annually that the town shall pay itsunskilled labor a prescribed rate for the following year, usually twodollars per day. The effect of this has been sometimes to cause thedischarge of all but the very most skilful and able-bodied; of thosewho had, by working at less than full pay, been kept out of thepoorhouse; and the selectmen of some towns, notably Plymouth, haverefused to obey such a vote. The California Code of 1906 provides aminimum compensation of two dollars per day for public labor, exceptas to persons regularly employed in public institutions. Delaware hascopied the New York statute as to the prevailing rate. Hawaii, inpublic labor, provides a minimum wage of one dollar and twenty-fivecents per day. Nebraska goes further, and provides not only for twodollars per day for public work, but that it must be done by unionlabor in cities of the first class, while Nevada has a minimum wageof three dollars and an eight-hour day for unskilled labor in publicwork. On the other hand, the Constitution of Louisiana prescribes thatno 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 enjoyinga franchise, that is to say, a legalized monopoly, or exclusivelegislation, or special privilege, such as eminent domain, or theright to occupy the streets; such are, in fact, identical with what weterm public-service corporations, the older, the most universal, andcertainly the most, if not the only, justifiable example of legalregulation of the returns for the use of property or personalservices. 

Whatever may be thought of the economic wisdom of attempting toregulate any rate or prices by law (and for a discussion of thissubject as to railways, at least, the reader may well be referredto the valuable treatise of Mr. Hugo R. Meyer, "State Regulation ofRailways"), such legislation was at least in England constitutional;but in this country, owing to our specific adoption of the principleof property rights and freedom of labor and hence of freedom ofcontract in our Federal and State constitutions, and as it has beenrepeatedly decided that to take away the income from property or areasonable return for labor by legislation is to infringe on theproperty or liberty right itself, we have a universally recognizedconstitutional objection which has, in fact, made impossible allregulation of prices and wages, except as above mentioned, and as weare now about to discuss. The first attempt to regulate rates (withthe possible exception of some early colonial laws) was the so-calledGranger 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 forrailways, a similar act in Wisconsin of the same year relating torailroad, express, and telegraph companies, and in Minnesota; whichlegislation was all sustained by a divided opinion in the so-calledGranger cases headed by Munn _v. _ Illinois, 94 U. S. 113. 

In the many years which have elapsed since this famous decision, theclouds have rolled away and the shape and basis of that apex of ourjurisprudence been fairly surveyed. It will appear, I think, to anydispassionate jurist to have been rightly decided, at least as tothe railroads, though the reasons given by Chief Justice Waite areunsatisfactory and have little logical basis. The true basis ofregulation of rates at the common law and in English history was_monopoly_; either a franchise directly granted by the crown, such asa bridge, ferry, or dock, or one which was geographically, at least, exclusive, like a dock without a franchise. As Lord Ellenborough saidin the decision quoted by the Chief Justice himself: "Every man mayfix what price he pleases upon his own property, or the use of it; butif for a particular purpose the public have a right to resort to hispremises and make use of them, and he have a monopoly in them for thatpurpose, if he will take the benefit of that monopoly, he must, as anequivalent, perform the duty attached to it on reasonable terms. " "_Iffor a particular purpose the public have a right to resort to hispremises_"--this important qualification from now on seems to havebeen lost sight of in the majority opinion. Quoting the earlyprecedents such as that statute of William and Mary regulating thecharges of common carriers--and our readers will remember manymore--and the case of cabmen whose charges are regulated by cityordinances--but they are given stands or exclusive privileges in thestreets--the chief justice concluded with the startling propositionthat "if they do not wish to submit themselves to such interference, they should not have clothed the public with an interest in theirconcerns. " But the public has an interest, as was afterward pointedout in dissenting opinions, in the price of shoes; yet it has neverbeen supposed that that gave any power of legal regulation of factoryprices. A still stronger case is that of inns or hotels, which havealways been "a public avocation. " They have had to take in alltravellers without discrimination; yet there is not a vestige oflegislation in the English statute-book regulating the prices to becharged by hotels. Indeed in early times most employments--millers, barbers, bakers--were public in the sense that the man could notrefuse a job; yet their prices were never regulated. Yet it was uponthis phrase, "_public employment_" or "_private property affected witha public interest_, " taken from the opinion of Justice LeBlanc in theLondon Dock Company case, decided in 1810, without its context, thatthe chief justice built up the whole reason of his decision. The_decision_ in Munn _v. _ Illinois, subject to court review as towhether the rate be confiscatory, remains good law, but the _opinion_is still open to question; and indeed the most recent decisions of theSupreme Court show a desire to get away from it. 

Some writers endeavor to justify, under our constitutions, theregulation of rates by the principle of eminent domain; but thissource seems far-fetched and unnecessary. It is, of course, done underthe police power; but the precedent for that use of the police poweris to be found in the history of English law and statutes. Thus wehave noted in the Statute of Westminster I, A. D. 1275, that excessivetoll contrary to the common custom of the realm was forbidden inmarket towns. The very phraseology of this statute indicates theantiquity 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 orordinance. In the very opinion of Chief Justice Waite, he quotes LordHale, saying that the king "has a right of franchise or privilege, that no man may set up a common ferry without a prescription time outof mind, or a charter from the king, " and so later he quotes Lord Haleas saying that the same principle applies to a public wharf "becausethey are the wharves only licensed by the king. " We also foundlegislation fixing rents and so on in staple towns, and consequentlyof the charges of property owners therein, such towns having grant ofa special privilege. The early law books are full of cases showingthat discrimination and extortion were unlawful, even criminal, offences. And finally, as Chief Justice Waite points out, we find therates of carriers fixed by law in 1691. Ordinary carriers, not havingthe right of eminent domain such as express companies, might to-day beconsidered to have no legal monopoly, and indeed, possibly for thatreason, the regulation of charges of express companies has not yetbeen attempted; but in King William's time it was doubtless consideredthat the carriers had special privileges on the highways, as indeedthey did. 

It seems to me, therefore, that the real reason, both logical andhistorical, for regulation of rates rests on the fact that the personor corporation so regulated is given a monopoly or franchise by somelaw or ordinance, or at least a special privilege from the State; orat least that he maintains a wharf, a bridge, or a ferry, orother avocation which (really for the same reason) has, from timeimmemorial, been subject to such regulation. This, indeed, has beenthe doctrine officially adopted by the Commonwealth of Massachusettsin its legislation--"Where monopoly is permitted, State regulationis necessary. " The new "Business" Corporation Act of 1903 makes theexpress distinction between public-service corporations and all otherprivate corporations for gain: it applies to "all corporations . . . Established for the purpose of carrying on business for profit . . . Butnot to . . . Railroad or street railway company, telegraph or telephonecompany, gas or electric light, heat or power company, canal, aqueductor water company, cemetery or crematory company, or to any othercorporations which now have or may hereafter have the right to take orcondemn land or to exercise franchises in public ways granted by thecommonwealth or by any county, city, or town. " The implication is thatsuch other corporations are not given the entire freedom of action andcontract conferred by this Business Corporation Act. Where the Statecreates a monopoly, it puts the public at the mercy of the granteeof that franchise. Therefore, it is logical and just that it shouldregulate the rates. The test, however, is not and cannot be, that theman is ready to serve all comers, or even that he is compelled so todo; hotel-keepers, barbers, restaurants, doctors, etc. , have neverhad their charges regulated by law. In early days most tradesmen werecompelled to serve any and all, at an equal price, under liabilityfor damages. [1] Mills, indeed, have always been subject to have theirtolls regulated; at least, a certain proportion of the grist had to goto 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 OilCo. , 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 toother trades or industries, while the extent of the doctrine, that is, the amount of regulation permissible under the Constitution, hasbeen very much limited. Waite's opinion gives no intimation of anyconstitutional limit whatever, but dozens of the decisions ofthe Supreme Court since draw the limit this side of the point ofconfiscation; that is to say, at a "reasonable return, " whatever thatphrase may mean. It was, indeed, at first extended to semi-privategrain elevators on the prairies, to elevators monopolizing the waterfront of Buffalo, New York, and to floating elevators in New YorkHarbor, the first and last of which show certainly no element of legalmonopoly, while the Buffalo case at most only a geographical one. Still, elevators were the subject of Munn _v_. Illinois itself. [1] Andit has never been extended to a mere _de facto_ or "virtual" monopolyarising only from the accident of trade. Moreover, in matters ofinterstate commerce, although it might have been argued that suchaffairs were left absolutely to the plenary power of Congress, whichmight well, if it chose, pass laws preventing any railroad fromengaging in interstate business, except at a certain rate per mile forpassengers or freight--or that no vessel should be allowed to carrypassengers or freight from foreign countries except at a certain priceper head or per ton--yet the Supreme Court seems to have held thateven this plenary power over commerce expressly given to Congress inthe Constitution, is limited by the ordinary property guarantees ofthat instrument; possibly because the Fifth Amendment is of later datethan the body of the Constitution. 

[Footnote 1: We may divide monopolies into legal, geographical, and_de facto_, or "virtual" monopolies--phrases which sufficientlydescribe themselves. ]

We thus find that the earliest legislation regulating rates was thatof the States. It was thirteen years after the Iowa statute abovereferred to that the Interstate Commerce Act was passed, which wassupposed to give a power--afterward denied by our Supreme Court--tothe Interstate Commerce Commission to fix rates. It certainly did givethem power to find, upon complaint, what was a reasonable rate, whichwas _prima facie_ evidence in case of appeal. In hundreds of casesactual rates were complained of, in probably many more discriminationwas complained of, and, according to Mr. Meyer, the commission wasfound by the Supreme Court to have decided rightly about half thetime. In 1903 came the intelligent Elkins Bill against discrimination, which merely re-enacts the common law, and up to within two or threeyears has proved the only really effective measure of controlling therates themselves. In 1906 came the Hepburn Act under Roosevelt, givinggeneral power to the commission to fix rates upon complaint, to makejoint rates, extending the statute to the oil pipe-lines, expresscompanies, and sleeping-car companies, and going to the verge ofthe Constitution in an effort to provide that rates fixed by thecommission should take immediate effect. So far as most recentdecisions go, however, this great statute has not altered the positionof the Supreme Court of the United States as to the constitutionalnecessity of a reasonable return to the carrier, and perhaps thecardinal question remains to be decided, whether such rate-makingpower is legislative, and, if so, may under the Federal Constitutionbe delegated by Congress to any board. Congress merely proclaims thatthe rates shall be reasonable and without discrimination--both mereexpressions of the common law--and leaves the determination of what isreasonable between the Interstate Commerce Commission and the SupremeCourt, neither of them legislative bodies. The common law may, indeed, be decided by a judicial body; but it is difficult to see why thealteration of the common law is not legislation. And this criticismapplies _a fortiori_ to the Taft Bill just enacted (June, 1910), whichgives the Interstate Commerce Commission power to fix rates of theirown motion. When, therefore--if the author may venture to repeat hiswords--the commission fix a "just and reasonable" rate, [1] if they areapplying the common law, their act is judicial; if they are fixingother standards, it is legislative. [2]

[Footnote 1: United States Act of February 4, 1887, as amended June29, 1906, sec. 15. ]

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

Coming to the States again, this constitutional difficulty does notconcern us, for it has been decided that the division of powers intolegislative, executive, and judicial must, as to the States, beexpressly provided in the State constitutions and is not guaranteedunder the Fourteenth Amendment. Broadly speaking, the history oflegislation has been as follows: The States have usually exercisedtheir rate-making power through a railroad or corporation commission. New York and Virginia now employ the more comprehensive phrase "publicservice" or "corporation" commission. The Massachusetts statute, likethe Granger statutes, dates from 1874. Just as we found in the MiddleAges in the case of the Black Death in times of famine, so times ofpanic with us have always produced radical legislation: this, itwill be noted, is the year after the great panic of 1873. But theMassachusetts law, the earliest of all, did not and does not authorizeany fixing of rates, or even any finding as to what was reasonableupon rates. It extends only to the other conditions of service. Thestatute is, perhaps, broad enough to permit such a finding as matterof opinion; but it would have no legal effect. The commission, section15, were authorized to find that a change in rates of fares fortransporting freight or passengers was reasonable and expedient, andso 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 bythe United States Court as to this delegation of power, if it be one;but in later years, possibly dissatisfied with the conservatism ofsuch boards, we find drastic legislation, particularly in the Westand South, fixing maximum rates, at least as to passengers (it isobviously difficult, if not impossible, to enact express legislationas to freight rates). Such legislation stands in as strong (orstronger) constitutional position, as rates made by the commission;and only fails when "confiscatory" or when in conflict with Federallegislation. Perhaps the most notable clash between the States and theFederal power has been on this subject in this very last year, whereState laws have been annulled and even high State officers enforcingthem restrained by injunction of Federal courts. Still, in thelegislation of all States, I find as yet none overstepping the limitswe have above defined as proper. 

The question of the _amount_ of return required by the court is, ofcourse, a most important one. It is a difficult subject, because nofixed rule takes any account of risk to the original investment. It isall very well to say that six or eight per cent, is a fair return oninvested capital, or even on "cost of reproduction"; but when, as tooriginal promoters, the chance of even any return was as one againstten of a total loss, _fifty_ per cent. Of annual profit would notbe more than a "fair return"! The original Massachusetts railwaylegislation seems to contemplate that ten per cent. Should be thenormal return on railway stock, for it provides that at any time thecommonwealth may purchase any or all its railroads upon the payment ofthe cost, plus ten per cent. A year profit. 

Other than in railroads, the main fixing of rates has been inilluminating gas. Many cities are permitted to legislate on thispoint. In New York it was decided that they might so do, provided thegas company got a fair return on its capital, not including the valueof its franchise; and certainly it would seem to be the height ofaudacity to claim more. Much as if a boy, presented by his father withhens and the feed to support them, were to demand the capitalizationof the value of all future eggs upon going out of business! InBoston, intelligent legislation was adopted--based on good mediaevalprinciples--which allows dividends at a sliding scale according to theprice of gas to the consumer. [1] The great reason, of course, of thecessation of legislative activity on the part of the States, as torailway rates, has been that the great bulk of rates appertained tointerstate commerce, or at least must be controlled by the rates ofinterstate commerce; so only legislation as to strictly local ratesremains. 

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

The two most important questions, aside from that of an actualextortionate rate (which has hardly ever been claimed) are that ofdiscrimination, and of the long-and-short-haul clause, which is reallya derivative of the former. We have found the principle againstdiscrimination time-honored in the common law; but modern statuteswisely recognize that discrimination only exists when two personsor two localities are given different rates _under equivalentcircumstances. _ There has, therefore, been great dispute what thesewords, "similar circumstances and conditions, " in the Federal law maymean. There is no doubt that actual differences in cost of servicemake dissimilar conditions; but does geographical situation, such asis recognized in the long-and-short-haul clause? or still more, theamount of business offering, or the amount of possible competition?Very early the Interstate Commerce Commission and our legislation gotto the point of recognizing competition by water; but the competitionof other railroads was a thing harder to recognize. Many peoplethink they have a right to a fairly equivalent service at a fairlyequivalent cost throughout the United States, and that they havea right to all the advantages of their geographical position. Thefarmers in Westchester County, about New York, thought they hadundoubted reason to complain when the rates on milk were made the samefrom their farms to the city as from farms in Ohio; pointing out, indeed, that they had bought their farms originally, and paid highprices for the land, for the very reason of its geographical situationclose to a great market. Yet in our courts the economic rule hasusually prevailed; although no legislation, so far as I have found, recognizes such differences, except under some vague expression suchas service or discrimination "under like or similar conditions. "Whether legislation will ever come to the point of recognizing therailroad man's shibboleth, "charge what the traffic will bear, " isperhaps dubious. And the new Taft Act, in its long-and-short-haulprovision, takes a long step in the direction of geographicaluniformity and rigidity of rates. 

A few examples of modern rate regulation may be given. In 1896 SouthCarolina fixed a flat passenger rate of three and one-quarter centsper mile. Both South Carolina and Virginia have empowered the railwayor public service commission to fix all rates, including telephone andtelegraph. Passenger rates are now usually fixed at two cents per milein the East, or at two and one-half cents in the South or West. In1907 Kansas and Nebraska arbitrarily reduced all freight rates fifteenper cent. On the price then charged. In 1907 there was some evidenceof reaction; Alabama, in an extra session, repealed her law enactedthe same year prescribing maximum freight rates, substituting moremoderate rates in seven "groups" (which, however, may be changed bythe railway commission!), and also enacted a statute directing thecommission and the attorney-general not to enforce the earlier law;while the heavily penal Minnesota law was declared unconstitutional bythe United States Supreme Court. In the British empire the power tofix rates is, of course, unquestioned; and they are, as to railwaysat least, generally regulated by law. Canada in 1903 establisheda railroad commission, and Nova Scotia in 1908 imposed variousrestrictions as to tolls, still the English word for rates. So inOntario 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 aboutmonopoly, or contracts in restraint of trade, is the last field oflegislation we have to consider in connection with property, andpossibly in the public mind the most important. Although the lawagainst combinations of laborers rests upon much the same principles, it is perhaps best to give a special chapter to combinations ofproperty, leaving labor combinations to be treated in that specialconnection. The matter has been written up so voluminously that itmight be difficult to say anything new upon the subject, yet for thatvery reason it may be as well to analyze it into its simplest elementsat the common law, and then trace its recent development in oursomewhat unintelligent statute-making. At common law, then, theseobnoxious acts may be analyzed into five definite heads: forestalling, regrating, and engrossing--which have been thoroughly defined in anearlier chapter and the modern form of which in modern language mightbe called restraining production or fixing prices, the buyingand selling of futures or gambling contracts, and cornering themarket--restraint of trade, and monopoly. The broad principles, however, upon which the gravamen of even these first three rests, isrestraint of trade, which was always obnoxious at the common law. Contracts in restraint of trade, except such reasonable contracts aspartnership, or the sale of a business with condition not to engage inthe same trade in a certain limited locality or for a certain, limitedtime, have always been void at the common law. They are not, however, criminal except by statute, though a combination in restraint oftrade, etc. , was always so. We found many such statutes as we alsofound laws which gave a penalty in double or treble damages to theperson injured by such combination or contract. The great case ofmonopolies, reported in full in the seventh volume of the StateTrials, is a perfect mine of information on this subject, having beenargued many months at great length by the greatest lawyers, three ofwhom later were chief-justices of England. This is not the case ofthe 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 orsale) of playing cards, presumably because Coke's reports are far moreaccessible than the somewhat rare editions of the State Trials; butthe great case brought by the British East India Company against oneSandys, the loss of which would have forfeited its charter and itsbusiness, and possibly put an end to British dominion in the East. Its charter dated from the early years of Charles II and the 43dElizabeth. It brought suit against the defendant, who freighted avessel to East Indian ports. Mention in it is made of a charter to theMuscovy Company as early as Philip and Mary, a much earlier date thanis elsewhere assigned to trading corporations. Hundreds of cases ofunlawful monopolies are cited, among them the case of the tailors ofNorwich, where a combination to work only for certain wages and toadvise others not to work for less and to prevent such others fromgetting employment with their own employer, was held a conspiracy andan attempt to gain a monopoly at the common law. Another case, of onePeachy, who had by royal grant an exclusive right to sell sweet winein London, was held to disclose an odious monopoly at common law andthe king's franchise void. 

In the opinion of the writer, had this common law been thoroughlyremembered and understood by our bench and bar, to say nothing of ourlegislatures, very little anti-trust legislation by the Stateswould have been necessary except, again, of course, to affix modernpenalties to such offences. There has, however, been a vast amountof such legislation. In so far as such legislation has embodied thecommon law, it has stood the test of the courts and been of some valuein repressing objectionable trusts or contracts. In so far as it hasgone beyond the common law, it has often proved futile and still moreoften 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 orcontracting with the purpose of gaining a monopoly--all of which wereobjectionable at common law--we have legislated in some States againstthe securing of discriminatory railway rates for the purpose ofestablishing a monopoly, and against what we have termed "unfaircompetition"--that being generally defined to be the making of anartificially low price in a certain locality for the purpose ofdestroying a competitor, or the making of exclusive contracts; that isto say, refusing to deal with a person unless he binds himself not todeal with anybody else. This last thing can hardly, however, be saidto add to common-law principles. Nevertheless, some of the newer Stateanti-trust statutes prescribe it so definitely that it may be treatedas 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 trustsin this modern sense, though a special chapter is given to them involume II, published in 1892. The first legal writing in which theword was used and the rise of the thing itself adverted to is, sofar as I know, a contribution to the _Harvard Law Review_, entitledTrusts, vol. I, page 132; but the trust then had in mind was thesimple early form of the railway equipment trust said to have beeninvented in Pennsylvania, which was indeed copied in the firstagreement, so long kept secret, of the Standard Oil Trust; and alsothe corporate stock trust, that is to say, the practice then beginningof persuading stockholders to intrust a majority of the capital stockof the corporation into the hands of trustees, receiving in returntherefor trust certificates, with a claim to the net earnings of thecorporation, but without real voting power; and there are cases inwhich such trusts were sought to be held invalid and enjoined inequity, sometimes with and sometimes without success. 

Before going into the details of anti-trust legislation, it would bewell to sketch its history on the broadest possible lines. Legislationbegan first in the States some years before the Federal Anti-trustLaw, or Sherman Act, first enacted in 1890. These earlier statutes, including the Sherman Act itself, made illegal all contracts orcombinations between persons or corporations in restraint of trade;and their direct result was to compel the formation of the giganticmodern trust as we now understand it. Had the Sherman Act, instead ofbeing called "An Act to Protect Trade and Commerce Against UnlawfulRestraints and Monopolies, " been entitled "An Act to Compel theFormation of Large Trusts by all Persons Engaged in Similar Lines ofBusiness, " it would have been far more correctly described in itstitle. For whereas, before this act persons or corporations could makecontracts or arrangements among themselves which were good and validworking agreements unless so clearly monopolistic as to be heldunreasonable restraint of trade at the common law (which, indeed, so far as I know, was never done in any American court), afterthe Sherman Act was passed all such contracts, combinations, orarrangements, even when reasonable and proper, were made illegal andcriminal. The only escape, therefore, was to bring all such personsand corporations in the same trade together in one corporation, andthis is precisely what we now term a trust. Before 1890, in otherwords, a trust was really an agreement, a combination of individualsor corporations usually resting upon an actual deed of trust underwhich the constituent parties surrendered their property or thecontrol of their property to a central board of trustees; since 1890this kind of trust has practically disappeared and been replaced bythe single large corporation, either a holding company which holdsthe stock of all constituent companies, or under still more modernpractice, because more likely to stand the scrutiny of the courts, a huge corporation, with a charter given by the liberal laws of NewJersey, West Virginia, or other State, which actually holds, directly, all the properties and business of the constituent corporationsor persons. The modern question, therefore, has become really thequestion of the large corporation, its regulation and its control;further complicated, of course, by the fact that hitherto there hasbeen no power to control such large corporations except the very Statewhich creates them, which is usually quite indifferent to their actsso long as they pay the corporation tax. It is therefore a questionnot only of the large corporation, but of the powers of the Statesover each other's corporations and of the Federal government over all. Until the Northern Securities case, it was probably supposed that acorporation, being an individual, could not be guilty of a criminalconspiracy, and consequently could not in itself offend against theanti-trust acts. That case, and more recent decisions still, show adisposition of the courts to look behind the screen of the fictitiousentity of the corporation to the merits and demerits of the personsmaking it up, and the objects with which they came together and themethods they continued to use. 

The Federal statute was indeed necessary to this extent, that, although the common law was unquestioned, as there is no Federalcommon law in the absence of statute, and as interstate commercecannot be controlled by State law, either common or statute, it wasnecessary for Congress to declare that the principles of the commonlaw should apply to interstate commerce. It was also doubtless wise toremind the public of the existence of this body of law and to affixdefinite prohibitions and penalties. To this extent the anti-trustlegislation, both State and Federal, is fully justified. Nevertheless, it is noteworthy that the older States, where both the legislaturesand the bar had presumably a higher degree of legal education, rarelyfound it necessary to enact statutes against trusts. There hasnever been, for instance, any anti-trust law in Massachusetts or inPennsylvania, or for a long time in New York, for the first statuteof that State against trusts was made intentionally futile by beingapplied only to a trust which secured a complete--_i. E. _, one hundredper cent. --monopoly of its trade. 

The economic consideration of all such legislation we do not proposeto consider; whether it was wise to forbid all forestalling, forinstance--which at the common law meant buying at a definite distanceas well as at a distant time; that is to say, a person who boughtall the leather in Cordova was guilty of forestalling as well as theperson who bought all the sherry that was to be made in Spain in theensuing year--what we call the buying of futures. This is certainlyvery unpopular, and we find most of our States legislating against it;yet, of course, many economists argue that it is only by allowingsuch contracts that the price of any article can be made stable and asupply stored in years of plenty against years of famine. The firsthistorical example of forestalling and engrossing is to be found inthe book of Genesis. Joseph was not, I believe, a regrator, but hewas one of the most successful forestallers and engrossers that everexisted, and made a most successful corner in corn in Egypt; and hiscase is cited as a precedent in the Great Case of Monopolies abovementioned. James C. Carter tells us[1] that all these laws arecontrary to modern principles and were repealed a century ago. Icannot find that such is the case. On the contrary, they were madeperpetual in the thirteenth year of Elizabeth, and we find perfectly_modern_ trust legislation as early as Edward I, in 1285. In 1892 Ifind legislation already in nineteen States and Territories; NorthDakota, indeed, having already a constitutional provision. ThreeStates at least, Kansas, Michigan, and Nebraska, seem to have beenbefore the Federal Act, their laws dating from 1889; while severalStates have statutes in 1890, the year in which the Sherman Act wasenacted. There has hardly a year passed since without a good manystatutes aimed against trusts, though they have shown a tendencyto decrease of late years, and it is especially noticeable thatanti-trust legislation is apt to cease entirely in the years followinga panic, as if legislatures had learned the lesson that too muchinterference is destructive of business prosperity; I find that by1908 just about half the States had embodied a prohibition of trustsin 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 thecorporation law. To-day they specially aim at becoming a legalcorporation. In like manner their earliest object and desire was toescape all Federal supervision and interference by legislation orotherwise; to-day they are desirous of such regulation under Federalcharters, for the purpose of escaping the more multifarious andradical law-making of the forty-six different States. Before theIndustrial Commission in 1897-1900, all the heads of the great"trusts"--Rockefeller, Archbold, Havemeyer--testified in favor ofFederal incorporation; almost all other witnesses, except one or twoNew York or New Jersey corporation lawyers, against it. 

In the article in the _Harvard Law Review_, above referred to, thewriter suggested that the evil might be cured by compelling trusts toorganize as corporations, thereby bringing them under the regulationand control that the State exercises over corporations. That has cometo pass, but the remedy has not seemed adequate. In the early SugarTrust case, the New York Supreme Court decided that combinations tosell through a common agent, thereby, of course, fixing the price, with other common devices for controlling the market and preventingcompetition, were illegal at the common law; and also that acorporation which, in order to bring about such a combination, putall its stock in the hands of trustees or a holding company, therebyforfeited its charter, the only result of which decision was to drivethe Sugar Trust from its New York charters to a legal organization inthe State of New Jersey. It is noteworthy that one or two of themost obvious remedies for this condition of things have never beenemployed, possibly because they would be too effective. That is tosay, there might be legislation that a corporation should not act outof the State chartering it--that a New Jersey corporation, holding noproperty and doing no business in New Jersey, should not be used tocarry on business in New York. We also might have legislated, goingback to the strict principles of the common law, to forbid anycorporation, any artificial body, from holding shares in anothercorporation. It is doubtful, to-day, whether this can be done underthe common law, and the authors of the Massachusetts corporation lawrefused expressly to provide for it; on the other hand the proposedFederal Incorporation Act expressly validates it. We do, however, begin to see some legislation on this line of approach, notably in thecase of competing companies, several Western States at least havingstatutes forbidding a corporation from holding stock in suchcompanies; and it was one of the recommendations of President Taft'srecent message, at least as to railroad companies not holding half ofsuch stock. 

It will well repay us now to make a careful study of all theseanti-trust statutes, for the purpose of seeing whether they haveintroduced any new principles into the law, and also in what mannerthey express the old. Up to two or three years ago one might have saidthat not a single case had been decided in the courts of any State orof the Federal government against trusts or combinations, which mightnot have been decided the same way under common-law principles hadthere been no anti-trust legislation whatever. As is well known, thegreat exception to this statement is the interpretation of the FederalAct by the Supreme Court of the United States, declaring that anycontract in restraint of trade was unlawful under it, although itwould have been reasonable and proper at the common law. Laterindications are, as President Taft has said, that the courts will seea way to modify this somewhat extravagant position by reintroducingthe 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 andlawful 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 freecompetition in production or sale. " This, the Michigan statute, merelystates the common law, but goes on to declare such contract, etc. , acriminal conspiracy, and any act done as part thereof, a misdemeanor, and, in the case of a corporation, subjects it to forfeiture of itscharter. The law makes the exception, nearly universal in the Southernand Western States, that this anti-trust legislation shall not applyto agricultural products, live stock in the hands of the producer, norto the services of laborers or artisans who are formed into societiesor trades-unions--an exception which, of course, makes itclass legislation, and has caused the whole law to be declaredunconstitutional, so far as I know, by the highest court of everyState where it has been drawn in question, and under the FourteenthAmendment also by the Supreme Court of the United States; and in thisspirit President Taft has just acted in preventing a joint resolutionof Congress appropriating money to prosecute trusts from exemptinglabor unions. The Kansas statute is substantially like the Michigan, but more vague in wording (Kansas, 1889, 257). It denouncesarrangements, contracts, agreements, etc. , which (also) _tend_ toadvance, reduce, or control the price or the cost to the producer orconsumer of any productions or articles, or the rate of insurance orinterest 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 orcombination, or the assignment of powers or stock to a central board, and such trust certificates or other evidences of interest aredeclared void. The Alabama statute of 1891 is to similar effect. 

The Tennessee statute of 1891 is about the same as the Kansas statuteof 1889, above referred to, except that it adds the words "which tendin any way to create a monopoly, " and the Kansas statute makes trustcertificates unlawful, that being still the usual way of organizing atrust at that time. The Nebraska law (Nebraska, 1889, 69) is much thesame, except that it also denounces combinations, etc. , wherebya common price shall be fixed and whereby any one or more of thecombining parties shall cease the sale or manufacture of suchproducts, or where the products or profits of such manufacture orsale shall be made a common fund to be divided among parties tothe combination, and goes on to add that "pooling between persons, partnerships, corporations . . . Engaged in the same or like businessfor any purpose whatever, and the formation of combinations or commonunderstanding" between them is declared unlawful, and the persons aremade liable for the full damage suffered by persons injured thereby, and each day of the continuance of any such pool or trust shallconstitute a separate offence; this, the doctrine of a continuingconspiracy, being for the first time before the Supreme Court of theUnited 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 beyondwhat would be fixed by natural demand, and makes it a felony withpunishment up to ten years' imprisonment. Here for the first timeappears a statute against unfair competition. "Any merchant, manufacturer . . . Who shall sell any . . . Goods . . . For less than actualcost for the purpose of breaking down competitors shall be guilty ofa misdemeanor. " Tennessee the same year (Tennessee, 1899, 250) in itselaborate statute, which is a fairly good definition of the law, alsodenounces throwing goods on the market for the purpose of creatingan undue depression, whatever that may mean. In the next year, 1890, there were many more State statutes, but we should first notice asimple law of New York forbidding any stock corporation from combiningwith any other corporation for the prevention of competition (N. Y. , 1890, 564, 7). The usual statute in other States of that year isaddressed against combinations to regulate or fix prices or limitthe output, but Texas (4847a, 1) and Mississippi (1890, 36, 1) haveelaborate laws, which, however, add hardly any new principles to thecommon law. They define a trust to be a combination of capital, skill, or acts, by two or more persons or corporations, (1) to create orcarry out restrictions in trade; (2) to limit or reduce the output, orincrease or reduce the price; (3) to prevent competition; (4) to fixat any standard or figure whereby its price to the public shall be inany manner controlled, any article intended for sale, etc. ; (5) tomake or carry out any contract or agreement by which they are boundnot to sell or trade, etc. , below a common standard figure, or tokeep the price at a fixed or graduated figure, or to preclude free orunrestricted competition among themselves or others, or to pool orunite any interest. To much the same effect is the statute of SouthDakota (1890, 154, 1), but it also denounces any combination whichtends to advance the price to the consumer of any article beyond thereasonable cost of production or manufacture. The Louisiana (1890, 36)and New Mexico laws (1891, 10) are aimed particularly at attemptsto monopolize, while the Oklahoma statute (6620) was aimed only atcorporations, and the broad wording of the Federal act passed thisyear should be noted: "Every contract, combination, in the form oftrust or otherwise, or conspiracy in restraint of trade or commerceamong the several States or with foreign nations, is hereby declaredto be illegal" (U. S. , 1890, 647, 1); and in the second section: "Everyperson who shall monopolize, or attempt to monopolize, or combine orconspire with any other person or persons to monopolize, any partof the trade or commerce among the several States, or with foreignnations, shall be deemed guilty under this act. " And in the thirdsection: "Every person who shall make any such contract, or engagein any such combination or conspiracy, shall be deemed guilty of amisdemeanor. " The rest of the legislation provides penalties, manner, and machinery for the enforcement of these laws by prosecutingattorneys, etc. , with a usual allowance to informants; and it may behere noted that one great trouble has resulted from this machinery, for it provided injunction remedies and dissolution, which may wellbe too severe a penalty, and, furthermore, dispenses with a jury andthrows unnecessarily upon the court--even now, as in the Standard Oilcase, a distant high court of appeal--the burden of determining acomplicated and voluminous mass of fact. Our ancestors never wouldhave suffered such matters to be adjudged by the Chancellor!

