CHAPTER XIV

OF POLITICAL RIGHTS

Most important of these are the right to assemble, and the right of

free election. The right of political assembly and petition is another

principle which has been much broadened by American constitutions. In

England the right of public meeting undoubtedly existed from early

times, but it was tied to the right of petitioning Parliament, which

obviously limited its scope; and always strongly contested by the

kings. Many riot acts were passed, both by the Tudors and by the

Stuarts, which sought to limit and restrict it, and even to make any

meeting of more than twelve men a riotous and criminal assembly.

Indeed, the history of the attempt of the authorities to prevent

riotous assemblies quasi-political runs all the way from Jack Cade's

Rebellion in 1452 to the Philadelphia street railway strike in 1910.

By an Act of 1549 unlawful assemblies of twelve "to alter laws or

abate prices" were made unlawful--one of the reasons that gave rise to

the English notion that a simple strike was criminal. This, however,

has nothing to do with the political right of assembly which, fully

recognized by the Massachusetts Body of Liberties in 1641, was not

definitely established in England until the Bill of Rights of 1689.

Now this principle is cardinal, and so far as I know none of the

States have legislated upon the subject, unless the limitation of

the injunction writ be such legislation. A statute of Henry VII gave

special authority to the Court of Star Chamber over riots; which is

precisely the power now objected to by labor leaders when exercised by

courts of chancery. But it must be noted that this right of assembly

only extends to matters political, and does not cover a meeting held

for an end ordinarily unlawful, such as to bring about a riot or to

work oppression to others or an injury to the public.

The right of election, however, is much older in England. We find

statutes concerning the right of free election, that is, of allowing

electors to vote without interference or control, as early as 1275. It

is for this reason that almost from the origin of the House of Commons

it has been unlawful, or at least uncustomary, for peers of the realm

to even speak pending elections to the House of Commons. That House

also vindicated its right to judge of elections against Elizabeth, and

the principle that it alone shall be the judge remains in full force

in the United States, though in modern times in England given to the

courts. There is no constitutional principle in England as to the

right of suffrage, which in early times was shared in by all free men,

or at least landholders. It was in 1429 limited to the forty shillings

freeholders, which law has been relaxed by degrees ever since.

Our early constitutions recognized both property and educational

limitations; these were all done away with at one time, except in

Massachusetts and Rhode Island, the former retaining an educational,

the latter a property, qualification. They have now been abolished in

those States, but taken up in the South, for the purpose, of course,

of disfranchising the negro vote.

The serious modern instance of interference with free election is that

of the Federal government with State elections in the South during

the thirty years following the war. While such interference was never

quite held unconstitutional, it was strongly felt to be so; and has

therefore disappeared from practical politics. The principle of free

election, therefore, remains again unquestioned, and is, indeed,

strengthened by considerable legislation aimed at the influencing

of votes by employers, etc. Many States, for instance, require that

Election Day shall be a holiday, or, at least, that all employers of

labor shall give part of the day, one or two hours at least, for the

employees to vote; and a number of States have statutes aimed at

the coercion of their vote by any promise of giving or withholding

employment, or otherwise, and the giving their pay to them in

envelopes upon which any political matter is printed. Bribery is

nearly always made criminal and cause of permanent disfranchisement

and disability to hold office, both to the person giving or receiving

the bribe, but there is more interesting legislation still aimed at

any form of political corruption. Massachusetts led the way with a

statute which endeavors to make criminal any promise of employment or

advantage, or even for a corporation, at least, to employ any person

at the recommendation of any member of the legislature. It is very

difficult to draw such laws to make them apply fairly, but they have

been copied with even greater elaboration in many Southern States. The

statute of Alabama, for instance, covers nearly a page in describing

the various acts or promises which are thus forbidden to officers or

candidates for office.

Then there is the long range of lobby acts aimed at the very serious

abuse of lobbying. Massachusetts divides the offence, or rather the

business, into two general classes: First, the legislative counsel who

appears before legislative committees in support or in opposition of

measures. This practice, of course, is perfectly legitimate in many

cases, but the law provides that his advocacy must be open, he must

disclose the client for whom he appears, if there be one, and at the

end of his services file a statement of the counsel fees actually

received. Such legislation, however, is easily evaded by the payment

of an annual salary. Then there is the legislative agent or lobbyist,

properly so called, who does not openly appear before legislative

committees, but waylays members of the legislature at their dwelling

or meeting places, or elsewhere. He must also register as legislative

agent by the Massachusetts law, and file an actual account of his

receipts and expenses. Such legislation properly observed would,

of course, have made impossible the celebrated "House of Mirth"

at Albany. Then there are many statutes against intimidation in

elections, particularly in the South; and there were many acts of

Congress passed under the Fourteenth Amendment, but these have

practically all been held unconstitutional.

The form of the ballot is another matter that has been the subject of

much legislation. Our States vary, as does still public opinion in

England, between the extreme of providing by the Constitution itself

for the secrecy of the ballot, and the other extreme of requiring that

all voting should be _viva voce_, as was formerly the case at least

in Kentucky. Public opinion has universally settled in favor of the

former; and to protect the voter's freedom, the so-called Australian

ballot has very generally been adopted, the principle, of course,

being a ballot on which all candidates' names are printed, with or

without party designations, and against which the voter makes his

mark. In their practical working, however, these laws depend on the

simplicity of the form; thus, it works very well in Massachusetts,

where the form is simple and the ballot short, and very badly in New

York, where the contrary is the case. Opinion is pretty well united

on the advisability of the Australian ballot, the only remaining

difference being as to whether any party designations should be

printed. Most practical politicians desire that the name "Republican"

or "Democrat," or even that some party symbol like a star or flag,

should be affixed, which can be understood by the most illiterate

voter; also, that the voter should be allowed to make one cross

opposite the word "Republican" or "Democrat" when he means to vote the

whole of the ticket, "in order to give each candidate the benefit of

the full party strength." On the other side it is argued that all

voting should be intelligent and never blind, and that if the voter

does not take the trouble to mark all the names on the ballot it

sufficiently indicates that he is indifferent as to some of the

candidates even of his own party, and that his votes for them should,

therefore, not be counted.

The most significant of modern developments in legislation concerning

voting is the new practice of recognizing by law political parties,

and of regulating by law the mode of their nominations. The old idea

was that the law took no notice of anything that happened until

election day, when it did regulate the mode of voting and counting

the votes; the law was supposed to be blind to political parties; the

persons elected were merely the successful candidates. But first

began the tendency to recognize parties in "bi-partisan" boards and

commissions; it became very usual to provide that State officials

should, when the office was held, or the function performed, by more

than one person, be elected or appointed from different parties. This,

of course, works very well when there are but two parties, as indeed

is usually the case. And now of late years the practice has grown up

of regulating political matters _before_ the election day. Direct

primaries, caucuses regulated by law, the mode of nomination,

nomination papers to be filed in a certain manner, the compulsory

service of men as candidates unless they comply with precise

formalities of resignation, the joint caucus and the separate caucus,

the public nomination paper, the one-per-cent., three-per-cent. or

five-per-cent. rule whereby a party gains such official recognition

only by throwing such a percentage of votes at some previous

election--in short, all the mass of legislation of this kind is the

matter of the last few years. In the writer's opinion, with the

possible exception of the public nomination paper, it is all mistaken.

Aimed at destroying the machine, it really intrenches the machine--the

professional politician--in power. The general public will not, and

should not be compelled to do more work than is necessary. If they

actually vote at election it is all that can fairly be asked of them

and more than one-third of them do. They will not, and cannot, devote

their time to politics all through the year. The result is that all

such elaborate schemes simply throw the game into the hands of the

"town committee" or other permanent professional body. If you have to

hold a meeting in June, and give notice of a caucus in July, with

as much formality as used to be required in publishing the bans of

marriage, and then on a certain day in August do something else, and

in September something still more, and file with the Secretary of

State nomination papers in October, and have everything complete ten

days before election day,--the ordinary citizens who usually awake to

the fact that there is an election about that time find it too late to

have any voice in the nomination. They go to the election itself to

find an official ballot with two machine candidates for each office,

and no hope of electing, even were it possible to nominate, a third.

In the old days, when they discovered that an improper candidate

had been nominated, on the very eve of election they could arouse

themselves and defeat him; under all these complicated systems it is

too late. One necessity for such legislation, however, arises from the

Australian ballot itself; when that ballot carries party designations,

who is to determine who is the official party candidate? This problem

is not, however, insoluble. Indeed, it might be argued that it would

be an excellent test to require the various so-called party nominees

to run together, leaving to the voter to determine who was the regular

one. Certainly the legalizing of conventions, caucuses, and other

nominating machinery, has led to great scandals. Under such laws,

whoever first gets possession of the hall at the time named would seem

to be the regular candidate. We have, therefore, in Massachusetts,

seen the scandal of two groups of men making different nominations in

a loud voice at the same time, one at the front of the hall, and the

other at the back, and the courts had to decide who was the regular

nominee. In the opinion of most lawyers, they decided in favor of

those who ought to have been the nominees rather than of those who in

fact were.

In the opinion of many "practical politicians," as well as others,

the whole mass of legislation that recognizes political parties and

applies to anything happening up to the date of election, should be

expunged from the statutes. I would hardly make an exception even

of the "bi-partisan" board. A board should be composed of the best

persons, not necessarily party-colored; if there be any force in the

argument for bi-partisan commissions, it should apply ten times as

much to the judges, but there is no provision in any State of the

Union or in the National government for bi-partisan courts of law.

Massachusetts, alone, so far as the writer is informed, of all the

States, by a certain tradition respects this principle. Very few

Massachusetts governors replace a Democratic judge by a Republican, or

_vice versa_.

