Section 2 of this act (June 6, 1908) copies the _older_ English

POPULAR LAW-MAKING

A STUDY OF THE ORIGIN,

HISTORY, AND PRESENT TENDENCIES

OF LAW-MAKING BY STATUTE

BY

FREDERIC JESUP STIMSON

PROFESSOR OF COMPARATIVE LEGISLATION IN HARVARD UNIVERSITY

"NOW, MY LORD, I DO THINK, THAT PRACTICE AND USAGE IS A GREAT

EVIDENCE OF THE LAW."--CHIEF JUSTICE HOLT, IN "THE

GREAT CASE OF MONOPOLIES."--7 STATE TRIALS, 497

1911

TABLE OF CONTENTS

I. THE ENGLISH IDEA OF LAW

Proper Field of Legislation; Meaning of the Word "Law,"; Modern

Importance of Statute Law; Representative Government and the Right

to Law; Enforcement of the Common Law; Origin of Representative

Legislatures; Customary or Natural Law; No Sanction Necessary;

The Unwritten Law and Outlawry; Early Parliament Merely Judicial;

Contrast of Common Law with Roman Law; Theory that the King Makes

Law; Parliament Retains the Right to Tax; Parliament Recovers

Legislative Powers.

II. EARLY ENGLISH LEGISLATION AND MAGNA CHARTA

Constructive Legislation a New Idea; Statutes Increase of Late

Years; Sociological Legislation only Considered; Early Legislation

Political; English Law not Codified; Early Anglo-Saxon Laws;

Freedom Gained in Guilds; Threefold Division of Government; No

Constitution Controls Parliament; Restoration of English Law After

the Conquest; Taxation by Common Consent; Earliest Social Statute;

Recognition of Personal Property; Law of Land Tenure; The Charter

of Liberties; Early Methods of Trial; Distinction Between Sin and

Crime; Church Law Governs Sin; Important Clauses of Magna Charta;

Freedom of Trade; Taxation for the Common Benefit; The Great

"Liberty" Clause; "Administrative" Law not English; No Government

Above Law.

III. RE-ESTABLISHMENT OF ANGLO-SAXON LAW.

Common Law Against Civil Law; "We Are Unwilling to Change the Laws

of England;" Usury and the Jews; Towns Represented in Parliament;

The Fixing of Prices; Sumptuary Laws; The Benefit of Clergy;

Partial Codification; The Statute of Westminster I; Law Extended

to All People; Labor Makes Men Free; The Freedom of Elections;

"Cruel and Unusual Punishment"; Sexual Offences Made Secular

Crimes; Earliest Duties on Imports; Early Duties on Wool; The Law

of Wrecks.

IV. EARLY LABOR LEGISLATION, AND LAWS AGAINST RESTRAINT OF TRADE

AND "TRUSTS"

Extortion and Discrimination; Forestalling, Regrating, Engrossing;

The Statute of Bakers; Origin of Law of Conspiracy; The Law

of Combination; The Modern Definition; Combinations Against

Individuals; Intent Makes the Guilt; Conspiracy More Heinous

than the Act Committed; Combinations to Injure Trade; Individual

Injuries to Business; Definition of Forestalling; "The Iowa Idea";

The Statutes of Labor; First Statute of Laborers; A Fixed Wage;

Early Law of Strikes; Early Law of Trades-Unions; Labor Conditions

in Early Times; Combinations to Fix Prices; Unlawful By-Laws of

Unions; Restraint of Trade; The Eight to Labor; The Earliest

Boycott; Origin of the Injunction in Labor Cases; The Common Law

Vindicated; Compulsory Labor in England; Free Trade to Merchants;

Jealousy of Chancery Power; Guilds and Corporations; Chancery and

the Star Chamber; By-Laws Tending to Monopoly; Hours of Labor

Laws; Idlers and Vagabonds; Trusts and Labor Combinations; Riots

and Assemblies; The Statute of Elizabeth; Early Labor Regulations;

The First Poor Law; The First Complaint of Monopolies; Growth

of Monopolies; The Statute of Monopolies; The Impeachment of

Monopolists.

V. OTHER LEGISLATION IN MEDIAEVAL ENGLAND

The Statute of Mortmain; The Law Merchant; Origin of Habeas

Corpus; Early Police Regulation; Opposition to Customs Duties;

Interpretation of the Great Charter; Statute Against Chancery

Jurisdiction; Early Tariffs on Wool; The English Language Replaces

French; Freedom of Trade at Sea; Laws of the Staple; Early Food

Laws Forbidding Trusts, etc.; The Statutes of Dogger; Department

Stores and Double Trading; Freedom of Trade Restored; Jealousy of

the Roman Law; Laws Against Scotch, Welsh, and Irish; Injunctions

Issued Against Seduction; The First Statute of Limitations;

Personal Government Under Henry VIII; Laws Against Middlemen;

Final Definitions of Forestalling, Regrating, Engrossing; The

First Poor Law and Forestry Law; The First Trading Corporations;

The Heresy Statutes; James I, Legislation Against Sins; Cromwell's

Legislation; The First Business Corporation; Corporations Invented

to Gain Monopoly; Growth of the Trade Guilds; Veterans' Preference

Legislation.

VI. AMERICAN LEGISLATION IN GENERAL.

Early Increase of State Legislation; The State Constitutions; When

Statutes Should Be Unconstitutional; Effect of the Initiative and

Referendum; The True Value of Precedent.

VII. AMERICAN LEGISLATION ON PROPERTY RIGHTS

Proper Classification of Statutes; Anarchism, Individualism,

Socialism; Definition of Communism; Definition of Nationalism;

Property a Constitutional Right; Not a Natural Right; Socialism

Unconstitutional; Eminent Domain; What Are Public Uses;

Irrigation, Drainage, etc.; Internal Improvements; Bounties;

Exemptions from Taxation; Limits Upon Tax Rate; Income Taxes;

Inheritance Taxes; License Taxes; Betterment Taxes; Double

Taxation; The Police Power; Government by Commission; Noxious

Trades, Signs, etc.; Modern Extensions of Police Power; Pure Food

and Drug Laws; Prohibition Laws; Oleomargarine Laws; Examinations

for Professions; Christian Science and Osteopathy; Trading Stamps

and Department Stores; Usury Laws; Negotiable Instrument Laws;

Bills of Lading and Warehouse Receipts; Sales in Bulk; Intestate

Succession; Laws for Protection of Debtors; Mechanics' Lien Laws;

Mortgage Foreclosures; Nuisances; The Buying of Futures; Tips and

Commissions; Weights and Measures; Laws Against Middlemen.

VIII. REGULATION OF RATES AND PRICES

Laws Fixing the Rate of Wages; Wages in Public Work; Logic of

Rate Regulation; The Granger Cases; Theory of Rate Regulation;

Regulation by the States; Constitutional Difficulties of Rate

Regulation; The Railway Rate Act of 1910; The Long and Short Haul

Clause.

IX. TRUSTS AND MONOPOLIES

The Trusts at Common Law; The Sherman Act; State Laws Against

Trusts; Federal Incorporation; Other Remedies of the States; Class

Legislation and Organized Labor; Recent Decisions and Laws Against

Trusts; Constitutional Provisions Against Trusts; Growth and

Decline of Anti-Trust Legislation; Best Remedy for Trusts; Only

Three Courses Possible; Centralization and Federal Control.

X. CORPORATIONS

History of Trading Corporations; Two Theories of Corporation Law;

The Massachusetts Commissioners' Report; The Payment Up of Stock;

The Massachusetts Law; The "Business Corporation" Act; Corporation

Laws of All the States; Publicity and Other Remedies; Laws

Regulating "Holding" Companies and Stock Ownership by

Corporations; Corporations of Other States; States May Exclude;

Summary of the Trust Question; Public Service Companies.

XI. LABOR LAWS

English Law Does not Enforce the Labor Contract; Freedom to

Trade and Labor; Sources of Reform Legislation; Constitutional

Difficulties; Minimum Wage Laws; The Rate of Wages in Public Work;

Equal Wages for Women; The New York Constitutional Amendment;

Hours of Labor Laws for Men; Hours of Labor Laws for Women;

Prohibited Employments to Women; Hours of Labor of Children; Laws

of All the States To-day; Hours of Labor in Factories, etc.; Child

Labor Prohibited; Hours of Labor in Mines; Age Limit for Child

Labor, Dangerous and Immoral Trades, Protection of Young

Girls, Labor in Mines, Hours of Labor in Peculiar Trades, The

Constitutional Difficulty, Farms and Domestic Labor, Continental

Legislation, Sanitary Restrictions on Female Labor, Sweatshop

Laws, The Factory Acts, Employers' Liability, Anti-Truck

Legislation, Factory Stores and Dwellings, Benefit Funds and

Compulsory Insurance, The Régime of Contract, Compulsory Labor and

Peonage, Statutes Against Intimidation, Blacklists, Picketing,

Armed Guards, Political and Militia Duties, Miscellaneous Matters,

Profit-Sharing, etc., Discrimination Against Union Labor, Twenty

Years of Labor Legislation, Foreign Labor Legislation, Employers'

Liability, Old Age Pensions, Minimum Wage Laws, Co-operation and

Profit-Sharing, Arbitration Laws, Labor Legislation in Europe.

XII. COMBINATIONS IN LABOR MATTERS

The Law of Combination and Conspiracy, Intent the Test, The

English Conspiracy Act, Modern Reforms Desired by Organized Labor,

Boycotts and Blacklists, Intimidation, Interference with Political

Rights, The Oklahoma Labor Code, European Law of Combination.

XIII. MILITARY AND MOB LAW, AND THE RIGHT TO ARMS

The Right to Civil Law, Martial Law, Military Law, The Right to

Arms, Military Service, The Struggle Against Martial Rule in

England, Standing Armies, Mobs, Riots, Lynching, The Use of the

Army in Labor Troubles,

XIV. OF POLITICAL RIGHTS

The Right to Assembly and Free Elections; The Suffrage, 28;

The Force Bills; Interference with Voting; Bribery and Corrupt

Practices; Lobbying Acts; The Form of the Ballot; Direct Primaries

and Nominations; The Distrust of Representative Government;

Corrupt Elections Laws; Direct Election of U.S. Senators; Women's

Suffrage; Municipal Elections, The Initiative, Referendum, and

Recall; The Judicial System.

XV. OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

Freedom of Speech and of the Press; The "Unfair" List; Prohibition

of Anarchistic Propaganda; The Right to Privacy; Search Warrants

and Self-Incrimination; Religious Rights.

XVI. LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS

The Race Question; Races Capable of Citizenship; The War

Amendments and Their Effect; The Negro's Social and Property

Rights; The Privileged Classes.

XVII. SEX LEGISLATION, MARRIAGE AND DIVORCE

A Woman Is a Citizen; Her Right to Labor and Property; Marriage,

Divorce, and Children; Women in Politics and Education; Reform of

Divorce Procedure; Uniformity of Law in Divorce; The Secular Law

in Sexual Matters; Marriage a Contract; The "Single Standard"

and Free Divorce; Control of Marriage by the State; Recent

Legislation; Radical Statutes in Sexual Matters; Legal Separation;

The Married Woman's Privileges; The "Age of Consent"; Female

Suffrage by Property-Owners; Kidnapping, Curfew, Rape; Statistics

of Divorce; Industrial Liberty of Women; Female Labor in England

and U.S.A.

XVIII. CRIMINAL LAW AND POLICE

Common Law Prevails; New Crimes and Penalties; Self-Regardant

Actions; Reform in Punishment; Procedure in the Courts; Lynching

and Mob Law; Interstate Commerce in Liquor, etc.; Physicians'

Privilege; Prohibition Laws; City Ordinances; Juvenile Courts and

Laws; Present Needs.

XIX. OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE

PUBLIC DOMAIN

Government by Commission; Taxes, Debt, and Franchises; Municipal

Socialism; Internal Improvements; State Farms and Forests;

Education; Taxation and State Aid; Present Questions.

XX. FINAL

The Form of Our Statutes; Need of Authorized Revisions; Reforms

Recommended; Indexing and Arrangement; Need of a Parliamentary

Draughtsman; Recommendations of the State Librarians; Purpose of

this Book.

INDEX

POPULAR LAW-MAKING

I

THE ENGLISH IDEA OF LAW

My object in the lectures upon which this work is based was to give

some notion of the problems of the time (in this country, of course,

particularly) which are confronting legislators primarily, political

parties in the second place, but finally all good citizens. The

treatment was as untechnical as possible. The lectures themselves were

for men who meant to go into business, for journalists, or political

students; a general view--an elemental, broad general view--of the

problems that confront legislation to-day. So is the book not one for

lawyers alone; it seeks to cover both what has been accomplished

by law-making in the past, and what is now being adopted or even

proposed; the history of statutes of legislation by the people as

distinct from "judge-made" law; how far legislatures can cure the

evils that confront the state or the individual, and what the future

of American legislation is likely to be. Constitutional difficulties

I had merely mentioned, as there was another course of lectures on

American constitutional principles, which supplemented it.[1] In those

I tried to show what we _cannot_ do by legislation; in these I merely

discussed what had been done, and tried to show what we are now doing.

What we may _not_ do may sound, perhaps, like a narrow field; but the

growth of constitutional law in this country is so wide--in the first

place including all the English Constitution, and more than that,

so many principles of human liberty that have been adopted into our

Constitution, either at the time it was adopted, or which have crept

into it through the Fourteenth Amendment, with all the innovations

of State constitutions as well--that really the discussion of what

_cannot_ be done by statute takes one almost over the entire range of

constitutional law and even into the discussion of what cannot be done

in a free country or under ordinary principles of human liberty.

[Footnote 1: "The Law of the Federal and State Constitutions of

the United States," Boston Book Company, 1908. "The American

Constitution," Scribners, New York, 1907.]

How many of us have ever formulated in our minds what _law_ means? I

am inclined to think that the most would give a meaning that was never

the meaning of the word _law_, at least until a very few years

ago; that is, the meaning which alone is the subject of this book,

_statute_ law. The notion of law as a _statute_, a thing passed by a

legislature, a thing enacted, made new by representative assembly, is

perfectly modern, and yet it has so thoroughly taken possession of our

minds, and particularly of the American mind (owing to the forty-eight

legislatures that we have at work, besides the National Congress,

every year, and to the fact that they try to do a great deal to

deserve their pay in the way of enacting laws), that statutes have

assumed in our minds the main bulk of the concept of law as we

formulate it to ourselves. I guess that the ordinary newspaper reader,

when he talks about "laws" or reads about "law," thinks of statutes;

but that is a perfectly modern concept; and the thing itself, even

as we now understand it, is perfectly modern. There were no statutes

within the present meaning of the word more than a very few centuries

ago. But statutes are precisely the subject of this book; legislation,

the tendency of statute-making, the spirit of statutes that we have

made, that we are making, and that we are likely to make, or that are

now being proposed; so it is concerned, in a sense, with the last and

most recent and most ready-made of all legal or political matters. The

subject of statute-making is not thought difficult; it is supposed

to be perfectly capable of discussion by any one of our State

legislators, with or without legal training; and sometimes with

lamentable consequences. For the subject is of the most immense

importance, now that the bulk of all our law is, or is supposed to be,

statutes.

In order to understand, therefore, what a statute is, and why it has

grown important to consider statute-making, it is necessary to have

some knowledge of the meaning of the word _law_, and of the origin

both of representative government and of legislatures, before we come

to statutes, as we understand them; for parliaments existed centuries

before they made statutes as we now use this word. _Statutes_ with

us are recent; _legislatures_ making statutes are recent everywhere;

legislatures themselves are fairly recent; that is, they date only

from the end of the Dark Ages, at least in Anglo-Saxon countries.

Representative government itself is supposed, by most scholars, to be

the one invention that is peculiar to the Anglo-Saxon people.

And there is another invention--if we can call it one--to my mind of

far greater importance, which I should urge was also peculiar to the

Anglo-Saxon people; that is, the invention or the idea of personal

liberty; which is understood, and always has been understood, by

Anglo-Saxons in a sense in which it never existed before, so far as I

know, in any people in the history of the world. It is that notion of

personal liberty which was the cause of representative government, not

representative government that was the cause of personal liberty. In

other words, the people did not get up a parliament for the sake of

having that parliament enact laws securing personal liberty. It was

the result of a condition of personal liberty which prevailed among

them and in their laws that resulted in representative government, and

in the institution of a legislature, making, as we now would say, the

laws; though a thousand years ago they never said that a legislature

_made_ laws, they only said that it _told what the laws were_. This is

another very important distinction. The "law" of the free Anglo-Saxon

people was regarded as a thing existing by itself, like the sunlight,

or at least as existing like a universally accepted custom observed by

every one. It was five hundred years before the notion crept into the

minds, even of the members of the British Parliaments, that they could

make a _new_ law. What they supposed they did, and what they were

understood by the people to do, was merely to _declare_ the law, as it

was then and as it had been from time immemorial; the notion always

being--and the farther back you go and the more simple the people are,

the more they have that notion--that their free laws and customs were

something which came from the beginning of the world, which they

always held, which were immutable, no more to be changed than the

forces of nature; and that no parliament, under the free Anglo-Saxon

government, or later under the Norman kings, who tried to make them

unfree, no king, could ever _make_ a law, but could only declare what

the law was. The Latin phrase for that distinction is _jus dare_, and

_jus dicere_. In early England, in Anglo-Saxon times, the Parliament

never did anything but tell what the law was; and, as I said, not

only what it was then, but what it had been, as they supposed, for

thousands of years before. The notion of a legislature to make _new_

laws is an entirely modern conception of Parliament. How did it arise?

The English Parliament,[1] as you doubtless know, was the successor,

or grew out of the old Witenagemot, the old Saxon Great Council, and

that Great Council originally--and I am now talking of centuries

before the Conquest--the Witenagemot, included in theory all the free

inhabitants of the realm, just as a modern town meeting does. Mind

you, they were then tribes, living in "Hundreds." They were not

nations, not even states and counties, and in early times it probably

was possible to have a popular assembly which should include at least

all the warriors, all the fighting men, and consequently all the men

whose votes counted. No man who could not fight could share in the

government--an historical fact which our suffragists tend to ignore

when they talk of "rights." The Witenagemot, undoubtedly, was

originally a universal assembly of the tribe in question. But as

the tribes got amalgamated, were associated together, or at least

localized instead of wandering about, and particularly when they got

localized in England--where before they had been but a roaming people

on account of their struggles with the Britons--the necessity of

greater organization probably became obvious to them at once, and the

Witenagemot readily assumed a somewhat more formal form; and that

resulted in representation. For we are talking of early England;

that is, of the eastern half of what is now England, the Saxon part;

obviously you couldn't put all the members even of East Anglia in one

hall or in one field to discuss laws, so they invented representation.

All the authorities appear to be agreed that there is no prototype

for what seems to us such a very simple thing as representation,

representative government, among the Greeks or the Romans, or any

of the older civilizations of which we have knowledge. It is very

surprising that it is so, and I am always expecting that some one will

discover, either in the Achaian League or somewhere, that it is not

so, that there is a prototype; but there doesn't seem to be any

regular system of representative government until you get to

Anglo-Saxon peoples. So that was the second stage of the Witenagemot,

and then it properly begins to be called the Great Assembly or

Council of the people. This representative assembly was then not only

legislative, it was also executive, to some extent, and entirely

judicial; for we are a thousand years before the notion of the

threefold division of government has occurred to any one. The early

Saxon Witenagemot, as later the Norman kings tried to, did unite all

three functions in themselves. Their main function was judicial; for

the reason that there was very little notion as yet of _legislation_,

in a people or tribe whose simple customs and simple property demanded

very few laws, where the first remedy for any man for any attack on

his family or property was the remedy of his own good, right hand.

When you really only got into a lawsuit, at least as concerning

property, as a result of a killing of somebody or other, albeit in

defence of one's own chattels, it is obvious that there need not be

much legislation; the laws were too well known, the unwritten law too

well enforced. It probably would have surprised the early Englishman

if he had been told that either he or anybody else didn't _know_ the

law--still more that there was ever any need for any parliament or

assembly to tell him what it was. They all knew the law, and they all

knew that they knew the law, and the law was a thing that they knew as

naturally as they knew fishing and hunting. They had grown up into it.

It never occurred to them as an outside thing.

[Footnote 1: Gneist, "The English Parliament," and Skottowe, "History

of Parliament," perhaps best summarize this view.]

So it has been found that where you take children, modern children,

at least boys who are sons of educated parents, and put them in large

masses by themselves, they will, without apparently any reading,

rapidly invent a notion of law; that is, they will invent a certain

set of customs which are the same thing to them as law, and which

indeed are the same as law. They have tried in Johns Hopkins

University experiments among children, to leave them entirely alone,

without any instruction, and it is quite singular how soon customs

will grow up, and it is also quite singular and a thing that always

surprises the socialist and communist, that about the earliest concept

at which they _will_ arrive is that of private property! They will

soon get a notion that one child owns a stick, or toy, or seat,

and the others must respect that property. This I merely use as an

illustration to show how simple the notion of law was among our

ancestors in England fifteen hundred years ago, and how it had grown

up with them, of course, from many centuries, but in much the same way

that the notion of custom or law grows up among children. The English

had acquired naturally, but with the tradition of centuries, the

notion of law a _sexisting_; and that brings us to the next point.

Here again we are so confused with our modern notions of law that it

is very important not to be misled by them at the beginning. I am

quite sure that all the American people when they think of law in

the sense I am now speaking of, even when they are not thinking

necessarily of statute law, do mean, nevertheless, a law which is

enforced by somebody with power, somebody with a big stick. They

mean a law, an ordinance, an order or dictate addressed to them by

a sovereign, or by at least a power of some sort; and they mean an

ordinance which if they break they are going to suffer for, either in

person or in property. In other words, they have a notion of law as a

written command addressed by the sovereign to the subject, or at least

by one of the departments of government to the citizen. Now, that, I

must caution you, is in the first place rather a modern notion of law,

quite modern in England; it is really Roman, and wasn't law as it was

understood by our Anglo-Saxon ancestors. He didn't think of law as

a thing written, addressed to him by the king. Neither did he

necessarily think of it as a thing which had any definite punishment

attached or any code attached, any _sanction_, as we call it, or thing

which enforces the law; a penalty, or fine, or imprisonment. There are

just as good "sanctions" for law outside of the sanctions that our

people usually think of as there are inside of them; and often very

much better. For instance, the sanction of a strong custom. Take any

example you like; there are many States where marriage between blacks

and whites is not made unlawful, but where practically it is made

tremendously unlawful by the force of public opinion. Take the case of

debts of honor, so-called, debts of gambling; they are paid far more

universally than ordinary commercial debts, even by the same people;

but there is no _law_ enforcing them--there is no _sanction_ for the

collection of gambling debts. And take any custom that grows up. We

know how strong our customs in college are. Take the mere custom of a

club table; no one dares or ventures to supplant the members at that

table. That kind of sanction is just as good a law as a law made

by statute and imposing five or ten dollars penalty or a week's

imprisonment. And judges or juries recognize those things as laws,

just as much as they do statute laws; when all other laws are lacking,

our courts will ask what is the "custom of the trade." These be laws;

and are often better enforced than the statute law; the rules of the

New York Stock Exchange are better enforced than the laws of the State

legislature. Now all our early Anglo-Saxon law was law of that kind.

And it was not written down for a great many centuries, and even after

being first written it wasn't usual to affix any _penalty_; they were

mere customs, but of an iron-bound nature--customs that were followed

far more devoutly than the masses of our people follow any of our

written laws to-day. And their "sanction" was twofold: In the first

place, the sanction I have mentioned, universal custom, social

ostracism for breach. A second and very obvious sanction, that if you

do a thing that I don't like and think is against the law, I am going

to knock you down or kill you if I can! That was a sanction, and a

perfectly good one; and the question that arose, therefore, was not at

all as to penalty for the law-breaker; it was whether there should be

a penalty for the law-breaker's being killed. That is the reason they

didn't have to have any penalty! In those days if there was a custom

that a certain tribe had a certain pasture, and a man of another tribe

pastured his cattle in that pasture, the first man would go to him and

they would have a fight, and if he killed him he would be, as we say,

arrested; then the matter would be inquired into by the kin of the

murdered man or neighbors, and if the killer could prove that the

murdered man had committed a breach of the law, he went off scot

free--so, as a matter of fact he would to-day, if it were justifiable

homicide. In other words, it was a question of whether it was

justifiable homicide; and that brought in the question what the

law was, and it was usually only in that way. For the law was but

universal custom, and that custom had no _sanction_; but for breach

of the custom anybody could make personal attack, or combine with his

friends to make attack, on the person that committed the breach, and

then, when the matter was taken up by the members of both tribes, and

finally by the Witenagemot as a judicial court, the question was, what

the law was; and if it was proved, for instance, that the law was that

there _was_ private property in that pasture belonging to the man who

committed the murder he went off scot free. That was the working of

the old Anglo-Saxon law, and it was a great many centuries before the

notion of law changed in their minds from that. And this "unwritten

law" perdures in the minds of many of the people to-day.

So it was that the Witenagemot--this Great Council of the realm--was

primarily judicial, in the first instance always judicial; that is, it

never made new laws. It got together to try people for the breach of

law; and that incidentally brought up the validity of the old law, and

then decided whether old law was valid or not. In a sense, therefore,

you see they told what the law was, they announced it; but they never

supposed they were making new laws. That was the last thing they

intended to do, and the last thing the people would have stood, had

they tried it.

So much for the growth of law, the origin of Anglo-Saxon law, as we

understand it, and for representative government, and for the origin

of Parliament. I doubt if there was any giving of new law, anything

that we should call _legislation_, made by the English Parliament,

then called the Witenagemot, before the Norman Conquest. I have never

been able to find any. You find occasional announcements that the men

of Kent "shall have their liberties as they used to," and perhaps

there will be a statement of what those liberties were, in brief; but

it is always clearly meant that they are stating the law as already

existing. How, then, did they invent a legislature?

The Roman law, the whole Roman system, as you know, was absolutely

distinct, and distinct in two great principles which have lasted down

really into modern times, and still divide Continental countries

from Anglo-Saxon countries. What I call the first great principle is

universal law--the principle that no officer of government, no high

official, no general, no magistrate, no anybody, can do anything

against the law without being just as liable, if he infringed upon a

subject's liberty, as the most humble citizen. That is a notion which

does not yet exist on the Continent or any part of the world except

England and the United States, and the countries or colonies copying

after them. In Germany, for instance, Dr. Gierke tells me it exists

only partially and by a modern constitution. This is the first great

difference; and the second one is the notion that laws are made by the

people only, with or without representative government. The notion

of law as a custom is Teutonic; but on the Continent the Germans

abandoned it. The Roman law was always law more as we moderns think of

it; it was an _order_, addressed by the sovereign, or at least by a

political superior, to a subject or to a political inferior; addressed

in the form of definite writing, that is to say, a statute, and with a

sanction, that is to say, a penalty, a threat as to what the sovereign

will do if the subject does not obey. That is the universal notion

of Roman law, and it has so far affected certain English writers on

jurisprudence that I feel almost one should be warned against them.

Not that their side isn't arguable, but the weight of English history

seems the other way. Austin, for instance, was so much impressed with

the notion of law as an order from the sovereign to an inferior that

he practically, even when considering the English Constitution, adopts

that notion of law, and therefore arrives to some conclusions, as it

seems to me, unwarranted, and certainly omits to note a great many

things that would be noted had he kept clearly the Anglo-Saxon theory

of law in mind.

Now the Normans, mind you, had purely Roman law. While they were in

Normandy, being in France, they had imbibed or adopted Roman notions

of law, perhaps because they were then first civilized. They had lost

their old Saxon notions, if they had any, for they were, after all,

of the same _race_ as the Saxons. Nevertheless, when they conquered

England they brought just as much the notion of the Roman law into

England as if they had been Caesar's legions. And that fact must

always be borne in mind, and that led to centuries of conflict in the

making of English constitutional law. The first thing, of course, that

they tried to do, that the Norman kings tried to do, was to use law in

the Roman way; that is, to make the law themselves, from the king. For

that was another consequence of the Roman law, that not only was it an

order by the sovereign power, but that this sovereign power was not in

theory a legislature, as it is with us to-day, but the sovereign; in

France and the Continental countries laws were made in theory and in

practice by the king. So the Normans came over with the Roman notion,

in the first place, as to what law was, that it was a written, newly

made order of a sovereign, not a thing that had grown up and was part

of the lives and customs of the people, but a thing made out of hand

by the king; and, secondly, that it was made by the king and not by

any legislature. And the first two or three centuries of English

parliamentary history were mainly taken up, in the English Parliament,

so far as it concerns the subject of our course here, in the contest

between Parliament and the king as to who should make law and what

law was. It took more than one century for the Parliament, after the

Norman Conquest, to revive as a Parliament at all; then when it

did finally get together it took two or three centuries before it

established the principle that it had anything to do with the making

of law. The Norman kings regarded the Parliament as a mere method of

getting money from the people, hardly even as a Council when they

sought for popular support; and yet it was through the fact that they

so regarded Parliament that Parliament was enabled ultimately to

acquire the law-making or the legislative power which exists in all

our legislatures to-day. The king, in those days, derived his revenue

mainly from his own land. It was not necessary for the government to

have any revenue except for what we should call the king's private

purse. What was wanted for public expense was for two or three

well-recognized purposes, all purposes of defence. The old English

taxation system was in a sense no system. There wasn't any such thing

as taxation. There was the "threefold necessity" as it was called. It

was necessary for the king to have money, horses, grain, supplies,

etc., to defend the kingdom, and to build forts, and to maintain

bridges or defensive works; and that was the only object of taxation

in those times. Those were the only "aids"--they were called

"aids"--those were the only aids recognized. The first word for tax is

an "_aid_", granted voluntarily, in theory at least, by the barons to

the king, and for these three purposes only. The king's private purse

was easily made up by the enormous land he held himself. Even to-day

the crown is probably the largest land-owner in the kingdom, but at

the time of the Conquest, and for many years afterward, he certainly

owned an hundredfold as much, and that gave him enough revenue for his

purse; of course, in those days, money for such things as education,

highways, police, etc., was entirely out of their mind. They were

not as yet in that state of civilization. So the king got along

well enough for his own income with the land he owned himself as

proprietor. But very soon after the Norman Conquest the Norman kings

began to want more money. Nominally, of course, they always said they

wanted it for the defence of the realm. Then they wanted it, very

soon, for crusades; lastly, for their own favorites. They spent an

enormous amount of money on crusades and in the French wars; later

they began to maintain--always abroad--what we should call standing

armies, and they needed money for all those purposes. And money could

yet be only got from the barons, the nobility, or at least the landed

gentry, because the people, the agricultural laborers or serfs,

villeins, owned no land. Knights and barons paid part of the tax by

furnishing armed men, but still, as civilization increased, there was

a growing demand on the part of the Norman kings for money. Now

this money could be got only from the barons, and under the

Constitution--and here we first have to use that phrase--it could only

be got from the barons by their consent. That is, the great barons of

the realm had always given these aids in theory voluntarily. The king

got them together, told them what he wanted, and they granted it; but

still it had to come from them, and in the desire to get money the

Norman kings first called together the Great Council, first consulted

the parliament which afterward became their master. They made a

legislature by calling them together, although only for this purpose,

to give them the power of getting more money; but when the Great

Council was once together and the kings began to be more and more

grasping in their demands for money, the barons naturally wanted

something on their side, and they would say to them: "Well, yes--you

shall have this aid--we will vote you this tax--but the men of England

must have such and such a law as they used to under Anglo-Saxon

times." And they pretty soon got to using the word "people";

the "people" must have "the liberties they had under Edward the

Confessor"; and time after time they would wring from a Norman king a

charter, or a concession, to either the whole realm or a certain part

of the realm, of all the liberties and laws and customs that they

had under the old Saxon domination--and that ultimately resulted in

bringing the whole free English law back. Thus, early law was custom;

Anglo-Saxon law was _free_ custom; the English lost it under the

Conquest; and they got it back because the first Norman kings had to

call the council together, which grew into Parliament, which then,

in voting their aids or taxes, demanded their "old liberties"; and

finally, after getting Magna Charta, after getting all their old Saxon

liberties back, by easy transition, they began to say: "We would make

certain regulations, ordinances, laws of our own"; though we have not

yet got to the time where the notion of making _new_ law, as a statute

is now understood, existed.

II

EARLY ENGLISH LEGISLATION AND MAGNA CHARTA

Parliament began avowedly to make new laws in the thirteenth century;

but the number of such laws concerning private relations--private

civil law--remained, for centuries, small. You could digest them all

into a book of thirty or forty pages. And even to Charles the First

all the statutes of the realm fill but five volumes. The legislation

under Cromwell was all repealed; but the bulk, both under him and

after, was far greater. For legislation seems to be considered a

democratic idea; "judge-made law" to be thought aristocratic. And so

in our republic; especially as, during the Revolution, the sole power

was vested in our legislative bodies, and we tried to cover a still

wider field, with democratic legislatures dominated by radicals. Thus

at first the American people got the notion of law-making; of the

making of new law, by legislatures, frequently elected; and in that

most radical period of all, from about 1830 to 1860, the time of

"isms" and reforms--full of people who wanted to legislate and make

the world good by law, with a chance to work in thirty different

States--the result has been that the bulk of legislation in this

country, in the first half of the last century, is probably one

thousandfold the entire law-making of England for the five centuries

preceding. And we have by no means got over it yet; probably the

output of legislation in this country to-day is as great as it ever

was. If any citizen thinks that anything is wrong, he, or she (as it

is almost more likely to be), rushes to some legislature to get a new

law passed. Absolutely different is this idea from the old English

notion of law as something already existing. They have forgotten

that completely, and have the modern American notion of law, as

a ready-made thing, a thing made to-day to meet the emergency of

to-morrow. They have gotten over the notion that any parliament, or

legislature, or sovereign, should only _sign_ the law--and I say sign

advisedly because he doesn't enact it, doesn't create it, but signs a

written statement of law already existing; all idea that it should be

justified by custom, experiment, has been forgotten. And here is the

need and the value of this our study; for the changes that are being

made by new legislation in this country are probably more important

to-day than anything that is being done by the executive or the

judiciary--the other two departments of the government.

But before coming down to our great mass of legislation here it will

be wise to consider the early English legislation, especially that

part which is alive to-day, or which might be alive to-day. I

mentioned one moment ago thirty pages as possibly containing the bulk

of it. I once attempted to make an abstract of such legislation in

early England as is significant to us to-day in this country;[1] not

the merely political legislation, for ours is a sociological study.

We are concerned with those statutes which affect private citizens,

individual rights, men and women in their lives and businesses; not

matters of state, of the king and the commons, or the constitution of

government. Except incidentally, we shall not go into executive or

political questions, but the sociological--I wish there were some

simpler word for it--let us say, the _human_ legislation; legislation

that concerns not the government, the king, or the state, but each man

in his relations to every other; that deals with property, marriage,

divorce, private rights, labor, the corporations, combinations,

trusts, taxation, rates, police power, and the other great questions

of the day, and indeed of all time.

[Footnote 1: See "Federal and State Constitutions," book II, chap. 2.]

Had it not been for the Conquest, it would hardly have been necessary

to have enacted the legislation of the first two or three centuries at

all. Its object mainly was political, that is, to enforce Saxon law

from Norman kings. No change was made, nothing new was added. There

was, however, a little early Saxon legislation before the Conquest.

The best compilation is contained in Stubbs's "Selected Charters." He

says that the earliest English written laws contained amendments of

older unwritten customs, or qualifications of those customs, when they

were gradually wearing out of popular recollection. Such documents are

generally obscure. They require for their elucidation a knowledge

of the customs they were intended to amend. That is as I told you:

everybody was supposed to know the law, and early written statutes

were either mere compilations of already existing law, slight

modifications of them, or else in the nature of imposing various

penalties--all of which assume that you know the law already. When

they attempted codification, which they did about twice before the

Conquest (especially under Edward the Confessor, for that reason he is

called the Father of English law, the English Justinian, because he

was enough of a civilian to understand what a code was), King Edward

made the attempt to get a certain amount of law written out; but even

that would be very unintelligible if you tried to read it, for he

assumed that one knew it all already, and it also is mainly in the

nature of imposing penalties, not stating the law as it was. However,

that is called the first English code. All the Saxon laws Dr. Stubbs

could find fill only twenty-two pages of his small book; and he says

that English law, from its first to its latest phase, has never

possessed an authoritative, constructive, systematic, or approximately

exhaustive statement, such as was attempted by the great founders of

the civil or Continental law, by Justinian or by Napoleon Bonaparte.

Now this is true, even to-day, of our English and our American law.

That is, the great bulk of the law that is administered in our courts

is not "written," it is not in any code. There are, of course,

text-books on the subject, but they are of no binding authority. It

resides in the learning of the judges. It is what is called court-made

law--"_jus dicere_," not "_jus dare_." Our judges are still supposed

to tell what the law is, and they sometimes, as the common law is a

very elastic thing, have to make new law. That is, if the precise case

isn't covered by any previous decision or by any statute, the judge

or the court will say what the common law ought to be when applied

to that state of facts. So our law is a continually growing law, and

largely made still in the old Saxon way, by custom and the judges, and

still under the theory that the common law is an existing thing; that

the law exists and the judge only expounds. We have never lost sight

of that theory.

These early Anglo-Saxon laws mostly concern only matters of procedure

for the courts, or the scale of punishment. As they assume a knowledge

of existing law, they are often hard to understand. Here are some of

the laws of Wessex:

A.D. 690. WESSEX KING INI.

CAP. 11. "If any one sell his own countryman, bond or free, though

he be guilty, over sea, let him pay for him according to his

'wer.'"

As to "wer." Now there were slaves in England in those days; at the

time of the Conquest the Domesday Book reports twenty-five thousand.

_Slaves_, I mean; not the unfree agricultural laborers, they were in a

higher class, but the regularly bound _slaves_, who were descendants,

either of the early British inhabitants or of the Saxons themselves,

who had been punished in the courts and had been sentenced into

slavery, or men who had voluntarily sold themselves into slavery. For

under early Saxon law a man could sell his child into slavery if the

child were under seven years old, and above fourteen the child could

sell himself. This refers, of course, to that; it is really a kind of

predecessor of our Thirteenth Amendment; that is, it forbids slavery;

it forbids making new slaves. The word "wer" is the word we have in

"wer-wolf," meaning blood; for instance, "weregild" is a man's blood

money. Every man had a price from the king down; if a man killed the

king he had to pay, we will say, fifty thousand pounds; if a thane,

it might be one or two thousand; if an ordinary freeman, one hundred

pounds, and so on.

CAP. 36. "Let him who takes a thief, or to whom one taken is

given, and he then lets him go, or conceals the theft, pay for

the thief according to his 'wer.' If he be an ealdorman, let him

forfeit his shire, unless the king is willing to be merciful to

him."

Now the earliest direct legislation about personal property in a

statute is as late as 1100; but this early Saxon law was a recognition

of personal property, because a man cannot steal a thing unless there

is property. This section, therefore, implies property in personalty;

because a man cannot steal land; but it never occurred to them to pass

a law saying that there _shall be_ private property, because that was

the unwritten law that they were all supposed to know.

A.D. 890. WESSEX. ALFRED.

CAP. 27. "If a man, kinless of paternal relatives, fight and slay

a man, and then if he have maternal relatives, let them pay a

third of the 'wer'; his guild-brethren a third part; for a

third let him flee. If he have no maternal relatives, let his

guild-brethren pay half, for half let him flee."

CAP. 28. "If a man kill a man thus circumstanced, if he have

no relatives, let half be paid to the king, half to his

guild-brethren."

It is very hard for us to understand what that means. One would

infer that the weregild was only paid by a man with relatives on his

father's side. It doesn't say that, but that is the inference. We

shall have plenty to say about the guilds later--the historical

predecessors of the modern trades-unions. We here find the word

_guild_ recognized and spoken of in the law as early as 890.

A.D. 920. WESSEX. EDWARD.

"2. And if a ceorl throve, so that had fully five hides of his

own land, church and kitchen, bell-house and burh-gate-seat,

and special duty in the king's hall, then was he thenceforth of

thegn-right worthy.

"6. And if a merchant throve, so that he fared thrice over the

wide sea by his own means, then was he thenceforth of thegn-right

worthy."

Worldly success has thus always been the foundation of English

nobility.

Then there is a good deal about how much you have to pay for a churl,

and how much for an earl, and so on, leaving out only the slaves; for

all the free people of England in Saxon times were divided into earls

and churls; that is, noblemen and agricultural laborers or yeomanry;

these were the two estates besides the church, always a class by

itself. Later there grew up the thanes, who were merely large

landlords; the law became that a man that had five hides of land, five

or six hundred acres, with a farm, should by the mere fact of having

that land become a thane, an earl. That method of ennobling a man by

land got to be a way, at that time the only way, by which a churl or a

villein could become a nobleman or even be emancipated. Exactly as now

with our American Indians; when an Indian gets one hundred and sixty

acres given to him in severalty he becomes, under the Dawes Act, a

citizen of the United States. Later there grew up emancipation by the

guilds. The word _guild_ meant the members of a certain handicraft,

but that was rather the secondary meaning; it originally meant the

freemen of the town. But the freemen of the towns were made up of

the freemen of the guilds. No one could become a member of the guild

without going through certain ceremonies, much as he would now to join

a trades-union; and no one could become a freeman of the town unless

he was a freeman of the guild. The law grew to be, however, that if a

man succeeded in staying in a town for a year and a day, without being

turned out, plying his handicraft, he became by that mere fact a

freeman of the town; for the citizens of towns established their

liberty, both personal and political, far earlier than the dwellers on

agricultural land.

959-975-EDGAR.

CAP. 1. "_Secular Ordinance_. Now this is the secular ordinance

which I will that it be held. This, then, is first what I will:

that every man be worthy of folk-right, as well poor as rich;

and that righteous dooms be judged to him; and let there be such

remission in the 'bot' as may be becoming before God and tolerable

before the world."

1016. CANUTE.

CAP. 71. "And if any one depart this life intestate, be it through

his neglect, be it through sudden death; then let not the lord

draw more from his property than his lawful heriot. And according

to his direction, let the property be distributed very justly to

the wife and children and relations, to every one according to the

degree that belongs to him."

CAP. 81. "And I will that every man be entitled to his hunting in

wood and in field, on his own possession. And let every one forego

my hunting: take notice where I will have it untrespaesed on under

penalty of the full 'wite.'"

But even the great code of Edward the Confessor has, for the most

part, to do only with political divisions, what shall be a shire, what

a parish, etc., and certain technical matters that have now grown

obsolete. So we may conclude with the statement, substantially

accurate, that there was practically no _new_ legislation, no

constructive legislation under the Saxons; their social law was all

unwritten.

And Parliament did not begin by being a law-making body. Its

legislative functions were not very active, as they were confined to

declaring what the law was; more important were its executive and

judicial functions. In modern English government, particularly in our

own, one of the basic principles is that of the three departments,

executive, legislative, and judicial; the Norman or Roman theory

rather reposed all power in one; that is, in the sovereign, commonly,

of course, the king, the others being theoretically his advisers or

servants. In England, to-day, the real sovereign is the Parliament;

the merest shadow of sovereignty is left to the executive, the king,

and none whatever given the judicial branch. In this country we

preserve the three branches distinct, though none, not all three

together, are sovereign; it is the people who are that. And each

department is of equal dignity; although at one period there was a

certain amount of public complaint that Congress was usurping more

power than belongs to it, and recently that power was being usurped by

the president, there has hardly been (except from Mr. Gompers and Mr.

Hearst) any complaint that power is usurped by the _judicial_ branch,

however unpopular its decisions. But in England there is no pretence

of maintaining the three branches uniform either in importance or in

power. Starting with the Great Council, which had originally only a

certain amount of executive power and a great deal of judicial power,

they have retained and added to the former, while practically giving

up the latter; and, moreover, they have divided into the two houses,

the House of Lords and the House of Commons, with a division of

sovereignty between them, the Commons, of course, getting the lion's

share. The only judicial power substantially now remaining in the

English Parliament is the power of impeachment, which is rarely

exercised in England, and the appellate jurisdiction of the House

of Lords, of the "law" lords, that is, those peers who held legal

offices. On the other hand the legislative function of Parliament,

which began merely in the way of saying what the law was, has

enormously developed, and still more so the executive. Thus the

legislative branch of the three divisions in the English government

has increased out of all proportion to both the others, having now all

the legislative power and most of the executive. And legislatively it

is omnipotent; it is confined by no constitution; even the king cannot

withhold his consent. Parliament can make any law, although against

what _was_ the Constitution; the Constitution may be modified by a

simple statute. So their legislative function is infinite; and their

executive function has, in substance, grown very large, because the

British government is carried on by the cabinet, which is practically

a committee of the House of Commons. But of the judicial function,

which was the principal function of the Great Council at the time

of the Conquest, hardly a shred remains. It is the history of all

countries that people are not jealous of the judicial power, while

they are extremely anxious to seize the legislative and executive.

With us, however, we are supposed to have all three functions

co-ordinate and in good working activity. But in both countries, money

bills, bills imposing taxes, are the function of the lower house. That

principle grew historically from the principle that all taxation must

be voted by the people, directly or indirectly; must be with the

common consent and for the common benefit. That principle was

established by the House of Commons, and consequently they arrogated

to themselves that part of the legislative power. That principle we

have retained in our Federal Constitution, and in most of our State

constitutions; all of which have the double house.

The first functions of Parliament were restricted to voting taxes.

The king called the barons together merely to get "aids," and they

wouldn't give them until he recognized what they chose to call the old

law of England, always a pre-existing law. It was still a long time

before there was constructive legislation. Just as, before the

Conquest, in the seventh century, we find it said of the law of

Wihtred: "Then the great lords with the consent of all came to a

resolution upon these ordinances and added them to the customary

laws of the men of Kent"; and, in the time of King Alfred: "I, then,

Alfred, king, gathered these [laws] together, and commanded many of

those to be written which our forefathers held, those which to me

seemed good; and many of those which seemed to me not good I rejected

them, by the counsel of my 'witan,' and they then said that it seemed

good to them all to be holden";[1] so, after the Conquest, every

Norman king was made on his coronation oath to promise this, the law

of Edward the Confessor, until Magna Charta; after that they promised

to respect Magna Charta instead, which was thus reissued or confirmed

thirty-two times in the eighty-two years which intervened between

Runnymede and the final Confirmation of Charters under Edward I. Thus,

William the Conqueror himself, in his charter to the city of London,

says, in Anglo-Saxon: "_And I do you to wit that I will that ye two be

worthy of all the laws that ye were worthy of in King Edward's day_."

So the Domesday Book records "_the customs_," that is to say,

the laws, of various towns and counties; these bodies of customs

invariably containing a mere list of penalties for the breach of the

established law; while later charters usually give the inhabitants of

a town all the customs and free privileges enjoyed by the citizens of

London.

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

But after the Conquest laws could only be enacted with the concurrence

of the king; and the phrase was, and is still, in form, that "the

king wills it"--_Le Roy le veult_. Nevertheless, Parliament usually

originated laws. The early Norman kings cared nothing about

legislation; their sole desire was to get money from the people. For

two centuries, therefore, Parliament was occupied only with laws

recognizing the old Anglo-Saxon laws previously existing, or laws

removing abuses of the royal power; and the desire of the king to tax

the people was used as the lever to get him to assent to these laws.

With the usual sensible indifference of the English race to mere

matters of form, they allowed the Norman kings to go on declaring the

laws and signing them as if they were made only by the crown, which

was the Norman theory--not caring for the shadow, if they could get

the substance. Thus they established, in the first two or three

centuries, the right to force legislation on the king, and they did it

by the instrument of the taxation power. For taxation must be "by the

common consent of the realm"; no taxation without representation, as

the Declaration of Independence puts it, is probably the earliest

principle of the English Constitution; and it is most significant to

the student of the constitutional law, a most necessary reminder to

those who do not value our Constitution, that it was the departure

by George III from this very earliest of English constitutional

principles that caused the loss of his American empire.

This was six hundred years old, therefore, at the time of our

Revolution. Except those two principles, taxation by common consent

and taxation for the common benefit--which latter was not finally

established until two hundred years later (that is, it was put in the

first Magna Charta, John's, and then quietly dropped out by Henry II,

and kept out of the charter for nearly one hundred years),--we have to

come down to the year 1100 before we find the first _sociological_

statute. "Henry I called another convention of all the estates of the

realm to sit in his royal palace at London ... the prohibiting the

priests the use of their wives and concubines was considered, and the

bishops and clergy granted to the king the correction of them for that

offence; by which means he raised vast sums of money compounding with

the priests...."[1]

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

In 1 Henry, cap. VII, is another recognition of personal property--it

says that at a man's death it is to be divided between his widow and

his heirs. Now that may seem commonplace enough; but it is interesting

to note, as in the law, personal property did not come first; property

in land was many centuries earlier. And this suggests the legal basis

and present tendency of the law of property. "Property exists only

by the law"; and extreme socialists say that all private property is

robbery. No law, no property; this is true. Property is an artificial

thing. It is a creation of law. In other words, where there is now no

law except statute, it is the creation of statute. That may sound a

commonplace, but is not, when you remember that socialists, who are

attacking property, do so on precisely that ground. They say it is a

fictitious thing, it is a matter of expediency, it is a matter which

we can recognize or not, as we like; "no law, no property," and they

ask us to consider whether, on the whole, it is a good thing to have

any property at all, or whether the state had not better own all the

property. But our Federal and State constitutions guard it expressly.

Thus, property is the very earliest legal concept expressed in

statutes, just as it is perhaps the earliest notion that gets into a

child's mind. And ownership of land preceded _personal_ property--for

the perfectly simple reason that there was very little personal

property until comparatively late in civilization, and for the other

more significant reason that an Anglo-Saxon freeman didn't bother with

law when he had his good right hand. In the fifth, sixth, and seventh

centuries, when we were barbarous tribes, a man's personal property

consisted chiefly in his spear, his weapons, or his clothes; enemies

were not very apt to take them, and if they did, he was prepared to

defend them. Then, cattle, in those days, belonged to the tribe and

not to the individual. So, I should fancy, of ships--that is, galleys,

not private "coracles," the earliest British boats. Consequently there

wasn't any need for a law as to personal property. What little there

was could be easily defended. But with land it was different. Property

in land was recognized both among the English and, of course, with the

Normans; and in ways so similar that it was very easy for the Normans

to impose the feudal system upon England. There had been no feudal

system before the Norman Conquest; there were then three kinds of

land: the rare and exceptional _individual_ land, owned by one

man--always a freeman, not a villein or slave--and this was very small

in extent, limited to a very few acres around a man's home. Most of

the land was held in common; the folgland, so-called, which belonged

to the tribe; the land on which the cows of the village were pastured.

And finally there was the public, or unappropriated, or waste land.