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

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

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

In the twenty years that have elapsed since this early legislationthere has been considerable clarifying in the legislative mind; modernstatutes, and especially constitutional provisions, stating theoffence much more concisely, with a simple reliance upon the commonlaw, leaving it, in other words, for the courts to define. TheSouthern State constitutions generally enact that the legislaturesshall enact laws to prevent trusts. New Hampshire says: "Full and faircompetition in the trades and industries is an inherent and essentialright of the people, and should be protected against all monopoliesand conspiracies which tend to hinder or destroy. " Oklahoma providesthat "the legislature shall define what is an unlawful combination, monopoly, trust, act, or agreement, in restraint of trade, and enactlaws to punish persons engaged in any unlawful combination, monopoly, trust, act, or agreement, in restraint of trade, or composing anysuch monopoly, trust, or combination. " In Wyoming, monopolies andperpetuities, in South Dakota and Washington, monopolies and trusts, are "contrary to the genius of a free State and should not beallowed. " The constitutional provisions of North Dakota, Minnesota, and Utah are again a mere repetition of the common law. The NewHampshire statute grants "all just power . . . To the general court toenact laws to prevent operations within the State of . . . Trusts . . . , "or the operations of persons and corporations who "endeavor to raisethe price of any article of commerce or to destroy free and faircompetition . . . Through conspiracy, monopoly or any other unfair meansto control and regulate the acts of all such persons. " This lastclause, though a clear statement of the common law, would, of course, render hopeless Mr. Gompers's crusade in favor of the boycott, theobject of a boycott invariably being to control the acts of somebodyelse. Alabama directs the legislature to provide for the prohibitionof trusts, etc. , so as to prevent them from making scarce articlesof necessity, trade, or commerce, increasing unreasonably the costthereof, or preventing reasonable competition; and to much the sameeffect in Louisiana. 

We may well close this brief survey by a study of the volume of suchlegislation. We have, for instance, in 1890, seven anti-trust laws;in 1891, six; in 1892, one; in 1893, eight. In 1894, doubtless as aconsequence of the panic, anti-trust legislation absolutely ceased, and in 1895 there is only one law, passed by the State of Texas, itsold law having been declared unconstitutional. In 1896, under theinfluence of President Cleveland's administration, we find four suchstatutes, and in 1897, with reviving prosperity, thirteen. Still, we find no new principle, except, indeed, the somewhat startlingstatement in Kansas that it is unlawful to handle goods made orcontrolled by monopolies. The Illinois statute of that year permittedcombinations as to articles whose chief cost is wages when the objector effect is to maintain or increase wages, a qualification which ledto the whole law's being declared unconstitutional. In Tennessee thereis a special statute penalizing combinations to raise the price ofcoal, a statute with good old precedents in early English legislation. By this time most of the States had adopted anti-trust statutes. In1898 we find only one law, that of Ohio, giving the same five-folddefinition of the trust that we found above in Alabama, but itadds the somewhat startling statement that "the character of thecombination may be established by proof of its general reputation assuch, " and again it is made criminal to own trust certificates, withdouble damages in all cases to persons injured. A constitutionallawyer might well doubt whether a conviction under the last half ofthis statute would be sustained. In 1899 eleven of the remainingStates adopted anti-trust laws. In 1900 there is a new statute inMississippi prohibiting, among other things, the pooling of bids forpublic work, this again being a mere statement of the common law, although a law which has possibly grown uncommon by being generallyforgotten. 

In 1901 there are four statutes, that of Minnesota also including aprohibition of boycotts, and the first piece of legislation upon thesubject in the old Commonwealth of Massachusetts--an ordinary statuteagainst exclusive dealing; that is to say, the making it a conditionof the sale of goods that the purchaser shall not sell or deal in thegoods of any other person. In 1902 both the Georgia and Texas lawswere declared unconstitutional because they exempted agriculturalpursuits. South Carolina has a statute actually prohibiting any saleat less than the cost of manufacture, doubtless also unconstitutional. In Ohio corporations are forbidden to own stock in competingcompanies. The Illinois anti-trust act was declared unconstitutionalin 1903, while Texas amended its statute to meet the constitutionalobjection, and followed South Carolina in prohibiting the sale ofgoods at less than cost. 

In 1904 there is no anti-trust legislation. In 1905 the South Carolinalaw is held unconstitutional, and in 1906, that of Montana. In 1907, however, under the Roosevelt administration, there was a decidedrevival of interest, seventeen States adopting new statutes oramendments, but still I can find no new principles. Kansas copies theMassachusetts statute, and Massachusetts extends it to the saleor lease of machinery or tools. Minnesota and North Carolina haveinteresting statutes prohibiting discrimination between localitiesin the sale of any commodity. Most of the States by this time havestatutes compelling persons to give testimony in litigation abouttrusts and exempting them from prosecution therefor. North Dakota hasalso a statute prohibiting unfair competition and discrimination asagainst localities, while Tennessee makes it a misdemeanor to sell anyarticle below cost or to give it away for the purpose of destroyingcompetition. In 1908 Louisiana and Mississippi adopted the principleforbidding discrimination against localities, and the new State ofOklahoma comes into line with the usual drastic anti-trust statute, and we may, perhaps, conclude this review of a somewhat unintelligentlegislative history by perhaps the most amusing example of all. The Commonwealth of Massachusetts, which had so far refrained fromunnecessary legislation on this great question, thought it necessaryto adopt a statute making void contracts to create monopolies inrestraint of trade, which well shows the necessity of a legislativereference bureau or professional draftsman, as discussed in a laterchapter. That is to say, it says literally: "Every contract, etc. , in violation of the common law . . . Is hereby declared to be againstpublic policy, illegal, and void. " As the law of Massachusetts is thecommon law, and always has been the common law, this amounts to sayingthat a contract which has always been void in Massachusetts is nowdeclared to be void. But, moreover, on a familiar principle ofhermeneutics, it might be argued to repeal the whole _criminal_ commonlaw of restraint of trade--doubtless the last thing they intended todo!

As this is a book upon actual legislation, it would be out of placeto attempt a serious discussion of the problem that lies before us. Suffice it to say that there are three possible methods of approachingthe question, as it is complicated with the interstate commerce powerof the Federal government. That is to say, either to surrender thispower to the States, at least so far as it may be necessary to enablethem to regulate or prohibit the actions of combinations in theStates, even when engaged In interstate commerce; or, second, by perfecting the present dual system and establishing Federalsupervision over State corporations engaged in interstate commerce byway of license and control; or, third, the most radical remedy of all, apparently adopted by the present administration, of surrenderingentirely the State power over corporations to the Federal government, at least as to such corporations as might choose to take advantage ofsuch legislation. This would result in a centralization of nearly allbusiness under the control of the Federal government, as well as theremoval of the great bulk of litigation from State to Federal courts. If not carefully guarded it would deprive the States not only of theirpower to tax corporations, but of their ordinary police powers overtheir administration. Such a radical step was unanimously opposed bythe United States Industrial Commission in 1900, and by nearly alltheir expert witnesses, and was then, at least, only favored by theheads of the great trusts, Mr. Archbold, Mr. Rockefeller, and Mr. Havemeyer. [1] But whichever way we look at it, there is no questionthat the problem of the modern trust is that of the corporation, bothas to what laws shall regulate such a corporation, and whether theyshall 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'sdebate with Judge Grosscup, printed in the _Inter-Nation Magazine_ forMarch, 1907. ]

X

CORPORATIONS

The earliest trading or business corporation in the modern sense nowextant 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 actualprecedent in economic history; that is to say, as a phenomenon underwhich the greater part of business affairs was in fact conducted. Whether derived historically from the guild or the monasticcorporation of the Middle Ages is a question merely of academicimportance, for the business corporation rapidly became a verydifferent thing from either; and, indeed, its most importantcharacteristic, that of relieving the members of responsibility forthe debts of the corporation, is an invention of very modern timesindeed, the first statute of that sort having been invented in theState of Connecticut, enacted in May, 1818. These early Englishcorporations, such as the Turkey Company, the Fellowship of MerchantAdventurers, chartered in 1643, or the Hudson Bay Company, usuallygave a monopoly of trade with the respective countries indicated, suchmonopolies in foreign countries not being considered obnoxious. [1] Thewording of such early charters follows substantially the language ofa town or guild charter, and was doubtless suggested by them. Unfortunately, it has never been the custom to print corporationcharters in the Statutes of the Realm, and it is practicallyimpossible to get a sight of the original documents if, indeed, inmany 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 othergreat right, perpetual succession; but no notion appears, for at leasttwo centuries, that the shareholders are relieved from any of thelegal obligations of the corporation. 

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

In order to understand this whole problem it is necessary to bearin mind certain cardinal principles of our constitutional law. Allcorporations, with the exception of national banks, two or threerailroad companies, and the Panama Canal, have been and are creaturesof the State, not, as yet, of the Federal government, which can onlycreate them for purposes specifically delegated to it and not merelyfor private profit. The power to create corporations is essential tosovereignty, and the sovereign may decline to recognize all but itsown corporations. Under the doctrine of comity, such corporations canact in any other State with all the powers given them in the Statewhere they are created, except only they be expressly limited by astatute of such other State. They may, however, be entirely excluded;only not to the destruction of property rights once acquired. On theother hand, corporations conducting interstate commerce may not beexcluded or such business interfered with by State legislation. 

The writer was for four years counsel to the Industrial Commission atWashington and one of the commissioners appointed to draw the presentbusiness corporation law of Massachusetts. In both such capacities hehad the advantage of hearing the expert opinions of many witnesses. There were two, and only two, broad theories of legislation aboutprivate business corporations: One view, the older view, that theyshould be carefully limited and regulated by the State at every point, and that their solvency, or at least the intrinsic value of theircapital stock, should, as far as possible, be guaranteed bylegislation, to the public as well as to their creditors andstockholders; and that for any fraud, or even defect of organization, the stockholders, or at least the directors, should be liable. On theother hand, the modern view, that it was no business of the public toprotect investors, or even creditors, and that the corporations shouldbe given as free a hand as possible, with no limitation as to theirsize, the nature of business they are to transact, or the paymentin of their capital stock. This is the corporation problem. TheState-and-Federal problem may be called that other difficulty whicharises from the clashing jurisdictions of the States among themselvesand with the Federal government, their laws and their courts, as tothe 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 withimmortality and with the right not to be answerable for anything thathe did. You can easily see that the structure of society, at leastas to property, labor, and business affairs, would be very decidedlyaltered. Yet this is what really happened with the invention of themodern corporation; only we have got completely used to it. It wouldbe possible to have got on without any business corporations at all. Striking as this may seem at first thought, one must remember that theworld got on very well without corporations for thousands of years, and that it was by a mere historical accident and a modern inventionthat the two great attributes of the corporation, immortality andpersonal irresponsibility, were brought about. All business mightstill be conducted, as it was in the Middle Ages, by individual menor by partnerships, and still we should have had very great singlefortunes like that of Jacques Coeur in France, an early prototype ofMr. J. Pierpont Morgan, or even vast hereditary fortunes kept inone family, like the Fuggers of Augsburg, and based on a naturalmonopoly--mineral salt--as is Mr. Rockefeller's upon mineral oil. Yetas lives are short and abilities not usually hereditary, the greatcorporation question of to-day would hardly have arisen. Nevertheless, it is presumed that no one, not even the greatest radical, would nowpropose to dispense with the invention of the business corporationwith limited liability. 

A careful discussion of the two theories above referred to will befound in pages 1 to 28 of the report of the Committee on CorporationLaws to the legislature of Massachusetts, of January, 1903. The billfor a business corporation law recommended by this committee wasenacted into law without substantial change, and has apparently beensatisfactory in the six years it has been in force, as the amendmentsto it, except only as to the system of taxation of corporations, havebeen few and trifling. I venture to quote from the report referred toa 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, showsthat there are possible two general theories as to the State's duty increating corporations: first, the old theory that, being creaturesof the State, they should be guaranteed by it to the public in allparticulars of responsibility and management; and the modern quiteopposite theory that, in the absence of fraud in its organization orgovernment, an ordinary business corporation should be allowed to doanything that an individual may do. Under the old theory the capitalstock of a corporation was, in the law, considered to be a guaranteefund for the payment of creditors, as well as affording a method ofconveniently measuring the interests of the individual owners of acorporate enterprise. There resulted from this principle not only thefundamental proposition that the capital stock, being in the nature ofa guarantee fund, should be paid up at its full par in actual cash, but all the other provisions to protect creditors or other personshaving dealings with the corporation; such as, that the debts of acorporation should not exceed its capital stock--designed primarily inthe interest of creditors and secondarily in that of the stockholders, who were looked after as carefully as if they were the wards of theState when dealing in corporation matters. Under the modern theory, the State owes no duty, to persons who may choose to deal withcorporations, to look after the solvency of such artificial bodies;nor to stockholders, to protect them from the consequences of goinginto such concerns, the idea being that, in the case of ordinarybusiness corporations, the State's duty ends in providing clearly thatcreditors and stockholders shall at all times be precisely informed ofall the facts attending both the organization and the managementof such corporations, and particularly that there should be fullpublicity given to all details of the original organization thereof. 

The committee has had little hesitation in determining which of thesetheories it should adopt. The limit of capitalization both in amountand in valuation to the net tangible assets of the corporation hasunquestionably had much to do with the arrest of corporate growth inthis commonwealth. Good-will, trade-marks, patents may unquestionablybe valuable assets, which, under our present method, may not becapitalized. Admirable as this theory may have been, of payment ofcapital stock in full in cash, the condition is so easily avoidedin practice that the result is that our existing law promises aprotection which, in reality, it does not afford, and is merely anembarrassment to those who feel obliged to comply not only with theletter but with the spirit of the law. It is no longer true thatpersons dealing with corporations rely upon the State laws toguarantee their solvency or their proper management. The attempts ofthe commonwealth to do so by laws still remaining on its statute booksresult, as we apprehend, only in a false sense of security; and webelieve that the act proposed, while giving up the attempt to do theimpossible thing, will really, by its greater attention to the detailsof organization required to be made public by all corporations, resultin an advantage to stockholders and creditors more substantial thanthe present partial attempt to enforce a principle impossible ofcomplete realization and which is, under existing laws, easily evaded. 

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

The question of monopoly the committee does not conceive to havebeen left to its consideration. The limitations now existing on thecapitalization of business corporations are, no doubt, attributableto the sentiment which has always existed against monopoly, but itis clearly the policy of the commonwealth, as shown in itsrecent legislation, to do away with the attempt to prevent largecorporations, simply because they are large. Moreover, it isapprehended that the question of monopoly, or rather of the abuse ofthe power of large corporations, does not result necessarily from thesize 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 afailure to appreciate that its real object is not to protect theinvestor, who can or should learn to take care of himself, or thecreditor who has already learned to do so. The real purpose of suchlegislation is the protection of the consumer. In other words, thereis no reason for an arbitrary limitation of capitalization unless itcan be used as a means of creating a monopoly which will influence theprice of commodities. In the opinion of the committee, the questionof capitalization is not a contributing factor in the fight for amonopoly. The United States Steel Company would have no greater andno less a monopoly of the steel business if it were organized withone-half of its present capitalization. The Standard Oil Company hasa very conservative capitalization, and yet it is the most completemonopoly of any industrial corporation in this country. 

It has not been the intention of the committee to draft a law whichwill be favorable to the organization of large corporations popularlyknown as "trusts. " Inasmuch as the recommended law requires taxes tobe paid upon the full value of the corporate franchise, which is, atleast to some extent, measured by the amount of capitalization, therewill always be this very potent reason for keeping capitalizationat the lowest possible point. Indeed, it is apprehended that theorganization of a corporation large enough to control a monopoly ofany staple article is practically prohibited by the provisions of therecommended law as to taxation, which will be referred to in greaterdetail in part II of this report. At all events, it is no better forthe State to leave its citizens at the mercy of the large corporationscreated by other less careful sovereignties, than to permit theorganization of corporations adequate to the demands of modernbusiness under its own laws, subject to its own more carefulregulation and control. Under our State and Federal system it ispractically impossible for any one State, by its own laws, to controlforeign corporations, but so far as possible at present the committeehas sought to subject them to the same safeguards of reasonablepublicity and accurate returns, both as to organization and annualcondition, as the State requires of its own corporations. The simplerequirement of an annual excise tax, based on the capitalization ofsuch foreign corporations, will serve to bring them under the controlof this State and the way will be open for their further regulation ifdesirable. This annual tax has been levied upon the same principleas the corresponding tax paid by home corporations. The State shouldimpose no greater burden on foreign corporations than on its own, butshould, so far as possible, subject them to its own laws. 

The recommendations of the committee have, therefore, been controlledby 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 businesscorporations are concerned, and excluding insurance, financial andpublic service corporations, the State cannot assume to act, directlyor indirectly, as guarantor or sponsor for any organization undercorporate form. It can and should require for itself and for the useof all persons interested in the corporation, the fullest and mostdetailed information, consistent with practical business methods, as to the details of its organization, the powers and restrictionsimposed upon its stockholders and as to the property against whichstock is to be or has been issued. Provision is, therefore, madein the law drafted by the committee for the organization of suchcorporations for any lawful purpose other than for such purposes asthe manufacture and distilling of intoxicating liquors or the buyingand selling of real estate which it has been the consistent policy ofthe commonwealth to except from incorporation under the general law. Any desired capitalization above a minimum of one thousand dollars maybe fixed. Capital stock may be paid for in cash or by property. If itis paid for in cash, it may be paid for in full or by instalments, anda machinery has been created for protecting the corporation againstthe failure of the subscribers to stock to pay the balance of theirsubscriptions. If stock is paid for by property, the incorporators andnot the State are to pass upon its value. Before any stock, however, can be issued for property, a description of the property sufficientfor purposes of identification, to the satisfaction of theCommissioner of Corporations, must be filed in the office of theSecretary of the Commonwealth. This document becomes a public recordand may be consulted by any one interested in the corporation. If theofficers of a corporation make a return which is false and which isknown to be false, they are liable to any one injured for actualdamages. If a full and honest description is made of property againstwhich stock is issued, a stockholder cannot complain because of hisfailure to inform himself by personal examination or investigation ofthe value of the property in which he is, or contemplates becoming, aninvestor. 

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

The second principle upon which the committee has acted in itsspecific recommendations is this: that the State should permit theutmost freedom of self-regulation if it provides quick and effectivemachinery for the punishment of fraud, and gives to each stockholderthe right to obtain the fullest information in regard to his ownrights and privileges before and after he becomes the owner of stock. 

Upon this theory the committee has recommended a law which permits thecorporation to determine the classes of its stock and the rights andliabilities of its stockholders. The recommended law provides forincreasing or decreasing the amount of capital stock upon theaffirmative vote of a majority of its stockholders. For the protectionof a minority interest of stockholders it requires a two-thirds voteto change the classes of capital stock or their voting power, tochange the corporate name or the nature of the business of thecorporation, or to authorize a sale, lease, or exchange of itsproperty or assets. 

Directors are made liable, jointly and severally, for actual damagescaused by their fraudulent acts, but no director is made so liableunless he concurs in the act and has knowledge of the fraud. Theliability of stockholders is limited to the payment of stock forwhich they have subscribed, to debts to employees, and in cases ofa reduction of capital when they concur in the vote authorizinga distribution of assets which results in the insolvency of thecorporation. An attempt has been made to give to the stockholder anopportunity of securing for himself the fullest information on allpoints touching his interest. 

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

The committee has been guided upon this subject by the theory that thetreatment of foreign corporations by the Commonwealth should, so faras practicable, be the same as of its own, particularly so far asconcerns the liabilities of officers and stockholders, the statementsfiled with the State authorities for the information of stockholdersor others as to their capitalization and the methods adopted of payingin their stock, and the annual reports of condition required fortaxation purposes or otherwise. On the same principle a nominalfranchise tax is annually imposed corresponding to the tax imposed bythe State on its own corporations and made approximately proportionalin amount. 

A few broad general principles are almost universal in Americanlegislation on the subject. Ordinary business corporations are nowalmost universally created under general law, and indeed by theconstitutions of many States are forbidden to be created by specialcharter. [1] There is generally, however, no limitation by constitutionon the size or capitalization, though the duration of corporations isfrequently limited to twenty, thirty, or fifty years; and there isgenerally no limitation on the nature of the business that may bedone, except, in a large number of States, banking and insurance, andexcept that there is in many States, as, notably, Massachusetts, aprejudice against land companies, so that they may not be createdwithout 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 ofstock actually held or such portion of them as may not have been paidup by the stockholder in cash or property value. Massachusetts and themore conservative States attempt to provide that the stock shall beactually paid up in money or in property of the real value of money, at par. New Jersey, New York, Maine, West Virginia, and the laxerStates, practically allow their directors to issue stock for anythingthey choose--labor, contracts, property, or a patent right--and theirjudgment on the value of such property is held to be final in theabsence of fraud. Corporations are usually taxed, like individuals, on their tangible, visible property, real and personal, and in manyStates there is also a franchise tax on their shares. [1] There is afrequent limitation that the corporate indebtedness shall not exceedthe amount of the capital stock. [2] No States, except Vermont andNew Hampshire, seem now to have any limitation on the amount of thecapital stock, or if there be a limitation, as of one million dollarsat the time of formation, the corporation may subsequently increaseits stock to any amount. [3] Michigan, however, had a limitation offive million dollars as to manufacturing or mercantile corporations, and two million five hundred thousand dollars as to mines; whileAlabama and Missouri had a general limit of ten million dollars. Thegeneral tendency is clearly to have no limitation whatever. Commonlyonly a nominal proportion of the capital stock is to be paid in beforethe company begins business, but the stockholders are always liableto creditors for the amount unpaid. As already remarked, stock mayusually be paid up in property, labor, or services, or, indeed, any legal consideration; and though most States provide that suchproperty, 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, atpp. 207-295. ]

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

[Footnote 3: MacLeod, p. 169. ]

That stockholders are individually liable to the extent of the unpaidbalance on their stock is merely a statutory statement of the ordinaryrule in equity. It is, therefore, law without statute. Apparently onlyIndiana and Kansas now impose a double liability, the law in Ohiohaving been recently altered by constitutional amendment. In severalStates, however, they are liable for debts due for labor; inCalifornia they are absolutely liable for such proportion of allliabilities of the corporation as their stock bears to the totalcapital stock, while in Nevada they are expressly exempted from anyliability whatever. 

We can trace two other decided tendencies in recent legislation aboutcorporations. First, the increasing effort to bring about publicity ofall such matters as well as of the annual books and accounts, wellexemplified in the Massachusetts statute; second, the usual strongprohibitions against consolidations to permit trusts or contracts tofurther monopoly. There has also been a still more recent line oflegislation to prevent corporations from holding stock in othercorporations, or, at least, in competing companies; and to prevent aliencorporations from holding land. [1] Under the strict common law nocorporation could own or hold stock in another corporation or in itself. This has been completely departed from in practice in this country, andthough not affirmatively recognized in most statutes--the Massachusettsstatute, for instance, carefully avoids providing that the corporationmay own stock in other companies--yet the practice has been universallyratified by the courts, if not by the implications of legislation. Thisnew tendency to forbid it therefore is merely a return to common-lawdoctrine. Thus, [2] in 1903 only five States--Connecticut, Delaware, Maine, New Jersey, and Pennsylvania--provided generally that acorporation might own stock in another corporation; two States--Indianaand Minnesota--so provided as to manufacturing or mining companies. InNew York, Ohio, and other States, a corporation could only own stock inanother corporation engaged in a similar business, or a business usefulor subsidiary, or in a corporation (New York) with which it was legallyentitled to consolidate; but the tendency of recent legislation isprecisely opposite on this point, forbidding stockholding by allcorporations in similar or competing companies, or more specificallyforbidding stockholding in similar or competing companies, as well asstockholding 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 harmfulto the public, and to the public morals, and has been the main causemaking possible the speedy acquisition of immense private fortunes. The stockholding trust or the device by which (as in the Rock IslandRailway system) a corporation is created for the purpose of holdinghalf the stock of the real corporation and then possibly a thirdcorporation, still to hold half the stock in the second, each of themparting with the other half, obviously makes possible the controlof immense properties by persons having a comparatively small realinterest. It is a mere arithmetical proposition, for instance, in thecase mentioned, that whereas in one corporation it takes one-half ofthe stock to control it, the first holding company will enable itto be controlled by one-fourth and the second by one-eighth of theoriginal stock. Legislation should properly be much more drastic onthis point; but indeed our whole corporation legislation seems ratherto have been drawn by able lawyers with a view of protecting thecorporation or the person who profits by the abuse thereof, than witha real desire to apply intelligent and practicable remedies to thesituation. Thus, until very recently, if now, there has been nolegislation along this great line of preventing the holding andgoverning of corporations by such a system of Chinese boxes; nor hasthere been up to date any legislation whatever along the other greatline of excluding objectionable corporations from doing business inthe State, which any State has, except as to interstate commercecorporations, the unquestioned right to do. This right will, ofcourse, disappear entirely if the recommendation of the presentadministration for a general Federal corporation law be adopted. Theinvention of the corporate share enables a clever few to control themany; a small minority to control the vast bulk of the real interestof all property in the country; the problem has obviously proved toogreat for popular intelligence, for so far little real legislation inthe people's interest has been effected. Like most ancient popularprejudices, however, the blind instinct against corporations, commonamong our Populists, has a strong historical basis; it comes directlydown from the prejudice against Mortmain, the dead hand, and from thatagainst the Roman law; for corporations were unknown to the commonlaw, and legislation against Mortmain dates from Magna Chartaitself. [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 UnitedStates Industrial Commission. "]

It would perhaps be possible for Congress to pass an act forbiddingany corporation to carry on its business outside of the State where itis chartered, unless, of course, it got charters from other States;certainly the States themselves might do so. This remedy also hasnever been tried, and hardly, in Congress, at least, been suggested. Yet it were a more constitutional and far safer thing to do thanto cut the Gordian knot by a Federal incorporation act, which willforever securely intrench the trusts against State power. Even if NewJersey or the Island of Guam goes on with its lax corporation laws, permitting its creatures to do business all over the land withoutproper regulation, this power could thus be instantly taken away fromit by such an act of Congress, even if the States themselves remainedunready or unwilling to act. Then no corporation could be "charteredin New Jersey to break the laws of Minnesota, " even if Minnesotapermitted it. 

Trusts started as combinations and ended as corporations. They beganas State corporations, subject both to State and Federal control andregulation; they may end as Federal corporations subject to no controlexcept by Congress. It is too early yet to predict the result, butone assertion may be hazarded, that just as the original Sherman Actagainst trusts compelled the formation of trusts, so this proposedFederal legislation will compel the formation of Federal trusts, byall but the most local of business corporations. 

As to public-service corporations, both the legislation and theprinciple on which it rests are, of course, quite different. There isno serious difference of opinion that the stock should be paid up inactual money at par nor that dividends at the expense of the publicshould not be paid on watered stock. More and more the States areputting this sort of legislation into effect. There is also thegeneral provision discussed in a former chapter that the rates orcharges of all such corporations may be regulated by law or ordinance;and by far the most notable trend of legislation in this particularhas been that franchises of corporations should be limited in time andshould be sold at auction to the highest bidder. Thus, by a Californialaw of 1897, all municipal franchises must be sold for not less thanthree per cent. Of the gross receipts and after a popular vote orreferendum on the question. It has been matter of party platform forsome years that all franchises should thus be submitted to the localreferendum. That is, all exclusive franchises whereby rights inthe streets, or other rights of the public, are given away to acorporation organized for purposes of gain. In Louisiana, streetrailway franchises may only be granted on petition of a majority ofthe abutters, and must be sold at auction for the highest percentageof gross receipts, and so substantially in South Carolina. InWashington, an elaborate statute against discrimination bypublic-service corporations was passed by the initiative; but as thestatute itself omitted the enacting clause the law has been held to beof no effect. Lastly, we will note as the most recent tendency, amore intelligent limitation by the States themselves of corporationsorganized in and by other States, frequently denying to such the rightof eminent domain or, as in Massachusetts, to do business or makecontracts without making full annual returns and submitting in allrespects to the State jurisdiction. Under recent decisions of theSupreme Court, however, this power does not extend to any corporationdoing an interstate commerce business; and, of course, under theFederal Incorporation Act, proposed by the present administration, theStates 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 powerwould extend, it will be almost impossible to define. 

XI

LABOR LAWS

Much of the law affecting employers or combinations of capital hasits correlative, or rather equivalent, in combinations of labor; butleaving the matter of combinations for the next chapter, and reservingfor this only statutes affecting the individual, we must again insistupon that great cardinal liberty of labor under the English commonlaw, which already gives it a certain privilege and dispenses it fromthe laws affecting ordinary contracts, that is to say: _the contractof labor, alone of contracts under the English law, may not beenforced_. When we say "enforced" we of course mean that the laborermay not be compelled to carry it out; what, in the law, we callspecific performance. This is a matter of such essential importancethat it cannot be too strongly accentuated, as it is surprising howignorant still the popular mind is upon this subject, how little itrealizes labor's peculiar advantage in this particular. But it hasalways been true of the English and American law, at least since thatearly labor legislation sketched above in chapter 4 which came toa final end at least as early as Elizabeth, that no man could becompelled to work--except, of course, by way of punishment forcrime--and more than that, he could not even be compelled to work orcarry out a specific contract of labor to which he had bound himselfby all possible formality. "Specific performance" is the peculiarprocess of a court of chancery, and at this point the resistance ofthe freemen of England we have traced in earlier chapters becameabsolutely effectual; that is to say, the court of chancery was neverallowed to extend its strong arm over the labor contract. Even thatfamous first precedent of "government by injunction" discussed by usabove (page 74) was resisted in early times, the precedent was notfollowed, it fell into complete desuetude, and it remained for thecase of Springhead Spinning Company _v_. Riley, [1] decided as late as1868, to extend the injunction process to the prohibition of a strike. And in more recent labor cases it has been found that the line betweenprohibiting a man from leaving his employment, even under peculiarcircumstances, and ordering him to proceed with his contractof employment and to carry it out, is extremely fine, if notindistinguishable. [2]

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

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

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

The other basic principle affecting all questions of labor law is thatof freedom of trade or labor, correlative to the principle of freedomof contract as to property right, and, indeed, embodying that notionalso. That is to say (perhaps I should say, to repeat) that anEnglishman, an American, has a right to labor where and for whom andat what he will, and freely to make contract for such labor, andfreely to exercise all trades, and not to be combined against byothers, or competed with by a monopoly favored by the state. Theselast two clauses, of course, belong to our next chapter. This right ofcontract is not peculiar to the English law, as is the right not to becompelled to personal service, and is much better understood; thoughit is still earnestly argued by many advocates of union labor thatthere is no real freedom of contract, or, at least, equality ofcontract, between the employer and the employee; that therefore"collective bargaining" should be allowed, and that therefore, andfurthermore, the wiser or the better organized should be permitted tocombine to control the contract or the labor of the individual. But ifwe hold thoroughly these two principles before our mind we shall havethe key to the understanding of our labor legislation; and if we addto that the third principle against conspiracy, we shall have the keyto our more complicated legislation against trusts and blacklists andboycotts, 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 attemptedinterference, with these principles in modern American legislationgoes without saying. The motive or force behind such legislation haspretty clearly two sources: First, the behest or desire of the "Laborinterest" or organized labor, the trades-unions themselves; and whenwe analyze these and their constituents we shall find that it reallymeans only mechanical or industrial labor, not farm or agriculturallabor (which is still in numbers the greatest body of labor in theUnited States), nor, as yet, domestic service labor, nor what thecensus calls "personal service, " which is probably next in numericalimportance, nor clerks; it is a comparatively small class in numbers, this class of skilled mechanical or manufacturing labor, that hasbrought about this immense mass of legislation of our modern Statesaimed at improving their own labor conditions; and which therefore, necessarily perhaps, interferes with personal liberty as to the laborcontract, or, at least, seeks to regulate it. 

The other great influence is rather a motive than a source; we maycall it, for want of a better word, the sentimental or the altruisticmotive--the moral motive; the forces behind it being mainly of areligious or moral origin, philanthropists, students of ethics, andrecently, to a great extent, the women and the women's clubs. Theactivity of these great forces may be clearly traced through thenineteenth 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 Englanda woman delegate was refused a seat upon the platform, while herhusband, a comparatively obscure person, was recognized as theleading representative from America; and ending of late years inthe prohibition movement, to regulate or prohibit the trade inintoxicating liquors, and to exclude the canteen from the army. But inthe latest years, in these last very few years indeed, the forces ofthis category have devoted a large proportion of their "categoricalimperative" to labor conditions and the labor contract. 