But most significant of all political matters is the growing distrust

of legislatures. Curiously enough, although there was a great distrust

of the executive of the nation until within a very few years, that

seems to have entirely passed away. Governors of States have too

little power to inspire distrust in anybody. But that legislatures or

representatives of the people should fail to inspire their confidence

is one of the most curious developments of modern politics. The matter

has been fully discussed elsewhere in this book. It is greatly to be

lamented, for it tends to lower the character of the legislatures

themselves. The days are indeed far off when a man would prefer being

governor of a State to president, ambassador, or judge of the Supreme

Court; or the State Senate to the national Congress. Part of this

indifference is, of course, explicable; for with the perfection of our

civilization and the growing intelligence that most statutes have

been enacted that are really needful, there is really less for the

legislatures to do. Then, also, the growing practice of giving a large

share of governmental, or even legislative, powers to boards and

commissions has narrowed the scope of legislation. Whatever be

the reason the fact is certain. Very few States now allow their

legislatures to sit _ad libitum_, and only six or seven States permit

annual sessions. In nearly all States sessions are biennial, if

not, as in some Southern States, quadrennial. That is to say, the

legislature is only allowed to meet once in four years; and in more

than half the States the time of the session is limited to ninety,

sixty, or even thirty days, or the pay of the legislators cut off at

the end of such period.

A few States have laws aimed at corrupt elections, that is to say,

limiting the expenditure of candidates and requiring publicity. Most

States now forbid contributions by corporations, as does the Federal

government.[1] Thus, by the California law of 1893, expenditures are

limited to one hundred dollars for each candidate, or one thousand

dollars by a committee, and in no case exceeding five per cent. of the

salary of the office for which the person is a candidate for one year,

and the legitimate expenses are specified; that is to say, public

meetings, printing, postage, and head-quarters expenses. Probably

no one regrets the prevalence of extravagant expenditures more than

persons who are themselves in public life. If the bosses of many State

machines were consulted in private, they would agree that the only

really legitimate expenditures are the hiring of halls, and the

mailing of at most one printed circular to every voter in the

district. The Missouri law of the same year fixes a limit of

expenditure of one dollar per hundred of votes thrown at the last

election for the office for which the person is a candidate, which,

in an ordinary congressional district of say fifteen thousand voters,

would be one hundred and fifty dollars--certainly little enough.

Voters very generally have to be registered.

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

As is familiar to the reader, there has been a decided movement for

the direct election by the people of United States senators, a large

majority of the States, and the Democratic party in all States, having

in the last few years expressed themselves in favor of a change in

that particular. Until within a few years it was thought only possible

by Constitutional amendment, but the example of Oregon and other

States has shown that it may be done by means of a law providing for

the expression of the preference of the voters, and this may even be

made a party ballot. That is to say, voters at party caucuses, or

even at elections where the ballots are so marked, may express their

preference for this or that candidate for the United States Senate,

and the moral obligation will then be on the State legislature, or

at least on its members of the corresponding party, to vote for the

candidate so nominated. This has been universally done in the case

of election of the United States President by the force of public

opinion; no instance is on record of an elector having voted

differently, or of a bribe or even of an attempt to bribe. But with

legislation--statute law not being so strong as the unwritten law,

contrary to the popular opinion--it is by no means certain that this

result will happen. The law has worked in Oregon, where first adopted,

with the striking result that a Republican legislature elected a

Democratic United States senator; but if the writer is correctly

informed, the contrary has been the case in Illinois. The movement for

the direct nomination of members of the lower house of Congress

also exists in many States. "Direct nomination" of course means a

nomination by the mass of voters, either in assembly or by a written

list. The value of this reform is probably exaggerated. Direct

nominations in the city of Boston recently had the somewhat amusing

result that there were two or three times as many names on the

nominating petitions as voted in the election, and that one gentleman,

indeed, fell short of his nominating petition by nearly ninety per

cent.

The mode of legislation is not much changed from the early days.

Usually bills have in theory to be read three times and must be voted

for by a majority of a quorum. Many States forbid new legislation to

be attempted after the first few days of the session. There has in the

last few years been an effort at the proper drafting of bills, but it

has hardly made much progress as yet, and will be discussed in our

final chapter.

The two most radical changes of all are, of course, the initiative and

referendum, and women's suffrage. The latter has, on the whole, made

no progress since it was adopted in Colorado and three other States,

about the year 1890. The people of the States where it exists appear

satisfied and it is probable that they will never make the change

back; on the other hand, the better opinion seems to be that the

existence of women's suffrage has not materially altered conditions or

results in any particular, except, possibly, that there is a little

less disorder around the polling booths on election day. The largest

city in the world where women vote is Denver; and in hardly any

American town has the "social evil" been more openly prevalent or

politics more corrupt; while it has just voted _against_ prohibition.

As in the case of school suffrage, it is probable that a smaller

proportion of women are now exercising the right of suffrage than when

the thing was a novelty. In all the neighboring States to the four

women's suffrage States (Colorado, Wyoming, Idaho, and Utah) a women's

suffrage amendment has been proposed to the Constitution, all the male

voters have been given a chance to vote on the question, and in every

instance it has been defeated by very large majorities. As has been

intimated, the movement to extend the right of suffrage to women

for all matters connected with schools and education has also been

arrested. Many States had adopted this principle before the year 1895,

but few, if any, during the past fifteen years. The experience of

Massachusetts, where sentiment was strongly for it, shows that the

women take very little interest in the matter; an infinitesimal

percentage of the total female population voting upon election day,

even when a prominent woman was the leading candidate for the school

committee.

Women's suffrage was adopted in Colorado in 1805, and rejected in

Kansas the same year; adopted in Idaho in 1890, and rejected in

California; rejected in Washington and South Dakota in 1898; rejected

in Oregon in 1900, in both Washington and Oregon, once at least since,

and has been rejected by popular referendum in several other States.

There is, however, an intelligent tendency, notably in the South, to

recognize the right of women to vote as property owners upon matters

involving the levying of taxes, or the "bonding" of cities, towns, or

counties, for public improvements or other purposes. Such laws exist

in Texas, Louisiana, Michigan, and possibly other States, and in

Louisiana the statute provides machinery by which women may on such

matters vote by mail. It is much to be wished that municipal affairs

and municipal elections could be separated entirely from political

ones. That is to say, that a city or town might be run as a business

corporation on its business side, and in such elections have the

property owners, both men and women, only vote. The trouble, of

course, is that there are certain matters, notably the expenditure for

schools, which is the largest, at least in Massachusetts cities

and towns, which are in a sense both municipal and political, both

economic and affecting individual rights of persons not property

owners. In any case, the matter must be considered outside of the

sphere of "practical politics." It is hardly likely that, except for

some special matter like the race question in the South, a State

constitution will ever be amended in a conservative direction. Allied

with this would be a proposition to deprive persons in receipt of

wages or salary from a city of the vote at municipal elections.

Laborers and employees in the employ of a large city like Boston

already form a very considerable percentage of the voters, and if you

add to them the employees on the public-service corporations, partly

under municipal control, you have probably got nearly one-third of

the total vote. Yet the vote could not be taken from them without an

amendment to the State constitution.

Of the initiative and referendum much has been written. It exists in

full force, that is to say, as applying both to State elections and to

county, city, or town elections, in several States, mostly in the far

West; and for partial purposes it exists in several more. "Direct

legislation" has been very popular as a political slogan during the

past few years, but it has not been adopted as yet in any of the

thirteen original States. The objections to it are fundamentally that

it destroys the principle of representative government; that it takes

responsibility from the legislature with the result, probably, of

getting a more and more inferior type of man as State representative;

that it is unnecessary, inasmuch as any one may have any bill

introduced in the legislature to-day, and public sentiment be

effectual to prevent the bill from being defeated; and finally, the

objection of inconvenience, that it is cumbrous and unmanageable to

work. Already the Secretary of State of Oregon complains that the laws

passed by initiative are so badly written as to be unintelligible

and conflicting, to say nothing of bad spelling and grammar. In one

instance, at least, an important statute, that for the initiative and

referendum itself, adopted by initiative, failed of effect because

it contained no clause beginning "Be it enacted," etc. Possibly with

practice these objections might disappear. The more valuable part of

the reform is undoubtedly the referendum. The initiative is hardly

necessary, except by way of giving a referendum on measures which

otherwise would not emerge from the legislature; and there is a

growing inclination to give a referendum on all laws or measures

involving a grant of a franchise or of a right or privilege at the

expense of the general public, or the town or city concerned. This

is a very distinct tendency, and throughout the Union the States are

rapidly passing laws that where a State-wide franchise is given, an

exemption from taxes, a rate-making power, or other privilege, it

shall be submitted to all the voters, and corresponding measures,

street-railway franchises, gas, light, water, or other public-service

corporations, acting only in definite localities, cities or towns,

shall be referred in the appropriate locality.