Most of this last was seized, after the Conquest, by the big feudal

lords. For they came in with their feudal system; and the feudal

system recognized no absolute ownership in individuals. Under it there

were also three kinds of land, and much the same as the Saxon, only

the names were different: there was the crown land--now I am speaking

English and not Norman-French--which belonged to the king and which he

probably let out most profitably; there was the manor, or the feudal

land, which was owned by the great lords, and was not let by the king

directly; and then there was the vacant land, the waste land, which

was in a sense unappropriated. Now all the Norman kings had to do was

to bring the feudal system over the Saxon law of land, so that the

tribal land remained the only private land--that which is called "boke

land." This is land such as all our land is to-day, except land like

our Cambridge Common. With a very few exceptions, all our land is

"boke" land--freehold land. Then there was the public land; but that

very soon was taken by the lords and let out to their inferiors; this

was the great bulk of land in England after the Norman Conquest.

Lastly again there was the crown land, out of which the king got his

revenue. As something like this threefold system of land existed

before the Conquest, a subtle change to the feudal system was

comparatively easy by a mere change of name.

In the same year--1100--is the Charter of "Liberties" of Henry I. It

restores the laws of Edward the Confessor "with the amendments made by

my father with the counsel of his barons." It promises in the first

section relief to the kingdom of England from all the evil customs

whereby it had lately been oppressed, and finally returns to the

people the laws of Edward the Confessor, "with such emendations as my

father made with the consent of his barons."[1] In his charter to the

citizens of London[2] he promises general freedom from feudal taxes

and impositions, from dane-geld and from the fine for the murder of

a Norman; and the Charter of Liberties issued by Henry II in 1154

confirms their "liberties and free customs to all men in the

kingdom."[3] From this dates the equality of Englishmen before the

law, commons as well as barons. Henry II was the first Norman king who

had the old Saxon blood, and therefore he was looked forward to with a

great deal of enthusiasm by the people of England. For although it is

only one hundred years after the Conquest, the Normans and the Saxons

had pretty well fused, and the Normans, who were inferior in number,

had got thoroughly imbued with the free notion of Anglo-Saxon law. So

they got this charter from him; but there is no legislation to concern

us in it, it is only political. It has a great deal to do with the

church, and with what the king will not do; it binds him, but it does

not state any law directly.

[Footnote 1: Stubbs's "Charters," p. 101 (clause 13).]

[Footnote 2: _Ibid_., p. 108.]

[Footnote 3: _Ibid_., p. 135.]

There is further a continued evidence of the efforts of the people to

restore the common law of England as against the king's law or Roman

law, or later against the law of the church, also a kind of Roman law

known as canon law; and later still against the law of the king's

chancellor, what we should now call chancery jurisdiction; for the

jealousy of chancery procedure was quite as great in the twelfth

century as it is with the most radical labor leaders to-day; but of

this later on.

In 1159 they succeeded in doing away with the Norman method of trying

cases by battle and the Saxon method of trying by oath, and by the

machinery of the Norman Great Assize introduced again trial by jury.

For this in itself is probably an old Saxon institution. And in 1164

came the great Constitutions of Clarendon, the principal object of

which was to free the people from the church law and subject

the priests to the ordinary common law as in times before the

Conquest--for now, "as the influence of the Italian lawyers

increased,"[1] all the priests and clergy were above it. It was the

first great statute which clearly subjected the church--which, of

course, was the Church of Rome--to the common secular law. There was a

vast jurisdiction of church law ("Doctors commons" courts lasted until

a generation ago in England); some of it still remains. But in these

early days all matters concerning marriage, divorce, guardianship of

children, ownership of property after death, belonged to church law.

It is hard to see why, except that the mediaeval church arrogated

to itself anything that concerned _sin_ in any way--anything that

concerned the relation of the sexes, that concerned the Holy

Sacraments, and marriage is a sacrament. Consequently the mediaeval

church claimed that it had jurisdiction over all marriage, and over

all divorce; and also took jurisdiction over a man's children at his

death, and over his property, now exercised by our courts of probate.

This they got out of the notion that when a man was dead, there was

something, in a sense, that went beyond this life in looking after his

property and children. And down until twenty or thirty years ago all

jurisdiction in England in matters which concerned a man's property,

after death, belonged to the church courts and their successors. The

church law was based on the Roman law, but was called _canon_ law,

the technical word, because it is the "canons" of the church. It is a

convenient term to distinguish it from the ordinary civil law of the

Continent. So that the Constitutions of Clarendon began what was

completed only under Henry VIII; they very clearly asserted the claim

of the king to be supreme over the Church of England. The Bishop of

Rome, as Henry VIII called the pope, had no more power than any other

foreign bishop.[2] There still remained the institution known as

benefit of clergy, by which any priest, or later any clerk or cleric

(which word came to mean any one who could read and write) could

get off of any criminal accusation, at first even murder, by simply

pleading his clergy; in which case the worst that could happen to him

was that he was branded in the right hand. But the Constitutions of

Clarendon were a great step toward civil liberty. Taken by us in 1164,

it was followed in so neighboring a country as France only so late as

a few years ago. The priests, however, still managed to retain their

jurisdiction over offences among themselves, as well as over marriage,

the relation between the sexes, slander, usury, and wills--of matters

relating to the sacraments, and of sins.

[Footnote 1: Stubbs, p. 136.]

[Footnote 2: Yet "Peter's Pence" were initiated by Ini, King of the

West Saxons, about 690!]

Now this is a very interesting matter, and were it borne in mind by

our modern legislators they would escape a good deal of unintelligent

legislation; that is, the distinction between a sin and a crime. A sin

is against the church, or against one's conscience; matter, therefore,

for the priest, or one's spiritual adviser. A crime is an offence

against other men; that is, against the state, in which all are

concerned. Under the intelligent legislation of the twelfth century

all matters which were _sins_, which concerned the conscience, were

left to the church to prevent or punish. For the same reason usury was

matter for the priest--because it was regarded under the doctrines

of the Bible as a sin. This notion prevailed down to the early

legislation of the colony of Massachusetts, though doubtless many

things which were then considered sins would now be regarded

as crimes, such as bigamy, for instance. The distinction is,

nevertheless, a valid one, and we shall have occasion frequently to

refer to it. We shall find that the defect of much of our modern

legislation--prohibition laws, for instance--is that they attempt to

treat as crimes, as offences against the state, matters which are

merely sins, offences against the conscience or the individual who

commits them.

To-day, the American constitutions all say that a militia is the

natural defence of a state of free men. It is interesting; therefore,

to find, hardly a century after the Norman Conquest. In 1181, the

Assize of Arms, which revived the ancient Saxon "Fyrd," the word for

what we now call militia; and, twenty years before that, "scutage"

replaced military service. To the burdens of the feudal system,

compulsory military service and standing armies, our ancestors

objected from the very beginning. In a sense, scutage was the

beginning of taxation; but it was only a commutation for military

service, much as a man to-day might pay a substitute to go to war in

times of draft. General taxation first appears in 1188 in the famous

Saladin tithe, the first historical instance of the taxation of

personal property as distinct from a feudal burden laid upon land.

The object of this tax was to raise money for the crusade against

the Sultan Saladin. It was followed, five years later, by a tax of

one-fourth of every person's revenue or goods to ransom the king,

Richard I having gone to this crusade against Saladin, and been

captured on his return by his good friend and Christian ally, the

Emperor of the Holy Roman Empire. It is interesting to note that the

worth of the king in those days was considered exactly one-fourth of

the common wealth of England. John was less expensive; but he was not

captured. He levied a tax ten years later of one-seventh part on the

barons, and one-thirteenth on every man.

In 1213 two important things happened. The high-water mark of

domination by the Roman Church is reached when King John surrendered

England to the pope, and took it back as a fief of the pope for a

tribute of one thousand marks. The same year the other early method

of trial of lawsuits was abolished by the Lateran Council--trial by

ordeal. This was the only remaining Saxon method. The Norman trial by

battle had already been superseded by trial by jury; and from this

time on, in practice, no other method than a jury remains, though

trial by battle was not abolished by statute until the nineteenth

century.

And then we come to Magna Charta. The first time it was granted was in

1215 by John, but the charter always quoted is that promulgated ten

years later under Henry III. They were very nearly identical, but the

important omission in the charter of Henry was in regard to "scutage"

("no aid other than the three customary feudal aids shall be imposed

without the common counsel of the kingdom"); that, of course, is the

principle we have discussed above, first put in writing in the charter

of John. The barons claimed it as part of the unwritten law. But Henry

III in his charter cannily dropped it out--which is a trick still

played by legislatures to-day. This Magna Charta was confirmed and

ratified something like thirty times between the time of its adoption

under John and the time it got established so completely that it

wasn't necessary to ratify it any more. There are four sections of

Magna Charta that are most important. Chapter 7, the establishment of

the widow's dower; of no great importance to us except as showing

how early the English law protected married women in their property

rights. Chapter 13 confirmed the liberties and customs of London and

other cities and seaports--which is interesting as showing how early

the notion of free trade prevailed among our ancestors. It gave

rise to an immense deal of commercial law, which has always existed

independent of any act of Parliament. Chapter 17 provided that the

common pleas court--that is, the ordinary trial court--should not

follow the king about, but be held at a place and time certain. That

was the beginning of our legal liberty; because before that the king

used to travel about his realm with his justiciar, as they called his

chief legal officer, and anybody who wanted to have a lawsuit had

to travel around England and get the king to hear his case. But the

uncertainty of such a thing made justice very difficult, so it was a

great step when the leading court of the kingdom was to be held in a

place certain, which was at once established in Westminster. Minor

courts were, of course, later established in various counties, though

usually the old Saxon county or hundred-motes continued to exist.

Chapter 12 is the one relating to scutage, from the word _scutum_,

shield--meaning the service of armed men. Just as, to-day, a man who

does not pay his taxes can in some States work them out on the road,

so conversely in England they very early commuted the necessity of

a knight or land-owner furnishing so many armed men into a money

payment. "The three customary feudal aids" were for the defence of the

kingdom, the building of forts, and the building of bridges--all

the taxes usually imposed upon English citizens in these earliest

times--all other taxation to be only by the Common Council of the

kingdom. This is the first word, council; later, it became "consent";

the word _conseil_ meaning both consent and council. "Council of

England" means, of course, the Great Council. We are still before the

time when the word Parliament was used. Thus Magna Charta expresses it

that there should be no taxation without "the advice" of Parliament,

without legislation; and as Parliament was a representative body, it

is the equivalent of "taxation without representation." This also was

omitted in Henry III's charter, 1217, and only restored under Edward

I in 1297, a most significant omission. And it is also expressed in

early republications of the Great Charter that taxation must be for

the benefit of _all_, "for public purposes only," for the people

and not for a class. On this latter principle of Anglo-American

constitutional law one of our great political parties bases its

objection to the protective tariff, or to bounties; as, for instance,

to the sugar manufacturers; or other modern devices for extorting

wealth from all the people and giving it to the few. All taxation

shall be for the _common_ benefit. Any taxation imposed for the sole

benefit of the land-owning class, for instance, or even for

the manufacturing class, is against the original principles of

constitutional liberty.

Then we come to chapter 39, the great "Liberty" statute. "No freeman

shall be taken or imprisoned or be disseised of his freehold or _his

liberties or his free customs_ [these important words added in 1217]

or be outlawed or exiled or otherwise destroyed but by lawful judgment

of his peers, or by the law of the land." This, the right to law, is

the cornerstone of personal liberty. Any government in any country on

the Continent can seize a man and keep him as long as it likes; it is

only Anglo-Saxons that have an absolute right not to have that happen

to them, and not only are they entitled not to be imprisoned, but

their liberty of free locomotion may not be impeded. An American

citizen has a constitutional right to travel freely through the

whole republic and also not to be excluded therefrom. Punishment by

banishment beyond the four seas was forbidden in very early times in

England. "Disseised of his freehold, of his liberties or his free

customs"--that is the basis of all our modern law of freedom of trade,

against restraint of trade, and the basis on which our actions against

the modern trusts rest; the right to freely engage in any business, to

be protected against monopoly either of the state or brought about

by competitors, to freely make one's own contracts, for labor or

property, to work as long as one chooses, for what wages one wills,

and all the other liberties of labor and trade. "Or be outlawed or

exiled or otherwise destroyed"--that is a broad general phrase for any

interference with a man's property, life, or liberty. "Nor will we go

upon him"--that has been translated in various ways, but it means what

it says; it means that the king won't descend upon a man personally or

with his army; nor will we "send upon him"--a law officer after

him; "but by the lawful judgment of his peers, or by the law of the

land"--that means jury trial, or at least the law of the land, as it

then was; and that phrase, or its later equivalent--due process of

law--is discussed to-day probably in one case out of every ten that

arise in our highest courts. Many books have been written upon it.

To start with, it means that none of these things can be done except

_under law_; that is, except under a lawsuit; except under a process

in a court, having jury trial if it be a civil case, and also

an indictment if it be a criminal case, with all the rights and

consequences that attend a regularly conducted lawsuit. It must be

done by the courts, and not by the executive, not by the mere will of

the king; and, still more important to us to-day, not by legislatures,

not even by Parliament. "We will sell to no man, we will deny or delay

to no man, either right or justice," needs no explanation; it is

equality before the law, repeated in our own Fourteenth Amendment.

Lastly, we have in cap. 41: "Merchants shall have safe conduct in

England, subject only to the ancient and allowed customs, not to evil

tolls"--a forecast of the allowable tariff as well as of the spirit

of modern international law. Finally, there is a chapter on mortmain,

recognizing that land might not be given to monasteries or religious

houses, and particularly under a secret trust; the object being to

keep the land, which made the power of the realm, out of the hands of

the church. As far as that part of it goes, it is merely historical to

us, but it developed into the principle that corporations "which have

no souls," and do not die, should not own too much land, or have too

much power--and that is a very live question in the United States

to-day.

One must not be misled by the generality of the phrase used in chapter

39, and think it unimportant because it looks simple. It is hard for

an American or Englishman to get a fresh mind on these matters. We all

grow up with the notion that nobody has the right to arrest us, nobody

has the right to deprive us of our liberty, even for an hour. If

anybody, be he President of the United States or be he a police

officer, chooses to lay his hand on our shoulder or attempts to

confine us, we have the same right to try him, if he makes a mistake,

as if he were a mere trespasser; and that applies just as much to the

highest authority, to the president, to the general of the army, to

the governor, as it does to a tramp. But one cannot be too often

reminded that this principle is peculiar to English and American

civilization. Throughout the Continent any official, any judge,

anybody "who has a red band around his cap," who, in any indirect way,

represents the state--a railway conductor, a spy, a station agent--not

only has the right to deprive you of your freedom, but you have no

right to question him; the "red band around the cap" is a final

answer. Hence that extraordinary incident, at which all England

laughed, the Kupenick robbery. A certain crook who had been a soldier

and was familiar with the drill and the passwords, obtained possession

of an old captain's uniform, walked into a provincial town of some

importance, ordered the first company of soldiers he met to follow

him, and then with that retinue, appeared before the town hall and

demanded of the mayor the keys of the treasury. These were surrendered

without question and he escaped with the money, representing, of

course, that he had orders from the Imperial government. It never

occurred to any one to question a soldier in full uniform, and it was

only some days later, when the town accounts were sent to Berlin to be

approved, that the robbery was discovered.

Such a thing could by no possibility have happened in England or with

us; the town treasurer would at once have demanded his authority, his

order from the civil authorities; the uniform would have failed to

impress him. Moreover, under our local self-government, under our

decentralized system, nobody is _above_ even a town officer, or a

State or city official at the head of his department, however small it

be, except the courts. State officers may not command town officers,

nor Federal officers State officers; nor soldiers give orders to

policemen. The president, the governor, may perhaps remove them; but

that is all. And even the policeman acts at his peril, and may be sued

in the ordinary courts, if he oversteps his authority. The notion that

a free citizen has a right absolutely to question his constraint by

any State officer is peculiar to the English and American people, and

this cannot be too often repeated; for it is what foreigners simply

fail to understand. And it rests on this chapter in the Great Charter,

originally, as amplified and explained by the courts and later acts of

Parliament, such, as the Habeas Corpus Act. If a man is arrested by

any official, that person, however great, has to justify the arrest.

In theory, a man arrested has a right to sue him for damages, and

to sue him criminally for trespass; and if that man, be he private

individual or be he an official or president, cannot show by a "due

course of law"--that is, by a due lawsuit, tried with a jury--that he

did it under a duly enacted law, and that the facts of the case were

such as to place the man under that law--then that official, however

high, is just as much liable in the ordinary courts, as if he were the

merest footpad trying to stop a man on the highway--a doctrine almost

unknown to any country in the world outside of England, the United

States, and English colonies.

III

RE-ESTABLISHMENT OF ANGLO-SAXON LAW

Going on with the statutes, the next thing we will note is a matter

that concerns the personal relations. It shows again how eagerly our

English common law overruled the church law, the canon law. Although

the church under the pope always pretended that it alone had authority

to regulate relations between the sexes, marriage and divorce, we

found Henry I interfering with the priests themselves, and we now find

as early as 1235, a secular statute which extends the interference of

the secular law over the relations between parent and child; that is,

as to when a child should be legitimate and when not. We shall have a

great deal to say later about marriage and divorce laws, particularly

divorce laws as they exist in this country and as they apparently are

going to be. As early as 1235 the secular courts interfered with the

marriage relation; and the importance of that is here: there is one

great school to-day, including largely clergymen and the divorce

reformers, so-called, who hold substantially that marriage is a

sacrament, or at least a status; that the secular law has nothing to

do with it and should not be allowed to grant a divorce except for

canonical causes, _i.e._, causes recognized by the church; that it

is not like any other contract, which can be set aside with mutual

consent; when a marriage takes place, they say, it is a sacrament,

or, at least, a status ensues which cannot in future be altered.

Consequently, it is not like a contract; for all contracts can be

abrogated by mutual consent. On the other hand, the most radical

people go to the other extreme, and say that marriage _is_ like any

other contract; it is purely a civil contract, not a sacrament, not

a status; just like any other, and some of them go to what is the

logical conclusion of that position and say that therefore marriage,

like any other contract, ought to be ended at any time by the consent

of both parties. The extreme radical view leads to the conclusion that

a man and woman ought to be divorced any time by merely saying that

they want to be; and some States have almost got to this position in

their statutes. This may seem a very far cry from this early statute,

which does not directly concern marriage but the status of children;

nevertheless it has this bearing--it is an interference by Parliament,

by the secular, legislative branch of government, with a relation

which the church believed to belong only to the church. It so happens

that in this instance the secular law instead of being liberal and

kindly was extremely cruel and the reverse of liberal. Under the

church law, when a man married a woman by whom he already had

children, all those children were thereby made legitimate, and that

certainly seems the kindly and the Christian law. But the secular

barons who constituted the Parliament, in their jealousy for the

common law, took the harsher view, that any children born of parents

who are not married at the time they are born shall be illegitimate,

although their parents may marry afterward. Beaumont and Fletcher, in

one of their plays, make a punning reference to that. It seems to have

struck Beaumont and Fletcher as it does us, that it was a cruel law

for the Parliament to make; when the church for once was liberal, it

was queer that the Parliament should be illiberal; so Beaumont and

Fletcher, in one of their plays, say: "The children thou shalt get

_by this civilian_ cannot inherit by the _law_." This is interesting,

because they use all the words I have been trying to define; when they

say "the children thou shalt get by this _civilian_," they mean by

this civilian a person who is under the civil, or Roman, or church

law; that is, they mean to say, although you marry a woman who is

a church member and under the jurisdiction of the bishop, etc.,

nevertheless the church law won't help you; your children by her

cannot inherit by the _law_, and the law as used by Beaumont and

Fletcher and as used by me and as used in English books means the

_common_ law, the common _secular_ law, the law of _England_, not the

civil or canon law.[1] Beaumont and Fletcher evidently thought it was

a very illiberal statute; and our modern American States have all come

to Beaumont and Fletcher's conclusion; they have universally reversed

the old English statute and gone back to the church law, so that

throughout the United States to-day a child born before the marriage

of its parents is legitimate if its parents afterward marry. That is

true, no matter how late it is; if the man marries her even on his

death-bed, all his children are legitimized.

[Footnote 1: "And so all the earls and barons answered with one voice,

that they would not change the laws of England."]

In the same Statute of Merton there is a sentence against usury, "no

usury permitted against minors"; and there are two things to note

here. One is, that the secular legislature is also taking jurisdiction

of minors, who were claimed at that time to be solely under the

jurisdiction of the church; and the other is the reference to usury.

Mind you, usury is interest. It didn't mean excessive interest, as

it does now. As you probably know, the notion prevailed in the early

Middle Ages that all usury--interest--was a sin and wrong; and even

Ruskin has chapter after chapter arguing that principle, that it is

wrong to take interest for money. I should perhaps add another reason

why interest was so disliked in early England: There was very little

money in early England; and it mostly belonged to the Jews. It was

a good deal as it is in Russia to-day; the Jews were persecuted in

Russia as in early England, because, in the country districts of

Russia, the Jews have all the money, and money-lenders are always

unpopular. So in early England. The great barons had their land and

their cattle and crops, but they had little money. When they wanted

money they got the value of it out of their tenants. Nobody carried

large sums of money around with him then, any more than a woman does

to-day--she relies on her husband or father; they went to the nearest

Jew. When the king wanted cash, he also extorted it from the Jews. One

of the early Henrys said seriously, that he regarded the Jews as a

very convenient sponge! That is, they sucked all the money in the

kingdom and got it into a place whence he could easily get it out. But

it made the Jews very unpopular with the masses of the people and with

the Parliament; hence, their great dislike of usury. I doubt very much

if they would have cared much about usury if one gentleman had been in

the habit of loaning money to another; but all the money came from the

Jews, who were very unpopular; and the statutes against usury were

really made against them, and that is why it was so easy to pass

them--they based it, doubtless, on the references to usury in the

Bible. Thus they got the notion that it was wrong to charge interest,

or at least extortionate interest; more than a certain definite per

cent.; and this is the origin of all our interest and usury statutes

to-day. Although most economists will tell you that it is ridiculous

to have any limit on the rate of interest, that the loan of money

may well be worth only four per cent. to one man and twenty-five to

another, and that the best way for everybody would be to leave it

alone; nevertheless, nearly all our States have usury laws. We shall

discuss that later; but here is the first statute on the subject, and

it really arose because of the feeling against the Jews. To show how

strong that prejudice was, there was another statute passed in the

interest of liberality to protect the Jews--a statute which provided

liberally that you must not take from a Jew "more than one-half his

substance." And a very early commentator tells us of a Jew who fell

into a privy on a Friday, but refused to be helped out on Saturday

because it was his Sunday; and on Sunday he besought the Earl of

Gloucester to pull him out, but the Earl of Gloucester refused because

it was his Sunday; so the Jew remained there until Monday morning,

when he was found dead. There is no prejudice against Hebrews to-day

anywhere in Europe stronger than existed even in England for the first

three or four centuries after the Norman Conquest; and had it not been

for the protection given them by the crown, probably they would have

been exterminated or starved out, and in 1289 they were all banished

to the number of 16,160, and their movables seized.

In 1264 citizens of towns were first represented in the Parliament (in

the Great Council, that is, for the word parliament is not yet used),

originally only composed of the great barons, who were the only

land-owners. The notion of there being freemen in towns was slowly

established, but it was fully recognized by 1264, and in that year

citizens of towns first appeared in the Council. To-day, under the

various Reform Acts, tenants or even lodgers in towns are just as much

represented as the land-owners; but the reform which began in 1264

took six hundred years to be thoroughly established.

And now we find the first statutory origin of that utterly fallacious

principle--although alive to-day--that the state, in a free country,

a legislature-governed country, has the right, when expedient, to fix

the _price_ of anything, wages or other commodities; fallacious, I

say, except possibly as to the charges of corporations, which are

given special privileges by the government; the principle, which

prevailed throughout the Middle Ages, of fixing the prices of all

things. In this case the price was on bread; but you find now for many

centuries an attempt to fix the price of almost everything; and of

labor, too, what wages a man should be paid. It lasted persistently

for centuries and centuries, and it was only under the influence of

modern political economy, Adam Smith and other quite modern writers,

that the principle that it was possible to fix prices of commodities

was utterly eradicated from the English mind. And you hardly got it

out of England before it reappeared in the United States. It is not

a new-fangled principle. You find the newspapers commonly talk about

fixing prices by law as if it were something utterly unheard of and

utterly new. It is not so. It Is on the contrary as old as almost any

legislation we have, and you can make no argument against it on that

ground. It has always been the custom of our ancestors to regulate

the prices of wages by law, and the notion that it was either

unconstitutional or inexpedient dates from a very few years back; yet

all such attempts at legislation have utterly disappeared from any

modern statute-book. In no State of our forty-six States is any one so

unintelligent, even in introducing bills in the legislature, as to-day

to propose that the price of a ton of coal or a loaf of bread shall

be so much. Nor is any modern legislature so unintelligent or so

oppressive as to propose sumptuary laws; that is, to prescribe how

expensively a man or woman must dress; but in the mediaeval times

those were thought very important. Every class in England was then

required by law to have exactly so many coats, to spend so much money

on their dress, so much on their wives' dress, and certain men could

have fine cloth and others coarse cloth; everything was graded, even

to the number of buttons on clothes, and they went so far even as to

try in some early legislation to say what men should have to eat; the

number of courses a man should have for his dinner were prescribed by

law at one time in England, varying according to the man's rank. All

such legislation has absolutely vanished and probably no one need know

that it existed--but that when efforts are made, as they sometimes

are, by our more or less uneducated members of legislatures to

introduce bills of such a kind, it is very important for us to know

that those experiments have been tried and have failed, having proved

to be either impracticable or oppressive or not for the general

benefit. This is the importance of these early laws, even when

obsolete; because we never know when some agitator may not pop up

with some new proposal--something he thinks new--which he thinks, if

adopted, will revolutionize society. If you can show him that his

new discovery is not only not new, but was tried, and tried in vain,

during two or three centuries in the life of our own ancestors, until

an enraged public abolished it, it will destroy any effect that he is

likely to make upon the average legislature.

The first general example of an English law fixing the price of a

commodity is in 1266, the Assize of Bread and Beer. That fixed the

price of bread according to the cost of wheat, a sliding scale, in

other words; when a bushel of wheat cost so much, a loaf weighing a

certain amount must cost so much, etc. But you must not confound that

with the modern law that still exists in England, and in some States

and cities here, merely regulating the _size_ of a loaf. That is

perfectly proper, reasonable legislation, done merely for the purpose

of protecting the public and preventing fraud. In England, for

instance, there is a certain standard loaf known as a quartern loaf,

and in order to prevent poor people being cheated it is prescribed

by city ordinance that the quartern loaf shall weigh so much, shall

contain so many ounces of flour. We do have similar laws saying how

much a bushel of potatoes shall weigh, how much a barrel of flour

shall weigh. That isn't fixing the price; it is only fixing a uniform

size so that the public may not be cheated in its dealings, and one

must not take such a law as justifying the fixing of prices.

In the year 1266 I find the first statute in the French language,

Norman French; before that they were all in Latin; and they lasted in

French for some four or five hundred years, and then they were put in

English. The Statute of Marlborough, 1267, is a very important one

historically, but it does not concern us, because it mainly had to

do with the ownership of land, the tenure of land in England, an

extremely important subject, but one that is obsolete here. Then we

have something about the trial of clerks for murder. Of course the

word clerk there means not what we mean by a clerk, but a person who

could read and write; and nothing more than that. It originally meant

persons in holy orders, who were called clerks (clerics), but there

got to be clerks who were not in holy orders. Originally only priests

could read and write. No one else knew how, except possibly great

personages like kings, and consequently it was the same thing whether,

when you said a clerk, you meant a person who could read and write or

a priest. But when there got to be people who could read and write and

who were not priests, it became an important distinction. There was

a privilege in England known as the "benefit of the clergy"; if any

clerk was tried for a criminal offence, no matter what, all he had to

do was to state that he was a priest and he was at once set free. In

other words, he could not be punished. That doesn't concern us; but, I

suppose, it resulted from the old notion that all priests were subject

only to Rome, and to the church courts, and not to the civil law

courts; and consequently when a priest was attempted to be tried in a

civil law court, it was a way of doing what we should call "pleading

to the jurisdiction" of the court. Later, as time went on, in England

it was greatly abused, especially when there got to be clerks who

were not priests. When it meant anybody who could read and write, and

anybody who had committed a murder had only to say, "I can read and

write," and be set free, it led to an extraordinary state of things.

So, from time to time, they modified the benefit of the clergy, until

ultimately it was abolished entirely; first by not allowing it in high

offences like murder; then by imposing certain slight punishment--they

were "burned in the hand"; then by applying it only to the first

offence, and so on, until they got rid of it entirely; and this

Statute of Marlborough is simply one of the first of that long chain

of statutes which finally did away with it and prevented people from

getting rid of a criminal prosecution merely because they knew how to

read and write or were priests.

In 1275 I note the first use of the word parliament. I have used it

from the beginning, but it is important to remember that the thing

was not _called_ parliament until 1275. Before that it was called

the Great Council or the King's Council, and in Saxon times the

Witenagemot.

Then we come down to the Statute of Westminster I. That is considered

a great landmark in statutory legislation mainly because it is the

first attempt to establish a code, or, at least, a large collection of

the laws of England. It is an attempt to put what they supposed to be

a good part of them into writing. We have no codes in this country,

as a rule; nor to-day in England; the ordinary Anglo-Saxon does

not believe in codes. It is the French and Germans who have codes.

Nevertheless, you often find collections of statutes. It is important

not to confound these things with codes, because they never pretend to

be complete. Many States in this country never make revision of the

statutes. Nevertheless, every ten or twenty years they will print a

collection of the statutes arranged alphabetically. In some States, as

in Massachusetts, those collections are official; but in other

States they are simply matters of private enterprise. They are of no

authority, and if they are wrong it is no protection to you. You are

bound to know the laws. These early so-called codes, especially this

code of Edward I, although it caused him to be called the English

Justinian, because it was the first attempt of putting any large

body of the Anglo-Saxon laws in writing at all, are still not at all

_codes_ in the technical sense. This one was merely a collection of a

certain number of laws reduced to writing and re-enacted by Edward I.

We note here the phrase "common right shall be done to rich and poor,"

rather an interesting landmark; it shows what progress was being made

by the people in establishing their rights as freemen and to equal

laws. For the laws of Norman England mainly applied to land-owners,

and were made by the barons, the only people that had property; there

was but a small class in those early days between the land-owners and

actual serfs, villeins, who were practically attached to the soil,

in a condition almost of servitude; they did service, were not paid

wages, and couldn't leave the place where they were born--and both

these are tests of slavery. But in the first two centuries after the

Conquest the number of freemen very rapidly increased; men who were

not property owners, not land-owners, but still freemen. Especially

it increased in the towns, for the towns very early established their

right to be free, far earlier than the country. It was very early

established that the citizens of any town, that is, the members of

the guild of the town, duly admitted to the guild, were freemen, and

probably before this statute. But this is interesting as a recognition

of the fact that there were free poor people--people without property,

who nevertheless were neither villeins nor serfs--and that they were

entitled to equality before the law, just as we are to-day, as early

as 1275. Otherwise, the Statute of Westminster concerns mainly the

criminal law. There is one very important provision--because it has

been historically followed from then down to now--that there shall

be no disturbance of the elections. Elections shall be free and

unimpeded, uncontrolled by any power, either by the crown, or

Parliament, or any trespasser. That has been a great principle of

English freedom ever since, and passed into our unwritten constitution

over here, and of course has been re-enacted in many of our laws. That

is the feeling which lay behind those statutes which we enacted after

our slaves were freed, for the making of elections free in the

South; for protecting negroes in the act of voting and preventing

interference with them by the Ku Klux Klan. The Democratic party

strongly objected and objects still to such legislation on the part of

the government, on the ground that the right of regulating elections

belongs to the States and not to the Federal government; which,

constitutionally speaking, before the Fifteenth Amendment at least,

was true. They do not, of course, deny this great old English

principle that elections must be free and must not be intimidated or

controlled by anybody; but, they say, we left the machinery of the

elections in the hands of the States when we adopted the Federal

Constitution; and although at our State elections some of the officers

elected are Federal officers--as, for instance, the President of the

United States, or rather the presidential electors, and members of

Congress--nevertheless, when we adopted the Federal Constitution, the

founders chose to rely for the machinery of a fair and free election

upon the officers of States; so that the Federal government has

nothing to do with it, and has no business to send Federal troops to

the South; and they called such bills the "force" bill. In theory, of

course, those elections were controlled in these bills just as much in

the North as in the South; but there being practically no complaint in

the North that the negroes were not allowed to vote, as a matter of

fact the strength of the Federal government was only invoked in the

Southern States.

"Fines are to be reasonable." You find that principle in all our

constitutions to-day in the clause that there shall be no cruel or

unusual punishments, and that fines shall be proportionate to the

offence; this principle is expressed also in Magna Charta.

Then slander and rape were made criminal at common law; before this

only the church took jurisdiction. Slander Is the imputing of crime to

a person by speech, by word of mouth. If it be a written imputation,

it is libel and not slander. Then in this statute also we find the

first import tax upon wool. The constitutionality of revenue taxes,

duties, or taxes on imports, was once disputed by our parties; one

party denying the constitutional right to impose any tax upon imports

except for the strict purpose of raising necessary revenue; the

argument being perfectly logical and based upon the constitutional

principle we already have had that all taxation must be for the common

benefit. Democrats argued that if a tax upon imports was imposed to

raise the necessary revenue, that is for the common benefit; but if it

was imposed, as it avowedly is imposed in Republican legislation, for

the purpose of benefiting certain industries or classes, why that,

of course, is not for the common or general benefit and therefore

unconstitutional. The trouble with this position is that early English

laws were prohibitive of imports--that is, they were imposed for

prohibition _before_ they allowed importation on payment of duties.

This Statute of Westminster is a landmark, as showing how slow the

Commons were in even allowing taxation upon imports at all. They

earlier allowed the ordinary direct taxes. All that the Norman kings

got they got with the consent of Parliament, direct taxes, for the

common benefit; but they struggled for two centuries before they got

the permission of Parliament to impose duties, taxes upon imports;

here first they finally got it on wool, the thing produced of most

value of anything in England; and consequently an important protective

duty. It is a curious historical fact that this article, wool, seems

to be the chief bone of contention ever since; in our tariffs nothing

has been more bitter than the dispute on wool; the duty on wool is the

shibboleth of the extreme protectionist.[1] Ohio, which is the home

of the strong protection feeling, regards the duty on wool as the

corner-stone to the whole fabric. It is argued that "a cheap coat

makes a cheap man." In the East the feeling is that the duty on wool

makes clothing poor and shoddy, and the prices excessively high for

the poor. It is odd to find that the very first thing that did make

trouble was the duty on wool, and it is still making the same trouble

to-day.

[Footnote 1: The "ancient" customs were on wool, woolfels and leather;

all other were "evil" customs. Holt, afterward C.J., in "The Great

Case of Monopolies."]

There is another interesting clause in this statute; I don't know

whether in this country so much as there, but it is in England the

almost universal custom of ships to have a dog or cat on board. You

never will find a coasting vessel without a dog or cat, usually both;

and I believe it is for this strange historical reason, as shown in

this Statute of Westminster I: In those days all wrecks belonged to

the king. (Pretty much everything, in fact, did belong to the king,

except the land that was held by book or charter, or such personal

property as a man had in his own house--all mines, all franchises, all

monopolies, even all whales and sturgeons that were thrown up on the

beach--the head to the king and the tail to the queen.) So all wrecks

belonged to the king. The result was, that whenever any vessel went

ashore the king's officers seized it; and naturally the owner of the

vessel didn't like that, because it very often happened that the

vessel was perfectly good and could be easily repaired and the cargo

saved. It is still a great principle in marine law that if one-half of

the cargo is good, the man who owns the vessel cannot surrender and

claim from the insurance company as a total loss; it is important

still how much of a wreck a wreck is. But in those days the king, even

if the vessel was stranded and could be raised, would seize it on

the plea it was a wreck. The man who owned the ship would say she is

perfectly seaworthy; and then would come the dispute as to what a

wreck was. Or even when the vessel was destroyed, a great part of the

cargo might be saved, and the owner of the vessel thought it very

unjust that the king should claim it all. So the Parliament of England

established as part of the liberties of the English merchant or trader

that he should still have a property in his wreck; and then the

question came up as to what was a wreck. It was generally admitted

that when all hands were lost, that was a wreck; but they wanted to

get as narrow a definition as they could, so they got Parliament to

establish this law, that in future nothing shall be considered a wreck

out of which a cat or a dog escapes alive; and from that time until

the present day no vessel coasts about England without carrying a cat

or dog.

But the great achievements of legislation up to 1300 remain the

re-establishment of English law, as shown in the great charters of

John, Henry III, and the confirmation of Edward I. And Magna Charta

had to be read once a year (like our Declaration of Independence),

and for breach of it a king might be excommunicated; and Henry III

himself, according to Cobbet, feared that the Archbishop of Canterbury

was about to do so.

IV

EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS

(1275) Far the most important phrase to us found in the Statute of

Westminster I, save perhaps that common right should be done to rich

and poor, is to be found in this sentence: "Excessive toll, contrary

to the common custom of the realm," is forbidden. The statute applies

only to market towns, but the principle established there would

naturally go elsewhere, and indeed most towns where there was any

trade were, in those days, market towns. Every word is noticeable:

"Excessive toll"--extortion in rates. As this statute passed into the

common law of England and hence our own, it has probably always been

law in America except, possibly, in those few States which expressly

repealed the whole common law[1] and those where civil law

prevailed.[2] It was therefore equally unnecessary to adopt new

statutes providing against extortion or discrimination, for the last

part of the phrase "contrary to the common custom of the realm" means

discrimination. But this is one of the numerous cases where our

legislatures, if not our bar and bench, erred through simple

historical ignorance. They had forgotten this law, or, more

charitably, they may have thought it necessary to remind the people of

it. There has been a recent agitation in this country with the object

of compelling great public-service companies, such as electric

lighting or gas companies, to make the same rates to consumers, large

or small. This also was very possibly the common law, and required no

new statutes; there are cases reported as far back as the fourteenth

and fifteenth centuries where, for instance, a ferryman was punished

for charging less for the ferriage of a large drove of sheep or cattle

than for a smaller number, "contrary to the common custom of the

realm." Nine years before this statute is the Assize of Bread and

Beer, attempting to fix the price of bread according to the cost

of wheat, but notable to us as containing both the first pure-food

statute and the first statute against "forestalling."

[Footnote 1: Florida, Texas, and the old Territory of Dakota.]

[Footnote 2: Louisiana, New Mexico, and Arizona.]

Now forestalling, regrating, and engrossing are the early English

phrases for most of the unlawful or unmoral actions which we ascribe

to the modern trust. In fact, there is hardly one legal injury which

a trust is said to commit in these days which cannot be ranked under

those three heads, or that of monopoly or that of restraint of trade.

"Forestalling" is the buying up provisions on the way to a market with

intent to sell at a higher price; and the doctrine applied primarily

to provisions, that is to say, necessaries of life. Precisely the same

thing exists to-day, only we term it the buying of futures, or the

attempt to create a corner. We shall find that the buying of futures,

that is to say, of crops not yet grown or outputs not yet created,

is still obnoxious to many of our legislatures to-day, and has been

forbidden, or made criminal, in many States. "Regrating" is defined

in some of the early dictionaries as speculating in provisions; the

offence of buying provisions at a market for the purpose of reselling

them within four miles of the place. The careful regulation of markets

and market towns that existed in early times in England would not

suffer some rich capitalist to go in and buy all that was offered for

sale with intent of selling it to the same neighborhood at a higher

price. Bishop Hatto of the Rhine, you may remember, paid with his life

for this offence. The prejudice against this sort of thing has by no

means ended to-day. We have legislation against speculation in theatre

tickets, as well as in cotton or grain. "Engrossing" is really the

result of a successful forestalling, with or without regrating; that

is to say, it is a complete "corner of the market"; from it our word

"grocer" is derived. Such corners, if completely successful, would

have the public at their mercy; luckily they rarely are; the

difficulty, in fact, begins when you begin to regrate. But in

artificial commodities it is easier; so in the Northern Pacific

corner, a nearly perfect engrossing; the shares of stock went to a

thousand dollars, and might have gone higher but for the voluntary

interference of great financiers. Leiter's Chicago corner in wheat,

Sully's corner in cotton, were almost perfect examples of engrossing,

but failed when the regrating began. All these tend to monopoly, and

act, of course, in restraint of trade; the broader meanings of these

two latter more important principles we leave for later discussion.

(1285) The Statute of Bakers, or Assize of Bread and Ale, is by some

assigned to the 13th of Edward I. If so, we find all these great

modern questions treated by statute in the reign of the same

great law-making king, Edward I, who well was called the "English

Justinian"; for, in 1305, twenty years later, we have the first

Statute of Conspiracy. This statute only applies to the maintaining

of lawsuits; but the Statute of Laborers of 1360 declares void _all_

alliances and covins between masons, carpenters, and guilds, chapters

and ordinances; and from this time on the statutes recognize the

English common law of conspiracy in general words.

As this is one of the most important doctrines of the English law, and

moreover one which is most criticised to-day by large interests, both

of capital and labor, it will be wise to dwell upon its historical and

logical origin in this place, though we shall consider it at length

later as it touches various fields of legislation. It is notable for

two most important principles: first, that it recognizes the great

menace of combined action, and both forbids and punishes combinations

to do an act which might be lawful for the individual; second, of all

branches of civil, as distinct from criminal, law, it is the one which

most largely recognizes intent; that is to say, the ethical purposes

of the combination. It has been urged in some judicial opinions that

in matters of boycotts, strikes, etc., the law cannot go into the

motive; this argument obviously proves too much, for it is no more

easy to examine motives in the criminal law, and this is done all

the time. A homicide, for instance, will vary in all degrees between

justifiable guilt or manslaughter up to murder in the first degree,

according to the motive which prompted the act. It is really no more

difficult, and the reported cases do not show it to be any more

difficult, to consider the motive behind a combination of men or the

motive inspiring a series of related acts. The real trouble comes only

in the Federal anti-trust act, because the machinery of this clumsy

statute, a bill in equity, imposes upon judges the duty of finding the

facts.

This doctrine of conspiracy is so old in England that I am unable to

trace it to its source. From the wording of repeated early statutes

it would seem that they recognized this law of conspiracy as already

existing and merely applied it to new forms, such as, for instance,

the combination of masons, carpenters, and guilds, just mentioned. It

is, perhaps, not to us important whether it is originally based on

common law or these early statutes, for these statutes are quite early

enough to have passed into the common law of England, and consequently

into the common law in this country. Moreover, early statutes merely

express the common law; therein lies their significance. Now, many

State laws and constitutions, as well as most State courts, recognize

that the common-law statutes of England existing at least before 1775,

if not 1620,[1] are common law in the States of this Union. In a

general way, any statute that antedates the time of our settlement we

took over as part of our common law.

[Footnote 1: 1607 (Virginia, West Virginia, Illinois, Indiana,

Missouri, Arkansas, Colorado, Wyoming); 1776 (Florida, Maryland, Rhode

Island, Pennsylvania). None, however, are law in New York.]

We are now coming also to that great range of statutes, which, on the

one hand, control labor and regulate the rights of the laborer, both

in his prices and in his hours; and, on the other, those statutes

relating to what we call "trusts," conspiracy, and trades-unions,

which have made common-law principles which are to-day, all of them,

invoked by our courts; and form the precedents of practically all

our modern legislation on matters affecting labor, labor disputes,

injunctions, strikes, boycotts, blacklists, restraint of trade, and

trusts--in fact, the largest field of discussion now before the mind

of the American people. The subjects are more or less connected. That

is, you have the growth of legislation as to laborers on the one

hand, and on the other you have the growth of this legislation as to

combinations or conspiracies, trades-unions, guilds, etc.

(1304) Now let us begin at that first statute of conspiracy, and find

what the definition of a conspiracy is; because it is a very important

question to-day, whether we are going to stick to the old common-law

idea or not. The very title of this statute is "A definition of

conspirators," and it begins: "Conspirators be they that do confeder

or bind themselves together by oath, covenant or other alliance"

either to indict or maintain lawsuits; "and such as retain men in

the Countrie with Liveries or Fees for to maintain their malicious

Enterprises, and this extends as well to the Takers as to the Givers."

And as it gradually assumed shape and got definite and broad, the

idea, we will say, by 1765, when Blackstone wrote, was this: _A

conspiracy is a combination by two or more men, persons or companies,

to bring about, either an unlawful result by means lawful or unlawful,

or a lawful result by unlawful means._ Now so far the definition is

admitted. Everybody agrees, both the labor leaders and the courts,

on that definition--that when two or more people combine together

to effect an _unlawful_ object, it is a conspiracy; which is both a

criminal offence under the laws of the land everywhere, and also gives

the party injured a right to damages, that is, what we call a civil

suit; and furthermore no _act_ is necessary. There is no doubt about

that part of the definition. Or where they combine to get a lawful

end by unlawful means, as, for instance, when laborers combine to get

their employer to raise their wages by the process of knocking on the

head all men that come to take their places, that is gaining a lawful

end by unlawful means, by intimidation--and is a conspiracy. But now

the whole doctrine in discussion comes in: If you have a combination

to bring about by _lawful_ means the _injury_ of a third person in his

lawful rights--not amounting to crime--is that an unlawful conspiracy?

Yes--for it is a "malicious enterprise." So is our law, and the common

law of England, yes. And you can easily see the common-sense of it.

The danger to any individual is so tremendous if he is to be conspired

against by thousands, hundreds of thousands, not by one neighbor, but

by all the people of the town, that it early got established as a

principle of the common law, and of these early English statutes,

that, although one man alone might do an act which, otherwise lawful,

was to the injury of a third person, and be neither restrained nor

punished for it, he could not _combine with others_ for that purpose

by the very same acts. For instance, I don't like the butcher with

whom I have been doing business; I take away my trade. That, of

course, I have a perfect right to do. But going a step farther, I

tell my friends I don't like Smith and don't want to trade with

him--probably I have a right to do that; but when I get every citizen

of that town together at a meeting and say: "Let us all agree to

ruin Smith, we will none of us trade with him"--Smith is bound to

be ruined. The common law early recognized this importance of the

principle of combination, and therefore it was part of the English

common law and is still, barring one recent statute, that a

combination to injure a person, although by an act which if done

by one individual would be lawful, is nevertheless an unlawful

combination; that is, a _conspiracy_ under the law; for all

"conspiracies" are unlawful, under the law; the meaning of the word

_conspiracy_ in the law is, not an innocent combination, but a guilty

one, and anything which is a _conspiracy_ at law can be punished

criminally, or will give rise to civil suits for damages by the

parties injured, or usually entitle one to the protection of an

injunction. A conspiracy, therefore, is not only a guilty combination,

of two or more persons, for an unlawful end by any means, or for a

lawful end by unlawful means, but also one for an immoral end, a

malicious end, as, let us say, the ruin of a third person, or the

injury of the public. All the dispute about the law of conspiracy and

the statutes and what laborers can do and what employers can do to-day

really hinges about that last clause. The labor leaders, the radicals,

want to say that nothing shall be a conspiracy where the end is

not unlawful and where the acts done are such as, if done by an

individual, would not be wrong. In other words, they want statutes

to provide that nothing is a conspiracy where the acts done are

in themselves lawful if done by one individual. But this English

conspiracy law was of the most immense sociological value, in that it

did recognize the tremendous power of _combination_. It said, although

you don't have to trade with Smith alone, yet a combination of a

great many individuals for the purpose of ruining Smith, by all

simultaneously refusing to trade with him, is such a tremendous injury

to Smith that the law will take cognizance of it and hold that kind of

a combination to be unlawful.

This definition should be further extended, perhaps, to remind you

that the courts hold that there are certain kinds of combinations,

contemplating ends which will necessarily result in the use of

unlawful means; the most familiar example is picketing. The courts

mostly hold that although in theory a labor union can march up and

down the highway and peacefully advise non-union men or other laborers

not to take their jobs, in practice such action usually, if not

necessarily, goes to the point of intimidation; and intimidation is

nearly always made unlawful by statute. Now I should only add that

it is very important to remember--and even the courts do not always

remember it--that the thing being punished as a conspiracy is not the

end, but the combining; the conspiracy itself is the criminal act.

Suppose in Pennsylvania one thousand men meet and say: "John Smith

has taken a job and is a scab, and we will go around and maul him

to-night," and they do, or they don't; if they are tried, the fact

whether they did maul him or not has nothing to do with the matter

of the conspiracy. They might, of course, be tried for assault and

battery, or for an attempt to commit murder; but if they are being

tried for the _conspiracy_ the criminal act is the combining and

meeting, not what they do afterward. Therefore it is of no importance

whatever what the result of the matter is. The thing that is criminal

is the combining; and this leads to a very curious consequence:

All conspiracies are criminal; but the object aimed at may be very

slightly so. So that it is perfectly possible to have a conspiracy

which shall result to its members in five or ten years in the

state-prison, whereas the object itself, the act aimed at, may have

been comparatively slight, a mere misdemeanor. Take the case of mere

intimidation without assault or battery; one man goes to another

and says: "If you take that work I shall smash your head," that is

intimidation. Thirty of our States have made that unlawful, but it is

only a misdemeanor. But if one thousand men get together and say:

"We will go around to tell him we will smash his head," that is

conspiracy; and conspiracy may subject them to penalty of years in

prison. It has been found in the experience of the English people to

be such a dangerous power, this power of combination, that to use it

for an unlawful or wrongful end may be more of an offence than the end

itself.

A combination to injure a man's trade is, therefore, an unlawful

conspiracy; well shown in a recent Ohio case where a combination of

several persons to draw their money out of a bank simultaneously for

the purpose of making it fail, was held criminal. It gives a claim

for damages in a civil suit and may be enjoined against. But is it

necessarily criminal? It is possible that the offence to the public is

so slight that the criminal courts would hardly take cognizance of it

in minor cases where there is not some statute expressly providing for

a criminal remedy. The Sherman Act, our Anti-trust Act, does so where

even two persons conspire together to restrain interstate commerce. It

is a crime at common law, however slight, for even two to combine to

injure any person's trade. But, independent of statutes, suppose only

two persons agree not to buy of a certain butcher in Cambridge: in

theory, he might have a civil remedy; but it may be doubted that it

would amount to a criminal offence. _Lex non curat de minimis_. So,

it is an offence under most State anti-trust laws, as it was at the

common law, to fix the price of an article--that is restraint of

trade--or to limit the output. Two grocers going to the city in the

morning train agree that they will charge seven dollars a barrel for

flour during the ensuing week; two icemen, to harvest only a thousand

tons of ice. The contract between them could not be enforced; it is

undoubtedly unlawful; but it would hardly be a criminal offence at the

common law. There is, at least at the common law, some middle ground

between those contracts which are merely unenforceable, and those

which subject the co-makers to a criminal liability; although under

the cast-iron wording of a statute it may be that no such distinction

can be made.