These great forces are entirely impatient of constitutional principlesand somewhat indifferent as to the law, while always very desirousof making new statutes themselves. But their combined influence isenormous, so much so that almost any cause to which they devotethemselves will in the long run succeed; unless, indeed, theirattention is diverted to some other need, for it may be suggested thatthey are somewhat fickle of purpose. For example, their success inthe antislavery movement makes the American history of the nineteenthcentury; in the prohibition movement they were, in the middle decadesof that century, almost entirely successful, and while apparentlythere was a set-back in the twenty years of individualistic feelingwhich marked the growth of the Democratic party to an equality withits great rival, the movement of late years seems to have taken onrenewed strength, probably on account of the so-called negro questionin the South. And while, as to votes for women, they seem to have madeno progress beyond the adoption twenty years ago of women's suffragein four new Western States and Territories, this last year, it must beadmitted, the movement has taken on a new strength in sympathy withthe agitation in England. There are now already symptoms of a fourthcause--the reform of marriage, divorce and the laws regulatingdomestic relations, and the control of children. It is possible thatthese matters will be taken up actively in coming decades, and we, therefore, reserve them for a future chapter; this new effort isitself partly bound up with the women's suffrage movement, and in itslatest manifestation--that of proposing legislation preventingmen from marrying without permission from the state--it is a mostpicturesque example of that absence of constitutional feeling we havejust adverted to. 

Now this freedom-of-contract principle is one which, of course, legislation attempting to regulate the labor contract is peculiarlyliable to "run up against"; and it is, for this reason, not only orchiefly because "labor" is opposed to the Constitution or because thecourts are opposed to "labor, " that so many statutes, passed atleast nominally in the interest of labor, have been by them declaredunconstitutional. For instance, it is a primary principle that anEnglish free man of full age, under no disability, may control hisperson and his personal activities. He can work six, or four, oreight, or ten, or twelve, or twenty-four, or no hours a day if hechoose, and any attempt to control him is impossible under thesimplest principle of Anglo-Saxon liberty. Yet there is possibly amajority of the members of the labor unions who would wish to controlhim in this particular to-day; and will take for an example thatunder the police power the state has been permitted to control him inmatters affecting the public health or safety, as, for instance, inthe running of railway trains, or, in Utah, in labor in the mines. Butfreedom of contract in this connection results generally from personalliberty 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) ishis property, and the right of property is of no practical use if youcannot have the right to make contracts concerning it. 

The only matter more important doubtless in the laborer's eye than thelength 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 therehas been practically no attempt to regulate the _amount_ of wages. Wefound such legislation in mediaeval England, and we also found thatit was abandoned with general consent. But of late years in thesesocialistic days (using again socialistic in its proper sense of thatwhich controls personal liberty for the interest of the community orstate) it is surprisingly showing its head once more. In Australasiaand more recently in England we see the beginning of a minimum wagesystem which we must most carefully describe before we leave thesubject. There was in the State of Indiana a law that in ordinaryunskilled labor in public employment there should be a minimum wage offifteen cents per hour or twenty-five cents for a man and horse--sincedeclared unconstitutional by Indiana courts: while to-day such laborreceives 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 usfamiliar with the practice of towns and villages in New England or NewYork in passing a vote or town ordinance fixing the price of wagesat two dollars per day, or a like sum; but this practice, it must beremarked, is in no sense a _law_ regulating wages; it is merely theresolution or resolve of an employer himself, as a private citizenmight say that he would give his gardener fifty dollars a monthinstead of forty. And, on the other hand, the Constitution ofLouisiana provides that the price of wages shall never be fixed bylaw. Now it will be remembered that the Statutes of Laborers of theMiddle Ages, when they regulated the price of wages, led directly tothe result that they made all strikes, all concerted efforts to get anincrease of wages, unlawful and even criminal; in fact, it may be saidthat this attempt to bind the workmen to a wage fixed by law was thevery cause of the notion that strikes were illegal, which, indeed, wasthe English common law down to early in the last century. Moreover, when an English mediaeval peasant refused to labor for his three pencea 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, andwhich resulted--if not in slavery--in precisely that condition whichwe call "peonage. " Economically speaking, the attempt to regulatewages was, of course, a mistake; politically speaking, it wasuniversally unpopular, and no class was more desirous than the workingclass themselves of getting rid of all such legislation, which theydid in France at the French Revolution, and in England nearly twocenturies earlier. Only socialists should logically desire to go backto the system, and in the one modern English-speaking State which islargely socialistic--New Zealand--it is said that the minimum wage lawhas had the effect that a similar resolve has had in Massachusettstowns: to drive all the old men and all the weaker or less skilled outof employment entirely, and into the poorhouse;[2] for, at a fixedprice, it is obvious that the employer will employ only the mostefficient labor, and the same argument causes some of their morethoughtful friends to dissuade the women school-teachers in New Yorkfrom their present effort to get their wages or salaries fixed by lawat 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 selectmenasked what, he should do under vote of town meeting requiring him topay 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 givingthem one dollar and a quarter per day. Under this two-dollar vote wecannot do it without bankrupting the town. " He was advised to go aheadand still pay them the dollar and a quarter per day and take thechance of a lawsuit, which he did, and so far as the writer knows nolawsuit has ever been brought; but in all cases that would not be theresult. ]

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

A principle somewhat akin to that of a vote of a town fixing the rateof wages is the recent constitutional amendment in the State of NewYork (see above, p. 161) which validated the statute requiring that inpublic work (that is to say, labor for the State, for cities, towns, counties, villages, school districts, or any municipality of theState), or _for contractors employed directly or indirectly by theState or such municipality_, that rate shall be paid which is usualat the time in the same trade in the same neighborhood. This was theearliest statute, which was declared unconstitutional (see above, p. 161). The lack of interest in this tremendously important matter isshown in the fact that not one-third of the voters took the troubleto vote on the amendment at all, and that for three days after theelection no New York newspaper took notice of the fact that theamendment had passed. Up to this constitutional amendment the courtsof New York, as well as those of California and even of the UnitedStates, had resented with great vigor the attempt of statutes to makea crime the permitting of a free American citizen to work over eighthours if he liked so to do. But in New York at least (now followedin Delaware, Maryland, and Oklahoma) it is now settled that so muchinterference even with the rate of wages may be allowed, and as thepercentage of public employment is, of course, very large--covering asit does not only all public contractors, but all labor in or for gaolsor public institutions--it will necessarily, it would seem, drag withit a certain practical regulation of private industry corresponding tothe 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 mixedcommission (see above, p. 159); but otherwise than as above there isin the States and Territories of the United States, and in the UnitedStates itself, no regulation of wages, even of women or children, andno attempt, as yet, at a minimum wage law. 

When we come to hours, the matter is very different. In the firstplace, we must be reminded that without a constitutional amendmentyou cannot have any direct or indirect legislation, as to generaloccupations, on the hours of labor of a man of full age. [1] You canhave regulation of the hours of labor of a woman of full agein 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 andconstitutional law; but the Oregon case, [3] decided both by the StateSupreme Court and by the Federal Court in so far as the FourteenthAmendment was concerned, after most careful and thorough discussionand reasoning, reasserted the principle that a woman is the ward ofthe state, and therefore does not have the full liberty of contractallowed to a man. Whether this decision will or will not be pleasingto the leaders of feminist thought is a matter of considerableinterest. A similar statute in Illinois had been declaredunconstitutional twenty years before, largely on the ground thatto limit or prohibit the labor of woman would handicap her in herindustrial competition with man, pointing out also that the IllinoisConstitution itself prescribes and requires that the rights of thesexes should in all respects be identical, save only in so far as juryand militia service and political rights were concerned. A new statutesince the Oregon decision has been passed in Illinois and the law wassustained, reversing the older case. On the other hand New York courtstake a position squarely contrary, [4] and so in Colorado. [5] Theconstitutional justification of these decisions must probably bethat the health not only of the women themselves, but of the generalpublic, or at least of posterity, is concerned, for, as we shall findmore particularly when we discuss general legislation on the policepower, to justify an interference with personal liberty of freementhere must, under English ideas, be a motive based upon the health, safety, and well-being of all of the whole community, not merelyof the particular citizen concerned. He has the right to work inunhealthy trades at unhealthy times, or under unhealthy conditions, just as he has the right to consume unhealthy food and drink. If it beprohibited, it must be prohibited when it has a direct relation to thegeneral welfare. For example, a railway engineer may be prohibitedfrom working continuously for more than sixteen hours, for that isa direct danger to the safety of the public; but a man may notbe prohibited from taking service for long hours as stoker on asteamship, although the life of a stoker be a short one and not overmerry. Apparently, however, a woman can be; and indeed there have fora long time been laws prohibiting the labor of women in England andregulating their hours. But then there are laws prohibiting women fromserving in immoral occupations, or occupations which are supposed tobe dangerous to their morals, as, for instance, many States have lawsagainst the serving of liquor, or even of food, by women or girls inplaces or restaurants where liquor is served, or for certain hours, orin certain places. Very conceivably a law might be passed prohibitingwomen and girls from the selling of programmes, or attending upon dimemuseums, or even selling newspapers, or being district messengers;but, as we all know, there are women cabmen in Paris. Wouldlegislation prohibiting such employment to women be unconstitutional?There is already a considerable amount of it. The cases areconflicting, the earlier view, and the view taken in the South and inat least one Federal court, being that such laws are unconstitutional. The modern doctrine, backed up by that public opinion which we haveabove described as the ethical force, would seem to sustain them. Thetruth is probably that the legislature must be the sole judge of theexpediency of such legislation; where the court can see that it doesbear a direct relation to the morals of the young women concerned, or the morals of the general community, it will be sustained asconstitutional under the police power, although to that extentinterfering with the personal liberty of women and with their means ofgetting a livelihood. 

[Footnote 1: Georgia and South Carolina have such law requiringsixty-six and sixty hours a week respectively in cotton and woollenmanufacturing; 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 theirlabor are perfectly constitutional, and some child-labor laws existalready in all States and Territories except Nevada. The only disputeon the child-labor question is whether such legislation should beFederal, or rather whether the Constitution should be so amended as tomake Federal legislation possible. Practically this would meet witha very much wider opposition than is commonly supposed. The writer, acting as chairman of the National Conference of Commissioners onUniformity of Legislation appointed under laws of more than thirtyStates of the Union and meeting in Detroit, Michigan, in 1895, broughtthis matter up under a resolution of the Legislature of the State ofMassachusetts requesting him to do so. Nearly every Southern delegateand most of those from the West and from the Middle States were ontheir feet at once objecting, and the best he could do was to getit referred to a committee rather than have the Commonwealth ofMassachusetts summarily snubbed. This committee, of course, neverreported. 

Undoubtedly climatic effects, social conditions, and dozens of otherreasons make it difficult, if not unwise, to attempt to have the samerules as to hours of labor in all the States of our wide country. Boysand notably girls mature much earlier in the South than they do inthe North; schooling conditions are not the same, homes are not socomfortable, the money may be more needed, the general level ofeducation is less. Doubtless there are still areas in the South whereon the whole it is better for a child of fourteen to be in a cottonmill than anywhere else he is likely to go, schools not existing. TheSouthern delegates resented interference with their State police powerfor 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 childrenof the South; but the writer's experience convinced him that aconstitutional amendment on this point is impossible, although one hasbeen repeatedly proposed, notably by the late Congressman Lovering ofMassachusetts, and such an amendment is still pending somewhere inthat limbo of unadopted constitutional amendments for which no formalcemetery seems to have been prepared. 

Even as to men, the labor of the Southern States is notably differentfrom the labor of Lowell or Lawrence, Massachusetts, or evenCambridge; while on the Panama Canal or in most tropical countries theordinary laborer likes to pretend that he is working eighteen hoursa day, although most of the time is spent in eating or sleeping. Nevertheless, under the Federal law, all employees at Panama haveto be given the eight-hour day required by the Federal statute, theSupreme Court having upheld that act as constitutional. 

It is curious to note, in passing, the alignment of our courts uponthis subject of hours of labor and general interference with thefreedom of contract of employment. The Western and Southern Statesare most conservative; that is to say, most severe in enforcing theconstitutional principles of liberty of contract as against anystatute. The courts of the North and East are more radical, and thecourts of Massachusetts and the United States most radical of all. Iaccount for this fact on the ground that where the legislatures areover-radical, the courts tend to react into conservatism, and as theWestern legislatures try many more startling experiments than areusually attempted in Massachusetts or New Jersey, the more intelligentpublic opinion has to depend on the courts to apply the curb. All this, of course, is a great mistake; for it forces undueresponsibility on the courts, at least tends to control in an improperway the appointment of judges, and at best forces the most uprightjudge into a position where he should not be put--that of being a kindof king or lord chamberlain, with power to set aside improper or wronglegislation. 

With these preliminary remarks we are now prepared to examine thelegislation as it exists to-day (1910); cautioning our readers thatthis subject, as indeed all others concerning labor legislation, is sooften tinkered in all our States as to make our statements of littlepermanent value, except that restrictions once imposed are rarelyrepealed. We may assume, therefore, that the law is at least asradical as it is herein presented. 

The hours of labor of _adults_, males, in ordinary industries remainas yet unrestricted by law in any State of the Union; but severalStates have laws making a certain number of hours a day's work in theabsence of contract;[1] and New York and a few other States have aneight-hour day in "public" work--that is to say, work directly forthe State or any municipality or for a contractor undertaking suchwork. [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 NewJersey), fifty-five hours a week in factories; in Georgia eleven hoursin manufacturing establishments, or from sunrise to sunset by allpersons under twenty-one, mealtimes excluded (see below). But theselaws do not usually apply to agricultural or domestic employment or topersons hired by the month. ]

[Footnote 2: In public work, that is, work done for the State, or anycounty or municipality or for contractors therefor, the eight-hour dayis 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, andthe United States). But the provisions for overtime and compensationfor overtime differ considerably. ]

The labor of women (in mechanical trades, factories and laundries inIllinois, or in mercantile, hotel, telegraph, telephone, etc. , aswell, in Oregon) for more than a limit of ten hours per day inIllinois, or nine in Oregon, is prohibited and made a misdemeanor; andboth these statutes have been held constitutional. But in manyother States the hours of labor in factories or manufacturingestablishments, even of adult women, are now regulated; while thelabor 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 mechanicalemployments for women of any age, which in Connecticut, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, andWashington extends to mercantile avocations also, in Louisiana onlyto specified dangerous trades; in Wisconsin, eight hours; and inConnecticut, Maine, Minnesota, New Hampshire there may not be morethan fifty-eight hours a week, or in Massachusetts and Rhode Island, fifty-six, and in Michigan and Missouri, fifty-four. Arizona has aneight-hour day in laundries. 

And these laws are extended to specified occupations, viz. , inConnecticut to manufacturing, mechanical, and mercantile; in Illinois, mechanical, factory, or laundry; in Louisiana, unhealthful ordangerous occupations except agricultural or domestic; in Maine, mechanical and manufacturing except of perishable products; inMaryland, special kinds of manufactories; in Massachusetts, manufacturing, mechanical, mercantile, and restaurants; in Michigan, Minnesota, and Missouri, manufacturing, mechanical, and mercantileor laundries; in Nebraska, manufacturing, mercantile, hotel, orrestaurant; in New Hampshire, New York, [1] North Dakota, Oklahoma, Rhode Island, manufacturing and mechanical; in Tennessee andVirginia, manufacturing only; in Washington and Oregon manufacturing, mechanical, mercantile, laundry, hotel, or restaurant, and inWisconsin, mechanical or manufacturing. Georgia and South Carolinaregulate 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 forthe 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 womenat any season without regard to their condition of health, and aretherefore far behind the more intelligent legislation of Belgium, France, and Germany, which considers at all times their sanitarycondition, and requires a period of rest for some weeks before andafter childbirth. The best that can be said of them, therefore, isthat they are a beginning. No law has attempted to prescribe thesocial condition of female industrial laborers, the bill introduced inConnecticut that no married woman should ever be allowed to work infactories having failed in its passage. 

The hours of labor of minors, male and female, are limited in allStates, except Florida, Missouri, Montana, Nebraska, Nevada, NewMexico, South Carolina, Texas, Vermont, Utah, Washington, WestVirginia, and Wyoming, particularly in factories and stores, usuallyunder an age limit of sixteen, to ten hours per day or fifty-eighthours a week. [1] But in Alabama, Arkansas, and Virginia, the age is aslow as fourteen, and in California, Indiana, [2] Louisiana, Maine, [2]Massachusetts, Michigan, North Carolina, Ohio, [2] Pennsylvania, [2] andSouth Dakota, [2] it is eighteen. In California, Delaware, Idaho, andNew York, it is nine hours, and in Colorado, District of Columbia, Illinois, Indiana, Kansas, New York, [3] North Dakota, Ohio, andOklahoma, it is as low as eight hours a day, though the laws inseveral States, as in New York, are contrary and overlie each other. Acorresponding limit, but sometimes less, is fixed for the week; thatis, in the nine-hour States and some others, weekly labor may notexceed 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, NewYork, 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, RhodeIsland), 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 Statesmentioned and in others. [1] Many States require working papers orcertificates of age of the person employed, and there are often alsocertificates as to the required amount of schooling when necessary. Indeed it may be said that we are on the way to the German system ofhaving time cards or certificates furnished by State machinery for allindustrial workers, and such a system will, of course, be absolutelynecessary should the State ever engage in old-age insurance, as hasbeen done in Germany and England; though the practical difficulty ofsuch a scheme would have been thought by our fathers insuperableon account of our Federal and State system of government, and thenecessary free immigration of American workmen from one State intoanother. 

[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 infactories or mercantile establishments (Connecticut, Iowa, Kansas, Michigan, New York), or any gainful occupation (Delaware, Districtof Columbia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, NorthCarolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, RhodeIsland, Texas, Vermont, Wisconsin). In South Carolina the lawonly protects children under twelve from night labor in mines andfactories. So in some as to all females only (Indiana), femalesunder 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 LauraScott ("Child Labor"), and in No. 4, by Maud Swett ("Woman's Work"). 

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

On the constitutionality, if not the economic wisdom of lawsregulating the hours of labor of women, at least of adult years, therestill is decided difference of opinion. Logically it would perhapsseem as if those who believe in the "Woman's Rights" movement ofuniform function for women and men, should be opposed to all suchlegislation; both on theoretical grounds as being a restraint ofpersonal liberty, and as unequal legislation handicapping woman in herindustrial competition with man. This was certainly the earlierview; but under the influence of certain voluntary philanthropicassociations 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 thehouse or on the farm; in fact it may be generally assumed that allthese laws, even when they do not say so, mean only employment forhire; 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, andWisconsin, to "any gainful occupation"; Maryland, to "any business, "etc. , except farm labor in summer; Colorado, to labor forcorporations, firms, or persons; the other State laws to any work. ]

And the age limit fixed for such general employment is (without regardto schooling) under twelve, in Idaho and Maryland; under fourteen inDelaware, Illinois, and Wisconsin; and under fourteen for boys andsixteen for girls in Washington, if without permit, and under fifteen, for more than sixty days without the consent of the parent or guardianin Florida; in other States the prohibition rests on educationalreasons, and covers only the time of year during which schools are insession; thus, under eight during school hours, or fourteen withoutcertificate (Missouri); under fourteen during the time or term ofschool sessions (Connecticut, Colorado, [1] Massachusetts, Idaho, Kansas, Kentucky, Minnesota, New York, North Dakota); or underfourteen during actual school hours (Arizona, [2] Kentucky, Nebraska, Oregon); or under fifteen in Washington, [1] and under sixteen asto 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]), orwho have not a labor permit (Maryland, Minnesota, Wisconsin). Thisrésumé shows a pretty general agreement on the absolute prohibition ofchild labor under fourteen, or under sixteen as to the uneducated; andthe 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 beimprisonment; 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 infactories or workshops, and particularly in mines; not so usually, however, in stores. [1] The age of absolute prohibition is usuallyfixed at fourteen or at sixteen in the absence of a certain amount ofcommon-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 laborfor children under fourteen or between fourteen and sixteen withoutan age certificate or an employment certificate; Louisiana[9] has theusual statute, that is, absolute prohibition under fourteen and agecertificate required for those between fourteen and sixteen, or, inthe case of girls, between fourteen and eighteen, and the law appliesto mercantile occupations where more than five persons are employed;the Maine statute is similar, but children above fifteen may work inmercantile establishments without age or schooling certificate, whichis required of all those under sixteen in manufacturing or mechanicalemployment; in Maryland, [12] the prohibition age is still twelve, andthe law applies to any business except farm labor in the summer; inMassachusetts, [12] absolute prohibition below fourteen, fourteento sixteen without age or schooling certificate, and fourteen toeighteen, who cannot read and write; in Michigan, [12] absoluteprohibition under fourteen, or sixteen without written permit; inMinnesota, the same ages, but the law applies to any employment; inMississippi the ages are twelve and sixteen; in Missouri, absoluteprohibition under eight, or fourteen without school certificate. NewHampshire[12] lags behind and has only an absolute prohibition tochildren under twelve, or during school under fourteen, or undersixteen 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 sixteenwithout employment certificate; North Carolina, under twelve, with anexception of oyster industries; North Dakota, [12] fourteen, or fromfourteen to sixteen without employment certificate. In Ohio, [12]Oklahoma, Oregon, [12] Pennsylvania, [12] and Rhode Island, [12] the lawsare practically identical, fourteen, or sixteen with certificate ofschooling. South Carolina, absolute prohibition only under twelve, andnot even then in textile establishments if the child has a dependencycertificate. South Dakota, [12] under fifteen when school is insession; Tennessee, absolute under fourteen; Texas, under twelve, orunder fourteen to those who cannot read and write unless the child hasa parent to support. Vermont's limitation is purely educational; nochild under sixteen can be employed in factories or mines who has notcompleted nine years of study. In Virginia[12] from March 1, 1910, there is absolute prohibition under fourteen except as to childrenbetween 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 doColorado and Idaho protect women in them. Yet these are the fourwoman-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 agecertificate from twelve to sixteen; age certificate from sixteen toeighteen. ]

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

[Footnote 4: Absolute prohibition under twelve or from twelve tofourteen during the school term or under sixteen to those who cannotread and write, and the law applies to mercantile establishments, hotel and messenger work, etc. , making expressly the usual exemptionof agricultural or domestic labor. ]

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

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

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

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

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

[Footnote 10: Absolute under fourteen, or under sixteen to those whocannot read and write. ]

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

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

The laws as to labor in mines are naturally more severe; although insome 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 worksunderground in Alabama, Arkansas, Illinois, Indiana, Missouri, NewYork, North Carolina, Oklahoma, Pennsylvania, Utah, Washington, Wyoming, and West Virginia, --in short, in most of the States exceptIdaho, 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 suchlegislation 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 dangerousemployment generally, [3] are even stricter, and as a rule apply tochildren of both sexes; the Massachusetts standard being, in themanagement of rapid elevators, the age of eighteen, in cleaningmachinery in motion, fourteen, etc. ; in other States, sixteen toeighteen. [4] The labor of all women in some States, and of girls orwomen under sixteen or eighteen in other States, is forbidden inoccupations which require continual standing. [5] Females, [6] orminors, [7] or young children[8] are very generally forbidden fromworking or waiting in bar-rooms or restaurants where liquor is sold, and in a few States girls are prohibited from selling newspapers oracting as messengers. [9] The Northern States have a usual age limitfor 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 thereis 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, NewYork. ]

[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, SouthCarolina. ]

[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, NewYork, Vermont, Washington (except the wife of the proprietor or amember 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, NewHampshire, Virginia, Wisconsin, Wyoming (fourteen); Connecticut, Georgia, (twelve); Delaware, Indiana, Louisiana, Massachusetts, WestVirginia (fifteen); Minnesota, New Jersey, Pennsylvania, Washington(eighteen). ]

The hours for railroad and telegraph operators are limited in severalStates, but rather for the purpose of protecting the public safetythan the employees themselves. [1] The following other trades areprohibited to women or girls: Boot-blacking, [2] or street tradesgenerally;[3] work upon emery wheels, or wheels of any description infactories (Michigan), and in New York no female is allowed to operateor use abrasives, buffing wheels, or many other processes of polishingthe baser metals, or iridium; selling magazines or newspapers in anypublic place, as to girls under sixteen, [4] public messenger servicefor 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 lawslimiting time or price would seem to be constitutional, except incertain cases as to the employment of women and in all cases that ofchildren, and going to special occupations, we shall find quite adifferent principle; for in a special occupation known to be dangerousor unhealthy, certainly if dangerous or unhealthy to the generalpublic, it has always been the custom and has always beenconstitutional with us to control conditions by statute. The questionof what is a dangerous or unhealthy occupation to the public ratherthan merely to the persons employed is, of course, a difficult one;and the Supreme Court of the United States have split so closelyon this point that they have in Utah decided that mining was anoccupation dangerous to the public health, and in New York thatthe baking of bread was not. That is to say, that the condition ofbakeshops bore no relation to the general health of the community. Onemight, perhaps, have expected that they would have decided each casethe other way; but we must take our decisions as we get them from theSupreme 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 ofadult male labor. The same statute as to mines existed in Coloradothat the United States Supreme Court sustained in Utah. The ColoradoSupreme Court had declared it unconstitutional, and after the decisionof the United States Supreme Court they continued to declare itunconstitutional, simply saying that the United States Supreme Courtwas wrong. Anyhow, it is obvious that in trades which involve a greatmass of the people, or affect the whole community, or particularlywhere there are definite dangers, such as noxious vapors ortuberculosis-breeding dust, it will be constitutional, as it is commonsense, to limit the conditions and even the hours of labor of womenor men, as well as children. Students interested in such matters willfind the universal legislation of the civilized world set forth in theinvaluable labor-laws collection of the government of Belgium; and hewill find that all countries of the world do regulate the hours oflabor as well as the conditions, in all such trades, and we should notremain 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 samething remains still true of domestic labor, though it has been morequestioned. It should be noted that both domestic labor and farmlabor belong to the class of what we call indefinite service. Now, indefinite service must always be regulated very carefully as to thelength of the contract, which is never to be indefinite; that is tosay, if it be both indefinite in the services rendered and in the timeduring which they are to last, it is in no way distinguishable fromslavery. For instance, in Indiana, many years before the Civil War, there was an old negro woman who was induced to sign a contract toserve in a general way for life; that, of course, was held to beslavery. More recently the United States Supreme Court has held that acontract imposed upon a sailor whereby he agreed to ship as a marineron the Pacific coast for a voyage to various other parts of the worldand thence back was a contract so indefinite in length of time as tobe unenforceable under free principles, although a sailor's contractis one which in a peculiar way carries with it indefinite service. Anda contract "_ŕ 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, inthe 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 wholemill must stop; consequently, a law limiting the labor of women andchildren to fifty-six hours a week will be in practice enforced uponthe adult males employed in the same mill. 

Continental legislation has gone far beyond us in all these importantparticulars. In most countries the conditions surrounding the labor ofwomen, particularly married women, are carefully regulated by law. She is not allowed to go back to the mill for a certain period afterchildbirth, and in many more particular respects her health iscarefully looked after. Such legislation would possibly be impossibleto enforce with our notions in America. The most interesting of allis perhaps the attempt made in the State of Connecticut within a fewyears to improve social conditions by providing that no married womanshould 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 thevery last act of modern barbarism for the woman to be made "to shriekfor a hold of the mattock herself. " It was argued in Connecticut thatthe employment of married women injured the health of the children, which is perfectly true. Indeed, the death-rate in England is verylargely determined by the fact whether their mothers are employed inmills or not. It was also argued that her competition with man merelyhalved his wages; that if no women were employed, the men would getmuch higher wages. On the other side it was argued that the effect ofthe law would be largely immoral because it would simply prevent womenfrom getting married. Knowing that after marriage they would get noemployment, they would simply dispense with the marriage ceremony; forit is obvious that under such legislation a man living with a womanunmarried could get double wages, which would be halved the moment hemade 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 beenenacted, though there is doubtless a much stronger social prejudiceagainst women entering ordinary employments in some countries than inothers. 

The constitutional question underlying all this discussion was perhapsbest set forth by an experiment of the late Mr. Edward Atkinson, whichhe always threatened to bring into the courts, but I believe did notdo so. "An Englishman's house is his castle"; an English woman's houseis her castle. Atkinson proposed that a woman of full age, living inher own house, should connect her loom or spindles by electric wire tothe 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 thebroadest principles of English constitutional liberty, have the rightto come in and tell her not to do so; particularly when the man in thenext house remained free? Up to this time there is no doubt that afactory, a large congregation of labor, under peculiar conditions, presents a different question and a different constitutional aspectfrom that of the individual. This, indeed, is the principle which mustjustify the constitutional regulation of sweat-shops, as to which wewill speak next. 

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

Now a factory may obviously be regulated under ordinary policeprinciples; but when the first great case came up as to regulatinglabor in a man's own home, even though it was but one floor of atenement, it was decided by the highest court of New York to beunconstitutional. The case was one concerning the manufacture ofcigars, which by the statute was prohibited in tenement houses on anyfloor partly occupied for residence purposes. [1] Nevertheless it maybe questioned whether, with the advancing social feeling in suchmatters, legislation would not be now sustained when clearly aimed atsanitary purposes, even though it interfered with trades conducted ina man's dwelling house. I hold that it is quite as possible for thearm of the state to interfere to prevent the baking of bread inbedrooms, for instance, as it is to seize upon clothing which has beenexposed to scarlet fever. A man's home, under modern theories, isno more sacred against this police power than is his body againstvaccination; and the last has been decided by the Supreme Court of theUnited States. [2]

[Footnote 1: In re Jacobs, 98 N. Y. 98. See the author's "Handbook tothe 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 inany sense resemble factories--that is, where numbers of persons notthe family of the occupier are engaged in industrial labor; soin Pennsylvania it has been extended to jurisdiction over shopsmaintained in the back yards of tenements; while in most States thestatute applies to any dwelling where any person not a member ofthe family is employed, and general legislation against sweat-shopsalready exists in the twelve north-eastern industrial States fromMassachusetts to Missouri and Wisconsin, leaving out only RhodeIsland. 

The Massachusetts law as at present forbids work upon clothingexcept by members of the family in any tenement without license, andthereupon subjects the premises to the inspection of the police, andregisters of all help must be kept. Whoever offers for sale clothingmade in a tenement not licensed must affix a tag or label two incheslong bearing the words "Tenement Made, " with the name of the State andcity or town in which the garment was made. Moreover, any inspectormay report to the State board of health that ready-made clothingmanufactured under unhealthy conditions is being shipped into theState, which "shall thereupon make such orders as the public safetymay require. "[1] In New York the law applies to the manufactureof many articles besides clothing, such as artificial flowers, cigarettes, cigars, rubber, paper, confectionery, preserves, etc. Alicense may be denied to any tenement house if the records show thatit is liable to any infectious or communicable disease or otherunsanitary conditions. Articles not manufactured in tenements solicensed may not be sold or exposed for sale, and there is the samelaw as in Massachusetts as to goods coming in from outside the State, and there is the same exemption of apartments occupied by members ofthe family, and even then it appears that they are subject to thevisitation of the board of health and must have a permit. ThePennsylvania law is similar to the New York law, and in addition, allpersons are forbidden to bargain for sweat-shop labor, that is, laborin any kitchen, living-room, or bedroom in any tenement house exceptby the family actually resident therein, who must have a certificatefrom the board of health. The Wisconsin law apparently applies topersons doing the work in their own homes, who must have a licenselike anybody else, and the owner of the building is liable for itsunlawful use. The Illinois and Maryland laws are similar to the NewYork law, while the Michigan statute resembles that of Wisconsin, apparently applying to members of the family as well. The Missouri lawforbids the manufacture of clothing, etc. , in tenements by more thanthree persons not immediate members of the family, while the NewJersey and Connecticut statutes content themselves with makingsuch manufacture by persons not members of the family subject toinspection. 

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

It is a curious commentary that the very dream of the social reformersof only twenty years ago is so rudely dispelled by the march ofevents; for in the late nineties it was the hope of the enthusiast, particularly the student in electrical science, that the factorysystem might in time be done away with, and by the use of power servedfrom 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 ownhome--just as used to be the case with the spinners and weavers ofolden time. Far from being a hope, it turns out that this breeds thevery worst conditions of all, and the most difficult to regulate bylaw. For modern homes for the most part are not sanitary dwellings inthe country, but single floors or parts of floors in huge tenementhouses in great cities. It is probable to-day, therefore, that thereis a perfect reversal of opinion, and that the social reformer nowdreams of a world where no work is permitted in the home, other thanordinary domestic avocations, but all is compelled to be done infactories under the supervision of public authorities--a splendidexample of the dangers of hasty legislation; for had we carried intolaw the eager desire of the reformers of only twenty years since, weshould, it appears, have been on a hopelessly wrong track. 