The method of the State-wide initiative or referendum varies little in

the different States; usually, upon petition of from five to eight per

cent. of the voters, or in cities and towns usually fifteen per cent.,

legislation may be initiated. It may then be either passed by the

State legislature like an ordinary law, or be given to the referendum

of the people, or both, and takes effect when adopted by a majority of

the voters at a general or special election. Constitutional amendments

may in some States be originated and adopted in the same manner. So

far as one can judge, the referendum in this country shows the same

tendency that it has shown in Switzerland. Although a larger number

of measures are doubtless submitted to the people, and especially

measures of a class not to go through the ordinary legislature, when

controlled by important interests, yet the vote itself at the final

election is apt to be somewhat conservative. The referendums upon

women's suffrage, for instance, while the initiative was adopted by a

large majority, were very decisively defeated at the polls, and it is

said that last year's election in Oregon and Washington, with very

numerous and complex referendum measures, showed a surprising degree

of intelligence on the part of the ordinary voter. Nevertheless, while

it may be possible to submit to him one or two measures a year, if it

were to come to the submission of all legislation (and the States will

average from five hundred to one thousand statutes per year, at their

present output) it seems incredible that the voter should have time

and intelligence, or even take the trouble, to mark his ballot

accordingly; while it is obvious that the ballot itself, setting forth

the full law, would be considerably larger than the annual volumes of

statutes now are. This matter of practical convenience, however, may

perhaps be expected to cure itself. I should conclude, therefore, that

while the whole matter is an interesting experiment, the initiative

is hardly necessary, and the referendum should be limited to

constitutional amendments (where it was always allowed) and to matters

of definite local or public interest, like the granting of a franchise

or an irrepealable contract of privilege.

The modern practice of putting everything into the State constitution

which we have called attention to in other places, has led, of course,

to a practical referendum on all most important matters, for no

constitution, with the exception of that of Virginia, has ever been

adopted in any of our States except by the people at an election; and

with the tendency to require the submission of a new constitution

every twenty years, and to make the constitution itself so compendious

as to cover a vast amount of matter, usually subjects of legislation,

with the consequent necessity of frequent amendment, we have now

in our Southern States and some of the Western States a practical

referendum to the people of most important legislative matters every

few years.

The initiative and referendum was adopted in Iowa in 1891. As to bonds

and debts of cities, etc., in Ohio in 1902. In Oregon, the general

initiative and referendum by constitutional amendment in 1903. As

to franchises for public utilities only, in Wisconsin, Montana, and

Arizona the same year. As to Chicago, Illinois, in 1904, and in

several States, what we will term the local or limited referendum,

in the last four or five years. It was, however, defeated in

Massachusetts, although adopted in Maine; and in Delaware the whole

question was submitted to a commission to investigate.

The recall, a still more recent device than the initiative and

referendum, has, indeed, no precedent in the past, or in other

countries. In substance, it makes the tenure of office of an elective

official dependent on the continuous good-will of the voters, or of

a certain proportion of the voters. Under the present charter of the

city of Boston, the mayor may be "recalled" upon petition of fifty per

cent. of the registered voters--a proportion which practically makes

the recall impossible. Where, however, the initiative of the recall

depends on a small proportion and the result is determined by a simple

majority vote at the polls, it is easy to see that the mayor or other

official would be in continuous apprehension, if he cared for his

office, and in any event would not be able to adopt and follow out any

continuous policy. The terms of most of our officials are brief. A

proposal to apply the "recall" to judges would, in the opinion of the

writer, be wicked, if not unconstitutional; as to all other officials,

it would tend to destroy their efficiency, and in most cases be in

itself ridiculous, at least as to short-term officers holding for only

one or two years.

One of the most noteworthy of political changes that have occurred in

the republic since the adoption of the Constitution in 1789, is that

affecting the election and tenure of office of judges. Smith, in his

book on American State Constitutions, published shortly after the

Revolution, tells us that at that time every State in the Union had

its judges appointed by the executive for a life term. To-day, this

principle survives only in the Federal courts and four States,

New Hampshire, Massachusetts, Maine, and Delaware, although in

Connecticut, New Jersey, and Mississippi, the judges of the highest,

or Supreme Court, are still appointed in this manner and for life. In

Vermont, Rhode Island, Virginia, and South Carolina, Supreme Court

judges are elected by the two houses of the legislature in joint

convention, but in all other States, that is, universally in the West

and Southwest, the judges are elected by the people of the States or

of their respective districts. New York and Pennsylvania, however,

have very long terms, which by some is said to combine the advantages

of both systems; in other States the term is from four to six years.

In matters judicial the field is far too vast to permit more than

briefest mention of the most important lines of popular legislation.

In the first place, common law and chancery jurisdiction are very

generally fused and confounded. A few States still have chancellors

entirely distinct from the common-law judges, and Massachusetts and

a few other States still keep chancery terms and chancery procedure

distinct from the common law. It is certainly a curious result that

the historic jealousy of chancery and all its works should have ended,

in the most radical States of the Union, in their complete adoption of

the whole system of chancery with all its concomitants. As a result,

the injunction writ, originally the high prerogative of the crown and

its highest officers, has now become the weapon of all judges, even

in some States of inferior magistrates, and has been used with a

confusion and recklessness that have gone far to justify the complaint

of labor interests.

On the other hand, we have grown less jealous of preserving our

common-law jury rights. Not only is much more provision made for the

waiver of jury trial in all States, at least in criminal cases,

and for a trial by the court without a jury unless it be specially

claimed, but there is a distinct tendency to have juries less

than twelve in number, and verdicts not unanimous, but made up of

three-fourths, two-thirds, or even a simple majority; while our

indifference to common-law rights shown in our multiplication of

boards and commissioners has already been commented on.

Legislation on the law of evidence has been on two main lines,

originally, of course, under the Federal Constitution, to destroy all

religious tests, and permit an atheist or person of heathen religion

to testify upon simple affirmation, or according to his religious

tenets. Universally, persons charged with crime have been permitted

to testify in their own defence, with the common provision that no

inference shall be drawn from their not doing so. Of course, by

our Constitution itself, they were given the right to counsel and

compulsory process for obtaining evidence on their own behalf, neither

of which rights existed under the old common law; and then almost

universally the wife is permitted to testify against the husband or in

his behalf, especially in cases involving controversy between them;

while, as she is very generally given the right to make contracts even

with the husband, she is naturally given the right to enforce the same

in civil courts as well.

It is in procedure that our legislation is least efficient. Having

little knowledge of the subject, legislatures have been shy of

meddling with court rules and processes; while the very fact that the

legislatures have taken unto themselves the right so to interfere,

has seemed to impress both bench and bar with a certain sense of

irresponsibility. I fear we must admit that the judges of England,

aided by its bar, have been far more solicitous of speedy and simple

procedure and trial than have the courts of this country. Some Western

States have crudely tried to meet the difficulty, as by providing that

all judges must render an opinion within sixty days, or other brief

period, after a case is argued before them, or even by limiting the

number of witnesses to be called! But it may be feared that so long

as public sentiment rather demands every possibility of evasion of

execution than that a guilty person should be promptly and summarily

punished, little can be hoped for from the legislatures. Such progress

as has been made in this direction has universally been under the

urgent instance of the lawyers themselves, acting through the State

or Federal bar associations. But the judges themselves must venture a

stricter control of irrelevant testimony.

XV

OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

Legislation concerning freedom of speech and its limitations, the

law of slander and libel, hardly exists in America, except only

the efforts of newspapers to be free of the consequences of libels

published by them, provided they publish a retractation; and the

efforts of the people to protect their reputation and right to

privacy, as by laws like that of the State of Pennsylvania prohibiting

ridiculous or defamatory cartoons, even of persons in public life; and

the legislation already attempted in some States to prohibit the use

of a person's likeness for advertising purposes, or to protect them

from the kodak fiend, or even to establish a general right to privacy

as to their doings, engagements, social entertainments, etc., when

they are of no legitimate interest to the public. Legislation in these

directions has, however, only made a beginning.

The newspaper-libel laws usually provide that the retractation shall

be a defence to a libel suit, at least if published in as large a type

and in as conspicuous a manner as the original article complained of;

sometimes they only provide that in such cases the newspaper shall be

relieved of all but actual damages. The wisdom of such legislation is

questionable, as the old adage runs: "A lie will travel around the

world while the truth is putting on its boots"; moreover, it is

questionable whether they are not class legislation in extending to a

certain form of business or a certain trade a protection which is not

extended to others. There has been much legislation preventing

the advertising of patent medicines, immoral remedies, divorce

advertisement, and such matters. Some newspapers have objected to it,

but the right of freedom of the press does not include the right to

the use of the mails, and the papers containing the objectionable

advertisements may constitutionally be seized or denied delivery,

just as convict-made goods may be denied circulation in interstate

commerce, by act of Congress, not, of course, of the States. Mr.

Gompers, of the American Federation of Labor, has complained that the

injunction of their so-called "unfair list" is an interference with

the freedom of the press, and I presume would claim that an injunction

against urging, or combining to urge, by oral argument, the members of

the various unions throughout the country to boycott a certain person,

would be an interference with the right of freedom of speech, and that

therefore if the courts did not so decide, the laws should be changed

by statute. This, also, would seem open to the objection of class

legislation if extended only to speech or publication in industrial

disputes. It should be noted, however, that the broad principle of

freedom of speech by all persons and at all places is first adopted

in the American constitutions, freedom of speech in England in its

historical principles extending only to freedom of speech in the House

of Parliament, and the right of assembly and petition at a public

meeting; freedom of the press, however, is the same constitutional

principle in both countries, but only extends to the right to publish

without previously obtaining the consent of any censor or other

authority, and the person publishing still remains responsible for

all damages caused by such act. It is this part of the law which Mr.

Gompers would alter, or rather make absolute; so that any notice or

threat could be printed and circulated even when a component act of a

conspiracy.

By a recent act of Congress the right of freedom of speech does not

extend to anarchistic utterances, or speeches or writings aimed

against order, the established government, and inciting to

assassination or crime. Such laws are barely constitutional as applied

to United States citizens. The unpopularity of the alien and sedition

laws under the administration of John Adams will be remembered. Since

their repeal, no attempt at a law of government libel has been made;

very recently, however, where certain gentlemen, mostly holding

important government offices, were charged with having made money

out of the Panama Canal purchase, the weight and influence of the

administration was given to the attempt to indict them and bring them

to the courts of the central government at Washington for trial. This

attempt, however, failed in the courts, as, in the Wilkes case, it had

failed more than a century before at the bar of public opinion.