Independent of combination, there is probably no legal wrong in merely

wishing ill to a man, withdrawing one's custom from him, competing

with him, or even, possibly, in injuring his trade. There is an

ancient case where the captain of an English ship engaged in a certain

trade, to wit, the slave trade, arrived off a beach on the coast

of Africa and was collecting his living cargo, when a second ship,

arriving too late to get a load itself, fired a cannon over the heads

of the negroes, and they, with the chief who was selling them, fled

in terror to the forest. The captain of the first ship went back to

London and brought suit against the captain of the second ship for

injuring his trade and was allowed to recover damages; but it may

be doubted if that is good law; although in 1909 a Minnesota court

decided that a barber could sue an enemy if he maintained an

opposition barbershop solely for the purpose of injuring his business;

and a few years ago in Louisiana a street railway foreman was held

liable in damages for instructing his men not to frequent the

plaintiff's store.[1] I say to you: "Do not trade with Smith, he is

not a good person to deal with," or, "Do not take employment with

him, he will treat you cruelly"; and in either case, unless I can

be convicted of slander, he has no remedy against me if I am acting

alone.

[Footnote 1: Tarleton _v_. McGawley, Peak, N.P.C. 270; Tuttle _v_.

Buck, 110 N.W. 946; Graham _v_. St. Charles St. Ry. Co., 47 La. Ann.

214.]

Now, this great law of conspiracy applies equally and always to

combinations of capital or of employers, to trusts, contracts in

restraint of trade and blacklists, as well as to unlawful labor

combinations, unlawful union rules, and boycotts. The statutes

directed against both originated about the same time and have run

historically on all-fours together. The old offences of forestalling

and regrating may have been lost sight of, and possibly the statutes

against them fallen into disuse, although they were expressly made

perpetual by the 13th Elizabeth in 1570 and not repealed until the

12th George III in 1772; but the principle invalidating restraint of

trade and contracts in restraint of trade remained as alive as that

prohibiting unlawful combinations of labor. The latter, indeed, has

largely disappeared. Both strikes and trades-unions, once thought

unlawful in England, are made lawful now by statute, but a contract

in restraint of trade or a monopolistic combination of capital is as

unlawful as it ever was both in England and in this country; and the

common law is only re-enforced by our State statutes and applied to

matters of interstate commerce as well, by the Sherman Act. Closely

connected with both is the principle of reasonable rates in the

exercise of franchises; excessive toll contrary to common custom, as

we found forbidden in 1275. The first statute against forestalling

merely inflicts a punishment on forestallers and dates ten years

later, 1285, though the time of this, the Statute concerning Bakers,

is put by some still earlier, with the Assize of Bread and Beer, in

1266. It provides the standard weight and price of bread, ale, and

wine, the toll of a mill. It anticipates our pure-food laws and

punishes butchers for selling unwholesome flesh or adulterating

oatmeal, and says "that no Forestaller be suffered to dwell in

any Town, which is an open Oppressor of Poor People ... which for

Greediness of his private Gain doth prevent others in buying Grain,

Fish, Herring, or any other Thing to be sold coming by land or Water,

oppressing the Poor, and deceiving the Rich, which carrieth away such

Things, intending to sell them more dear,... and an whole Town or a

Country is deceived by such Craft and Subtilty," and the punishment is

put at a fine at the first offence with the loss of the thing bought,

the pillory for the second offence, fine and imprisonment for the

third, and the fourth time banishment from the town.

The first definition of forestalling is here given. Our modern

equivalent is the buying of futures or dealing in stocks without

intent to deliver, both of which have been forbidden or made criminal

in many of our States. And forestalling, regrating, and engrossing

were things early recognized as criminal in England, and these

statutes embody much of what is sound in the present legislation

against trusts.

Forestalling was very apt to be done in a _staple_, that is, in the

town which was specially devoted to that article of trade; so that

the laws of forestalling got very much mixed up with the laws of the

staple; but forestalling would equally mean going into any market and

buying up all the production. If the article was produced abroad, the

forestaller would try to buy up the entire importation.

(1352) We now find another statute; it applies to wines and liquors

"and all other wares that come to the good towns of England," and the

penalty imposed by that law was that the forestaller must forfeit the

surplus over cost to the crown and be imprisoned two years. We are

still enforcing remedies of that kind in our anti-trust laws, only

instead of having him forfeit the surplus to the crown we usually have

him pay damages, sometimes treble damages to the persons injured. In

the Beef Trust case, the parties were duly convicted, and instead of

being imprisoned, they were fined $25,000. In other words, we still

have not the courage to go to the length that our ancestors did in

enforcing the penalties of these unlawful combinations. Of course it

is a much more difficult thing to have forestalling and engrossing

laws against foreign importations than against home productions; and

so to-day we have not tried, except by a tariff, forestalling laws

against foreign importations, but we have attempted to apply them very

much as to home productions. In England, however, the statute at that

time said that a person who bought up all the foreign product must

forfeit all the profits to the state. Now this is nothing but the

"Iowa idea" of two years ago. It was suggested very urgently by

Governor Cummins that there should be a law providing that where a

trust got complete control of a certain industry in this country its

surplus profit should be forfeited either indirectly by the taking

off of the tariff, or by way of a franchise tax, that is, of a United

States tax upon its franchises, which could be increased in such a way

as to tax it out of existence if it persisted. The latter remedy is at

the root of President Taft's new corporation tax, but Congress has not

yet applied the former, although it was very seriously advocated that

there should be statutes which should indirectly forfeit the profits

of the trust that had secured a monopoly; that is an engrossing

trust--covin or alliance, as our ancestors would have called it--"a

gentleman's agreement"--and that it should be done by a reduction of

the tariff on the articles in which that trust dealt; this reduction

to be ordered by the president. When he determined that a trust had

completely engrossed an industry, he might say so by proclamation; and

then the act of Congress should go into effect and the duties upon

that product be abolished, all the protection of the trust taken away.

There is a trouble with such legislation, in that it may be said to

allow the president to make the law; and under our Constitution the

president cannot make laws. The legislative branch and the executive

branch of the government must be kept distinct; and it probably would

be argued by constitutional lawyers, and in this instance by either

party that was not in favor of such legislation, that to reduce the

duties of such a class of goods was a legislative act, and therefore

any such law would be unconstitutional because the president cannot

legislate. But the point I wish to make now in both these cases is the

exact correspondence of the problem; what are remedies to-day were

remedies five hundred years ago. So far we have found nothing new,

either in remedy or offence.

(1349) Now there is a third great line of legislation that we must

consider in connection with these other two, and that is the Statutes

of Labor. It was the custom in early times to attempt to regulate

prices; both of wages and commodities. The first Statute of Laborers

dates from 1349. Its history was economic. They had had a great plague

in England known as the Black Death; and it had carried off a vast

number of people, especially the laboring people. There was naturally

great demand for workers. Laborers were very scarce. It is estimated

that one-third of the entire population had died; and there has never

been a time when wages were so high relatively, that is, when wages

would buy so much for the workingman, as about the middle of the

fourteenth century. But the employers were no fonder of high wages

than they are to-day. All England was used to sumptuary laws, laws

regulating the price of commodities, and villeins still existed. They

were only just beginning to consider agricultural laborers as freemen;

they were used to the notion of exerting a control over laboring men,

who were still often appendant to the land on which they worked, for

it was unlawful for an agricultural laborer to change his abode; and

in many other ways they were under strict laws. So that it didn't

seem much of a step to say also, we will regulate the rate of

wages--particularly as the payment of wages in money was rather a new

thing. Probably two or three centuries before most wages were paid in

articles of food or in the use of the land. So they got this first

Statute of Laborers through; it required all persons able in body

under sixty to do labor to such persons as require labor or else be

committed to gaol. That, of course, is compulsory labor; the law would

therefore be unconstitutional with us to-day except in so far as it

applied, under a criminal statute, in regard to tramps or vagrants. In

some States we commit tramps and vagrants to gaol if they won't do a

certain amount of work for their lodging, under the theory that they

have committed a criminal act in being vagrants. Otherwise this

principle, a law requiring all persons to work, is now obsolete. Then

it went on to say, no workman or servant can depart from service

before the time agreed upon; lawful enough, to-day, although laborers

do not like to make a definite contract. The South, however, has

adopted this principle as to agricultural labor, just as in the

England of the fourteenth century. Southern States have an elaborate

system of legislation for the purpose of enforcing labor upon idle

negroes, which, when it creates a system of "peonage," is forbidden by

the Federal laws and Constitution. They are compelled, as in the old

English statute, to serve under contract or for a period of time, and

if they break it, are made liable by this statute to some fine or

penalty imposed by the nearest justice of the peace; and when they

cannot pay this, they may be Imprisoned. Finally, this Statute of

Laborers first states the principle that the old "wage and no more"

shall be given, thus establishing the notion that there was a legal

wage, which lasted in England for centuries and gave rise to the later

law under which strikes were held unlawful. Here, they meant such

wages as prevailed before the Black Death.

(1350) The next year the statute is made more elaborate, and

specifies, for common laborers, one penny a day; for mowers,

carpenters, masons, tilers, and thatchers, three pence, and so on. It

is curious that the relative scale is much the same as to-day: masons

a little more than tilers, tilers a little more than carpenters;

though unskilled labor was paid less in proportion. The same statute

attempts to protect the laborer by providing that victuals shall be

sold only at reasonable prices, which were apparently fixed by the

mayor.

Here, therefore, we have the much-discussed Standard Wage fixed by

law, but in the interest of the employer; not a "living wage" fixed

in the interest of the employee, as modern thought requires. The same

statute makes it unlawful to give to able-bodied beggars, which is of

a piece with the compulsory labor of the able-bodied. Now this first

Statute of Laborers, which led to centuries of English law unjust to

the laborers, it is interesting to note, was possibly never a valid

law, for it was never agreed to by the House of Commons. However that

may be, the confirming statute of 1364 was duly enacted by Parliament,

and this was not in terms repealed until the year 1869, although labor

leaders claim it to have been repealed by general words in the 5th

Elizabeth.

Thorold Rogers tells us that those, after all, were the happy days of

the laborer--when masons got four pence a day, and the Black Prince,

the head of the army, only got twenty shillings--sixty times as much.

This is a fair modern proportion, however, for military and other

state service; though we pay the president a salary of nearly double

that proportion to the yearly pay of a carpenter. But then, these

English statutes applied mainly to agricultural labor; and domestic

labor was paid considerably less.

This Statute of Laborers was again re-enacted in 1360, with a clause

allowing work in gross, and forbidding "alliances and covins between

masons, carpenters, and guilds." Work "in gross" means work by

contract, piece-work, thus made expressly lawful by statute in England

in 1360, but still objected to by many of our labor unions to-day.

The provision against alliances and covins was extended to cover

trades-unions, their rules and by-laws, as well as strikes, which were

also considered combinations in restraint of trade. Now this was never

law in this country.

There was a very early case in Pennsylvania, while it was still a

colony, and there were others in the States soon after, which held

that the Statutes of Laborers were never law in America. Our statutes

early authorized trades-unions, but without this there is, I think, no

American case where either a trades-union or a simple strike was held

to be an unlawful combination. It was these early statutes which gave

rise to the law that existed until the nineteenth century in England,

that both strikes and unions were unlawful; a strike because it was

usually a combination to raise the rate of wages, which was in theory

fixed by law. Therefore, a strike was a combination with an unlawful

aim, consequently a conspiracy. The logic is simple; and in the same

way a trades-union was certainly an alliance between skilled workmen,

and as such forbidden under the Statute of Laborers, besides being a

combination in restraint of trade.

Now the guild, in so far as it was a combination of a trade in a town,

was a perfectly lawful thing; in so far as it bore upon the right of a

man to be a freeman, it was a perfectly lawful thing; it was only from

the other end, from this statute I read as to combinations, that two

or three centuries later they got the notion that a trades-union was

an unlawful thing; so you may say that a trades-union in England has

a lawful root and an unlawful root, and it is rather important to see

from which each class springs. The first case in which the modern

strike was considered was a case known as the Journeymen Tailors'

case, which happened more than two hundred years ago; and in that case

it was definitely held to be an unlawful combination, while the first

case on the modern boycott, where an injunction was awarded, is as

late as 1868, this being the origin of that process which has evoked

so much criticism here, the use of the injunction in labor disputes.

The unskilled laborers in England have never combined; the only people

who combined were the guilds, the skilled men, and in so far as they

combined they did it rather as capitalists, employees, or as freemen,

to govern the town; this was a lawful object; and the guilds rapidly

grew into little aristocracies. They very soon ceased to be journeyman

laborers, and became combinations of employers. Thus, the guild

movement didn't amount to much in bringing about the modern

trades-union or combinations of laboring men; it began before it

occurred to these latter that they also could combine; just as,

even now, it is more difficult among _women_ to get them to join

trades-unions, or for working women to combine; they have not

apparently got into that stage of evolution; and so with the negroes

in the South. But about the end of the eighteenth century you begin to

find the first strikes and combinations of workingmen; and then what

the courts promptly applied to them was not the old line of statutes,

the historical common-law growth, deriving from a guild which in its

origin was a lawful body and so making the union free and lawful, but

naturally--for the magistrates were capitalists and land-owners, and

all the courts were in sympathy with that class--they went back to the

long series of Statutes of Laborers, and said "this is a combination

of workingmen to break the law by getting more than lawful wages,"

and consequently found both combinations unlawful, trades-unions and

strikes, as well as when they were combinations to injure somebody,

what we should now call a boycott.

The great Statute of Laborers which was for centuries supposed to

settle the law of England is that of Elizabeth in 1562. Meantime,

agricultural labor as well as industrial was getting to be free. A

statute of 1377, which requires villeins refusing to labor to be

committed to prison on complaint of the landlord, without bail, itself

recognizes that villeins fleeing to a town are made free after a year

and day's habitation therein. In 1383 came Wat Tyler's rising; the

villeins demanded a commutation of agricultural labor to a money rent

(four pence) and full freedom of trade and labor in all the market

towns; and about this time was great growth of small freeholders.

(1388) The Statute of Richard II restricts laborers to their hundred

and makes it compulsory for them to follow the same trade as their

father after the age of twelve. The wages of both industrial and

agricultural laborers are again fixed-shepherds, ten shillings a year;

ploughmen, seven; women laborers, six shillings, and so on. Servants

are permitted to carry bows and arrows, but not swords, and they may

not play tennis or foot-ball. And here is the historical origin of

the important custom of exacting recommendations: servants leaving

employment are required to carry a testimonial, and none are to

receive servants without such letter--the original of the blacklist.

Here, also, we find the beginning of poor-law legislation, those

unable to work are to be supported in the town where born. Villeinage,

which began at the Norman Conquest, according to Fitz-Herbert,

"because the Conqueror gave lordships with all the inhabitants to do

with them at their pleasure to his principal followers, and they,

needing servants, pardoned the inhabitants of their lives, and caused

them to do all manner of service"--was now abolished by compensation

in a money wage payment. The institution of villeinage is last

mentioned in a commission of Queen Elizabeth, 1574, directing Lord

Burleigh and others in certain counties to compound with all such

bondmen or bondwomen for their manumission and freedom.

(1389) The next year the practice of fixing wages at a permanent sum

is abandoned and they are to be fixed semi-annually at Easter and

Michaelmas by a justice of the peace. In 1402 we find the remarkable

provision that laborers are not to work on feast days nor for more

than half a day before a holiday. Such legislation would hardly be

necessary in modern England, where, in many trades, no one works for

a whole day after the holiday as well. In 1425 is another statute

forbidding masons to confederate themselves in chapters; and in 1427

the attempt to fix wages by law is again abandoned and they are to

be fixed by the justices as in 1389, "because Masters could not get

Servants without giving higher Wages than allowed by the Statute."

(1436) Now, perhaps, we find the first use of the expression

"restraint of trade," that most important phrase, in a statute

forbidding by-laws of guilds or corporate companies "in restraint of

trade," also forbidding unlawful ordinances by them as to the price

of their wares "_for their own profit and to the common, hurt of the

people_," and such by-laws are made penal and invalid except when

approved by the chancellor; and this statute of Henry VI is re-enacted

again in 1503 under Henry VII, where by-laws of guilds, etc.,

restraining suits at law are made unlawful, and so "_ordinances

against the common weal of the people_." The meaning and importance of

such legislation as this has been, I hope, made clear above. Note the

words "_to the common hurt of the people_" and "_against the common

weal of the people_." From this century, at least, therefore, dates

that doctrine of the common law which makes unlawful any contract or

combination in restraint of trade, and it was left for the succeeding

century to develop the last great principle, that against monopoly,

caused either by unlawful combination of individuals or grant by the

crown itself.

The right to labor or to trade was thus fully established in England,

and from the very earliest times we find statutes that merchants may

freely buy and sell. The Statute of York, to this effect (1335), is

re-enacted sixteen years later, and again under Richard II in 1391;

and their right to carry away one-half the value of their imports in

money, spending the other half in English commodities, in 1401.

This general right of trade may be defined as the right of any man

to work at what trade he chose, and to buy or sell what and where he

will, in the cheapest market. This right was indeed fundamental and

needed no express statute. But all these laws concerning by-laws or

combinations to prevent people from exercising their trade, or showing

what were the liberties of trade in London and other towns (of which

there are many) are exemplifications of it. That this law is far older

than the statutes is well shown by an actual law report of a case

decided in 1221 and first published by the Selden Society in 1877:

"The Abbot of Lilleshall complains that the bailiffs of Shrewsbury

do him many injuries against his liberty, and that they have caused

proclamation to be made in the town that none be so bold as to sell

any merchandise to the Abbot or his men upon pain of forfeiting ten

shillings, and that Richard Peche, the bedell of the said town, made

this proclamation by their orders. And the bailiffs defend all of it,

and Richard likewise defends all of it and that he never heard any

such proclamation made by anyone. It is considered that he do defend

himself twelve-handed (with eleven compurgators), and do come on

Saturday with his law."

This is a remarkable report, for in twelve lines (ten lines of the law

Latin) we have here set forth all the important principles of the law

of boycott. The abbot complains that the Shrewsbury people do him

many injuries "against his liberty," _i.e._, the abbot claims a

constitutional right to freely conduct his own business; then we have

the recognition of the threat of a boycott as a particularly illegal

act: "They have caused _proclamation_ to be made that none sell

merchandise to the abbot." This is nothing but our modern "unfair

list." The defendants admit the illegality of their conspiracy,

because they deny it as a fact; and the bedell likewise denies that he

ever made such proclamation or threat, whereupon (the plaintiff being

a man of the church) they are set to trial by wager of law instead of

by actual battle, neither party nor the court making any question of

the illegality both of the conspiracy and of the act complained of.

There is no question then that all contracts in unreasonable restraint

of trade were always unlawful in England and are so therefore by

our common law. There was probably no real necessity for any of our

anti-trust acts, except to impose penalties, or, as to the Federal or

Sherman Act so-called, to extend the principles of the common law to

interstate commerce, which is under the exclusive jurisdiction of the

Federal government. The common law, however, made the exception of

_reasonable_ restraint of trade, which the Sherman Act does not; that

is to say, a contract between two persons, one of whom sells his

business and good-will to the other and agrees not to embark in the

same trade for a certain number of years or in a certain prescribed

locality, was a reasonable restriction at the common law. So, if two

merchants going down town to their business agree in the street car

that they will charge a certain amount for a barrel of flour or a ton

of coal that week, this would probably be regarded as reasonable at

the common law; but the common law, like these early statutes of

England, looked primarily, if not exclusively, to the welfare of the

consumer; they always speak of the common weal of the people, or

of combinations to the general hurt of the people, and general

combinations to fix prices or to limit output are therefore always

unlawful; so a combination that only one of them should exercise a

certain business at a certain place--like that of our four great

meatpacking firms, who are said to have arranged to have the buyer

for each one in turn appear in the cattle market, thus being the

only buyer that day--would be unlawful, when the restraint of trade

resulting from an ordinary purchase would not be.

The fixing of ordinary prices, not tolls, was thoroughly tried in the

Middle Ages and failed. Nor has it been attempted since as to wages,

except in New Zealand by arbitration, and in England and (as to public

labor) in the State of New York and a few other States where we have a

recent statute that all employment in public work (that is, work

for any city, county, or town, or the State, or for any contractor

therefor) must be paid for "at the usual rate of wages prevailing in

the trade"; this principle, taken from the last form of the English

Statute of Laborers, being passed in the interest of the laborers

themselves and not of the employers, as it was in early England. The

result of this first piece of legislation was to impose some twenty

thousand lawsuits upon the city of New York alone; the laborers

working for a year or two at the rates paid by the city and then,

after discharge, bringing suit and claiming that they had not been

paid the "usual rate" of the trade; and as there were very heavy

penalties, it is said to have cost the city of New York many millions

of dollars. In the same way the union idea of having all trades under

the control of an organization was carried to its extreme result in

the Middle Ages also, so that the guilds became all-powerful; they

imposed their rules and regulations to such an extent that it was

almost impossible for any man to get employment except by their

permission and under their regulation, or without membership. They

naturally developed into wealthy combinations, more of employers than

of journeymen, until they ended as the richly endowed dinner-giving

corporations that we see in the city of London to-day. In France, at

least, they were considered the greatest menace to labor, and were all

swept away at the time of the French Revolution amid the joy of the

masses and the pealing of bells. Unfortunately, our labor leaders are

sometimes scornful of history and unmindful of past example; the

fact that a thing has been tried and failed or has, in past history,

developed in a certain manner, carries no conviction to their minds.

(1444) A servant in husbandry had to give six months' notice before

leaving and wages were again fixed; and in 1452, the time of Jack

Cade's Rebellion, one finds the first prototype of "government

by injunction," that is to say, of the interference by the lord

chancellor or courts of equity with labor and the labor contract,

particularly in times of riot or disorder.

But the first trace of this practice, now obnoxious to many under

the phrase quoted, dates back to 1327, when King Edward III found it

necessary to adopt some more effectual measures of police than those

which already existed. For this purpose justices of the peace were

first instituted throughout the country with power to take security

for the peace and bind over parties who threatened offence.[1] Fifty

years later, in the reign of Richard II, it was found necessary to

provide further measures for repressing forcible entries on lands.

The course of justice was interrupted and all these provisions were

rendered in a great degree ineffectual by the lawless spirit of the

times. The Statute of 1379 recites that "our Sovereign Lord the King

hath perceived ... that divers of his Liege People claiming to have

Right to divers Lands, Tenements, and other Possessions, and some

espying Women and Damsels unmarried ... do gather them together to a

great Number of Men of Arms and Archers ... not having Consideration

to God, but refusing and setting apart all Process of the Law, do ride

in great Routs ... and take Possession of Lands and in some Places

do ravish Women and Damsels, and bring them into strange Countries."

Therefore the Statute of Northampton, the 2d of Edward III, is recited

and confirmed and the justices of the king's commission ordered to

arrest such persons incontinent without tarrying for indictment or

other process of law. But that this summary process was already

obnoxious to the people was shown by the fact that it was repealed the

very following year because the articles "seemeth to the said Commons

very grievous." Only the Statute of Northampton is preserved, and

those who had been so taken and imprisoned by virtue of said article

without other indictment "shall be utterly delivered."

[Footnote 1: See "Injunctions in Conspiracy Cases," Senate Document

No. 190, 57th Congress, 1st Session, p. 117.]

(1384) It is noteworthy that at the same time that this

extra-common-law process begins in the statutes, we have other

statutes vindicating the power of the common-law courts. For instance,

six years later, in the 8th of Richard II is a clause complaining that

"divers Pleas concerning the Common Law, and which by the Common Law

ought to be examined and discussed, are of late drawn before the

Constable and Marshal of England, to the great Damage and Disquietness

of the People." Such jurisdiction is forbidden and the common law

"shall be executed and used, and have that which to it belongeth ...

as it was accustomed to be in the time of King Edward." Again, four

years later, it is ordained "that neither Letters of the Signet, nor

of the King's Privy Seal, shall be from henceforth sent in Damage or

Prejudice of the Realm, nor in Disturbance of the Law."

(1388) The next year we find a new Statute of Laborers confirming all

previous statutes and forbidding any servant or laborer to depart from

service without letters testimonial, and if found wandering without

such letters shall be put in the stocks. Short of the penalty of the

stocks, a condition of things not very dissimilar is said to exist

to-day in the non-union mining towns of the West. In Cripple Creek,

for instance, no one is allowed without a card from his previous

employer which, among other things, sets forth that he is not

associated with any labor union. This Statute of Richard II also

provides that artificers and people of Mystery, that is to say,

handicraftsmen, shall be compelled to do agricultural labor in harvest

time. (The high prices of to-day, some one has said, are really caused

not so much by the trusts or even by the tariff, as by voluntary

idleness; if a man will not work, neither shall he eat, but the lesson

has been forgotten! In the more prosperous parts of the country, in

Massachusetts, for instance, it is sometimes impossible to give away

a standing crop of grain for the labor of cutting it, nor can

able-bodied labor be secured even at two dollars per day. The

Constitution of Oklahoma, which goes to the length of providing that

there shall be no property except in the fruits of labor, might

logically have embodied the principle of this Statute of Richard II;

and we know that in Kansas they invite vacation students to harvest

their crop. So in France, practically every one turns out for the

vendange, and in Kent for the hops; a merriment is made of it, but

at least the crop is garnered.) The Statute of Richard goes on to

complain of the outrageous and excessive hire of labor, and attempts

once more to limit the prices, but already at more than double those

named in the earlier statute: ploughmen seven pence, herdsmen six

pence, and even women six pence a day, and persons who have served in

husbandry until the age of twelve must forever continue to do so.

They may not learn a trade or be bound as apprentices. Servants and

laborers may not carry arms nor play at foot-ball or tennis; they

are encouraged, however, to have bows and arrows and use the same on

Sundays and holidays. Impotent beggars are to be supported by the town

where they were born.

(1387) The barons protested that they would never suffer the kingdom

to be governed by the Roman law, and the judges prohibited it from

being any longer cited in the common-law tribunals;[1] and in 1389 we

find another statute complaining of the courts of the constable and

marshal having cognizance of matters which can be determined by the

common law, and forbidding the same; and the statute of the previous

year concerning laborers is confirmed, except that wages are to be

fixed by a justice of the peace, "Forasmuch as a Man cannot put the

Price of Corn and other Victuals in certain." Shoemakers are forbidden

to be tanners, and tanners to be shoemakers; a statute which seems

to have been much debated, for it is continually being repealed and

re-enacted for a hundred years to follow.

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

(1392) The Statute of York, giving free trade to merchants, is

re-enacted, and it is specified that they may sell in gross or by

retail "notwithstanding any Franchise, Grant or Custom," but they are

forbidden to sell to each other for purposes of regrating and they

must sell wines in the original package and "Spicery by whole Vessels

and Bales." "All the weights and measures throughout the Realm

shall be according to the Standard of the Exchequer"--save only in

Lancashire, where they are used to giving better measure.

(1402) Laborers are forbidden to be hired by the week or to be paid

for holidays or half days. In 1405 the old Statute of Laborers is

re-enacted, particularly the cruel law forbidding any one to take up

any other trade than husbandry after the age of twelve, nor can any

one bind his child as apprentice to learn a trade unless he has twenty

shillings per annum in landed property.

(1414) The 2d of Henry V recites the Statute of the 13th of Henry

IV against rioters, but power to suppress them is intrusted to the

justices of the peace and the common-law courts "according to the law

of the land." Only if default is made in suppressing them the king's

commission goes out under the great seal, showing the beginning of

the use of the executive arm in suppressing riots, of which our

most famous instance was the action of President Cleveland in the

Pullman-car strike in Chicago in 1893. And in the same statute the

chancery arm is invoked, that is to say, if any person complain that

a rioter or offender flee or withdraw himself, a bill issues from

the chancery, and if the person do not appear and yield, a writ of

proclamation issues that he be attainted, a more severe punishment

than the six months' imprisonment usually meted out to our contemners.

It is interesting to notice that the bills (petitions for legislation)

are now in English; though the statutes enacted are still in French or

Latin.

(1425) A statute recites that "by the yearly Congregations and

Confederacies made by the Masons in their general Chapiters and

Assemblies, the good Course and Effect of the Statute of Labourers be

openly violated ... and such Chapiters and Congregations are forbidden

and all Masons that come to them are to be punished by imprisonment

and fine"--an excellent example of the kind of statute which led to

the doctrine that trades-unions were forbidden by the common law of

England.

(1427) The next year the attempt to fix wages by law is again

abandoned, and they are to be fixed by the justices, "because Masters

cannot get Servants without giving higher Wages than allowed by the

Statute."

The exact time of the appearance of the modern corporation has been

a matter of some doubt. Its invention was probably suggested by the

monastic corporation, or the city guild. This whole matter must be

left for a later chapter, but we must note the phraseology of a

statute of Henry VI in 1426, which speaks of "Guilds, Fraternities,

and other Companies corporate," and requiring them to record before

justices of the peace all their charters, letters-patent, and

ordinances or by-laws, _which latter must not be against the common

profit of the people_, and the justices of the peace or chief marshal

are given authority to annul such of their by-laws as are not

reasonable and for the common profit--the fountain and origin of a

most important doctrine of the modern law of restraint of trade and

conspiracy.

(1444) Servants in husbandry purposing to leave their masters were

required to give warning by the middle of the term of service so that

the "Master may provide another Servant against the End of his Term."

Again a maximum price is fixed for the wages of servants, laborers,

and artificers: the common servant of husbandry, fifteen shillings a

year, with money for clothing, eleven shillings; and women servants

ten shillings, with clothing price of four shillings, and meat and

drink. But winter wages are less and harvest wages more than in

summer; and men who refuse to serve by the year are declared

vagabonds.

(1450) John Cade was attainted of treason, and in 1452 comes the

famous statute giving the chancellor power to issue writs of

proclamation against rioters or persons guilty of other offences

against the peace, with power to outlaw upon default, quoted by

Spence[1] as the foundation of the practice of issuing injunctions

to preserve the peace, now bitterly complained of by Mr. Gompers and

others; and it is most noteworthy as sustaining this adverse view

that the Statute of Henry VI itself makes special exception, "That no

Matter determinable by the Law of this Realm shall be by the same Act

determined in other Form than after the Course of the same Law in

the King's Courts having Determination of the same Law," and the act

itself is only to endure for seven years.

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

(1487) This year a Statute of Henry VII originates the criminal

jurisdiction of the Court of Star Chamber,[1] an interesting statute

reciting that the Mayor and Aldermen of London have forbidden citizens

to go to fairs or markets, or trade outside the city, which is

declared "contrary to the common weal of England" and the ordinance

made void. In 1495 the laws against riots and unlawful assemblies are

recited and confirmed, and authority to punish and prevent them given

to the justices and the common-law courts, except that the justices

themselves in a case of such disorder by more than forty persons are

to certify the names of the offenders to the king and his council

(that is to say, the Star Chamber) for punishment. In 1495 the

wages of servants in husbandry and of artificers and shipwrights,

master-masons and carpenters are again fixed, with the hours of work

and meal time provided; in March, from 5 a.m. till 7 or 8 p.m., but

with half an hour for breakfast, an hour and a half for dinner, and

half an hour for supper, and in winter time from dawn till sunset, and

"said Artificers and Laborers shall slepe not by day" except between

May and August; but this whole act "for the common wealth of the poor

artificers" is repealed the following year.

[Footnote 1: This court, says Lord Coke, was originally established to

protect subjects against the offences and oppressions of great men by

extortion, frauds, riots, unlawful assemblies, etc., leaving ordinary

offences to the courts of common law, and Clarendon adds that "whilst

it was gravely and moderately governed, it was an excellent expedient

to preserve the peace and security of the kingdom." Nevertheless,

"having become odious by a tyrannical exercise of its powers, it was

abolished by a Statute of 16 Charles I."]

(1503) This year there is another important statute against private

and illegal by-laws, reciting that "companies corporate by color of

rule and governance to them granted and confirmed by charters and

letters patent of divers Kings made among themselves many unlawful and

unreasonable ordinances as well in price of wares as other things for

their own singular profit and to the common hurt and damage of the

people," and such by-laws are forbidden unless specially authorized by

some official such as the chief governor of the city. The law so

far dates from the 15th of Henry VI; but the present act goes on to

provide that "no masters, fellowships of crafts or rulers of guilds or

fraternities make any acts or ordinances against the common profit of

the people but with the examination and approval of the Chancellor and

Chief Justice of England, and that there shall never be any by-law to

restrain any person from suits in the common-law courts." A Federal

statute similar to this was proposed by a late president to apply

to all corporations, or at least to all corporations conducting

interstate commerce; the approval of their by-laws or other contracts

to be by the Federal commissioner of corporations; while the last

section forbidding trades-unions to deny to their members the right

of suing them or other persons in the ordinary courts is part of

our constitutional law to-day and much objected to by the unions

themselves, as it was in the time of Henry VII The tendency to create

special courts (commerce, patents, etc.) seems to be beginning anew,

despite the malign history of the ancient courts of the Constable and

Marshal, Star Chamber, Requests, Royal Commissions, etc.

(1512) Under Henry VIII the penalty for paying higher wages than the

law allowed was removed from the employer and applied only to the

employee taking the wage; and in 1514 comes perhaps the most elaborate

of all the earlier acts fixing the wages and hours of labor. Their

meal times and sleep times are carefully regulated, they are forbidden

to take full wages for half-day's work and forbidden to leave a job

until it is finished, and the rates of pay of bailiffs, servants,

free masons, master carpenters, rough masons, bricklayers, tilers,

plumbers, glaziers, carvers, joiners, shipwrights, ship carpenters,

calkers, clinchers, agricultural laborers, both men and women, mowers,

reapers, carters, shepherds, herdsmen, and possibly others, are again

prescribed; this list of trades in the England of the early sixteenth

century is interesting. Bailiffs who assault their overseers may be

imprisoned for a year, and an exception is made from the act of

all miners of lead, iron, silver, tin, or coal, "called See Cole,

otherwise called Smythes Coole," or for making of glass, but that part

of the act fixing wages was repealed the very next year as to the city

of London.

(1514) The abuse of monopolies begins to be shown this year (but see

also 1503, above) in a statute complaining of the grant of second

patents of a matter already granted; and avoiding in such cases the

later patent unless the king express that "he hath determined his

pleasure against the first."

The appearance of the gypsies in England is marked by a statute

of 1530, describing them as "outlandish people called Egyptians,"

complaining of their robberies, and requiring them to depart the

realm. In the same year first appeared the celebrated Act for the

punishment of beggars and vagabonds and forbidding beggary, and

requiring them to labor or be whipped. Herbert Spencer states in his

"Descriptive Sociology" that it punishes with loss of an ear the third

conviction for joining a trades-union, which, if true, would justify

much of the bitterness of modern labor unions against the common

law. The provision evidently referred to (22 Henry VIII, chapter 12,

section 4) applies, however, not to guilds, but to "Scolers of the

Universities of Oxford and Cambridge that go about begging not being

authorized under the seal of the said Universities" as well as to

other beggars or vagabonds playing "subtile, crafty and unlawful games

such as physnomye or palmestrye." The same year is an Interesting

statute against foreign artificers exercising handicrafts in England,

not without example in the labor legislation of our modern States;

but exempting beggars, brewers, surgeons, and scriveners as not

handicraftsmen, possibly the origin of the vulgar notion that those

trades are more genteel than skilled labor.

(1535) Another statute against sturdy vagabonds and "rufflers found

idling after being assigned to labor," and already having their ears

so slit, are punishable with death. This year Wales was joined to

England; and we see the first act for the suppression of monasteries;

the next year came the statute extinguishing the authority of the

Bishop of Rome. With the struggle against the Roman Church went

the contest for freedom; _inter arma silent leges_; sociological

legislation came to an end for the rest of the reign and arbitrary

laws passed at the king's desire; in 1536, the act authorizing kings

of England, on arriving at the age of twenty-four, to repeal any act

of Parliament made during their minority, and in 1539 the "Act that

Proclamations made by the King shall be obeyed"--the high-water mark

of executive usurpation in modern times. Proclamations made by the

king and council were to have the force of acts of Parliament, yet not

to prejudice estates, offices, liberties, goods or lives, or repeal

existing laws; the cardinal constitutional rights were thus preserved,

even as against this royal aggression.

(1548) Under Edward VI and Elisabeth we may expect more enlightened

legislation, and are not disappointed. Indeed, no one can read the

statutes of the great queen without seeing that modern times here

begin. Nevertheless, while trade is becoming free, labor is no less

severely, if more intelligently, regulated. We first note a short

but important statute touching victuallers and handicraftsmen, worth

quoting in part: "Forasmuche as of late dayes divers sellers of

vittayles, not contented withe moderate and reasonable gayne ...

have conspyred and covenanted together to sell their vittels at

unreasonable price; and lykewise Artyficers handycrafte men and

laborers have made confederacyes and promyses and have sworne mutuall

othes, not onlye that they shoulde not meddle one withe an others

worke, and performe and fynishe that an other hathe begone, but also

to constitute and appoynt howe muche worke they shoulde doe in a daye

and what bowers and tymes they shall work, _contrarie to the Lawes and

Statutes of this Realme_" (It is extraordinary how closely this old

statute sets forth some practices of the modern trades-union.) "Everie

person so conspiring covenantinge swearing or offendinge ... shall

forfeyt for the firste offence tenne pounds ... or twentie dayes

ymprisonment" with bread and water; for the second offence, twenty

pounds or the pillory, and for the third offence forty pounds, or the

pillory and lose one of his ears. After that he is to be taken as a

man infamous and his oath not to be credited at any time, and if

there be a corporation of dealers in victuals or of handicraftsmen so

conspiring, it shall be dissolved--the origin and precedent of the

Sherman Act! This, of course, is the statute which Herbert Spencer

cites as making a "third conviction for joining a trades-union

punished with loss of an ear"; but he places the date at 1535 instead

of 1548. The statute, however, goes on to provide absolute freedom of

employment or trade for all skilled mechanics in any town, although

not freemen thereof, whether they dwell there or not, any town or

guild by-law to the contrary notwithstanding; so that this important

statute may be said to establish the most enlightened view that there

must be absolute liberty of employment granted any one, only that they

must not conspire to the injury of others. Unfortunately, in the

very next year this last part is repealed as to the city of London,

"Artificers and Craftmen of that ancient City complaining that it was

contrary to their ancient privilege," a view as modern as is the law

itself. Immediately after this law is one providing that journeymen,

clothiers, weavers, tailors, and shoemakers shall not be hired for

less than a quarter of a year on penalty of Imprisonment to them

and the employer, the statute reciting that, once out of their

apprenticehood, they "will not commonly be retained in service by

the year, but at their liberty by the day, week or otherwise, to the

intent that they will live idly, and at their pleasure flee and resort

from place to place, whereof ensuith more incovenyencies then can be

at this present expressed and declared"--an inconvenience not unknown

in modern intelligence offices. All employers having more than three

apprentices shall keep at least one journeyman, and unmarried servants

in husbandry must serve by the year.

(1550) In the 3d of Edward VI we find the first Riot Act, aimed at

persons to the number of twelve or above assembling together and

proposing to alter the laws and not dispersing when so required by

the sheriff, and even persons more than two and less than twelve

assembling for such purpose are subject to fine and imprisonment with

treble damages to parties injured, and if forty persons so assemble

and do not disperse in three hours, they are declared felons. This

statute was re-enacted and made more severe in the reign of Queen

Mary.

(1562) In the 5th of Elizabeth comes the last and greatest Statute of

Laborers. This statute is a consolidation of all previous laws, and

it begins by recognizing the principle that the fixing of wages is a

mistake and all such laws are repealed so far as they relate to terms

of hiring and wages. Servants in certain employments, generally

speaking the tailoring and shoemaking trades, may still be hired

by the year, and persons unmarried, not having an income of forty

shillings a year, may be compelled to serve in their own handicraft.

Such yearly servants may not be dismissed or depart during the year

except by cause allowed by two justices, nor at the end of a year,

without a quarter's warning. Unmarried persons under thirty, not

having any trade and not belonging to a nobleman's household, may

be compelled to labor at the request of any person using an art or

mystery, and all persons between twelve and sixty not otherwise

employed may be compelled to serve by the year in husbandry. The

masters may not dismiss, nor the servants unduly depart; nor leave the

city or parish of their service without a testimonial; that is to say,

a certificate of due cause under the seal of the town or constable and

two honest householders. The hours of labor are still fixed from 5

A.M. to 7 P.M., between March and September, with two and one-half

hours for meal times, drink times, and sleep. From September to May,

from dawn to sunset, and sleep times only allowed from May to

August. A penalty of one month's imprisonment and fine is imposed on

artificers and laborers leaving their work unfinished. Wages are still

to be fixed by the justices of the peace, and it is made a penal

offence to give or receive higher wages than the lawful rate, and all

contracts for higher wages are void. Unmarried women between twelve

and forty may be compelled to serve in like manner, and everybody

has to work at harvest time, that is to say, artificers as well as

laborers. The elaborate law of apprenticeship dates also from this

great statute, and no one can use a manual art who has not been

apprenticed to the same for seven years. One journeyman shall be kept

for each three apprentices; disputes are to be settled by the justices

of the peace, and indeed the whole labor contract is regulated as

carefully as the most statute-mad of modern labor leaders could

desire, though hardly, perhaps, then, in the sole interest of the

workingman. If this statute was ever repealed, it was in very recent

times.

(1571) The year of the statute against fraudulent conveyances, and

of another poor law, with provisions for the punishment of "rogues,

vagabonds and sturdy beggars," who are defined to include those going

about the country "using sybtyll craftye and unlawfull Games or Playes

... Palmestrye ... or fantasticall Imaginacons.... Fencers Bearewardes

and Common Players," and the penalty for harboring such vagabonds was

twenty shillings. We are a long time from the knighting of Sir Henry

Irving. In 1575 comes another act for setting the poor to work, and

the punishing of tramps and beggars.

In 1571 also is the first formal complaint of monopolies by the

Commons. Coal, oil, salt, vinegar, starch, iron, glass, and many other

commodities were all farmed out to individuals and monopolies; coal,

mentioned first, is still, to-day, the subject of our greatest

monopoly; while oil, mentioned fourth, is probably the subject of our

second greatest monopoly; and iron, mentioned seventh, is probably the

third. Conditions have not changed. The only reason we don't have salt

still a monopoly is on account of the numerous sources and processes

for obtaining it from mines and from the sea; Fugger, the John D.

Rockefeller of the sixteenth century (whose portrait in Munich

strongly resembles him), had a monopoly of the salt mines of all

Germany. The conditions have maintained themselves, even as to the

very articles. This grievance was first mooted in Parliament in 1571

by a Mr. Bell, "who was at once summoned before the Council." This

council was the King's Council, or Privy Council--a body roughly

corresponding to our United States Senate. He was summoned before the

council for objecting because coal, oil, salt, vinegar, starch, iron,

glass, were the subjects of monopoly; and he "returned to the House

with such an amazed countenance that it daunted all the rest." That is

very much the fate of the tariff reformer to-day, if we may credit the

tales of those returning from Washington.

After a lapse of twenty-six years the Commons ventured again. This

time the queen replied that she hoped her dutiful and loving subjects

would not take away her prerogative, which is the choicest flower

in her garden, but promised to examine all patents and abide the

touchstone of the law. Nevertheless, four years later the list of

articles subject to monopoly was so numerous that when it was read

over to the House in 1601 an indignant member exclaimed: "Is not bread

amongst them? Nay, if no remedy is found for these, bread will be

there before the next Parliament." The Populists openly cursed the

monopolies and declared that the prerogatives should not be suffered

to touch the old liberties of England. Seeing that resistance was no

longer politic, Elizabeth sent a message to the House saying that some

of these monopolies should be presently repealed, some superseded, and

none put in execution but such as should first have a trial according

to law for the good of the people; and Robert Cecil, the secretary,

added an assurance that all existing patents should be revoked and no

others granted for the future. The Commons waited upon the queen with

an address of thanks, to which she replied almost affectionately that

never since she had been queen "did I put my pen to any grant but upon

pretence made to me that it was good and beneficial to the subjects in

general, though a private profit to some of my ancient servants who

had deserved well. Never thought was cherished in my heart which

tended not to my people's good." Notwithstanding these fair words, the

House of Commons found it necessary to enact the Great Statute against

Monopolies.

(1623) In the beginning, the statute recites that "Your most excellent

Majestie in your Royall Judgment ... did In the yeare ... 1610 ...

publish in Print to the whole Realme and to all Posteritie, that all

Graunt of Monapolyes and of the benefitt of any penall Lawes, or of

power to dispence with the Lawe ... are contrary to your Majesties

Lawes, which your Majesties Declaracon is truly consonant and

agreeable to the auncient and fundamentall Lawes of this your

Realme.... Nevertheles ... many such Graunts have bene undulie

obteyned ... For avoyding whereof and preventinge of the like in tyme

to come, May it please your most excellent Majestic ... that it may be

declared and enacted, and be it declared and enacted by the authoritie

of this present Parliament That all Monapolies and all Commissions

Graunts Licenses Charters and lettres patents heretofore made or

graunted, or hereafter to be made or graunted to any person or persons

Bodies Politique or Corporate whatsoever of or for the sole buyinge

sellinge makinge workinge or usinge of any things within this Realme

or the Dominion of Wales, or of any other Monopolies, or of Power

Libertie or Facultie to dispence with any others, or to give Licence

or Toleracon to doe use or exercise any thinge against the tenor or

purport of any Lawe or Statute ... are altogether contrary to the laws

of this realm and so are or shall be utterly void and in no wise to be

put in use or execution." Section 2 provides that all such monopolies

and the force and validity of them ought to be and should forever

hereafter be examined, tried, and determined by and according to

the common law; section 4, that a party aggrieved might have treble

damages, as in our modern Sherman Act. There followed provisos for

exempting existing patents for twenty-one years or less for new

inventions or like future patents for fourteen years or less, the

charters of the city of London, or any custom or customs of London, or

any other city or town, for corporations, companies, or fellowships of

any art, trade, occupation, or mystery; that is to say, exempting the

guilds, but these guilds by this time had long ceased to be societies

of actual journeymen or handicraftsmen. This great statute may fairly

be classed among the constitutional documents of England, and it left

the great fabric of the English common law guaranteeing freedom of

labor and liberty of trade, Magna Charta itself recognizing this

principle, and the Statute of Westminster I forbidding forestalling

and excessive toll contrary to the laws of England, as it has remained

until the present day--only rediscovered in the statutes of our

Southern and Western States aimed against trusts, and reapplied by

Congress, in the Sherman Act, to interstate commerce; but in neither

case added to, nor, possibly, improved.

Two years before this great statute, the process of impeachment, not

employed for nearly two hundred years, had been revived against Sir

Giles Mompesson and Sir Francis Mitchell, who in the Parliament of

1621 were impeached "for fraud and oppression committed as patentees

for the exclusive manufacture of gold and silver thread, for

the inspection of inns and hostelries, and for the licensing of

ale-houses. While no definite articles were presented according to

modern forms, an accusation was made by the Commons and a judgment

rendered by the Lords, condemning both to fine, imprisonment, and

degradation from the honor of knighthood." Nevertheless, Charles

I revived the system of monopolies and raised revenue by their

application to almost every article of ordinary consumption as well as

by enormous fines inflicted through the Star Chamber, both important

matters leading to his dethronement.[1] Elizabeth granted monopolies

on the perfectly madern pretence that a monopoly, be it made by law or

by tariff, is for the benefit of the public good, though at the same

time possibly a private profit to certain individuals, friends of the

sovereign.

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

But all this early legislation of England was far better and more

advanced than our own; for in all these questions of duties on exports

and duties on imports and monopolies, they never consider the man who

has the monopoly, the producer; but always they are avowed to

be, petitioned for, declared to be, only in the interests of the

_consumer_; which cannot be said to be the case with ourselves.

V

OTHER LEGISLATION IN MEDIAEVAL ENGLAND

(1275) The Statute of Westminster I has sometimes been termed a great

English code; it is certainly a comprehensive statement by statute of

a considerable portion of existing law. In our consideration of

labor and conspiracy laws we have had to include statutes of later

centuries. Now, returning to the year of the Statute of Westminster,

we found, in 1275, also the Statute of Bigamy, aimed against priests

with more than one wife. It is to be noted that this was centuries

before the celibacy of priests became one of the doctrines of the

Roman Catholic Church. It is also interesting that this early statute

refers to the pope as "the Bishop of Rome"--but only as printed since

1543.

(1279) The Statute of Mortmain, aimed at the holding of land in large

quantities by religious corporations, was a true constructive statute,

and the principle it establishes has grown ever since. The law

regards with jealousy the ownership of land by any corporation;

the presumption is against the power, and it extends to-day to all

corporations, and particularly to alien corporations (see chapter 7);

and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 and

called the "Statute Merchant," equally important. It provides for the

speedy recovery of debts due merchants, and is the foundation of all

our modern law of pledge, sales of collateral, etc. It is distinctly

an innovation on the common law; for in those days there was no method

of collecting ordinary money debts. You could levy on a man's land,

but there really seems to have been no method of recovering a debt

contracted in trade; and this is the first of many statutes adopting

foreign ideas as to matters of trade, and the customs of merchants,

drawn frequently from the Lombard or Jew traders of the Continent,

which, by statute law, custom, or court decision, has since become

such a considerable body of the English law as to have a name

to itself--the "Law Merchant." This first statute provides for

imprisonment for debt; "if he have no goods to be seized the debtor is

to be imprisoned, but the creditor shall find him bread and water."

A foreigner coming to England to recover a debt may also recover the

expenses of his trip; and the statute is further liberal in that it

does away with the _Droit d'Aubaine_, that narrow-minded custom by

which the goods or personal property of any person who died passing

through the kingdom were seized by the authorities and could not be

recovered by his heirs. This mediaeval injustice continued for some

centuries in Germany and France, and we can hardly say that the notion

is extinct in this country when a State like California, by her system

of public administrators, practically impounds a large proportion of

all personal property owned by non-residents at their death. Cases

have been known where it cost the executor more than one-third of

the money to collect a mortgage, owned by a deceased citizen of

Massachusetts, in California; and for that reason, among others,

Eastern lawyers have advised against investments in that State; for

the public administrators are usually petty politicians in search of a

job. The increasing burden of our State inheritance tax laws, whereby

every State wherein a corporation exists besides the State of the

deceased seizes its percentage of the stock of such corporation in the

hands of the executors, is another step in this direction. This early

Statute Merchant, liberal in other respects, still excludes Jews from

its benefits.

(1284) Jury trial was well established by this time, for the Statute

of Wales includes it in its code of procedure for that principality.