It should be noted, however, that the reform of conditions is verylargely arrived at by a different path--that of the _building_ lawsin our cities. No more arbitrary rule exists to-day or was ever inhistory than the despotic sway of a board or commission created undermodern police-power ideas. In everything else you have a right to ahearing, if not an appeal to the common-law courts and a jury; but thepower of a building inspector is that of an Oriental despot. He canorder you summarily to do a thing, or do it himself; or destroy orcondemn your property; and you have no redress, nor compensation, noreven a lawsuit to recover compensation. Therefore, if the sweat-shopreformers may not constitutionally regulate the conditions andbusiness of sweating so far as they would like to go, they can turnabout and directly regulate the actual building of residences wherethe trade is carried on. They can require not only so many cubic feetof air per person in the sweat-shop, but so many cubic feet of air perperson in every bedroom; as Ruskin said, not only, of grouse, so manybrace 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 tosleep with less than one thousand feet of air in his room for his ownexclusive 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 beenalmost entirely cultivated by what I have termed the moral reformers, with little or no help from organized labor. One's observation is thatorganized labor has been mainly concerned with the price of wages, thelength of hours, and with the closed shop; it has devoted very littleof its energies to factory or trade _conditions_, except, indeed, thatit has been very desirous of enforcing the union label, on which itasserts that union-made goods are always made under sanitary and moralconditions, and implies that the goods of "scab" manufacturers are notso. 

The usual sweated trades in this country are the manufacture ofclothing, underwear, tobacco, and artificial flowers. There has alsobeen considerable regulation of laundries and bakeries, but notbecause they are what is commonly called sweated trades. 

The bulk of factory legislation is too vast for more than mention in ageneral way. It fills probably one-fourth in mass of the labor lawsof the whole country, and applies in great and varying detail to thegeneral condition of factories, workshops, and in most States to largestores--department stores--using the word in the American sense. It may be broadly analyzed as legislation for the constructionof factories, for fresh air in factories, for general sanitaryconditions, 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 beensaid, it was begun in Massachusetts in the fifth decade of the lastcentury, based originally almost entirely on the English factory acts, which were bitterly attacked by the _laissez-faire_ school of theearly nineteenth century, but soon vindicated themselves as legitimatelegislation in England, although not even there--still less in ourStates--have we gone so far as the Continental countries. 

Closely connected with this may be mentioned that vast domain oflaw which is known as employers' liability. Under the old strictcommon-law rule, a servant or employee could never recover damages forany injury caused in whole or in part by his own negligence, by thenegligence of a fellow servant or even by defective machinery, unlesshe was able to prove beyond peradventure that this existed known tothe employer and was the sole and direct cause of the accident. As ismatter of common knowledge, the tendency of all modern legislation, particularly the English and our own, has been to chip one cornerafter another off these principles. The fellow-servant rule has beenvery generally abolished by statute, or in many States fellow servantshave been defined and divided into classes so that the master is notrelieved of liability when the injury to the servant is caused bythe negligence of a servant not in actual fact his fellow, _i. E. _, employed with him in his own particular work. In like manner theexemption for contributory negligence has been pared down and theliability for dangerous or defective appliances increased, practicallyto the point that the master becomes the insurer of his machinery inthis particular. The recent English statute goes to the length ofputting the liability on the employer or on an employment fund in allcases. 

The writer is strongly of opinion that this radical reform is, so faras constitutional, the end to be aimed at. The immense expense andwaste caused by present litigation, the complete uncertainty bothas to liability and as to the amount of damages, the general fraud, oppression, and deceit that the present system leads to, and finallyits hideous waste and extravagance, are all reasons for doing awaywith it entirely. He believes that for the employer's own benefitif there were a statute with a definite scale of damages, providingdefinitely, and as part of the employment contract if necessary, with a certain small deduction from the wages, that there should beinsurance, that the master should be actually liable on a fixed scalefor all injuries suffered while in his employment not in disobedienceto his orders or solely and grossly negligent, it would be far betterboth for employer and employee. To-day it is possible that in manycases the employee gets no damages or is cheated out of them, or theyare wasted in litigation expense (the Indiana Bar Association reportedthis year that only about thirty per cent. Of the damages actuallyrecovered of the employer reaches the party injured); while on theother hand the master can never know for how much he is going to beliable, and in the rare cases which get to a jury they are apt to findan excessive verdict. It is the custom with most gentlemen to pay areasonable allowance to any servant injured while in their employ, unless directly disobedient of orders. There is no practical reasonwhy this moral obligation should not be embodied in a statute andextended to everybody. The scale of damages should of course be put solow as not to encourage persons to expose themselves, still less theirown children, to injury in the hope of getting monetary compensation. But although in India we are told the natives throw themselves underthe wheels of automobiles, it is not probable that in Americancivilization there would be serious abuse of the law in thisparticular. Five thousand dollars, for instance, for loss of life orlimb or eye, with a scale going down, as does the German law, to amere compensation for time lost and medical attendance in ordinaryinjuries, would be sufficient in equity and would surely not encouragepersons voluntarily to maim themselves. 

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

(1) Weekly or time payment laws. These exist in more than half theStates, and are always constitutional as to corporations, but arepossibly unconstitutional in all States except Massachusetts whenapplied 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 aresubject to the same constitutional objections. As a part of them, or in connection with them, we will put the ordinary anti-trucklaws--that is, legislation forbidding payment in produce or suppliesor commodities of any kind. Finally, the store-order laws forbiddingpayment to be made in orders for indefinite supplies on any particularstore, still less on a store owned or operated by the company oremployer. Such laws have sometimes been held unconstitutional in allparticulars, sometimes when they apply only to certain industries, as, for instance, mines. In the writer's opinion they are neverconstitutional when applied to corporations, nor are they classlegislation when applied to mines, for the reason that it is wellknown that mines are situated in remote districts where there are fewstores, and that the maintenance of a company store has not only ledto much cheating but to an actual condition of peonage. That is tosay, the miners would be held in debt and led to believe that theycould not leave the mine or employment until the debt was liquidated. Belonging usually to the most ignorant class, it is matter of commonknowledge that this has been done, and that Poles, negroes, or othersof the more recent immigrants have been permanently kept in debt tothe company store or by advances or in other ways, as for rent orboard. 

(3) Closely allied to such legislation, of course, is the legislationagainst factory tenements or dwellings, but there is probably lessreal abuse here, and therefore a greater constitutional objectionagainst laws forbidding houses, especially model houses, to be builtand rented by the employer. Such efforts, unfortunately, have notusually been popular. Far from helping labor conditions, they seemto have caused great resentment, as was notably the case in Pullman, Illinois, and very recently in Ludlow, Massachusetts. It may be thatthe American temperament prefers its own house, and resents beingcompelled to live in a house, however superior, designed for him andassigned to him by his employer. 

(4) The next matter which has evoked the attention of philanthropistsand the angry resentment of the persons they supposed they were tryingto benefit, is that of the benefit or company insurance or pensionfunds. The principle of withholding, or contracting with the employeesto withhold, a small proportion of their wages weekly or monthly togo into an endowment or benefit fund, even when the company itselfcontributes as much or more, was instituted with sanguine hopes someforty years ago, first in the great Calumet & Hecla Copper Company, and then in some of the larger railroads; and was on the point ofmeeting general acceptance when it evoked the hostility of organizedlabor, which secured legislation in Ohio and other States making ita crime, or at least unlawful, for either side to make a contractwhereby 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, whenthings are done for the workmen, they are hardly permitted to know it;a pretence, at least, is made that their own contributions are theentire support of the hospital, library, reading-room, or whatever itmay be, when, in fact, the lion's share is borne by the company. Thereis no doubt that the American laborer resents being done goodto, except by himself; and is organized to resent any system ofbeneficence to the point of making it actually prohibited by the law. 

Much of the legislation described in this chapter is wise, andprobably all of it is wise in intention. Yet, in closing, one cannotresist calling attention to the unforeseen dangers that always attendlegislation running counter to the broad general basis of Anglo-Saxoncivilization. One need make no fetich of freedom of contract tobelieve that laws aimed against it may hit us in unexpected ways. Forone famous example, the cash weekly-payment law in Illinois existed in1893. In that year there was a great panic. Nobody could obtain anymoney; mills and shops were closing down, particularly in Chicago. Everybody was being thrown out of employment, and distress to thepoint of starvation ensued. In the very worst days of that panicsome of the largest and most charitable employers of labor met theiremployees in a monster mass meeting, and reported that while theycould not pay in full and nothing apparently was in prospect but anactual shutdown, they had succeeded in getting enough cash to keep alltheir employees, provided they would take weekly half what was owingto them in money, and the short-time notes or obligations of thefirms, or even of banks, for the remainder. The offer evoked thegreatest enthusiasm, was unanimously accepted by the thousands ofemployees, and amid great rejoicing the meeting adjourned;--only tofind by the advice of their counsel next morning that under the lawsof the State of Illinois such a settlement was made a crime, and thatfor every workman who received his wages each week only half in cash, the employer would be liable to a one-hundred-dollar fine, and thirtydays' imprisonment. 

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

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

This world-wide problem is really rather a racial problem than aneconomic one amongst Anglo-Saxons. The inability of the African andthe Caucasian to live side by side on an equality largely results fromthis economic 'question' which, broadly stated, is that the Caucasianis willing to work beyond his immediate need voluntarily and withoutphysical compulsion; the African in his natural state is not. TheAmerican Indian had the same prejudice against manual labor; butrather that, as a gentleman, he thought himself above it; and hischaracter was such that he always successfully resisted any attemptsat enslavement or even compulsory service. The negro, on the otherhand, is not above such work, but merely is lazy and needs the impulseof actual hunger or the orders of an overseer. We are, of course, speaking of the mass of the people, in their natural state, before anyenlightenment gained by contact with more civilized races. The wholequestion is discussed on its broadest lines by Mr. Meredith Townsendin his luminous work, "Asia and Europe. " He seems hopelessly toconclude that there is no possibility of white and black permanentlyliving together as part of one industrial civilization unless thelatter race is definitely under the orders of the former. Withoutassenting to this view it may be admitted that it is one which hasvery largely prevailed in the Southern States, and the difficultythere is, of course, with agricultural labor. So fast as the negro canbe made a peasant proprietor, the question seems to be in a measuresolved; but it is alleged to be almost impossible to get the necessarylabor from negroes when done for others, under contract or otherwise. There is, therefore, a mass of recent legislation in the SouthernStates which we may entitle the _peonage_ laws, which range from thehighly objectionable and unconstitutional statute compelling a personto carry out his contract of labor under penalty as for a misdemeanor, to the more ingenious statutes which get at the same result by theindirect means of declaring a person guilty of breaking a contractunder which he has acquired money or supplies punishable as for fraud. There are also statutes applying and very greatly extending the oldcommon-law doctrine of loss of service; making it highly criminal fora neighbor to incite a servant or employee to break his contract oreven to accept the work of a laborer without ascertaining that hehas not broken such contract, as, for instance, by a certificate ofdischarge from his last master. These laws, it will be seen, differ inno particular from the early labor laws in England, which we carefullysummarized for this purpose; except, indeed, that they do stop shortof the old English legislation which provided that when a laborerbroke his contract or refused to work he could be committed before thenearest magistrate and summarily punished. Even this result, however, has been arrived at by the more circuitous and ingenious legislationof Southern States such as in Georgia, cited in the charge to theGrand Jury. [1] The principle of this elaborate machinery is alwaysthat money advances, or supplies, or a lease of a farm for a seasonor more, or the loan of a mule, having first been made under writtencontract to the negro, the breaking of such contract or the omissionto repay such advances, is declared to be in the nature of fraud; theentering into such contract with intention to break it is declared tobe a misdemeanor, etc. , etc. The negro refusing to carry out his laborcontract is then cited before the nearest magistrate, who imposesunder the statute a nominal fine. The negro, being of course unable topay this fine, is remanded to the custody of his bondsmen, who pay itfor him, one of them of course being the master. The negro leaves thecourt in custody of his employer and carries away the impression withhim that he has escaped jail only by being committed by the court tohis employer to do his employer's work, an impression possibly not tooremote from the fact. It is easy to see how to the African mind themagistrate may appear like an Oriental cadi, and how he may be led tocarry out his work as submissively as would the Oriental under similarcircumstances. 

[Footnote 1: Jaremillo _v. _ Parsons, 1 N. M. 190; _in re_ Lewis, 114Fed. 963; Peonage cases, 123 Fed. 671; United States _v. _ McClellan, 127 Fed. 971; United States _v. _ Eberhard, 127 Fed. 971; Peonagecases, 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 utterlyunfamiliar with the tropics and Southern conditions generally, of thedifficulty of this labor problem throughout the world. It has appearednot only in our Southern States but in the West Indies and SouthAfrica--in any country where colored labor is employed. The writerknows of at least one large plantation in the South where many hundrednegroes were employed to get in the cotton crops, and the employerwas careful never to deliver their letters until the season hadterminated; for on the merest invitation to attend a ball or a weddingin some neighboring county, the bulk of the help would leave forthat purpose and might or might not return. Railway labor is notso difficult, because the workmen commonly work in gangs under anoverseer who usually assumes, if he is not vested with, some physicalauthority; but the case of the individual farmer who is trusted uponhis own exertions to till a field or get in the crop seems to bealmost impossible of regulation under a strict English common-lawsystem. Farming on shares appears to be almost equally unsatisfactory. The farmer gets his subsistence, but the share of the proprietor inthe crop produced is almost inappreciable. 

In closing this chapter reference should be made to a large amountof American legislation, most of which was absolutely unnecessary asmerely embodying the common law. Still it has its use in extending thedefinition of the "unlawful act. " It will be remembered that one ofthe three branches of conspiracy was the combination to effect alawful end by unlawful acts. Now many of the States have statutesdeclaring even threats, or intimidation without physical violence, tobe such unlawful act. It may possibly be doubted whether it might nothave been so held at the common law; but such legislation has alwaysthe advantage of getting a uniform line of decisions from all thejudges. The New York statute passed many years ago may serve as asample: It provides in substance that any threat or intimidation orabusive epithets or the hiding of tools or clothes, when done even byone individual, is an unlawful act; therefore when strikers, althoughengaged in a lawful strike, as to raise their own wages, or any oneof them, intend or do any such act, they become guilty of unlawfulconspiracy. 

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

From the official report of the U. S. Government, prepared by theCommission of Labor in 1907, it appears that twenty States andTerritories, including Porto Rico, have provisions againstintimidation, of which the best example is the New York statute quotedabove. 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 provisionsagainst the coercion of employees in trading or industry, usually toprevent them from joining unions, but such statutes are also levelledagainst the compelling them to buy or trade in any shop, or to rent orboard at any house. Five States have statutes prohibiting the hiringof armed guards other than the regular police, and especially theimporting such from other States, Massachusetts and Illinois among thenumber, though none of the five are so radical as the later statuteof Oklahoma quoted below. Statutes for the enforcement of the laborcontract exist usually only in the South, but we find a beginning ofsimilar legislation in the North, both Michigan and Minnesota havingstatutes making it a misdemeanor to enter into a labor contractwithout intent to perform it in cases where advances are made by wayof transportation, supplies, or other benefits. The new anti-tipstatute or law forbidding commissions to any servant or employee isto be found in Michigan, Wisconsin, and other States (see page 155above). A few States require any employer to give a dischargedemployee a written statement of the reason for his discharge, but suchstatutes are probably unconstitutional. Colorado has the extraordinarystatute forbidding employees to be discharged by reason of age. The common law of loss of service is strengthened generally in theSouthern States by statutes against the enticing of employees. Publicemployment offices, as well as State labor bureaus, are now maintainedin nearly all the States. 

Examinations and licenses are now required in the several Statesof electricians, engineers, horse-shoers, mining foremen, elevatoroperators, plumbers, railroad employees, stationary firemen andengineers, and street railway employees, in addition to the tradesenumerated 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 generalfactory acts, and all the mining States have elaborate statutes forthe safety of mines. 

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

Connecticut and Massachusetts have laws to facilitate profit-sharingby corporations. Such statutes would seem hardly necessary, as profitsmay be shared or stock distributed or sold without a law to thateffect; if it be regarded as part of the reward of wages, noinjunction would be granted to protesting stockholders. Fifteen Statesand Territories, including Porto Rico, have laws for the protectionof employees as members of labor unions, and five as members of thenational guard or militia, similar to the New York statute justmentioned. Nearly all the States have laws for the protection ofemployees as voters, as by requiring half holidays or reasonable timeto vote, or that their pay should not be given them in envelopes uponwhich is printed any request to vote or other political material. 

Nearly all the States require seats for female employees, and NewJersey requires seats for horse-car drivers. Five States have generalprovisions regulating the employment of women; ten forbid theiremployment in bar-rooms (see page 226 above); three regulate theirhours of labor to an inequality with men; and most of the Statesforbid 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 foremployment. Four States, among them Illinois, require employersseeking labor by advertisement to mention (if such be the case) thatthere is a strike in their establishment; twelve States (seeabove, page 231) have so far tackled the sweat-shop problem, whilepractically every State in the Union makes wages a preferred claim incases of death or insolvency of the employer. 

There is, however, one matter we have reserved for the last, becauseit is one of the two or three points about which the immediate contestbefore us is to rage. That is the case of individual discharge. It iselementary that just as an employee may leave with cause or withoutcause, so an employer may discharge without cause or with cause, noris he bound to state his reasons, and certain statutes requiring himto do so with the object of avoiding a blacklist have been declaredunconstitutional in Southern States. But organized labor is naturallyvery desirous of resenting the discharge of anybody for no otherreason than that of being a union man. In fact it is not too much tosay that this, with the legalization of the boycott, are the two greatdemands the unions are now making upon society. Therefore, statuteshave been passed in many States making it unlawful for the employer tomake it a condition of employment that the employee should not be amember of a union; or to discharge a person for the reason that heis a member of a union. And closely connected with this is thecombination of union employees to force an employer to discharge a manbecause he is not a member of a union. This last will come logicallyunder the next chapter covering combinations and is not yet thesubject of any statute. Now the difficulty of these statutes, aboutthe discharge of union labor, is that it is almost impossible to gointo the motive; a man is discharged "for the good of the service. "It is easy, of course, to provide that there should be no writtenor definite contract on the matter; but it is not easy to punish orprohibit the discharge itself without such contract. Such legislationhas, however, been universally held unconstitutional, so that atpresent this must be the final word on the subject. The right of theemployer to employ whom he likes and to discharge whom he likes andmake a preference, if he choose, either for union or non-union labor, is one which cannot be taken away from him by legislation, accordingto decisions of the Supreme Courts of Missouri, New York, and theUnited States. Therefore, as the matter at present stands, theconstitutions, State and Federal, must be amended if that cardinalright of trade and labor is to be interfered with. 

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

Beginning in 1890 we find most of the statutes concern thecounterfeiting of union labels, arbitration laws, hours of labor inState employments, weekly payment laws, the preference of debts forlabor in cases of insolvency, the prohibition of railroad relieffunds, the hours of women and children in factories, seats for womenin shops, the restriction of prison labor, dangerous machineryin factories, protection in mines, and the incorporation oftrades-unions. Mechanics' lien laws are passed in large quantitiesevery year and are the subject of endless amendment. We will, therefore, leave this out for the rest of our discussion as after allaffecting only the owners of real estate. 

In 1891 we find more laws regulating or limiting the hours of laborof women and children, prohibiting it entirely in mines; severalanti-truck laws; two laws against the screening of coal before theminer is paid, and in Massachusetts, laws against imposing finesfor imperfect weaving and deducting the fine from the wages paid. Pennsylvania thinks it necessary to enact by statute that a strikeis lawful when the wages are insufficient or it is contrary to unionrules to work, which latter part is clearly unconstitutional. There isone statute against boycotting and three against blacklisting. 

In 1892 there are more laws limiting the hours of labor of women andchildren to fifty-eight, or in New Jersey, fifty-five, hours a week;laws against weavers' fines, and restricting the continuous hours ofrailway men. The sweat-shop acts first appear in this year, and thestatutes forbidding the discharge of men for belonging to a union ormaking 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 furtherregulation of child labor. Six States adopt statutes againstblacklisting. 

In 1894, being the year after the panic, labor legislation is largelyarrested. New York adopts the statute, afterward held constitutional, requiring that only citizens of the United States should be employedon public works, and statutes begin to appear to provide for theunemployed. 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 Statearbitration, against payment of wages in store orders, againstdiscrimination against unions, and for factory legislation may benoted. 

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

In 1897 California provides a minimum wage of two dollars on publiccontracts, and Kansas adopts the first statute against what are termedindirect contempts; that is, requiring trial by jury for contempts notcommitted in the presence of the court. There is a little legislationagainst blacklisting, and Southern States forbid the farming out ofconvict labor. 

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

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

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

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

In 1902 Colorado overrules her Supreme Court by getting byconstitutional amendment an eight-hour day in mines. Massachusettspasses a joint resolution of the Legislature asking for a Federalconstitutional amendment which shall permit Congress to fix uniformhours of labor throughout the United States, and Kentucky and otherSouthern States begin to legislate to control the hours of labor ofwomen and children. 

In 1903 this movement continues and in the Northwestern States, Oregonand Colorado, the length of hours of labor of women of all ages isgenerally limited. Weekly payments and anti-truck laws are adopted. Montana forbids company boarding-houses and Colorado makes thestriking attempt to do away with the so-called dead line; that is tosay, a statute forbidding any person to be discharged by reason ofage, between the years of eighteen and sixty. California followsMaryland in abolishing the conspiracy law, both as applied toemployers and employees. [1] It does not seem that in either State thisstatute has yet been tested as class legislation. Legislation againstthe open shop continues in far Western States, while Minnesota makesit a misdemeanor for an employer to exact as a condition of employmentthat 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 theprotection of child labor, particularly in mines, and Alabama adopts ageneral statute against picketing, boycotting, and blacklisting. 

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

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

In 1907 four more Southern States attempt laws to control agriculturallabor; the factory acts and child-labor laws continue to spreadthrough the South; New York largely develops its line of sweat-shoplegislation, and more child-labor laws and laws prohibiting the workof women in mines are introduced in the South. 

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

With this climax of labor legislation our review may properly end, butthe reader will not fail to note the advantage that may be derivedfrom experience of these extraordinary statutes as they are tried outin the different States and Territories. It could be wished that somemachinery could be provided for obtaining information as to theirpractical working. The legislation of 1909 was principally concernedwith the matter of employers' liability for accidents, a conferenceupon this subject having been held by three State commissions, NewYork, Minnesota, and Wisconsin. Massachusetts extended the act of 1908permitting employers and employees to contract for the compensationof accidents; and Montana established a State accident insurance forcoal-miners. California and Montana exempted labor in a large degreefrom the operation of the State anti-trust laws; but Washingtonadopted a new statute defining a conspiracy to exist when two or morepersons interfere or threaten to interfere with the trade, tools, orproperty of another, and proof of an overt act is not necessary. Northand South Carolina, Texas, and Connecticut passed the usual statuteprotecting employees from being discharged because of membership in atrades-union, which, as we have said, has been held unconstitutionalwherever contested. Arizona, California, Idaho, Washington, Wyomingand Nevada enacted or amended eight-hour measures for employees inmines, but little was accomplished for children in the SouthernStates. [1]

[Footnote 1: See "Progressive Tendencies in the Labor Legislation of1909, " by Irene Osgood, in the _American Political Science Review_ forMay, 1910. ]

The labor-injunction question has been recently covered by anadmirable study prepared by the Massachusetts Bureau of Statistics andpublished in December, 1909. The investigation covers eleven years, from 1898 to 1908, in which there occurred two thousand and twostrikes. In sixty-six of these strikes the employers soughtinjunctions and in forty-six cases injunctions were actually issued. In only nine cases were there proceedings for contempt of theseinjunctions, while only in two cases out of the two thousand werethere any convictions for contempt of court. In eighteen casesinjunctions were sought to prevent employees from striking, butonly in four of these were they granted, and one of these was laterdissolved. Seven bills were brought by employees against unions forinterference with their employment, etc. , and in three cases unionssought injunctions against other unions. In one case a union broughta bill against an employer and in one case an employer sought aninjunction against an employers' association. Under a decision of theMassachusetts Supreme Court it was declared unlawful for a trade-unionto impose fines upon those of its members who refused to obey itsorders to strike or engage in a boycott. In 1909 a bill was introducedin the Legislature with the special object of permitting this, but itfailed of passage. The _Bulletin_ contains a brief history of equityjurisdiction in labor cases and reprints all the decisions of theSupreme Court of Massachusetts down to the year 1909, and the actualinjunctions issued by Superior Courts in five late cases, with achronological summary of proceedings in cases concerning industrialdisputes in all Massachusetts courts for the eleven years covered bythe report. 

The matter of labor legislation is of such world-wide importance thata word or two may not be out of place concerning recent legislation inother countries. Other than factory and sweat-shop acts and hoursof labor laws, there are three great lines of modern legislation inEurope, North America, and Australasia: employers' liability, old-agepensions, minimum wage. On the first point, the tendency of modernlegislation, as has been intimated, is to make the employer liable inall cases for personal injuries suffered in his employ without regardto contributory negligence or the cause of the accident. That is, itis in the nature of an insurance which the employer is made to carryas part of his business expenses. It has the great advantage ofdoing away with litigation and confining his liability to reasonableamounts, and in the writer's opinion is in the long run for thebenefit of the employer himself. There is one exception. The employeris not liable when the injury was caused by the wilful misconduct ofthe workman injured. 

Old-age pensions, or State insurance against old age as well asdisability, now exist in several countries, notably Germany, NewZealand, and England. The German law[1] is much the most intelligentand the least communistic in that it provides that half the fund israised by deductions made from the wages of the workmen themselves. It applies to all persons, male and female, employed under salary orwages as workmen, journeymen, apprentices, or servants; also to allindustrial workmen, skilled laborers, clerks, porters, and assistants;also to all other persons whose occupation consists principally inthe service of others, such as teachers who do not receive an annualsalary of more than five hundred dollars; also to sailors and railwayemployees; also to domestic servants. No one is obliged to insurehimself who is over the age of seventy, and no one is bound to insurewho does not work in a required insurance class for more than twelveweeks or fifty days in each year. When women get married, they insiston reimbursement of one half of all the insurance assessments theyhave paid up to that time, provided such assessments amount to twohundred weeks, or four years--a provision which must very much helpout marriages, and from which the amusing deduction may be drawn thatthe average value of a husband in Germany is considered to be aboutone-half the expense of supporting his wife for a period of twohundred weeks, or four years. On the other hand, the law has theeffect of postponing marriage for the first four years of a woman'semployment, as it practically imposes a penalty upon a woman marryingbefore four years from the time when she begins to pay to the Stateinsurance 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 ofoutdoor relief, giving to everybody who has reached a certain age, without reference to any previous service, tramps or drones as well asworkmen. It is a law indefensible in principle and merely the accidentof a radical government. It provides that every person over seventywhose yearly means do not exceed thirty-one pounds ten shillings(_i. E. _ income from property or privilege) and is not in "regularreceipt of poor relief" and has not "habitually failed to workaccording to his ability, opportunity and need" nor been sentenced toany imprisonment for a criminal offence--all to be determined bya local pension committee with appeal to the central pensionauthority--shall receive a pension of five shillings a week when hisannual means do not exceed twenty-one pounds, that is, thirteen poundsa year, down to one shilling a week when they exceed twenty-eightpounds seventeen shillings six pence. 

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

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

The minimum-wage idea has so far been attempted only In New Zealandand in Great Britain. [1] (See above, p. 160. ) The New Zealand law of1899 provided a minimum wage of four shillings per week for boys andgirls, and five shillings for boys under eighteen, but the principlehas been much extended by a more recent statute. The English lawis not yet in active operation, and may or may not receive greatextension. It provides in substance for the fixing of a minimum wagein the clothing trade or _any other_ trade specified by the HomeSecretary. 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 ofarbitrators with the usual representation given to each side, and itwill doubtless work, as it does in New Zealand, for the elevation ofwages, as such commissions rarely reduce them. 

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

Co-operation and profit-sharing, the great hope of the middle yearsof the nineteenth century, has made little progress in England or theUnited States since. Such successful experiments as now exist consistprincipally in offering to the employees the opportunity to buy thestock of the company at a reasonable rate, as in the case of theIllinois Central Railroad and the United States Steel Company. Manymills, however, give a certain increase in wages at the end of regularperiods proportionate to the profits. This technically is what wecall profit-sharing. The word "co-operation" should be reservedfor institutions actually co-operative; that is to say, where theemployees are partners in business with the employers. Of such thereare very few in the United States, although there are quite anumber in England. In 1901 there were only nineteen co-operativeestablishments in the United States, most prominent among which arethe Peacedale Woolen Mills in Rhode Island; the Riverside Press inCambridge; Rand, McNally & Co. , Chicago; the Century Company, of NewYork; the Proctor & Gamble Soap Co. , of Cincinnati; the Bourne Mills, of Fall River, and the Pillsbury Flour Mills, of Minneapolis. Yetthese institutions are really profit-sharing rather than co-operative, for the return is merely an extra cash dividend to employees who haveno voice in the management. Mr. Oilman in his book, "A Dividend toLabor, " tells us that there are thirty-nine other cases at least whereprofit-sharing once adopted has been abandoned. On the other hand, in Great Britain there were in 1899 one hundred and ten importantco-operative productive establishments. There are many more on theContinent. 

Arbitration laws are also far more developed and successful inEuropean and Australasian countries than in Great Britain or theUnited States, although the first English act concerning arbitrationwas passed as early as 1603. In the first year of Queen Anne, 1701, was the first act referring specially to arbitration of labor, and thenext, Lord St. Leonard's act, in 1867, which attempted to establishcouncils of conciliation, something after the pattern of the French_conseils de prudhommes_; but in 1896 these acts were repealed and theConciliation Act of the 59th Victoria, chapter 30, substituted. Itprovides that the boards of arbitration may act of their own motion inso far as to make inquiry and take such steps as they deem expedientto bring the parties together, and upon application of either side mayappoint a conciliator, and on the application of both sides, appointan arbitrator. Their award is filed of record and made public, butno provision is made for its compulsory enforcement. In France, thelegislation is much more intelligent. There the distinction betweenindividual and collective labor is clearly made and within recentyears there is elaborate legislation for the settlement of strikes, disputes of the collective class, which we will later describe. Forthe adjustment of individual disputes, France has long had in her_conseils de prudhommes_ a special system of labor courts thatconstitutes one of her most distinctive social institutions. [1] Theseare special tribunals composed of employers and workingmen, createdfor the purpose of adjusting disputes by conciliation if possible, orjudicially if conciliation fails. Appeal from their decisions is madeto the tribunals of commerce. The first such council was created inLyons in 1806, but since they have spread through all France. When theamount involved does not exceed two hundred francs, the judgment ofthe council is final; above that sum an appeal may be made to thetribunal of commerce. The most important element of all, perhaps, isthat these councils have to some extent criminal powers, or powers ofpunishment. They can examine the acts of workingmen in the industriesunder their jurisdiction tending to disturb order or discipline, andimpose penalties of imprisonment not exceeding three days, having forthis concurrent jurisdiction with the justices of the peace. Elaboratearbitration laws also exist in France, and whenever any strike occurs, if the parties do not invoke arbitration the justices of the peacemust intervene to conciliate. Still there is no compulsory arbitrationexcept by agreement of both sides. 

[Footnote 1: See the author's Report to the U. S. IndustrialCommission, 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 Europeanstates, including Great Britain, although there most of the unionsrestrict 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 regulatingthe sanitary conditions, etc. , of factories and sweat-shops, are farmore complicated and intelligent upon the Continent, and even inEngland, 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 theContinent of Europe where common-law principles of individual libertydo not interfere, is, of course, far more complex and far moreeffective than that of either England or the United States. Theprinciple of combination we leave for the next chapter. In Europeanlegislation, 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 everyperson "shall be free to engage in such an enterprise or exercise, such profession, art or trade, as he may desire. " In Germany anelaborate attempt has been recently made to re-introduce the old guildsystem made over from its mediaeval form to suit modern conditions, and in other countries where the government does not interfere, thetrade guilds, or unions, present insuperable obstacles to any oneengaging in their industry who is not a member of the guild or has notgone 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 FrenchSwitzerland. A most interesting account of the experiment of the SwissCantons on freedom of labor and the guild system will be found inthe U. S. Industrial Commission Report above referred to. [1] Germanydiffers from England and France in that the old guild system was neverabsolutely done away with; in 1807 serfdom was abolished in Prussia, and a decree of December, 1808, apparently under the influence ofNapoleon, proclaimed the right of citizens freely to engage in suchoccupations as they desired. Exclusive privileges and industrialmonopolies were abolished by subsequent decrees, and the generalmovement for the freeing of industry was consummated in 1845 by thelabor code of that year, which, by the labor code of 1883, extendsover all Germany: "The practice of any trade is made free to all. . . . The distinctions between town and country in relation to the practiceof any handicraft trade is abolished. . . . Trade and merchant guildshave no right to exclude others from the practice of any trade. . . . Theright to the independent exercise of a trade shall in no way dependupon 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 specificallyadopting the English common law of liberty of labor and trade which"organized labor" seems already desirous of departing from; but theGerman Civil Code goes on to say (Section 611): "By the contract ofhiring of services the person who promises service is obliged torender the promised service, and the other party is obliged to thepayment of the salary or wage agreed upon. All nature of services maybe the subject of the service contract. " It would seem, therefore, that the contract may be specifically enforced. So, in France, by thelaw of 1890, "A person can only bind himself to give his services fora certain time or a special enterprise. The hiring of services madewithout a fixed duration can always cease at the wish of one of thecontracting parties. Nevertheless, the cancellation of the contractat the wish of one only of the contracting parties may give rise todamages. " It would appear, therefore, that definite contracts may bespecifically enforced, Austria has somewhat similar laws, althougha larger proportion of industrial employment is subject to stateregulation, and here no employer can employ any workingman withouta book or passbook, which serves both as identification and record. Generally in Europe the use of a written contract in labor engagementsis far more usual than with us. This, perhaps, makes it easier toenforce such contracts specifically. Nevertheless, I find no specificstatute on the subject. Indeed, the Code Napoleon adopts the Englishlaw and provides[1] that "every obligation to do or not to do resolvesitself into damages in the case of non-performance, " while the modernEnglish law act of 1875 provides a special and summary remedy in thecounty courts for labor disputes whereby when the contract is notrescinded the court may award damages or take security for theperformance of the labor contract itself. This, however, does notinclude domestic servants. Both France and Belgium copy the commonlaw as to slavery, requiring contracts to be for a certain time or adetermined work. In Russia, however, contracts may be made for fiveyears. 