But the law is, of course, much stronger as to persons not citizens.

That is to say, no one has any right to immigrate into this country,

and therefore intending immigrants may be kept out by legislation if

they are anarchists, socialists, or, indeed, hold any opinion for the

moment unpopular with Congress. The attempt has so far, however, not

been made to keep out any but violent anarchists, and, of course,

persons who are diseased, of immoral life, or likely to become a

public charge. And the attempt to keep them under the hand of the

central government for years after they have taken their place for

good or ill in the State body politic has recently failed in a

monumental case vindicating anew the Tenth Amendment.

Connected in most people's mind with the right of privacy is the right

of a person to keep his house and his private papers to himself; but

it bears no relation whatever to the very new-fangled notion of a

general right to privacy. The two principles are that an Englishman's

house is his castle. His home, even though it be but one room in

a tenement, may not be invaded by anybody, even by any government

official or authority (except, of course, under modern sanitary police

regulation), without a written warrant specifying the reason for

such invasion, some offence with which the man is charged, and some

particular document or paper, or other evidence of which they are in

search. The principle against general warrants--that is, warrants

specifying no definite offence or naming no particular person--was

established in Massachusetts in Colony times, and the principle taken

over to England and affirmed by Lord Camden--one of the two or three

celebrated examples where we have given a new constitutional principle

back to the mother country. Now, closely connected with this is

another principle that a man shall not be compelled to testify in a

criminal matter against himself, or that, if so compelled by statute

or official, he shall then forever be immune from prosecution for

any crime revealed by such testimony; the wording of the earlier

constitutional provisions was "in a criminal offence," but by modern,

more liberal interpretation, it has been extended to any compulsory

testimony, whether given in a criminal proceeding or not. This, with

the principle protecting a man's private affairs from inquisition, is

expressed in our Fourth and Fifth Amendments, the former prohibiting

unreasonable searches and general warrants, and the latter providing

that no one shall be compelled in any criminal case to be a witness

against himself, nor deprived of property without due process of law,

and it has reasonably been argued that an inquisition into a person's

business or book of accounts is such deprivation of his property

without due process of law, at least when applied to a natural person.

I find no legislation limiting these important principles, but on

the contrary the tendency in modern statutes and modern State

constitutions is to extend and generalize them. Of such is the famous

clause of the recent constitutions of Kentucky and Wyoming that

"absolute arbitrary power over the lives, liberty, and property

of freemen exists nowhere in a republic, not even in the largest

majority." In view of the frequently successful efforts of trust

magnates and others to escape indictment or punishment by some

enforced revelation of their affairs given after a criminal proceeding

has has been commenced or before a grand jury, legislation is now

strongly urged to withhold them immunity in such cases. This would

relegate us to the early state of things where they would simply

refuse to answer, so that it may be doubted if, on the whole, we

should gain much. The right of an Englishman not to criminate himself

is too cardinal in our constitutional fabric to be questioned or to be

altered without subverting the whole structure. Practically it would

seem as if a little more intelligence on the part of our prosecutors

would meet the evil. Corporations themselves are never immune; and

unless the wicked official actually slept with all the books of the

corporation under his pillow, it would be hard to imagine a case where

some corporate clerk or subordinate officer could not be subpoenaed

to produce the necessary evidence. Indeed, as has been well argued by

leading American publicists, the sooner the public learns to go behind

the figment of the corporation, the screen of the artificial person,

into the human beings really composing it, the quicker we shall arrive

at a cure for such evils as may exist. Legislation punishing or even

fining an offending corporation is in the last sense ridiculous. It is

necessarily paid by the innocent stockholders or the public. There

is always some one person or a number of persons who have _done_

or suffered the things complained of; after all, every act of the

corporation is necessarily done by some one or more individuals. We

must get over our metaphysical habit of treating corporations as

abstract entities, and again recognize that they are but a definite

number of natural persons bound together only for a few definite

interests and with real men as officers who should be fully

responsible for their actions. Indeed, it ought to be simpler to

detect and punish offenders than in the case of mere individuals

unincorporated, for the very fact that a corporation keeps books and

acts under an elaborate set of by-laws and regulations gives a clew to

its proceedings, and indicates a source of information as to all its

acts. One clerk may therefore reveal, and properly reveal, books and

letters which shall incriminate "those above"; one employee may show

ten thousand persons guilty of an unlawful combination, and properly

so. There is no reason why he should not, and the nine thousand nine

hundred and ninety-nine others deserve, and are entitled to, no

immunity whatever from his revelation.

The religious rights, although for the most part peculiar to the

American Constitution, adopted by us, indeed, as a result of the

history of the two or three centuries preceding in England, but hardly

in any particular a part of the British Constitution, were by the

reason of our very origin so strongly asserted and so highly valued

with us that no legislation has been found necessary on the subject.

Perhaps the sole important instance in which the question has come up

has been that of instruction in the public schools and the use of the

money raised by common taxation for special religious purposes. Very

generally the latter is forbidden in our State constitutions, the

Federal Constitution by the First Amendment merely protecting the

right from the action of Congress. Owing to decisions of the

Supreme Court, in the South it has become possible to divide school

appropriations between schools for whites and blacks, and it is

presumable that the same thing might be done as, for instance, between

Roman Catholics and others, and something of the sort has, I believe,

been done with the appropriations for the education of Indians.

The few statutes we find upon this matter tend to still further extend

and liberalize religious rights. Almost universally now a man is not

forbidden from testifying or being a witness by reason of his belief

or disbelief, even when he is an atheist. The latter law is not,

however, quite universal. He must, in some States, believe at least in

the existence of God, or of a future state of reward or punishment.

Mormons, at one time, claimed the right to practise polygamy as a

part of their religion guaranteed to them by the Constitution; the

contention did not prevail; on the contrary the Mormon States were

made to submit to an enabling act under which they bound themselves to

adopt State constitutions providing for all time against polygamous

practices. Such a treaty is not, of course, binding upon a sovereign

State unless Mormonism be deemed inconsistent with a republican form

of government; so that Utah, for instance, has probably the right to

re-establish Mormonism to-morrow so far as the Federal Constitution

is concerned. Whether it would be permitted by a strenuous president

having public sentiment at his back may indeed be questioned. In

like manner, Christian Science practitioners have invoked the

constitutional right of religious belief against the common law

requiring that those offering themselves to practise medicine should

be reasonably skilled in their trade. Legislation permitting Christian

Scientists to practise freely has been attempted in nearly all the

States, but has not, so far as I am informed, succeeded in any,

although a good many States have adopted statutes extending the right

to osteopaths. Under the common law of England, re-established in

Massachusetts by a famous decision[1] twenty years ago, a person

holding himself out as a surgeon or medical practitioner, who is

absolutely uninstructed and ignorant, is guilty even of criminal

negligence, and responsible for the death of his patient, even to the

point of manslaughter.

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

XVI

LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS

This is, of course, a matter of which books might be, and indeed have

been, written; our general essay on popular legislation can do no more

than summarize past law-making and the present trend of legislatures,

much as some history of the people of England might broadly state the

economic facts and laws of the Corn-law period in England. Racial

legislation may, of course, be considered from the point of view of

the negro, the Indian, and the alien, and indeed it differs much in

all three. Other personal legislation is largely concerned with the

right to exercise trade, already discussed, and the questions of

marriage and divorce we reserve for the next chapter. In the past we

have been very unjust, not to say cruel, to the Indian, and though

naturally in some respects a high-natured race, have constantly denied

him any political share in the government, and only in the very last

few years grudgingly extended it to such Indians as renounce their

tribe and adopt the habits and mode of life of the white man, or, as

in early England, to such freeholders as acquire a quarter section of

land. In the negro's case, however, we atoned for the early crime of

enslavement by the sentimental hurry with which we endeavored in the

'60's and '70's of the last century to take him up by law and force

him into exact equality, social as well as political, with the white

man. To aliens, in the third hand, we have been consistently generous,

having shown only in the very last few years any attempt whatever to

exclude the most worthless or undesirable; except that the prejudice

against the Mongolian in the far West is quite as bitter as it ever

was against the negro in the South, and he is still sternly refused

citizenship, even national citizenship, which we freely extend to the

African. We are thus left in the ridiculous situation of providing

that nobody may be a citizen of our great Republic except a white

Caucasian and a black African, with considerable ambiguity still as

to what the word "white" means. The American Indians are, indeed,

admitted under the conditions before mentioned, so that as a

catch-word the reader may remember that we are a red, white, and black

country, but not a brown or yellow one. All this is, of course,

the accident of history; but the accidents of history are its most

important incidents.

Taking Asiatic races first, the far Western States vie with each other

in passing legislation which shall deny them the right to life, or at

least to live upon any equality of competition with the white. Most of

such laws are, of course, unconstitutional, but they were at one time

enacted with more rapidity than the Supreme Court of the United States

could declare them so. Congress tries to be more reasonable and,

indeed, has to be so, in view of the fact that it is a national

Congress living, with the executive, in direct touch with the foreign

nations themselves. Broadly speaking, our national legislation is to

exclude immigration, but guarantee equality of property right, at

least, to such Mongolian aliens as are actually in the country; and

to extend or guarantee such right of treatment by treaties, which

treaties are, of course, acts of Congress, like any other act of

Congress, entirely valid in favor of the foreign power and enforceable

by it even to the issue of war, but possibly, as a constitutional

question, not enforceable by the Federal government against the

States. An endless mass of legislation in California and other Western

States has been devised, either openly against the Chinese or so

couched as to really exclude them from the ordinary civic liberties,

and most of our State laws or courts declare that the Japanese are

Mongolian although that people deny it. Many statutes, moreover,

are aimed at Asiatics in general; which would possibly include the

Hindoos, who are of exactly the same race as ourselves. Indeed, some

judges have excluded Hindoos from naturalization, or persons of

Spanish descent, while admitting negroes, which is like excluding your

immediate ancestors in favor of your more remote Darwinian ones.