The great Statute _De Donis_, or Westminster II, came the following

year; most interesting to lawyers as the foundation of estates tail;

but it also regulates "assizes or juries" that "rich men do not abide

at home by reason of their bribes." It also specifically requires

indictment "of twelve lawful men at least," and gives an action

against sheriffs imprisoning without such warrant "as they should have

against any other person." Rape, ten years before made punishable only

by two years' imprisonment, is now made an offence punishable by

loss of life or member; showing how our ancestors treated a burning

question, at least in our Southern States, of to-day. Finally, it

confirms and explains the writ _de odio et atia_, the predecessor of

the modern _habeas corpus_. Some writers have doubted whether this

writ existed as a practical remedy much before the Statute of Charles

II; but here it says that parties indicted, etc., are to have the writ

_de odio et atia_ "lest they be kept long in prison, like as it is

declared in Magna Charta." This can only refer to C. 36 of John's

Charter, "the writ of inquest of life or limb to be given gratis and

not denied"; and taken in connection with the action for damages just

given affords a fairly complete safeguard to personal liberty. It also

contains the first game law, protecting "salmons." "There are salmons

in Wye," says Shakespeare, and we are reminded of it because the

Statute of Winchester in the same year contains a provision that is

almost literally quoted by Dogberry in "Twelfth Night." It provides

for the gates of great towns to be shut at sunset, and that no citizen

should bear arms, and no tavern sell drink after 9 P.M., and then it

comes to the duties of the watch, which are described in such like

manner that Dogberry's language seems a mere paraphrase. Whoever wrote

the play certainly had read the Statutes of the Realm for the year

1285, but so far as I am aware, the Baconians have not yet called

attention to this. And the same statute shows us how much better

police protection the England of 1285 gave than the New York or

Chicago of 1909; for all the people dwelling in the hundred or country

(county) if they do not deliver the body of the offender, "shall be

answerable for the robberies done and also the damages." The same year

was a statute of "The common customs of the City of London," among

which was one that "taverns should not be open after 9 P.M. for the

selling of wine or ale," a regulation for their "tenderloin," which

itself is described in quite modern terms; "none shall walk the

streets after curfew." Possibly the same year is the Statute of

Bakers, with careful provisions against putrid meat, worthy of

consideration by our cold-storage plants. Butchers selling unwholesome

flesh, or buying it of the Jews, were severely punished.

(1289) The Statute of Quo Warranto is another historical landmark,

showing the jealousy our ancestors felt of officials, bureaucracy; a

writ specially devised to enable them to challenge the right of any

magnate who pretended to power by virtue of holding office, and the

predecessor of our modern _quo warranto_, which we still use at all

times for that purpose, not only as against officers but to test

any special privileges or charters claimed, such as the right to a

monopoly, a franchise, a ferry, etc. These may be still tried by _quo

warranto_; meaning, by what warrant do you claim to exercise this

office, this monopoly, this privilege?

About this time is another statute forbidding usury, and permitting

Christian debtors to retain half of all debts they may owe to the

Jews, who are required to wear the mark of two cables joined on their

coats; and there is the great Statute of Westminster III, _Quia

Emptores_, affecting land tenures, still of importance to the

conveyancers. In 1295 we have the famous Model Parliament; that is to

say, the first one where kings, lords, and commons were joined, the

legislative branches sitting separately and the Commons represented.

Two years later Edward I, carrying on the war in Flanders, was

compelled to grant that great confirmation of the charters already

referred to, that no aid or tax should be taken but by the common

consent of the realm and for the common profit; restoring thus into

the recognized charter that important provision of the original

Charter of John; and it provides that the great charter shall be read

twice a year in every cathedral in England. In our country I am aware

of no provision for reading the Constitution, though the Declaration

of Independence, an obsolete document, is occasionally read upon the

Fourth of July.

In 1305 the Anglo-Norman law reports begin, the Year Books. From then

to now, at least, we have continuous written reports of all important

cases decided in England. This is not to say that we do not have them

before (our people, first in the world's history, has the records of

all its cases in high courts for nigh a thousand years), but they are

now for the first time systematic.

(1309) On the accession of Edward II came the Summary of Grievances,

recited in the Statute of Stamford as recognized by Edward I at the

close of his reign. The seizure of supplies by the king without due

payment; the maintenance of courts at the gates of the king's castles

in derogation of the common-law courts; the taking of "new customs,"

two shillings per tun of wine, two shillings for cloth and other

imports, "_whereby the price to the people is enhanced"_; the

debasement of current coin; that petitions of the Commons to

Parliament were not received, etc., etc. All duties were then

suspended, in order to know and be advised "what Profit and Advantage

will accrue to him and his People by ceasing the taking of those

Customs"--a precedent it were to be wished we might have the

intelligence to follow to-day--surely better than a tariff commission!

Two years later came the New Ordinances, which contain a most

interesting precedent, hitherto almost unnoted, of the American

principle of having the courts construe the Constitution. Section VI:

"It is Ordained, That the Great Charter be kept in all its points in

such manner, that if there be in the said Charter any point obscure or

doubtful, it shall be declared by the said Ordainours, and others

whom they will, for that purpose, call to them, when they shall see

occasion and season during their power." Section XXXVIII: "That the

Great Charter ... and the Points which are doubtful in it be explained

by the advice of the Baronage and of the Justices, and of other sage

Persons of the Law." It was ordained that the king should not go out

of the realm, a precedent never violated until modern times, and even

followed by our own presidents, except for Roosevelt's trip to Panama

and Taft's to the borders of Mexico. Again we find "new customs"

abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and other

Things, whereby the Merchants come more seldom, and bring fewer Goods

into the Land, and the Foreign Merchants abide longer than they were

wont to do, by which abiding things become more dear," saving only to

the king his duty on wool and leather, half a mark for a sack of wool

and one mark for a last of leather. "The king shall hold a Parliament

once in the year or twice if need be, and that in a convenient place."

This principle has maintained itself in the English mind, still more

in the American mind, ever since. To this day, in Massachusetts,

for instance, we cannot get a constitutional amendment to have the

legislature sit only once in two years, though it would probably be a

very wise reform, on account of this old inherited feeling that there

is something peculiarly free about an annual parliament, as indeed

there is. The Anglo-Norman kings called parliaments once a year

or oftener. Most of the States in this country now have their

legislatures sit every two years. Alabama and some other States have

recently changed, that they only sit once in four years. But the

conservative old States, like Massachusetts and New Jersey, have still

the rule that the legislature sits every year; and the prejudice in

favor of the annual legislature goes back at least as far as this law

of 1330, where the Commons succeeded in getting a law that Parliament

should sit as often as once in a year, and is incorporated in

England's and Massachusetts' Bill of Rights.

And then we find the first statute restraining what we should now call

chancery jurisdiction, complaining that the law of the land and

common right was delayed by letters issued under the king's will, and

ordaining that henceforth they shall not be disturbed by said letters

and nothing done in any of the places of the court of the king or

elsewhere by such letters against right or the law of the land shall

avail.

In 1313 the coming armed to Parliament is forbidden. These were

troublous times and there was little legislation in consequence,

and in 1322 Edward II secured the revocation of the New Ordinances

themselves, but as in all such cases of royal grant and withdrawal

the principles shown are even the more important historically. Of

uncertain period is the Statute of Jewrie forbidding usury to the

Jews, and Christians from living among them, but permitting them

freedom of trade and exempting them from taxation except to the king;

and a statute of the usages and customs of the men of Kent beginning

with the statement that "all the Bodies of Kentishmen be free, as well

as the other free Bodies of England," which dates at least as late as

the early part of the fourteenth century, but still exemplifying the

notion that a statute should only express law or custom previously

existing.

(1327) The Statute of Northampton, at the beginning of the reign of

Edward III, confirms many of the earlier statutes, but abolishes all

staples beyond the sea and on this side, on the ground that they

tended to monopoly, and provided that all merchants, strangers, and

citizens may go and come with their merchandises into England after

the tenor of the great charter (cap. IX). In the next year is another

provision for annual parliaments, and in 1335 the Statute of York

again allows merchants to buy and sell freely except only enemies, and

giving double damages for the disturbance by any one of such freedom

of trade, and the Statute _de Moneta_, forbidding carrying money

abroad; which is notable to the student of economics as showing how

early what we now call the fallacy of the mercantile system appeared.

Our ancestors thought that there was something peculiarly advantageous

in a tariff or system of duties which put all the money into a country

and allowed only goods to go out; and that opinion is perhaps not yet

extinct.

There always seems to have been a notion that there is something

peculiarly sacred about wool. So we find that in 1337 they made it

a felony to carry wool out of England, or to wear cloth made out of

England; and no clothes made beyond the seas were to be brought into

England. That notion that a man ought to dress on home products lies

behind our present McKinley tariff. Then, in 1340, you will find

another statute for the liberties of merchants, that they should be

allowed the freedom of the kingdom; and a new duty is imposed on wool.

Then we find the abolition of the laws of "the staple"; foreign staple

towns had been abolished just before. The "staple" was the _town_ in

which one commodity was mainly dealt in. Every commodity in England

had some particular town, where the principal market was for it; just

as, with us, the boot and shoe market of the United States is supposed

to be in Boston, the money market in New York, beef and hogs in

Chicago. In England, in the Middle Ages, they really provided that a

certain trade should have its home in a certain town; not necessarily

the only one, but very often in that one only. Thus there were certain

towns for the carrying on of the wool industry; you could only trade

in wool in those towns. The word "staple," from meaning the town or

market, got applied by an easy process to the commodity dealt in; so

that when we now say that the Vermont staple is hay, we mean that this

is the main crop raised in Vermont. But the staple--like the modern

stockyard or exchange--tended to monopoly and was abolished for this

reason.

In 1340 and 1344 we find two picturesque statutes showing how the

English were getting jealous of the Norman kings: "The realm and

people of England shall not be subject to the King or people of

France"--that is, that the customs and law of France, although their

kings were French, were not to be applied to England. Then in the

royal edict that year when King Edward assumed the title, King of

France, they caused him to put in a statement that no inference was to

be drawn from his assuming the flower de luces in the first quarter

of his arms. The present English coat of arms is modern; instead of

having the Norman leopards in the upper right hand and lower left

hand, they then had the blue field and the fleurs de lys of France in

the upper, and the Norman leopards only in the lower corner; and this

lasted until the time of Charles I. In that part of Normandy which now

still remains to the English crown, that is, in Guernsey and Jersey,

you find to-day that only the leopards, not the arms of Great Britain,

are in use. But then again, in 1344, we have a statute (which, by the

way, itself is written in French) complaining that the French king is

trying to destroy the English language. They were getting very jealous

of anything French; the Normans had already been absorbed; modern

England was beginning to appear.

(1344) And now comes a liberal statute, repealing those restrictions

on wool, and allowing it to be exported; and another statute that "the

Sea be open to all manner of merchants." Now this is the origin of the

great English notion of freedom to trade with foreign parts; and was

principally relied upon three centuries later in the great case of

monopoly (7 State Trials) brought against the East India Company. And

England has assumed dominion of the sea ever since; "the boundaries of

Great Britain are the high-water mark upon every other country."

(1348) This year was the plague of the Black Death, and the following

year is the first Statute of Laborers discussed in an earlier chapter

and elaborately amended in the following year. In 1350 also we find

the Statute of Cloths, providing again for free trade in victuals,

cloths, and any other manner of merchandise in all the towns and ports

of England, and punishing forestalling of any merchandise with two

years' imprisonment and forfeiture of the goods, one-half to go to the

informer. Two years later the forestalling and engrossing of Gascony

wines is forbidden and even the selling of them at an advanced price,

and this offence is made capital!--and the next year we have the most

elaborate of the Statutes of the Staple re-established. This ordinance

(1353) provides for a staple of wools, leather, wool fells, and

lead in various towns in England, Wales, and Ireland. The safety of

merchant strangers is provided for, and it is again made a felony for

the king's subjects to export wool; and more important still, all

merchants coming to the staple and matters therein "shall be ruled by

the Law-Merchant and not by the common Law of the Land nor by Usage

of Cities, Boroughs or other Towns," and any plaintiff is given the

option whether he will sue his action or quarrel before the justices

of the staple by the law thereof, or in the common-law court.

Merchandise may be sold in gross or by parcels, but may not be

forestalled; and the goods of strangers suffering shipwreck shall be

restored to their owners on payment of salvage. Houses in staple towns

must be let at a reasonable rate, and conspiracies or combinations

against the law of the staple made criminal. Again our ancestors

showed themselves more civilized than we, this time in their

Custom-house proceedings; for Article 26 of this statute provides that

"whereas a Duty is payable of three pence in the pound by all merchant

strangers coming into the kingdom, they may show their letters or

invoices to prove the value of their goods, and if they have no

letters, they shall be believed by their oath ... and now of late we

understand by the Complaint of the said Merchants that although they

have Letters or have made oath, nevertheless after the Oath made the

bailiffs of the customs do unseal their Barrels, Fardels, and Bales

for which they have taken their oath. We, not willing that Strangers

that come into our Realm be in such Manner grieved, establish that

when the Letters or the oath be taken their Goods shall be delivered

to them without delay and the bailiffs meddle no more of the same

Goods upon Pain of Imprisonment and pay the Party grieved quatreple

Damages." As is well known, it is the United States custom to insist

upon the oath of the importer, and notwithstanding that, rummage open

his trunks. Or are we to infer that people were more truthful in those

days?

(1354) The export of iron is forbidden, and the justices given power

to punish them that sell iron at too dear a price, but it does not

appear how the prices are to be determined; and the Statute of the

Staple is again re-enacted and the provision made that duty shall be

paid only upon those goods which are actually sold in England and the

merchant may re-export the balance--the first precedent of our laws

of importing under bond. It is notable that this year the Statute of

Laborers is extended to the city of London.

(1357) The Ordinance of Herrings is a most interesting example of

early intelligence in dealing with a modern abuse. It provides "that

no herring shall be bought or sold in the Sea, till the Fishers be

come into the Haven with their Herring, and that the Cable of the Ship

be drawn to the Land." That thereupon they may sell freely, but only

between sunrise and sunset. "The Hundred of Herring shall be ... six

score, and the Last by ten Thousand and all Merchants must sell the

Thousand of Herring after the Rate of the Price of the Last, and the

people of Yarmouth shall sell the last [that is, the ten thousand red

herring], bought for forty shillings for half a mark of gain and not

above; and so the people of London for one mark of gain"; and the

destruction of fish is prevented, but all caught must be sold. It is

well known that the custom was to destroy all the fish brought into

Billingsgate market above a certain quantity, which led Ruskin to cry

out furiously that the real prices of the world were regulated by

Rascals, while the fools are bleating their folly of Supply and

Demand. One may guess to-day that most of the proceedings in the ports

of Boston, New York, or Gloucester would be highly criminal under this

ancient law. So, in the Statute of Dogger (this ancient word meaning

the ships that carry fish for salting to Blakeney, Cromer, and other

ports in the east of England), the price of dogger fish is settled at

the beginning of the day and must be sold at such price "openly, and

not by covin, or privily," nor can fish be bought for resale, but must

be sold within the bounds of the market. To-day there is not a quart

of milk that goes into Boston that is not forestalled, nor possibly

a fish that is not sold at sea or even before its capture; and

the number of middlemen is many--when, indeed, they all are not

consolidated into a trust. The destruction, directly or by cold

storage, of milk, fish, eggs, or other food in order solely to

maintain the price should to-day be a misdemeanor; and these early

doctrines of forestalling and restraining trade should be to-day more

intelligently applied by our judges--or by the legislatures, if our

lawyers have forgotten them--for they all are "highly criminal at the

common law."

In the reign of Edward III appears one of many cruel ordinances for

Ireland. Although the Roman Church was then, of course, universal, the

statute is addressed to "the Archbishops, Bishops, Abbots, Priors and

our Officers both great and small of our land of Ireland," and

recites that "through default of good government and the neglect

and carelessness of the royal officers there [this is probably true

enough] our land of Ireland and the Clergy and People thereof have

been manifoldly disturbed and grieved; and the Marches of said Land

situate near the Enemy, laid waste by Hostile Invasions, the Marches

being slain and plundered and their Dwellings horribly burnt." The

Marchers were, of course, mainly of English descent; and one notes

that the Irish are frankly termed the Enemy. As a method of meeting

this evil, the Saxon intelligence of the day could find no better

remedy than to lay it to "marriages and divers other Ties and the

nursing of Infant Children among the English and the Irish, and

Forewarnings and Espyals made on both Sides by the Occasions

aforesaid," and it therefore forbids such marriages to be contracted

between English and Irish, "and other private Ties and nursing of

Infant Children." The statute notes that these dissensions do not

occur only between the English and those of Irish blood, but as well

between the English of birth and the English of descent living in

Ireland; a condition which has, indeed, continued till to-day, Parneil

and a host of famous Irishmen being of pure English descent.

In 1360 the exportation of corn is forbidden. We now, therefore, have

that principle applied to wool, iron, and bread-stuffs--corn, of

course, meaning all kinds of grain. There is another statute requiring

Parliament to be held once a year; and, more interesting, that pleas

should be made in the English language, for "the French tongue is

much unknown in said Realm of England," but the judgments are to be

enrolled in Latin. In 1363 another statute concerning diet and apparel

fixes the price of poultry, a young capon three pence, an old one four

pence, a hen two pence, and a pullet one penny "for the great Dearth

that is in many Places." Department stores are anticipated by a clause

complaining that the merchants called grocers do engross all manner

of merchandise "by Covin and Ordinance made betwixt them, called the

Fraternity and Gild of Merchants," and anticipates the prejudice

against the modern department store by ordaining that merchants shall

deal in only one sort of merchandise; and furthermore handicraftsmen

are allowed to "use only one Mystery," that is, trade--which also

anticipates a principle dear to modern trades-unions. The statute then

regulates the diet and apparel of servants. They may eat once a day of

flesh or fish, but the rest of their diet must be milk or vegetarian.

Their clothing may not exceed two marks in value. People of handicraft

and yeomen, however, are allowed to wear clothing worth forty

shillings, but not silk, silver, nor precious stones. Squires and

gentlemen of a landed estate less than one hundred pounds a year may

wear clothing to the value of four marks and a half, but not gold nor

silver, precious stones nor fur. Merchants having goods to the value

of five hundred pounds may dress like esquires and gentlemen to a

value of six marks. Clerks, that is to say, persons having degrees

from colleges, may dress like knights of the same income and may

wear fur in winter and lawn in summer, and clothiers make clothes

accordingly and drapers and tailors charge proportionately. This most

interesting effort to interfere with private life stops short of

regulating the use of wine or beer; and tobacco had not yet been

discovered. It is all the more interesting to note that it was found

so intolerable that it was repealed the following year; and little

effort since then has been made to regulate the diet or dress or

expenditure of Englishmen; it was declared in memorable language that

"which was ordained at the last Parliament, of Living and of Apparel,

and that no English Merchant should use but one Merchandise" be

repealed, and "It is ordained, That all People shall be as free as

they were before the said Ordinance," and "all Merchants, as well

Aliens as Denizens, may sell and buy all Manner of Merchandises, and

freely carry them out of the Realm ... saving the Victuallers of Fish

that fish for Herring and other Fish, and they that bring Fish within

the Realm." Thus, after trying the opposite, we find triumphantly

established in the middle of the fourteenth century the great English

principle of freedom of life and trade. The legislation of this great

reign ends with the prohibition of practising lawyers from sitting in

Parliament and an ordinance that women might not practise law or "sue

in court by way of Maintenance or Reward, especially Alice Perrens,"

Alice Perrers or Pierce having become unpopular as the mistress of the

elderly king. Our courts have usually held that there is no common-law

principle forbidding women to practise law, but from this ancient

statute it would appear that such decisions are erroneous.

(1381) In 5 Richard II is a law absolutely forbidding the sale of

sweet wines at retail. This law, with the testimony of Shakespeare,

goes to show that England liked their wines dry (sack), but the act is

repealed the following year, only that sweet wines must be sold at

the same price as the wines of the Rhine and Gascony; and in the same

year, more intelligent than we, is a statute permitting merchants to

ship goods in foreign ships when no English ships are to be had. In

1383, according to Spence, the barons protested that they would never

suffer the kingdom to be governed by the Roman law, and the judges

prohibited it from being any longer cited in the common-law tribunals.

The rest of the statutes of Richard II are taken up with the important

statutes concerning riots and forcible entries, and regulating labor,

as set forth in the last chapter.

The troublesome reign of Richard II closes with an interesting attempt

to make its legislation permanent, as has sometimes been attempted

in our State constitutions. The last section of the last law of King

Richard declares "That the King by the Assent of the said Lords and

Knights [note it does not say by consent of the Commons], so assigned

by the said Authority of Parliament, will and hath ordained that ...

to repeal or to attempt the repeal of any of the said Statutes

is declared to be high treason," and the man so doing shall have

execution as a traitor. Notwithstanding, in the following year the

first act of Henry IV repeals the whole Parliament of the 21st of

Richard II and all their statutes; that it be "wholly reversed,

revoked, voided, undone, repealed, and adnulled for ever"--so we with

the States in rebellion, and so Charles II with the acts of Cromwell.

(1400) Under Henry IV is the first secular law against heresy, making

it a capital offence. Upon conviction by the ordinary the heretic

is to be delivered to the secular arm, _i.e._, burnt. Note that the

trial, however, still remains with the ordinary, _i.e._, the clerical

court. Under Henry IV also we find a statute banishing all Welshmen

and forbidding them to buy land or become freemen in England; and

under Henry VI the same law is applied to Irishmen, and in the next

reign to Scotchmen as well. The Irishmen complained of, however,

were only those attending the University of Oxford. In 1402 we find

Parliament asserting its right to ratify treaties and to be consulted

on wars; matters not without interest to President Roosevelt's

Congress, and in 1407 we find definite recognition of the principle

that money bills must originate in the lower house.

For the purpose of his Chicago speech, it is a pity that Mr. Bryan's

attention was never called to the Statute of the 8th of Henry VI,

which forbids merchants from compelling payment in gold and from

refusing silver, "which Gold they do carry out of the Realm into

other strange Countries." An enlightened civic spirit is shown in the

Statute of 1433, which prohibits any person dwelling at the Stews in

Southwark from serving on juries in Surrey, whereby "many Murderers

and notorious Thieves have been saved, great Murders and Robberies

concealed and not punished." And the statute sweepingly declares

everybody inhabiting that part of Southwark to be thieves, common

women, and other misdoers. Fortunately, this was before the time that

John Harvard took up his residence there.

In 1430 was the first statute imposing a property qualification upon

voters.

In 1452 is a curious statute reciting that "Whereas in all Parts

of this Realm divers People of great Power, moved with unsatiable

Covetousness ... have sought and found new Inventions, and them

continually do execute, to the Danger, Trouble and great abusing of

all Ladies, Gentlewomen, and having any Substance ... perceiving their

great Weakness and Simplicity, will take them by Force, or otherwise

come to them seeming to be their great Friends ... and so by great

Dissimulation ... get them into their Possession; also they will

many Times compell them to be married by them, contrary to their own

liking." A writ of chancery is given to persons so constrained of

their liberty to summon the person complained of, and if he make

default be outlawed--an early example of "government by injunction"

applied to other than labor disputes! I know no example of an American

statute to this effect; presumably our women are lacking in "weakness

and simplicity."

In 1463 is another curious sumptuary law prescribing with great care

the apparel of knights, bachelors, gentlemen and their wives, making

it criminal for tailors to make cloths not according to this fashion,

and for shoemakers to make boots or shoes having pikes more than two

inches long. No draper shall sell or women wear hose to the value of

more than fourteen pence, nor kerchiefs worth more than ten shillings,

but scholars of the universities "may wear such Array as they may,"

nor does the ordinance extend to judges or soldiers. The provision

against long pikes to shoes appears to be considered of importance,

for it was re-enacted in 1464. I have searched in vain for a statute

relating to hatpins. Again in 1482 there is another long statute

concerning apparel which seems to have been considered under the reign

of Edward IV quite the most important thing in life. A more manly

clause of the statute is concerned with the benefits of archery to

England, reciting that "In the Time of the victorious Reign ... the

King's Subjects have virtuously occupied and used shooting with their

Bows, whereby and under the Protection of Almighty God, victorious

acts have been done in Defence of this Realm," and the price of long

bows of yew is limited to three and four pence. The statutes now begin

to be in English.

In 1488 the Isle of Wight is to be repeopled with English people for

"defence of the King's auncien ennemyes of the realme of Fraunce."

In 1491 all Scots are to depart the realm within forty days upon pain

of forfeiture of all their goods; it is not recorded that any remained

in England. In 1491 Henry VII levied an amazingly heavy tax upon

personal property, that is to say, two fifteenths and tenths upon all

"movable goodes cattales and othre thinges usuelly to suche xvmes and

xmes contributory," with the exception of Cambridge and a few other

favored towns. In 1495 the famous Oklahoma statute is anticipated by a

law regulating abuses in the stuffing of feather beds.

In 1503 a statute recites that the "Longe Bowes hathe ben moche used

in this his Realme, wherby Honour & Victorie hathe ben goten ... and

moche more drede amonge all Cristen Princes by reasone of the same,

whiche shotyng is now greatly dekayed." So this mediaeval Kipling

laments that they now delight in cross-bows to the great hurt and

enfeebling of the Realm and to the comfort of outward enemies,

wherefore cross-bows are forbidden except to the lords, on penalty of

forfeiture of the bow.

(1509) The reign of Henry VIII was one of personal government; and

in those days personal government resulted in a small output of

law-making by Parliament. Indeed, after 1523, under Cardinal Wolsey,

Parliament was not summoned for seven years. In 1539 the attempt to do

without popular legislation is shown in the act already referred to,

giving royal proclamations of the king and council the force of law, a

definite attempt at personal government which might have resulted in

the establishment of an administrative law fashioned by the executive,

had it not been for the sturdy opposition of the people under weaker

reigns. But under the reign of Henry VIII also the great right of free

speech in Parliament was established; and in 1514 the king manumitted

two villeins with the significant words "Whereas God created all

men free," vulgarly supposed to be original with our Declaration of

Independence.

The important principle of a limitation for prosecutions by the

government for penal offences dates from the first year of Henry

VIII, the period being put, as it still is, at three years; and it is

expressed to be for better peace and justice and to avoid the taking

up of old charges after the evidence has disappeared.

In 1515 is another act of apparel providing, among other things, that

the king only shall wear cloth-of-gold or purple color, or black

fur, and that no man under the degree of a knight may wear "pinched

Shirts." In this reign also comes the famous Statute of Wills,

permitting the disposal of land by devise, the Statute of Uses

and other matters primarily of interest to the lawyer; the first

Bankruptcy Act and the first legislation recognizing the duty of the

secular law to support the poor, perfected only under Queen Elizabeth;

but in the latter part of his reign there is little law-making that

need concern us. The Statutes of Apparel continue, and the statutes

fixing the price of wine, which, indeed, seems to have been the last

subject so regulated. There is the "Bloody Statute" against heresy,

and the first act against witchcraft, Tindale's translation of the

Bible is prohibited, and women and laborers forbidden to read the New

Testament. There is the first act for the preservation of the river

Thames, and also for the cleaning of the river at Canterbury; and the

first game law protecting wild-fowl, and a law "for the breeding of

horses" to be over fifteen hands. The king is allowed to make bishops

and dissolve monasteries; physicians are required to be licensed. The

regrating of wools and fish is again forbidden, and finally there is

an act for the true making of Pynnes; that is to say, they are to be

double headed and the heads "soudered fast to the Shanke."

We are now approaching the end of our task, for the legislation after

James I, with the exception of a few great acts, such as the Statute

of Frauds and the Habeas Corpus Act, hardly concerns us as not being

part of our inherited common law. The reigns of Elizabeth and James

are to us principally notable for the increase of the feeling against

monopolies, ending in the great Statute of James I. While we still

find restrictions upon trade in market towns or in the city of

London, they always appear as local restrictions and are usually soon

repealed. The prejudice against regrating, that is to say, middlemen,

continues, as is shown in a Statute of Edward VI, providing that no

one shall buy butter or cheese unless to sell the same only by retail

in open shop. That is to say, there must be no middleman between the

producer and the retailer, and a definition of the word "retail" is

given. In 1552, the 7th of Edward VI is a celebrated statute called

the Assize of Fuel, applied to the city of London, notable because

it forbids middlemen and provides that no one shall buy wood or coal

except such as will burn or consume the same, "Forasmuche as by the

gredye appetite and coveteousnes of divers persons, Fuell Coles and

Woodd runethe many times throughe foure or fyve severall handes or

moe before it comethe to thandes of them that for their necessite doo

burne ... the same"--under penalty of treble value.

In 1551 is the last elaborate act against regrators, forestallers, and

engrossers, made perpetual by 13 Elizabeth, and only repealed in 1772.

It recognizes all previous laws against them, but recites that they

have not had good effect, and therefore in the first section gives a

precise definition. _Forestalling_--the buying of victuals or other

merchandise on their way to a market or port, or contracting to buy

the same before they arrive at such market or city, or making any

motion for the enhancing of the price thereof, or to prevent the

supply, that is, to induce any person coming to the market, etc., to

stay away. _Regrating_ is narrowed to victuals, alive or dead, and to

the reselling them at the fair or market where they were bought or

within four miles thereof; and _engrossing_ is given a definition very

similar to our "buying of futures." That is to say, it is the buying

or contracting to buy any corn growing in the fields or any other

victuals within the Realm of England with intent to sell the same

again. The penalty for all such offences is two months' imprisonment

and forfeiture of the value of the goods, but for a third offence the

person suffers forfeiture and may be imprisoned. There is an important

recognition of modern political economy made in the proviso that

persons may engross corn, etc., when it sells at or below a certain

price, not, however, forestalling it.

In 1554 is a statute for the relief of weavers, prohibiting "the

engrossing of looms," thus anticipating one of the principal doctrines

of Lassalle. In the same year, 1st of Philip and Mary, is a statute

prohibiting countrymen from retailing goods in cities, boroughs, or

market towns, but selling by wholesale is allowed, and they may sell

if free of a corporation; and so cloth may be retailed by the

maker, and the statute only applies to cloth and grocery wares, not

apparently to food.

(1562) From the reign of Elizabeth dates the great Poor Law, enacted

and re-enacted in 1562, 1572, and finally in 1601, recognizing fully

the duty of the parishes to support their poor, but providing a system

of organized charity and even licensing beggars in towns too poor to

support all their paupers. Side by side with this, however, went the

severe statutes against idlers and vagabonds recited in the last

chapter. The first game laws date from about this period, prohibiting

the snaring of birds and establishing close seasons, and also in 1584

we find the first forestry law for the preservation of timber in the

southern counties. There is no provision for seeding, but the use in

the iron works of wood for fuel is carefully regulated, and in order

to preserve the forests in Sussex, Surrey, and Kent, it is provided

that no new iron mills, furnaces, etc., shall be erected in those

counties, showing the relative value that our forefathers placed upon

these matters. The first incorporation of a trading company seems

also to date from the time of Elizabeth. That is to say, the Muscovy

Company was chartered in 1564, and the Merchant Adventurers for the

discovery of new trades in 1566. In this same year is the celebrated

act of Speaker Onslow, in telling Elizabeth that she is subject to the

common law; from henceforward we are in modern times. In 1534 Henry

VIII declared himself supreme head of the Church of England; five

years later with the dissolution of monasteries came the "Bloody

Statute," whereby he attempted to vindicate his orthodoxy. The act was

entitled "An Act abolishing diversity of opinion on certain articles

concerning the Christian Religion," and insisted upon the sacraments,

celibacy, masses, and confessions, but in 1548 the marriage of priests

was made lawful, and in 1566 the pope forbade attendance at the

English Church. Thus, Roman law was expelled in the first two or

three centuries after the Conquest, the Roman Church in the sixteenth

century, and it remained for the seventeenth to struggle with the

last serious attempt at the Roman or Continental theory of personal

government.

(1602) King James at his accession asserted the divine right, and his

legislation, other than special bills for the restoration of attainted

persons, or the confirmation of titles, is scanty, his reign being

principally occupied with the conflict with Parliament, which he

forbade from meddling with affairs of state. In the first year of his

reign, the Statute of Laborers of Elizabeth was confirmed, as well

as that against rogues and vagabonds; the ninth act of his first

Parliament was "To restraine the inordinate hauntinge and tiplinge in

Innes and Alehouses," and, indeed, much of his legislation is aimed at

what should properly be called "sins" rather than "crimes"; the next

act after this was one to restrain "all persons from Marriage until

their former Wyves and former Husbandes be deade." And next came a

statute against witchcraft. In 1603 is an act to prohibit people from

eating anything but fish in Lent, entitled "An Acte to encourage

the Seamen of England to take Fishe, wherebie they may encrease to

furnishe the Navie of England." There was an act for the relief of

skinners, and a charter given by Queen Elizabeth in the twenty-first

year of her reign to the Eastland merchants for a monopoly of trade in

those countries; it would be interesting could these early corporation

charters and monopoly grants be printed, for they are not usually

found in the statutes of the realm. In 1605 stage players are

forbidden from swearing on the stage. In 1606 is an elaborate act for

the regulation of the spinning, weaving, dyeing, and width of woollen

cloth, and the same year is an act for "repressinge the odious and

loathsome synne of Drunckennes," imposing a penalty or fine and the

stocks. In 1609 an act of Edward IV is revived, forbidding the sale of

English horns unwrought, that people of strange lands do come in and

carry the same over the sea and there work them, one of the latest

statutes against the export of raw material. In the last year of his

reign comes the great Statute of Monopolies noted in the last chapter,

and an act extending the benefit of clergy to women convicted of small

felonies, for which they had previously suffered death, and another

act for the repression of drunkenness. And the last statute we shall

note, like the first, is concerned with regrating and engrossing;

that is to say, it re-enacts the Statute of Edward VI prohibiting

the engrossing of butter and cheese, and prohibiting middlemen. Thus

restraint of trade and freedom of labor begin and end as the most

usual subjects of English popular law-making.

* * * * *

A few words upon Cromwell's legislation may be of interest; for though

it was all repealed and left no vestige in the laws of England, it had

some effect upon the legislation of Massachusetts, Rhode Island, and

Connecticut. Under the Commonwealth there was but one legislative

chamber, and over that the protector exercised far more control than

had been ventured by the maddest Stuart or Tudor. One would suppose

that a period which represented the supremacy of the common people

would be marked by a mass of popular legislation. Quite the contrary

is the fact. In the first place, the Instrument of Government,

prepared by the so-called Barebones Parliament, was supposed to be a

sort of constitution; as a symbol of the change from absolute personal

government to constitutional government under this Instrument,

Cromwell exchanged his military sword for the civil common sword

carried by General Lambert, who was at the head of the deputation

praying the Lord General to accept the office of protector. It vested

the supreme power in him, acting with the advice of the Council, with

whose consent alone he could make war, and that Council was to choose

future protectors. The legislative power resided in a single chamber,

upon which he had a veto. There was an ordinary property qualification

for voting, and religious liberty was guaranteed, except as to the

papists. Only one Parliament, as a matter of fact, assembled under

this Instrument of Government, and the very first legislative function

it endeavored to exercise seemed to offend Cromwell, who promptly

dissolved it with a file of soldiers. That was the end of

constitutional government under the protector. The laws of the Rump

Parliament, and the Barebones Parliament, are entirely omitted from

the official Statutes of England, and only to be found in a rather

rare volume. They mostly concern military affairs. The real reforms of

government, like the abolition of the Star Chamber and feudal tenures,

had in fact been carried out under Charles I.

A further word should be given to the origin of the business

corporation, an almost accidental event, which has affected the world

of trade and affairs more than the invention of printing, of the

bill of exchange, and the Law Merchant combined. It would have been

perfectly possible for the world to get on and do business without

the modern corporation--without the invention of a fictitious person

clothed with the enormously powerful attributes of immortality

and irresponsibility. That is to say, men can act together or in

partnership, but they are mortal, and at their death their personal

powers end. The corporation may be immortal, and its powers, as well

as its acquisitions, increase forever. Men are liable with all their

estates for their contracts and obligations. Men in corporations are

only liable to the amount of their aliquot share of stock, or often

not at all. Corporations may dissolve, and be reborn, divide, and

reunite, swallow up other corporations or often other persons.

Individuals cannot do so except by the easily broken bond of

co-partnership.

Trading corporations for profit were _practically_ unknown to the

Romans, or even to Continental countries--scholastic precedents

and the Venetian _commendam_ to the contrary notwithstanding. They

developed in England first out of the guild or out of the monastery;

but the religious corporation, although regarded with great jealousy

in the Statutes against Mortmain, which show that from the earliest

times our ancestors feared the attribute of immortality that

characterizes the corporation, have never had the principle of

limited, or no, personal liability. That, indeed, is said to have been

invented by the State of Connecticut (see below, chapter 10). They

were, however, often clothed with monopoly. In 1643 we find the

Fellowship of Merchant Adventurers of England, a business corporation,

with power to levy money on the members, and exclusive powers to trade

in its own products, which seem to have been clothing and woollen

manufactures. We have already mentioned the earlier charter to the

Eastland merchants. Mr. James Bryce has pointed out to me that the

objection of monopoly would not have been felt so much to apply to a

corporation chartered only for purposes of trade out of England. It

would seem, therefore, that the invention and growth of the secular

corporation was an accident of the legislation of Queen Elizabeth's

time; and arose rather from this desire to get a monopoly, than from

any conscious copying of the trade guilds, still less the religious

corporations of earlier dates; for the trade guilds were nothing but

a more or less voluntary association of men bound together in a very

indefinite bond, hardly more of a permanent effective body than any

changing group of men, such as a political party is, from year to

year; the only bond between them being that they happen at some

particular time to exercise a certain claim at a certain place; and

even the trade guilds, as we know, had somewhat the course of a modern

corporation. They became overgrown, aristocratic, swollen in fortune,

and monopolistic in tendency. To some extent in the English cities and

towns, and still more in France, they became tyrannous. And in the

previous reign of Henry VIII all religious corporations had been

dissolved.

Not much, perhaps, remained for Cromwell's Parliament to do. The

abuses of law-making, of the Star Chamber, and other non-common-law

courts, of personal government, had been swept away under Charles I.

In 1644 the Book of Common Prayer was abolished. In 1646 the bishops

were abolished, in 1648 the king and the House of Peers, and in 1649

the king was beheaded. Cromwell's Parliament was more interested

in the raising of money and the dividing up royal lands than in

constructive legislation. They did find time to forbid the planting

of tobacco in England, and to pass an act furthering the religion of

Jesus Christ in New England; also a society for the foundation of the

gospel in New England, with power to raise money or make collections

for that purpose, provided always, they did not carry any gold,

silver, plate, or money outside of England. An act claiming that "the

Indians are renouncing their heathen sorceries and betaking themselves

to English schools and universities," possibly refers to one Indian

graduate of Harvard, Caleb Cheeshahteaumuck, of the class of 1665.

There are statutes concerning the impressing of seamen; a bankruptcy

act, a statute authorizing secular marriage without a priest or church

ceremony, and the act for preferring veterans in the Spanish War in

civil service, a statute which gives a respectable antiquity to our

laws making a privileged class of veterans or the descendants of

veterans of the Civil and Spanish Wars. Under Cromwell they could

exercise any trade without apprenticeship; a recent South Carolinian

statute providing that Confederate veterans could exercise any trade

without paying the usual license tax was held unconstitutional by the

Supreme Court of South Carolina itself.

VI

AMERICAN LEGISLATION IN GENERAL

Before approaching the actual field of American legislation, it may be

wise to make a few general statements concerning it. It was some fifty

years after the adoption of the Federal Constitution before it began

in great bulk, but to-day we find in the States alone forty-six

legislative bodies, and two of Territories, besides the Federal

Congress and the limited legislatures of our insular possessions.

Nearly all of these turn out laws every year; even when the

legislatures meet biennially, they frequently have an annual session.

Only in one or two Southern States have recent constitutions

restricted them to once in four years. It would be a fair estimate

that they average five hundred statutes a year, which would make,

roughly speaking, twenty-five thousand annual laws. It has been well

doubted by students of modern democracy, by Lecky and Carlyle, if this

immense mass of legislation is a benefit at all. Carlyle, indeed, is

recorded to have taken Emerson down to the House of Commons and showed

him that legislative body in full function, only taking him away when

he was sufficiently exhausted, with the query whether Emerson, though

a Unitarian, did not now believe in a personal devil. Administrative

law-making for the machinery of government there must always be, but

for the rest, if we rely on the common law and its natural development

alone, our condition will be far less hopeless than most of us might

imagine. Indeed, as we shall so often find, it is the very ease and

frequency of legislation that has caused our courts and law-makers

to forego the well-tried doctrines of the common law. Many of our

statutes but re-enact it; when they go beyond it, it is frequently to

blunder. Moreover, it is a commonplace that no law is successful that

does not fairly express the thought and customs, the conditions, of

the mass of the people. Professor Jenks of Oxford applies to all other

legislation the term "fancy legislation," or, as we might say, freak

legislation--the caprices and desires of the present legislature or

their constituents, carried immediately into law; and we may say at

the outset that such legislation has rarely proved wise, and

hardly ever effective. It is needless to state that many modern

statutes--like prohibition laws, for instance--are passed for that

very reason. Yet whatever the fact may have been in the past, there is

no doubt that for the future, legislation by the people, constructive

law-making at the popular behest, is the great new fact of

Anglo-American civilization. There has just been brought out an

immense index, under the auspices of the British Government, called

"The Legislation of the Empire, being a Survey of the Legislative

Enactments of the British Dominions, from 1897 to 1907." This

work fills four huge volumes, and gives but the briefest possible

index-headings of the statutes of the British Empire for that period.

Our excellent "Index of Legislation," published by the New York State

Library, contains about six hundred pages, and even this is hardly

more than an index, as the title suggests.

Now, this tremendous increase in legislative output, most notable in

the States of the United States, did not begin with us at once. For

some forty or fifty years after the Revolution our State legislatures

made as little constructive legislation as did the Parliament of

George III. It was with the end of the first quarter of the nineteenth

century that the great increase began. It seems to have taken

democratic legislatures some fifty years to become conscious that they

had this new unlimited power, and not only that they possessed it but

were expected to exercise it; the power of making absolutely new laws,

statutes which did not exist before as law, either by the common law

or by the custom of the people. It is true, our ancestors had some

taste of radical legislation during the Revolution, and the checks of

the State constitutions were adopted for that reason; but subject only

to this limitation, it was the first modern experiment in popular

legislation. The great wave of radical law-making that began with the

moral movements--the prohibition movement, the anti-slavery movement,

and the women's rights movement--of the second quarter of the

nineteenth century, lasted down until the Civil War. After that

there was a conservative reaction, followed by a new radical wave in

reconstruction times, which ended with another conservative reaction

at the time of the first election of President Cleveland. Since then,

new moral or social movements, mainly those concerned with the desire

to benefit labor and repress the trusts, with the desire to protect

women and children, seem to have brought up a new radical wave, the

progress of which has hardly ended yet. Before the Civil War, the

women's rights movement and the anti-slavery movement always worked

together. They were in great part composed of the same persons. In

fact, the historical origin of the women's suffrage movement was a

large abolition meeting held in England, but attended by many women

delegates from America, where they excluded a leading American woman

abolitionist and would only allow her husband to take her seat in her

place. We shall, of course, consider this precise question later, and

pause now merely to note the fact that with the anti-slavery movement,

ending with the adoption of the war amendments and the women's

suffrage movement, ceasing to progress soon after, there came the

period of conservative reaction, or, at least, of quiescence, which

lasted down to the recent labor and social movements that have caused

our increasing mass of constructive legislation in the last few years.

It is true that some of the far Western Territories adopted women's

suffrage soon after being made States, or at the time they were

admitted; but no other State, even of those surrounding them, has

followed their example, though the people have repeatedly voted on the

point. Whatever progress the cause may have made in England, or in the

larger cities of the East, I think that no unprejudiced observer would

say that it looks so near to accomplishment as it did in the twenty

years preceding the Civil War. Then, also, there was during the same

decades a great increase in personal property; that is to say, in

corporate stocks and bonds, the kind of property most easily attacked

by legislation; but the very possession of such securities by large

numbers of the people tended to make them more conservative in

ordinary property matters. It is in the times when you have but

farmers on the one side, as in the Shay Rebellion in Massachusetts

after the Revolution, or when the proletariat on the one side is

opposed to the bourgeoisie on the other, as in certain Continental

countries, that you find radical legislation. We were fortunate in

that a large number of our citizens were thus arrayed on both sides of

the question. Property rights, of course, have been granted to women

most completely throughout the Union, but in twenty years they have

made little progress toward the vote.

Blackstone says that democracy is peculiarly fitted to the making of

laws, and calls attention to the importance of legislation, with the

regret that there should be no other state of life, arts, or science,

in which no preliminary instruction is looked upon as requisite; but

by "democracy" Blackstone really meant representative government,

which still acts quite differently from the referendum and the

initiative. Democracies, he says, are usually the best calculated to

direct the end of a law. But in no sense, says Professor Jenks, was

the British Parliament the result of a democracy; while our State

legislatures during the Revolution were, indeed, democratic, and

practically omnipotent, and for that very reason were promptly curbed

by the State constitutions, which were adopted even before the

Federal. And of late the distrust of our legislatures is shown by the

most exaggerated list of restrictions we find placed upon them in the

newer constitutions of the Southern and Western States. Another thing

Blackstone oddly says, is that in legislation by the people they will

show great caution in making new laws that may interfere with their

rights and liberties. Precisely the contrary is experienced. Nobody is

so willing to interfere with the rights or liberties of the people

as the people themselves, or their supposed representatives in the

legislature; and a body or faction of the people is far more ready and

reckless to impose its will upon the others than have been the most

masterful English monarchs.

The recklessness of legislatures has two or three most evil

consequences. They pass foolish or unconstitutional laws, relying on

the governor to veto them, or the courts to declare them void--which

has the effect of shirking their responsibility and imposing unjust

and obnoxious duties on the other branches of government, to which

they do not fairly belong; increases the growing disrespect for

all law, and deteriorates the moral and intellectual fibre of the

legislature itself. Finally, also, it provokes that hypertrophic

modern State constitution of the South and West, which tries to bind

down future legislatures in infinite particulars, thereby again

diminishing their importance and responsibility, making it more

difficult to get able men to serve in them, and, by the frequent

necessary amendment of State constitutions, resulting in a continual

referendum, which nearly does away with representative government

itself.

Moreover, when a law is unconstitutional it should ever be only

because it violates some great natural right of humanity, personal

liberty, property, or the right to common law. When constitutions go

into details which are not substantially connected with these cardinal

rights, they bring themselves into contempt, and justify the growing

prejudice of our labor leaders against them. The people should

believe, as I think they do believe under the Federal Constitution and

under the older ones of the States, that when a law is declared _no_

law by a high court for being counter to the higher will of the

people as expressed in their permanent constitution, it is not on a

technicality, but because some great liberty right is infringed by it.

Yet it is a curious thing that whereas our people only got the power

to legislate by democratic assemblies freely and completely from the

year 1776, in hardly more than a hundred years after their conscious

possession of that power we find a respectably strong popular movement

attempting to reverse it, or, at least, to limit its field. Most of

our advocates of direct legislation by the people assume that a great

mass of law-making would result in practice; probably the contrary

is true; the referendum would destroy more than the initiative would

create. They would go back to a condition of things which, in theory

at least, existed in the England of the early Saxon times; although,

of course, in those days only the freemen, and no women, had the

law-making vote. Anyhow, it is curious that that representative

government upon which we have been priding ourselves as the one great

Anglo-Saxon political invention should be precisely the thing that we

are now urged to give up. In the _Federalist_ there is much discussion

as to whether it is possible to have so big a democracy as the United

States, and the answer made by Hamilton was; "Yes, because we shall

have representative government." But detailed discussion of the

initiative we must leave for a later chapter.

Perhaps we begin to detect the prejudice in the general mind, which is

notable in the works of a few earlier theorists, to prefer statute law

to what is known as judge-made law, on that ground alone. The writer

is not of the school that admits there is such a thing as judge-made

law, but believes the phrase to be a misnomer, at least in ninety-nine

cases out of a hundred. The whole theory of the English law is that

it exists in and by the people and is known of them before it is

announced by a judge, and although the extreme of this theory be

somewhat metaphysical, it is certainly true that a judge is a very bad

judge who does not decide a point of law apparently new or doubtful

according to the entire body of English-American precedent,

experience, rather than by his own way of looking at things. If judges

really made new law, particularly if they made it consciously, it

would be more than "aristocratic"--it would be simply tyrannical, and,

of course, be unconstitutional as well as being an interference with

the legislative branch of government. But it is doubtless this theory,

that it is the statute law that is the democratic kind, which has

given form and body to the vast mass of statutes we are here to

consider. Certain of our legislators seem to be horrified when a court

applies a precedent a hundred years old, still more when it is a

thousand years old, although to the jurist, in most cases at least, if

never since questioned and never grown obsolete, it is entitled to all

the more respect for that reason. Both the labor interests and

the "special interests" resent excessively the recent tendency of

intelligent judges to look at precedent and history. Mr. Debs will

tell you that such matters are aristocratic and reactionary; Mr.

Rockefeller, or his lawyer, that they are both visionary and obsolete.

Yet a statute may only represent the sudden will of a small body of

mediocre intelligence on a new subject (or an old one) which they have

never studied. It is true that if they make a mistake they can amend

it to-morrow; but so, also, may be amended the decisions of the court.

VII

AMERICAN LEGISLATION ON PROPERTY RIGHTS

When we come to the vast field of legislation in the United States,

comprising the law-making of forty-six States, two Territories, the

National Congress, and the Federal District, it is difficult to decide

how to divide the subject so as to make it manageable. The division

made by State codes and revisions, and the United States Revised

Statutes, hardly suits our purpose, for it is made rather for lawyers

than sociologists or students in comparative legislation. The division

made by the valuable "Year Book of Legislation," published by the New

York State Library, comprises some twenty subjects: Constitutional

Law; Organic Law; Citizenship and Civil Rights; Elections; Criminal

Law; Civil Law; Property and Contracts; Torts; Family; Corporations;

Combinations and Monopolies; Procedure; Finance; Public Order; Health

and Safety; Land and Waters; Transportation; Commerce and Industry;

Banking; Insurance; Navigation and Waterways; Agriculture; Game and

Fish; Mines and Mining; Labor; Charities; Education; Military Matters;

and Local Government. This division, however convenient in practice,

crosscuts the various fields of legislation as divided in any logical

manner. The same criticism may be applied to a somewhat simpler

division I have used in tabulating State legislation for the last

twenty years into thirteen columns, the titles of these being, roughly

speaking, Property and Taxation; Regulation of Trades and Commercial

Law; Personal Liberty and Civil Rights; Labor; Criminal Law, Health

and Morality; Government; Elections and Voting; Courts and Procedure;

Militia and Military Law; Women, Children, Marriage and Divorce;

Charities, Education, Religion and Jails; Agriculture, Mining and

Forestry; Corporations, Trusts and Interstate Commerce. Is it not

possible to begin with a broader and more simple division?

