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Popular Law-making by Frederic Jesup Stimson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Footnote 1: See the next chapter.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

And also a clause as to picketing:

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

[Footnote 1: The italics are our own.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

And by the Bill of Rights of 1689:

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

As is familiar to the reader, there has been a decided movement for
the direct election by the people of United States senators, a large
majority of the States, and the Democratic party in all States, having
in the last few years expressed themselves in favor of a change in

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