Even in New York and other Eastern States, the employment of aliens,

particularly Asiatics, is forbidden in all public work--which laws

may be invalid as against a Federal treaty. Yet statutes against the

employment of any but citizens of the United States in public works

are growing more frequent than ever, and seem to me quite within the

rights of the State itself to determine. But Pennsylvania could not

impose a tax of three cents per day upon all alien laborers, to be

paid by the employer. Many States are beginning to provide against

the ownership of land by aliens. This, of course, is perfectly

constitutional and has full justification in the history and precedent

of most other countries, and as applied to foreign corporations it is

still more justifiable; and the Western States very generally provide

against the ownership of land, other than such as may be taken on

mortgage, by foreign corporations, or corporations even of which a

large proportion of the stock is held by foreigners.

Racial legislation as to negroes may be divided into laws bearing on

their legal, political, and social rights, including, in the latter,

contracts of labor and of marriage. By the Thirteenth, Fourteenth, and

Fifteenth Amendments, all adopted within ten years after the war, we

endeavored to put the negro in a legal, a political, and a social

equality with whites in every particular. A broad statement,

sufficiently correct for the general reader, may be made that only

the legal part has succeeded or has lasted. That legislation which is

aimed at social equality, all of it Federal legislation, has generally

proved unconstitutional, and that part which has been aimed at

political equality has, for one reason or another, been inefficient.

Moreover, the great attempt in the Fourteenth Amendment to place

the ordinary social, civil, and political rights of the negro, and

necessarily, therefore, of every one else, under the _aegis_ of the

Federal government, Federal courts, and Federal legislation, has been

nullified; first, by court decision, and later, if we may trust the

signs of the times, by contemporary public opinion. The only thing

that remains is that the States cannot make laws which, on their face,

are discriminations against the negro, or in social matters against

any other race; and in political matters, the Fifteenth Amendment has

proved effective to render null State laws which on their face are

designed to restrict or deny their equal right of suffrage.

Legislation concerning labor, the industrial condition, and contract

rights of the negro, such as the peonage laws, we have considered

in an earlier chapter; both State and national laws exist, and the

Thirteenth Amendment, being self-executing, has proved effective.

Under the Fifteenth Amendment there is little political legislation,

except the effort in Southern States by educational or property

qualifications, and most questionably by the so-called "grandfather

clause," to exclude most negroes from the right of suffrage. Laws

imposing property and educational qualifications are, of course,

valid, although designed to have the effect of excluding a large

proportion of the negroes from voting; laws, on the other hand, which

give a permanent right of suffrage to the descendants of a certain

class, as of those voters, all white, who were entitled to vote in

Southern States in the year 1861, are probably unconstitutional as

establishing an hereditary privileged class, though there has as yet

been no square decision on this point by the Supreme Court of the

United States. But as there is no further legislation on these

subjects, to pursue the matter further would carry us into

constitutional law.

In the third field, that of social legislation, there has been a

vast number of laws, first by Congress with the intention, under the

Fourteenth Amendment, of enforcing social and industrial equality and

providing Federal machinery for securing it (the great substance of

this has been held unconstitutional and has passed away); later by the

States, usually the Southern States, with the exactly opposite purpose

of separating the races, at least in social matters, and of subjecting

them to a stricter law of labor contract than has, in our country at

least, been imposed upon other citizens.

Even this matter of social legislation, which alone remains to be

discussed in this book, is quite too vast for more than a brief

sketch. Among the many monographs on the subject may be mentioned the

article of G.T. Stevenson on the "Separation of the Races in Public

Conveyances."[1] Even this comparatively narrow matter is by no means

exhausted in an article covering twenty pages. Much of the social

separation of the races is, of course, brought about without statute

law, but by custom, or even we may say customary law, which is always

apt to be the better enforced; and under the civil rights decisions of

the United States Supreme Court in 1883, such customary law has been

rendered immune from Federal control. Legislation now exists in all

Southern States as to separate, though equal, accommodations in public

conveyances; at one time such statutes were restricted to interstate

commerce, but the present tendency of court decision appears to be to

recognize even their interference with interstate commerce as part

of the reasonable State police jurisdiction. Such statutes apply

generally to railroads, steamboats, and street cars, or other

conveyances of transportation. They are not so usual as to hotels,

eating-houses, theatres, or other public places, probably because

in such it is more easy to secure the desired segregation without

legislation. We may, therefore, conclude that legislation on this

point will be universal in the South and in Oklahoma or other

border States with Southern sympathies, and will not be declared

unconstitutional by the courts.

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

1909.]

The labor unions very generally exclude negroes, both in the South

and North, and in many Southern States the whites refuse to work with

negroes in mills. Until and unless labor unions are chartered or

incorporated under legislation forbidding such action, it is probable

that their by-laws excluding negroes, though possibly unreasonable at

the common law, could not be reached by the Fourteenth Amendment; and

public sentiment in the States where such by-laws are common would

probably prevent any permanent vindication of the right of the negro

to join labor unions by State courts. That is to say, countervailing

legislation would promptly be adopted.

Coming to education, the same principle seems to be established, that

if the facilities are equal the education may be separate for the

different races, just as it may be for the different sexes; and it

would even appear that when the appropriation is not adequate for

giving higher or special education to both races, particularly when

there are few negroes applying for it, high-schools or special schools

may be established for whites alone.

Coming to the matter of sexual relation, a different principle

applies. Under their unquestioned power of defining crimes, their

police power in criminal and sanitary matters, the States may forbid

or make criminal miscegenation. Cohabitation without marriage may, of

course, be forbidden to all classes, and in the case of cohabitation

between white and black the penalty may be made more severe, for

it has been held that as both parties to the offence are punished

equally, there is, under such statutes, no denial of the equal

protection of the law. _A fortiori_, marriage may be forbidden or

declared null between persons of different race, and the tendency so

to do is increasing very decidedly in the South, and is certainly not

decreasing in the North. Indeed, constitutional amendments are being

adopted and proposed having this in view, "the purity of the race."

Recent plays and magazine articles, with which most of our readers

will be familiar, sufficiently bear out this point.

In property rights, however, I can find no legislation which

discriminates against the negro, and there is some in his favor. With

the exception of the labor or peonage laws, discussed separately,

I have found no legislation which limits his property or contract

rights. On the other hand, there is, in the several States,

legislation requiring that he shall be given life or health insurance

policies on the same terms and conditions as are applied to whites,

despite the alleged fact that his expectation of life is less and

not so easy to determine, owing to the lack of information as to

the health and longevity of his forebears. Sketching first thus our

general conclusions it remains for us only to give a few concrete

examples drawn from the legislation of the last twenty years:

In 1890, soon after the civil-rights cases were decided, we find some

State legislation to protect the negro in his civil rights; but the

first "Jim Crow" laws, providing for separation in public conveyances,

etc., began in 1865 and 1866 in Florida, Mississippi, and Texas, and

are continued in other States in this year. In 1892 there are laws for

separate refreshment rooms and bath-houses, and providing that negroes

and whites shall not be chained together in jails. In 1893 there is

legislation for separate barber shops, and the first law requiring

equal treatment by life-insurance companies is passed in

Massachusetts. In 1895 there is legislation against the mixture of

races in schools. In 1898 the laws and constitutional provisions for

practical negro disfranchisement begin in South Carolina, Mississippi,

and Louisiana. On the other hand, in 1900, New York passes a statute

that there shall be no separate negro schools, and in 1901 Illinois

adopts civil-rights laws, followed in 1905 by five other States. In

1907 South Carolina makes it a misdemeanor to serve meals at station

eating-houses to whites and blacks in the same room. In 1908 Maryland

and Oklahoma provide for separate cars and separate rooms. In 1894

we find nine States prohibiting miscegenation. In 1902 Florida makes

miscegenation a felony, and in 1908 Louisiana declares concubinage

between a Caucasian and a negro to be also a felony, while Oklahoma

adopts the miscegenation law.

These examples of legislation are not intended to be exhaustive, but

will serve to give the reader a general Idea of the trend of popular

law-making in this important matter.

Personal privilege, depending not upon race, but upon legislation, or

inheritance, is, of course, strictly forbidden in each State by both

constitutions, State and Federal. The growth of a contrary principle

is only noteworthy on the two lines touching respectively the whites

in the South and veterans of wars in the North. It must be said that

legislation in the interest of the Grand Army of the Republic, and

even of the veterans of the Spanish War, and even in some States of

the sons or descendants of such veterans respectively, has come very

near the point of hereditary or social privilege. The struggles of

so-called "Organized Labor" to establish a privileged caste have so

far been generally unsuccessful, always so in the courts, and usually

so in the legislatures; but in many States those who have enlisted in

either wars, Civil or Spanish, wholly irrespective of actual service

or injury, are entitled not only to pensions, Federal and State, but

to a diversity of forms of State aid, to general preference in public

employment, and even to special privilege or exemption from license

taxes, etc., in private trades, and their children or descendants are,

in many States, entitled to special educational privilege, to support

in State schools or industrial colleges, to free text-books, and other

advantages. Presumably some of these matters might be successfully

contested in the courts, but they never have been. As to pensions,

nothing here need be said. The reader will remember the familiar fact

that our pensions in time of peace now cost more than the maintenance

of the entire German army on a war footing or than the maintenance of

our own army. The last pensioner of the Revolutionary War, which

ended in 1781--that is to say, the last widow of a Revolutionary

soldier--only died a few years ago, early in the twentieth century.