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

It is still true that no European country outside of Turkey has yetfixed by law the amount of wages in private employments or the minimumamount, though that result is effected by the machinery of arbitrationin Great Britain and New Zealand. Continental countries, however, universally legislate as to hours of labor even of adult women, therebeing no constitutional principle protecting their personal libertyin that particular, although in Belgium and Great Britain the laws donot, as a rule, apply to adult male labor. The hours are generallyeleven or twelve, instead of eight or nine as in England or the UnitedStates. There is elaborate special regulation of times and conditionsin labor in railways, laundries, bakeries, etc. The English lawgenerally divides persons, according to their age, into three classes, adults, young persons (from fourteen to eighteen), or children, andthe system is most elaborate. Generally no children under the age ofeleven may be employed at all. 

Sanitary and social regulations are far more intelligent than ours. Generally, the employment of women in factories within four weeksafter childbirth is forbidden; and in Switzerland it is forbidden toemploy pregnant women in certain occupations dangerous to the healthof posterity. The German Civil Code declares that "A married woman hasboth the right and the obligation of keeping house. She is obliged toattend to all domestic labor and the affairs of her husband in sofar as such labor or occupation is usual according to her socialcondition. She is supreme within her sphere, or at least has power toact or bind her husband in domestic matters, and he cannot limit herpowers without a divorce. He may, however, annul any contract made byher 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 Catholiccountries, are handicapped by an infinity of holidays. In RomanCatholic countries they are generally single days, saints' days, etc. , scattered throughout the year, but in Great Britain no skilled laborerwill work at all for some weeks at a time. 

The English law against intimidation is the model of the New Yorkstatute and most others. It defines in great detail what intimidationis--substantially, that it is violence or threats, the persistentlyfollowing, the hiding of tools, etc. Or the watching or besetting thehouse 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 theEnglish common law as to enticing from service. 

There is as yet, however, no evidence in Europe outside of GreatBritain of the American tendency to make a special privileged class ofskilled or industrial labor. So far as appears, there is no speciallegislation in any European country which is concerned particularlywith the legal or political rights of industrial laborers. [2] There ismuch more co-operation and sympathy between employers and employees, at least in Continental countries, and possibly for this reasonco-operation has proved far more successful. [1] State labor bureaus, state insurance, saving banks, and employment agencies are almostuniversal 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 twogreat fields of property and personal liberty, and we have generallyfound that the same principles of jurisprudence govern both. So shallwe now find when we come to combinations that there is no differenceor distinction in the law between combinations of capital andcombinations of individual faculties. In both fields a "combine" isobnoxious, as the untutored mind instinctively feels. Combinationsmay, of course, be lawful; but the fact that no actually criminalpurpose or act can be found against them is not conclusive of theirlegality. At the risk of wearying the reader I would reiterate mybelief that this was one of the greatest juristic achievements of theEnglish common law; and that the question whether it shall be all doneaway with or retained is the most momentous public question now beforeus in industrial and social matters. [1] Whether, on the one hand, Standard Oil combinations shall be permitted to the point of universalmonopoly of trade and opportunity; or, on the other, close unionsbuilt up, even by legislation itself, to an equally impregnableposition of monopoly of opportunity, or so as to become a universalprivileged guild--are questions to be determined by the sameprinciples; and equally momentous to the future of our republic and ofhuman society as now constituted. And before passing to a review ofthe legislation itself, I would lay down the principle which I believeto be the one which will ultimately be found to be the controllingtest: that of _intent_. The _effect_ (often proposed as the test) isreally immaterial as determining the illegality of the combination, except so far as it may be evidence of the probable intention of theparticipators at its inception. 

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

For the early English conspiracies were by no means necessarily orusually aimed at the commission of some definite crime; they wererather described to be the conspiracies of great lords for the general"oppression" of a weaker neighbor, for which he sought refuge orprotection in the court of chancery. Now, general oppression orwrongdoing, the exclusion from land or labor or property or trade, by a powerful combination, is precisely the moral injury suffered inmodern boycotts when there is no actual crime committed. Indeed, oneof the earliest kinds of conspiracy expressly mentioned and describedin the English statutes is a conspiracy for the maintenance oflawsuits, which by the very definition of the thing must be acombination for an end not in itself unlawful. The American courtshave been curiously obscure or vacillating on this point. With theirtoo general forgetfulness of historical legislation and the earlycommon law, they have gone from one extreme to the other, often witha trivial consideration of the importance of the points involved, andalways with an entire absence of a universal point of view, of thatgenius which grasps a question in its entirety and is not confused byirrelevant details. It is only of late when the matter has come beforethe Federal Supreme Court and the courts of a few States which havebeen educated by a frequent recurrence of disputes of this sort thatwe begin again to see the principle clearly, as I shall venture to layit down here: that the acts of a number of persons combined are tobe judged by their _intent_. In individual acts the intent is of noimportance except as it turns an accident into a crime; chance-medleyfor instance into murder, or mere asportation into larceny, orordinary conversation into slander; yet these few instances serve toshow how universal is the recognition of intent in the law and howlittle difficulty it presents. Juries have very rarely any difficultyin determining this question of intent in individual acts; and inlike manner they will have no difficulty when it is recognized as thefundamental test in cases of combination, _i. E. _, conspiracy. And forthe 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 copperasmerchants for the buying of _all_ copperas, and that these copperasmakers shall for three years make at so much a ton and restrainingthem from selling to others"--_held_ a criminal conspiracy; of thetailors of Ipswich (6 Coke 103) where a company of tailors made aby-law to exclude non-members from exercising their trade; and theLilleshall 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 enlargeone's business, [1] or is the _first_ intention to destroy a competitoror create a monopoly? So in _labor_ combinations: is the _first_object to get better terms for the persons combining, an increase ofwages or a reduction of hours, improved conditions in factories andshops, etc. , etc. , or is the _first_ thing they are seeking to do toinjure a third person, not concerned in the dispute, or to controlthe liberty and constitutional right of the employer himself? If thelatter, 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 naturalincident 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 itis so subtle as to grasp the effect of a combination other than thatof the individual acts, and the intent of that combination other thanits effect, but it is perhaps the only great realm of law which reallyattempts to carry out the principle of the Golden Rule. In all othermatters, if an act be lawful, it remains lawful, although done withthe intent of injuring another; it does not usually even give rise toan action for damages; but the great principle of the English lawof conspiracy was crystallized two hundred years ago in the classicphrase 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 thirdperson is highly criminal at the common law. "[1] The usual definitionof conspiracy, that is, of unlawful combination, is a combination madefor 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 amplifiedin accordance with our earliest and deepest law so as to include acombination for the mere purpose of injuring another, or molesting himor controlling him in the exercise of his ordinary lawful rights; and_a fortiori_--as of combinations to enhance the price of food--toinjure the public. It is for this reason that the combination ofmany to diminish the trade of one is an unlawful combination; thecombination may be punished although all the acts done are within theletter of the law; and when the conspiracy is evidenced by unlawfulacts, the conspiracy may be punished far more severely than the actscould have been punished themselves. We have noted that one of thegreat attempts of organized labor to-day is to do away with thisprinciple, to provide that no combination should be punished when theacts committed are not punishable in themselves, and that in fact itshould be the acts and not the combination which is punishable at all. This, it is true, was enacted by the English Conspiracy and Protectionof Property Act of 1875, as to industrial disputes only, in England;and it is just as true that it would be unconstitutional in thiscountry, both under the Federal and State constitutions. Yet theagitation for this revolution in the common law has been successful inMaryland, California, and Oklahoma, though, as has been said, it doesnot appear that any cases have yet been tried where the exception waspleaded in defence, still less where the statute has been sustained asconstitutional. 

[Footnote 1: "The position cited by Chitty from Hawkins, by wayof summing up the result of the cases, is this: 'In a word, allconfederacies wrongfully to prejudice another are misdemeanors atcommon law, whether the intention is to injure his property, hisperson, or his character. ' And Chitty adds that 'the object ofconspiracy is not confined to an immediate wrong to individuals; itmay be to injure public trade, to affect public health, to violatepublic police, to insult public justice, or to do any act in itselfillegal (3 Chit. Crim. Law, 1139). " Quoted by Shaw, Chief Justice ofMassachusetts, in Commonwealth _v_. Hunt (4 Mete. Illinois), printedas 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 awaywith the criminal liability and left the victims of the boycott orblacklist free to sue the combination for damages; but by the "TradeDisputes Act, " 6 Edward 7, chapter 47 (December 21, 1906) thefollowing paragraph was added:

"An act done in pursuance of an agreement or combination by two ormore persons shall, if done in contemplation or furtherance of a tradedispute, not be actionable unless the act, if done without any suchagreement 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 ownbehalf or on behalf of a trade-union or of an individual employer orfirm in contemplation or furtherance of a trade dispute, to attend ator near a house or place where a person resides or works or carries onbusiness or happens to be, if they so attend merely for the purpose ofpeacefully obtaining or communicating information, or of peacefullypersuading 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 tradedispute shall not be actionable on the ground only that it inducessome other person to break a contract of employment or that it is aninterference with the trade, business, or employment of some otherperson, or with the right of some other person to dispose of hiscapital or his labor as he wills. "

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

"(1) An action against a trade-union, whether of workmen or masters, or against any members or officials thereof on behalf of themselvesand all other members of the trade-union in respect of any tortiousact 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 thetrustees of a trade-union to be sued in the events provided for bythe Trades-Union Act, 1871, section nine, except in respect of anytortious act committed by or on behalf of the union in contemplationor in furtherance of a trade dispute. 

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

It is hard to say whether any part of this surprising statute would beconstitutional in this country, except the second paragraph (p. 267, above); leaving out even there the words "or more. " Certain it is thatby it industrial conditions are placed under the sway of the laborunions, 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 matterswith that aimed at forbidding or controlling the injunction in labordisputes, and with also the statutes which give a special privilege tounion labor, we have found to be among the most important pieces ofmodern legislation. Alabama and Colorado have statutes legalizing"picketing, " but a similar bill in Massachusetts failed repeatedly ofenactment. But when we come to the statutes applying to _combinations_solely, and defining them, there have been many statutes declaringblacklisting and boycotts to be unlawful--which is merely the commonlaw--and a few statutes especially forbidding them. Thus, by the year1907, twenty-two States and the United States had statutes againstblacklisting, five had statutes against boycotting, ten had adoptedlaws regulating strikes in cases of railway employment, Minnesota alaw forbidding any employer to require as a condition of employmentany statement as to the participation of the applicant in a strike formore than one year immediately preceding, Oklahoma a law requiringhim to advise new applicants for employment of any labor dispute thenpending with him, and to give such notice in his advertisements;which statute barely failed of enactment in Massachusetts. The bestdefinition of the boycott is, perhaps, to be found in the law ofAlabama: "Any two or more persons who conspire together for thepurpose of preventing any person, persons, firm, or corporation fromcarrying on any lawful business, or for the purpose of interferingwith the same, shall be guilty of a misdemeanor. " The most cumbrousis that of Indiana, which, attempting to express the matter in moredetail, is far too long to quote. [1] Many acts which are really partof a boycott, or unlawful, _i. E. _, sympathetic strikes, will be foundunder the heading "Intimidation" or "Interference with Employment" inother States; such is the recent statute of Washington (see above, p. 251). Unless the function of a statute be to instruct the ignorant, itwould probably be better to forego all such definitions and rely uponthe elasticity of the common law. 

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

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

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

Private employment offices are carefully regulated, the fees limitedto 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] notto join, a labor union as a condition of obtaining or continuing inemployment is made a misdemeanor, punishable with one thousand dollarsfine 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_ Englishstatute of 1875; that is to say, it does away with all _criminal_liability for conspiracies in labor matters, and it further providesthat no "such agreement, combination, or contract be construed as inrestraint of trade or commerce; nor shall any restraining order orinjunction be issued with relation thereto, provided only that nothingin this act shall be construed to authorize force or violence. " Wehave already commented on the possible unconstitutionality of thisact. 

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

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

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

Oklahoma is the test-tube of American legislative reactions. We shallawait with interest the legislation of 1911, as well as the effectof the laws we have summarized above. In the meantime Oklahoma haspresented to the constitutional lawyer the long-sought problem ofwhether a sovereign State once admitted to the Union is bound bythe Act of Congress authorizing such admission. The enabling act ofOklahoma required that its capital should be fixed at Guthrie andnot moved for a period of years. In May, 1910, within such period oflimitation, by act of legislature, supplemented by a plebiscitum ofthe people and the executive action of Governor Haskell, the capitalwas removed to Oklahoma City, and the State seal conveyed theresurreptitiously, in spite of the injunction of a Federal districtcourt. A more beautiful American constitutional question could hardlybe presented. It may not at first seem to the reader so important, butwhen he considers that, for instance, Utah and other Western Stateshave abolished Mormonism in the same manner, or have agreed to giveequal treatment to the Japanese and Chinese in the same manner--byan enabling act of Congress, ratified and perpetuated in the StateConstitution--he will see the importance of the question. It wasanticipated in the writer's work on constitutional law ("Federal andState Constitutions, " p. 186, note 8): "The enabling acts admittingthe eight new Western States usually provided against polygamy onaccount of the Mormon influence, and this, with other provisionsconcerning schools, etc. , was made forever irrepealable without theconsent of the United States; see Utah 3, 1. This is probably only amoral obligation; a State when once admitted comes in with all therights of the older States. So far as this section is concerned, Utahcould probably amend her Constitution and re-establish Mormonismto-morrow. "

European legislation is necessarily more elaborate because there isusually no body of existing common law. Trades-unions are universallymade lawful, as they are with us. But in France in certain cases theconsent of the government to the formation of such organizations isnecessary; and the Code Napoleon made unlawful all combinations ofpersons with an "evil end. "[1] So, "full freedom of association" isnow guaranteed in Switzerland; and in Germany the trade guilds arelargely recognized, but membership must not be compulsory. In Austriaa strict governmental control is exercised, and the principle ofobligatory guilds is unreservedly accepted. There does not appear tobe any legislation upon strikes except in Great Britain, France, andItaly, such matters being left largely to the political or policeauthorities. Strikes were unlawful in England until comparativelyrecent times, but were always lawful in this country, and are so bythe modern French law, which is much similar to ours, as is the casein 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 commonlaw 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 otherthan the United States do I find any prohibition against a man'sprotecting his own property with private guards, armed or otherwise. 

Arbitration laws in the British colonies are very generally aimedat the prevention of strikes. Otherwise there seems to be lesslegislation on the subject during the last ten years than might havebeen expected. The Orange River Colony has severe laws concerning thelabor of the blacks, of a nature resembling our peonage laws inthe Southern States. Similar conditions seem to lead to similarlegislation throughout the modern world. 

Legislation is now much desired here also to obviate the effect ofthe Taff Vale case and that of the Danbury hatters which applies itsprincipals to interstate commerce; that is to say, which shall securethe funds of a trades-union to its benevolent purposes, or even to itsuse in industrial disputes, strikes, boycotts, etc. , without making itliable for the results of litigation. In these cases the moneys in thetreasury of a trades-union, although unincorporated, have been heldresponsible for damages awarded in a suit brought against the union orits members for conspiracy under the Sherman Act, or otherwise. Itis, however, difficult to see how such legislation with us could bedevised so as to be constitutional, for it would necessarily extendonly to a certain class of persons, and be framed to exempt themalone from a certain definite legal liability. Nevertheless it has inEngland 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 Englishconstitutional right to be protected from military law or molestationby the army, and the corresponding right of protection of one'sperson, or one's house, by force, if necessary. 

The right of law, even as against the military, has been anticipatedin an early chapter; the right to try an officer, or even a soldierobeying orders, in the ordinary tribunals, for homicide, or forordinary trespass, as when, in the Dorr rebellion in Rhode Island, a company of militia invaded a woman's house. [1] The constitutionalprinciple against the quartering of soldiers upon private dwellings, and the limitations to the military power caused by the strictconfinement of the use of the army to cases of invasion orinsurrection, have been added by American constitutions. But mostimportant of all is the supremacy of the common law; the grudgingpermission of military law even to the army themselves only bya temporary vote; for in England, the Mutiny Act must be passedannually, and in the United States, appropriations for the army andnavy may not last over two years. It is these statutes alone thatmake possible the very government of the army, the enforcement of thecontract 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 theRevolution, some turbulent men, mostly negroes, started a riot againstBritish soldiers on what is now State Street (then King Street), andunder the orders of the commanding officer the soldiers fired, and twoor three men were killed. Yet although the colonies were already undermilitary occupation, and their courts and legislatures more thanunpopular with the home government, these British soldiers were triedfor manslaughter and murder, not in England, but in the ordinarycommon-law courts of the Colony of Massachusetts. James Otis defendedthem and they were acquitted. The fact that a monument to CrispusAttocks, the negro, now stands on Boston Common, and that ten ortwelve years later the British flag was expelled from Boston to seekrefuge 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 killedone of the striking rioters. It was found out which private had firedthe fatal shot; he was indicted and tried for murder; and it was ruledthat the order of the commanding officer was no defence. 

These principles, we should be reminded, are fundamental; in our owncountry in time of peace, or even in time of war, except in hostileterritory, there is no such thing as martial law; and no such thingas military law, except for the army itself, and then only by thesufferance of a biennial vote, which vote also limits the durationof existence of the regular army; besides which, all our Stateconstitutions and the Declaration of Independence have a generalprovision against standing armies. The proclamations of militaryofficers, of mayors of cities, or even State governors, declaringmartial law, or suspending the writ of habeas corpus, are of no legalvalidity; this is true of a similar proclamation by the President ofthe United States, though it was frequently done by Abraham Lincoln. The act of Mayor Ruef of San Francisco, even at the time of theearthquake, declaring martial law, or giving troops or vigilancecommittees summary powers of punishment, was a mere "bluff. " Such anorder, though in practice obeyed by all good citizens, would in noway protect those acting under it from prosecution in the criminal orcivil courts. 

On the other hand, the right to bear arms is inherent under Englishideas, and this alone, with the corresponding right of politicalassembly, has served largely to maintain English liberty; while theabsence of these two important rights has relieved countries likeRussia from all fear of revolution. One has only to read Mr. GeorgeTrevelyan's vivid account of the difficulties of the Garibaldimovement to free Italy in 1860, to realize the enormous difficultiesunder which the great patriot labored from the absence of theseunderlying principles. Indeed, but for the connivance of thePiedmontese government in allowing somebody to sell a thousandcondemned rifles, it is probable that there would have been norevolution in Sicily. 

Now this Anglo-Saxon right to arms goes back to times before the verydawn of the English Constitution, and the fyrd or local militia wasin Saxon times, as it was declared to be by our American Stateconstitutions of the eighteenth century, "the natural and only defenceof a free country. " This principle was very soon re-established afterthe Conquest. We find, as early as 1181, the Assize of Arms, whichrevives the ancient fyrd or militia. Twenty-two years before scutagehad been substituted for military service; but this was merely amatter of feudal tenure. Yet so early was a direct call for troopsforbidden to the crown. The contest of English ideals against Normanideas was one of the principal causes of Magna Charta itself (it issignificant that the Great Charter was never published in French);the barons were required to support the king in war, but complainedagainst being led out of the kingdom; and King John's insistenceupon this led to the assembly at Runnymede. Thus the militia and themaintenance of arms other than of feudal retainers--and this exceptionled to the statutes against maintainors--passed out of the executivepower and became the province of the legislative branch; a principlecarried out in all our constitutions; they make the executive thecommander-in-chief of the army, navy, or militia, but the governor mayusually not command in the field, nor order troops out of a State; andthe president cannot employ Federal troops _in_ a State, except whenrequested by its legislature; save only where necessary to maintainthe functions of the Federal government itself, or when a Stategovernment ceases to be republican in form--but of that last who is tobe the judge?

With the doing away of direct military service, never yet to bere-established in England, though the threat of conscription is nowmade, disappeared the power of the king to control his people;and this prevented the establishment of a royal autocracy and theextinction of representative government which took place in everyContinental State. It is a picturesque fact that mercenary soldierswere first employed in England in small numbers to suppress Jack Cadein 1449, who was leading a labor insurrection; just as the firstinstance where Federal troops were employed in intra-State matters inAmerica was when President Cleveland sent them to suppress riotersinterfering with the movement of mails in the Pullman strike inChicago. 

With standing armies abolished, and the fear of invasion removed, thepractice of keeping arms fell into disuse, so that curiously enough wefind under the Stuarts statutes compelling citizens to keep and beararms, just as we find statutes compelling them to take their seatsin Parliament. For quite three centuries we find no legislationconcerning arms, and Hallam mentions that by 1485 six liberty rightswere established, among them that "officers, administrators orsoldiers are liable for their acts at the common law. " It is not until1679 under Charles II, the very year of the Habeas Corpus Act, thatstanding armies are definitely established in England, and the MutinyAct concerning the government of the army was first passed. Thestruggle of the people with the army under Charles I may be well shownby these quotations from the Petition of Right in 1628:

" . . . Of late great companies of soldiers and mariners have beendispersed into divers counties of the realm, and the inhabitantsagainst their wills have been compelled to receive them into theirhouses and there to suffer them to sojourn, against the laws andcustoms of this realm . . . "

" . . . Certain persons have been appointed commissioners, with powerand authority to proceed . . . According to . . . Martial law . . . And bysuch summary course and order as is agreeable to martial law, andas is used in armies in time of war, to proceed to the trial andcondemnation of such offenders, and them to cause to be executed andput to death according to the law martial. By pretext whereof some ofyour Majesty's subjects have been by some of the said commissionersput to death, when and where, if by the laws and statutes of the landthey had deserved death, by the same laws and statutes also they mightand 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 theirdefence suitable to their conditions, and as allowed by law. "

"That the raising or keeping a standing army, within the kingdom intime of peace, unless it be with consent of Parliament, is againstlaw. "

Now it often happens that a great constitutional principle establishedwith some difficulty in England is amplified and perfected by thebolder statement in American constitutions. Thus, the Virginia Bill ofRights, 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 freeState; that standing armies in time of peace should be avoided asdangerous to liberty; and that in all cases the military should beunder strict subordination to, and governed by, the civil power. "

Similar declarations are found in the Declaration of Independence thesame year, and the Massachusetts Bill of Rights four years later; butthe Virginia definition, being the work of Thomas Jefferson, is boththe most compendious and the most concise, and is substantially copiedin the Second and Third Amendments of the Federal Constitution. Modernlegislation on the subject has found little to improve, although, withthe ignorance of constitutional history too often found in modernstatutes, we do find State laws which recognize martial law as areally existent domain of English and American jurisprudence. As ourgreatest jurists have often enough declared: "martial law" is nothingbut the will of the commanding officer, the negation of all law, whichexists when the courts do not sit and the writ of habeas corpus doesnot run. Even in these imperial days, I detect no tendency in thelegislation of the States, or even of the Federal government in NorthAmerica, to infringe upon these great principles of freedom. On thecontrary, many State constitutions, as well as an act of Congress, declare that the writ of habeas corpus can never be suspended bythe executive, but only by the people's representatives in thelegislature. The prejudice against standing armies does not seem to beas strong, in that ours has recently been quadrupled in size; but thisis probably no more than proportionate to our national expansion. Manyof the States in this time of increasing civic disorder have had togive their attention to the suppression of mobs, and correspondinglywe very generally find new complete codes governing the militia. Thusstatutes are frequent exempting a private soldier from prosecution formurder when he fires under the orders of his commanding officer; andthe honest judgment of the commanding officer is made a defencefor all acts of his troops in attacking mobs, even to the point offatalities resulting. Counties or cities are very generally madeliable for damage to property done by mobs, and in some States fordamage to life done by lynchers; the widow and children of the personlynched may recover damages. In Kansas, by a statute of 1900, it ismade a misdemeanor for a bystander to refuse to assist a sheriffin quelling a riotous disorder. Most significant, perhaps, of thismilitia legislation is that concerning its relation to the laborunions, and more significant still, the too apparent desire of laborunions to prevent their members from serving in the militia. Thus, New York and other States have already found it necessary to enactstatutes prohibiting any discrimination against persons because theyserve in the militia; prohibiting their employers from dischargingthem by reason of their necessary absence on such service, andforbidding the labor unions from in any way preventing them, orpassing by-laws against their serving in the militia. Such by-lawsare, however, unlawful under the common law. 

The law-making most in the popular mind on this whole question is thatconcerning pensions. As is well known, the Federal pension list hasswollen to a sum far in excess of the total expense of the standingarmy of Germany. An enormous number of Spanish War veterans who nevereven left the country are being added to the list, and their widowswill 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 theenormous corruption of our citizenship; indeed, one or two more wars(which the very motive of such wholesale pensioning is the more likelyto bring on) would bankrupt the nation more rapidly than even ourbattleships. Not only that, but there is a distinct tendency to make aprivileged class of veterans, and the sons of veterans--and perhaps weshall find of the sons of sons of veterans--by giving them preferencein civic employment and special education, support, or privileges atthe State's expense. Sometimes they get pedlar's licenses for nothing;sometimes they are to be preferred in all civic employment; sometimesthey have special schools or asylums as well as soldiers' homes;sometimes they are given free text-books in the public schools. TheConfederate States have not been behindhand in enacting similarlaws for their own soldiers, despite the implied prohibition of theFourteenth Amendment; but Southern courts have held them void. 

The general right to bear arms is frequently restricted by theprohibition 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 thelegislation prohibiting the employment or importation of private armedguards, such as the Pinkerton men, has been already alluded to in ourchapter on labor legislation. The precedent for the latter is to befound in the early English legislation against retainers; that is tosay, the armed private guard, or "livery, " of the great noblemen;whence is derived the custom of putting servants in livery. Thelegislation against private drill companies is closely allied, and hada somewhat amusing test in Chicago where, during a labor strike, anumber of the strike sympathizers organized a so-called drill companyand furnished themselves with guns, for the purpose really ofintimidating the public and helping the law-breakers. Unfortunately itso happened, for this purpose, that the first time they sallied forthwith sword and musket on warfare bent, they were stopped by one or twopolicemen on the nearest street corner, taken to the station-house, deprived of their arms, and locked up for the night. The next morninga fine was imposed upon their captain, who appealed to the UnitedStates Supreme Court without success. [1]

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

The legislation for giving damages for injuries to property done bymobs was tested after the Pittsburg riots of 1873, and that yellowmetropolis was mulcted in heavy damages, which it took twenty-threeyears to pay off. But no damages in this country were ever given forcriminal homicide directly, although there is an interesting case inthe Federal Circuit Court of a gentleman in Georgia who was awaited bya party of neighboring gentlemen with the intention of shooting himup when he arrived. One of his friends secretly got to the railwaystation 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 neighboringtown, and the widow failed to recover damages from the telegraphcompany. But these modern statutes in Ohio and the Southern States, making towns responsible in a definite sum to the kin of a murderedman, are the exact re-enactment of the early Anglo-Saxon law; exceptthat the blood damages--the were gild--were in those days put upon theneighbors or the kin of the enemy. 

"Organized labor" is hostile to the use of the militia, still more ofthe regular army, in any labor dispute or riot resulting therefrom. Itis never justifiably hostile where actual offences are committed, butthere is something to be said, at least there is some precedentfor their hostility, in cases where by the accident of Federaljurisdiction the whole power of the United States army is called in toback up the injunction of a judge, perhaps improperly issued. That isto say, if the parties to the dispute are citizens of the same Statethe National government may not interfere except, of course, wherethe mails or inter-State commerce are obstructed; but, by the mereaccident that plaintiff and defendant come from different States--andthis 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 oroperates its mill--it may always pick out strike leaders, walkingdelegates, who are citizens of another State, so that the litigationmay be brought in a United States court. If, then, the orders orprocesses of that Federal court be interfered with, under the law ofour Constitution the entire Federal government, first the Federalmarshals 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 offree election. The right of political assembly and petition is anotherprinciple which has been much broadened by American constitutions. InEngland the right of public meeting undoubtedly existed from earlytimes, but it was tied to the right of petitioning Parliament, whichobviously limited its scope; and always strongly contested by thekings. Many riot acts were passed, both by the Tudors and by theStuarts, which sought to limit and restrict it, and even to make anymeeting of more than twelve men a riotous and criminal assembly. Indeed, the history of the attempt of the authorities to preventriotous assemblies quasi-political runs all the way from Jack Cade'sRebellion in 1452 to the Philadelphia street railway strike in 1910. By an Act of 1549 unlawful assemblies of twelve "to alter laws orabate prices" were made unlawful--one of the reasons that gave rise tothe English notion that a simple strike was criminal. This, however, has nothing to do with the political right of assembly which, fullyrecognized by the Massachusetts Body of Liberties in 1641, was notdefinitely established in England until the Bill of Rights of 1689. Now this principle is cardinal, and so far as I know none of theStates have legislated upon the subject, unless the limitation ofthe injunction writ be such legislation. A statute of Henry VII gavespecial authority to the Court of Star Chamber over riots; which isprecisely the power now objected to by labor leaders when exercised bycourts of chancery. But it must be noted that this right of assemblyonly extends to matters political, and does not cover a meeting heldfor an end ordinarily unlawful, such as to bring about a riot or towork oppression to others or an injury to the public. 

The right of election, however, is much older in England. We findstatutes concerning the right of free election, that is, of allowingelectors to vote without interference or control, as early as 1275. Itis for this reason that almost from the origin of the House of Commonsit has been unlawful, or at least uncustomary, for peers of the realmto even speak pending elections to the House of Commons. That Housealso vindicated its right to judge of elections against Elizabeth, andthe principle that it alone shall be the judge remains in full forcein the United States, though in modern times in England given to thecourts. There is no constitutional principle in England as to theright 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 shillingsfreeholders, which law has been relaxed by degrees ever since. Our early constitutions recognized both property and educationallimitations; these were all done away with at one time, except inMassachusetts and Rhode Island, the former retaining an educational, the latter a property, qualification. They have now been abolished inthose 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 thatof the Federal government with State elections in the South duringthe thirty years following the war. While such interference was neverquite held unconstitutional, it was strongly felt to be so; and hastherefore disappeared from practical politics. The principle of freeelection, therefore, remains again unquestioned, and is, indeed, strengthened by considerable legislation aimed at the influencingof votes by employers, etc. Many States, for instance, require thatElection Day shall be a holiday, or, at least, that all employers oflabor shall give part of the day, one or two hours at least, for theemployees to vote; and a number of States have statutes aimed atthe coercion of their vote by any promise of giving or withholdingemployment, or otherwise, and the giving their pay to them inenvelopes upon which any political matter is printed. Bribery isnearly always made criminal and cause of permanent disfranchisementand disability to hold office, both to the person giving or receivingthe bribe, but there is more interesting legislation still aimed atany form of political corruption. Massachusetts led the way with astatute which endeavors to make criminal any promise of employment oradvantage, or even for a corporation, at least, to employ any personat the recommendation of any member of the legislature. It is verydifficult to draw such laws to make them apply fairly, but they havebeen copied with even greater elaboration in many Southern States. Thestatute of Alabama, for instance, covers nearly a page in describingthe various acts or promises which are thus forbidden to officers orcandidates for office. 

Then there is the long range of lobby acts aimed at the very seriousabuse of lobbying. Massachusetts divides the offence, or rather thebusiness, into two general classes: First, the legislative counsel whoappears before legislative committees in support or in opposition ofmeasures. This practice, of course, is perfectly legitimate in manycases, but the law provides that his advocacy must be open, he mustdisclose the client for whom he appears, if there be one, and at theend of his services file a statement of the counsel fees actuallyreceived. Such legislation, however, is easily evaded by the paymentof an annual salary. Then there is the legislative agent or lobbyist, properly so called, who does not openly appear before legislativecommittees, but waylays members of the legislature at their dwellingor meeting places, or elsewhere. He must also register as legislativeagent by the Massachusetts law, and file an actual account of hisreceipts 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 inelections, particularly in the South; and there were many acts ofCongress passed under the Fourteenth Amendment, but these havepractically all been held unconstitutional. 

