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Popular Law-making by Frederic Jesup Stimson

Part 6 out of 8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

XV

OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

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

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

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

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

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

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

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

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

XVI

LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

XVII

SEX LEGISLATION, MARRIAGE AND DIVORCE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

XVIII

CRIMINAL LAW AND POLICE

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

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

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

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

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

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

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

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

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

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

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

XIX

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

XX

FINAL

One would suppose that a democracy which believes in the absolute
panacea of law-making would take particular pains with the forms of
its legislation, to have its statutes clear, in good English, not
contradictory, properly expressed and properly authenticated. You
would certainly suppose that the people who believe that everything
should be done under a written law would take the greatest pains to
see that law was _official_; also, that it was clear, so as to be
"understanded of the people"; also, that it did not contain a thousand
contradictions and uncertainties. When our--I will not say wiser, but

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