The Order of the Cincinnati, founded by Washington and Lafayette, was

nevertheless a subject of jealous anxiety to our forefathers; but

apparently the successful attempt of volunteers disbanded after

the Civil and the Spanish Wars, although far more menacing because

embodying social and political privilege, not a mere badge of honor,

seems to call forth but little criticism.

XVII

SEX LEGISLATION, MARRIAGE AND DIVORCE

The notion that a woman is in all respects a citizen, entitled to

all rights, political as well as property and social, was definitely

tested before our Supreme Court soon after the adoption of the

Fourteenth Amendment, on the plea that the wording of that amendment

gave a renewed recognition to the doctrine that a woman was a person

born or naturalized in the United States and therefore a citizen and

entitled to the equal protection of the laws. The court substantially

decided [1] that she was a citizen, was entitled to the equal

protection of the laws, but not to political privileges or burdens any

more than she was liable to military service. The State constitutions

of many States, among them Illinois, have provided that a woman is

entitled to all ordinary rights of property and contract "the same as"

a man. Under this provision, when laws were passed for the protection

of women, forbidding them to work more than a certain number of hours

per day, they were originally held unconstitutional. The so-called

women's-rights people (one could wish that there were a better or more

respectful word) seem themselves to be divided on this point. The more

radical resent any enforced inequality, industrial or social, between

the sexes. For instance, many States have statutes forbidding women or

girls to serve liquor in saloons or to wait upon table in restaurants

where liquor is served. Such statutes, obviously moral, are

nevertheless resented. On the other hand, the Supreme Court of the

United States has taken the conservative view, that there is a

difference both in physique and character between the sexes, as well

as different responsibilities and a different social interest, so that

it is still possible, as It has been possible in the past, to impose

by law special restrictions on the contracts of women. The law of

Oregon, therefore, not permitting them to make personal contract for

more than eight hours per day was sustained both in the State and the

Federal Supreme Courts; and a similar law by the highest court of

Illinois, reversing its own prior decision.[2] This matter is of such

interest and of such importance that it is frequently placed in State

constitutions, and it seems worth while to summarize their provisions.

The advanced position is now squarely put only in the constitution of

California, which provides that no person shall on account of sex

be disqualified from entering upon or pursuing any lawful business,

vocation, or profession. Such a constitution as this would, of course,

make it impossible even to pass such laws as the ones just mentioned

forbidding them to serve in restaurants, such employment being lawful

as to men. But no other State follows that extreme provision, and,

indeed, the clause in the constitution of Illinois seems now to have

been repealed.

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

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

As to property matters it may be broadly stated that they have in

general precisely the same rights that men have, and in several States

more; that is to say, a woman frequently has a larger interest in the

property of a man at his death, than the man has in hers, should she

predecease him; and universally she is given a share of the husband's

property in case of divorce, either outright or by way of alimony,

which, so far as I know, is never awarded to the man even if he be the

innocent party. In New Jersey and some other States, a married woman

is not permitted to guarantee or endorse the notes or debts of

her husband. Many of the Southwestern States, from Louisiana to

California, recognize or adopt the French idea of community property.

By the Mississippi constitution "the legislature shall never create by

law any distinction between the rights of men and women to acquire,

own, enjoy, and dispose of property of all kinds, or other power

of contract in reference thereto." But this does not prevent laws

regulating contracts between husband and wife.

In matters of divorce and personal relation, such as the guardianship

of children, the tendency has also been to put women on an equality

with men and more so. That is to say, divorces are awarded women which

for similar reasons would not be awarded men, both by statute and by

usual court decision, and although a very few States, such as recently

developed in the conservative State of South Carolina, retain the

common-law idea that the father must be the head of the family, many

States provide that the rights of the parents to the custody and

education of their children shall be equal. In other words they are to

be brought up by a committee of two. Nevertheless, in California and

other code States of the West it is still declared that the husband is

the head of the family and may fix the place of abode, and the wife

must follow him under penalty of desertion. Such matters are more

often determined by custom or by court decision on the common law than

by written statute; and it is apprehended that the judges will usually

follow the more conservative rule of giving the custody of infant

children to the mother, and of more mature children, particularly the

boys, to the father.

Divorce statistics on the subject are extremely misleading for two

great reasons: First, because in the nature of the case, and perhaps

of the American character, in two cases out of three a divorce is

granted for fault of the husband.[1] And in the second place, because

a false cause is given in a great majority of cases. In England until

recently the rule was absolute that a woman could not get a divorce

for adultery alone, but there had to be cruelty besides; while the man

could be divorced for the first-named cause. No such rule has ever

prevailed in any State of this country. Desertion and failure to

support, on the other hand, are much more easily proved by the wife.

In short, it is not too much to say that in all matters of divorce she

stands in a position of advantage.

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

1908.]

The same thing is in practice true as to marriage. Under liberal

notions, prevailing until recently in all our States, certainly in all

where the so-called common-law marriage prevails, it is extremely easy

for a woman to prove herself the lawful wife of any man she could

prove herself to have known, and sometimes even without proving the

acquaintance. The "common-law" marriage, by the way, is not, so far as

I can determine, the English common law, nor ever was. If any common

law at all, it is the Scotch common law, the English law always having

required a ceremony by some priest or at least some magistrate, as

does still the law of New England. Under the influence of the State

Commissioners for Uniformity of Law this matter has been amended in

the State of New York, so that if there be no ceremony there must at

least be some written evidence of contract, as in the case of a sale

of goods and chattels under the statute of frauds; the contract of

marriage being thus, for the first time in New York, made of equal

importance with that of the sale of goods to the value of one hundred

dollars. Much difference of opinion exists between the South and the

North upon this point, the Southern view being more remarkable for

chivalry, and the Northern for good sense. Southern members of the

National Conference of Commissioners claimed that any such law would

result in disaster to many young girls; that if they had to travel

ten, twenty, or thirty miles to find a minister or justice of the

peace they would in many cases dispense with the formality or be

impatient of the delay; and that anyhow on general principles any

unmarried man who had seen an unmarried young woman two or three times

ought to be engaged to her if he was not. The Northern Commissioners,

on the other hand, were desirous of protecting the man, and especially

his legitimate widow and children, from the female adventuress, which

view the South again characterized as cynical. There is probably

something to be said for both sides.

Coming finally to political rights, the subject of women's suffrage

alone might well be reserved for a separate chapter, if, indeed, it is

to be disposed of by any one mind; but at least the actual occurrences

may be stated. As mentioned above in our chapter on political rights,

it now exists, by the constitutions of four States; and has been

submitted by constitutional amendment in several others and refused.

No actual progress, therefore, has been made in fifteen years. As to

office-holding, the constitutions of Missouri and Oklahoma--one most

conservative, the other most radical--both specify that the governor

and members of the legislature must be male. In South Dakota women may

hold any office except as otherwise provided by the constitution. In

Virginia, by the constitution, they may be notaries public. In all

other States, save the four women's-suffrage States, the common law

prevails, and they may not hold political office. The first entirely

female jury was empanelled in Colorado this year (1910). In some

States, however, statutes have been passed opening certain offices,

such as notaries public, and, of course, the school commission. Such

statutes are, in the writer's opinion, illogical; if women, under

a silent constitution, can hold office by statute, they can do it

without. It is or is not a constitutional right which the legislature,

at least, has no power to give or withhold.

Generally in matters of education they have the same rights both to

teach and be taught as males. Indeed, Idaho, Washington, and Wyoming

declare that the people have a right to education "without distinction

of race, color, caste, or sex," and that is practically the case by

the common law of all States, though there is nothing to prevent

either coeducation or segregation in schools. The recent tendency of

custom is certainly in the latter direction, Tufts, Wesleyan, and

other Eastern colleges having given up coeducation after trial, and

the principle having been attacked in Chicago, Michigan, and other

universities, and by many writers both of fact and fiction.

These are the abstract statements, but one or two matters deserve more

particular treatment. First of all, divorce legislation. Many years

ago the State Commissioners for Uniformity of Law voted to adhere to

the policy of reforming divorce procedure while not attacking the

causes. This, again, is too vast a subject to more than summarize

here. The causes of divorce vary and have varied all the way from no

divorce for any cause in South Carolina, for only one cause in New

York and other States, up to twenty or thirty causes, with that

indefinite or "omnibus" clause of "mutual incompatibility," or

allowing the courts to grant divorces in the interest of the

general peace. Since the efforts of reformers have wiped out the

express-omnibus clause from the legislation of all States, the same

abuse has crept in under the guise of "cruelty"; the national divorce

report before referred to showing that the courts of this broad land

have held sufficient cruelty to justify divorce (to the wife at least)