The form of the ballot is another matter that has been the subject ofmuch legislation. Our States vary, as does still public opinion inEngland, between the extreme of providing by the Constitution itselffor the secrecy of the ballot, and the other extreme of requiring thatall voting should be _viva voce_, as was formerly the case at leastin Kentucky. Public opinion has universally settled in favor of theformer; and to protect the voter's freedom, the so-called Australianballot has very generally been adopted, the principle, of course, being a ballot on which all candidates' names are printed, with orwithout party designations, and against which the voter makes hismark. In their practical working, however, these laws depend on thesimplicity of the form; thus, it works very well in Massachusetts, where the form is simple and the ballot short, and very badly in NewYork, where the contrary is the case. Opinion is pretty well unitedon the advisability of the Australian ballot, the only remainingdifference being as to whether any party designations should beprinted. 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 illiteratevoter; also, that the voter should be allowed to make one crossopposite the word "Republican" or "Democrat" when he means to vote thewhole of the ticket, "in order to give each candidate the benefit ofthe full party strength. " On the other side it is argued that allvoting should be intelligent and never blind, and that if the voterdoes not take the trouble to mark all the names on the ballot itsufficiently indicates that he is indifferent as to some of thecandidates even of his own party, and that his votes for them should, therefore, not be counted. 

The most significant of modern developments in legislation concerningvoting is the new practice of recognizing by law political parties, and of regulating by law the mode of their nominations. The old ideawas that the law took no notice of anything that happened untilelection day, when it did regulate the mode of voting and countingthe votes; the law was supposed to be blind to political parties; thepersons elected were merely the successful candidates. But firstbegan the tendency to recognize parties in "bi-partisan" boards andcommissions; it became very usual to provide that State officialsshould, when the office was held, or the function performed, by morethan one person, be elected or appointed from different parties. This, of course, works very well when there are but two parties, as indeedis usually the case. And now of late years the practice has grown upof regulating political matters _before_ the election day. Directprimaries, caucuses regulated by law, the mode of nomination, nomination papers to be filed in a certain manner, the compulsoryservice of men as candidates unless they comply with preciseformalities of resignation, the joint caucus and the separate caucus, the public nomination paper, the one-per-cent. , three-per-cent. Orfive-per-cent. Rule whereby a party gains such official recognitiononly by throwing such a percentage of votes at some previouselection--in short, all the mass of legislation of this kind is thematter of the last few years. In the writer's opinion, with thepossible exception of the public nomination paper, it is all mistaken. Aimed at destroying the machine, it really intrenches the machine--theprofessional politician--in power. The general public will not, andshould not be compelled to do more work than is necessary. If theyactually vote at election it is all that can fairly be asked of themand more than one-third of them do. They will not, and cannot, devotetheir time to politics all through the year. The result is that allsuch elaborate schemes simply throw the game into the hands of the"town committee" or other permanent professional body. If you have tohold a meeting in June, and give notice of a caucus in July, withas much formality as used to be required in publishing the bans ofmarriage, and then on a certain day in August do something else, andin September something still more, and file with the Secretary ofState nomination papers in October, and have everything complete tendays before election day, --the ordinary citizens who usually awake tothe fact that there is an election about that time find it too late tohave any voice in the nomination. They go to the election itself tofind 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 candidatehad been nominated, on the very eve of election they could arousethemselves and defeat him; under all these complicated systems it istoo late. One necessity for such legislation, however, arises from theAustralian ballot itself; when that ballot carries party designations, who is to determine who is the official party candidate? This problemis not, however, insoluble. Indeed, it might be argued that it wouldbe an excellent test to require the various so-called party nomineesto run together, leaving to the voter to determine who was the regularone. Certainly the legalizing of conventions, caucuses, and othernominating machinery, has led to great scandals. Under such laws, whoever first gets possession of the hall at the time named would seemto be the regular candidate. We have, therefore, in Massachusetts, seen the scandal of two groups of men making different nominations ina loud voice at the same time, one at the front of the hall, and theother at the back, and the courts had to decide who was the regularnominee. In the opinion of most lawyers, they decided in favor ofthose who ought to have been the nominees rather than of those who infact were. 

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

But most significant of all political matters is the growing distrustof legislatures. Curiously enough, although there was a great distrustof the executive of the nation until within a very few years, thatseems to have entirely passed away. Governors of States have toolittle power to inspire distrust in anybody. But that legislatures orrepresentatives of the people should fail to inspire their confidenceis one of the most curious developments of modern politics. The matterhas been fully discussed elsewhere in this book. It is greatly to belamented, for it tends to lower the character of the legislaturesthemselves. The days are indeed far off when a man would prefer beinggovernor of a State to president, ambassador, or judge of the SupremeCourt; or the State Senate to the national Congress. Part of thisindifference is, of course, explicable; for with the perfection of ourcivilization and the growing intelligence that most statutes havebeen enacted that are really needful, there is really less for thelegislatures to do. Then, also, the growing practice of giving a largeshare of governmental, or even legislative, powers to boards andcommissions has narrowed the scope of legislation. Whatever bethe reason the fact is certain. Very few States now allow theirlegislatures to sit _ad libitum_, and only six or seven States permitannual sessions. In nearly all States sessions are biennial, ifnot, as in some Southern States, quadrennial. That is to say, thelegislature is only allowed to meet once in four years; and in morethan 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 atthe 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. MostStates now forbid contributions by corporations, as does the Federalgovernment. [1] Thus, by the California law of 1893, expenditures arelimited to one hundred dollars for each candidate, or one thousanddollars by a committee, and in no case exceeding five per cent. Of thesalary of the office for which the person is a candidate for one year, and the legitimate expenses are specified; that is to say, publicmeetings, printing, postage, and head-quarters expenses. Probablyno one regrets the prevalence of extravagant expenditures more thanpersons who are themselves in public life. If the bosses of many Statemachines were consulted in private, they would agree that the onlyreally legitimate expenditures are the hiring of halls, and themailing of at most one printed circular to every voter in thedistrict. The Missouri law of the same year fixes a limit ofexpenditure of one dollar per hundred of votes thrown at the lastelection 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 forthe direct election by the people of United States senators, a largemajority of the States, and the Democratic party in all States, havingin the last few years expressed themselves in favor of a change inthat particular. Until within a few years it was thought only possibleby Constitutional amendment, but the example of Oregon and otherStates has shown that it may be done by means of a law providing forthe expression of the preference of the voters, and this may even bemade a party ballot. That is to say, voters at party caucuses, oreven at elections where the ballots are so marked, may express theirpreference for this or that candidate for the United States Senate, and the moral obligation will then be on the State legislature, orat least on its members of the corresponding party, to vote for thecandidate so nominated. This has been universally done in the caseof election of the United States President by the force of publicopinion; no instance is on record of an elector having voteddifferently, or of a bribe or even of an attempt to bribe. But withlegislation--statute law not being so strong as the unwritten law, contrary to the popular opinion--it is by no means certain that thisresult will happen. The law has worked in Oregon, where first adopted, with the striking result that a Republican legislature elected aDemocratic United States senator; but if the writer is correctlyinformed, the contrary has been the case in Illinois. The movement forthe direct nomination of members of the lower house of Congressalso exists in many States. "Direct nomination" of course means anomination by the mass of voters, either in assembly or by a writtenlist. The value of this reform is probably exaggerated. Directnominations in the city of Boston recently had the somewhat amusingresult that there were two or three times as many names on thenominating petitions as voted in the election, and that one gentleman, indeed, fell short of his nominating petition by nearly ninety percent. 

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 votedfor by a majority of a quorum. Many States forbid new legislation tobe attempted after the first few days of the session. There has in thelast few years been an effort at the proper drafting of bills, but ithas hardly made much progress as yet, and will be discussed in ourfinal chapter. 

The two most radical changes of all are, of course, the initiative andreferendum, and women's suffrage. The latter has, on the whole, madeno progress since it was adopted in Colorado and three other States, about the year 1890. The people of the States where it exists appearsatisfied and it is probable that they will never make the changeback; on the other hand, the better opinion seems to be that theexistence of women's suffrage has not materially altered conditions orresults in any particular, except, possibly, that there is a littleless disorder around the polling booths on election day. The largestcity in the world where women vote is Denver; and in hardly anyAmerican town has the "social evil" been more openly prevalent orpolitics more corrupt; while it has just voted _against_ prohibition. As in the case of school suffrage, it is probable that a smallerproportion of women are now exercising the right of suffrage than whenthe thing was a novelty. In all the neighboring States to the fourwomen's suffrage States (Colorado, Wyoming, Idaho, and Utah) a women'ssuffrage amendment has been proposed to the Constitution, all the malevoters have been given a chance to vote on the question, and in everyinstance it has been defeated by very large majorities. As has beenintimated, the movement to extend the right of suffrage to womenfor all matters connected with schools and education has also beenarrested. Many States had adopted this principle before the year 1895, but few, if any, during the past fifteen years. The experience ofMassachusetts, where sentiment was strongly for it, shows that thewomen take very little interest in the matter; an infinitesimalpercentage of the total female population voting upon election day, even when a prominent woman was the leading candidate for the schoolcommittee. 

Women's suffrage was adopted in Colorado in 1805, and rejected inKansas the same year; adopted in Idaho in 1890, and rejected inCalifornia; rejected in Washington and South Dakota in 1898; rejectedin 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, torecognize the right of women to vote as property owners upon mattersinvolving the levying of taxes, or the "bonding" of cities, towns, orcounties, for public improvements or other purposes. Such laws existin Texas, Louisiana, Michigan, and possibly other States, and inLouisiana the statute provides machinery by which women may on suchmatters vote by mail. It is much to be wished that municipal affairsand municipal elections could be separated entirely from politicalones. That is to say, that a city or town might be run as a businesscorporation on its business side, and in such elections have theproperty owners, both men and women, only vote. The trouble, ofcourse, is that there are certain matters, notably the expenditure forschools, which is the largest, at least in Massachusetts citiesand towns, which are in a sense both municipal and political, botheconomic and affecting individual rights of persons not propertyowners. In any case, the matter must be considered outside of thesphere of "practical politics. " It is hardly likely that, except forsome special matter like the race question in the South, a Stateconstitution will ever be amended in a conservative direction. Alliedwith this would be a proposition to deprive persons in receipt ofwages or salary from a city of the vote at municipal elections. Laborers and employees in the employ of a large city like Bostonalready form a very considerable percentage of the voters, and if youadd to them the employees on the public-service corporations, partlyunder municipal control, you have probably got nearly one-third ofthe total vote. Yet the vote could not be taken from them without anamendment to the State constitution. 

Of the initiative and referendum much has been written. It exists infull force, that is to say, as applying both to State elections and tocounty, city, or town elections, in several States, mostly in the farWest; and for partial purposes it exists in several more. "Directlegislation" has been very popular as a political slogan during thepast few years, but it has not been adopted as yet in any of thethirteen original States. The objections to it are fundamentally thatit destroys the principle of representative government; that it takesresponsibility from the legislature with the result, probably, ofgetting a more and more inferior type of man as State representative;that it is unnecessary, inasmuch as any one may have any billintroduced in the legislature to-day, and public sentiment beeffectual to prevent the bill from being defeated; and finally, theobjection of inconvenience, that it is cumbrous and unmanageable towork. Already the Secretary of State of Oregon complains that the lawspassed by initiative are so badly written as to be unintelligibleand conflicting, to say nothing of bad spelling and grammar. In oneinstance, at least, an important statute, that for the initiative andreferendum itself, adopted by initiative, failed of effect becauseit contained no clause beginning "Be it enacted, " etc. Possibly withpractice these objections might disappear. The more valuable part ofthe reform is undoubtedly the referendum. The initiative is hardlynecessary, except by way of giving a referendum on measures whichotherwise would not emerge from the legislature; and there is agrowing inclination to give a referendum on all laws or measuresinvolving a grant of a franchise or of a right or privilege at theexpense of the general public, or the town or city concerned. Thisis a very distinct tendency, and throughout the Union the States arerapidly passing laws that where a State-wide franchise is given, anexemption from taxes, a rate-making power, or other privilege, itshall be submitted to all the voters, and corresponding measures, street-railway franchises, gas, light, water, or other public-servicecorporations, 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 inthe different States; usually, upon petition of from five to eight percent. Of the voters, or in cities and towns usually fifteen per cent. , legislation may be initiated. It may then be either passed by theState legislature like an ordinary law, or be given to the referendumof the people, or both, and takes effect when adopted by a majority ofthe voters at a general or special election. Constitutional amendmentsmay in some States be originated and adopted in the same manner. Sofar as one can judge, the referendum in this country shows the sametendency that it has shown in Switzerland. Although a larger numberof measures are doubtless submitted to the people, and especiallymeasures of a class not to go through the ordinary legislature, whencontrolled by important interests, yet the vote itself at the finalelection is apt to be somewhat conservative. The referendums uponwomen's suffrage, for instance, while the initiative was adopted by alarge majority, were very decisively defeated at the polls, and it issaid that last year's election in Oregon and Washington, with verynumerous and complex referendum measures, showed a surprising degreeof intelligence on the part of the ordinary voter. Nevertheless, whileit may be possible to submit to him one or two measures a year, if itwere to come to the submission of all legislation (and the States willaverage from five hundred to one thousand statutes per year, at theirpresent output) it seems incredible that the voter should have timeand intelligence, or even take the trouble, to mark his ballotaccordingly; while it is obvious that the ballot itself, setting forththe full law, would be considerably larger than the annual volumes ofstatutes now are. This matter of practical convenience, however, mayperhaps be expected to cure itself. I should conclude, therefore, thatwhile the whole matter is an interesting experiment, the initiativeis hardly necessary, and the referendum should be limited toconstitutional amendments (where it was always allowed) and to mattersof definite local or public interest, like the granting of a franchiseor an irrepealable contract of privilege. 

The modern practice of putting everything into the State constitutionwhich we have called attention to in other places, has led, of course, to a practical referendum on all most important matters, for noconstitution, with the exception of that of Virginia, has ever beenadopted in any of our States except by the people at an election; andwith the tendency to require the submission of a new constitutionevery twenty years, and to make the constitution itself so compendiousas to cover a vast amount of matter, usually subjects of legislation, with the consequent necessity of frequent amendment, we have nowin our Southern States and some of the Western States a practicalreferendum to the people of most important legislative matters everyfew years. 

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

The recall, a still more recent device than the initiative andreferendum, has, indeed, no precedent in the past, or in othercountries. In substance, it makes the tenure of office of an electiveofficial dependent on the continuous good-will of the voters, or ofa certain proportion of the voters. Under the present charter of thecity of Boston, the mayor may be "recalled" upon petition of fifty percent. Of the registered voters--a proportion which practically makesthe recall impossible. Where, however, the initiative of the recalldepends on a small proportion and the result is determined by a simplemajority vote at the polls, it is easy to see that the mayor or otherofficial would be in continuous apprehension, if he cared for hisoffice, and in any event would not be able to adopt and follow out anycontinuous policy. The terms of most of our officials are brief. Aproposal to apply the "recall" to judges would, in the opinion of thewriter, be wicked, if not unconstitutional; as to all other officials, it would tend to destroy their efficiency, and in most cases be initself ridiculous, at least as to short-term officers holding for onlyone or two years. 

One of the most noteworthy of political changes that have occurred inthe republic since the adoption of the Constitution in 1789, is thataffecting the election and tenure of office of judges. Smith, in hisbook on American State Constitutions, published shortly after theRevolution, tells us that at that time every State in the Union hadits judges appointed by the executive for a life term. To-day, thisprinciple survives only in the Federal courts and four States, New Hampshire, Massachusetts, Maine, and Delaware, although inConnecticut, New Jersey, and Mississippi, the judges of the highest, or Supreme Court, are still appointed in this manner and for life. InVermont, Rhode Island, Virginia, and South Carolina, Supreme Courtjudges are elected by the two houses of the legislature in jointconvention, but in all other States, that is, universally in the Westand Southwest, the judges are elected by the people of the States orof their respective districts. New York and Pennsylvania, however, have very long terms, which by some is said to combine the advantagesof 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 thanbriefest mention of the most important lines of popular legislation. In the first place, common law and chancery jurisdiction are verygenerally fused and confounded. A few States still have chancellorsentirely distinct from the common-law judges, and Massachusetts anda few other States still keep chancery terms and chancery proceduredistinct from the common law. It is certainly a curious result thatthe historic jealousy of chancery and all its works should have ended, in the most radical States of the Union, in their complete adoption ofthe whole system of chancery with all its concomitants. As a result, the injunction writ, originally the high prerogative of the crown andits highest officers, has now become the weapon of all judges, evenin some States of inferior magistrates, and has been used with aconfusion and recklessness that have gone far to justify the complaintof labor interests. 

On the other hand, we have grown less jealous of preserving ourcommon-law jury rights. Not only is much more provision made for thewaiver of jury trial in all States, at least in criminal cases, and for a trial by the court without a jury unless it be speciallyclaimed, but there is a distinct tendency to have juries lessthan twelve in number, and verdicts not unanimous, but made up ofthree-fourths, two-thirds, or even a simple majority; while ourindifference to common-law rights shown in our multiplication ofboards 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 allreligious tests, and permit an atheist or person of heathen religionto testify upon simple affirmation, or according to his religioustenets. Universally, persons charged with crime have been permittedto testify in their own defence, with the common provision that noinference shall be drawn from their not doing so. Of course, byour Constitution itself, they were given the right to counsel andcompulsory process for obtaining evidence on their own behalf, neitherof which rights existed under the old common law; and then almostuniversally the wife is permitted to testify against the husband or inhis behalf, especially in cases involving controversy between them;while, as she is very generally given the right to make contracts evenwith the husband, she is naturally given the right to enforce the samein civil courts as well. 

It is in procedure that our legislation is least efficient. Havinglittle knowledge of the subject, legislatures have been shy ofmeddling with court rules and processes; while the very fact that thelegislatures have taken unto themselves the right so to interfere, has seemed to impress both bench and bar with a certain sense ofirresponsibility. I fear we must admit that the judges of England, aided by its bar, have been far more solicitous of speedy and simpleprocedure and trial than have the courts of this country. Some WesternStates have crudely tried to meet the difficulty, as by providing thatall judges must render an opinion within sixty days, or other briefperiod, after a case is argued before them, or even by limiting thenumber of witnesses to be called! But it may be feared that so longas public sentiment rather demands every possibility of evasion ofexecution than that a guilty person should be promptly and summarilypunished, little can be hoped for from the legislatures. Such progressas has been made in this direction has universally been under theurgent instance of the lawyers themselves, acting through the Stateor Federal bar associations. But the judges themselves must venture astricter control of irrelevant testimony. 

XV

OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

Legislation concerning freedom of speech and its limitations, thelaw of slander and libel, hardly exists in America, except onlythe efforts of newspapers to be free of the consequences of libelspublished by them, provided they publish a retractation; and theefforts of the people to protect their reputation and right toprivacy, as by laws like that of the State of Pennsylvania prohibitingridiculous or defamatory cartoons, even of persons in public life; andthe legislation already attempted in some States to prohibit the useof a person's likeness for advertising purposes, or to protect themfrom the kodak fiend, or even to establish a general right to privacyas to their doings, engagements, social entertainments, etc. , whenthey are of no legitimate interest to the public. Legislation in thesedirections has, however, only made a beginning. 

The newspaper-libel laws usually provide that the retractation shallbe a defence to a libel suit, at least if published in as large a typeand in as conspicuous a manner as the original article complained of;sometimes they only provide that in such cases the newspaper shall berelieved of all but actual damages. The wisdom of such legislation isquestionable, as the old adage runs: "A lie will travel around theworld while the truth is putting on its boots"; moreover, it isquestionable whether they are not class legislation in extending to acertain form of business or a certain trade a protection which is notextended to others. There has been much legislation preventingthe advertising of patent medicines, immoral remedies, divorceadvertisement, and such matters. Some newspapers have objected to it, but the right of freedom of the press does not include the right tothe use of the mails, and the papers containing the objectionableadvertisements may constitutionally be seized or denied delivery, just as convict-made goods may be denied circulation in interstatecommerce, by act of Congress, not, of course, of the States. Mr. Gompers, of the American Federation of Labor, has complained that theinjunction of their so-called "unfair list" is an interference withthe freedom of the press, and I presume would claim that an injunctionagainst urging, or combining to urge, by oral argument, the members ofthe various unions throughout the country to boycott a certain person, would be an interference with the right of freedom of speech, and thattherefore if the courts did not so decide, the laws should be changedby statute. This, also, would seem open to the objection of classlegislation if extended only to speech or publication in industrialdisputes. It should be noted, however, that the broad principle offreedom of speech by all persons and at all places is first adoptedin the American constitutions, freedom of speech in England in itshistorical principles extending only to freedom of speech in the Houseof Parliament, and the right of assembly and petition at a publicmeeting; freedom of the press, however, is the same constitutionalprinciple in both countries, but only extends to the right to publishwithout previously obtaining the consent of any censor or otherauthority, and the person publishing still remains responsible forall 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 orthreat could be printed and circulated even when a component act of aconspiracy. 

By a recent act of Congress the right of freedom of speech does notextend to anarchistic utterances, or speeches or writings aimedagainst order, the established government, and inciting toassassination or crime. Such laws are barely constitutional as appliedto United States citizens. The unpopularity of the alien and seditionlaws under the administration of John Adams will be remembered. Sincetheir repeal, no attempt at a law of government libel has been made;very recently, however, where certain gentlemen, mostly holdingimportant government offices, were charged with having made moneyout of the Panama Canal purchase, the weight and influence of theadministration was given to the attempt to indict them and bring themto the courts of the central government at Washington for trial. Thisattempt, however, failed in the courts, as, in the Wilkes case, it hadfailed 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 ifthey are anarchists, socialists, or, indeed, hold any opinion for themoment unpopular with Congress. The attempt has so far, however, notbeen made to keep out any but violent anarchists, and, of course, persons who are diseased, of immoral life, or likely to become apublic charge. And the attempt to keep them under the hand of thecentral government for years after they have taken their place forgood or ill in the State body politic has recently failed in amonumental case vindicating anew the Tenth Amendment. 

Connected in most people's mind with the right of privacy is the rightof a person to keep his house and his private papers to himself; butit bears no relation whatever to the very new-fangled notion of ageneral right to privacy. The two principles are that an Englishman'shouse is his castle. His home, even though it be but one room ina tenement, may not be invaded by anybody, even by any governmentofficial or authority (except, of course, under modern sanitary policeregulation), without a written warrant specifying the reason forsuch invasion, some offence with which the man is charged, and someparticular document or paper, or other evidence of which they are insearch. The principle against general warrants--that is, warrantsspecifying no definite offence or naming no particular person--wasestablished in Massachusetts in Colony times, and the principle takenover to England and affirmed by Lord Camden--one of the two or threecelebrated examples where we have given a new constitutional principleback to the mother country. Now, closely connected with this isanother principle that a man shall not be compelled to testify in acriminal matter against himself, or that, if so compelled by statuteor official, he shall then forever be immune from prosecution forany crime revealed by such testimony; the wording of the earlierconstitutional provisions was "in a criminal offence, " but by modern, more liberal interpretation, it has been extended to any compulsorytestimony, whether given in a criminal proceeding or not. This, withthe principle protecting a man's private affairs from inquisition, isexpressed in our Fourth and Fifth Amendments, the former prohibitingunreasonable searches and general warrants, and the latter providingthat no one shall be compelled in any criminal case to be a witnessagainst himself, nor deprived of property without due process of law, and it has reasonably been argued that an inquisition into a person'sbusiness or book of accounts is such deprivation of his propertywithout due process of law, at least when applied to a natural person. I find no legislation limiting these important principles, but onthe contrary the tendency in modern statutes and modern Stateconstitutions is to extend and generalize them. Of such is the famousclause of the recent constitutions of Kentucky and Wyoming that"absolute arbitrary power over the lives, liberty, and propertyof freemen exists nowhere in a republic, not even in the largestmajority. " In view of the frequently successful efforts of trustmagnates and others to escape indictment or punishment by someenforced revelation of their affairs given after a criminal proceedinghas has been commenced or before a grand jury, legislation is nowstrongly urged to withhold them immunity in such cases. This wouldrelegate us to the early state of things where they would simplyrefuse to answer, so that it may be doubted if, on the whole, weshould gain much. The right of an Englishman not to criminate himselfis too cardinal in our constitutional fabric to be questioned or to bealtered without subverting the whole structure. Practically it wouldseem as if a little more intelligence on the part of our prosecutorswould meet the evil. Corporations themselves are never immune; andunless the wicked official actually slept with all the books of thecorporation under his pillow, it would be hard to imagine a case wheresome corporate clerk or subordinate officer could not be subpoenaedto produce the necessary evidence. Indeed, as has been well argued byleading American publicists, the sooner the public learns to go behindthe figment of the corporation, the screen of the artificial person, into the human beings really composing it, the quicker we shall arriveat a cure for such evils as may exist. Legislation punishing or evenfining an offending corporation is in the last sense ridiculous. It isnecessarily paid by the innocent stockholders or the public. Thereis always some one person or a number of persons who have _done_or suffered the things complained of; after all, every act of thecorporation is necessarily done by some one or more individuals. Wemust get over our metaphysical habit of treating corporations asabstract entities, and again recognize that they are but a definitenumber of natural persons bound together only for a few definiteinterests and with real men as officers who should be fullyresponsible for their actions. Indeed, it ought to be simpler todetect and punish offenders than in the case of mere individualsunincorporated, for the very fact that a corporation keeps books andacts under an elaborate set of by-laws and regulations gives a clew toits proceedings, and indicates a source of information as to all itsacts. One clerk may therefore reveal, and properly reveal, books andletters which shall incriminate "those above"; one employee may showten thousand persons guilty of an unlawful combination, and properlyso. There is no reason why he should not, and the nine thousand ninehundred and ninety-nine others deserve, and are entitled to, noimmunity whatever from his revelation. 

The religious rights, although for the most part peculiar to theAmerican Constitution, adopted by us, indeed, as a result of thehistory of the two or three centuries preceding in England, but hardlyin any particular a part of the British Constitution, were by thereason of our very origin so strongly asserted and so highly valuedwith us that no legislation has been found necessary on the subject. Perhaps the sole important instance in which the question has come uphas been that of instruction in the public schools and the use of themoney raised by common taxation for special religious purposes. Verygenerally the latter is forbidden in our State constitutions, theFederal Constitution by the First Amendment merely protecting theright from the action of Congress. Owing to decisions of theSupreme Court, in the South it has become possible to divide schoolappropriations between schools for whites and blacks, and it ispresumable that the same thing might be done as, for instance, betweenRoman 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 extendand liberalize religious rights. Almost universally now a man is notforbidden from testifying or being a witness by reason of his beliefor disbelief, even when he is an atheist. The latter law is not, however, quite universal. He must, in some States, believe at least inthe existence of God, or of a future state of reward or punishment. Mormons, at one time, claimed the right to practise polygamy as apart of their religion guaranteed to them by the Constitution; thecontention did not prevail; on the contrary the Mormon States weremade to submit to an enabling act under which they bound themselves toadopt State constitutions providing for all time against polygamouspractices. Such a treaty is not, of course, binding upon a sovereignState unless Mormonism be deemed inconsistent with a republican formof government; so that Utah, for instance, has probably the right tore-establish Mormonism to-morrow so far as the Federal Constitutionis concerned. Whether it would be permitted by a strenuous presidenthaving public sentiment at his back may indeed be questioned. Inlike manner, Christian Science practitioners have invoked theconstitutional right of religious belief against the common lawrequiring that those offering themselves to practise medicine shouldbe reasonably skilled in their trade. Legislation permitting ChristianScientists to practise freely has been attempted in nearly all theStates, but has not, so far as I am informed, succeeded in any, although a good many States have adopted statutes extending the rightto osteopaths. Under the common law of England, re-established inMassachusetts by a famous decision[1] twenty years ago, a personholding himself out as a surgeon or medical practitioner, who isabsolutely uninstructed and ignorant, is guilty even of criminalnegligence, and responsible for the death of his patient, even to thepoint 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 havebeen, written; our general essay on popular legislation can do no morethan summarize past law-making and the present trend of legislatures, much as some history of the people of England might broadly state theeconomic facts and laws of the Corn-law period in England. Raciallegislation may, of course, be considered from the point of view ofthe negro, the Indian, and the alien, and indeed it differs much inall three. Other personal legislation is largely concerned with theright to exercise trade, already discussed, and the questions ofmarriage and divorce we reserve for the next chapter. In the past wehave been very unjust, not to say cruel, to the Indian, and thoughnaturally in some respects a high-natured race, have constantly deniedhim any political share in the government, and only in the very lastfew years grudgingly extended it to such Indians as renounce theirtribe and adopt the habits and mode of life of the white man, or, asin early England, to such freeholders as acquire a quarter section ofland. In the negro's case, however, we atoned for the early crime ofenslavement 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 forcehim into exact equality, social as well as political, with the whiteman. To aliens, in the third hand, we have been consistently generous, having shown only in the very last few years any attempt whatever toexclude the most worthless or undesirable; except that the prejudiceagainst the Mongolian in the far West is quite as bitter as it everwas against the negro in the South, and he is still sternly refusedcitizenship, even national citizenship, which we freely extend to theAfrican. We are thus left in the ridiculous situation of providingthat nobody may be a citizen of our great Republic except a whiteCaucasian and a black African, with considerable ambiguity still asto what the word "white" means. The American Indians are, indeed, admitted under the conditions before mentioned, so that as acatch-word the reader may remember that we are a red, white, and blackcountry, but not a brown or yellow one. All this is, of course, the accident of history; but the accidents of history are its mostimportant incidents. 

Taking Asiatic races first, the far Western States vie with each otherin passing legislation which shall deny them the right to life, or atleast to live upon any equality of competition with the white. Most ofsuch laws are, of course, unconstitutional, but they were at one timeenacted with more rapidity than the Supreme Court of the United Statescould declare them so. Congress tries to be more reasonable and, indeed, has to be so, in view of the fact that it is a nationalCongress living, with the executive, in direct touch with the foreignnations themselves. Broadly speaking, our national legislation is toexclude immigration, but guarantee equality of property right, atleast, to such Mongolian aliens as are actually in the country; andto extend or guarantee such right of treatment by treaties, whichtreaties are, of course, acts of Congress, like any other act ofCongress, entirely valid in favor of the foreign power and enforceableby it even to the issue of war, but possibly, as a constitutionalquestion, not enforceable by the Federal government against theStates. An endless mass of legislation in California and other WesternStates has been devised, either openly against the Chinese or socouched as to really exclude them from the ordinary civic liberties, and most of our State laws or courts declare that the Japanese areMongolian although that people deny it. Many statutes, moreover, are aimed at Asiatics in general; which would possibly include theHindoos, who are of exactly the same race as ourselves. Indeed, somejudges have excluded Hindoos from naturalization, or persons ofSpanish descent, while admitting negroes, which is like excluding yourimmediate 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 lawsmay be invalid as against a Federal treaty. Yet statutes against theemployment of any but citizens of the United States in public worksare growing more frequent than ever, and seem to me quite within therights of the State itself to determine. But Pennsylvania could notimpose a tax of three cents per day upon all alien laborers, to bepaid by the employer. Many States are beginning to provide againstthe ownership of land by aliens. This, of course, is perfectlyconstitutional and has full justification in the history and precedentof most other countries, and as applied to foreign corporations it isstill more justifiable; and the Western States very generally provideagainst the ownership of land, other than such as may be taken onmortgage, by foreign corporations, or corporations even of which alarge proportion of the stock is held by foreigners. 

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

Legislation concerning labor, the industrial condition, and contractrights of the negro, such as the peonage laws, we have consideredin an earlier chapter; both State and national laws exist, and theThirteenth 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 propertyqualifications, and most questionably by the so-called "grandfatherclause, " to exclude most negroes from the right of suffrage. Lawsimposing property and educational qualifications are, of course, valid, although designed to have the effect of excluding a largeproportion of the negroes from voting; laws, on the other hand, whichgive a permanent right of suffrage to the descendants of a certainclass, as of those voters, all white, who were entitled to vote inSouthern States in the year 1861, are probably unconstitutional asestablishing an hereditary privileged class, though there has as yetbeen no square decision on this point by the Supreme Court of theUnited States. But as there is no further legislation on thesesubjects, to pursue the matter further would carry us intoconstitutional law. 

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

Even this matter of social legislation, which alone remains to bediscussed in this book, is quite too vast for more than a briefsketch. Among the many monographs on the subject may be mentioned thearticle of G. T. Stevenson on the "Separation of the Races in PublicConveyances. "[1] Even this comparatively narrow matter is by no meansexhausted in an article covering twenty pages. Much of the socialseparation of the races is, of course, brought about without statutelaw, but by custom, or even we may say customary law, which is alwaysapt to be the better enforced; and under the civil rights decisions ofthe United States Supreme Court in 1883, such customary law has beenrendered immune from Federal control. Legislation now exists in allSouthern States as to separate, though equal, accommodations in publicconveyances; at one time such statutes were restricted to interstatecommerce, but the present tendency of court decision appears to be torecognize even their interference with interstate commerce as partof the reasonable State police jurisdiction. Such statutes applygenerally to railroads, steamboats, and street cars, or otherconveyances of transportation. They are not so usual as to hotels, eating-houses, theatres, or other public places, probably becausein such it is more easy to secure the desired segregation withoutlegislation. We may, therefore, conclude that legislation on thispoint will be universal in the South and in Oklahoma or otherborder States with Southern sympathies, and will not be declaredunconstitutional by the courts. 

