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by Frederic Jesup Stimson
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Austria, Italy, Norway, and Denmark in 1901 had also state insurance systems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



CHAPTER XII

COMBINATIONS IN LABOR MATTERS

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

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

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

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

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

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

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

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

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

And also a clause as to picketing:

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

[Footnote 1: The italics are our own.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



CHAPTER XIII

MILITARY AND MOB LAW, AND THE RIGHT TO ARMS

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

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

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

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

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

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

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

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

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

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

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

And by the Bill of Rights of 1689:

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

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

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

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

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

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

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

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

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

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



CHAPTER XIV

OF POLITICAL RIGHTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



XV

OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

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

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

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