Now, all statutes are limitations on a state of pure individualism,

defining this latter word to mean a state of society recognizing

personal liberty and private property, and allowing all possible

freedom of action and contract relating thereto; with a court

administration for the purpose of protecting such liberty and

enforcing such contracts in the courts. The usual rough division of

our constitutional rights, following the phraseology of the Fourteenth

Amendment, is that of life, liberty, and property; but the rights to

life and liberty obviously belong to the same broad field. Our first

division, therefore, may well be that which divides life and liberty

rights from property rights; although in some cases, notably in the

earnings of labor, they would be found to run together. Liberty rights

are multifarious and indefinite; we may, therefore, first take the

field of property as presenting, after all, a more simple subject.

Considering all possible organizations of human society from this

point of view, we shall find that all may be expressed, all at least

that have hitherto been conceived, under the systems of anarchism,

individualism, and socialism, these words expressing all possible

states of human society when expressed in terms of individual liberty,

that is to say, the free exercise of the individual will. Either

one of these may exist either with or without the notion of private

property; though, of course, one's action as to property would be

controlled under a system of socialism, and property itself would have

no legal protection under a system of anarchism. Nevertheless, the

notion of property might still exist and be recognized by the custom

of mankind without any sanction or enforcement from the entire

community, _i.e._, what people call the state. When we are speaking in

terms of property, we use the word _communism_--meaning that state of

society where the conception of property exists, but the law or custom

will not recognize individualism. Communism, therefore, usually

implies ownership by the entire community, while in anarchism there is

no property at all. There has been much confusion in the use of these

terms in the popular mind, and even in ordinary writing. Many people

have confounded, for instance, socialism with anarchism or nihilism,

when the two things are whole poles apart. In the same manner,

communism has been confounded with socialism, although the term should

be used in entirely different connections--communism when we are

speaking in terms of property, socialism when we are speaking in

terms of individual liberty. The word _individualism_ was used by

the present writer in a series of articles entitled "The Ethics

of Democracy," beginning in 1887, as the most convenient term

for describing that state of society where the greatest possible

individual liberty is conjoined with a strong recognition of the right

of private property, substantially the _laissez faire_ school as

it existed in England in the first half of the last century; "the

distinction between communistic and socialistic laws being, that the

former are concerned solely with the taking or redistribution of money

or property; the latter regulate or prohibit men's mode of life, acts,

or contracts, either among themselves or as concerning the state." [1]

[Footnote 1: _Scribner's Magazine_, vol. XV, p. 653.]

Now, property is but the creature of law; and that is to say, in

those of our States which have no common law, of statute. Jurists

and communists are alike agreed on this. "Property is robbery," said

Proudhon; property is but the creature of law, all English jurists

admit. It is, of course, possible to conceive of a social system which

recognizes no right of property, or one which makes all property

belong to the community, or a middle ground which admits the

institution, but holds that every individual holds property subject

to the state's, that is, the organized community's, regulation and

control. A convenient term for this state of affairs to which,

perhaps, in our statutes, we are approaching, is "allowable

_socialism_"; private property is recognized, but its use is

regulated. In England they call it "gas-and-water socialism"; but this

term, though picturesque, is not sufficiently comprehensive, relating,

as it does, only to municipal activities. There is a third variety,

the latest and perhaps the most intelligent of all, that believed in

by leading modern German and American socialists, which we will call

nationalism--the nationalization or municipalization of productive

industry--the science of this doctrine being that private property may

exist in all personal belongings, articles of pleasure, or domestic

necessity, but not in lands, mines, works, or other instrumentalities

used for the further production of wealth.

Whatever the future may bring, we must start with the institution of

private property recognized to its fullest extent. It is expressly

guaranteed in our Federal Constitution, as for the matter of that it

was also in Magna Charta, as clearly as the right to liberty, and

usually in the very same clause. Not only that, but when we adopted

our first State constitutions, from 1776 to 1788, and the Federal

Constitution in 1789, every one of them made express guarantee of this

right. One or two, following the lead of Massachusetts and Virginia,

recognized equality also, or, at least, equality by birth and before

the law; but without exception property was expressly recognized as

one of two leading constitutional rights, and even in some States,

like Virginia, it was termed a natural right. The same thing is

true of the Massachusetts Bill of Rights and in the Federal Fifth

Amendment, though it is significant that the Declaration of

Independence omits the word _property_, and only mentions among

unalienable rights, life, liberty, and the pursuit of happiness--which

some courts have held to include private property.[1] Nevertheless,

under our constitutions to-day, the right is not only doubly, but even

triply, guaranteed; that is to say, by all State constitutions against

State action; by the Federal Constitution against national action;

and finally, by the Federal government in the Fourteenth Amendment

as against State action also. This is the reason why, in any case

affecting a cardinal liberty or property right, a litigant may

carry his case not only through the State courts, which have sole

jurisdiction of ordinary business and domestic matters, but to the

courts of the United States as well.

[Footnote 1: Justice Brewer, in the _Yale Law Review_, for June, 1891.

He holds that under "the pursuit of happiness" comes the acquisition,

possession, and enjoyment of property, and that they are matters which

even government cannot forbid nor destroy. That, except in punishment

for crime, no man's property can be taken without just compensation,

and he closes: "Instead of saying that all private property is held at

the mercy of the public, it is a higher truth that all rights of the

state in the property of the individual are at the expense of the

people."]

When we come to legislation on the subject, or to modern State

constitutions, there is hardly a change in this particular. Naturally,

we find no new legislation confirming the right of property

abstractly, or restating that that institution is part of our

civilization. There is but one significant exception to this

statement. While most of the States in their constitutions declare

that men have a natural right to acquire, possess, and protect

property, and Kentucky and Arkansas go to the length of saying that

the right of property is "before and higher than any constitutional

sanction"--which latter statement is a legal hyperbole--Oklahoma in

its recent constitution, North Carolina, and Missouri state only that

men have a natural right to the enjoyment of the fruits of their own

labor; on the other hand there are recent intimations coming from

Federal sources that individualism or private property rights, at

least, and not anarchism or socialism, are part of our constitutional

system. Before 1907 a Texas district judge refused to naturalize an

immigrant on the ground that he was a socialist and that socialism was

inconsistent with the Federal Constitution; and in that year Congress

passed an act to regulate all immigration of aliens, which excludes,

among other classes, persons who believe in or advocate the overthrow

by force or violence of the government of the United States or of all

government, or of all forms of law--a definition which would exclude

anarchists, but not socialists; and in the case of South Carolina _v_.

United States (199 U.S. 437), the Supreme Court of the United States

gave serious consideration to the question whether State socialism was

compatible with a republican form of government. This is all, so far

as I am aware, that a century and a half of legislation has given us

affirming the abstract right of property, though there are several

constructive statutes and constitutional provisions applied to the

general right to trade or labor, which we shall consider when we come

to that subject.

When a right is expressly guaranteed by the Constitution, we need

ordinarily have no affirmative legislation about it. Liberty and

property being always guaranteed by the State constitutions, it has

not been necessary for the States to legislate to protect them.

Our study of this subject, therefore, will be confined to the

restrictive or limiting legislation affecting private property or

property rights, and of this we shall find plenty. Now there are four,

and only four, methods by which the state, that is to say, American

society as organized into governments, interferes with the right to

property or the enjoyment and use thereof; that is to say, taxation,

which is, of course, general; eminent domain, a peculiarly American

doctrine; the police power; and the regulation of rates and charges.

Some authorities place the last under the police power; but It does

not seem to me that it historically, if logically, belongs there.

Starting with the simplest first--eminent domain, an American doctrine

which, in its simplest form, subjects the land of any one to the need

of the state or, in cases authorized by the Federal Constitution,

of the nation. It is questionable whether it applies to personal

property. It is an American doctrine, for in England where the king

remained in theory the feudal over-lord, it was not necessary for him

or the sovereign Parliament, wishing to take or control land, and

having no constitution protecting property rights against such action,

to invent any new doctrine; but with us all land is allodial. The old

charters of the original States creating tenures in free and common

socage are, of course, obsolete. Everybody is a freeholder, and the

States are not, still less the Federal government, a feudal over-lord.

Nevertheless, the property of every one must be subject to the supreme

common necessity; and the right is absolute in the States, although

limited in the national government by the Federal Constitution. It

is an American constitutional principle; and this principle also

provides, as does Magna Charta and the early charters of England as to

_personal_ property seized by royal purveyors, that full damages must

be paid; and to this general principle our constitutions have added

that the damages must be paid at the time of the taking and the amount

be determined by due process of law; that is to say, in most cases

by a jury. Blackstone says: "So great is the regard of the law for

private property that it will not authorize the least violation of it;

no, not even for the general good of the whole community";[1] a new

road, for instance, cannot be made without consent of the owner of the

land, and the words "eminent domain" do not appear in the text of his

book. But though we hold the contrary doctrine, the rights of the

property owner are sufficiently protected when the taking is directed

by the State, or even by a city or town. The menace to property here,

with the increasing bulk of legislation, comes in the number of _new_

uses, not only directly for the State or for cities and towns, but for

public-service corporations, or often other private corporations, and

associations of persons, who are permitted by legislation to take land

under eminent domain, or, what is often worse, to acquire easements

over it. Most of the States give damages for land not actually taken,

but damaged, though our Federal courts have not held this to be

necessary under the Fourteenth Amendment; but although land can still,

in theory, only be taken for a public use, the number of uses which

our legislation makes public Is being enormously increased. The usual

national purposes are forts, magazines, arsenals, dockyards, and other

needful buildings. Independent of some express permission in the

Constitution, the Federal government has no power to take, or even to

own, land at all within the State limits. Therefore, it is questioned

whether land may be taken for national parks or forest reservations

except in the Territories, where title still remains with the Federal

government. But the State's power of eminent domain is unlimited,

although it began only with the towns or counties taking roads for

highways, and cities and towns appropriating lands for schools and

other public buildings. Probably the only serious addition of a

wholly public use is covered by the general expression, parks and

playgrounds; but the analogy of the highway led to the taking of land

under eminent domain for railroads, when they were first invented,

then for street railways, then for telegraph, telephone, and

electric-light lines, underground pipe-lines or conduits of all sorts,

and finally, for drains, sewerage districts, public, and often private

irrigation purposes. Most of the more complex State constitutions

define at great length to the extent of some twenty or thirty

paragraphs just what purposes shall be considered a public use under

eminent domain. In the absence of such definition, or without such

definition, the number of such uses is being enormously increased by

statute. Thus, reservoirs, storage basins, irrigation canals, ditches,

flumes, and pipes for water drainage, or mining purposes, working

mines, as dumps, hoists, shafts, tunnels, are made a public use by the

constitutions of the arid States, Idaho and Wyoming. So as to water

only in Montana, but in Idaho also to any other use "necessary for the

complete development of the material resources of the State or the

preservation of the health of its inhabitants."[2] And even by private

parties, land may be taken for ways of necessity in many States, and

for drains, flumes, and aqueducts by the constitutions of the arid

States.

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

[Footnote 2: These provisions are collated in "Federal and State

Constitutions," p. 159.]

At common law, of course, a man or a set of men, who happen to be

neighbors, would have had no right to take my land for a private way,

or for drainage or irrigation purposes, however beneficial to their

land; still less to take water from my stream across my land to their

fields. But this precise thing can be done in an increasing number of

States, although it has been held unconstitutional in the courts

of one or two of the far Western States, and has even yet not been

decided by the Supreme Court of the United States as to the powers of

the Federal government. Under the broad definition given in Idaho

and Wyoming, you can probably take land to establish a municipal

coal-yard, or dispensary, or anything else that the legislature might

suppose to be for the general health or benefit of the people. Yet

a hotel company would not, as yet, be considered a public use, nor,

probably, a private recreation park. And land taken for one use may be

subjected to other and totally distinct uses without giving any new

right of damages, as was decided in Massachusetts, at least, when land

given or taken for an ordinary city street was afterward occupied by a

steam railroad. A notable limitation on the use of streets, however,

we find imposed by the statutes of New York and many other States,

which provide that no railway shall be placed therein without the

consent of a majority of the property owners or abutters. There is

frequent legislation providing that the betterment taxes collected in

case of public improvement shall not exceed the damages given for the

property actually taken. In the last two or three years there has been

an extension of the doctrine, authorizing cities and towns to take

more land than is actually needed, for the purpose of convenience, or

in order to get a better bargain, and then sell the surplus; but such

laws may be unconstitutional.

Land may, of course, be taken for all municipal purposes, including

public squares or parks, playgrounds, reformatories and penal

institutions, levees, ditches, drains, and for cemeteries; and the

right is being granted to private companies other than those above

mentioned, in Colorado, to tunnel, transportation, electric power, and

aërial tramway companies; in North Carolina to flume companies; in

many States for private irrigation districts; in the West generally to

mining or quarrying companies; in West Virginia and other States to

electric power, light, or gas companies; while in North Carolina,

Washington, and Wisconsin, we find the dangerous grant of this great

power to electric-power companies, which are, in Wisconsin at least,

expressly permitted to flood lands by right of eminent domain in order

to form ponds for power purposes. It is easy to see that under such

legislation everybody holds his land not only subject to public need,

but to the greed of any designing neighbor. Perhaps the most important

question of eminent domain is or was whether it authorized

general schemes of internal improvement made by the State or by a

municipality, or, worse still, by a private corporation chartered for

the purpose. The Constitution of Michigan, with those of the Dakotas

and Wyoming, provides that the State cannot be interested in works of

internal improvement, nor, in North Dakota and Wyoming, engage in them

except on two-thirds vote of the people; nor, in Alabama, may it

loan its credit in support of such works; nor, also, in Maryland,

Minnesota, Ohio, and Wisconsin, create or contract debts for them;

nor, in Kansas and Michigan again, be a party to carrying on such

works. But the Tennessee Constitution declares that a well-regulated

system of internal improvement should be encouraged by the

legislature. So, in Virginia, no town or county may become a party to

any work of internal improvement except roads, and they are frequently

forbidden from borrowing money for such purposes. There is, therefore,

considerable constitutional check to legislation in this direction.[1]

[Footnote 1: See "Federal and State Constitutions," book III, secs.

92, 324, 345 370, 391, and 395.]

Taxation, of course, has from all time been the universal limitation

upon property rights, though it is important to remember that until

the present budget there has not in modern times been an attempt at

direct taxation of the capital value of land in England; Cobbett

records many "aids" of a few shillings per hide of land in

Anglo-Norman times. The earliest taxation was the feudal aids imposed

purely for defensive purposes, for building forts and bridges; later

for foreign wars or crusades. We have traced the origin of the

scutage tax as a substitute for military service and the two great

constitutional principles that all taxation must be with the common

consent of the realm; that is to say, of Parliament, later of the

House of Commons; and must also and equally be for the common benefit.

Theorists have argued, particularly with us, that under the latter

principle protective tariffs are unconstitutional; but even if it be

admitted that they are not for the benefit of the whole people, the

exception is as old as the rule; protective tariff laws, and, earlier

still, laws absolutely prohibitive of importation, being plentiful

on the English statute-books before and at the time this earliest

of constitutional principles appeared. There is a step beyond the

protective tariffs, however, which is naturally mentioned in this

connection, and that is the bounty--sums of money paid to certain

interests and derived from the general taxes fund. Under the Acts of

Congress there has been, I think, only one instance of a bounty; that

is in the case of the Louisiana sugar-growers. In State legislation it

has been a little more usual. Foreign countries, notably Germany and

France, as to beet sugar, etc., have been in the habit of giving

bounties. This precedent undoubtedly suggested it; but these countries

do not enjoy our constitutional principles. There has hardly been a

direct decision on the constitutionality of the Federal bounty, but as

to State bounties we find several, with an increasing tendency to hold

void such laws. There can be no question that they are utterly against

our whole constitutional system. The Supreme Court, when considering

sugar-bounty laws, seems to have thought that it might be sustained

as a compensation made for a moral obligation, the Louisiana planters

having been led into industries from which the protection was suddenly

removed; of such nature must be the justification, if any, for

bounties given in times of flood, fire, or public disaster, which,

however, are really sustained only in the absence of objection and on

the principle _lex non curat de minimis._ The most insidious form of

the bounty, however, is that of exemption from taxation, or, still

worse, granting subsidies or subscribing to the stock and bonds of

public-service, or even ordinary private, corporations. Undoubtedly

the exception has been established in the case of railroads. The

granting of State, city, or county aid to railroads has existed almost

from their invention, probably on the analogy of highways; at all

events, it is too late to be constitutionally questioned now. The

exemption from taxation of private profitable enterprises, such as

mills or factories, is less defensible. Frequently, however, they go

without question, it being to no one's particular interest to do so.

The usual subjects of State bounties were, in 1890, beet-root sugar,

binding twine, iron and iron pipe, potato starch, and rope, with tax

exemptions to Portland-cement works. Ramie fibre continued a favorite

subject of bounty for some years, with seed distributions to farmers,

which were in some States held unconstitutional. In 1896 Utah gave a

bounty on canaigre leather and silk culture. There was an exemption

on salt plants in Michigan, but beet sugar continued the favorite

beneficiary. There has been a reaction against bounty legislation of

recent years. In 1908, for instance, New York repealed its bounty

on beet sugar, and it may be hoped, with greater intelligence

of constitutional principles, that all such legislation will be

abandoned.

Coming to matters of ordinary taxation, of course the first thing to

note is its extraordinary extent. In direct taxation it is not

an unfair estimate to say that the States and their municipal

organizations undertake to impose an annual assessment on real

and personal property which would average at least two per cent.

throughout the country; amounting to from one-third to one-half of the

income derived therefrom. In indirect taxation, duties, and revenue

taxes, a sum far greater is taken from the average household. One

might very much wish that the individual householder might at least

know how large a sum is thus taken from his earnings annually, for it

is safe to say that in no civilized country, not even in the France

before the Revolution, was individual taxation anything like so heavy.

Therefore, we are beginning to find legislation, even constitutional

provisions, carefully limiting the tax rate. The amount of the State

tax is thus limited in probably half the States, mostly Southern or

Western, and nearly all of them limit also the amount of taxation to

be imposed by the counties, cities, towns, school districts, or for

other special purposes. In the North-eastern States such limitation

is not usual, though in Massachusetts and New York it exists as to

certain cities. It may properly be said of such legislation that it

does not appear to be so futile as one might have expected. There

is, of course, a tendency to raise the limit, involving frequent

constitutional amendment, or, in Massachusetts, for instance,

where the limitation is put on only by statutes, by later statutes

authorizing the borrowing outside of the debt limit; for it should be

said that such limitations do usually apply both to the appropriations

and to the funded indebtedness incurred. Still I have not observed

in the last twenty years any repeal of such laws or constitutional

provisions, but rather an increasing number of States adopting them,

from which it may be inferred that they work satisfactorily. Nearly

all the States purport to tax the capital value of both real and

personal property, not, as in England, rents or incomes; and they tax

"tangibles" and also "intangibles." That is to say, they undertake to

tax stocks or bonds or mortgage debts; the evidence of property, as

well as the property itself; and the debt as well as the property

securing It. Some States, such as Pennsylvania, impose a smaller, more

nominal, tax upon stocks and bonds in the hands of the owner, for

the sake of getting a larger return, but in many States, such as

Massachusetts, this legislation would be unconstitutional, as not

proportional taxation.

There is a mass of legislation every year directed to the

assessing and collecting of taxes, tending more and more to become

inquisitorial, requiring the tax payer under oath to furnish full

schedules of his property, with provision for an arbitrary assessment

if he fails to do so. One effect of this has been to drive very

wealthy men from Ohio or other Western States to a legal residence in

the East, where the laws are more lenient, or their enforcement more

lax. The problem is a most important one and I see no signs yet of any

solution in the increasing mass of legislation one finds upon this

subject every year. It is to be noted--what our socialist friends have

never seemed to observe--that just in so far as a man's earnings or

income are taken from him in the form of taxation, you are already in

a state of socialism. That is to say, to that extent is his income

taken from him and administered by the state. This is an observation

most unwelcome to the opponents of capitalism, so-called, who resent

the conclusion that if the State and Federal governments are already

taking forty per cent. of his income from him, a state of perfect

socialism could do no more than take the other sixty per cent. This

whole problem of taxation, indeed, is evaded at present only by the

miserable solution of fraud; hardly any one, except the non-propertied

classes, paying what the law purports to take from them; and the

non-propertied classes only pay it because their taxation, being

indirect, is paid for them by others.

Coming to other forms of taxation, we may distinguish three: Income,

succession, and license. Income taxation in England dates, it is said,

from 1435; but (in the shape of tithes) it is far older. The power of

income taxation (except upon earnings and profits) belongs here only

to the States; just as the sole power of imposing duties on imports is

given to the Federal government. Many of the States impose an income

tax, but I observe no particular increase in that kind of taxation in

the legislation of the last twenty years. A man's income is commonly

taxed with his other property. It is a form of tax far more evaded

here than in England, probably because the English law provides a

machinery for collecting a large part of income taxation from the

persons from whom the income is derived, as, for instance, from the

tenant who pays rent to a landlord; just as with us a corporation

is made to pay the tax on its capital stock nominally due from the

individual owner. The only notable extension of income tax legislation

is in the establishment of the principle of the _graded_ income tax,

which is beginning to be adopted in a few States, as in North and

South Carolina in 1897.

This principle of graduated taxation has, however, been nearly

universal in our next and more modern variety--the succession tax. The

old English precedents are the "aids" and fines for alienation. But

beginning here about 1893, this form of taxation has now been adopted

by nearly all the States, the amount of the tax being graded both

according to the relation of the inheritors to the person from

whom the succession is derived, and according to the amount of the

inheritance itself; the rate of the tax thus varying all the way from

an absolute exemption, as to the wife or children, to a tax as high as

twenty-five per cent. (in New York) in the case of large estates going

to remote relatives. The Federal inheritance tax imposed at the time

of the Spanish war was soon repealed, and this domain of taxation,

with the income tax, is now almost universally employed by the States.

The principle itself can hardly be carried much farther, but it will

be necessary to have some understanding or arrangement between the

States, whereby double or treble succession taxes are not imposed

on the same estate, as notably in the case of the stock or bonds of

railroads chartered in several States, all of which may undertake to

impose full succession taxes upon such stock. It has been held

that succession taxes may be graded even in cases where a State

constitution provides for proportionate taxation, the tax being an

excise tax and not a direct property tax; but this is not so in

respect to income taxes. We may assume therefore that income taxes

must be equal in States which have this constitutional provision,

although in one or two of them recent statutes have exempted a portion

of the income of veterans of the Civil War. This might be sustained as

a pension, pensions being for actual military service constitutional,

and are in the Southern States expressly permitted to Confederate

soldiers and their families--despite the implied prohibition of the

Fourteenth Amendment.

The last form of taxation, that of an excise upon licenses or trades,

is most usual in the South. An increasing number of trades are thus

being taxed or regulated. Sometimes the taxation is put under the

guise of a fee for examination and licensing, sometimes plainly as an

excise tax. Undoubtedly such taxation is against all the history

of our legislation demanding complete freedom of labor and trade.

Nevertheless, it has not been held unconstitutional by the States

except, of course, when touching a trade which is interstate commerce,

though the _examination_ occasionally has been. Such taxation has not

yet become popular in the North, except definitely for the purpose of

examination and license; but it is almost universal in the South, many

States indeed providing by their constitution or laws that all trades

and callings may be thus taxed. These taxes may be arbitrary in

amount, but are sometimes graded according to the amount of business

done. Such legislation has been sustained in so far as it is a tax or

a license imposed for protecting the public health in a reasonable

manner; thus, doctors, plumbers, nurses, dentists, etc., have been

submitted to such regulation, but in the case of blacksmiths its

constitutionality was in one State denied, and the law as to barbers

in several States annulled. Nevertheless, it will always be a popular

method of raising money in the poorer States, where land already bears

its full burden and little personal property can be found.

Commissions of inquiry on this whole subject of taxation are

continually being appointed--we have had two in Massachusetts in

the past ten years--and their recommendations nearly always prove

unacceptable. The probable scientific answer, that you must only tax

property and not money or the evidence of property, and that if direct

taxation thereby becomes too burdensome we must reduce our rate of

expenditure, is a conclusion our legislators are yet unwilling to

accept. The taxation of corporations presents a different problem

and we shall therefore leave it for special consideration with that

subject. The matter of betterment taxes may be dismissed with a

word, as it is hardly, in theory, taxation at all, but rather using

municipal agencies to collect the cost, or part of the cost, of a

local work or benefit. It is, of course, closely connected with the

subject of eminent domain. That is to say, only a public use, or at

least a general local benefit, can justify a betterment tax. There is

still considerable legislation on this matter, confined generally to

the objects of securing a jury trial, or at least a public hearing, on

the amount of the assessment, defining the purposes for which it

may be imposed, as, for instance, paving, sewers, water-works where

public, and--perhaps the most contested case of all--that of parks or

pleasure-grounds; and providing that the amount of betterment taxes

imposed shall not exceed one-half the value of the improvement of the

property, and shall never exceed the amount paid as damages when part

of the owner's land is taken.

By far the greatest mass of legislation relating to property is

concerned with the police power and modern extensions thereof. It

is also by far the most dangerous to property rights, and this for

several reasons: firstly, it involves the destruction of property

without any compensation whatever, not upon payment of damages, as in

the ease of eminent domain; secondly, on account of the extraordinary

extension by our modern legislation of this power to matters not

hitherto deemed necessary for the safety, health, or even the

well-being of the public, vague as the legal application of the last

word is; thirdly, and perhaps most important, because the police

power is usually exercised without any common-law guarantees, without

process of law or jury trial, but by the arbitrary ruling of some

board, or even single commissioner, and often, so far as the statute

is concerned, without a jury or even an appeal from the commissioner's

ruling to any court of law.

I believe this to be the most dangerous tendency that now confronts

the American people--government by commission, tenfold more dangerous

than "government by injunction." Not only is there no liberty, no

appeal to common right and the courts, but all permanent "boards" tend

to become narrow and pedantic or, worse, to be controlled by the works

they are created to control.[1] The constitutionality of such boards

is, of course, always questionable, but the tendency to create them is

perhaps the most striking thing in modern American legislation. Not

only do we find them in enormously increased numbers in all the

States, but even a late President of the United States seriously

recommended that the contracts and affairs of all corporations at

least (and the bulk of modern business is done in corporate form)

should be so submitted to the control or dictation, or even the

nullification, of such an administrative board or commission, and this

again with no appeal to the courts. So audacious an upsetting of

all Anglo-Saxon ideas of the right to law, it may be said without

exaggeration, has never been attempted in the history of the English

people, not even by the Stuart kings, who were most of all disposed

to interfere in such particulars. Wiser counsels deterred the

administration from insisting on this measure, but the fact that it

could be brought up, and that with the approval of a large portion of

the public, indicates how radical our legislation is getting to be in

this particular.

[Footnote 1: Two singular instances happened only the past year: at

common law any one may build railroads, and they are certainly for the

general advantage whether profitable to the owners or not. Yet the

railroad commissions of New York and Massachusetts have recently

in each State prevented the building of most important lines, by

responsible applicants--under the opposition of other railroads.]

It is a commonplace in the law that no court has defined, or ever will

consent to define, the exact limits of this police power; suffice

it to say that in the classic words of Chief Justice Shaw of

Massachusetts, "it is all that makes for the health, safety, or

comfort of the people." As to the health and safety, there can be

little question; but when it comes to indefinite words like "comfort"

or "well-being," too wide a field is left for the imagination. It

has recently been decided that the aesthetic part of life does not

necessarily concern the comfort or well-being of the people. That is

to say, laws forbidding the use of land for the erection of hideous

signs, or forbidding the height of buildings at an inartistic excess

have been declared not to fall within the police power, but under

eminent domain. So of statutes forbidding the taking of a man's

picture, or a woman's portrait for advertising purposes, when not

properly obtained; yet it may be questioned if any law is more

certainly for the comfort of the persons concerned than such a

statute. On the other hand, noisy or noxious trades, mosquito ponds,

trees infected with moths, etc., sawdust in water, offensive smoke,

and, in Vermont, signs, were all made nuisances by statute of one

State or other in 1905 alone. The first historical instance, perhaps,

of destruction of property under the police power was the blowing

up of buildings to check a conflagration, a practice still common,

although its utility was much questioned after the Boston fire,

and which, at common law at least, gave the owner no right to

compensation; but the more usual use of the police power until very

recent years has been limited to the prohibition of offensive trades

in certain localities, and the suppression of public nuisances. Later,

the prohibition of the manufacture of intoxicating or malt liquors,

and the regulation of tenement houses at the orders of the Board of

Health. This led to the regulation or prohibition of certain trades

conducted in tenement houses or in sweat shops, and to other matters

which we shall find it more convenient to consider under the head of

labor legislation.

Whether there are any limits to this power is much discussed. There is

no question that the power must not be arbitrary or utterly without

reason, and of that reason the courts must and do in fact judge.

Taking property for a purpose unjustified by the police power is,

of course, taking property without due process of law. An arbitrary

statute taking the property of _A_ and giving it to _B_, or even to

the public, without compensation has, from the time of Lord Coke

himself, been the classic definition of an unjustifiable law and one

which with us at least is unconstitutional; but our courts wisely

refuse to judge if, when a proper police motive is disclosed in the

statute, it is the _best_ method of effecting the result. This, I

think, is a clear statement of the principle of our court decisions.

If, upon the face of the statute, the court can see no possible

relation to the public health or safety, or, possibly, general

welfare, it will hold the law null in so far as it invades either

property or liberty rights because not under the police power. If, on

the other hand, they can see _some_ relation to the public health,

safety, or general welfare, even though they do not think it the best

method of bringing about the desired result, they will not presume to

run counter to legislative opinion. Of the expediency of the statute,

the legislature must be and is the final judge.

With us the police power is exercised largely for moral reasons. That

is to say, the great instances of its extension have been connected

with moral or sanitary reform. No doubt the police power may broaden

with advancing civilization and more complex appliances and possibly

greater medical knowledge and social solidarity. No doubt purposes

which were once lawful may be unlawful, and property devoted to them

thus be destroyed by a change in the law. Mr. Justice Brewer, of

our Supreme Court, holding the contrary view, was overruled by the

majority, and that decision is final.[1] Not only we, but a State, may

not even make a contract which shall be immune from future extension

of the police power, the Dartmouth College case notwithstanding. For

instance, the State of Massachusetts in 1827 granted a perpetual

franchise to a corporation to make beer. It was allowed, forty years

later, to pass a law that no corporation should make beer, and the

brewery became valueless. The State of Minnesota granted a perpetual

franchise to a railroad to fix its own fares. Twenty years later

it took away that right, thereby, as claimed, making the railroad

property valueless; the railroad had no remedy. A man in Connecticut

had barrels of whiskey in a cellar for many years, but the State was

allowed to pass a law prohibiting its sale; which, of course, had he

been a teetotaler, would have deprived that property of all value, and

in any case, of all exchange value. A man in Iowa owns one glass of

whiskey for several years, and then a law is passed forbidding him to

sell it; the law is valid. A youth in Nebraska buys tobacco and paper

and rolls a cigarette. The State afterward passes a law forbidding

smoking by minors. It is a crime if he light it. Sufficient has,

perhaps, been said to show the extraordinary scope and elasticity of

this, the widest, vaguest, and most dangerous domain of our modern

legislation, though perhaps we should add one or two striking

cases affecting personal liberty, as, for instance, a citizen of

Pennsylvania marries his first cousin in Delaware and returns to

Pennsylvania, where the marriage is void and he becomes guilty of a

criminal offence; a white man in Massachusetts who marries a negress

or mulatto may be guilty of the crime of miscegenation in other

States; a woman might work fifty-eight hours a week in Rhode Island,

but if she work over fifty-six in Massachusetts may involve her

employer, as well as herself, in a penal offence.

[Footnote 1: Mugler _v_. Kansas, 123 U. S, 623.]

The most valuable of all police legislation is, of course, that to

protect public health and safety; and prominent in the legislation of

the last twenty years are the laws to secure pure and wholesome

food and drugs. Possibly "wholesome" is saying too much, for our

legislative intelligence has not yet arrived at an understanding of

the danger from cold storage or imperfectly canned food, though Canada

and other English colonies have already legislated on the subject, to

say nothing of our tariff war with Germany on the point. One may guess

that ninety-nine per cent. of the present food of the American people,

leaving out the farmers themselves, is of meat of animals which have

been dead many months, If not years, and from vegetables which date at

least many months back. It is nonsense to suppose that such food is

equally wholesome with fresh food, or that there is not considerable

risk of acute poisoning or a permanent impairment of the digestive

system. Senator Stewart, of Nevada, has shown that nearly fifty per

cent. of the soldiers of the Spanish War had permanent digestive

trouble, as against less than three per cent. in the Civil War, which

took place before cold-storage food was known, or canned food largely

in use. It was hopeless for the States to act until there was

Federal legislation on the subject, as the health authorities had no

constitutional power over goods imported from other States; but the

passage, under Roosevelt, of a national food and drugs act has given

a great impetus to the reform, and by this writing more than half the

States have passed pure-food laws, being usually, as they obviously

should be, an exact copy of the Federal Act. Among the articles

specially mentioned in such legislation we find candy, vinegar, meat,

fertilizers, milk, butter, spices, sugar, cotton seed, formaldehyde,

insecticide, and general provisions against adulteration, false

coloring, the use of colors and preservatives, etc.

Going from matters merely unwholesome to actual poisons, the course of

legislation on intoxicating liquors is too familiar to the reader

to make it necessary to more than refer to it, with the general

observation that in the North and East the tendency has been toward

high licensing or careful regulation, always with local option; while

in the West originally, and now in the South, the tendency is to

absolute "State-wide" prohibition and even to express this principle

in the constitution. How much this extreme measure is based on the

racial question, in the South at least, is a matter of some debate;

and the working of such laws everywhere from Maine to Georgia, of

considerably more. One may hazard the guess that the wealthier

classes have no difficulty in getting their liquor through interstate

commerce, while the more disreputable classes succeed in getting it

surreptitiously. Prohibition, therefore, if effective at all, is

probably only effective among the respectable middle class where,

perhaps, of all it is least needed. In the older States, at least in

Massachusetts, there has been a decided tendency away from prohibition

in the last twenty years, and even from local prohibition in the

larger cities. Worcester, for instance, after being the largest

prohibition city in the world, ceased to be so this year by the

largest vote ever cast upon the question.

Whatever may be said of the strict prohibition of liquor dealing, no

one can have any objection to such laws as applied to cocaine, opium,

or other poisonous drugs, and we find statutes of this sort in

increasing number; while the manufacture and sale of cigarettes

to minors or even in some States, their consumption, is strictly

prohibited, under criminal penalty. Laws of a similar sort were aimed

at oleomargarine when invented, but this probably not so much to

protect the health of the people as the prosperity of the dairymen.

The mass of such legislation has emerged from the scrutiny of the

courts, State and Federal, with the general result that only such laws

will be sustained as are aimed to prevent fraud; but the manufacture

and sale of oleomargarine under that name cannot be prohibited.

Artificial coloring matter may be forbidden, but a New Hampshire law

was not sustained which required all oleomargarine to be colored pink;

so it may be guessed that the laws of those States which make criminal

the sale or use of cigarettes to or by children "_apparently_" less

than sixteen or eighteen, will hardly be sustained as a constitutional

police measure; yet such laws existed in 1890, while the State of

Washington in 1893 made the sale even of cigarette paper criminal.

Another important line of modern legislation consists in the

subjecting of trades to a license for the purpose of _examination_

(the tax feature has been discussed above). Such laws are

constitutional when applied to a trade really relating to the public

health, but as we have found above, black-smithing is not such an

one; when imposed merely for the purpose of raising revenue,

such legislation is undoubtedly constitutional under our written

constitutions, but opposed to historic English principles, which

insisted for seven centuries of statute-making on the utmost liberty

of trade. In a South American republic you have to get a concession

before going into almost any business, even maintaining a shoe-shop,

or a milk farm, which concession is, of course, often obtained by

bribery or withheld for corrupt reasons. It is to be hoped that the

citizens of our States will never find themselves in that predicament.

Still, certain State constitutions, as that of South Carolina, provide

absolutely that all trades may be made subject to a tax, and the

tendency--particularly in the South--to raise revenue in this way is

increasing by leaps and bounds. Among the trades already subjected to

such licensing or taxing, we find doctors, of course, and properly,

pharmacists, plumbers, pedlars, horse-shoers, osteopaths, dentists,

veterinary surgeons, accountants, bakers, junk dealers, coal dealers,

optometrists, architects, barbers, commission merchants, embalmers,

and nurses. Of course it is a motive to novel or irregular trades to

secure a licensing law from the State, for the slight tax insures them

protection. This is the reason that we find common statutes allowing

osteopaths, etc., to be licensed. So far as I have observed, there is

no such statute as yet in any State applying to Christian Scientists.

Police regulation for the _safety_ of the public is found nearly

entirely in the laws regulating labor, factories, mines, or machinery,

and will be accordingly treated in that connection. Laws protecting

the public against fraud, which from earliest times has been a branch

of police legislation, have been of late years numerous, principally

in connection with the prohibition of dealing in futures or sales on

margin, of sales of goods in bulk without due precautions and notice

to creditors, of the issue of trading stamps or other device tending

to mislead the public. Some States have prohibited department stores,

but this legislation has been held unconstitutional, though the early

English labor statutes forbidding to any person more than one trade or

mystery will by the historical student be borne in mind. Usury laws,

of course, are still frequent, but decreasing in number with the

increasing modern tendency to allow freedom of contract in this as

in other matters, except only to such persons as, for instance,

pawn-brokers, who peculiarly require police regulation.

Coming to statutes which merely facilitate business as it now exists,

by far the most important movement has been the successful work of the

State Commissioners on Uniformity of Law in getting their negotiable

instrument act passed in nearly all the States, and in several already

their uniform law statute on sales, only recommended in 1907. Some

progress has been made in getting a uniform standard of weights and

measures, and there is an increasing tendency to prescribe specific

weights and markings for packages--possibly unconstitutional

legislation. Still more important as a change in previously existing

law has been the increasing tendency to make documents other than

bills and notes negotiable. Perhaps this is a matter which requires

explanation to the lay reader.

The early Anglo-Saxon law could not conceive of ownership of property

as distinct from possession, and to their simple minds, when ownership

was once acquired it was impossible to divest the owner of his

property by any symbolical delivery. Hence the very early statutes

making fraudulent sales or conveyances of property without actual

and visible change of possession. The notion of a symbol, a paper or

writing, which should represent that property would probably have

impressed them like a spell or charm in a child's fairy tale. Even

theft with asportation could not alter property rights, even in

favor of innocent purchasers, when the owner did not intend to part

therewith. A moment's recollection of what is now perhaps the most

familiar of Teutonic saga to the ordinary reader, the text of Wagner's

"Ring of the Nibelung," will give ample evidence of that mental

attitude. But the Oriental mind was far more subtile. To the Jews or

Lombards we owe the discovery of that _bill of exchange_--the first of

negotiable instruments, and the first historically to bring into

our law the legal concept of a symbol of ownership which might be

instantly transferred with an absolute change of title in the property

thereby represented, and this either to a present transferee or to one

far away. Thus, a simple bill of exchange might transfer the ownership

in a pile of gold in a moment from a man in Venice to a man in London,

thereby (if the law-merchant was respected) freeing the treasure

itself from attack at the hands of the Venetian authorities. And not

only was this change of ownership instantaneously effected by the

transfer of some symbol or document representing it, but there also,

and as a necessary part of the invention, grew up the doctrine that

the transferee was relieved of any claims against the property at the

hands of the previous owner. This is what we mean by negotiable;

and it is essential that the precise meaning of the word should be

understood if we are to understand the importance of this legislation.

Even most business men have a very vague understanding of the

difference between _negotiable_ and _assignable_. Substantially

all property and choses in action are assignable, except personal

contracts; and in ordinary business many of them are assumed to

be negotiable, such as bills of lading, warehouse receipts, trust

receipts, or certificates of stock. Most brokers, or even bankers,

assume that when they have a stock certificate duly endorsed to

them by the owner mentioned on its face they have an absolute and

unimpeachable title to the stock therein represented. Such, of course,

is not the case except for recent statutes in a few States. To take a

familiar example, and I can think of none better to show exactly the

difference between a personal contract non-assignable, a document

which is assignable, and one which is negotiable--a Harvard-Yale

foot-ball ticket. If the ticket is issued by the management to a

person under his name, with a condition that it shall be used by no

one else, it is a contract non-assignable. If it is issued to him in

the same manner, but with no provision against assignment or the use

by another person, it would entitle such other person to whom the

ticket was given to use the seat, but only under the title of the

original holder; and if the assignment was later forbidden, or for

other reasons the right recalled by the management, the holder would

have no greater title to the seat; the contract is _assignable_, but

not negotiable. The assignee takes it merely as standing in the place

of the original holder and subject to all the equities between him and

the management. If, for instance, the ticket were given him by fraud,

the right to use it might be revoked and the transferee would have

no greater right than the original holder. But if the ticket were

_negotiable_, like a bank-note payable to bearer, the holder, not

actually himself the thief, would have an absolute title to the

seat without regard to anything that happened prior to his getting

possession of the ticket.

Now it is obvious that it is for the enormous convenience of business

to have business documents made negotiable. If a banker can loan on a

bill of lading or a warehouse receipt, or a trader can buy the same,

or if a man can give a trust receipt to his banker agreeing that all

his general shipments or stock in trade shall be the property of that

banker until his debt is paid, it makes enormously for the rapid

turning over of capital, and the extension of credit. Of course, an

enormous proportion of business in the United States is conducted upon

credit, and without the invention of the negotiable instrument those

credits could not be secured without an actual delivery of the

commodities intended to secure them. And the custom of business is to

consider most such documents negotiable even when in fact they are not

so. It is more than usual to loan money upon warehouse receipts, bills

of lading, stock certificates or trust receipts of all descriptions,

regardless of the question whether the law of the State makes them

negotiable. Hence the very great tendency to make such instruments

negotiable by statute; and I find many such laws, beginning in 1893

in North Carolina, as to warehouse receipts, while the Massachusetts

statute concerning stock dates from 1884.

A reaction to the English common law is the statute, common in recent

years, prohibiting sales in bulk. It appears to have been a growing

custom for merchants, particularly retail merchants, when in financial

difficulties to sell their entire stock in trade to some professional

purchaser by a simple bill of sale without physical delivery. Nearly

all States have adopted statutes against this practice, although in

several they have been held unconstitutional. The feeling that they

are dishonest is doubtless justified by the facts; but it may also be

truly described as a reaction to the simpler English law as against

Oriental innovations.

The descent of property throughout the United States is regulated by

English common-law ideas. That is to say, there is no primogeniture,

although in early colonial times the older son took a double portion;

and there is, except in Louisiana, complete liberty of testamentary

disposition, although in one or two other States there have been

statutes forbidding a man to dispose of all his estate to a charity

within a short time previous to his death, to the prejudice at least

of his direct heirs. The Code Napoleon, of course, limits testamentary

disposition in favor of these latter, so in Louisiana, only half of

a man's estate can be given away from his children or widow, and not

more than three-fourths of his estate can be bequeathed to strangers

or to charity, to the prejudice even of collateral heirs.

In matters of general business the usual lines of legislation have

been the ordinary ones found in English history. That is to say,

statutes of frauds, usury or interest laws, and other familiar

matters. The only tendency one can note is a broad range of

legislation devised in the interest of the debtor--not only liberal

insolvency laws now superseded by the national bankruptcy act, which

is still more liberal than the laws of the States preceding it, but

statutes restricting or delaying foreclosure of mortgages, statutes

exempting a substantial amount of property, implements of trade,

agricultural articles, goods, land, or even money, from the claims of

his creditors. The exemption of tools or implements of trade goes back

to Magna Charta, it will be remembered, but the exemption of other

articles is modern and American. There is probably, however, no

subject which is so apt to be let alone by our legislatures as that of

business law. Upon that subject, at least, they are fairly modest

and inclined to think that the laws of business are known better

by business men. Imprisonment for debt is, of course, absolutely

abolished everywhere, and in most States a woman is not subject to

personal arrest in civil process. The statutes prevailing throughout

the country, which give special preference to claims for wages or even

for material furnished by "material men," have already been noted. It

may be broadly stated that the presumption is that such claims are

everywhere a preferred debt to be paid out of the estate of the

insolvent, living or dead, in preference to all claims except taxes.

The security of mortgages is very generally impaired by legislation

confining the creditor to only one remedy and delaying his possession

under foreclosure. That is to say, in far Western States generally, he

cannot take the land or other security, and at the same time sue the

debtor in an action for debt for the amount due, or the deficiency.

This, of course, makes of a mortgage a simple pledge. Moreover, with

the practice of delaying possession under foreclosure, appointing

receivers in the interest of the debtor, etc., he is in many States

so delayed in getting possession of his security that by the time he

acquires it he will find it burdened with overdue taxes and in a state

of general dilapidation. We have already alluded to the practice in

California of compelling the executor of a mortgage to submit

himself to the jurisdiction of the local public administrator, which

practically results in a sequestration of a considerable portion of

the property. For all these reasons, many conservative lawyers in the

East, at least, would not permit their clients to invest their money

in mortgages in California, Minnesota, Washington, or the other States

indulging in such legislation, and partly for this reason the rate of

interest prevailing in mortgages is very much higher in the far West

than it is in States east of the Missouri River.

The greatest mass of legislation is, of course, that upon mechanic's

liens, which are burdensome to a degree that is vexatious, besides

being subject to amendment almost every year. In a general way, no

land-owner is free from liability for the debt of any person who has

performed labor or furnished materials on the buildings placed upon

the land, even without the knowledge or consent of the land-owner in

some States, though in one or two instances, notably in California,

such legislation has been carried to such an extreme as to make it

unconstitutional.

The matter of nuisances has been already somewhat covered. Legislation

extending the police power and declaring new forms or uses of property

to be a nuisance is, of course, rapidly increasing in all States. The

common-law nuisance was usually a nuisance to the sense of smell or

a danger to life, as, for instance, an unsanitary building or drain.

Noise, that is to say, extreme noise, might also be a nuisance, and

in England the interference with a man's right to light and air.

Legislation is now eagerly desired in many States of this country to

make in certain cases that which is a nuisance to the sense of sight

also a legal nuisance, as, for instance, the posting of offensive

bills on the fences, or the erection of huge advertising signs

in parks or public highways. Such a law was, however, held

unconstitutional in Massachusetts. There is some legislation against

the blowing of steam whistles by locomotives, although I believe

none against the morning whistle of factories, and some against the

emission of black smoke in specified durations or quantities.

But perhaps the most important legislation affecting simple matters of

business other than the line of statutes already mentioned, making new

negotiable instruments and controlling the title of property by the

possession of a bill of exchange, bill of lading, warehouse or trust

receipt, are those statutes prohibiting the buying of "futures," or

the enforcement of gambling contracts to buy or sell stocks or shares

or other commodities without actual or intended change of possession,

which we have necessarily referred to in our discussion of restraint

of trade (chapter 4). There is a very decided tendency throughout the

country, particularly in the South, to prohibit all buying or selling

of futures, that is to say, of a crop not actually sold, or of any

article where physical delivery is never intended, and it will be

remembered we found plenty of precedent for such legislation in

early English statutes. Gambling contracts may be forbidden only in

specified places, such as stock exchanges; and the buying of futures

may be specially permitted to favored persons, such as actual

manufacturers intending to use the goods; and both such statutes will

be held constitutional and not an undue interference with the liberty

of contract. These matters were largely covered by the statutes of

forestalling in early times. Legislation more distinctly modern is

that against sales in bulk, and against department stores; more

striking still is the statute, already passed in Wisconsin and

Virginia, forbidding all tips, commissions, or private advantages

secured by any servant or agent in carrying on the business of his

principal, his master, or the person with whom he deals; the statute

even forbids a gratuity intentionally given directly from the one to

the other. It is hard to see how the last clause of the law can be

held constitutional, any more than the laws forbidding department

stores, although such commissions may be forbidden to be given

"unbeknownst."

Weights and measures are standardized by the Federal government, and

to these standards the States in practice all conform, but the legal

weight of a bushel or other measure of articles varies widely in the

different States, and the State Commissioners on Uniformity of Law

have tried in vain to get the matter generally regulated. At one time

the weight of a barrel of potatoes in New York City was fourteen

pounds more than it was in Hoboken, across the river. In Massachusetts

the weight of a barrel of onions was increased two pounds to

conform with the uniform law recommended to all the States by the

commissioners; but a representative in the State Legislature coming

from a locality of onion farms lost his seat in consequence, which

inspired such terror in other members of the State Legislature that

the uniform law was promptly repealed, the weight of the barrel of

onions put back at the former figure, and this over the veto of the

governor. It is needless to say that the whole value and object of the

whole movement for uniformity is to have actual uniformity. That is to

say, unless the lawyer or citizen reading the statute can be sure that

it is uniform with the laws of all other States without taking the

trouble to consult them, the reform has no value. But it has proved

almost hopeless to get this through the brain of the average

legislator. The uniform law upon bills and notes, indeed, already

mentioned, is treated with more respect; because, as has been said

above, they regard that as a matter of business, and they have some

respect for the expert knowledge of business affairs possessed by

business men.

The licensing of trades might be made a very valuable line of

legislation to prevent the fleecing of the ultimate consumer by the

middleman. Our ancestors were of the opinion that the middleman, the

regrator, was the source of all evils, and they were also of the

opinion that any combination whatever to control the price of an

article of food, or other human necessity, or to resell it elsewhere

than at its actual market and at the proper time, was a conspiracy

highly criminal and prejudicial to the English people; in both of

which matters they were, in the writer's opinion, perfectly right, and

far more wise than our modern delusion that "business"--that is to

say, the making of a little more profit from the larger number of

people--justifies everything. Now, at the time of the coal famine of

1903, Massachusetts passed a statute licensing dealers in coal; the

law for the municipal coal-yard having been declared unconstitutional.

The object of this statute was not to derive revenue or to restrict

trade, but to regulate profits; and in particular to prevent

the retail coal-dealers from combining to fix the price of coal

themselves. Yet in spite of this legislation, the ice-dealers of

Massachusetts only this year (1910) assembled in convention in Boston

upon a call, widely advertised in the newspapers, that they were

holding the assembly for that precise purpose, that is to say, to

fix and control the price and the output of ice. They were, indeed,

"malefactors of great wealth"; at least we may guess the latter, and

the animus of a more intelligent precedent may some day hopefully be

directed to such definite evils, of which our ancestors were well

aware, rather than blindly running amuck at all. The coal-dealers in

Boston, by the way, made the same argument that is always made, and

was made at Athens in the grain combination of the third century

B.C.--to wit, that they put up the prices in order to prevent other

people buying all the coal and speculating in it; but notwithstanding

that showing of their altruistic motives, the secretary of state

revoked the license of the coal company in question. The statute

also forbade the charging extortionate prices, which, again, was a

perfectly proper subject of legislation under the common law; but,

unfortunately, was carelessly drawn, so that it resulted in a somewhat

cloudy court opinion.