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

The labor unions very generally exclude negroes, both in the Southand North, and in many Southern States the whites refuse to work withnegroes in mills. Until and unless labor unions are chartered orincorporated under legislation forbidding such action, it is probablethat their by-laws excluding negroes, though possibly unreasonable atthe common law, could not be reached by the Fourteenth Amendment; andpublic sentiment in the States where such by-laws are common wouldprobably prevent any permanent vindication of the right of the negroto join labor unions by State courts. That is to say, countervailinglegislation would promptly be adopted. 

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

Coming to the matter of sexual relation, a different principleapplies. Under their unquestioned power of defining crimes, theirpolice power in criminal and sanitary matters, the States may forbidor make criminal miscegenation. Cohabitation without marriage may, ofcourse, be forbidden to all classes, and in the case of cohabitationbetween white and black the penalty may be made more severe, forit has been held that as both parties to the offence are punishedequally, there is, under such statutes, no denial of the equalprotection of the law. _A fortiori_, marriage may be forbidden ordeclared null between persons of different race, and the tendency soto do is increasing very decidedly in the South, and is certainly notdecreasing in the North. Indeed, constitutional amendments are beingadopted and proposed having this in view, "the purity of the race. "Recent plays and magazine articles, with which most of our readerswill be familiar, sufficiently bear out this point. 

In property rights, however, I can find no legislation whichdiscriminates against the negro, and there is some in his favor. Withthe exception of the labor or peonage laws, discussed separately, I have found no legislation which limits his property or contractrights. On the other hand, there is, in the several States, legislation requiring that he shall be given life or health insurancepolicies on the same terms and conditions as are applied to whites, despite the alleged fact that his expectation of life is less andnot so easy to determine, owing to the lack of information as tothe health and longevity of his forebears. Sketching first thus ourgeneral conclusions it remains for us only to give a few concreteexamples drawn from the legislation of the last twenty years:

In 1890, soon after the civil-rights cases were decided, we find someState legislation to protect the negro in his civil rights; but thefirst "Jim Crow" laws, providing for separation in public conveyances, etc. , began in 1865 and 1866 in Florida, Mississippi, and Texas, andare continued in other States in this year. In 1892 there are laws forseparate refreshment rooms and bath-houses, and providing that negroesand whites shall not be chained together in jails. In 1893 there islegislation for separate barber shops, and the first law requiringequal treatment by life-insurance companies is passed inMassachusetts. In 1895 there is legislation against the mixture ofraces in schools. In 1898 the laws and constitutional provisions forpractical negro disfranchisement begin in South Carolina, Mississippi, and Louisiana. On the other hand, in 1900, New York passes a statutethat there shall be no separate negro schools, and in 1901 Illinoisadopts civil-rights laws, followed in 1905 by five other States. In1907 South Carolina makes it a misdemeanor to serve meals at stationeating-houses to whites and blacks in the same room. In 1908 Marylandand Oklahoma provide for separate cars and separate rooms. In 1894we find nine States prohibiting miscegenation. In 1902 Florida makesmiscegenation a felony, and in 1908 Louisiana declares concubinagebetween a Caucasian and a negro to be also a felony, while Oklahomaadopts the miscegenation law. 

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

Personal privilege, depending not upon race, but upon legislation, orinheritance, is, of course, strictly forbidden in each State by bothconstitutions, State and Federal. The growth of a contrary principleis only noteworthy on the two lines touching respectively the whitesin the South and veterans of wars in the North. It must be said thatlegislation in the interest of the Grand Army of the Republic, andeven of the veterans of the Spanish War, and even in some States ofthe sons or descendants of such veterans respectively, has come verynear the point of hereditary or social privilege. The struggles ofso-called "Organized Labor" to establish a privileged caste have sofar been generally unsuccessful, always so in the courts, and usuallyso in the legislatures; but in many States those who have enlisted ineither wars, Civil or Spanish, wholly irrespective of actual serviceor injury, are entitled not only to pensions, Federal and State, butto a diversity of forms of State aid, to general preference in publicemployment, and even to special privilege or exemption from licensetaxes, etc. , in private trades, and their children or descendants are, in many States, entitled to special educational privilege, to supportin State schools or industrial colleges, to free text-books, and otheradvantages. Presumably some of these matters might be successfullycontested in the courts, but they never have been. As to pensions, nothing here need be said. The reader will remember the familiar factthat our pensions in time of peace now cost more than the maintenanceof the entire German army on a war footing or than the maintenance ofour own army. The last pensioner of the Revolutionary War, whichended in 1781--that is to say, the last widow of a Revolutionarysoldier--only died a few years ago, early in the twentieth century. The Order of the Cincinnati, founded by Washington and Lafayette, wasnevertheless a subject of jealous anxiety to our forefathers; butapparently the successful attempt of volunteers disbanded afterthe Civil and the Spanish Wars, although far more menacing becauseembodying 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 toall rights, political as well as property and social, was definitelytested before our Supreme Court soon after the adoption of theFourteenth Amendment, on the plea that the wording of that amendmentgave a renewed recognition to the doctrine that a woman was a personborn or naturalized in the United States and therefore a citizen andentitled to the equal protection of the laws. The court substantiallydecided [1] that she was a citizen, was entitled to the equalprotection of the laws, but not to political privileges or burdens anymore than she was liable to military service. The State constitutionsof many States, among them Illinois, have provided that a woman isentitled to all ordinary rights of property and contract "the same as"a man. Under this provision, when laws were passed for the protectionof women, forbidding them to work more than a certain number of hoursper day, they were originally held unconstitutional. The so-calledwomen's-rights people (one could wish that there were a better or morerespectful word) seem themselves to be divided on this point. The moreradical resent any enforced inequality, industrial or social, betweenthe sexes. For instance, many States have statutes forbidding women orgirls to serve liquor in saloons or to wait upon table in restaurantswhere liquor is served. Such statutes, obviously moral, arenevertheless resented. On the other hand, the Supreme Court of theUnited States has taken the conservative view, that there is adifference both in physique and character between the sexes, as wellas different responsibilities and a different social interest, so thatit is still possible, as It has been possible in the past, to imposeby law special restrictions on the contracts of women. The law ofOregon, therefore, not permitting them to make personal contract formore than eight hours per day was sustained both in the State and theFederal Supreme Courts; and a similar law by the highest court ofIllinois, reversing its own prior decision. [2] This matter is of suchinterest and of such importance that it is frequently placed in Stateconstitutions, and it seems worth while to summarize their provisions. The advanced position is now squarely put only in the constitution ofCalifornia, which provides that no person shall on account of sexbe 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 mentionedforbidding them to serve in restaurants, such employment being lawfulas to men. But no other State follows that extreme provision, and, indeed, the clause in the constitution of Illinois seems now to havebeen 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 ingeneral precisely the same rights that men have, and in several Statesmore; that is to say, a woman frequently has a larger interest in theproperty of a man at his death, than the man has in hers, should shepredecease him; and universally she is given a share of the husband'sproperty 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 theinnocent party. In New Jersey and some other States, a married womanis not permitted to guarantee or endorse the notes or debts ofher husband. Many of the Southwestern States, from Louisiana toCalifornia, recognize or adopt the French idea of community property. By the Mississippi constitution "the legislature shall never create bylaw any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or other powerof contract in reference thereto. " But this does not prevent lawsregulating contracts between husband and wife. 

In matters of divorce and personal relation, such as the guardianshipof children, the tendency has also been to put women on an equalitywith men and more so. That is to say, divorces are awarded women whichfor similar reasons would not be awarded men, both by statute and byusual court decision, and although a very few States, such as recentlydeveloped in the conservative State of South Carolina, retain thecommon-law idea that the father must be the head of the family, manyStates provide that the rights of the parents to the custody andeducation of their children shall be equal. In other words they are tobe brought up by a committee of two. Nevertheless, in California andother code States of the West it is still declared that the husband isthe head of the family and may fix the place of abode, and the wifemust follow him under penalty of desertion. Such matters are moreoften determined by custom or by court decision on the common law thanby written statute; and it is apprehended that the judges will usuallyfollow the more conservative rule of giving the custody of infantchildren to the mother, and of more mature children, particularly theboys, to the father. 

Divorce statistics on the subject are extremely misleading for twogreat reasons: First, because in the nature of the case, and perhapsof the American character, in two cases out of three a divorce isgranted for fault of the husband. [1] And in the second place, becausea false cause is given in a great majority of cases. In England untilrecently the rule was absolute that a woman could not get a divorcefor adultery alone, but there had to be cruelty besides; while the mancould be divorced for the first-named cause. No such rule has everprevailed in any State of this country. Desertion and failure tosupport, 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 shestands 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 liberalnotions, prevailing until recently in all our States, certainly in allwhere the so-called common-law marriage prevails, it is extremely easyfor a woman to prove herself the lawful wife of any man she couldprove herself to have known, and sometimes even without proving theacquaintance. The "common-law" marriage, by the way, is not, so far asI can determine, the English common law, nor ever was. If any commonlaw at all, it is the Scotch common law, the English law always havingrequired a ceremony by some priest or at least some magistrate, asdoes still the law of New England. Under the influence of the StateCommissioners for Uniformity of Law this matter has been amended inthe State of New York, so that if there be no ceremony there must atleast be some written evidence of contract, as in the case of a saleof goods and chattels under the statute of frauds; the contract ofmarriage being thus, for the first time in New York, made of equalimportance with that of the sale of goods to the value of one hundreddollars. Much difference of opinion exists between the South and theNorth upon this point, the Southern view being more remarkable forchivalry, and the Northern for good sense. Southern members of theNational Conference of Commissioners claimed that any such law wouldresult in disaster to many young girls; that if they had to travelten, twenty, or thirty miles to find a minister or justice of thepeace they would in many cases dispense with the formality or beimpatient of the delay; and that anyhow on general principles anyunmarried man who had seen an unmarried young woman two or three timesought to be engaged to her if he was not. The Northern Commissioners, on the other hand, were desirous of protecting the man, and especiallyhis legitimate widow and children, from the female adventuress, whichview the South again characterized as cynical. There is probablysomething to be said for both sides. 

Coming finally to political rights, the subject of women's suffragealone might well be reserved for a separate chapter, if, indeed, it isto be disposed of by any one mind; but at least the actual occurrencesmay be stated. As mentioned above in our chapter on political rights, it now exists, by the constitutions of four States; and has beensubmitted by constitutional amendment in several others and refused. No actual progress, therefore, has been made in fifteen years. As tooffice-holding, the constitutions of Missouri and Oklahoma--one mostconservative, the other most radical--both specify that the governorand members of the legislature must be male. In South Dakota women mayhold any office except as otherwise provided by the constitution. InVirginia, by the constitution, they may be notaries public. In allother States, save the four women's-suffrage States, the common lawprevails, and they may not hold political office. The first entirelyfemale jury was empanelled in Colorado this year (1910). In someStates, however, statutes have been passed opening certain offices, such as notaries public, and, of course, the school commission. Suchstatutes are, in the writer's opinion, illogical; if women, undera silent constitution, can hold office by statute, they can do itwithout. 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 toteach and be taught as males. Indeed, Idaho, Washington, and Wyomingdeclare that the people have a right to education "without distinctionof race, color, caste, or sex, " and that is practically the case bythe common law of all States, though there is nothing to preventeither coeducation or segregation in schools. The recent tendency ofcustom is certainly in the latter direction, Tufts, Wesleyan, andother Eastern colleges having given up coeducation after trial, andthe principle having been attacked in Chicago, Michigan, and otheruniversities, and by many writers both of fact and fiction. 

These are the abstract statements, but one or two matters deserve moreparticular treatment. First of all, divorce legislation. Many yearsago the State Commissioners for Uniformity of Law voted to adhere tothe policy of reforming divorce procedure while not attacking thecauses. This, again, is too vast a subject to more than summarizehere. The causes of divorce vary and have varied all the way from nodivorce for any cause in South Carolina, for only one cause in NewYork and other States, up to twenty or thirty causes, with thatindefinite or "omnibus" clause of "mutual incompatibility, " orallowing the courts to grant divorces in the interest of thegeneral peace. Since the efforts of reformers have wiped out theexpress-omnibus clause from the legislation of all States, the sameabuse has crept in under the guise of "cruelty"; the national divorcereport before referred to showing that the courts of this broad landhave 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'snose, fingers, two of her ribs, cut her face and lip, chewed andbitten her ears and face, and wounded her generally from head tofoot") to not cutting his toenails [1] or refusing to take the wife todrive in a buggy; indeed, one young North Carolina woman got a divorcefrom a man she had recently married, on the ground that he waspossessed of great wealth, but she had been assured that he was aninvalid, and had married him in the hope and belief of his speedydecease, instead of which he proceeded to get cured, which caused hergreat mental anguish; while one husband at least got a divorce for amissing vest button. [2] But, independent of the vagaries of courts andjudges, and perhaps, most of all, of juries in such matters, it hasbeen found that the numbers of divorces bear no particular relation tothe number of causes. In fact, many clergymen argue that to have onlyone cause, adultery, is the worst law of all, as it drives the partiesto commit this sin when otherwise they might attain the desireddivorce by simple desertion. Moreover, the difference in condition, education, religion, race, and climate is so great throughout theUnion that it is unwise, as well as impossible, to get all of ourforty-eight States to take the same view on this subject, the SpanishCatholic as the Maine free-thinker, the settler in wild and lonelyregions as the inhabitant of the old New England town over-populatedby spinsters. It was, therefore, the opinion of the StateCommissioners that the matter of causes was best determined by States, according to their local conditions, and that it would be unwise toattempt, even by amendment to the Constitution, to enforce a nationaluniformity. All the abuses, substantially, in divorce matters comefrom procedure, from the carelessness of judges and juries, or, mostof all, by laws permitting divorce without proper term of residence, without proper notice to the other side, or by collusion, withoutproper defence, or for no reason but the obvious intention ofcontracting other marriages. The recommendations of the Commissionerson Uniformity will, therefore, be found summarized below, [3] and thereis beginning to be legislation in the direction of adopting these, orsimilar statutes. The Supreme Court has vindicated, however, the rightof the State not to be compelled under the full faith and creditclause to give effect to divorces improperly obtained in other Statesby its own citizens or against a defendant who is a citizen. In otherwords, a marriage, lawful where made, is good everywhere; not so ofa divorce. The fact that this ruling, wise and proper, necessarilyresults in the possibility that a person may be married in one State, divorced in another, and a bachelor in a third, and bigamous in afourth, lends but an added variety to American life. If the peoplewish to give the Federal government power to make nationwide marriageand divorce laws, they must do so by constitutional amendment. 

[Footnote 1: _Sic_: "U. S. Labor Commissioners' Report on Marriage andDivorce, " 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 OTHERSTATES RELATIVE TO MIGRATORY DIVORCE

Section 1. No divorce shall be granted for any cause arising prior tothe residence of the complainant or defendant in this State, which wasnot ground for divorce in the State where the cause arose. 

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

Sec. 3. All acts and parts of acts inconsistent herewith are herebyrepealed. 

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

Section 1. No person shall be entitled to a divorce for any causearising in this State who has not had actual residence in this Statefor 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 arisingout of this State unless the complainant or defendant shall haveresided within this State for at least two years next before bringingsuit for divorce, with a _bona-fide_ intention of making this Statehis or her permanent home. 

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

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

Sec. 5. After divorce either party may marry again, but in cases wherenotice has been given by publication only, and the defendant has notappeared, no decree or judgment for divorce shall become final oroperative until six months after hearing and decision. 

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

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

It is always to be remembered that the law of marriage, and divorceas well, was originally administered by the church. Marriage was a_sacrament_; it brought about a _status_; it was not a mere secularcontract, as is growing to be more and more the modern view. Indeed, the whole matter of sexual relations was left to the church, and wasconsequently matter of sin and virtue, not of crime and innocence. Modern legislation has, perhaps, too far departed from thisdistinction. Unquestionably, many matters of which the State now takesjurisdiction were better left to the conscience and to the church, solong as they offend no third party nor the public. Very few lawyersdoubt that most of the causes of action based on them, such as thefamiliar one for alienation of the affections, are only of use to theblackmailer and the adventurer. They are very seldom availed of byhonest women. 

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

Socialists urge that the institution of marriage is bound up with thatof private property. There is little doubt that the women's suffragemovement tends to socialism, and, also, paradoxical as it may at firstseem, to lax marriage laws and easy divorces. "The single standardof morality" offered by all advanced women's-rights advocates willnecessarily be a levelling down, not a levelling up; and in a societywhere the life of the ordinary young woman _is_ that which at least_was_ that of the ordinary young man about town, it is hardly likelythat there will be any stricter legislation. Where a majority of youngwomen live alone and earn their living, the old order must change. 

Divorce, it should be known, is a modern institution; that is, divorceby the secular courts. Such divorce as the Roman Church recognized, orwas granted by act of Parliament, was the only divorce existing downto the year 1642, when one Hannah Huish was divorced in Connecticut bythe General Court, "with liberty to marry again as God may grant heropportunity, " and about that time the Colony of Massachusetts Bayenacted 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 tomuch confusion. It has a definite meaning in the criminal law, to bediscussed 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 absolutelyvoid; second, the age at which it is lawful without the consent of theparents. The tendency of our legislation is to raise the latter ageand possibly the former. At least, marriages of very young persons maybe absolutely cancelled as if they had never taken place. According toall precedents, human and divine, from the Garden of Eden to Romeo andJuliet, "the age of consent" would by common sense appear to be theage 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 theextraordinary effort, whose beginning we now see, to preventfreedom of marriage Itself. There is probably no human liberty, noconstitutional right to property, or hardly, even, to one's personalfreedom, which has been more ardently asserted by all persons notactually slaves (and even, indeed, by them) than the right to love andmarry. In the rare instances where even priests have interfered, ithas usually led to resentment or resistance. The common law has neverdared to. [1] Marriages between near relations, prohibited by theMosaic law, were invalid by the church law, and became invalid bythe secular law at the very late period when it began to have anyjurisdiction over the matter, hardly in England half a century ago; inthe United States, where we have never had canon law or church courts, the secular law took the Mosaic law from the time of the MassachusettsBody of Liberties (1641). The first interference of statute wasthe prohibition of the marriage of first cousins. This seems to beincreasing. The prohibition of marriage between different races wehave mentioned in another chapter. To-day we witness the startlingtendency 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-bookmatters and considerations which our forefathers left to the Lord. Considerable progress has already been made in this country. Themarriage of insane persons, persons absolutely _non compos_, was, ofcourse, always void at the common law, and the church law as well. They are incapable of contract. The marriage of impotent persons wasvoid also, but by recent laws the marriage of epileptics is forbiddenand made void, the marriage of persons addicted to intoxicatingliquors or drugs, the marriage of persons who have been infected bycertain diseases; and finally, most startling of all, the proposallooms in the future to make every man contemplating a marriage submithimself to an examination, both moral and physical, by the State orcity officials as to his health and habits, and even that of hisancestry, as bearing upon his posterity. Novels have been writtenabout men who avoided marriage by reason of a taint of insanity in thefamily; this modern science of eugenics would propose to make suchconduct compulsory by law. 

[Footnote 1: Mr. Flinders Petrie, in his late book, "Janus in ModernLife, " tells us that at least ten varieties of marriage and marriagelaw have prevailed in history, and that all save marriage by captureperdure 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 someof the concrete examples. Some States forbid the marriage of a personwho has tuberculosis; some require him to submit to an examination. In1907 a bill was introduced in Michigan, which provided that no personshould be permitted to marry who had ever led an unchaste life. Thisbill did not, however, become a law. 

In divorce matters New York, in 1890, adopted the very intelligentstatute requiring courts to allow a person charged as corespondent ina divorce case to make defence. Six States raised the age of consentin criminal matters, and four in marriage; one required a marriageceremony. In 1891 one State added crime, or conviction for crime, asa cause of divorce, one insanity. Two regulated the procedure in thedirection recommended by the Uniformity Commissioners. One made itcriminal to advertise the securing of divorces in the newspapers. TwoStates made simple sexual connection a crime (which was not a crimeat the common law). One Southern State enacted a special law againstslander of women, --another instance of the tendency to their specialprotection. Several States adopted newer laws giving complete controlof their separate property to women, and allowing them to do businessas sole traders, without responsibility for the husband's debts. Twomore States passed statutes allowing women to practise law. In 1890one other State forbids drinks to be served by either women orchildren under eighteen. 

In 1893 there was much legislation concerning the powers of the motherover the children, and the liability of the husband to support bothwife and children under penalty as for the crime of desertion. Thislegislation has now become pretty general throughout the country; thatis, it is made a criminal offence for a man to desert his wife orchildren, or, being able, to fail to support them. One State declaredthe husband and wife joint guardians of the children. In 1894 oneState prohibited marriage between first cousins, and one between uncleand niece. One declared that marriage removed nonage. One made it amisdemeanor for a married man to make an offer of marriage. The lawsfor support of wife and children continue, and there were laws passedgiving alimony to the wife, even in case the divorce were for herfault. One State made both husband and wife competent witnessesagainst each other in either civil or criminal cases. One found itnecessary to declare that a woman might practise medicine, and anotherthat she might be a guardian; the statute in both cases would seem tohave been unnecessary. Two States provided that she might not serveliquor in saloons or restaurants, the statute already referredto. Louisiana adopted the intelligent statute, already mentioned, permitting the right of suffrage to women in cases of votes on loansor taxes by cities, counties, or towns; and Utah first enacted themuch-mooted statute that female school-teachers should be paid likewages as males for the same services. It would be most interestingto hear how this statute, which was passed in 1896, turned out towork. [1] One State provided that women might be masters in chancery, and another carried out the idea of equality by enacting that womenshould no longer be excepted in the laws against tramps and vagrants. Constitutional amendments proposing women's suffrage were defeatedthis year (1895) in no less than nine States. Connecticut passed a lawthat no man or woman should marry who was epileptic or imbecile, ifthe wife be under forty-five, and another State for the first timeawards divorce to the husband for cruelty or indignities suffered atthe hands of the wife, while another State still repeals altogetherits law permitting divorces for cruelty or intoxication. One othermakes insanity a cause of divorce. One other, non-support. Two orthree adopt the notion of joint guardianship of children. 

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

In 1897 one State prohibits the remarriage of divorced partiesduring the life of the innocent plaintiff; the Uniformity of LawCommissioners came to the conclusion that any limitation uponremarriage was unwise and led both to immorality and to wrong againstinnocent third persons. Divorces should either not be granted at all, or be granted absolutely. This is the better opinion; though, ofcourse, it does not apply to mere orders of separation. Much confusionof thought has arisen upon this subject, the upholders of lax divorcesalways assuming that the opponents mean to compel persons to livetogether in misery or incompatibility, which, of course, is far fromthe case. A legal separation has always been permitted, except, indeed, where that doctrine is interfered with by modern statute; anywife can be freed of a vicious or cruel husband and even compel him tosupport her while living away from him, but "platform women" are aptto forget this fact. In the same year one Southern State has thechivalry to provide that no women should be worked as convicts on theroad; one is not aware but for this that it ever happened. We seemore humane legislation about this time for the protection and propertreatment of women in jails or houses of detention, for the servicesof matrons and the careful separation of the sexes, and by now seatsfor women in stores or factories are almost universally required. Thesale of liquor to women is in one State specially forbidden, Louisianafollows the Texas law giving women tax-payers a vote on appropriationsfor permanent improvements. 

In 1899 comes the law of Michigan, already referred to, forbiddingpersons with contagious diseases to marry, and compelling physiciansto testify. The Massachusetts Medical Association has gone on recordas 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 morefor intoxication. Several States permit women to get damages fromliquor-sellers selling intoxicating drink to their husbands; I knowof no corresponding statute permitting the husband to get damagesfor drinks sold the wife. A wife may testify against the husband incertain cases, as actions for alienating of affection, or criminalconversation; not so the husband. Texas and other Southwestern Statesadopt the statute that an action for seduction shall be suspended onthe defendant's marriage with the plaintiff, otherwise it is a felony, and it is again a felony should he after such marriage desert her--theFourteenth Amendment to the contrary notwithstanding (which remindsone of the colonial Massachusetts statute, that the punishment forthat offence may either be imprisonment in the state-prison, ormarriage!). 

The laws aimed at mere sin increase in number. One State makesimproper relations, even by mutual consent, punishable with four yearsin the state-prison, if the girl be under eighteen. North Dakotaintroduces a bill to require medical examination in all cases as aprerequisite to marriage; it failed in North Dakota that year, but waspromptly introduced in other States. In Oregon all widows and fathersmay vote, without regard to property qualification, in school districtelections; and this State joins the number of those which forbid themarriage of first cousins. 

In 1901 came the great New York statute abolishing the common-lawmarriage, which we have discussed above. Some States pass lawspunishing wife-beating by either imprisonment or a whipping. In 1902perhaps the most interesting thing is that there is no legislationwhatever of any kind on the subject of women's suffrage--showingdistinctly the refluent wave. In 1903 New Hampshire rejects aconstitutional amendment for women's suffrage. Kansas restricts themarriage of epileptic and weak-minded persons. Several States reformtheir divorce laws, and Pennsylvania adopts Southern ideas givingdivorce for a previous unchastity discovered after marriage. Thismatter has so far been covered by no Northern State, though it hadbeen 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, andraises the age to eighteen in a woman and twenty-one in a man. As isoften the case, it does not appear from the ambiguous wording of thestatute whether this invalidates the marriage or merely subjects theoffenders, or the minister or the magistrate, to a penalty; probablythe latter. Minnesota forbids the marriage of imbecile or epilepticpersons; Nebraska that of first cousins, and Pennsylvania adopts theuniform divorce law recommended by the commissioners. Five otherStates reform their divorce laws, and four their laws concerningmarried women's property, and seventeen adopt new laws for compulsorysupport of the woman and children by the husband. 

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

Perhaps a word should be given to other laws relating to minors aswell as to young women. There is very general legislation throughoutthe country forbidding the sale of intoxicating liquor to personsunder twenty-one, and in the great majority of the States the saleof cigarettes, narcotics or other drugs, or even tobacco, to personsunder twenty-one, eighteen, or fifteen, respectively. In some Statesit is forbidden, or made a misdemeanor, to insure the lives ofchildren--very important legislation, if necessary. In 1904 Virginiapassed a statute punishing kidnapping with death, which is followed in1905 by heavy penalties for abduction in three other States; fourteenStates establish juvenile courts. Seven States make voluntarycohabitation a crime, and six pass what are known as curfew laws. Indeed, it may be generally said that the tendency is, either by Statestatute or municipal ordinance, to forbid children, or at least girlsunder sixteen, from being unattended on the streets of a city after acertain hour in the evening. 

In 1907 Mississippi makes the age of consent twelve, and the penaltyfor rape death, which, indeed, is the common law, but which law hasextraordinary consequences when the age is raised, as it is in manyStates, to eighteen. Two more States adopt the laws against abductionand one a statute against blackmail. 

Sufficient has, perhaps, been said to give the reader a general viewof contemporary law-making on this most important matter of personalrelations. Most of the matters mentioned in this chapter are coheredby various learned societies in annual reports, or even by thegovernment, in cases of marriage and divorce, and to such specialtreatises the reader may be referred for more precise information. TheSpecial Report of the United States Census Office, 1909, publishedearly in 1910, makes a careful and elaborate study of the wholequestion from the years 1867 to 1906. Such statistics are necessarilyuncertain for reasons already indicated. Court judgments do notindicate the true cause of divorce, nor is the complainant necessarilythe innocent party, nor are the numbers of divorces granted, as forinstance in Nevada, any fair indication of the normal divorce rate ofthe people really living in that State. With this caution we will notethat the number of divorces varied from about five hundred in eachhundred 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, inNew Jersey, New York, and Delaware. Certain significant observationsmay certainly be made upon this table. In the first place, theolder States, the old thirteen, have, from the point of view of theconservative or divorce reformer, the best record. At the headstand the three States just named, then North Carolina, Georgia, Pennsylvania, Maryland, Virginia, Massachusetts, Louisiana (largelyFrench and Roman Catholic), and Connecticut--ten of the originalthirteen States. Only New Hampshire and Rhode Island, the latter forobvious reasons, stand low down in the column; the last State havingabout three hundred divorces as against Montana's five hundred. SouthCarolina, having no divorces at all, does not appear. 

The next observation one is compelled to make is that divorces aremost numerous in the women's suffrage States, or in the Statesneighboring, where "women's rights" notions are most prevalent. Montana, Colorado, Wyoming, and Idaho stand second, third, sixth, andeighth, respectively, among the fifty States and Territories comprisedin the table. [1] On succeeding pages are graphic maps showing theconditions 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, withthe exception of New England, which is slightly shaded; that is, they have less than twenty-five divorces per hundred thousand ofinhabitants. In 1880 the black belt States and Territories--having onehundred and over--extends from Wyoming over Montana, Colorado, Utah, and Nevada. In 1900 it covers the entire far West and Southwest, withthe exception of New Mexico (Roman Catholic) and Utah (Mormon). Thechart showing the relation of divorces to number of married populationdoes not materially differ. Now these figures, ranging from fivehundred divorces per hundred thousand married population per year, orthree hundred in the more lax States, down to less than fifty in thestricter 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 generalpopulation, --about the same as Indiana, which stands eighth in theorder of States. But with the exception of Japan no civilized countryshows anything like the proportion of divorces that the AmericanStates do. Thus, in Great Britain and Ireland there are but two perhundred thousand of population; in Scotland, four; in the GermanEmpire, fifteen; in France, twenty-three, and in the highest countryof all, Switzerland, thirty-two, while the average of the entireUnited States is seventy-three. 

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

But after all, more important, perhaps, than even marriage anddivorce, are the great social changes which arise from the generalengaging of women in industrial occupation. In matters of propertyright we have found they are substantially already on an equalitywith men, if not in a position of special privilege. Yet, as HerbertSpencer remarked, "When an abuse which has existed for many centuriesis at last on the point of disappearing, the most violent outcryis made against it. " During the century when women were reallyoppressed, [1] under the power of the husband, given no rights as totheir property, their children, or hardly even as to their person, no complaint was heard. Whereas to-day the cry of unjust legislationalmost rises to a shriek. The movement for the emancipation of womenoriginated, of course, with Mary Wolstonecraft, about 1812. Her book, which was the first, is certainly one of the longest that have yetbeen written on the subject. It remained at the time unanswered, andwhen its author married Godwin she herself seems to have lost interestin the controversy. Nevertheless, little has been added since to theideas there put forward, save, indeed, for the vote. It is a somewhatcurious fact that in all Miss Wolstonecraft's great magazine ofgrievances and demands for remedying legislation, there is not asingle word said about votes by women, or there being such a thing asthe 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!" Shewas acquitted. ]

The industrial condition of the sex in American cities may be summedup with the general phrase "absolute equality of opportunity, " witha certain amount of special protection. Women are nearly universallyrequired to be given seats in factories and stores, and the lawsspecially protecting their periods of employment have just beensustained as constitutional in the States of Illinois and Oregon andthe Supreme Court of the United States. On the other hand, we are farbehind European countries in legislation to protect their health orsanitary conditions. The most radical effort at legislation ever madewas undoubtedly that Connecticut bill forbidding employment of marriedwomen in factories, which, however, did not become a law. Therecent reports of Laura Scott to the American Association for LaborLegislation, on Child Labor, 1910, and the Employment of Women, 1909, have already been referred to. From the former, which appeared as weare going to press, we learn that there are prohibited occupationsto children in all the States without exception--a statement whichcertainly would not have been true some years since. These prohibitedgroups of employment are generally, to male and female, dangerousmachinery and mines, and to females also saloons; and there is nearlyuniversally a limitation of all labor to above the age of twelveor fourteen for all purposes, and to above fourteen or sixteenfor educational purposes, besides which there is a very generalprohibition of acrobatic or theatrical performances. Girls aresometimes forbidden to sell newspapers or deliver messages fortelegraph companies or others. Compulsory education is, of course, universal, and the machinery to bring it about is generally based upona system of certificates or cards, with truant officers and factoryinspectors. 