to exist in tens of thousands of different incidents or causes,

ranging all the way from attempts to murder ("breaking plaintiff's

nose, fingers, two of her ribs, cut her face and lip, chewed and

bitten her ears and face, and wounded her generally from head to

foot") to not cutting his toenails [1] or refusing to take the wife to

drive in a buggy; indeed, one young North Carolina woman got a divorce

from a man she had recently married, on the ground that he was

possessed of great wealth, but she had been assured that he was an

invalid, and had married him in the hope and belief of his speedy

decease, instead of which he proceeded to get cured, which caused her

great mental anguish; while one husband at least got a divorce for a

missing vest button.[2] But, independent of the vagaries of courts and

judges, and perhaps, most of all, of juries in such matters, it has

been found that the numbers of divorces bear no particular relation to

the number of causes. In fact, many clergymen argue that to have only

one cause, adultery, is the worst law of all, as it drives the parties

to commit this sin when otherwise they might attain the desired

divorce by simple desertion. Moreover, the difference in condition,

education, religion, race, and climate is so great throughout the

Union that it is unwise, as well as impossible, to get all of our

forty-eight States to take the same view on this subject, the Spanish

Catholic as the Maine free-thinker, the settler in wild and lonely

regions as the inhabitant of the old New England town over-populated

by spinsters. It was, therefore, the opinion of the State

Commissioners that the matter of causes was best determined by States,

according to their local conditions, and that it would be unwise to

attempt, even by amendment to the Constitution, to enforce a national

uniformity. All the abuses, substantially, in divorce matters come

from procedure, from the carelessness of judges and juries, or, most

of all, by laws permitting divorce without proper term of residence,

without proper notice to the other side, or by collusion, without

proper defence, or for no reason but the obvious intention of

contracting other marriages. The recommendations of the Commissioners

on Uniformity will, therefore, be found summarized below,[3] and there

is beginning to be legislation in the direction of adopting these, or

similar statutes. The Supreme Court has vindicated, however, the right

of the State not to be compelled under the full faith and credit

clause to give effect to divorces improperly obtained in other States

by its own citizens or against a defendant who is a citizen. In other

words, a marriage, lawful where made, is good everywhere; not so of

a divorce. The fact that this ruling, wise and proper, necessarily

results in the possibility that a person may be married in one State,

divorced in another, and a bachelor in a third, and bigamous in a

fourth, lends but an added variety to American life. If the people

wish to give the Federal government power to make nationwide marriage

and divorce laws, they must do so by constitutional amendment.

[Footnote 1: _Sic_: "U.S. Labor Commissioners' Report on Marriage and

Divorce," Revised Edition, 1889, pp. 174, 175, 176.]

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

[Footnote 3: AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAW OF OTHER

STATES RELATIVE TO MIGRATORY DIVORCE

Section 1. No divorce shall be granted for any cause arising prior to

the residence of the complainant or defendant in this State, which was

not ground for divorce in the State where the cause arose.

Sec. 2. The word "divorce" in this act shall be deemed to mean divorce

from the bond of marriage.

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

repealed.

AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAWS OF OTHER STATES

RELATIVE TO DIVORCE PROCEDURE AND DIVORCE FROM THE BONDS OF MARRIAGE

Section 1. No person shall be entitled to a divorce for any cause

arising in this State who has not had actual residence in this State

for at least one year next before bringing suit for divorce, with a

_bona-fide_ intention of making this State his or her permanent home.

Sec. 2. No person shall be entitled to a divorce for any cause arising

out of this State unless the complainant or defendant shall have

resided within this State for at least two years next before bringing

suit for divorce, with a _bona-fide_ intention of making this State

his or her permanent home.

Sec. 3. No person shall be entitled to a divorce unless the defendant

shall have been personally served with process if within the State, or

if without the State, shall have had personal notice, duly proved and

appearing of record, or shall have entered an appearance in the case;

but if it shall appear to the satisfaction of the court that the

complainant does not know the address nor the residence of the

defendant and has not been able to ascertain either, after reasonable

and due inquiry and search, continued for six months after suit

brought, the court or judge in vacation may authorize notice by

publication of the pendency of the suit for divorce, to be given in

manner provided by law.

Sec. 4. No divorce shall be granted solely upon default nor solely

upon admissions by the pleadings, nor except upon hearing before the

court in open session.

Sec. 5. After divorce either party may marry again, but in cases where

notice has been given by publication only, and the defendant has not

appeared, no decree or judgment for divorce shall become final or

operative until six months after hearing and decision.

Sec. 6. Wherever the word "divorce" occurs in this act, it shall be

deemed to mean divorce from the bond of marriage.

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

repealed.]

It is always to be remembered that the law of marriage, and divorce

as well, was originally administered by the church. Marriage was a

_sacrament_; it brought about a _status_; it was not a mere secular

contract, as is growing to be more and more the modern view. Indeed,

the whole matter of sexual relations was left to the church, and was

consequently matter of sin and virtue, not of crime and innocence.

Modern legislation has, perhaps, too far departed from this

distinction. Unquestionably, many matters of which the State now takes

jurisdiction were better left to the conscience and to the church, so

long as they offend no third party nor the public. Very few lawyers

doubt that most of the causes of action based on them, such as the

familiar one for alienation of the affections, are only of use to the

blackmailer and the adventurer. They are very seldom availed of by

honest women.

Nevertheless, it is not questionable that modern American legislation,

particularly in the code States, in California, New York, and the West

generally, is based upon the view that marriage is a simple contract,

whence results the obvious corollary that it may be dissolved at any

time by mutual consent. No State has thus far followed the decision

to this logical end, on the pretended assumption that the rights of

children are concerned; but the rights of children might as well

be conserved upon a voluntary divorce as after a scandalous court

proceeding. One possible view is that the church should set its own

standard, and the state its own standard, even to the extreme of not

regulating the matter at all except by ordinary laws of contract and

laws for the record of marriages and divorces and for the custody,

guardianship, support, and education of children, which would include

the presumption of paternity pending an undissolved marriage, but all

divorces to be by mutual consent. It is evident to any careful student

of our legislation that we would be rapidly approaching this view

but for the conservative influence of Massachusetts, Connecticut,

Pennsylvania, New Jersey, and the South, and but for the efforts of

most of the churches and the divorce reform societies. Which influence

will prove more powerful in the end it is not possible to predict.

Socialists urge that the institution of marriage is bound up with that

of private property. There is little doubt that the women's suffrage

movement tends to socialism, and, also, paradoxical as it may at first

seem, to lax marriage laws and easy divorces. "The single standard

of morality" offered by all advanced women's-rights advocates will

necessarily be a levelling down, not a levelling up; and in a society

where the life of the ordinary young woman _is_ that which at least

_was_ that of the ordinary young man about town, it is hardly likely

that there will be any stricter legislation. Where a majority of young

women live alone and earn their living, the old order must change.

Divorce, it should be known, is a modern institution; that is, divorce

by the secular courts. Such divorce as the Roman Church recognized, or

was granted by act of Parliament, was the only divorce existing down

to the year 1642, when one Hannah Huish was divorced in Connecticut by

the General Court, "with liberty to marry again as God may grant her

opportunity," and about that time the Colony of Massachusetts Bay

enacted the first law (with the possible exception of one in Geneva)

permitting divorces by ordinary courts of law.

The age of consent means two things, or even three, which leads to

much confusion. It has a definite meaning in the criminal law, to be

discussed later; and then it has a double meaning in the marriage law.

First, the age under which the marriage of a girl or boy is absolutely

void; second, the age at which it is lawful without the consent of the

parents. The tendency of our legislation is to raise the latter age

and possibly the former. At least, marriages of very young persons may

be absolutely cancelled as if they had never taken place. According to

all precedents, human and divine, from the Garden of Eden to Romeo and

Juliet, "the age of consent" would by common sense appear to be the

age at which the woman did in fact consent; such is the common law,

but such is not usually law by our statutes.

But perhaps the legislation of the future is best represented by the

extraordinary effort, whose beginning we now see, to prevent

freedom of marriage Itself. There is probably no human liberty, no

constitutional right to property, or hardly, even, to one's personal

freedom, which has been more ardently asserted by all persons not

actually slaves (and even, indeed, by them) than the right to love and

marry. In the rare instances where even priests have interfered, it

has usually led to resentment or resistance. The common law has never

dared to.[1] Marriages between near relations, prohibited by the

Mosaic law, were invalid by the church law, and became invalid by

the secular law at the very late period when it began to have any

jurisdiction over the matter, hardly in England half a century ago; in

the United States, where we have never had canon law or church courts,

the secular law took the Mosaic law from the time of the Massachusetts

Body of Liberties (1641). The first interference of statute was

the prohibition of the marriage of first cousins. This seems to be

increasing. The prohibition of marriage between different races we

have mentioned in another chapter. To-day we witness the startling

tendency for the States to prescribe whom a person shall _not_ marry,

even if it do not prescribe whom they shall. The science of eugenics,

new-fangled as the word itself, will place upon the statute-book

matters and considerations which our forefathers left to the Lord.

Considerable progress has already been made in this country. The

marriage of insane persons, persons absolutely _non compos_, was, of

course, always void at the common law, and the church law as well.

They are incapable of contract. The marriage of impotent persons was

void also, but by recent laws the marriage of epileptics is forbidden

and made void, the marriage of persons addicted to intoxicating

liquors or drugs, the marriage of persons who have been infected by

certain diseases; and finally, most startling of all, the proposal

looms in the future to make every man contemplating a marriage submit

himself to an examination, both moral and physical, by the State or

city officials as to his health and habits, and even that of his

ancestry, as bearing upon his posterity. Novels have been written

about men who avoided marriage by reason of a taint of insanity in the

family; this modern science of eugenics would propose to make such

conduct compulsory by law.

[Footnote 1: Mr. Flinders Petrie, in his late book, "Janus in Modern

Life," tells us that at least ten varieties of marriage and marriage

law have prevailed in history, and that all save marriage by capture

perdure in the civilized world to-day, most of them, in actuality,

even in England.]

We have now said enough on the abstract questions to close with some

of the concrete examples. Some States forbid the marriage of a person

who has tuberculosis; some require him to submit to an examination. In

1907 a bill was introduced in Michigan, which provided that no person

should be permitted to marry who had ever led an unchaste life. This

bill did not, however, become a law.