For the matter of uniform legislation the reader must be referred

in general to reports of the National Commission. Their greatest

achievement has been the code of the law of bills and notes just

mentioned. Besides this they have just adopted a code on the law of

sales, and they have recommended brief and uniform formalities as well

as forms for the execution and acknowledgment of deeds and wills, and

have very considerably improved the procedure in matters of divorce.

The best modern legislation concerning trade and business is, of

course, that of the pure-food laws. The Federal law has certainly

proved effective, although it is in danger of being repealed or

emasculated in the interest of the "special interests"; most of the

State laws simply copy it. Undoubtedly the laws should be identical in

interstate commerce and in all the States; and this can only be done

by voluntary uniform action.

VIII

REGULATION OF RATES AND PRICES

This, the last method of infringing upon absolute rights of property,

has assumed such importance of recent years as to deserve and require

a chapter by itself. The reader will remember what precedents we found

for the fixing of prices, wages, and rates or tolls in England. It may

be convenient for our purposes to use these three definite words to

mean the three definite things--prices in the sense of prices of goods

or commodities; wages the reward of labor or personal services; and

rates (the English word is tolls) for the charges of what we should

now term public-service corporations, or in old English law,

franchises, or what our Supreme Court has termed "avocations affected

with a public interest." The reader will remember that the attempted

regulation of prices began early and was short-lived, dating from the

Assize of Bread and Beer in 1266, to the Statute of Victuals of 1362,

hardly a century, and even these two precedents are not really such,

for the first only fixed the price of bread and beer according to the

cost of wheat or barley, just as to-day we might conceivably fix the

price of bread at some reasonable relation to the price of flour in

Minneapolis, and as it was fixed in ancient Greece by the wholesale

price of wheat at Athens[1]--not as it now is, from three to four

times the cost of bread in London, although made out of the same flour

shipped there from Minneapolis; and the two latest statutes expressly

say that they fix the price by reason of the great dearness of such

articles on account of the Black Death or plague, and the consequent

scarcity of labor. Then the Statute of Laborers of 1349 provided that

victuals should be sold only at reasonable prices, which apparently

were to be fixed by the mayor. With these statutes the effort to fix

prices by general statute disappeared from English civilization save,

of course, as prices may be indirectly affected by laws against

monopoly, engrossing, and restraint of trade; and local ordinances in

towns continued probably for some time longer.

[Footnote 1: For an actual report of an indictment and jury trial

for forestalling and regrating wheat in the third century B.C., see

Lysias's oration, translated by Dr. Frederic Earle Whitaker, in

_Popular Science Monthly_, April, 1910.]

Legal regulation of _wages_ lasted much longer in England; and

has reappeared in very recent years, at least in the Australasian

colonies, with a beginning of such legislation in Great Britain and

Ireland and the State of New York. The first Statute of Laborers

merely provides that the old wages and no more shall be given. The

next year, however, in 1350, the exact rate of wages was fixed; and

this lasted for more than two centuries, to the reign of Elizabeth,

the so-called "great" Statute of Laborers consolidating all the

previous ones. It is apt to be the case that when a statutory system

has reached its full development it falls into disuse; and that is

certainly the case here. There is no later statute in England until

1909 fixing directly or indirectly the rate of wages; and it may be

doubted whether the justices of the peace continued to fix them for

many years under the Statute of Elizabeth. More than three centuries

were to go by before this principle reappeared in legislation or

attempted legislation; but in Australia,[1] New Zealand,[2] and

England[3] there has been recent legislation for a legally fixed rate

of wages to be determined for practically all trades by a board of

referees, consisting, as such boards usually do consist, of one

member to represent capital, one to represent labor, and the third to

represent the public or the state. As such third representative almost

invariably votes on the side of the greatest number of voters, this

practically makes a commission hardly impartial. The working of the

system in New Zealand will be found discussed in the _Westminster

Review_ for January, 1910. There is an appeal to the courts from the

rate of wages fixed by such commission; and it appears that out

of four such appeals, in three the decision of the commission was

confirmed, and in the fourth set aside; but the workingmen disregarded

the judgment of the court and struck for a higher wage--contrary to

the whole theory of such legislation, which is to _prevent_ strikes.

This strike succeeding, there has, therefore, been no case so far

where the increasing rate of wages was checked by any appeal to the

courts.

[Footnote 1: So. Australia, 1906, no. 915; 1900, no. 752; Victoria,

1903, no. 1,857; 1905, no. 2,008.]

[Footnote 2: See New Zealand Law of 1900, no. 51; frequently amended

since.]

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

In the British Parliament last year (and the identical bill has

been introduced in the State of New York under championship of the

Consumers League, as applied to women and children), a bill was

introduced,[1] not backed, however, by the government as such,

although bearing the name of Lloyd-George, providing in effect that

wages might be fixed in this manner in certain definite named trades,

and also in such other trades as might be designated from time to time

by the home secretary. The economic effect of such measures we are not

to discuss. In the United States, except as to public work, they would

be probably unconstitutional.

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

Coming, therefore, to public work, we use this phrase for all labor

contributed directly to the State, to any county, city, town, village,

or municipality thereof, to any municipal-owned public-service

corporation, gas, water, etc., company, or, finally, and most

important, to or under any contractor for the same, or any of them.

Some years ago the State of New York adopted legislation to the effect

that in all such public employment the wages paid should be the usual

rate paid for similar work in the same locality at the same time. As

a result of this legislation, many thousands of lawsuits were brought

against the City of New York by persons who had done labor for that

municipality in the past, complaining that they had not in fact been

paid "the prevailing rate," although in fact the work had long since

terminated, and they had been discharged, paid in full, and apparently

satisfied. Shortly after, the law itself was declared unconstitutional

by New York courts. Thereupon the labor interests proposed a

constitutional amendment in 1905, to the effect that "the legislature

may regulate and fix the wages or salaries, the hours of work or

labor, and make provision for the protection, safety, and welfare of

persons employed by the State or by any county, city, town, village,

or other civil subdivision of the State, or by any contractor or

subcontractor performing work, labor, or services for the State or for

any city, county, town, village, or other civil division thereof." A

very small proportion of the voters of New York took the trouble to

vote upon this amendment, although it revolutionized the economic, if

not the constitutional, system of the State, so far as property and

contract rights are concerned; and it was adopted by a substantial

majority. In Indiana there was a statute at one time fixing the rate

of wages in public employment at a minimum of not less than fifteen

cents per hour, but it was held unconstitutional. It is customary in

New England villages to vote annually that the town shall pay its

unskilled labor a prescribed rate for the following year, usually two

dollars per day. The effect of this has been sometimes to cause the

discharge of all but the very most skilful and able-bodied; of those

who had, by working at less than full pay, been kept out of the

poorhouse; and the selectmen of some towns, notably Plymouth, have

refused to obey such a vote. The California Code of 1906 provides a

minimum compensation of two dollars per day for public labor, except

as to persons regularly employed in public institutions. Delaware has

copied the New York statute as to the prevailing rate. Hawaii, in

public labor, provides a minimum wage of one dollar and twenty-five

cents per day. Nebraska goes further, and provides not only for two

dollars per day for public work, but that it must be done by union

labor in cities of the first class, while Nevada has a minimum wage

of three dollars and an eight-hour day for unskilled labor in public

work. On the other hand, the Constitution of Louisiana prescribes that

no law shall ever be passed fixing the price of manual labor.[1]

[Footnote 1: This matter will be found further discussed in chap. XI.]

Coming lastly to _tolls_, or rates of persons or corporations enjoying

a franchise, that is to say, a legalized monopoly, or exclusive

legislation, or special privilege, such as eminent domain, or the

right to occupy the streets; such are, in fact, identical with what we

term public-service corporations, the older, the most universal, and

certainly the most, if not the only, justifiable example of legal

regulation of the returns for the use of property or personal

services.

Whatever may be thought of the economic wisdom of attempting to

regulate any rate or prices by law (and for a discussion of this

subject as to railways, at least, the reader may well be referred

to the valuable treatise of Mr. Hugo R. Meyer, "State Regulation of

Railways"), such legislation was at least in England constitutional;

but in this country, owing to our specific adoption of the principle

of property rights and freedom of labor and hence of freedom of

contract in our Federal and State constitutions, and as it has been

repeatedly decided that to take away the income from property or a

reasonable return for labor by legislation is to infringe on the

property or liberty right itself, we have a universally recognized

constitutional objection which has, in fact, made impossible all

regulation of prices and wages, except as above mentioned, and as we

are now about to discuss. The first attempt to regulate rates (with

the possible exception of some early colonial laws) was the so-called

Granger legislation, as shown in the Illinois Constitution of 1870,

authorizing a warehouse commission to fix charges for elevating grain,

the Act of Iowa of 1874 establishing reasonable maximum rates for

railways, a similar act in Wisconsin of the same year relating to

railroad, express, and telegraph companies, and in Minnesota; which

legislation was all sustained by a divided opinion in the so-called

Granger cases headed by Munn _v._ Illinois, 94 U.S. 113.

In the many years which have elapsed since this famous decision, the

clouds have rolled away and the shape and basis of that apex of our

jurisprudence been fairly surveyed. It will appear, I think, to any

dispassionate jurist to have been rightly decided, at least as to

the railroads, though the reasons given by Chief Justice Waite are

unsatisfactory and have little logical basis. The true basis of

regulation of rates at the common law and in English history was

_monopoly_; either a franchise directly granted by the crown, such as

a bridge, ferry, or dock, or one which was geographically, at least,

exclusive, like a dock without a franchise. As Lord Ellenborough said

in the decision quoted by the Chief Justice himself: "Every man may

fix what price he pleases upon his own property, or the use of it; but

if for a particular purpose the public have a right to resort to his

premises and make use of them, and he have a monopoly in them for that

purpose, if he will take the benefit of that monopoly, he must, as an

equivalent, perform the duty attached to it on reasonable terms." "_If

for a particular purpose the public have a right to resort to his

premises_"--this important qualification from now on seems to have

been lost sight of in the majority opinion. Quoting the early

precedents such as that statute of William and Mary regulating the

charges of common carriers--and our readers will remember many

more--and the case of cabmen whose charges are regulated by city

ordinances--but they are given stands or exclusive privileges in the

streets--the chief justice concluded with the startling proposition

that "if they do not wish to submit themselves to such interference,

they should not have clothed the public with an interest in their

concerns." But the public has an interest, as was afterward pointed

out in dissenting opinions, in the price of shoes; yet it has never

been supposed that that gave any power of legal regulation of factory

prices. A still stronger case is that of inns or hotels, which have

always been "a public avocation." They have had to take in all

travellers without discrimination; yet there is not a vestige of

legislation in the English statute-book regulating the prices to be

charged by hotels. Indeed in early times most employments--millers,

barbers, bakers--were public in the sense that the man could not

refuse a job; yet their prices were never regulated. Yet it was upon

this phrase, "_public employment_" or "_private property affected with

a public interest_," taken from the opinion of Justice LeBlanc in the

London Dock Company case, decided in 1810, without its context, that

the chief justice built up the whole reason of his decision. The

_decision_ in Munn _v._ Illinois, subject to court review as to

whether the rate be confiscatory, remains good law, but the _opinion_

is still open to question; and indeed the most recent decisions of the

Supreme Court show a desire to get away from it.

Some writers endeavor to justify, under our constitutions, the

regulation of rates by the principle of eminent domain; but this

source seems far-fetched and unnecessary. It is, of course, done under

the police power; but the precedent for that use of the police power

is to be found in the history of English law and statutes. Thus we

have noted in the Statute of Westminster I, A.D. 1275, that excessive

toll contrary to the common custom of the realm was forbidden in

market towns. The very phraseology of this statute indicates the

antiquity of the doctrine that tolls must be reasonable; but "toll"

was always a technical term, not for ordinary prices of commodities,

but for a use or service which was in some way dependent upon law or

ordinance. In the very opinion of Chief Justice Waite, he quotes Lord

Hale, saying that the king "has a right of franchise or privilege,

that no man may set up a common ferry without a prescription time out

of mind, or a charter from the king," and so later he quotes Lord Hale

as saying that the same principle applies to a public wharf "because

they are the wharves only licensed by the king." We also found

legislation fixing rents and so on in staple towns, and consequently

of the charges of property owners therein, such towns having grant of

a special privilege. The early law books are full of cases showing

that discrimination and extortion were unlawful, even criminal,

offences. And finally, as Chief Justice Waite points out, we find the

rates of carriers fixed by law in 1691. Ordinary carriers, not having

the right of eminent domain such as express companies, might to-day be

considered to have no legal monopoly, and indeed, possibly for that

reason, the regulation of charges of express companies has not yet

been attempted; but in King William's time it was doubtless considered

that the carriers had special privileges on the highways, as indeed

they did.

It seems to me, therefore, that the real reason, both logical and

historical, for regulation of rates rests on the fact that the person

or corporation so regulated is given a monopoly or franchise by some

law or ordinance, or at least a special privilege from the State; or

at least that he maintains a wharf, a bridge, or a ferry, or

other avocation which (really for the same reason) has, from time

immemorial, been subject to such regulation. This, indeed, has been

the doctrine officially adopted by the Commonwealth of Massachusetts

in its legislation--"Where monopoly is permitted, State regulation

is necessary." The new "Business" Corporation Act of 1903 makes the

express distinction between public-service corporations and all other

private corporations for gain: it applies to "all corporations ...

established for the purpose of carrying on business for profit ... but

not to ... railroad or street railway company, telegraph or telephone

company, gas or electric light, heat or power company, canal, aqueduct

or water company, cemetery or crematory company, or to any other

corporations which now have or may hereafter have the right to take or

condemn land or to exercise franchises in public ways granted by the

commonwealth or by any county, city, or town." The implication is that

such other corporations are not given the entire freedom of action and

contract conferred by this Business Corporation Act. Where the State

creates a monopoly, it puts the public at the mercy of the grantee

of that franchise. Therefore, it is logical and just that it should

regulate the rates. The test, however, is not and cannot be, that the

man is ready to serve all comers, or even that he is compelled so to

do; hotel-keepers, barbers, restaurants, doctors, etc., have never

had their charges regulated by law. In early days most tradesmen were

compelled to serve any and all, at an equal price, under liability

for damages.[1] Mills, indeed, have always been subject to have their

tolls regulated; at least, a certain proportion of the grist had to go

to the miller; but even if it be held they had no peculiar franchise,

the exception is as old as the rule.

[Footnote 1: Holmes J., _ex banco_, in United States _v_. Standard Oil

Co., March 14, 1910.]

It is further noteworthy that since the Granger cases themselves,

there has been no extension of the doctrine of Chief Justice Waite to

other trades or industries, while the extent of the doctrine, that is,

the amount of regulation permissible under the Constitution, has

been very much limited. Waite's opinion gives no intimation of any

constitutional limit whatever, but dozens of the decisions of

the Supreme Court since draw the limit this side of the point of

confiscation; that is to say, at a "reasonable return," whatever that

phrase may mean. It was, indeed, at first extended to semi-private

grain elevators on the prairies, to elevators monopolizing the water

front of Buffalo, New York, and to floating elevators in New York

Harbor, the first and last of which show certainly no element of legal

monopoly, while the Buffalo case at most only a geographical one.

Still, elevators were the subject of Munn _v_. Illinois itself.[1] And

it has never been extended to a mere _de facto_ or "virtual" monopoly

arising only from the accident of trade. Moreover, in matters of

interstate commerce, although it might have been argued that such

affairs were left absolutely to the plenary power of Congress, which

might well, if it chose, pass laws preventing any railroad from

engaging in interstate business, except at a certain rate per mile for

passengers or freight--or that no vessel should be allowed to carry

passengers or freight from foreign countries except at a certain price

per head or per ton--yet the Supreme Court seems to have held that

even this plenary power over commerce expressly given to Congress in

the Constitution, is limited by the ordinary property guarantees of

that instrument; possibly because the Fifth Amendment is of later date

than the body of the Constitution.

[Footnote 1: We may divide monopolies into legal, geographical, and

_de facto_, or "virtual" monopolies--phrases which sufficiently

describe themselves.]

We thus find that the earliest legislation regulating rates was that

of the States. It was thirteen years after the Iowa statute above

referred to that the Interstate Commerce Act was passed, which was

supposed to give a power--afterward denied by our Supreme Court--to

the Interstate Commerce Commission to fix rates. It certainly did give

them power to find, upon complaint, what was a reasonable rate, which

was _prima facie_ evidence in case of appeal. In hundreds of cases

actual rates were complained of, in probably many more discrimination

was complained of, and, according to Mr. Meyer, the commission was

found by the Supreme Court to have decided rightly about half the

time. In 1903 came the intelligent Elkins Bill against discrimination,

which merely re-enacts the common law, and up to within two or three

years has proved the only really effective measure of controlling the

rates themselves. In 1906 came the Hepburn Act under Roosevelt, giving

general power to the commission to fix rates upon complaint, to make

joint rates, extending the statute to the oil pipe-lines, express

companies, and sleeping-car companies, and going to the verge of

the Constitution in an effort to provide that rates fixed by the

commission should take immediate effect. So far as most recent

decisions go, however, this great statute has not altered the position

of the Supreme Court of the United States as to the constitutional

necessity of a reasonable return to the carrier, and perhaps the

cardinal question remains to be decided, whether such rate-making

power is legislative, and, if so, may under the Federal Constitution

be delegated by Congress to any board. Congress merely proclaims that

the rates shall be reasonable and without discrimination--both mere

expressions of the common law--and leaves the determination of what is

reasonable between the Interstate Commerce Commission and the Supreme

Court, neither of them legislative bodies. The common law may, indeed,

be decided by a judicial body; but it is difficult to see why the

alteration of the common law is not legislation. And this criticism

applies _a fortiori_ to the Taft Bill just enacted (June, 1910), which

gives the Interstate Commerce Commission power to fix rates of their

own motion. When, therefore--if the author may venture to repeat his

words--the commission fix a "just and reasonable" rate,[1] if they are

applying the common law, their act is judicial; if they are fixing

other standards, it is legislative.[2]

[Footnote 1: United States Act of February 4, 1887, as amended June

29, 1906, sec. 15.]

[Footnote 2: Stimson's "Federal and State Constitutions of the United

States," p. 53.]

Coming to the States again, this constitutional difficulty does not

concern us, for it has been decided that the division of powers into

legislative, executive, and judicial must, as to the States, be

expressly provided in the State constitutions and is not guaranteed

under the Fourteenth Amendment. Broadly speaking, the history of

legislation has been as follows: The States have usually exercised

their rate-making power through a railroad or corporation commission.

New York and Virginia now employ the more comprehensive phrase "public

service" or "corporation" commission. The Massachusetts statute, like

the Granger statutes, dates from 1874. Just as we found in the Middle

Ages in the case of the Black Death in times of famine, so times of

panic with us have always produced radical legislation: this, it

will be noted, is the year after the great panic of 1873. But the

Massachusetts law, the earliest of all, did not and does not authorize

any fixing of rates, or even any finding as to what was reasonable

upon rates. It extends only to the other conditions of service. The

statute is, perhaps, broad enough to permit such a finding as matter

of opinion; but it would have no legal effect. The commission, section

15, were authorized to find that a change in rates of fares for

transporting freight or passengers was reasonable and expedient, and

so inform the corporation and the public, through their annual report.

All the Western States, however, did give such power.

As has been said, no constitutional objection has been sustained by

the United States Court as to this delegation of power, if it be one;

but in later years, possibly dissatisfied with the conservatism of

such boards, we find drastic legislation, particularly in the West

and South, fixing maximum rates, at least as to passengers (it is

obviously difficult, if not impossible, to enact express legislation

as to freight rates). Such legislation stands in as strong (or

stronger) constitutional position, as rates made by the commission;

and only fails when "confiscatory" or when in conflict with Federal

legislation. Perhaps the most notable clash between the States and the

Federal power has been on this subject in this very last year, where

State laws have been annulled and even high State officers enforcing

them restrained by injunction of Federal courts. Still, in the

legislation of all States, I find as yet none overstepping the limits

we have above defined as proper.

The question of the _amount_ of return required by the court is, of

course, a most important one. It is a difficult subject, because no

fixed rule takes any account of risk to the original investment. It is

all very well to say that six or eight per cent, is a fair return on

invested capital, or even on "cost of reproduction"; but when, as to

original promoters, the chance of even any return was as one against

ten of a total loss, _fifty_ per cent. of annual profit would not

be more than a "fair return"! The original Massachusetts railway

legislation seems to contemplate that ten per cent. should be the

normal return on railway stock, for it provides that at any time the

commonwealth may purchase any or all its railroads upon the payment of

the cost, plus ten per cent. a year profit.

Other than in railroads, the main fixing of rates has been in

illuminating gas. Many cities are permitted to legislate on this

point. In New York it was decided that they might so do, provided the

gas company got a fair return on its capital, not including the value

of its franchise; and certainly it would seem to be the height of

audacity to claim more. Much as if a boy, presented by his father with

hens and the feed to support them, were to demand the capitalization

of the value of all future eggs upon going out of business! In

Boston, intelligent legislation was adopted--based on good mediaeval

principles--which allows dividends at a sliding scale according to the

price of gas to the consumer.[1] The great reason, of course, of the

cessation of legislative activity on the part of the States, as to

railway rates, has been that the great bulk of rates appertained to

interstate commerce, or at least must be controlled by the rates of

interstate commerce; so only legislation as to strictly local rates

remains.

[Footnote 1: It will be remembered that the very earliest Statute of

Bread and Ale (1266) established such a sliding scale.]

The two most important questions, aside from that of an actual

extortionate rate (which has hardly ever been claimed) are that of

discrimination, and of the long-and-short-haul clause, which is really

a derivative of the former. We have found the principle against

discrimination time-honored in the common law; but modern statutes

wisely recognize that discrimination only exists when two persons

or two localities are given different rates _under equivalent

circumstances._ There has, therefore, been great dispute what these

words, "similar circumstances and conditions," in the Federal law may

mean. There is no doubt that actual differences in cost of service

make dissimilar conditions; but does geographical situation, such as

is recognized in the long-and-short-haul clause? or still more, the

amount of business offering, or the amount of possible competition?

Very early the Interstate Commerce Commission and our legislation got

to the point of recognizing competition by water; but the competition

of other railroads was a thing harder to recognize. Many people

think they have a right to a fairly equivalent service at a fairly

equivalent cost throughout the United States, and that they have

a right to all the advantages of their geographical position. The

farmers in Westchester County, about New York, thought they had

undoubted reason to complain when the rates on milk were made the same

from their farms to the city as from farms in Ohio; pointing out,

indeed, that they had bought their farms originally, and paid high

prices for the land, for the very reason of its geographical situation

close to a great market. Yet in our courts the economic rule has

usually prevailed; although no legislation, so far as I have found,

recognizes such differences, except under some vague expression such

as service or discrimination "under like or similar conditions."

Whether legislation will ever come to the point of recognizing the

railroad man's shibboleth, "charge what the traffic will bear," is

perhaps dubious. And the new Taft Act, in its long-and-short-haul

provision, takes a long step in the direction of geographical

uniformity and rigidity of rates.

A few examples of modern rate regulation may be given. In 1896 South

Carolina fixed a flat passenger rate of three and one-quarter cents

per mile. Both South Carolina and Virginia have empowered the railway

or public service commission to fix all rates, including telephone and

telegraph. Passenger rates are now usually fixed at two cents per mile

in the East, or at two and one-half cents in the South or West. In

1907 Kansas and Nebraska arbitrarily reduced all freight rates fifteen

per cent. on the price then charged. In 1907 there was some evidence

of reaction; Alabama, in an extra session, repealed her law enacted

the same year prescribing maximum freight rates, substituting more

moderate rates in seven "groups" (which, however, may be changed by

the railway commission!), and also enacted a statute directing the

commission and the attorney-general not to enforce the earlier law;

while the heavily penal Minnesota law was declared unconstitutional by

the United States Supreme Court. In the British empire the power to

fix rates is, of course, unquestioned; and they are, as to railways

at least, generally regulated by law. Canada in 1903 established

a railroad commission, and Nova Scotia in 1908 imposed various

restrictions as to tolls, still the English word for rates. So in

Ontario and Quebec in 1906, and in Tasmania in 1901. In many States,

such as Victoria, the railways are owned by the state, in which case,

of course, no question as to the right to fix rates can arise.

IX

TRUSTS AND MONOPOLIES

Legislation against combinations of properties to bring about

monopoly, or contracts in restraint of trade, is the last field of

legislation we have to consider in connection with property, and

possibly in the public mind the most important. Although the law

against combinations of laborers rests upon much the same principles,

it is perhaps best to give a special chapter to combinations of

property, leaving labor combinations to be treated in that special

connection. The matter has been written up so voluminously that it

might be difficult to say anything new upon the subject, yet for that

very reason it may be as well to analyze it into its simplest elements

at the common law, and then trace its recent development in our

somewhat unintelligent statute-making. At common law, then, these

obnoxious acts may be analyzed into five definite heads: forestalling,

regrating, and engrossing--which have been thoroughly defined in an

earlier chapter and the modern form of which in modern language might

be called restraining production or fixing prices, the buying

and selling of futures or gambling contracts, and cornering the

market--restraint of trade, and monopoly. The broad principles,

however, upon which the gravamen of even these first three rests, is

restraint of trade, which was always obnoxious at the common law.

Contracts in restraint of trade, except such reasonable contracts as

partnership, or the sale of a business with condition not to engage in

the same trade in a certain limited locality or for a certain, limited

time, have always been void at the common law. They are not, however,

criminal except by statute, though a combination in restraint of

trade, etc., was always so. We found many such statutes as we also

found laws which gave a penalty in double or treble damages to the

person injured by such combination or contract. The great case of

monopolies, reported in full in the seventh volume of the State

Trials, is a perfect mine of information on this subject, having been

argued many months at great length by the greatest lawyers, three of

whom later were chief-justices of England. This is not the case of

the playing cards, Darcy's case, commonly called the "Monopoly Case,"

which is briefly reported in Coke and covers a far narrower subject,

the royal grant for a monopoly in the importation (not manufacture or

sale) of playing cards, presumably because Coke's reports are far more

accessible than the somewhat rare editions of the State Trials; but

the great case brought by the British East India Company against one

Sandys, the loss of which would have forfeited its charter and its

business, and possibly put an end to British dominion in the East.

Its charter dated from the early years of Charles II and the 43d

Elizabeth. It brought suit against the defendant, who freighted a

vessel to East Indian ports. Mention in it is made of a charter to the

Muscovy Company as early as Philip and Mary, a much earlier date than

is elsewhere assigned to trading corporations. Hundreds of cases of

unlawful monopolies are cited, among them the case of the tailors of

Norwich, where a combination to work only for certain wages and to

advise others not to work for less and to prevent such others from

getting employment with their own employer, was held a conspiracy and

an attempt to gain a monopoly at the common law. Another case, of one

Peachy, who had by royal grant an exclusive right to sell sweet wine

in London, was held to disclose an odious monopoly at common law and

the king's franchise void.

In the opinion of the writer, had this common law been thoroughly

remembered and understood by our bench and bar, to say nothing of our

legislatures, very little anti-trust legislation by the States

would have been necessary except, again, of course, to affix modern

penalties to such offences. There has, however, been a vast amount

of such legislation. In so far as such legislation has embodied the

common law, it has stood the test of the courts and been of some value

in repressing objectionable trusts or contracts. In so far as it has

gone beyond the common law, it has often proved futile and still more

often been declared unconstitutional by the courts.

To the five principles of the common law set forth above we have,

perhaps, added two new ones. Besides fixing prices, limiting outputs,

cornering the market, contracting in restraint of trade, and acting or

contracting with the purpose of gaining a monopoly--all of which were

objectionable at common law--we have legislated in some States against

the securing of discriminatory railway rates for the purpose of

establishing a monopoly, and against what we have termed "unfair

competition"--that being generally defined to be the making of an

artificially low price in a certain locality for the purpose of

destroying a competitor, or the making of exclusive contracts; that is

to say, refusing to deal with a person unless he binds himself not to

deal with anybody else. This last thing can hardly, however, be said

to add to common-law principles. Nevertheless, some of the newer State

anti-trust statutes prescribe it so definitely that it may be treated

as a modern invention.

All this legislation is extremely recent. In the writer's digest of

"American Statute Law," published in 1886, I find no mention of trusts

in this modern sense, though a special chapter is given to them in

volume II, published in 1892. The first legal writing in which the

word was used and the rise of the thing itself adverted to is, so

far as I know, a contribution to the _Harvard Law Review_, entitled

Trusts, vol. I, page 132; but the trust then had in mind was the

simple early form of the railway equipment trust said to have been

invented in Pennsylvania, which was indeed copied in the first

agreement, so long kept secret, of the Standard Oil Trust; and also

the corporate stock trust, that is to say, the practice then beginning

of persuading stockholders to intrust a majority of the capital stock

of the corporation into the hands of trustees, receiving in return

therefor trust certificates, with a claim to the net earnings of the

corporation, but without real voting power; and there are cases in

which such trusts were sought to be held invalid and enjoined in

equity, sometimes with and sometimes without success.

Before going into the details of anti-trust legislation, it would be

well to sketch its history on the broadest possible lines. Legislation

began first in the States some years before the Federal Anti-trust

Law, or Sherman Act, first enacted in 1890. These earlier statutes,

including the Sherman Act itself, made illegal all contracts or

combinations between persons or corporations in restraint of trade;

and their direct result was to compel the formation of the gigantic

modern trust as we now understand it. Had the Sherman Act, instead of

being called "An Act to Protect Trade and Commerce Against Unlawful

Restraints and Monopolies," been entitled "An Act to Compel the

Formation of Large Trusts by all Persons Engaged in Similar Lines of

Business," it would have been far more correctly described in its

title. For whereas, before this act persons or corporations could make

contracts or arrangements among themselves which were good and valid

working agreements unless so clearly monopolistic as to be held

unreasonable restraint of trade at the common law (which, indeed,

so far as I know, was never done in any American court), after

the Sherman Act was passed all such contracts, combinations, or

arrangements, even when reasonable and proper, were made illegal and

criminal. The only escape, therefore, was to bring all such persons

and corporations in the same trade together in one corporation, and

this is precisely what we now term a trust. Before 1890, in other

words, a trust was really an agreement, a combination of individuals

or corporations usually resting upon an actual deed of trust under

which the constituent parties surrendered their property or the

control of their property to a central board of trustees; since 1890

this kind of trust has practically disappeared and been replaced by

the single large corporation, either a holding company which holds

the stock of all constituent companies, or under still more modern

practice, because more likely to stand the scrutiny of the courts,

a huge corporation, with a charter given by the liberal laws of New

Jersey, West Virginia, or other State, which actually holds, directly,

all the properties and business of the constituent corporations

or persons. The modern question, therefore, has become really the

question of the large corporation, its regulation and its control;

further complicated, of course, by the fact that hitherto there has

been no power to control such large corporations except the very State

which creates them, which is usually quite indifferent to their acts

so long as they pay the corporation tax. It is therefore a question

not only of the large corporation, but of the powers of the States

over each other's corporations and of the Federal government over all.

Until the Northern Securities case, it was probably supposed that a

corporation, being an individual, could not be guilty of a criminal

conspiracy, and consequently could not in itself offend against the

anti-trust acts. That case, and more recent decisions still, show a

disposition of the courts to look behind the screen of the fictitious

entity of the corporation to the merits and demerits of the persons

making it up, and the objects with which they came together and the

methods they continued to use.

The Federal statute was indeed necessary to this extent, that,

although the common law was unquestioned, as there is no Federal

common law in the absence of statute, and as interstate commerce

cannot be controlled by State law, either common or statute, it was

necessary for Congress to declare that the principles of the common

law should apply to interstate commerce. It was also doubtless wise to

remind the public of the existence of this body of law and to affix

definite prohibitions and penalties. To this extent the anti-trust

legislation, both State and Federal, is fully justified. Nevertheless,

it is noteworthy that the older States, where both the legislatures

and the bar had presumably a higher degree of legal education, rarely

found it necessary to enact statutes against trusts. There has

never been, for instance, any anti-trust law in Massachusetts or in

Pennsylvania, or for a long time in New York, for the first statute

of that State against trusts was made intentionally futile by being

applied only to a trust which secured a complete--_i.e._, one hundred

per cent.--monopoly of its trade.

The economic consideration of all such legislation we do not propose

to consider; whether it was wise to forbid all forestalling, for

instance--which at the common law meant buying at a definite distance

as well as at a distant time; that is to say, a person who bought

all the leather in Cordova was guilty of forestalling as well as the

person who bought all the sherry that was to be made in Spain in the

ensuing year--what we call the buying of futures. This is certainly

very unpopular, and we find most of our States legislating against it;

yet, of course, many economists argue that it is only by allowing

such contracts that the price of any article can be made stable and a

supply stored in years of plenty against years of famine. The first

historical example of forestalling and engrossing is to be found in

the book of Genesis. Joseph was not, I believe, a regrator, but he

was one of the most successful forestallers and engrossers that ever

existed, and made a most successful corner in corn in Egypt; and his

case is cited as a precedent in the Great Case of Monopolies above

mentioned. James C. Carter tells us[1] that all these laws are

contrary to modern principles and were repealed a century ago. I

cannot find that such is the case. On the contrary, they were made

perpetual in the thirteenth year of Elizabeth, and we find perfectly

_modern_ trust legislation as early as Edward I, in 1285. In 1892 I

find legislation already in nineteen States and Territories; North

Dakota, indeed, having already a constitutional provision. Three

States at least, Kansas, Michigan, and Nebraska, seem to have been

before the Federal Act, their laws dating from 1889; while several

States have statutes in 1890, the year in which the Sherman Act was

enacted. There has hardly a year passed since without a good many

statutes aimed against trusts, though they have shown a tendency

to decrease of late years, and it is especially noticeable that

anti-trust legislation is apt to cease entirely in the years following

a panic, as if legislatures had learned the lesson that too much

interference is destructive of business prosperity; I find that by

1908 just about half the States had embodied a prohibition of trusts

in their organic law.[2]

[Footnote 1: "Law, Its Origin, History, and Function," N.Y., 1907.]

[Footnote 2: These provisions will be found digested in the writer's

"Federal and State Constitutions," pp. 339-341.]

One of the principal earlier objects of the trust was to evade the

corporation law. To-day they specially aim at becoming a legal

corporation. In like manner their earliest object and desire was to

escape all Federal supervision and interference by legislation or

otherwise; to-day they are desirous of such regulation under Federal

charters, for the purpose of escaping the more multifarious and

radical law-making of the forty-six different States. Before the

Industrial Commission in 1897-1900, all the heads of the great

"trusts"--Rockefeller, Archbold, Havemeyer--testified in favor of

Federal incorporation; almost all other witnesses, except one or two

New York or New Jersey corporation lawyers, against it.

In the article in the _Harvard Law Review_, above referred to, the

writer suggested that the evil might be cured by compelling trusts to

organize as corporations, thereby bringing them under the regulation

and control that the State exercises over corporations. That has come

to pass, but the remedy has not seemed adequate. In the early Sugar

Trust case, the New York Supreme Court decided that combinations to

sell through a common agent, thereby, of course, fixing the price,

with other common devices for controlling the market and preventing

competition, were illegal at the common law; and also that a

corporation which, in order to bring about such a combination, put

all its stock in the hands of trustees or a holding company, thereby

forfeited its charter, the only result of which decision was to drive

the Sugar Trust from its New York charters to a legal organization in

the State of New Jersey. It is noteworthy that one or two of the

most obvious remedies for this condition of things have never been

employed, possibly because they would be too effective. That is to

say, there might be legislation that a corporation should not act out

of the State chartering it--that a New Jersey corporation, holding no

property and doing no business in New Jersey, should not be used to

carry on business in New York. We also might have legislated, going

back to the strict principles of the common law, to forbid any

corporation, any artificial body, from holding shares in another

corporation. It is doubtful, to-day, whether this can be done under

the common law, and the authors of the Massachusetts corporation law

refused expressly to provide for it; on the other hand the proposed

Federal Incorporation Act expressly validates it. We do, however,

begin to see some legislation on this line of approach, notably in the

case of competing companies, several Western States at least having

statutes forbidding a corporation from holding stock in such

companies; and it was one of the recommendations of President Taft's

recent message, at least as to railroad companies not holding half of

such stock.

It will well repay us now to make a careful study of all these

anti-trust statutes, for the purpose of seeing whether they have

introduced any new principles into the law, and also in what manner

they express the old. Up to two or three years ago one might have said

that not a single case had been decided in the courts of any State or

of the Federal government against trusts or combinations, which might

not have been decided the same way under common-law principles had

there been no anti-trust legislation whatever. As is well known, the

great exception to this statement is the interpretation of the Federal

Act by the Supreme Court of the United States, declaring that any

contract in restraint of trade was unlawful under it, although it

would have been reasonable and proper at the common law. Later

indications are, as President Taft has said, that the courts will see

a way to modify this somewhat extravagant position by reintroducing

the common-law test, viz.: Whether the contract is done with the

_purport_ (or effect) of making a monopoly for destroying competition,

or whether such result is trivial and incidental to a reasonable and

lawful business arrangement. The earliest statutes, those of Michigan,

Kansas, and Nebraska, in 1889, denounce the following principles:

"All contracts, agreements, understandings, and combinations ... the

_purpose_ or object of which shall be to limit or control the output,

to enhance or regulate the price, to prevent or restrict free

competition in production or sale." This, the Michigan statute, merely

states the common law, but goes on to declare such contract, etc., a

criminal conspiracy, and any act done as part thereof, a misdemeanor,

and, in the case of a corporation, subjects it to forfeiture of its

charter. The law makes the exception, nearly universal in the Southern

and Western States, that this anti-trust legislation shall not apply

to agricultural products, live stock in the hands of the producer, nor

to the services of laborers or artisans who are formed into societies

or trades-unions--an exception which, of course, makes it

class legislation, and has caused the whole law to be declared

unconstitutional, so far as I know, by the highest court of every

State where it has been drawn in question, and under the Fourteenth

Amendment also by the Supreme Court of the United States; and in this

spirit President Taft has just acted in preventing a joint resolution

of Congress appropriating money to prosecute trusts from exempting

labor unions. The Kansas statute is substantially like the Michigan,

but more vague in wording (Kansas, 1889, 257). It denounces

arrangements, contracts, agreements, etc., which (also) _tend_ to

advance, reduce, or control the price or the cost to the producer or

consumer of any productions or articles, or the rate of insurance or

interest on money or any other service. The Maine law (Maine, 1889,

266, 1) is aimed only against the old-fashioned trust; that is to say,

the entering of firms or incorporated companies into an agreement or

combination, or the assignment of powers or stock to a central board,

and such trust certificates or other evidences of interest are

declared void. The Alabama statute of 1891 is to similar effect.

The Tennessee statute of 1891 is about the same as the Kansas statute

of 1889, above referred to, except that it adds the words "which tend

in any way to create a monopoly," and the Kansas statute makes trust

certificates unlawful, that being still the usual way of organizing a

trust at that time. The Nebraska law (Nebraska, 1889, 69) is much the

same, except that it also denounces combinations, etc., whereby

a common price shall be fixed and whereby any one or more of the

combining parties shall cease the sale or manufacture of such

products, or where the products or profits of such manufacture or

sale shall be made a common fund to be divided among parties to

the combination, and goes on to add that "pooling between persons,

partnerships, corporations ... engaged in the same or like business

for any purpose whatever, and the formation of combinations or common

understanding" between them is declared unlawful, and the persons are

made liable for the full damage suffered by persons injured thereby,

and each day of the continuance of any such pool or trust shall

constitute a separate offence; this, the doctrine of a continuing

conspiracy, being for the first time before the Supreme Court of the

United States at the time of writing. North Carolina the same year

(N.C., 1889, 374) defines a trust to be an arrangement, understanding,

etc. for the purpose of increasing or reducing the price beyond

what would be fixed by natural demand, and makes it a felony with

punishment up to ten years' imprisonment. Here for the first time

appears a statute against unfair competition. "Any merchant,

manufacturer ... who shall sell any ... goods ... for less than actual

cost for the purpose of breaking down competitors shall be guilty of

a misdemeanor." Tennessee the same year (Tennessee, 1899, 250) in its

elaborate statute, which is a fairly good definition of the law, also

denounces throwing goods on the market for the purpose of creating

an undue depression, whatever that may mean. In the next year, 1890,

there were many more State statutes, but we should first notice a

simple law of New York forbidding any stock corporation from combining

with any other corporation for the prevention of competition (N.Y.,

1890, 564, 7). The usual statute in other States of that year is

addressed against combinations to regulate or fix prices or limit

the output, but Texas (4847a, 1) and Mississippi (1890, 36, 1) have

elaborate laws, which, however, add hardly any new principles to the

common law. They define a trust to be a combination of capital, skill,

or acts, by two or more persons or corporations, (1) to create or

carry out restrictions in trade; (2) to limit or reduce the output, or

increase or reduce the price; (3) to prevent competition; (4) to fix

at any standard or figure whereby its price to the public shall be in

any manner controlled, any article intended for sale, etc.; (5) to

make or carry out any contract or agreement by which they are bound

not to sell or trade, etc., below a common standard figure, or to

keep the price at a fixed or graduated figure, or to preclude free or

unrestricted competition among themselves or others, or to pool or

unite any interest. To much the same effect is the statute of South

Dakota (1890, 154, 1), but it also denounces any combination which

tends to advance the price to the consumer of any article beyond the

reasonable cost of production or manufacture. The Louisiana (1890, 36)

and New Mexico laws (1891, 10) are aimed particularly at attempts

to monopolize, while the Oklahoma statute (6620) was aimed only at

corporations, and the broad wording of the Federal act passed this

year should be noted: "Every contract, combination, in the form of

trust or otherwise, or conspiracy in restraint of trade or commerce

among the several States or with foreign nations, is hereby declared

to be illegal" (U.S., 1890, 647, 1); and in the second section: "Every

person who shall monopolize, or attempt to monopolize, or combine or

conspire with any other person or persons to monopolize, any part

of the trade or commerce among the several States, or with foreign

nations, shall be deemed guilty under this act." And in the third

section: "Every person who shall make any such contract, or engage

in any such combination or conspiracy, shall be deemed guilty of a

misdemeanor." The rest of the legislation provides penalties, manner,

and machinery for the enforcement of these laws by prosecuting

attorneys, etc., with a usual allowance to informants; and it may be

here noted that one great trouble has resulted from this machinery,

for it provided injunction remedies and dissolution, which may well

be too severe a penalty, and, furthermore, dispenses with a jury and

throws unnecessarily upon the court--even now, as in the Standard Oil

case, a distant high court of appeal--the burden of determining a

complicated and voluminous mass of fact. Our ancestors never would

have suffered such matters to be adjudged by the Chancellor!

South Dakota has an extraordinary statute making the agents for

agricultural implements, etc., guilty of a criminal offence when their

principals refuse to sell at wholesale prices to dealers in the State

(S.D., 1890, 154, 2). But beside these remedies, there is a frequent

statute dating from the earliest Kansas act of 1889, that debts for

goods sold by a so-called trust, contracts made in violation of

the law, will not be enforced in favor of the offending person or

corporation. That is to say, the person buying the goods of a trust

may simply refuse to pay for them; and the constitutionality of this

legislation has recently been sustained by a divided opinion in the

Supreme Court of the United States.[1] The possession or ownership

of trust certificates is in some States made criminal. Corporations

offending against the statute are to have their charters taken away,

or, if chartered in other States, to be expelled from the State. All

contracts or agreements in violation of any of these statutes are, of

course, made void.

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

There are special statutes in Kansas, Nebraska, and North Dakota

against trusts in certain lines of business, as, for instance, the

buying or selling of live-stock or grain of any kind.

In the twenty years that have elapsed since this early legislation

there has been considerable clarifying in the legislative mind; modern

statutes, and especially constitutional provisions, stating the

offence much more concisely, with a simple reliance upon the common

law, leaving it, in other words, for the courts to define. The

Southern State constitutions generally enact that the legislatures

shall enact laws to prevent trusts. New Hampshire says: "Full and fair

competition in the trades and industries is an inherent and essential

right of the people, and should be protected against all monopolies

and conspiracies which tend to hinder or destroy." Oklahoma provides

that "the legislature shall define what is an unlawful combination,

monopoly, trust, act, or agreement, in restraint of trade, and enact

laws to punish persons engaged in any unlawful combination, monopoly,

trust, act, or agreement, in restraint of trade, or composing any

such monopoly, trust, or combination." In Wyoming, monopolies and

perpetuities, in South Dakota and Washington, monopolies and trusts,

are "contrary to the genius of a free State and should not be

allowed." The constitutional provisions of North Dakota, Minnesota,

and Utah are again a mere repetition of the common law. The New

Hampshire statute grants "all just power ... to the general court to

enact laws to prevent operations within the State of ... trusts ...,"

or the operations of persons and corporations who "endeavor to raise

the price of any article of commerce or to destroy free and fair

competition ... through conspiracy, monopoly or any other unfair means

to control and regulate the acts of all such persons." This last

clause, though a clear statement of the common law, would, of course,

render hopeless Mr. Gompers's crusade in favor of the boycott, the

object of a boycott invariably being to control the acts of somebody

else. Alabama directs the legislature to provide for the prohibition

of trusts, etc., so as to prevent them from making scarce articles

of necessity, trade, or commerce, increasing unreasonably the cost

thereof, or preventing reasonable competition; and to much the same

effect in Louisiana.

We may well close this brief survey by a study of the volume of such

legislation. We have, for instance, in 1890, seven anti-trust laws;

in 1891, six; in 1892, one; in 1893, eight. In 1894, doubtless as a

consequence of the panic, anti-trust legislation absolutely ceased,

and in 1895 there is only one law, passed by the State of Texas, its

old law having been declared unconstitutional. In 1896, under the

influence of President Cleveland's administration, we find four such

statutes, and in 1897, with reviving prosperity, thirteen. Still,

we find no new principle, except, indeed, the somewhat startling

statement in Kansas that it is unlawful to handle goods made or

controlled by monopolies. The Illinois statute of that year permitted

combinations as to articles whose chief cost is wages when the object

or effect is to maintain or increase wages, a qualification which led

to the whole law's being declared unconstitutional. In Tennessee there

is a special statute penalizing combinations to raise the price of

coal, a statute with good old precedents in early English legislation.

By this time most of the States had adopted anti-trust statutes. In

1898 we find only one law, that of Ohio, giving the same five-fold

definition of the trust that we found above in Alabama, but it

adds the somewhat startling statement that "the character of the

combination may be established by proof of its general reputation as

such," and again it is made criminal to own trust certificates, with

double damages in all cases to persons injured. A constitutional

lawyer might well doubt whether a conviction under the last half of

this statute would be sustained. In 1899 eleven of the remaining

States adopted anti-trust laws. In 1900 there is a new statute in

Mississippi prohibiting, among other things, the pooling of bids for

public work, this again being a mere statement of the common law,

although a law which has possibly grown uncommon by being generally

forgotten.

In 1901 there are four statutes, that of Minnesota also including a

prohibition of boycotts, and the first piece of legislation upon the

subject in the old Commonwealth of Massachusetts--an ordinary statute

against exclusive dealing; that is to say, the making it a condition

of the sale of goods that the purchaser shall not sell or deal in the

goods of any other person. In 1902 both the Georgia and Texas laws

were declared unconstitutional because they exempted agricultural

pursuits. South Carolina has a statute actually prohibiting any sale

at less than the cost of manufacture, doubtless also unconstitutional.

In Ohio corporations are forbidden to own stock in competing

companies. The Illinois anti-trust act was declared unconstitutional

in 1903, while Texas amended its statute to meet the constitutional

objection, and followed South Carolina in prohibiting the sale of

goods at less than cost.

In 1904 there is no anti-trust legislation. In 1905 the South Carolina

law is held unconstitutional, and in 1906, that of Montana. In 1907,

however, under the Roosevelt administration, there was a decided

revival of interest, seventeen States adopting new statutes or

amendments, but still I can find no new principles. Kansas copies the

Massachusetts statute, and Massachusetts extends it to the sale

or lease of machinery or tools. Minnesota and North Carolina have

interesting statutes prohibiting discrimination between localities

in the sale of any commodity. Most of the States by this time have

statutes compelling persons to give testimony in litigation about

trusts and exempting them from prosecution therefor. North Dakota has

also a statute prohibiting unfair competition and discrimination as

against localities, while Tennessee makes it a misdemeanor to sell any

article below cost or to give it away for the purpose of destroying

competition. In 1908 Louisiana and Mississippi adopted the principle

forbidding discrimination against localities, and the new State of

Oklahoma comes into line with the usual drastic anti-trust statute,

and we may, perhaps, conclude this review of a somewhat unintelligent

legislative history by perhaps the most amusing example of all.

The Commonwealth of Massachusetts, which had so far refrained from

unnecessary legislation on this great question, thought it necessary

to adopt a statute making void contracts to create monopolies in

restraint of trade, which well shows the necessity of a legislative

reference bureau or professional draftsman, as discussed in a later

chapter. That is to say, it says literally: "Every contract, etc.,

in violation of the common law ... is hereby declared to be against

public policy, illegal, and void." As the law of Massachusetts is the

common law, and always has been the common law, this amounts to saying

that a contract which has always been void in Massachusetts is now

declared to be void. But, moreover, on a familiar principle of

hermeneutics, it might be argued to repeal the whole _criminal_ common

law of restraint of trade--doubtless the last thing they intended to

do!

As this is a book upon actual legislation, it would be out of place

to attempt a serious discussion of the problem that lies before us.

Suffice it to say that there are three possible methods of approaching

the question, as it is complicated with the interstate commerce power

of the Federal government. That is to say, either to surrender this

power to the States, at least so far as it may be necessary to enable

them to regulate or prohibit the actions of combinations in the

States, even when engaged In interstate commerce; or, second,

by perfecting the present dual system and establishing Federal

supervision over State corporations engaged in interstate commerce by

way of license and control; or, third, the most radical remedy of all,

apparently adopted by the present administration, of surrendering

entirely the State power over corporations to the Federal government,

at least as to such corporations as might choose to take advantage of

such legislation. This would result in a centralization of nearly all

business under the control of the Federal government, as well as the

removal of the great bulk of litigation from State to Federal courts.

If not carefully guarded it would deprive the States not only of their

power to tax corporations, but of their ordinary police powers over

their administration. Such a radical step was unanimously opposed by

the United States Industrial Commission in 1900, and by nearly all

their expert witnesses, and was then, at least, only favored by the

heads of the great trusts, Mr. Archbold, Mr. Rockefeller, and Mr.