According to the encyclopaedias, some five hundred thousand womenwere employed in England about twenty years ago, of whom about threehundred thousand were in the textile mills. In Massachusetts alonethere were two hundred and eight thousand women employed, according tothe last State census. Neither of these figures include the vast classof domestic service and farm labor. The inclusion of this would swellthe proportion of adult women employed in gainful occupations to atleast one in four, if not one in three. Congress itself has recentlybeen investigating the question whether "home life has beenthreatened, marriage decreased, divorce increased out of allproportion, and the birth rate now barely exceeds the death rate, sothat the economic and social welfare of the country is menaced by thisarmy of female wage earners" (see _Boston Herald_, April 2, 1908). Itappeared that in 1900 one million seven hundred and fifty thousandchildren were at work between the ages of ten and fifteen, of whomfive hundred thousand were girls. This and other considerations haveled 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 custodyof the parents, or even of the mother, and place them in Stateinstitutions. Indeed, in some Western States it would appear that thegeneral disapproval of the neighbors of the method employed by parentsin bringing up, nurturing, educating, or controlling their children, is sufficient cause for the State authorities to step in and disruptthe family by removing the children, even when themselves unwilling, from the home to some State or county institution. Any one who hasworked much in public charities and had experience with that woefulcreature, the institutionalized child, will realize the menacecontained in such legislation. 

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

XVIII

CRIMINAL LAW AND POLICE

There is no very general tendency toward new legislation in matters offelony, and many States are still content to remain with the commonlaw. Such legislation as there is is mainly concerned with theprotection of women and children, alluded to in the last chapter. Inmatters of less serious offences, of legislation creating misdemeanorsor merely declaring certain acts unlawful, there are three main lines:First, legislation usually expressive of the common law againstconspiracies of all sorts, combinations both of individuals andof capital, already fully discussed. Next, the general line oflegislation in the interest of the health of the public, such aspure food and drug laws, and examination for trade or professionallicenses; and finally laws protecting the individual against himself, such as liquor and anti-cigarette or anti-cocaine laws. It is hardlynecessary to more than illustrate some of these matters. Then thereare the laws regulating punishment for crime, laws for probation orparole, indeterminate sentences, etc. , all based on the modern theorythat reform, not retribution or even prevention, is the basis ofpenology. Such laws have been held constitutional, even when theirresult is to arbitrarily increase a man's sentence for crime onaccount of his past or subsequent conduct. Finally, and mostimportant, there is the legislation regulating the actual trial ofcases, indictments, juries, appeals, --the law of court procedure, civil as well as criminal, which for convenience we may consider inthis chapter. 

Of the first sort of legislation, we have noted that in many Statesadultery, in many States simple drunkenness, in other States meresingle acts of immorality, are made felonies. In 1892 the State lawsagainst food adulteration begin, which, by 1910, have covered milk, butter, maple sugar, and many other subjects. By the Federal pure-foodlaw of 1906, applying to Interstate commerce in such articles, itbecame advisable for the States to adopt the Federal Act as a Statelaw; also for the sake of uniformity a few States have had theintelligence to do so. The trades of fat-rendering and bone-boilingare made nuisances by statute. 

In 1896 we note the first statutes against lynching. In 1897 localoption prevails in Texas, and the blue laws of Connecticut areabolished to the extent that recreation on Sundays is no longerprohibited. Local option and anti-lynching laws continue during thenext two or three years, and by 1900 twenty-four States have pure-foodlaws, which, however, are ineffective because they impose nosufficient penalty. In 1903, in consequence of the assassination ofPresident McKinley, Washington and Wisconsin make the advocatinganarchy a felony. Twenty-one more States pass pure-food laws, andnearly all the States have gone over to local option from State-wideprohibition, to which latter principle only three States now adhere. In 1904 Mississippi and Virginia adopt more stringent laws againstvagrancy, and 1905 is the year of active legislation on theindeterminate sentence, juvenile courts, parole and probation, withtwo more statutes against mobs and lynching. In 1907 the States arebusied with the attempt to enforce their prohibition regulationsagainst the interstate commerce jurisdiction of the Federalgovernment. Solicitation of interstate orders for liquor is forbiddenin Mississippi, and it is provided that shipments sent C. O. D. Arenot to be moved one hundred feet or given away; also, that the merepossession of an internal revenue receipt from the United Statesgovernment is _prima facie_ evidence of an offence against the Statelaw. Statutes of this kind led to renewed conflict between State andFederal authority. Virginia adopts the statute against giving tips orany commissions; see p. 244 above. In 1908 we find more parole andprobation laws, two prohibition and three local-option laws, and fournew pure-food statutes. 

Coming to matters of court procedure, in 1890 one State provides thatthere should never be called more than six witnesses for each side inany criminal case, which oddly reminds one of early English trialsby compurgation; but is, of course, quite unconstitutional inthis country. In 1893 Connecticut adopts a statute that honorablydischarged 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 BishopBerkeley's remark that he would "rather see England free than Englandsober. " Some States provide for a jury of eight in criminal casesand for a verdict of three-quarters in civil cases--a statute ofquestionable constitutionality. Very generally throughout the twentyyears studied by us, the States have adopted stricter rules for theadmission of attorneys at law to practise at the bar. 

In 1895 Pennsylvania yields to the physicians and passes a statuteforbidding them to disclose communications of patients, but thestatute only applies to civil cases. More States provide for verdictsby a majority of the jury. Maryland goes Pennsylvania one better inextending the professional privilege to newspaper reporters; that isto say, we find a statute that they may not be compelled to disclosetheir sources of information, an excellent statute for the yellowjournal. In 1897 California abolishes capital punishment; there hasbeen a general tendency in this direction, of recent years, althoughsome States, having tried the experiment, have returned to it again, as has the Republic of France. In 1899 the privilege from testifyingis extended in one State also to trained nurses, and in others tophysicians, even in criminal cases, although they may testify with thepatient's consent. The same law was adopted in Iowa in 1900, Ohio doesaway with the common law of libel, except the plaintiff can proveactual malice. By this year, seventeen States expressly allow womento practise law, and twenty-eight do so by implication. The Coloradostatute for a three-fourths verdict is held unconstitutional. 

The regulation of the liquor traffic is, perhaps, after the laborquestion, the most universal subject of legislation in occidentalnations. Experts on the matter tell us (E. L. Fanshawe, "LiquorLegislation 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 recentlytried in South Carolina with more or less success. Prohibition bya general law does not seem to be effective; local option, on thecontrary, does seem to be so. But the general consensus of opinion, to which Mr. Fanshawe comes, and which seems still to be held by mostintelligent American publicists, is that on the whole high licenseworks best, and this the women themselves have just voted in Denver;not only because it actually prohibits to a certain extent, but itregulates and polices the traffic, prevents the sale of adulteratedliquor, and to a considerable extent the grosser disorders andpolitical dangers that attend the bar-room. On the other hand, thepower of licensing should never be granted to any political body, but should be granted under fixed rules (determined by geographicalposition and the local opposition or desire) by the local government. These rules should not be arbitrary, and the person applying forlicense should have the right to appeal to some court. 

Matters of bribery and political corruption have been somewhatanticipated under Chapter 14. Suffice it here to say that the Statesvery generally have been adopting statutes making bribery criminal anda cause of permanent disqualification from all political right, eithervoting or holding office, and this applies both to the person bribingand the person receiving the bribe. Bribery by offers or promiseof employment is a far more difficult matter, but this matter alsocertain States have sought to regulate. 

There are, of course, thousands and thousands of city ordinancesrelating to the criminal law, but usually to minor offences or mattersof police regulation. Undoubtedly the duplication of them tends tomake us not a law-abiding community. It was the present Boston policecommissioner who complained that there were more than eleven thousandordinances in Boston, which everybody was supposed to know. We mustlet the whole matter go by saying that there is a general attempt atuniversal police regulation of all the actions of life, at leastsuch 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 onSunday in the city of New York and the town of Saratoga; the reasonsfor the exception are obvious. 

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

The legislation making it criminal to advocate assassination oranarchism has been adverted to when we were considering the rights ofaliens. In England, it is treason to imagine the death of the king. There is no constitutional reason why it should not be treason toimagine the death of the president, or perhaps even the subversion byforce 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 verygenerally preserved for the crime of rape. The most active effortto-day for legislation in matters quasi-criminal is that to extendjury trial over cases of contempt of court, particularly when inviolation of a chancery injunction when the act itself is criminal. The greatest need of criminal legislation is in the writer's opinionin matters of business or corporate fraud, and in revival of our olderEnglish law against the extortion or regrating of middlemen, theengrossing of markets, the artificial enhancing of the prices of thenecessaries of life, and the withholding, destruction, or improperpreservation of food. But most of all, as President Taft has urged, greater speed and certainty and less technicality in court trials forcrime--a reform of our legal procedure. 

XIX

OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLICDOMAIN

The matter of most interest in modern American legislation formunicipal government is probably the home-rule principle. That is, statutes permitting cities or towns, or even villages, to draw andadopt their own charters and govern themselves in their own way. Thecharter thus adopted may, of course, be the old-fashioned governmentof mayor, aldermen, common council, etc. , or it may be the newlyinvented government by commission, based substantially on the theoryof permanent officials chosen at infrequent intervals, and officers, in so far as possible, appointed, and not elected. The one makes forefficiency, the other for democracy. At present the Americanpeople seem to have a craze for efficiency, even at the expenseof representative government, and of principles hitherto thoughtconstitutional. It is impossible to tell how long it will last. It maycarry us into the extreme of personal government, national, State, andlocal, or history may repeat itself and we may return to the principleof frequent elections and direct responsibility to the voters underthe arbitrament of the courts of law. We may go on to special courts(declared odious in the Great Case of Monopolies) and administrativelaw, or be content with improved understanding of the law we alreadyhave. 

These matters are too large for us; coming down to more concretefacts, we find that the general tendencies of legislation upon State, and particularly municipal, government are to somewhat enlarge itsfunctions, but considerably to limit its expenditure. Greater distrustis shown in legislatures, municipal as well as State, and a greatertrust and power reposed in individual heads, and a much greater powerintrusted to more or less permanent boards and commissions, usuallynot elective, and often clothed with vast powers not expresslysubmitted to the scrutiny of courts of law. The purposes of educationare somewhat extended, generally in the direction of better education, more technical and practical and less "classical. "[1] Charity includesa largely increased recreation for the people, State provision formany more classes of the invalid and incompetent, specialized homesfor various sorts of infirm or inebriate, and some little charity inthe 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 toan audience of labor unionists that trades schools and industrialeducation tend to "peasantize" the poor. Peasanthood was the conditionof the agricultural laborer; it was skilled labor that made himfree--neither peasant, peon, nor villein. See p. 20, above. ]

Thus, in 1890 North Dakota limits the debt of cities to five percent. ; 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 municipalcontrol. In 1895 Wisconsin, North Carolina, Texas, and other Statescarefully limit State, county, town, or city taxes to prescribedrates. Texas requires a two-thirds vote on the issue of municipalbonds, and fixes the debt limit at five per cent. In 1896 Missourirejects a constitutional amendment permitting municipal gas and watersocialism on majority vote of the voters. The same year the failureof such enterprises begins to show itself in a statute of Iowaauthorizing municipal plants to be sold upon a popular vote. Thesocialist town of Hamilton, Ohio, actually went into the hands of areceiver; a similar result followed the English experiments in thetowns of Poplar and West Ham. 

In 1897 many other States adopted a limit for State, city, county, ortown taxes. Indeed, it may be stated generally, without going intofurther details, that such laws are practically universal throughoutthe South and West, and prevail to some extent as to cities only inNew England, and the same may be said of laws fixing a debt limitwhich States, counties, cities, or towns may not exceed. Such laws arevery generally evaded, as by leasing desired improvements of a privatecompany, or (in Indiana at least) the overlapping of municipaldistricts; 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 inthe last ten years, laws restricting the granting of franchises havebecome far more intelligent and are being generally adopted. The bestexample of such legislation is probably to be found in Kansas. Thegeneral principles are that no franchise can be given but for alimited time, that it must be bought at public auction, that theearnings beyond a certain percentage on investment must revert tothe city, and that there must be a referendum to popular vote in thelocality interested. In 1899 Michigan declares the municipal ownershipof street railways unconstitutional, but Nevada passes a statutefor municipal ownership of telephone lines. In 1903 the municipalownership of gas and oil wells is permitted in Kansas, and of coalor fuel yards in Maine. A law similar to the latter was declaredunconstitutional by the Massachusetts Supreme Court. Missouri adopts asweeping statute for the municipal ownership of "any public utilities"in cities of less than thirty thousand population. In 1904 Louisianapermits small towns to own and operate street railways. Other Statescopy the Missouri statute as to municipal ownership of all or anypublic utilities, and generally the principle is extended, but only ina permissive way; that is to say, upon majority vote, and this seemsto be the present tendency. The most striking present experiment isin Milwaukee; both Haverhill and Brockton tried socialistic citygovernment in Massachusetts, but abandoned it. 

Civil-service reform has very generally made progress during the pasttwenty years in State and city governments, and probably the principleis 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 nointernal improvement whatever, and this, of course, was the olderprinciple without any express constitutional provision. North Dakotaand Wyoming provide that the State cannot be interested in works ofinternal improvement except upon two-thirds vote of the people. 

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

Very generally, the States have created agricultural experimentstations and model farms, drainage districts in the South, a leveesystem 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 provisionfor a State agricultural bureau, and nearly always for generalagricultural as well as industrial instruction. The States are onlybeginning to adopt State forests, or forest reserves, Massachusettsand New York leading the way. Forestry commissions exist in a fewStates, but the very slightest beginning has been made at forestrylaws. No control is as yet exercised over reforestation or replanting;a few of the Western States exempt growing trees, or the land coveredby growing trees, from more than a nominal tax, notably Indiana andNebraska. The forestry laws are, however, increasing. In 1903 we findone, in 1904 five, and in 1905 six, with the tree bounty law in NorthDakota, and two States exempting forest lands from taxes. There arefour statutes this year for fish or game preserves. In 1907 fourStates create forestry boards, and two exempt forests from taxation, and in 1908 growing trees are exempted in Massachusetts and RhodeIsland. But under the unlimited power of Congress over Federalterritory not yet incorporated into States, or not ceded to the Statewhen incorporated, it is to the Federal government that we have lookedfor the creation and preservation of parks, forest reserves, andnatural reserves generally. How far it may constitutionally createsuch within the lines of old States, or on land of which it isotherwise incapable of ownership, is a constitutional question stillundecided. 

The educational functions of the State are, of course, a peculiarprinciple of American civilization. Nearly all State constitutionsprovide that education is a natural right, and the first common schoolsupported by general taxation appears in the Colony of MassachusettsBay before the year 1640. The principle of compulsory educationexists throughout all the States, and in all education of the mostdiversified kind is given, from the primary school or kindergarten tothe State university or technical school of applied science, trade, orbusiness. Nearly all the States have established State universitieswhich are free or open at a nominal charge. Massachusetts continuesto rely upon a semi-private institution, Harvard University, which, indeed, is expressly mentioned in its constitution. Provision isuniversally made also for evening schools, for industrial schools, forpublic libraries, and for popular elections, and besides the ordinaryeducational laws and the truant laws, there is in the statutesconcerning labor matters abundant machinery for requiring someeducation as a preliminary to any employment. The age of compulsoryeducation may be said to average between the ages of eight andfifteen, though the limits are extended either way in the diversStates. Farm schools and industrial reform schools generallyexist, both as a part of the present system and of the educationaldepartment. Coeducation in State schools and colleges is almostuniversal. On the other hand, as we have shown, the segregation ofthe races is in some States insisted upon. Several States forbid theemployment of teachers under the age of sixteen, or even eighteen. Free text-books are generally provided. The period of compulsoryschooling varies from the classic twelve weeks in the winter, as inold New England, to substantially the full academic year. Textile andother manual training schools exist in some States, but have generallyevoked the opposition of organized labor, and are more usuallycreated by private endowment. The tendency of civil service reformlegislation, furthermore, has been to require a certain minimum ofeducation, though it may be feared that the forecast of De Tocquevilleremains justified; our national educational weakness is our failure toprovide for a "serious higher instruction. "

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

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

The principle of imposing taxation not for revenue, but for someulterior or ethical purpose, such as the destruction of swollenfortunes, is liable to constitutional objection in this country, though the courts may not look behind the tax to the motive, unlessthe latter is expressed upon the face. For this reason, the presentcorporation tax, on its surface, is imposed solely for the purpose ofraising revenue, though in debate in Congress it was advocatedmainly for the object of bringing large corporations under Federalexamination and control. 

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

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

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

XX

FINAL

One would suppose that a democracy which believes in the absolutepanacea of law-making would take particular pains with the forms ofits legislation, to have its statutes clear, in good English, notcontradictory, properly expressed and properly authenticated. Youwould certainly suppose that the people who believe that everythingshould be done under a written law would take the greatest pains tosee that law was _official_; also, that it was clear, so as to be"understanded of the people"; also, that it did not contain a thousandcontradictions and uncertainties. When our--I will not say wiser, butcertainly better educated--forefathers met in national convention toadopt a constitution, one of the first things they did was to appointa "Committee on Style. " It is needless to say that no such committeeexists in any American legislature. You would suppose they would takepains to see that all the laws were printed in one or more books wherethe people could find them. This is not the case in New York or inmany of our greater States. You would also suppose that when theypassed another law on the same subject they would say how much of theformer law they meant to repeal, but in many States that also is notdone. It would probably be too much to hope that they should notconfuse the subject with a new law on a matter already completelycovered; but the form of their legislation should be improved at leastin the first three particulars I have mentioned. 

What is the fact? The secretary of one new State reports that thelaws, as served up to him by the legislature, are "so full ofcontradictions, 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, thatin very few of our States is there any authentic edition of the lawswhatever, and quite a number do not publish their constitutions!

The worst condition of all is found in the national legislation ofCongress, until very recently in the great State of New York, and inthose States which have adopted the code system generally. I do notsay this as an opponent of general codes, but I am constrained to noteas a fact that those States are the ones which have their legislationin the worst shape of any. The charm of the statute theory is thatthe half-educated lawyer or layman supposes he can find all the lawswritten in one book. Abraham Lincoln even is said to have had themajor part of his "shelf of best books" composed of an old copy of thestatutes of Indiana, though I can find no traces of such reading inthe style of his Gettysburg address. But how far is this democraticclaim that the laws of a State are all contained in one book borne outby the facts?

Of our fifty States and Territories only Alabama, Arizona, theDistrict of Columbia, Connecticut, Delaware, Maine, Maryland, Massachusetts, Montana, New Hampshire, New York (partially), NorthCarolina, Rhode Island, South Carolina, Vermont, and Wisconsin(sixteen States) have any official revision or "General Laws"; thatis to say, one or more volumes containing the complete mass oflegislation, up to the time of their issue, formally enacted by thelegislature. A number of other States have what are called "authorizedrevisions" or authorized editions of the law. This phrase I use tomean a codification by one or more men (usually a commission of three)who are duly appointed for the purpose, under a valid act of theState legislature, but whose compilation, when made, is never in formadopted by the legislature itself. Leaving out the constitutionalquestion whether such a book is in any sense law at all--for in allprobability no legislature can delegate to any three gentlemen thepower to make laws, even one law, much more all the laws of theState--leaving out the constitutional question. It is very doubtfulhow far such compilations are reliable, although printed in a booksaid to be authorized and official, and held out to the public assuch. That is to say, if the real law, as originally enacted, differsin 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 thestatutes of the State really are--that is to say, only valid ifuncontradicted. It was impossible to correspond with all the Statesupon this point--if, indeed, I could have got opinions from theirrespective supreme courts, for no other opinion would be of any value. The compilation of the State of Arkansas says, somewhere near itstitle-page, that it is "approved by Sam W. Williams. " It does notappear who Sam W. Williams is, what authority he had to approve it, orwhether his approval gave to the laws contained in that bulky volumeany increased validity. This is a typical example of the "authorized"revision, and this is the state of things that exists in suchimportant States as Arkansas, California, Colorado, Florida, Hawaii, Idaho, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, NewMexico, North Dakota, Oregon, South Dakota, Tennessee, Utah, Virginia, and Wyoming (twenty in all). 

Before leaving these States, which do have some form of "revisedstatutes" or complete code--and be it remembered that I am never herespeaking of annual laws, for however bad their form and the form oftheir publication, they are usually, at least, _official_--it will beinteresting, and, I think, throw further light on the subject, tocull some passages from the laws of States having such "authorizedrevisions, " to show how far their real authority extends. The generalstatutes of 1897 of the State of Kentucky say on their title-page thatthey are an authorized compilation approved by the Supreme Court, butthe form of approval of the Supreme Court of Kentucky runs as follows:"Although we consider this duty not lawfully imposed upon us, " theysay that, so far as they have observed, they "detect no errors in thecompilation and it seems to have been properly done. " Of how muchvalue such approval would be in case there turned out to be adiscrepancy between the compilation and the original statute, I leaveto the lawyers to judge. The compiled laws of New Mexico of the sameyear, made by the solicitor-general, contain an amusing statementunder his own signature, that he believes "a large part of the lawshe there prints are either obsolete or have actually been repealed bycertain later statutes, " but he, as it were, shovels them in, in thehope 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 thatthey have compared the codes of other States and have added andincorporated many other laws taken from such codes of other States, apparently because the commissioners thought them of value! One mustreally ask any first-year student of constitutional legislation whathe thinks of that statement, not only of its constitutionality, but ofits audacity. Finally, the State of South Dakota says, in its statutesof 1899, what I quoted at the beginning--that "all the laws containedin the book are to be considered as admissible in evidence, " but notconclusive of their own authenticity or correct statement. 

We now come to the third, and, from the point of view of the believerin statutes, probably the worst class of all. That is to say, Stateswhich have no official or authorized compilation whatever and whichrely entirely upon the enterprise of money-making publishers to make abook which correctly prints the laws, and all the laws, of the Statein question. For one State, at least, such a compilation was made by afew industrious newspaper correspondents at Washington! The States andTerritories 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 officialrevision since 1881 and everybody, in fact, uses a privatelyprepared digest--Louisiana, Michigan, Minnesota, Mississippi, Ohio, Pennsylvania, Washington, and West Virginia (fourteen in all). Besidesthis, there are other States such as Wisconsin and Indiana, alreadymentioned, where there is no official _recent_ revision, so thateverybody depends upon a private compilation, which is the only oneprocurable. 

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

First, adopt the provision that "no statute shall be regarded asrepealed unless mentioned as repealed, and when a law is amended, thewhole law shall be printed as amended in full. " This would acquaintthe legislature with the law already existing, before they proceed tochange it. Next provide that all laws shall be printed and publishedby a _State_ publisher and the authenticity of all revisions be dulyguaranteed by their being submitted to the legislature and re-enacted_en bloc_, as is our practice with revisions in Massachusetts and someas other States. Third, the local or private acts should be separatedfrom the public laws, and they might advantageously even be printed ina separate volume, as is done in some States already. But who shalldetermine whether it is a private, local or special act, or a generallaw? I can only answer that that must be left to the legislatureuntil 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 upby an authorized commission, their work should be afterward ratifiedby the legislature. It is said, I think, that the constitution ofVirginia, drawn up by a constitutional convention, was never ratifiedby the people. If so, there is a grave constitutional doubt whether itor 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 fundamentaland original political entity of the Anglo-Saxon world, be forbiddenfrom delegating its legislative power, as its representativesthemselves are forbidden?

The last matter, that of arrangement, order of printing, and form oftitle, is so directly connected with that of indexing that I shalltreat the two things together. Now, there are three different methodsof arrangement, or lack of arrangement, to be found in printingthe laws of our forty-six States and four Territories, both in therevisions and in the annual laws. The revisions, however, are more aptto have a _topical_ arrangement, and to be divided into chapters, with titles, each containing a special subject and arranged, eithertopically, or, in some States, even so intelligent otherwise as arePennsylvania and New Jersey, arranged with the elementary stupidity ofthe alphabetical system. I say, stupid; when, for instance, you have achapter on "Corporations, " no one can tell whether the legislature orcompilers are going to put it under "C" for corporations, under "I"for incorporations, or under "J" for joint-stock companies. Thealphabetical system of arrangement is the most contemptible of all, and should be relegated to a limbo at once. The annual laws, ofcourse, are much less likely to have any arrangement whatever. Passedchronologically, they are more apt to follow in the order of theirpassage. 

Now these systems as we find them are as follows: in nearly all Statespublic and private laws are lumped together, although in a few theyare 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 calleda code, and even a general "revision" of the statutes will naturallyfall into chapters covering certain subjects. A few States, as I havesaid, cling to the crude alphabetical system, and quite a number haveno discernible system whatever. In some States the annual laws arearranged by number, in some by date of passage, and in some apparentlyaccording to the sweet will of the printer. In those States which donot arrange them or entitle them by date of passage we have to dependon the crude and dangerous system of citation by page. Acts ofCongress are sometimes cited by date of passage, sometimes moreformally by volume and number of the Statutes at Large, and more oftenthan 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 orgeneral revisions should certainly be topical. That of the annual lawsmay either be topical or chronological, but the statutes, in whateverorder they are printed, should be _numbered_ and cited by number. Noalphabetical arrangement ever should be permitted. 

As to indexing we should urge upon State legislatures, secretariesof State, and official draftsmen (when we get any) that the veryexcellent system contained in the New York Year Book of Legislationshould be adopted for all volumes of State laws. It is as bad for theindex to be too big as to be too little, and it does not follow thatthe good draftsman is a good indexer. The index to our Revised Lawsof Massachusetts is contained in one large separate volume of 570double-column pages. To look for a statute in the index is just aboutas bad as to look for it in the revision itself. The most importantpoint of all is the proper choice of subject titles. Laws shouldbe indexed under the general subject or branch of the science ofjurisprudence, or the subject-matter to which they belong, not tootechnically and not too much according to mere logic. For example, anylawyer or any student of civics who wished to learn about the laborlaws 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 andimportant mass of legislation concerning the relation of all employersand employees, and the condition and treatment of mechanical or otherlabor, naturally falls. But if you search in our elaborate index ofMassachusetts for the head of "_Labor_" you will not find it. If youlook under "_Employment of Labor_" you will find it, but you cannot becertain that you will find all of it, and you will find it under somany heads that it would take you quite ten or fifteen minutes to readthrough and find out whether there is an "hours-of-labor" law or not. On the other hand, purely technical matters, such as "_Abatement_" areusually well indexed, because their names are what we call "terms ofart, " under which any lawyer would look. 

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

The most important statute of the United States is perhaps the mosthorrible example of slovenliness, bad form, and contradiction of all. The "Hepburn Act" is the amended Interstate Commerce Act, and isprinted by Congress in a pamphlet incorporating with it quite adifferent act known as the Elkins Act, besides the Safety ApplianceAct, the Arbitration Act, and several others. We all remember underwhat political stress this legislation was passed, with Congressbalking, the senators going one way, the attorney-general another, theradical congressmen in front, and the president pushing them all. Itis easily intelligible that such a condition of things should not tendto lucid legislation, particularly when an opposing minority do notdesire the legislation at all, and hope to leave it in such a shapeas to be contradictory, or unconstitutional--or both. (This has beenintentionally done more than once. ) All of it a mass of contradictionsor overlaying amendments, the first important part of it which cameunder the scrutiny of the Supreme Court only escaped being heldunconstitutional by being emasculated. Its other clauses have yet toface that dreaded scrutiny. Its basic principle has yet to be declaredconstitutional, while the only principle which has proved of any valuewas law already. This wonderful product of compromise starts off bysaying "Be it enacted, etc. , Section I as amended June 29, 1906. " Itbegins with an amendment to itself. It does not tell you how much ofthe prior law was repealed, except upon a careful scrutiny which onlypaid lawyers were willing to give. Upon the old Interstate CommerceAct of 1887, after quoting it substantially in full, it adds a mass ofother provisions, some of which are _in pari materia_, some not; somecontradictory and some mere repetitions. It amends acts by lateracts and, before they have gone into effect, wipes them out bysubstitutions. It hitches on extraneous matters and it amends pastlegislation by mere inference. Like a hornet it stings in the end, where revolutionary changes are introduced by altering or adding aword or two in sections a page long, and it ends with the cheerful buttoo usual statement that "all laws and parts of laws in conflict withprovisions of this act are hereby repealed. " As a result no one canhonestly say he is sure he understands it, any more than any seriouslawyer can be certain that its important provisions are any one ofthem constitutional. And that huge statute with sections numbered 1, 2, 5, 16, 16_a_, etc. , with amendments added and substituted, amendedand unamended, is contained in twenty-seven closely printed pages. Iventure to assert boldly that any competent lawyer who is also agood parliamentary draftsman could put those twenty-seven pages ofobscurity into four pages, at most, of lucidity, with two days' honestwork. By how little wisdom the world is governed! And how little therepresentatives of the people care for the litigation or troubleor expense that their own slovenliness causes the people! For thenecessity 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 influencewith the various State governments at least--"1, that all revisionsbe authenticated, authorized, and published by the State; 2, thatthe annual laws be separated, public from private, and be printed bynumbered chapters arranged either chronologically or topically; 3, that the indexes be arranged under the forty general heads used bythe New York State Library in its annual digest, with such additionalheads as may, perhaps, prove necessary in some States, such as, forinstance, Louisiana, which has subjects and titles of jurisprudencenot known to the ordinary common-law States; 4, that the constitutionsbe printed with the laws; 5, that every State, under a law, employ apermanent, paid parliamentary or legislative draftsman whose duty itshall be to recast, at least in matters of style and arrangement, allacts before they are passed to be engrossed. "

Any private member introducing a bill can, of course, avail himselfof the draftsman's services before the bill is originally drawn. Hisadvice may be required by the legislature or by legislative committeeson the question whether the proposed legislation is necessary, thatis to say, whether it is not covered by laws previously existing. Itshall 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 shouldbe paid a very large salary so that he can afford to make it his lifework. He should be appointed for a very long term and should haveample clerical assistance. It should also be his duty to correspondand exchange information with similar officials in other States. In other words, he with his assistants should be the legislativereference department. These recommendations were duly referred to theCommittee on Uniformity in preparation of session laws. 

 * * * * *

At some risk of wearying the reader I have attempted superficiallyto cover a very extensive field. I started with quoting Blackstone'sremark that there is no other science in which so little educationis supposed to be necessary as that of legislation. These words werepenned by him more than one hundred and fifty years ago and thereis still no book upon this subject; the books on Government, Parliamentary Law, and Hermeneutics concerning respectively thesource, the procedure, and the interpretation of legislation, notthe content thereof. I can but hope to have called attention to theimmense importance of this subject, particularly in our representativedemocracy, and I will beg my readers who have been patient with me tothe end to reflect for more than a moment on the extraordinarily novelstate of things that this modern notion of the legislative functionbrings about. It is a commonplace of historical writers to open theirfirst chapter by calling attention to the difference made by steel andelectricity, to the fact that it took longer to get from Boston toWashington in 1776 than it does to-day from Maine to Californiaand back; that it took longer even for the rural legislator in theConnecticut Valley to get to his State Capitol than it does to-dayto go from there to Washington. But no one, I think, has ever calledattention to the enormous differences in living, in business, inpolitical temper between the days (which practically lasted until thelast century) when a citizen, a merchant, an employer of labor, or alaboring man, still more a corporation or association, and lastly, aman 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 educationof his children, his business career and his entrance into publiclife--and these days of to-day, when all those doing business under acorporate firm primarily, but also those doing business at all;all owners of property, all employers of labor, all bankers ormanufacturers or consumers; all citizens, in their gravest and theirleast actions, also must look into their newspapers every morning tomake sure that the whole law of life has not been changed for them bya statute passed overnight; when not only no lawyer may maintain anoffice 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 themost recent statute of any other State which may have a bearing onthe situation. Moreover, these statutes, which at any moment mayrevolutionize a man's liberty or his property, are not as they were inold times--a mere codification, or attempt at the best expression ofa law already existing and well "understanded of the people"; but mayand probably will represent a complete reversal of experience, anabsolute alteration of human relations, a paradox of all that has gonebefore; and even when they endeavor not to do so, as in the case ofthat Massachusetts statute above referred to, their authors' lack ofeducation in the science of legislation may unintentionally cause arevolution in the law. And even when a statute does not do this, nolawyer can be certain what it means until, years or decades afterward, it has received recognition from an authoritative court. That is whymuch complaint has been made of lawyers; they are said not to knowtheir business, not to be able to tell what the law is. The head ofa great railroad has recently complained that he was only anxious toobey the law, but had great difficulty in finding out what the lawwas. Any good lawyer with common sense knows the common law and usageof 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 beenbefore the courts a thousand times, and the best lawyers in thecountry do not to-day know what it means; and the highest tribunalin the land is so uncertain on the subject that it has ordered theStandard Oil case reargued. 

This is not to say that one must not recognize the meaning and theneed of law-making by statute; of law made by the people themselvesto suit present conditions. "There should be a law about it, " is thepopular phrase--commonly there _is_ a law about it, and the best ofall law, because tested by time and experience; only, the peopledo not realize this, and their power and practice of immediatelegislation is not only the great event in our modern science ofgovernment, but it is also the greatest change in the rules andconditions of our _living_, and our _doing_, and our _having_. Notonly 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 somesuggestions to my readers which will awaken their interest to theimportance 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 rateregulation. 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 felonyAnarchists, 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 inSwitzerland. 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 quotedBribery 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 Englandcolonies, 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 ofCustom 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 shipsDogberry, 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 inUnited 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 fourteenthcentury. 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 likegentlemen; 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 underEnglish 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 (_seePolitical_). 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 UnitedStates; 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 byfurnishing 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-lawprinciples 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, andcompulsory 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.