In divorce matters New York, in 1890, adopted the very intelligent

statute requiring courts to allow a person charged as corespondent in

a divorce case to make defence. Six States raised the age of consent

in criminal matters, and four in marriage; one required a marriage

ceremony. In 1891 one State added crime, or conviction for crime, as

a cause of divorce, one insanity. Two regulated the procedure in the

direction recommended by the Uniformity Commissioners. One made it

criminal to advertise the securing of divorces in the newspapers. Two

States made simple sexual connection a crime (which was not a crime

at the common law). One Southern State enacted a special law against

slander of women,--another instance of the tendency to their special

protection. Several States adopted newer laws giving complete control

of their separate property to women, and allowing them to do business

as sole traders, without responsibility for the husband's debts. Two

more States passed statutes allowing women to practise law. In 1890

one other State forbids drinks to be served by either women or

children under eighteen.

In 1893 there was much legislation concerning the powers of the mother

over the children, and the liability of the husband to support both

wife and children under penalty as for the crime of desertion. This

legislation has now become pretty general throughout the country; that

is, it is made a criminal offence for a man to desert his wife or

children, or, being able, to fail to support them. One State declared

the husband and wife joint guardians of the children. In 1894 one

State prohibited marriage between first cousins, and one between uncle

and niece. One declared that marriage removed nonage. One made it a

misdemeanor for a married man to make an offer of marriage. The laws

for support of wife and children continue, and there were laws passed

giving alimony to the wife, even in case the divorce were for her

fault. One State made both husband and wife competent witnesses

against each other in either civil or criminal cases. One found it

necessary to declare that a woman might practise medicine, and another

that she might be a guardian; the statute in both cases would seem to

have been unnecessary. Two States provided that she might not serve

liquor in saloons or restaurants, the statute already referred

to. Louisiana adopted the intelligent statute, already mentioned,

permitting the right of suffrage to women in cases of votes on loans

or taxes by cities, counties, or towns; and Utah first enacted the

much-mooted statute that female school-teachers should be paid like

wages as males for the same services. It would be most interesting

to hear how this statute, which was passed in 1896, turned out to

work.[1] One State provided that women might be masters in chancery,

and another carried out the idea of equality by enacting that women

should no longer be excepted in the laws against tramps and vagrants.

Constitutional amendments proposing women's suffrage were defeated

this year (1895) in no less than nine States. Connecticut passed a law

that no man or woman should marry who was epileptic or imbecile, if

the wife be under forty-five, and another State for the first time

awards divorce to the husband for cruelty or indignities suffered at

the hands of the wife, while another State still repeals altogether

its law permitting divorces for cruelty or intoxication. One other

makes insanity a cause of divorce. One other, non-support. Two or

three adopt the notion of joint guardianship of children.

[Footnote 1: A State official informs me that the law is evaded, see

above, p. 212.]

In 1897 one State prohibits the remarriage of divorced parties

during the life of the innocent plaintiff; the Uniformity of Law

Commissioners came to the conclusion that any limitation upon

remarriage was unwise and led both to immorality and to wrong against

innocent third persons. Divorces should either not be granted at all,

or be granted absolutely. This is the better opinion; though, of

course, it does not apply to mere orders of separation. Much confusion

of thought has arisen upon this subject, the upholders of lax divorces

always assuming that the opponents mean to compel persons to live

together in misery or incompatibility, which, of course, is far from

the case. A legal separation has always been permitted, except,

indeed, where that doctrine is interfered with by modern statute; any

wife can be freed of a vicious or cruel husband and even compel him to

support her while living away from him, but "platform women" are apt

to forget this fact. In the same year one Southern State has the

chivalry to provide that no women should be worked as convicts on the

road; one is not aware but for this that it ever happened. We see

more humane legislation about this time for the protection and proper

treatment of women in jails or houses of detention, for the services

of matrons and the careful separation of the sexes, and by now seats

for women in stores or factories are almost universally required. The

sale of liquor to women is in one State specially forbidden, Louisiana

follows the Texas law giving women tax-payers a vote on appropriations

for permanent improvements.

In 1899 comes the law of Michigan, already referred to, forbidding

persons with contagious diseases to marry, and compelling physicians

to testify. The Massachusetts Medical Association has gone on record

as urging that there should be a privilege to physicians in all cases,

as there is to lawyers. Many people believe that to be the common law;

such is not the case, even as to priests.

One more State this year awards divorce for insanity, and one more

for intoxication. Several States permit women to get damages from

liquor-sellers selling intoxicating drink to their husbands; I know

of no corresponding statute permitting the husband to get damages

for drinks sold the wife. A wife may testify against the husband in

certain cases, as actions for alienating of affection, or criminal

conversation; not so the husband. Texas and other Southwestern States

adopt the statute that an action for seduction shall be suspended on

the defendant's marriage with the plaintiff, otherwise it is a felony,

and it is again a felony should he after such marriage desert her--the

Fourteenth Amendment to the contrary notwithstanding (which reminds

one of the colonial Massachusetts statute, that the punishment for

that offence may either be imprisonment in the state-prison, or

marriage!).

The laws aimed at mere sin increase in number. One State makes

improper relations, even by mutual consent, punishable with four years

in the state-prison, if the girl be under eighteen. North Dakota

introduces a bill to require medical examination in all cases as a

prerequisite to marriage; it failed in North Dakota that year, but was

promptly introduced in other States. In Oregon all widows and fathers

may vote, without regard to property qualification, in school district

elections; and this State joins the number of those which forbid the

marriage of first cousins.

In 1901 came the great New York statute abolishing the common-law

marriage, which we have discussed above. Some States pass laws

punishing wife-beating by either imprisonment or a whipping. In 1902

perhaps the most interesting thing is that there is no legislation

whatever of any kind on the subject of women's suffrage--showing

distinctly the refluent wave. In 1903 New Hampshire rejects a

constitutional amendment for women's suffrage. Kansas restricts the

marriage of epileptic and weak-minded persons. Several States reform

their divorce laws, and Pennsylvania adopts Southern ideas giving

divorce for a previous unchastity discovered after marriage. This

matter has so far been covered by no Northern State, though it had

been law from all time in Virginia.

In 1904 women's suffrage was proposed in Oregon, and in 1905 rejected.

Illinois follows New York in abolishing the common-law marriage, and

raises the age to eighteen in a woman and twenty-one in a man. As is

often the case, it does not appear from the ambiguous wording of the

statute whether this invalidates the marriage or merely subjects the

offenders, or the minister or the magistrate, to a penalty; probably

the latter. Minnesota forbids the marriage of imbecile or epileptic

persons; Nebraska that of first cousins, and Pennsylvania adopts the

uniform divorce law recommended by the commissioners. Five other

States reform their divorce laws, and four their laws concerning

married women's property, and seventeen adopt new laws for compulsory

support of the woman and children by the husband.

In 1906 one more State adopts the idea of giving a vote to female

property-owners in money elections. One puts the age of consent up

to sixteen. In a good many States it is already eighteen. Women's

suffrage is again rejected in Oregon; and finally even South Dakota

reforms her divorce laws.

Perhaps a word should be given to other laws relating to minors as

well as to young women. There is very general legislation throughout

the country forbidding the sale of intoxicating liquor to persons

under twenty-one, and in the great majority of the States the sale

of cigarettes, narcotics or other drugs, or even tobacco, to persons

under twenty-one, eighteen, or fifteen, respectively. In some States

it is forbidden, or made a misdemeanor, to insure the lives of

children--very important legislation, if necessary. In 1904 Virginia

passed a statute punishing kidnapping with death, which is followed in

1905 by heavy penalties for abduction in three other States; fourteen

States establish juvenile courts. Seven States make voluntary

cohabitation a crime, and six pass what are known as curfew laws.

Indeed, it may be generally said that the tendency is, either by State

statute or municipal ordinance, to forbid children, or at least girls

under sixteen, from being unattended on the streets of a city after a

certain hour in the evening.

In 1907 Mississippi makes the age of consent twelve, and the penalty

for rape death, which, indeed, is the common law, but which law has

extraordinary consequences when the age is raised, as it is in many

States, to eighteen. Two more States adopt the laws against abduction

and one a statute against blackmail.

Sufficient has, perhaps, been said to give the reader a general view

of contemporary law-making on this most important matter of personal

relations. Most of the matters mentioned in this chapter are cohered

by various learned societies in annual reports, or even by the

government, in cases of marriage and divorce, and to such special

treatises the reader may be referred for more precise information. The

Special Report of the United States Census Office, 1909, published

early in 1910, makes a careful and elaborate study of the whole

question from the years 1867 to 1906. Such statistics are necessarily

uncertain for reasons already indicated. Court judgments do not

indicate the true cause of divorce, nor is the complainant necessarily

the innocent party, nor are the numbers of divorces granted, as for

instance in Nevada, any fair indication of the normal divorce rate of

the people really living in that State. With this caution we will note

that the number of divorces varied from about five hundred in each

hundred thousand of married population every year in Washington,

Montana, Colorado, Arkansas, Texas, Oregon, Wyoming, Indiana, Idaho,

and Oklahoma, down to less than fifty, or about one-tenth as many, in

New Jersey, New York, and Delaware. Certain significant observations

may certainly be made upon this table. In the first place, the

older States, the old thirteen, have, from the point of view of the

conservative or divorce reformer, the best record. At the head

stand the three States just named, then North Carolina, Georgia,

Pennsylvania, Maryland, Virginia, Massachusetts, Louisiana (largely

French and Roman Catholic), and Connecticut--ten of the original

thirteen States. Only New Hampshire and Rhode Island, the latter for

obvious reasons, stand low down in the column; the last State having

about three hundred divorces as against Montana's five hundred. South

Carolina, having no divorces at all, does not appear.