Havemeyer.[1] But whichever way we look at it, there is no question

that the problem of the modern trust is that of the corporation, both

as to what laws shall regulate such a corporation, and whether they

shall be acts of Congress, or State statutes, or both.

[Footnote 1: For the full arguments on this most important question,

the reader may be referred to the article by Horace L. Wilgus in the

_Michigan Law Review_, February and April, 1904, and to the writer's

debate with Judge Grosscup, printed in the _Inter-Nation Magazine_ for

March, 1907.]

X

CORPORATIONS

The earliest trading or business corporation in the modern sense now

extant seems to have been chartered in England about the year 1600,

though Holt in the monopoly case dates the Muscovy Company from 1401,

and, despite the Roman civic corporations, has really no actual

precedent in economic history; that is to say, as a phenomenon under

which the greater part of business affairs was in fact conducted.

Whether derived historically from the guild or the monastic

corporation of the Middle Ages is a question merely of academic

importance, for the business corporation rapidly became a very

different thing from either; and, indeed, its most important

characteristic, that of relieving the members of responsibility for

the debts of the corporation, is an invention of very modern times

indeed, the first statute of that sort having been invented in the

State of Connecticut, enacted in May, 1818. These early English

corporations, such as the Turkey Company, the Fellowship of Merchant

Adventurers, chartered in 1643, or the Hudson Bay Company, usually

gave a monopoly of trade with the respective countries indicated, such

monopolies in foreign countries not being considered obnoxious.[1] The

wording of such early charters follows substantially the language of

a town or guild charter, and was doubtless suggested by them.

Unfortunately, it has never been the custom to print corporation

charters in the Statutes of the Realm, and it is practically

impossible to get a sight of the original documents if, indeed, in

many cases, they now exist. So far as I have been able to study them,

they always give the right to transfer shares freely, with the other

great right, perpetual succession; but no notion appears, for at least

two centuries, that the shareholders are relieved from any of the

legal obligations of the corporation.

[Footnote 1: The charter of the East India Company was attacked on

this ground and successfully defended by Holt on the ground that the

common law did not mind monopolies in trade with heathens!]

In order to understand this whole problem it is necessary to bear

in mind certain cardinal principles of our constitutional law. All

corporations, with the exception of national banks, two or three

railroad companies, and the Panama Canal, have been and are creatures

of the State, not, as yet, of the Federal government, which can only

create them for purposes specifically delegated to it and not merely

for private profit. The power to create corporations is essential to

sovereignty, and the sovereign may decline to recognize all but its

own corporations. Under the doctrine of comity, such corporations can

act in any other State with all the powers given them in the State

where they are created, except only they be expressly limited by a

statute of such other State. They may, however, be entirely excluded;

only not to the destruction of property rights once acquired. On the

other hand, corporations conducting interstate commerce may not be

excluded or such business interfered with by State legislation.

The writer was for four years counsel to the Industrial Commission at

Washington and one of the commissioners appointed to draw the present

business corporation law of Massachusetts. In both such capacities he

had the advantage of hearing the expert opinions of many witnesses.

There were two, and only two, broad theories of legislation about

private business corporations: One view, the older view, that they

should be carefully limited and regulated by the State at every point,

and that their solvency, or at least the intrinsic value of their

capital stock, should, as far as possible, be guaranteed by

legislation, to the public as well as to their creditors and

stockholders; and that for any fraud, or even defect of organization,

the stockholders, or at least the directors, should be liable. On the

other hand, the modern view, that it was no business of the public to

protect investors, or even creditors, and that the corporations should

be given as free a hand as possible, with no limitation as to their

size, the nature of business they are to transact, or the payment

in of their capital stock. This is the corporation problem. The

State-and-Federal problem may be called that other difficulty which

arises from the clashing jurisdictions of the States among themselves

and with the Federal government, their laws and their courts, as to

the corporations now created, particularly railroads and corporations

"engaged in interstate commerce" which may include all the "trusts,"

if the mere fact that they do business in many States makes them so.

Suppose you had a world where one man in every ten was gifted with

immortality and with the right not to be answerable for anything that

he did. You can easily see that the structure of society, at least

as to property, labor, and business affairs, would be very decidedly

altered. Yet this is what really happened with the invention of the

modern corporation; only we have got completely used to it. It would

be possible to have got on without any business corporations at all.

Striking as this may seem at first thought, one must remember that the

world got on very well without corporations for thousands of years,

and that it was by a mere historical accident and a modern invention

that the two great attributes of the corporation, immortality and

personal irresponsibility, were brought about. All business might

still be conducted, as it was in the Middle Ages, by individual men

or by partnerships, and still we should have had very great single

fortunes like that of Jacques Coeur in France, an early prototype of

Mr. J. Pierpont Morgan, or even vast hereditary fortunes kept in

one family, like the Fuggers of Augsburg, and based on a natural

monopoly--mineral salt--as is Mr. Rockefeller's upon mineral oil. Yet

as lives are short and abilities not usually hereditary, the great

corporation question of to-day would hardly have arisen. Nevertheless,

it is presumed that no one, not even the greatest radical, would now

propose to dispense with the invention of the business corporation

with limited liability.

A careful discussion of the two theories above referred to will be

found in pages 1 to 28 of the report of the Committee on Corporation

Laws to the legislature of Massachusetts, of January, 1903. The bill

for a business corporation law recommended by this committee was

enacted into law without substantial change, and has apparently been

satisfactory in the six years it has been in force, as the amendments

to it, except only as to the system of taxation of corporations, have

been few and trifling. I venture to quote from the report referred to

a few of the remarks of the commissioners upon the general question,

as it is now out of print:

The investigations of the committee, the results of which have

been briefly summarized, have led to the following conclusions:

_First_.--That the more important provisions of the present law

regulating the organization and conduct of business corporations

and the liability of its stockholders and officers are unsuited to

modern business conditions.

_Second_.--That the restrictions governing capitalization and the

payment of stock as shown in the piecemeal legislation enlarging

the classes of corporations which may organize under general laws

are arbitrary or impossible of execution.

_Third_.--That it is a general practice to organize under the laws

of other States corporations to carry on enterprises which are

owned and managed by citizens of Massachusetts, particularly where

a part or all the property is situated outside the State.

THEORY OF LEGISLATION RECOMMENDED

The history of corporations, as well as the logic of the case, shows

that there are possible two general theories as to the State's duty in

creating corporations: first, the old theory that, being creatures

of the State, they should be guaranteed by it to the public in all

particulars of responsibility and management; and the modern quite

opposite theory that, in the absence of fraud in its organization or

government, an ordinary business corporation should be allowed to do

anything that an individual may do. Under the old theory the capital

stock of a corporation was, in the law, considered to be a guarantee

fund for the payment of creditors, as well as affording a method of

conveniently measuring the interests of the individual owners of a

corporate enterprise. There resulted from this principle not only the

fundamental proposition that the capital stock, being in the nature of

a guarantee fund, should be paid up at its full par in actual cash,

but all the other provisions to protect creditors or other persons

having dealings with the corporation; such as, that the debts of a

corporation should not exceed its capital stock--designed primarily in

the interest of creditors and secondarily in that of the stockholders,

who were looked after as carefully as if they were the wards of the

State when dealing in corporation matters. Under the modern theory,

the State owes no duty, to persons who may choose to deal with

corporations, to look after the solvency of such artificial bodies;

nor to stockholders, to protect them from the consequences of going

into such concerns, the idea being that, in the case of ordinary

business corporations, the State's duty ends in providing clearly that

creditors and stockholders shall at all times be precisely informed of

all the facts attending both the organization and the management

of such corporations, and particularly that there should be full

publicity given to all details of the original organization thereof.

The committee has had little hesitation in determining which of these

theories it should adopt. The limit of capitalization both in amount

and in valuation to the net tangible assets of the corporation has

unquestionably had much to do with the arrest of corporate growth in

this commonwealth. Good-will, trade-marks, patents may unquestionably

be valuable assets, which, under our present method, may not be

capitalized. Admirable as this theory may have been, of payment of

capital stock in full in cash, the condition is so easily avoided

in practice that the result is that our existing law promises a

protection which, in reality, it does not afford, and is merely an

embarrassment to those who feel obliged to comply not only with the

letter but with the spirit of the law. It is no longer true that

persons dealing with corporations rely upon the State laws to

guarantee their solvency or their proper management. The attempts of

the commonwealth to do so by laws still remaining on its statute books

result, as we apprehend, only in a false sense of security; and we

believe that the act proposed, while giving up the attempt to do the

impossible thing, will really, by its greater attention to the details

of organization required to be made public by all corporations, result

in an advantage to stockholders and creditors more substantial than

the present partial attempt to enforce a principle impossible of

complete realization and which is, under existing laws, easily evaded.

It is impossible to reconcile or combine the two systems. Either the

old theory must be maintained, under which the State attempts though

vainly to guarantee both to stockholders and creditors that there is

one hundred dollars of actual value behind each one hundred dollars

of par value of capital stock, or some other system must be adopted

which, while not being chargeable with the vagueness and laxity of

the newer legislation of other States, will permit a share of capital

stock, although nominally one hundred dollars in value, to represent,

as the word implies, only a certain share or proportion, which may

be more or less than par, of whatever net assets the corporation may

prove to have. Under a system of this sort the State machinery will

only provide that the stockholders and, perhaps, the creditors, may at

all times have access to the corporation records or returns in such

manner as clearly to show, both at organization and thereafter, all of

the property or assets of which such share of capital stock actually

represents its proportion of ownership.

The question of monopoly the committee does not conceive to have

been left to its consideration. The limitations now existing on the

capitalization of business corporations are, no doubt, attributable

to the sentiment which has always existed against monopoly, but it

is clearly the policy of the commonwealth, as shown in its

recent legislation, to do away with the attempt to prevent large

corporations, simply because they are large. Moreover, it is

apprehended that the question of monopoly, or rather of the abuse of

the power of large corporations, does not result necessarily from the

size of corporations engaged in business throughout the United States.

In the opinion of the committee, some confusion has been created,

in the discussion of the form of so-called trust legislation, by a

failure to appreciate that its real object is not to protect the

investor, who can or should learn to take care of himself, or the

creditor who has already learned to do so. The real purpose of such

legislation is the protection of the consumer. In other words, there

is no reason for an arbitrary limitation of capitalization unless it

can be used as a means of creating a monopoly which will influence the

price of commodities. In the opinion of the committee, the question

of capitalization is not a contributing factor in the fight for a

monopoly. The United States Steel Company would have no greater and

no less a monopoly of the steel business if it were organized with

one-half of its present capitalization. The Standard Oil Company has

a very conservative capitalization, and yet it is the most complete

monopoly of any industrial corporation in this country.

It has not been the intention of the committee to draft a law which

will be favorable to the organization of large corporations popularly

known as "trusts." Inasmuch as the recommended law requires taxes to

be paid upon the full value of the corporate franchise, which is, at

least to some extent, measured by the amount of capitalization, there

will always be this very potent reason for keeping capitalization

at the lowest possible point. Indeed, it is apprehended that the

organization of a corporation large enough to control a monopoly of

any staple article is practically prohibited by the provisions of the

recommended law as to taxation, which will be referred to in greater

detail in part II of this report. At all events, it is no better for

the State to leave its citizens at the mercy of the large corporations

created by other less careful sovereignties, than to permit the

organization of corporations adequate to the demands of modern

business under its own laws, subject to its own more careful

regulation and control. Under our State and Federal system it is

practically impossible for any one State, by its own laws, to control

foreign corporations, but so far as possible at present the committee

has sought to subject them to the same safeguards of reasonable

publicity and accurate returns, both as to organization and annual

condition, as the State requires of its own corporations. The simple

requirement of an annual excise tax, based on the capitalization of

such foreign corporations, will serve to bring them under the control

of this State and the way will be open for their further regulation if

desirable. This annual tax has been levied upon the same principle

as the corresponding tax paid by home corporations. The State should

impose no greater burden on foreign corporations than on its own, but

should, so far as possible, subject them to its own laws.

The recommendations of the committee have, therefore, been controlled

by three principles, which may be summarized as follows:

_First_.--The relation of the State to the corporation.

The committee would repeat its opinion that, so far as purely business

corporations are concerned, and excluding insurance, financial and

public service corporations, the State cannot assume to act, directly

or indirectly, as guarantor or sponsor for any organization under

corporate form. It can and should require for itself and for the use

of all persons interested in the corporation, the fullest and most

detailed information, consistent with practical business methods,

as to the details of its organization, the powers and restrictions

imposed upon its stockholders and as to the property against which

stock is to be or has been issued. Provision is, therefore, made

in the law drafted by the committee for the organization of such

corporations for any lawful purpose other than for such purposes as

the manufacture and distilling of intoxicating liquors or the buying

and selling of real estate which it has been the consistent policy of

the commonwealth to except from incorporation under the general law.

Any desired capitalization above a minimum of one thousand dollars may

be fixed. Capital stock may be paid for in cash or by property. If it

is paid for in cash, it may be paid for in full or by instalments, and

a machinery has been created for protecting the corporation against

the failure of the subscribers to stock to pay the balance of their

subscriptions. If stock is paid for by property, the incorporators and

not the State are to pass upon its value. Before any stock, however,

can be issued for property, a description of the property sufficient

for purposes of identification, to the satisfaction of the

Commissioner of Corporations, must be filed in the office of the

Secretary of the Commonwealth. This document becomes a public record

and may be consulted by any one interested in the corporation. If the

officers of a corporation make a return which is false and which is

known to be false, they are liable to any one injured for actual

damages. If a full and honest description is made of property against

which stock is issued, a stockholder cannot complain because of his

failure to inform himself by personal examination or investigation of

the value of the property in which he is, or contemplates becoming, an

investor.

_Second_.--Duties of the State in regulating the relations between the

corporation and its officers and stockholders.

The second principle upon which the committee has acted in its

specific recommendations is this: that the State should permit the

utmost freedom of self-regulation if it provides quick and effective

machinery for the punishment of fraud, and gives to each stockholder

the right to obtain the fullest information in regard to his own

rights and privileges before and after he becomes the owner of stock.

Upon this theory the committee has recommended a law which permits the

corporation to determine the classes of its stock and the rights and

liabilities of its stockholders. The recommended law provides for

increasing or decreasing the amount of capital stock upon the

affirmative vote of a majority of its stockholders. For the protection

of a minority interest of stockholders it requires a two-thirds vote

to change the classes of capital stock or their voting power, to

change the corporate name or the nature of the business of the

corporation, or to authorize a sale, lease, or exchange of its

property or assets.

Directors are made liable, jointly and severally, for actual damages

caused by their fraudulent acts, but no director is made so liable

unless he concurs in the act and has knowledge of the fraud. The

liability of stockholders is limited to the payment of stock for

which they have subscribed, to debts to employees, and in cases of

a reduction of capital when they concur in the vote authorizing

a distribution of assets which results in the insolvency of the

corporation. An attempt has been made to give to the stockholder an

opportunity of securing for himself the fullest information on all

points touching his interest.

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

The committee has been guided upon this subject by the theory that the

treatment of foreign corporations by the Commonwealth should, so far

as practicable, be the same as of its own, particularly so far as

concerns the liabilities of officers and stockholders, the statements

filed with the State authorities for the information of stockholders

or others as to their capitalization and the methods adopted of paying

in their stock, and the annual reports of condition required for

taxation purposes or otherwise. On the same principle a nominal

franchise tax is annually imposed corresponding to the tax imposed by

the State on its own corporations and made approximately proportional

in amount.

A few broad general principles are almost universal in American

legislation on the subject. Ordinary business corporations are now

almost universally created under general law, and indeed by the

constitutions of many States are forbidden to be created by special

charter.[1] There is generally, however, no limitation by constitution

on the size or capitalization, though the duration of corporations is

frequently limited to twenty, thirty, or fifty years; and there is

generally no limitation on the nature of the business that may be

done, except, in a large number of States, banking and insurance, and

except that there is in many States, as, notably, Massachusetts, a

prejudice against land companies, so that they may not be created

without a special charter.

[Footnote 1: See Stimson's "Federal and State Constitutions," pp. 295,

315, 316.]

The liability of stockholders is commonly limited to the shares of

stock actually held or such portion of them as may not have been paid

up by the stockholder in cash or property value. Massachusetts and the

more conservative States attempt to provide that the stock shall be

actually paid up in money or in property of the real value of money,

at par. New Jersey, New York, Maine, West Virginia, and the laxer

States, practically allow their directors to issue stock for anything

they choose--labor, contracts, property, or a patent right--and their

judgment on the value of such property is held to be final in the

absence of fraud. Corporations are usually taxed, like individuals,

on their tangible, visible property, real and personal, and in many

States there is also a franchise tax on their shares.[1] There is a

frequent limitation that the corporate indebtedness shall not exceed

the amount of the capital stock.[2] No States, except Vermont and

New Hampshire, seem now to have any limitation on the amount of the

capital stock, or if there be a limitation, as of one million dollars

at the time of formation, the corporation may subsequently increase

its stock to any amount.[3] Michigan, however, had a limitation of

five million dollars as to manufacturing or mercantile corporations,

and two million five hundred thousand dollars as to mines; while

Alabama and Missouri had a general limit of ten million dollars. The

general tendency is clearly to have no limitation whatever. Commonly

only a nominal proportion of the capital stock is to be paid in before

the company begins business, but the stockholders are always liable

to creditors for the amount unpaid. As already remarked, stock may

usually be paid up in property, labor, or services, or, indeed,

any legal consideration; and though most States provide that such

property, etc., shall be taken at its actual cash value, such laws,

except in Massachusetts, are not believed to be effectual.

[Footnote 1: A valuable report on this subject, brought down to 1903,

prepared by F.J. MacLeod, of Massachusetts, will be found in the

"Report of the Committee on Corporation Laws," above referred to, at

pp. 207-295.]

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

[Footnote 3: MacLeod, p. 169.]

That stockholders are individually liable to the extent of the unpaid

balance on their stock is merely a statutory statement of the ordinary

rule in equity. It is, therefore, law without statute. Apparently only

Indiana and Kansas now impose a double liability, the law in Ohio

having been recently altered by constitutional amendment. In several

States, however, they are liable for debts due for labor; in

California they are absolutely liable for such proportion of all

liabilities of the corporation as their stock bears to the total

capital stock, while in Nevada they are expressly exempted from any

liability whatever.

We can trace two other decided tendencies in recent legislation about

corporations. First, the increasing effort to bring about publicity of

all such matters as well as of the annual books and accounts, well

exemplified in the Massachusetts statute; second, the usual strong

prohibitions against consolidations to permit trusts or contracts to

further monopoly. There has also been a still more recent line of

legislation to prevent corporations from holding stock in other

corporations, or, at least, in competing companies; and to prevent alien

corporations from holding land.[1] Under the strict common law no

corporation could own or hold stock in another corporation or in itself.

This has been completely departed from in practice in this country, and

though not affirmatively recognized in most statutes--the Massachusetts

statute, for instance, carefully avoids providing that the corporation

may own stock in other companies--yet the practice has been universally

ratified by the courts, if not by the implications of legislation. This

new tendency to forbid it therefore is merely a return to common-law

doctrine. Thus,[2] in 1903 only five States--Connecticut, Delaware,

Maine, New Jersey, and Pennsylvania--provided generally that a

corporation might own stock in another corporation; two States--Indiana

and Minnesota--so provided as to manufacturing or mining companies. In

New York, Ohio, and other States, a corporation could only own stock in

another corporation engaged in a similar business, or a business useful

or subsidiary, or in a corporation (New York) with which it was legally

entitled to consolidate; but the tendency of recent legislation is

precisely opposite on this point, forbidding stockholding by all

corporations in similar or competing companies, or more specifically

forbidding stockholding in similar or competing companies, as well as

stockholding by railroads in railroad companies.

[Footnote 1: See below, chap. 16.]

[Footnote 2: MacLeod, p. 203.]

The practice of permitting the free holding of stock by corporations,

and especially by holding corporations, has been undoubtedly harmful

to the public, and to the public morals, and has been the main cause

making possible the speedy acquisition of immense private fortunes.

The stockholding trust or the device by which (as in the Rock Island

Railway system) a corporation is created for the purpose of holding

half the stock of the real corporation and then possibly a third

corporation, still to hold half the stock in the second, each of them

parting with the other half, obviously makes possible the control

of immense properties by persons having a comparatively small real

interest. It is a mere arithmetical proposition, for instance, in the

case mentioned, that whereas in one corporation it takes one-half of

the stock to control it, the first holding company will enable it

to be controlled by one-fourth and the second by one-eighth of the

original stock. Legislation should properly be much more drastic on

this point; but indeed our whole corporation legislation seems rather

to have been drawn by able lawyers with a view of protecting the

corporation or the person who profits by the abuse thereof, than with

a real desire to apply intelligent and practicable remedies to the

situation. Thus, until very recently, if now, there has been no

legislation along this great line of preventing the holding and

governing of corporations by such a system of Chinese boxes; nor has

there been up to date any legislation whatever along the other great

line of excluding objectionable corporations from doing business in

the State, which any State has, except as to interstate commerce

corporations, the unquestioned right to do. This right will, of

course, disappear entirely if the recommendation of the present

administration for a general Federal corporation law be adopted. The

invention of the corporate share enables a clever few to control the

many; a small minority to control the vast bulk of the real interest

of all property in the country; the problem has obviously proved too

great for popular intelligence, for so far little real legislation in

the people's interest has been effected. Like most ancient popular

prejudices, however, the blind instinct against corporations, common

among our Populists, has a strong historical basis; it comes directly

down from the prejudice against Mortmain, the dead hand, and from that

against the Roman law; for corporations were unknown to the common

law, and legislation against Mortmain dates from Magna Charta

itself.[1]

[Footnote 1: The legislation against trusts, as it existed up to 1900,

will be found at the back of vol. II of the "Reports of the United

States Industrial Commission."]

It would perhaps be possible for Congress to pass an act forbidding

any corporation to carry on its business outside of the State where it

is chartered, unless, of course, it got charters from other States;

certainly the States themselves might do so. This remedy also has

never been tried, and hardly, in Congress, at least, been suggested.

Yet it were a more constitutional and far safer thing to do than

to cut the Gordian knot by a Federal incorporation act, which will

forever securely intrench the trusts against State power. Even if New

Jersey or the Island of Guam goes on with its lax corporation laws,

permitting its creatures to do business all over the land without

proper regulation, this power could thus be instantly taken away from

it by such an act of Congress, even if the States themselves remained

unready or unwilling to act. Then no corporation could be "chartered

in New Jersey to break the laws of Minnesota," even if Minnesota

permitted it.

Trusts started as combinations and ended as corporations. They began

as State corporations, subject both to State and Federal control and

regulation; they may end as Federal corporations subject to no control

except by Congress. It is too early yet to predict the result, but

one assertion may be hazarded, that just as the original Sherman Act

against trusts compelled the formation of trusts, so this proposed

Federal legislation will compel the formation of Federal trusts, by

all but the most local of business corporations.

As to public-service corporations, both the legislation and the

principle on which it rests are, of course, quite different. There is

no serious difference of opinion that the stock should be paid up in

actual money at par nor that dividends at the expense of the public

should not be paid on watered stock. More and more the States are

putting this sort of legislation into effect. There is also the

general provision discussed in a former chapter that the rates or

charges of all such corporations may be regulated by law or ordinance;

and by far the most notable trend of legislation in this particular

has been that franchises of corporations should be limited in time and

should be sold at auction to the highest bidder. Thus, by a California

law of 1897, all municipal franchises must be sold for not less than

three per cent. of the gross receipts and after a popular vote or

referendum on the question. It has been matter of party platform for

some years that all franchises should thus be submitted to the local

referendum. That is, all exclusive franchises whereby rights in

the streets, or other rights of the public, are given away to a

corporation organized for purposes of gain. In Louisiana, street

railway franchises may only be granted on petition of a majority of

the abutters, and must be sold at auction for the highest percentage

of gross receipts, and so substantially in South Carolina. In

Washington, an elaborate statute against discrimination by

public-service corporations was passed by the initiative; but as the

statute itself omitted the enacting clause the law has been held to be

of no effect. Lastly, we will note as the most recent tendency, a

more intelligent limitation by the States themselves of corporations

organized in and by other States, frequently denying to such the right

of eminent domain or, as in Massachusetts, to do business or make

contracts without making full annual returns and submitting in all

respects to the State jurisdiction. Under recent decisions of the

Supreme Court, however, this power does not extend to any corporation

doing an interstate commerce business; and, of course, under the

Federal Incorporation Act, proposed by the present administration, the

States would be completely deprived of such power, except, possibly,

in so far as Congress may choose to relinquish it to them. How far,

independent of such permission by Congress, the ordinary police power

would extend, it will be almost impossible to define.

XI

LABOR LAWS

Much of the law affecting employers or combinations of capital has

its correlative, or rather equivalent, in combinations of labor; but

leaving the matter of combinations for the next chapter, and reserving

for this only statutes affecting the individual, we must again insist

upon that great cardinal liberty of labor under the English common

law, which already gives it a certain privilege and dispenses it from

the laws affecting ordinary contracts, that is to say: _the contract

of labor, alone of contracts under the English law, may not be

enforced_. When we say "enforced" we of course mean that the laborer

may not be compelled to carry it out; what, in the law, we call

specific performance. This is a matter of such essential importance

that it cannot be too strongly accentuated, as it is surprising how

ignorant still the popular mind is upon this subject, how little it

realizes labor's peculiar advantage in this particular. But it has

always been true of the English and American law, at least since that

early labor legislation sketched above in chapter 4 which came to

a final end at least as early as Elizabeth, that no man could be

compelled to work--except, of course, by way of punishment for

crime--and more than that, he could not even be compelled to work or

carry out a specific contract of labor to which he had bound himself

by all possible formality. "Specific performance" is the peculiar

process of a court of chancery, and at this point the resistance of

the freemen of England we have traced in earlier chapters became

absolutely effectual; that is to say, the court of chancery was never

allowed to extend its strong arm over the labor contract. Even that

famous first precedent of "government by injunction" discussed by us

above (page 74) was resisted in early times, the precedent was not

followed, it fell into complete desuetude, and it remained for the

case of Springhead Spinning Company _v_. Riley,[1] decided as late as

1868, to extend the injunction process to the prohibition of a strike.

And in more recent labor cases it has been found that the line between

prohibiting a man from leaving his employment, even under peculiar

circumstances, and ordering him to proceed with his contract

of employment and to carry it out, is extremely fine, if not

indistinguishable.[2]

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

[Footnote 2: For instance, the injunction against the employees of the

Southern California Railroad requiring defendants to perform all

their regular and accustomed duties "so long as they remain in the

employment of the company" (62 Fed. 796), has always been severely

criticised.]

Now, the reason of this great principle (peculiar, I think, to

Anglo-Saxon law) lies at its very root. It is the principle of

personal liberty again. To English notions, and to English courts,

indefinite labor continued for an indefinite time, or applied to an

indefinite number of services, is indistinguishable from slavery; and

compulsory labor even under a definite labor contract, such as to work

for a week or a month or a year, or in limited directions, as, for

instance, to work at making shoes or weaving cloth, when enforced by

the strong arm of the law, smacked too much of slavery to be tolerable

by our ancestors. Thus it is that, alone of all contracts, if a man

sign an agreement to work for us to-day, he may break it to-morrow and

will not be compelled to perform it; our only redress is to sue him

for damages, and this again because we can only act under the common

law. Chancery at this point at least is forbidden to take cognizance

of matters affecting personal liberty and labor; and the common law,

as has been said, "sounds only in damages." It is only chancery that

can compel a man to do or not to do some thing or to carry out a

contract.

The other basic principle affecting all questions of labor law is that

of freedom of trade or labor, correlative to the principle of freedom

of contract as to property right, and, indeed, embodying that notion

also. That is to say (perhaps I should say, to repeat) that an

Englishman, an American, has a right to labor where and for whom and

at what he will, and freely to make contract for such labor, and

freely to exercise all trades, and not to be combined against by

others, or competed with by a monopoly favored by the state. These

last two clauses, of course, belong to our next chapter. This right of

contract is not peculiar to the English law, as is the right not to be

compelled to personal service, and is much better understood; though

it is still earnestly argued by many advocates of union labor that

there is no real freedom of contract, or, at least, equality of

contract, between the employer and the employee; that therefore

"collective bargaining" should be allowed, and that therefore, and

furthermore, the wiser or the better organized should be permitted to

combine to control the contract or the labor of the individual. But if

we hold thoroughly these two principles before our mind we shall have

the key to the understanding of our labor legislation; and if we add

to that the third principle against conspiracy, we shall have the key

to our more complicated legislation against trusts and blacklists and

boycotts, and to an understanding of the more difficult questions,

affecting labor in combination and the regulation of labor unions.

That there has been a vast deal of interference, or attempted

interference, with these principles in modern American legislation

goes without saying. The motive or force behind such legislation has

pretty clearly two sources: First, the behest or desire of the "Labor

interest" or organized labor, the trades-unions themselves; and when

we analyze these and their constituents we shall find that it really

means only mechanical or industrial labor, not farm or agricultural

labor (which is still in numbers the greatest body of labor in the

United States), nor, as yet, domestic service labor, nor what the

census calls "personal service," which is probably next in numerical

importance, nor clerks; it is a comparatively small class in numbers,

this class of skilled mechanical or manufacturing labor, that has

brought about this immense mass of legislation of our modern States

aimed at improving their own labor conditions; and which therefore,

necessarily perhaps, interferes with personal liberty as to the labor

contract, or, at least, seeks to regulate it.

The other great influence is rather a motive than a source; we may

call it, for want of a better word, the sentimental or the altruistic

motive--the moral motive; the forces behind it being mainly of a

religious or moral origin, philanthropists, students of ethics, and

recently, to a great extent, the women and the women's clubs. The

activity of these great forces may be clearly traced through the

nineteenth century. It first belonged to the antislavery movement,

which directly and historically led to the women's suffrage movement,

owing to the fact that at a great antislavery convention in England

a woman delegate was refused a seat upon the platform, while her

husband, a comparatively obscure person, was recognized as the

leading representative from America; and ending of late years in

the prohibition movement, to regulate or prohibit the trade in

intoxicating liquors, and to exclude the canteen from the army. But in

the latest years, in these last very few years indeed, the forces of

this category have devoted a large proportion of their "categorical

imperative" to labor conditions and the labor contract.

These great forces are entirely impatient of constitutional principles

and somewhat indifferent as to the law, while always very desirous

of making new statutes themselves. But their combined influence is

enormous, so much so that almost any cause to which they devote

themselves will in the long run succeed; unless, indeed, their

attention is diverted to some other need, for it may be suggested that

they are somewhat fickle of purpose. For example, their success in

the antislavery movement makes the American history of the nineteenth

century; in the prohibition movement they were, in the middle decades

of that century, almost entirely successful, and while apparently

there was a set-back in the twenty years of individualistic feeling

which marked the growth of the Democratic party to an equality with

its great rival, the movement of late years seems to have taken on

renewed strength, probably on account of the so-called negro question

in the South. And while, as to votes for women, they seem to have made

no progress beyond the adoption twenty years ago of women's suffrage

in four new Western States and Territories, this last year, it must be

admitted, the movement has taken on a new strength in sympathy with

the agitation in England. There are now already symptoms of a fourth

cause--the reform of marriage, divorce and the laws regulating

domestic relations, and the control of children. It is possible that

these matters will be taken up actively in coming decades, and we,

therefore, reserve them for a future chapter; this new effort is

itself partly bound up with the women's suffrage movement, and in its

latest manifestation--that of proposing legislation preventing

men from marrying without permission from the state--it is a most

picturesque example of that absence of constitutional feeling we have

just adverted to.

Now this freedom-of-contract principle is one which, of course,

legislation attempting to regulate the labor contract is peculiarly

liable to "run up against"; and it is, for this reason, not only or

chiefly because "labor" is opposed to the Constitution or because the

courts are opposed to "labor," that so many statutes, passed at

least nominally in the interest of labor, have been by them declared

unconstitutional. For instance, it is a primary principle that an

English free man of full age, under no disability, may control his

person and his personal activities. He can work six, or four, or

eight, or ten, or twelve, or twenty-four, or no hours a day if he

choose, and any attempt to control him is impossible under the

simplest principle of Anglo-Saxon liberty. Yet there is possibly a

majority of the members of the labor unions who would wish to control

him in this particular to-day; and will take for an example that

under the police power the state has been permitted to control him in

matters affecting the public health or safety, as, for instance, in

the running of railway trains, or, in Utah, in labor in the mines. But

freedom of contract in this connection results generally from personal

liberty itself; although it results also from the right to property;

that is to say, a man's wages (or his trade, for matter of that) is

his property, and the right of property is of no practical use if you

cannot have the right to make contracts concerning it.

The only matter more important doubtless in the laborer's eye than the

length of time he shall work is the amount of wages he shall receive.

Now we may say at the start that in the English-speaking world there

has been practically no attempt to regulate the _amount_ of wages. We

found such legislation in mediaeval England, and we also found that

it was abandoned with general consent. But of late years in these

socialistic days (using again socialistic in its proper sense of that

which controls personal liberty for the interest of the community or

state) it is surprisingly showing its head once more. In Australasia

and more recently in England we see the beginning of a minimum wage

system which we must most carefully describe before we leave the

subject. There was in the State of Indiana a law that in ordinary

unskilled labor in public employment there should be a minimum wage of

fifteen cents per hour or twenty-five cents for a man and horse--since

declared unconstitutional by Indiana courts: while to-day such labor

receives a minimum of two dollars per day in California and Nebraska,

one dollar and a quarter in Hawaii, three dollars in Nevada, and

"the usual rate" in Delaware and New York,[1] and we are many of us

familiar with the practice of towns and villages in New England or New

York in passing a vote or town ordinance fixing the price of wages

at two dollars per day, or a like sum; but this practice, it must be

remarked, is in no sense a _law_ regulating wages; it is merely the

resolution or resolve of an employer himself, as a private citizen

might say that he would give his gardener fifty dollars a month

instead of forty. And, on the other hand, the Constitution of

Louisiana provides that the price of wages shall never be fixed by

law. Now it will be remembered that the Statutes of Laborers of the

Middle Ages, when they regulated the price of wages, led directly to

the result that they made all strikes, all concerted efforts to get an

increase of wages, unlawful and even criminal; in fact, it may be said

that this attempt to bind the workmen to a wage fixed by law was the

very cause of the notion that strikes were illegal, which, indeed, was

the English common law down to early in the last century. Moreover,

when an English mediaeval peasant refused to labor for his three pence

a day he might be sent to gaol by the nearest justice of the peace,

as, perhaps, some employers would like to do to-day in our South, and

which resulted--if not in slavery--in precisely that condition which

we call "peonage." Economically speaking, the attempt to regulate

wages was, of course, a mistake; politically speaking, it was

universally unpopular, and no class was more desirous than the working

class themselves of getting rid of all such legislation, which they

did in France at the French Revolution, and in England nearly two

centuries earlier. Only socialists should logically desire to go back

to the system, and in the one modern English-speaking State which is

largely socialistic--New Zealand--it is said that the minimum wage law

has had the effect that a similar resolve has had in Massachusetts

towns: to drive all the old men and all the weaker or less skilled out

of employment entirely, and into the poorhouse;[2] for, at a fixed

price, it is obvious that the employer will employ only the most

efficient labor, and the same argument causes some of their more

thoughtful friends to dissuade the women school-teachers in New York

from their present effort to get their wages or salaries fixed by law

at a price equal to that paid a man.[3]

[Footnote 1: See above, p. 161; below, p. 213.]

[Footnote 2: In the old town of Plymouth the chairman of the selectmen

asked what, he should do under vote of town meeting requiring him to

pay two dollars a day for all unskilled labor employed by the town.

"We have," he said, "about one hundred and twenty old men in Plymouth,

largely veterans of the Civil War. We have been in the habit of giving

them one dollar and a quarter per day. Under this two-dollar vote we

cannot do it without bankrupting the town." He was advised to go ahead

and still pay them the dollar and a quarter per day and take the

chance of a lawsuit, which he did, and so far as the writer knows no

lawsuit has ever been brought; but in all cases that would not be the

result.]

[Footnote 3: This is law in Utah; but nevertheless a letter from a

State government official informs me that women are willing to [and

do?] work for a smaller salary.]

A principle somewhat akin to that of a vote of a town fixing the rate

of wages is the recent constitutional amendment in the State of New

York (see above, p. 161) which validated the statute requiring that in

public work (that is to say, labor for the State, for cities, towns,

counties, villages, school districts, or any municipality of the

State), or _for contractors employed directly or indirectly by the

State or such municipality_, that rate shall be paid which is usual

at the time in the same trade in the same neighborhood. This was the

earliest statute, which was declared unconstitutional (see above, p.

161). The lack of interest in this tremendously important matter is

shown in the fact that not one-third of the voters took the trouble

to vote on the amendment at all, and that for three days after the

election no New York newspaper took notice of the fact that the

amendment had passed. Up to this constitutional amendment the courts

of New York, as well as those of California and even of the United

States, had resented with great vigor the attempt of statutes to make

a crime the permitting of a free American citizen to work over eight

hours if he liked so to do. But in New York at least (now followed

in Delaware, Maryland, and Oklahoma) it is now settled that so much

interference even with the rate of wages may be allowed, and as the

percentage of public employment is, of course, very large--covering as

it does not only all public contractors, but all labor in or for gaols

or public institutions--it will necessarily, it would seem, drag with

it a certain practical regulation of private industry corresponding to

the public rules.

In England, the New Zealand experiment has been tentatively begun;

that is to say, in the last radical Parliament, in the autumn of 1909,

the law was enacted, already referred to, for fixing wages by mixed

commission (see above, p. 159); but otherwise than as above there is

in the States and Territories of the United States, and in the United

States itself, no regulation of wages, even of women or children, and

no attempt, as yet, at a minimum wage law.

When we come to hours, the matter is very different. In the first

place, we must be reminded that without a constitutional amendment

you cannot have any direct or indirect legislation, as to general

occupations, on the hours of labor of a man of full age.[1] You can

have regulation of the hours of labor of a woman of full age

in general employments, by court decision, in three States

(Massachusetts, Oregon, and Illinois), the Massachusetts decision,

carelessly rendered in 1876, without citing any authority whatever,[2]

being based apparently on a vague notion of general sanitary reasons,

without argument or apparently due consideration of the historical and

constitutional law; but the Oregon case,[3] decided both by the State

Supreme Court and by the Federal Court in so far as the Fourteenth

Amendment was concerned, after most careful and thorough discussion

and reasoning, reasserted the principle that a woman is the ward of

the state, and therefore does not have the full liberty of contract

allowed to a man. Whether this decision will or will not be pleasing

to the leaders of feminist thought is a matter of considerable

interest. A similar statute in Illinois had been declared

unconstitutional twenty years before, largely on the ground that

to limit or prohibit the labor of woman would handicap her in her

industrial competition with man, pointing out also that the Illinois

Constitution itself prescribes and requires that the rights of the

sexes should in all respects be identical, save only in so far as jury

and militia service and political rights were concerned. A new statute

since the Oregon decision has been passed in Illinois and the law was

sustained, reversing the older case. On the other hand New York courts

take a position squarely contrary,[4] and so in Colorado.[5] The

constitutional justification of these decisions must probably be

that the health not only of the women themselves, but of the general

public, or at least of posterity, is concerned, for, as we shall find

more particularly when we discuss general legislation on the police

power, to justify an interference with personal liberty of freemen

there must, under English ideas, be a motive based upon the health,

safety, and well-being of all of the whole community, not merely

of the particular citizen concerned. He has the right to work in

unhealthy trades at unhealthy times, or under unhealthy conditions,

just as he has the right to consume unhealthy food and drink. If it be

prohibited, it must be prohibited when it has a direct relation to the

general welfare. For example, a railway engineer may be prohibited

from working continuously for more than sixteen hours, for that is

a direct danger to the safety of the public; but a man may not

be prohibited from taking service for long hours as stoker on a

steamship, although the life of a stoker be a short one and not over

merry. Apparently, however, a woman can be; and indeed there have for

a long time been laws prohibiting the labor of women in England and

regulating their hours. But then there are laws prohibiting women from

serving in immoral occupations, or occupations which are supposed to

be dangerous to their morals, as, for instance, many States have laws

against the serving of liquor, or even of food, by women or girls in

places or restaurants where liquor is served, or for certain hours, or

in certain places. Very conceivably a law might be passed prohibiting

women and girls from the selling of programmes, or attending upon dime

museums, or even selling newspapers, or being district messengers;

but, as we all know, there are women cabmen in Paris. Would

legislation prohibiting such employment to women be unconstitutional?

There is already a considerable amount of it. The cases are

conflicting, the earlier view, and the view taken in the South and in

at least one Federal court, being that such laws are unconstitutional.

The modern doctrine, backed up by that public opinion which we have

above described as the ethical force, would seem to sustain them. The

truth is probably that the legislature must be the sole judge of the

expediency of such legislation; where the court can see that it does

bear a direct relation to the morals of the young women concerned,

or the morals of the general community, it will be sustained as

constitutional under the police power, although to that extent

interfering with the personal liberty of women and with their means of

getting a livelihood.

[Footnote 1: Georgia and South Carolina have such law requiring

sixty-six and sixty hours a week respectively in cotton and woollen

manufacturing; but their constitutionality has never been tested. For

_public_ work, see below.]

[Footnote 2: Commonwealth _v._ Hamilton Manufacturing Co. 120 Mass.

383.]

[Footnote 3: Muller _v._ Oregon, 208 U.S. 412. So in Pennsylvania:

Commonwealth _v._ Beatty, 23 Penn. C.C. 300.]

[Footnote 4: People _v._ Williams, 81 N.E. 778.]

[Footnote 5: Bucher _v._ People, 93 Pac. 14.]

As to children there is, of course, no question. Laws limiting their

labor are perfectly constitutional, and some child-labor laws exist

already in all States and Territories except Nevada. The only dispute

on the child-labor question is whether such legislation should be

Federal, or rather whether the Constitution should be so amended as to

make Federal legislation possible. Practically this would meet with

a very much wider opposition than is commonly supposed. The writer,

acting as chairman of the National Conference of Commissioners on

Uniformity of Legislation appointed under laws of more than thirty

States of the Union and meeting in Detroit, Michigan, in 1895, brought

this matter up under a resolution of the Legislature of the State of

Massachusetts requesting him to do so. Nearly every Southern delegate

and most of those from the West and from the Middle States were on

their feet at once objecting, and the best he could do was to get

it referred to a committee rather than have the Commonwealth of

Massachusetts summarily snubbed. This committee, of course, never

reported.

Undoubtedly climatic effects, social conditions, and dozens of other

reasons make it difficult, if not unwise, to attempt to have the same

rules as to hours of labor in all the States of our wide country. Boys

and notably girls mature much earlier in the South than they do in

the North; schooling conditions are not the same, homes are not so

comfortable, the money may be more needed, the general level of

education is less. Doubtless there are still areas in the South where

on the whole it is better for a child of fourteen to be in a cotton

mill than anywhere else he is likely to go, schools not existing. The

Southern delegates resented interference with their State police power

for these reasons. The Massachusetts Legislature, on the other hand,

had in mind the competition of Southern mills, with cheap child labor,

quite as much as any desire to benefit the white or negro children

of the South; but the writer's experience convinced him that a

constitutional amendment on this point is impossible, although one has

been repeatedly proposed, notably by the late Congressman Lovering of

Massachusetts, and such an amendment is still pending somewhere in

that limbo of unadopted constitutional amendments for which no formal

cemetery seems to have been prepared.

Even as to men, the labor of the Southern States is notably different

from the labor of Lowell or Lawrence, Massachusetts, or even

Cambridge; while on the Panama Canal or in most tropical countries the

ordinary laborer likes to pretend that he is working eighteen hours

a day, although most of the time is spent in eating or sleeping.

Nevertheless, under the Federal law, all employees at Panama have

to be given the eight-hour day required by the Federal statute, the

Supreme Court having upheld that act as constitutional.

It is curious to note, in passing, the alignment of our courts upon

this subject of hours of labor and general interference with the

freedom of contract of employment. The Western and Southern States

are most conservative; that is to say, most severe in enforcing the

constitutional principles of liberty of contract as against any

statute. The courts of the North and East are more radical, and the

courts of Massachusetts and the United States most radical of all. I

account for this fact on the ground that where the legislatures are

over-radical, the courts tend to react into conservatism, and as the

Western legislatures try many more startling experiments than are

usually attempted in Massachusetts or New Jersey, the more intelligent

public opinion has to depend on the courts to apply the curb.

All this, of course, is a great mistake; for it forces undue

responsibility on the courts, at least tends to control in an improper

way the appointment of judges, and at best forces the most upright

judge into a position where he should not be put--that of being a kind

of king or lord chamberlain, with power to set aside improper or wrong

legislation.

With these preliminary remarks we are now prepared to examine the

legislation as it exists to-day (1910); cautioning our readers that

this subject, as indeed all others concerning labor legislation, is so

often tinkered in all our States as to make our statements of little

permanent value, except that restrictions once imposed are rarely

repealed. We may assume, therefore, that the law is at least as

radical as it is herein presented.

The hours of labor of _adults_, males, in ordinary industries remain

as yet unrestricted by law in any State of the Union; but several

States have laws making a certain number of hours a day's work in the

absence of contract;[1] and New York and a few other States have an

eight-hour day in "public" work--that is to say, work directly for

the State or any municipality or for a contractor undertaking such

work.[2]

[Footnote 1: Thus eight hours (California, Connecticut, Illinois,

Indiana, Missouri, New York, Ohio, Pennsylvania, Wisconsin); ten hours

(Florida, Maine, Michigan--with pay for overtime--Minnesota, Montana,

Maryland--for manufacturing corporations--Nebraska, New Hampshire,

Rhode Island, South Carolina--in cotton and woollen mills--in New

Jersey), fifty-five hours a week in factories; in Georgia eleven hours

in manufacturing establishments, or from sunrise to sunset by all

persons under twenty-one, mealtimes excluded (see below). But these

laws do not usually apply to agricultural or domestic employment or to

persons hired by the month.]

[Footnote 2: In public work, that is, work done for the State, or any

county or municipality or for contractors therefor, the eight-hour day

is prescribed (California, Colorado, Delaware, District of Columbia,

Hawaii, Idaho, Indiana, Kansas, Maryland, Massachusetts, Minnesota,

Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania,

Porto Rico, Utah, Washington, West Virginia, Wisconsin, Wyoming, and

the United States). But the provisions for overtime and compensation

for overtime differ considerably.]

The labor of women (in mechanical trades, factories and laundries in

Illinois, or in mercantile, hotel, telegraph, telephone, etc., as

well, in Oregon) for more than a limit of ten hours per day in

Illinois, or nine in Oregon, is prohibited and made a misdemeanor; and

both these statutes have been held constitutional. But in many

other States the hours of labor in factories or manufacturing

establishments, even of adult women, are now regulated; while the

labor of children, as we shall find, is regulated in nearly all. Thus,

Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan,

Minnesota, Nebraska, New Hampshire, New York, North Dakota, Oklahoma,

Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia,

and Washington have a ten-hour day in all manufacturing or mechanical

employments for women of any age, which in Connecticut, Massachusetts,

Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, and

Washington extends to mercantile avocations also, in Louisiana only

to specified dangerous trades; in Wisconsin, eight hours; and in

Connecticut, Maine, Minnesota, New Hampshire there may not be more

than fifty-eight hours a week, or in Massachusetts and Rhode Island,

fifty-six, and in Michigan and Missouri, fifty-four. Arizona has an

eight-hour day in laundries.

And these laws are extended to specified occupations, viz., in

Connecticut to manufacturing, mechanical, and mercantile; in Illinois,

mechanical, factory, or laundry; in Louisiana, unhealthful or

dangerous occupations except agricultural or domestic; in Maine,

mechanical and manufacturing except of perishable products; in

Maryland, special kinds of manufactories; in Massachusetts,

manufacturing, mechanical, mercantile, and restaurants; in Michigan,

Minnesota, and Missouri, manufacturing, mechanical, and mercantile

or laundries; in Nebraska, manufacturing, mercantile, hotel, or

restaurant; in New Hampshire, New York,[1] North Dakota, Oklahoma,

Rhode Island, manufacturing and mechanical; in Tennessee and

Virginia, manufacturing only; in Washington and Oregon manufacturing,

mechanical, mercantile, laundry, hotel, or restaurant, and in

Wisconsin, mechanical or manufacturing. Georgia and South Carolina

regulate the labor of women as they do of adult men[2] in factories.

Such laws of course would not be unconstitutional or, if so, not for

the reason of sex discrimination.

[Footnote 1: Possibly unconstitutional. See above.]

[Footnote 2: See above.]

Now all these laws arbitrarily regulate the hours of labor of women

at any season without regard to their condition of health, and are

therefore far behind the more intelligent legislation of Belgium,

France, and Germany, which considers at all times their sanitary

condition, and requires a period of rest for some weeks before and

after childbirth. The best that can be said of them, therefore, is

that they are a beginning. No law has attempted to prescribe the

social condition of female industrial laborers, the bill introduced in

Connecticut that no married woman should ever be allowed to work in

factories having failed in its passage.

The hours of labor of minors, male and female, are limited in all

States, except Florida, Missouri, Montana, Nebraska, Nevada, New

Mexico, South Carolina, Texas, Vermont, Utah, Washington, West

Virginia, and Wyoming, particularly in factories and stores, usually

under an age limit of sixteen, to ten hours per day or fifty-eight

hours a week.[1] But in Alabama, Arkansas, and Virginia, the age is as

low as fourteen, and in California, Indiana,[2] Louisiana, Maine,[2]

Massachusetts, Michigan, North Carolina, Ohio,[2] Pennsylvania,[2] and

South Dakota,[2] it is eighteen. In California, Delaware, Idaho, and

New York, it is nine hours, and in Colorado, District of Columbia,

Illinois, Indiana, Kansas, New York,[3] North Dakota, Ohio, and

Oklahoma, it is as low as eight hours a day, though the laws in

several States, as in New York, are contrary and overlie each other. A

corresponding limit, but sometimes less, is fixed for the week; that

is, in the nine-hour States and some others, weekly labor may not

exceed fifty-four hours or less.[4]

[Footnote 1: Connecticut, Maine, Massachusetts (in manufacturing,

fifty-six), Mississippi, New Hampshire (nine hours, forty minutes),

Pennsylvania. In others, sixty hours a week (Alabama, Arkansas,

Indiana, Iowa, Kentucky, Maryland (in Baltimore only), Minnesota, New

York, Oregon, South Dakota, Tennessee, Wisconsin).]

[Footnote 2: As to females only (Indiana, Maine, Ohio, Pennsylvania,

South Dakota).]

[Footnote 3: In factories (New York).]

[Footnote 4: Fifty-four hours (Delaware, Idaho, Michigan, New York),

fifty-five hours (New Jersey), fifty-six hours (Massachusetts, Rhode

Island), forty-eight hours (District of Columbia, Illinois, Kansas,

Ohio, Oklahoma), sixty-six hours (North Carolina).]

Night work in factories, etc., is prohibited in nearly all the States

mentioned and in others.[1] Many States require working papers or

certificates of age of the person employed, and there are often also

certificates as to the required amount of schooling when necessary.

Indeed it may be said that we are on the way to the German system of

having time cards or certificates furnished by State machinery for all

industrial workers, and such a system will, of course, be absolutely

necessary should the State ever engage in old-age insurance, as has

been done in Germany and England; though the practical difficulty of

such a scheme would have been thought by our fathers insuperable

on account of our Federal and State system of government, and the

necessary free immigration of American workmen from one State into

another.

[Footnote 1: Thus, night labor in factories to minors under fourteen

(Arkansas, Georgia, Massachusetts, North Carolina, Texas, Virginia),

twelve (South Carolina), eighteen (New Jersey), or sixteen (Alabama,

California, Connecticut, Delaware, District of Columbia, Idaho,

Illinois, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota,

Mississippi, New York, North Dakota, Ohio, Oklahoma, Oregon,

Pennsylvania, Rhode Island, Vermont, Wisconsin) is prohibited in

factories or mercantile establishments (Connecticut, Iowa, Kansas,

Michigan, New York), or any gainful occupation (Delaware, District

of Columbia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, North

Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode

Island, Texas, Vermont, Wisconsin). In South Carolina the law

only protects children under twelve from night labor in mines and

factories. So in some as to all females only (Indiana), females

under eighteen (Louisiana, Michigan, Ohio, Oklahoma, Pennsylvania),

twenty-one (New York), and to any minor between 10 P.M. and 6 A.M.

(Massachusetts).]

These laws will be found summarized in full in _Legislative Review_,

No. 5, of the American Association for Labor Legislation, by Laura

Scott ("Child Labor"), and in No. 4, by Maud Swett ("Woman's Work").

It will be seen that in all respects practicable with our necessary

system of individual liberty, doubly guaranteed by the constitutions,

State and Federal, we are quite abreast of the more intelligent

legislation of European countries as to hours of labor, women's and

children's, except in a few States. But it should be remembered that

these are largely agricultural or mining States, and doubtless when

the abuse of child and woman labor presents itself it will be met as

frankly and fairly there as in others.

On the constitutionality, if not the economic wisdom of laws

regulating the hours of labor of women, at least of adult years, there

still is decided difference of opinion. Logically it would perhaps

seem as if those who believe in the "Woman's Rights" movement of

uniform function for women and men, should be opposed to all such

legislation; both on theoretical grounds as being a restraint of

personal liberty, and as unequal legislation handicapping woman in her

industrial competition with man. This was certainly the earlier

view; but under the influence of certain voluntary philanthropic

associations the tendency at present seems to be the other way.

The States which have laws prohibiting any labor of children whatever,

even, apparently, agricultural or domestic,[1] are: Arizona, Arkansas,

Connecticut, Colorado, Delaware, Florida, Idaho, Illinois, Kansas,

Kentucky, Maryland, Missouri, Massachusetts, Minnesota, Montana,

Nebraska, New York, North Dakota, Oregon, Washington, and Wisconsin.

[Footnote 1: The New York law applies to "any business or service,"

but I assume this cannot mean service rendered to the parents in the

house or on the farm; in fact it may be generally assumed that all

these laws, even when they do not say so, mean only employment for

hire; the Oregon and Wisconsin laws, to "any work for compensation";

the Washington law to "any inside employment, factory, mine, shop,

store, except farm or household work." Arkansas, Delaware, Idaho, and

Wisconsin, to "any gainful occupation"; Maryland, to "any business,"

etc., except farm labor in summer; Colorado, to labor for

corporations, firms, or persons; the other State laws to any work.]

And the age limit fixed for such general employment is (without regard

to schooling) under twelve, in Idaho and Maryland; under fourteen in

Delaware, Illinois, and Wisconsin; and under fourteen for boys and

sixteen for girls in Washington, if without permit, and under fifteen,

for more than sixty days without the consent of the parent or guardian

in Florida; in other States the prohibition rests on educational

reasons, and covers only the time of year during which schools are in

session; thus, under eight during school hours, or fourteen without

certificate (Missouri); under fourteen during the time or term of

school sessions (Connecticut, Colorado,[1] Massachusetts, Idaho,

Kansas, Kentucky, Minnesota, New York, North Dakota); or under

fourteen during actual school hours (Arizona,[2] Kentucky, Nebraska,

Oregon); or under fifteen in Washington,[1] and under sixteen as

to those who cannot read and write (Colorado, Connecticut,[3]

Illinois,[3],[4]) or have not the required school instruction (Idaho,

New York[1],[4]), or during school hours (Arkansas, Montana[1]), or

who have not a labor permit (Maryland, Minnesota, Wisconsin). This

résumé shows a pretty general agreement on the absolute prohibition of

child labor under fourteen, or under sixteen as to the uneducated; and

the penalty is in most States only a fine inflicted on the employer,

or, in some cases, the parent; but in Florida and Wisconsin it may be

imprisonment; as it is in Alabama for a second offence.

[Footnote 1: Without schooling certificate.]

[Footnote 2: Without certificate of excuse.]

[Footnote 3: Unless the child attends a night school.]

[Footnote 4: Without age certificate.]

But more States fix a limit of age in the employment of children in

factories or workshops, and particularly in mines; not so usually,

however, in stores.[1] The age of absolute prohibition is usually

fixed at fourteen or at sixteen in the absence of a certain amount of

common-school education. These States are: Alabama,[2] Arkansas,[3,9]

California,[4,9] Colorado,[5] Connecticut,[5] Delaware,[5,6]

District of Columbia,[7,9] Florida,[3,9] Georgia,[8] Illinois,[5,9]

Indiana,[9,10] Iowa.[11,9] Kansas and Kentucky[8] forbid factory labor

for children under fourteen or between fourteen and sixteen without

an age certificate or an employment certificate; Louisiana[9] has the

usual statute, that is, absolute prohibition under fourteen and age

certificate required for those between fourteen and sixteen, or, in

the case of girls, between fourteen and eighteen, and the law applies

to mercantile occupations where more than five persons are employed;

the Maine statute is similar, but children above fifteen may work in

mercantile establishments without age or schooling certificate, which

is required of all those under sixteen in manufacturing or mechanical

employment; in Maryland,[12] the prohibition age is still twelve, and

the law applies to any business except farm labor in the summer; in

Massachusetts,[12] absolute prohibition below fourteen, fourteen

to sixteen without age or schooling certificate, and fourteen to

eighteen, who cannot read and write; in Michigan,[12] absolute

prohibition under fourteen, or sixteen without written permit; in

Minnesota, the same ages, but the law applies to any employment; in

Mississippi the ages are twelve and sixteen; in Missouri, absolute

prohibition under eight, or fourteen without school certificate. New

Hampshire[12] lags behind and has only an absolute prohibition to

children under twelve, or during school under fourteen, or under

sixteen without schooling certificate. In New Jersey, under fourteen,

or sixteen with medical certificate; Nebraska[l2] and New York,[12]

the usual absolute prohibition under fourteen, or under sixteen

without employment certificate; North Carolina, under twelve, with an

exception of oyster industries; North Dakota,[12] fourteen, or from

fourteen to sixteen without employment certificate. In Ohio,[12]

Oklahoma, Oregon,[12] Pennsylvania,[12] and Rhode Island,[12] the laws

are practically identical, fourteen, or sixteen with certificate of

schooling. South Carolina, absolute prohibition only under twelve, and

not even then in textile establishments if the child has a dependency

certificate. South Dakota,[12] under fifteen when school is in

session; Tennessee, absolute under fourteen; Texas, under twelve, or

under fourteen to those who cannot read and write unless the child has

a parent to support. Vermont's limitation is purely educational; no

child under sixteen can be employed in factories or mines who has not

completed nine years of study. In Virginia[12] from March 1, 1910,

there is absolute prohibition under fourteen except as to children

between twelve and fourteen with a dependency certificate; Washington,

under fifteen without schooling certificate, or in stores, etc.,

twelve. West Virginia, twelve, or fourteen when school is in session.

Utah and Wyoming have no legislation except as to mines, nor do

Colorado and Idaho protect women in them. Yet these are the four

woman-suffrage States.

[Footnote 1: The law does apply to "mercantile establishments"

(Alabama, Arkansas, California, District of Columbia, Florida,

Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts,

Michigan, Missouri, Nebraska, New York, North Dakota, Ohio, Oregon,

Pennsylvania, Rhode Island, Virginia, West Virginia).]

[Footnote 2: Absolute prohibition only under twelve. School and age

certificate from twelve to sixteen; age certificate from sixteen to

eighteen.]

[Footnote 3: The ages are fourteen and eighteen respectively, or

sixteen in stores during school hours; in Florida, twelve, or when

school is not in session, without an age, schooling, and medical

certificate.]

[Footnote 4: Absolute prohibition under twelve or from twelve to

fourteen during the school term or under sixteen to those who cannot

read and write, and the law applies to mercantile establishments,

hotel and messenger work, etc., making expressly the usual exemption

of agricultural or domestic labor.]

[Footnote 5: Absolute prohibition under fourteen; from fourteen to

sixteen without certificate (Connecticut, Illinois, Kansas, Kentucky),

and medical certificate if demanded (Delaware).]

[Footnote 6: Any gainful occupation under fourteen. Except canning

fruit, etc. (Delaware).]

[Footnote 7: Any business or occupation during school hours, except in

the United States Senate, and the age is absolute prohibition under

twelve; twelve to fourteen without a dependency permit, and fourteen

to sixteen without schooling certificate.]

[Footnote 8: Absolute under twelve; twelve to fourteen without

schooling certificate; fourteen to eighteen without age and schooling

certificate except as to those who have already entered into

employment. Does not apply to mines.]

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

well.]

[Footnote 10: Absolute under fourteen, or under sixteen to those who

cannot read and write.]

[Footnote 11: Prohibition is absolute under the age of fourteen, and

applies to employment in mercantile establishments as well, or stores

where more than eight people are employed.]

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

well.]

The laws as to labor in mines are naturally more severe; although in

some they are covered by the ordinary factory laws (Colorado, Florida,

Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, North Dakota,

Oregon, South Carolina, South Dakota, Tennessee, Vermont, Virginia,

Wisconsin). Female labor is absolutely forbidden in mines or works

underground in Alabama, Arkansas, Illinois, Indiana, Missouri, New

York, North Carolina, Oklahoma, Pennsylvania, Utah, Washington,

Wyoming, and West Virginia,--in short, in most of the States except

Idaho, Kansas, Iowa, Kentucky, Virginia, Wyoming, where mines exist;

and the limit of male labor is usually put at from fourteen. (Alabama,

Arkansas, Idaho, Indiana, Missouri, Ohio,[1] South Dakota, Tennessee,

Utah, Wyoming) to sixteen (Illinois, Missouri,[2] Montana, New York,

Oklahoma, Pennsylvania, Washington); or twelve (North Carolina,

South Carolina, West Virginia), even in States which have no such

legislation as to factories.

[Footnote 1: Fifteen during school year.]

[Footnote 2: Of those who can read and write.]

The laws as to elevators,[1] dangerous machinery,[2] or dangerous

employment generally,[3] are even stricter, and as a rule apply to

children of both sexes; the Massachusetts standard being, in the

management of rapid elevators, the age of eighteen, in cleaning

machinery in motion, fourteen, etc.; in other States, sixteen to

eighteen.[4] The labor of all women in some States, and of girls or

women under sixteen or eighteen in other States, is forbidden in

occupations which require continual standing.[5] Females,[6] or

minors,[7] or young children[8] are very generally forbidden from

working or waiting in bar-rooms or restaurants where liquor is sold,

and in a few States girls are prohibited from selling newspapers or

acting as messengers.[9] The Northern States have a usual age limit

for the employment of children in ordinary theatrical performances,

and an absolute prohibition of such employment or of acrobatic,

immoral, or mendicant employment. But in some States it appears there

is only an age limit as to these.[10]

[Footnote 1: Indiana, Massachusetts, New York, Rhode Island, Kansas,

Oregon.]

[Footnote 2: Connecticut, Iowa, Missouri, Oregon, Louisiana, New

York.]

[Footnote 3: Illinois, Kansas, Kentucky, Massachusetts, Michigan,

Minnesota, Missouri, Montana, New Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Wisconsin.]

[Footnote 4: Indiana, Iowa, Louisiana, New Jersey, New York, South

Carolina.]

[Footnote 5: Illinois (under sixteen), Michigan (all), Minnesota

(sixteen), Missouri (all), New York (sixteen), Ohio (all), Oklahoma

(sixteen), Wisconsin (sixteen), Colorado (all over sixteen).]

[Footnote 6: Iowa, Louisiana, Michigan, Missouri, New Hampshire, New

York, Vermont, Washington (except the wife of the proprietor or a

member of the family).]

[Footnote 7: Arizona, Connecticut, Georgia, Pennsylvania, Idaho,

Maryland, Michigan, Missouri, New Hampshire, South Dakota, Vermont.]

[Footnote 8: Florida, Illinois, Massachusetts, Missouri, Nebraska.]

[Footnote 9: New York, Oklahoma, Wisconsin.]

[Footnote 10: California, Kentucky, Maine, Maryland, Michigan,

Missouri, Montana, New York, Oregon, Rhode Island, (sixteen years);

Colorado, District of Columbia, Florida, Illinois, Kansas, New

Hampshire, Virginia, Wisconsin, Wyoming (fourteen); Connecticut,

Georgia, (twelve); Delaware, Indiana, Louisiana, Massachusetts, West

Virginia (fifteen); Minnesota, New Jersey, Pennsylvania, Washington

(eighteen).]

The hours for railroad and telegraph operators are limited in several

States, but rather for the purpose of protecting the public safety

than the employees themselves.[1] The following other trades are

prohibited to women or girls: Boot-blacking,[2] or street trades

generally;[3] work upon emery wheels, or wheels of any description in

factories (Michigan), and in New York no female is allowed to operate

or use abrasives, buffing wheels, or many other processes of polishing

the baser metals, or iridium; selling magazines or newspapers in any

public place, as to girls under sixteen,[4] public messenger service

for telegraph and telephone companies as to girls under nineteen.[5]

[Footnote 1: Colorado, New York.]

[Footnote 2: District of Columbia, Wisconsin.]

[Footnote 3: District of Columbia, Wisconsin.]

[Footnote 4: New York, Oklahoma, Wisconsin.]

[Footnote 5: Washington.]

Leaving now the question of general employment, where no general laws

limiting time or price would seem to be constitutional, except in

certain cases as to the employment of women and in all cases that of

children, and going to special occupations, we shall find quite a

different principle; for in a special occupation known to be dangerous

or unhealthy, certainly if dangerous or unhealthy to the general

public, it has always been the custom and has always been

constitutional with us to control conditions by statute. The question

of what is a dangerous or unhealthy occupation to the public rather

than merely to the persons employed is, of course, a difficult one;

and the Supreme Court of the United States have split so closely

on this point that they have in Utah decided that mining was an

occupation dangerous to the public health, and in New York that

the baking of bread was not. That is to say, that the condition of

bakeshops bore no relation to the general health of the community. One

might, perhaps, have expected that they would have decided each case

the other way; but we must take our decisions as we get them from the

Supreme Court, reserving our dissent for the text-books. In any event,

it can be seen that the line is very close, certainly in the case of

adult male labor. The same statute as to mines existed in Colorado

that the United States Supreme Court sustained in Utah. The Colorado

Supreme Court had declared it unconstitutional, and after the decision

of the United States Supreme Court they continued to declare it

unconstitutional, simply saying that the United States Supreme Court

was wrong. Anyhow, it is obvious that in trades which involve a great

mass of the people, or affect the whole community, or particularly

where there are definite dangers, such as noxious vapors or

tuberculosis-breeding dust, it will be constitutional, as it is common

sense, to limit the conditions and even the hours of labor of women

or men, as well as children. Students interested in such matters will

find the universal legislation of the civilized world set forth in the

invaluable labor-laws collection of the government of Belgium; and he

will find that all countries of the world do regulate the hours of

labor as well as the conditions, in all such trades, and we should not

remain alone in refusing to do so.

The difficulty of regulating the hours of farm labor is, of course,

obvious, and so far as I know, no attempt has yet been made. The same

thing remains still true of domestic labor, though it has been more

questioned. It should be noted that both domestic labor and farm

labor belong to the class of what we call indefinite service. Now,

indefinite service must always be regulated very carefully as to the

length of the contract, which is never to be indefinite; that is to

say, if it be both indefinite in the services rendered and in the time

during which they are to last, it is in no way distinguishable from

slavery. For instance, in Indiana, many years before the Civil War,

there was an old negro woman who was induced to sign a contract to

serve in a general way for life; that, of course, was held to be

slavery. More recently the United States Supreme Court has held that a

contract imposed upon a sailor whereby he agreed to ship as a mariner

on the Pacific coast for a voyage to various other parts of the world

and thence back was a contract so indefinite in length of time as to

be unenforceable under free principles, although a sailor's contract

is one which in a peculiar way carries with it indefinite service. And

a contract "_à tout faire_" even for a week might be held void.

In all these matters the labor of women, and even that of children,

will very often control the hours of labor of men; for instance, in

the mills of New England, more than half the labor is not adult male;

yet when any large class of the mill's operatives stop, the whole

mill must stop; consequently, a law limiting the labor of women and

children to fifty-six hours a week will be in practice enforced upon

the adult males employed in the same mill.

Continental legislation has gone far beyond us in all these important

particulars. In most countries the conditions surrounding the labor of

women, particularly married women, are carefully regulated by law.

She is not allowed to go back to the mill for a certain period after

childbirth, and in many more particular respects her health is

carefully looked after. Such legislation would possibly be impossible

to enforce with our notions in America. The most interesting of all

is perhaps the attempt made in the State of Connecticut within a few

years to improve social conditions by providing that no married woman

should be employed in factories at all. The bill was not, of course,

carried, but it raises a most interesting sociological question.

Ruskin probably would have been in favor of it. He described as the

very last act of modern barbarism for the woman to be made "to shriek

for a hold of the mattock herself." It was argued in Connecticut that

the employment of married women injured the health of the children,

which is perfectly true. Indeed, the death-rate in England is very

largely determined by the fact whether their mothers are employed in

mills or not. It was also argued that her competition with man merely

halved his wages; that if no women were employed, the men would get

much higher wages. On the other side it was argued that the effect of

the law would be largely immoral because it would simply prevent women

from getting married. Knowing that after marriage they would get no

employment, they would simply dispense with the marriage ceremony; for

it is obvious that under such legislation a man living with a woman

unmarried could get double wages, which would be halved the moment he

made her his wife. This last was evidently the view which prevailed;

and so far as I know, no such law has in the civilized world yet been

enacted, though there is doubtless a much stronger social prejudice

against women entering ordinary employments in some countries than in

others.

The constitutional question underlying all this discussion was perhaps

best set forth by an experiment of the late Mr. Edward Atkinson, which

he always threatened to bring into the courts, but I believe did not

do so. "An Englishman's house is his castle"; an English woman's house

is her castle. Atkinson proposed that a woman of full age, living in

her own house, should connect her loom or spindles by electric wire to

the nearest mill or factory, and then proceed to weave or spin _more_

than the legal limit of nine hours per day. Would the state, under the

broadest principles of English constitutional liberty, have the right

to come in and tell her not to do so; particularly when the man in the

next house remained free? Up to this time there is no doubt that a

factory, a large congregation of labor, under peculiar conditions,

presents a different question and a different constitutional aspect

from that of the individual. This, indeed, is the principle which must

justify the constitutional regulation of sweat-shops, as to which we

will speak next.

The sweat-shop is the modern phrase for a house, frequently a

dwelling, tenement, or home, not a factory, and not under the

ownership or control of the person giving out the employment.

Now a factory may obviously be regulated under ordinary police

principles; but when the first great case came up as to regulating

labor in a man's own home, even though it was but one floor of a

tenement, it was decided by the highest court of New York to be

unconstitutional. The case was one concerning the manufacture of

cigars, which by the statute was prohibited in tenement houses on any

floor partly occupied for residence purposes.[1] Nevertheless it may

be questioned whether, with the advancing social feeling in such

matters, legislation would not be now sustained when clearly aimed at

sanitary purposes, even though it interfered with trades conducted in

a man's dwelling house. I hold that it is quite as possible for the

arm of the state to interfere to prevent the baking of bread in

bedrooms, for instance, as it is to seize upon clothing which has been

exposed to scarlet fever. A man's home, under modern theories, is

no more sacred against this police power than is his body against

vaccination; and the last has been decided by the Supreme Court of the

United States.[2]

[Footnote 1: In re Jacobs, 98 N.Y. 98. See the author's "Handbook to

the Labor Law of the U.S.," p. 151.]

[Footnote 2: Massachusetts _v._ Jacobson, 197 U.S. 11.]

At all events, legislation may be aimed against sweat-shops which in

any sense resemble factories--that is, where numbers of persons not

the family of the occupier are engaged in industrial labor; so

in Pennsylvania it has been extended to jurisdiction over shops

maintained in the back yards of tenements; while in most States the

statute applies to any dwelling where any person not a member of

the family is employed, and general legislation against sweat-shops

already exists in the twelve north-eastern industrial States from

Massachusetts to Missouri and Wisconsin, leaving out only Rhode

Island.

The Massachusetts law as at present forbids work upon clothing

except by members of the family in any tenement without license, and

thereupon subjects the premises to the inspection of the police, and

registers of all help must be kept. Whoever offers for sale clothing

made in a tenement not licensed must affix a tag or label two inches

long bearing the words "Tenement Made," with the name of the State and

city or town in which the garment was made. Moreover, any inspector

may report to the State board of health that ready-made clothing

manufactured under unhealthy conditions is being shipped into the

State, which "shall thereupon make such orders as the public safety

may require."[1] In New York the law applies to the manufacture

of many articles besides clothing, such as artificial flowers,

cigarettes, cigars, rubber, paper, confectionery, preserves, etc. A

license may be denied to any tenement house if the records show that

it is liable to any infectious or communicable disease or other

unsanitary conditions. Articles not manufactured in tenements so

licensed may not be sold or exposed for sale, and there is the same

law as in Massachusetts as to goods coming in from outside the State,

and there is the same exemption of apartments occupied by members of

the family, and even then it appears that they are subject to the

visitation of the board of health and must have a permit. The

Pennsylvania law is similar to the New York law, and in addition, all

persons are forbidden to bargain for sweat-shop labor, that is, labor

in any kitchen, living-room, or bedroom in any tenement house except

by the family actually resident therein, who must have a certificate

from the board of health. The Wisconsin law apparently applies to

persons doing the work in their own homes, who must have a license

like anybody else, and the owner of the building is liable for its

unlawful use. The Illinois and Maryland laws are similar to the New

York law, while the Michigan statute resembles that of Wisconsin,

apparently applying to members of the family as well. The Missouri law

forbids the manufacture of clothing, etc., in tenements by more than

three persons not immediate members of the family, while the New

Jersey and Connecticut statutes content themselves with making

such manufacture by persons not members of the family subject to

inspection.

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

It is a curious commentary that the very dream of the social reformers

of only twenty years ago is so rudely dispelled by the march of

events; for in the late nineties it was the hope of the enthusiast,

particularly the student in electrical science, that the factory

system might in time be done away with, and by the use of power served

from long or short distance over wires to a man's own habitation,

all the industries of manufacture might be carried on in a man's own

home--just as used to be the case with the spinners and weavers of

olden time. Far from being a hope, it turns out that this breeds the

very worst conditions of all, and the most difficult to regulate by

law. For modern homes for the most part are not sanitary dwellings in

the country, but single floors or parts of floors in huge tenement

houses in great cities. It is probable to-day, therefore, that there

is a perfect reversal of opinion, and that the social reformer now

dreams of a world where no work is permitted in the home, other than

ordinary domestic avocations, but all is compelled to be done in

factories under the supervision of public authorities--a splendid

example of the dangers of hasty legislation; for had we carried into

law the eager desire of the reformers of only twenty years since, we

should, it appears, have been on a hopelessly wrong track.

It should be noted, however, that the reform of conditions is very

largely arrived at by a different path--that of the _building_ laws

in our cities. No more arbitrary rule exists to-day or was ever in

history than the despotic sway of a board or commission created under

modern police-power ideas. In everything else you have a right to a

hearing, if not an appeal to the common-law courts and a jury; but the

power of a building inspector is that of an Oriental despot. He can

order you summarily to do a thing, or do it himself; or destroy or

condemn your property; and you have no redress, nor compensation, nor

even a lawsuit to recover compensation. Therefore, if the sweat-shop

reformers may not constitutionally regulate the conditions and

business of sweating so far as they would like to go, they can turn

about and directly regulate the actual building of residences where

the trade is carried on. They can require not only so many cubic feet

of air per person in the sweat-shop, but so many cubic feet of air per

person in every bedroom; as Ruskin said, not only, of grouse, so many

brace to the acre, but of men and women--so many brace to the garret.

A California law[1] once made it a criminal offence for any person to

sleep with less than one thousand feet of air in his room for his own

exclusive use! It is indeed a crime to be poor.

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

This legislation to reform sweat-shops is a field which has been

almost entirely cultivated by what I have termed the moral reformers,

with little or no help from organized labor. One's observation is that

organized labor has been mainly concerned with the price of wages, the

length of hours, and with the closed shop; it has devoted very little

of its energies to factory or trade _conditions_, except, indeed, that

it has been very desirous of enforcing the union label, on which it

asserts that union-made goods are always made under sanitary and moral

conditions, and implies that the goods of "scab" manufacturers are not

so.

The usual sweated trades in this country are the manufacture of

clothing, underwear, tobacco, and artificial flowers. There has also

been considerable regulation of laundries and bakeries, but not

because they are what is commonly called sweated trades.

The bulk of factory legislation is too vast for more than mention in a

general way. It fills probably one-fourth in mass of the labor laws

of the whole country, and applies in great and varying detail to the

general condition of factories, workshops, and in most States to large

stores--department stores--using the word in the American sense.

It may be broadly analyzed as legislation for the construction

of factories, for fresh air in factories, for general sanitary

conditions, such as the removal of dust and noxious gases,

white-washing, sanitary appliances, over-crowding, stair-cases,

fire-escapes, and the prohibition of dangerous machinery. As has been

said, it was begun in Massachusetts in the fifth decade of the last

century, based originally almost entirely on the English factory acts,

which were bitterly attacked by the _laissez-faire_ school of the

early nineteenth century, but soon vindicated themselves as legitimate

legislation in England, although not even there--still less in our

States--have we gone so far as the Continental countries.

Closely connected with this may be mentioned that vast domain of

law which is known as employers' liability. Under the old strict

common-law rule, a servant or employee could never recover damages for

any injury caused in whole or in part by his own negligence, by the

negligence of a fellow servant or even by defective machinery, unless

he was able to prove beyond peradventure that this existed known to

the employer and was the sole and direct cause of the accident. As is

matter of common knowledge, the tendency of all modern legislation,

particularly the English and our own, has been to chip one corner

after another off these principles. The fellow-servant rule has been

very generally abolished by statute, or in many States fellow servants

have been defined and divided into classes so that the master is not

relieved of liability when the injury to the servant is caused by

the negligence of a servant not in actual fact his fellow, _i.e._,

employed with him in his own particular work. In like manner the

exemption for contributory negligence has been pared down and the

liability for dangerous or defective appliances increased, practically

to the point that the master becomes the insurer of his machinery in

this particular. The recent English statute goes to the length of

putting the liability on the employer or on an employment fund in all

cases.

The writer is strongly of opinion that this radical reform is, so far

as constitutional, the end to be aimed at. The immense expense and

waste caused by present litigation, the complete uncertainty both

as to liability and as to the amount of damages, the general fraud,

oppression, and deceit that the present system leads to, and finally

its hideous waste and extravagance, are all reasons for doing away

with it entirely. He believes that for the employer's own benefit

if there were a statute with a definite scale of damages, providing

definitely, and as part of the employment contract if necessary,

with a certain small deduction from the wages, that there should be

insurance, that the master should be actually liable on a fixed scale

for all injuries suffered while in his employment not in disobedience

to his orders or solely and grossly negligent, it would be far better

both for employer and employee. To-day it is possible that in many

cases the employee gets no damages or is cheated out of them, or they

are wasted in litigation expense (the Indiana Bar Association reported

this year that only about thirty per cent. of the damages actually

recovered of the employer reaches the party injured); while on the

other hand the master can never know for how much he is going to be

liable, and in the rare cases which get to a jury they are apt to find

an excessive verdict. It is the custom with most gentlemen to pay a

reasonable allowance to any servant injured while in their employ,

unless directly disobedient of orders. There is no practical reason

why this moral obligation should not be embodied in a statute and

extended to everybody. The scale of damages should of course be put so

low as not to encourage persons to expose themselves, still less their

own children, to injury in the hope of getting monetary compensation.

But although in India we are told the natives throw themselves under

the wheels of automobiles, it is not probable that in American

civilization there would be serious abuse of the law in this

particular. Five thousand dollars, for instance, for loss of life or

limb or eye, with a scale going down, as does the German law, to a

mere compensation for time lost and medical attendance in ordinary

injuries, would be sufficient in equity and would surely not encourage

persons voluntarily to maim themselves.

The next great line of legislation concerns the mode of payment of

wages. The _amount_, as has been said, is never regulated; but it has

been customary for nearly a century for the law to require payment

in cash, or at least that it be not compulsorily made in goods or

supplies, or still worse in store orders. This line of legislation is

commonly known as the anti-truck laws and exists in most States, but

has been strenuously opposed in the South and Southwest as interfering

with the liberty of contract, so that in those more conservative

States the courts have very often nullified such legislation. It may

be summarized as follows:

(1) Weekly or time payment laws. These exist in more than half the

States, and are always constitutional as to corporations, but are

possibly unconstitutional in all States except Massachusetts when

applied to private employers.

(2) Cash-payment laws, requiring payments to be made in actual money.

These statutes are commonly combined with those last mentioned and are

subject to the same constitutional objections. As a part of them,

or in connection with them, we will put the ordinary anti-truck

laws--that is, legislation forbidding payment in produce or supplies

or commodities of any kind. Finally, the store-order laws forbidding

payment to be made in orders for indefinite supplies on any particular

store, still less on a store owned or operated by the company or

employer. Such laws have sometimes been held unconstitutional in all

particulars, sometimes when they apply only to certain industries,

as, for instance, mines. In the writer's opinion they are never

constitutional when applied to corporations, nor are they class

legislation when applied to mines, for the reason that it is well

known that mines are situated in remote districts where there are few

stores, and that the maintenance of a company store has not only led

to much cheating but to an actual condition of peonage. That is to

say, the miners would be held in debt and led to believe that they

could not leave the mine or employment until the debt was liquidated.

Belonging usually to the most ignorant class, it is matter of common

knowledge that this has been done, and that Poles, negroes, or others

of the more recent immigrants have been permanently kept in debt to

the company store or by advances or in other ways, as for rent or

board.

(3) Closely allied to such legislation, of course, is the legislation

against factory tenements or dwellings, but there is probably less

real abuse here, and therefore a greater constitutional objection

against laws forbidding houses, especially model houses, to be built

and rented by the employer. Such efforts, unfortunately, have not

usually been popular. Far from helping labor conditions, they seem

to have caused great resentment, as was notably the case in Pullman,

Illinois, and very recently in Ludlow, Massachusetts. It may be that

the American temperament prefers its own house, and resents being

compelled to live in a house, however superior, designed for him and

assigned to him by his employer.

(4) The next matter which has evoked the attention of philanthropists

and the angry resentment of the persons they supposed they were trying

to benefit, is that of the benefit or company insurance or pension

funds. The principle of withholding, or contracting with the employees

to withhold, a small proportion of their wages weekly or monthly to

go into an endowment or benefit fund, even when the company itself

contributes as much or more, was instituted with sanguine hopes some

forty years ago, first in the great Calumet & Hecla Copper Company,

and then in some of the larger railroads; and was on the point of

meeting general acceptance when it evoked the hostility of organized

labor, which secured legislation in Ohio and other States making it

a crime, or at least unlawful, for either side to make a contract

whereby any part of the wages was taken or withheld for such purposes.

The German theory of old-age pensions is based upon this principle;

but it is so unpopular in America that frequently in the South, when

things are done for the workmen, they are hardly permitted to know it;

a pretence, at least, is made that their own contributions are the

entire support of the hospital, library, reading-room, or whatever it

may be, when, in fact, the lion's share is borne by the company. There

is no doubt that the American laborer resents being done good

to, except by himself; and is organized to resent any system of

beneficence to the point of making it actually prohibited by the law.

Much of the legislation described in this chapter is wise, and

probably all of it is wise in intention. Yet, in closing, one cannot

resist calling attention to the unforeseen dangers that always attend

legislation running counter to the broad general basis of Anglo-Saxon

civilization. One need make no fetich of freedom of contract to

believe that laws aimed against it may hit us in unexpected ways. For

one famous example, the cash weekly-payment law in Illinois existed in

1893. In that year there was a great panic. Nobody could obtain any

money; mills and shops were closing down, particularly in Chicago.

Everybody was being thrown out of employment, and distress to the

point of starvation ensued. In the very worst days of that panic

some of the largest and most charitable employers of labor met their

employees in a monster mass meeting, and reported that while they

could not pay in full and nothing apparently was in prospect but an

actual shutdown, they had succeeded in getting enough cash to keep all

their employees, provided they would take weekly half what was owing

to them in money, and the short-time notes or obligations of the

firms, or even of banks, for the remainder. The offer evoked the

greatest enthusiasm, was unanimously accepted by the thousands of

employees, and amid great rejoicing the meeting adjourned;--only to

find by the advice of their counsel next morning that under the laws

of the State of Illinois such a settlement was made a crime, and that

for every workman who received his wages each week only half in cash,

the employer would be liable to a one-hundred-dollar fine, and thirty

days' imprisonment.

The great reform, not of legislation but of condition, in the labor

question, is unquestionably to arrive at a status of _contract_.

Hitherto the principle that seems to have been accepted by organized

labor, at least in America, is that of being organized for purposes

of offence, not for defence; like a mob or rabble which can attack

united, but retreats each for himself; which demands, but cannot give;

which, like a naughty child or person _non compos_, is not responsible

for its own actions. Still there is, as yet, no legislation aimed at

or permitting a definite contract in ordinary industrial employment;

although there are a few laws which provide that when the employee may

not leave without notice, the employer may not discharge him without a

corresponding notice except for cause.

As relating mainly to strikes or concerted action, the question of

arbitration and conciliation laws will be left for the next chapter;

but we may close our discussion of individual legislation by calling

attention to the striking attempt to revive mediaeval principles of

compulsory labor in certain avocations and in certain portions of

this country. The cardinal rule that the contract of labor may not

be compelled to be carried out, that an injunction will not issue to

perform a labor contract, or even in ordinary cases against breaking

it, is, of course, violated by any such legislation; but ingenious

attempts have been made to get around it in the Southern States.

This world-wide problem is really rather a racial problem than an

economic one amongst Anglo-Saxons. The inability of the African and

the Caucasian to live side by side on an equality largely results from

this economic 'question' which, broadly stated, is that the Caucasian

is willing to work beyond his immediate need voluntarily and without

physical compulsion; the African in his natural state is not. The

American Indian had the same prejudice against manual labor; but

rather that, as a gentleman, he thought himself above it; and his

character was such that he always successfully resisted any attempts

at enslavement or even compulsory service. The negro, on the other

hand, is not above such work, but merely is lazy and needs the impulse

of actual hunger or the orders of an overseer. We are, of course,

speaking of the mass of the people, in their natural state, before any

enlightenment gained by contact with more civilized races. The whole

question is discussed on its broadest lines by Mr. Meredith Townsend

in his luminous work, "Asia and Europe." He seems hopelessly to

conclude that there is no possibility of white and black permanently

living together as part of one industrial civilization unless the

latter race is definitely under the orders of the former. Without

assenting to this view it may be admitted that it is one which has

very largely prevailed in the Southern States, and the difficulty

there is, of course, with agricultural labor. So fast as the negro can

be made a peasant proprietor, the question seems to be in a measure

solved; but it is alleged to be almost impossible to get the necessary

labor from negroes when done for others, under contract or otherwise.

There is, therefore, a mass of recent legislation in the Southern

States which we may entitle the _peonage_ laws, which range from the

highly objectionable and unconstitutional statute compelling a person

to carry out his contract of labor under penalty as for a misdemeanor,

to the more ingenious statutes which get at the same result by the

indirect means of declaring a person guilty of breaking a contract

under which he has acquired money or supplies punishable as for fraud.

There are also statutes applying and very greatly extending the old

common-law doctrine of loss of service; making it highly criminal for

a neighbor to incite a servant or employee to break his contract or

even to accept the work of a laborer without ascertaining that he

has not broken such contract, as, for instance, by a certificate of

discharge from his last master. These laws, it will be seen, differ in

no particular from the early labor laws in England, which we carefully

summarized for this purpose; except, indeed, that they do stop short

of the old English legislation which provided that when a laborer

broke his contract or refused to work he could be committed before the

nearest magistrate and summarily punished. Even this result, however,

has been arrived at by the more circuitous and ingenious legislation

of Southern States such as in Georgia, cited in the charge to the

Grand Jury.[1] The principle of this elaborate machinery is always

that money advances, or supplies, or a lease of a farm for a season

or more, or the loan of a mule, having first been made under written

contract to the negro, the breaking of such contract or the omission

to repay such advances, is declared to be in the nature of fraud; the

entering into such contract with intention to break it is declared to

be a misdemeanor, etc., etc. The negro refusing to carry out his labor

contract is then cited before the nearest magistrate, who imposes

under the statute a nominal fine. The negro, being of course unable to

pay this fine, is remanded to the custody of his bondsmen, who pay it

for him, one of them of course being the master. The negro leaves the

court in custody of his employer and carries away the impression with

him that he has escaped jail only by being committed by the court to

his employer to do his employer's work, an impression possibly not too

remote from the fact. It is easy to see how to the African mind the

magistrate may appear like an Oriental cadi, and how he may be led to

carry out his work as submissively as would the Oriental under similar

circumstances.

[Footnote 1: Jaremillo _v._ Parsons, 1 N.M. 190; _in re_ Lewis, 114

Fed. 963; Peonage cases, 123 Fed. 671; United States _v._ McClellan,

127 Fed. 971; United States _v._ Eberhard, 127 Fed. 971; Peonage

cases, 136 Fed. 707; charge to jury, 138 Fed. 686; Robertson _v._

Baldwin, 165 U.S. 275; Clyatt _v._ United States, 197 U.S. 207; Vance

_v._ State, 57 S.E. 889, Bailey _v._ Alabama, 211 U.S. 452; Torrey

_v._ Alabama, 37 So. 332.]

There can be no question, except in the minds of those utterly

unfamiliar with the tropics and Southern conditions generally, of the

difficulty of this labor problem throughout the world. It has appeared

not only in our Southern States but in the West Indies and South

Africa--in any country where colored labor is employed. The writer

knows of at least one large plantation in the South where many hundred

negroes were employed to get in the cotton crops, and the employer

was careful never to deliver their letters until the season had

terminated; for on the merest invitation to attend a ball or a wedding

in some neighboring county, the bulk of the help would leave for

that purpose and might or might not return. Railway labor is not

so difficult, because the workmen commonly work in gangs under an

overseer who usually assumes, if he is not vested with, some physical

authority; but the case of the individual farmer who is trusted upon

his own exertions to till a field or get in the crop seems to be

almost impossible of regulation under a strict English common-law

system. Farming on shares appears to be almost equally unsatisfactory.

The farmer gets his subsistence, but the share of the proprietor in

the crop produced is almost inappreciable.

In closing this chapter reference should be made to a large amount

of American legislation, most of which was absolutely unnecessary as

merely embodying the common law. Still it has its use in extending the

definition of the "unlawful act." It will be remembered that one of

the three branches of conspiracy was the combination to effect a

lawful end by unlawful acts. Now many of the States have statutes

declaring even threats, or intimidation without physical violence, to

be such unlawful act. It may possibly be doubted whether it might not

have been so held at the common law; but such legislation has always

the advantage of getting a uniform line of decisions from all the

judges. The New York statute passed many years ago may serve as a

sample: It provides in substance that any threat or intimidation or

abusive epithets or the hiding of tools or clothes, when done even by

one individual, is an unlawful act; therefore when strikers, although

engaged in a lawful strike, as to raise their own wages, or any one

of them, intend or do any such act, they become guilty of unlawful

conspiracy.

This is probably the only legislation on such matters which adds

anything to the common law. Many of the States, usually Western

States--apt to be more forgetful of the common law than the older

Commonwealths--have been at pains to pass statutes against blacklists.

Such statutes are entirely unnecessary, but as they relate to

combinations they will be considered in the next chapter.

From the official report of the U.S. government, prepared by the

Commission of Labor in 1907, it appears that twenty States and

Territories, including Porto Rico, have provisions against

intimidation, of which the best example is the New York statute quoted

above. Alabama and Colorado have express statutes against picketing,

other than the general statutes against interference with employment.

Nineteen other States, of which, however, only a few--Massachusetts,

Michigan, Oregon, Texas, and Utah--are the same, have provisions

against the coercion of employees in trading or industry, usually to

prevent them from joining unions, but such statutes are also levelled

against the compelling them to buy or trade in any shop, or to rent or

board at any house. Five States have statutes prohibiting the hiring

of armed guards other than the regular police, and especially the

importing such from other States, Massachusetts and Illinois among the

number, though none of the five are so radical as the later statute

of Oklahoma quoted below. Statutes for the enforcement of the labor

contract exist usually only in the South, but we find a beginning of

similar legislation in the North, both Michigan and Minnesota having

statutes making it a misdemeanor to enter into a labor contract

without intent to perform it in cases where advances are made by way

of transportation, supplies, or other benefits. The new anti-tip

statute or law forbidding commissions to any servant or employee is

to be found in Michigan, Wisconsin, and other States (see page 155

above). A few States require any employer to give a discharged

employee a written statement of the reason for his discharge, but such

statutes are probably unconstitutional. Colorado has the extraordinary

statute forbidding employees to be discharged by reason of age.

The common law of loss of service is strengthened generally in the

Southern States by statutes against the enticing of employees. Public

employment offices, as well as State labor bureaus, are now maintained

in nearly all the States.

Examinations and licenses are now required in the several States

of electricians, engineers, horse-shoers, mining foremen, elevator

operators, plumbers, railroad employees, stationary firemen and

engineers, and street railway employees, in addition to the trades

enumerated on page 147.

All the Northeastern States except Maine and Vermont, and Maryland,

Delaware, West Virginia, Alabama, Missouri, Tennessee, Wisconsin,

Michigan, Illinois, Indiana, South Dakota, and Washington have general

factory acts, and all the mining States have elaborate statutes for

the safety of mines.

New York and Wisconsin have statutes forbidding or making illegal

labor unions which exclude their members from serving in the militia.

Connecticut and Massachusetts have laws to facilitate profit-sharing

by corporations. Such statutes would seem hardly necessary, as profits

may be shared or stock distributed or sold without a law to that

effect; if it be regarded as part of the reward of wages, no

injunction would be granted to protesting stockholders. Fifteen States

and Territories, including Porto Rico, have laws for the protection

of employees as members of labor unions, and five as members of the

national guard or militia, similar to the New York statute just

mentioned. Nearly all the States have laws for the protection of

employees as voters, as by requiring half holidays or reasonable time

to vote, or that their pay should not be given them in envelopes upon

which is printed any request to vote or other political material.

Nearly all the States require seats for female employees, and New

Jersey requires seats for horse-car drivers. Five States have general

provisions regulating the employment of women; ten forbid their

employment in bar-rooms (see page 226 above); three regulate their

hours of labor to an inequality with men; and most of the States

forbid females to be employed in mines or underground generally, or,

as we have noted above, in night labor. California, Illinois,

and Washington provide that sex shall be no disqualification for

employment. Four States, among them Illinois, require employers

seeking labor by advertisement to mention (if such be the case) that

there is a strike in their establishment; twelve States (see

above, page 231) have so far tackled the sweat-shop problem, while

practically every State in the Union makes wages a preferred claim in

cases of death or insolvency of the employer.

There is, however, one matter we have reserved for the last, because

it is one of the two or three points about which the immediate contest

before us is to rage. That is the case of individual discharge. It is

elementary that just as an employee may leave with cause or without

cause, so an employer may discharge without cause or with cause, nor

is he bound to state his reasons, and certain statutes requiring him

to do so with the object of avoiding a blacklist have been declared

unconstitutional in Southern States. But organized labor is naturally

very desirous of resenting the discharge of anybody for no other

reason than that of being a union man. In fact it is not too much to

say that this, with the legalization of the boycott, are the two great

demands the unions are now making upon society. Therefore, statutes

have been passed in many States making it unlawful for the employer to

make it a condition of employment that the employee should not be a

member of a union; or to discharge a person for the reason that he

is a member of a union. And closely connected with this is the

combination of union employees to force an employer to discharge a man

because he is not a member of a union. This last will come logically

under the next chapter covering combinations and is not yet the

subject of any statute. Now the difficulty of these statutes, about

the discharge of union labor, is that it is almost impossible to go

into the motive; a man is discharged "for the good of the service."

It is easy, of course, to provide that there should be no written

or definite contract on the matter; but it is not easy to punish or

prohibit the discharge itself without such contract. Such legislation

has, however, been universally held unconstitutional, so that at

present this must be the final word on the subject. The right of the

employer to employ whom he likes and to discharge whom he likes and

make a preference, if he choose, either for union or non-union labor,

is one which cannot be taken away from him by legislation, according

to decisions of the Supreme Courts of Missouri, New York, and the

United States. Therefore, as the matter at present stands, the

constitutions, State and Federal, must be amended if that cardinal

right of trade and labor is to be interfered with.

In closing it may be wise to run over the actual labor laws passed in

the States during the last twenty years, mentioning the more important

lines of legislation so as to show the general tendency.

Beginning in 1890 we find most of the statutes concern the

counterfeiting of union labels, arbitration laws, hours of labor in

State employments, weekly payment laws, the preference of debts for

labor in cases of insolvency, the prohibition of railroad relief

funds, the hours of women and children in factories, seats for women

in shops, the restriction of prison labor, dangerous machinery

in factories, protection in mines, and the incorporation of

trades-unions. Mechanics' lien laws are passed in large quantities

every year and are the subject of endless amendment. We will,

therefore, leave this out for the rest of our discussion as after all

affecting only the owners of real estate.

In 1891 we find more laws regulating or limiting the hours of labor

of women and children, prohibiting it entirely in mines; several

anti-truck laws; two laws against the screening of coal before the

miner is paid, and in Massachusetts, laws against imposing fines

for imperfect weaving and deducting the fine from the wages paid.

Pennsylvania thinks it necessary to enact by statute that a strike

is lawful when the wages are insufficient or it is contrary to union

rules to work, which latter part is clearly unconstitutional. There is

one statute against boycotting and three against blacklisting.

In 1892 there are more laws limiting the hours of labor of women and

children to fifty-eight, or in New Jersey, fifty-five, hours a week;

laws against weavers' fines, and restricting the continuous hours of

railway men. The sweat-shop acts first appear in this year, and the

statutes forbidding the discharge of men for belonging to a union or

making a condition of their employment that they do not belong to one.

In 1893 the laws establishing State bureaus of labor become numerous.

Four more States adopt sweat-shop laws, and there is further

regulation of child labor. Six States adopt statutes against

blacklisting.

In 1894, being the year after the panic, labor legislation is largely

arrested. New York adopts the statute, afterward held constitutional,

requiring that only citizens of the United States should be employed

on public works, and statutes begin to appear to provide for the

unemployed. There is legislation also against intimidation by unions,

against blacklisting, and against convict-made goods.

In 1895 there is still less legislation; only a statute for State

arbitration, against payment of wages in store orders, against

discrimination against unions, and for factory legislation may be

noted.

In 1896 there are a few statutes for State arbitration and weekly

payment, for regulating the doctrine of fellow servants, and some

legislation concerning factories and sweat-shops.

In 1897 California provides a minimum wage of two dollars on public

contracts, and Kansas adopts the first statute against what are termed

indirect contempts; that is, requiring trial by jury for contempts not

committed in the presence of the court. There is a little legislation

against blacklisting, and Southern States forbid the farming out of

convict labor.

In 1898 Virginia copies the Kansas statute against indirect contempts,

and one or two States require convict-made goods manufactured outside

the State to be so labelled, which statutes have since been held

unconstitutional as an interference with interstate commerce.

In 1899 the question of discrimination against union labor becomes

still more prominent and it is in some States made a misdemeanor

to make the belonging or not belonging to a union a condition of

employment. All these statutes have since been held unconstitutional.

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

legislation.

In 1901 we only find laws establishing free employment bureaus, except

that California provides a maximum time for women and children of nine

hours a day in both manufacturing and mercantile occupations, and a

minimum wage upon all public work of twenty cents an hour.

In 1902 Colorado overrules her Supreme Court by getting by

constitutional amendment an eight-hour day in mines. Massachusetts

passes a joint resolution of the Legislature asking for a Federal

constitutional amendment which shall permit Congress to fix uniform

hours of labor throughout the United States, and Kentucky and other

Southern States begin to legislate to control the hours of labor of

women and children.

In 1903 this movement continues and in the Northwestern States, Oregon

and Colorado, the length of hours of labor of women of all ages is

generally limited. Weekly payments and anti-truck laws are adopted.

Montana forbids company boarding-houses and Colorado makes the

striking attempt to do away with the so-called dead line; that is to

say, a statute forbidding any person to be discharged by reason of

age, between the years of eighteen and sixty. California follows

Maryland in abolishing the conspiracy law, both as applied to

employers and employees.[1] It does not seem that in either State this

statute has yet been tested as class legislation. Legislation against

the open shop continues in far Western States, while Minnesota makes

it a misdemeanor for an employer to exact as a condition of employment

that the employee shall not take part in a strike.

[Footnote 1: See the next chapter.]

In 1904 there is little legislation. Far Western States go on with the

protection of child labor, particularly in mines, and Alabama adopts a

general statute against picketing, boycotting, and blacklisting.

In 1905 we first find legislation against peonage or compulsory labor

in the Southern States, North Carolina and Alabama. The celebrated

constitutional amendment of New York is enacted, which gives the

Legislature full power to regulate wages, hours, and conditions in

public labor. (See above, p. 161.) Further regulation of factories

and mines goes on, with State employment agencies and reform of the

employers' liability laws. Colorado and Utah prohibit boycotts and

blacklisting, and in one or two States corporations are required

to give every person discharged a letter stating the reason of his

discharge, which statute was since held unconstitutional in Georgia.

In 1906 the usual sanitary legislation goes on. Massachusetts adopts

an eight-hour law for public work. Arkansas and Louisiana attempt