The next observation one is compelled to make is that divorces are

most numerous in the women's suffrage States, or in the States

neighboring, where "women's rights" notions are most prevalent.

Montana, Colorado, Wyoming, and Idaho stand second, third, sixth, and

eighth, respectively, among the fifty States and Territories comprised

in the table.[1] On succeeding pages are graphic maps showing the

conditions which in this particular prevail for a number of years.

There is little change of these in the thirty years from 1870 to 1900.

The Atlantic seaboard and Southern States in 1870 are left white, with

the exception of New England, which is slightly shaded; that is,

they have less than twenty-five divorces per hundred thousand of

inhabitants. In 1880 the black belt States and Territories--having one

hundred and over--extends from Wyoming over Montana, Colorado, Utah,

and Nevada. In 1900 it covers the entire far West and Southwest, with

the exception of New Mexico (Roman Catholic) and Utah (Mormon). The

chart showing the relation of divorces to number of married population

does not materially differ. Now these figures, ranging from five

hundred divorces per hundred thousand married population per year, or

three hundred in the more lax States, down to less than fifty in the

stricter States, compare with other countries as follows:

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

15.]

Only Japan shows a number of divorces approaching these figures.

She has two hundred and fifteen per one hundred thousand of general

population,--about the same as Indiana, which stands eighth in the

order of States. But with the exception of Japan no civilized country

shows anything like the proportion of divorces that the American

States do. Thus, in Great Britain and Ireland there are but two per

hundred thousand of population; in Scotland, four; in the German

Empire, fifteen; in France, twenty-three, and in the highest country

of all, Switzerland, thirty-two, while the average of the entire

United States is seventy-three.

The census figures as to the trades or professions in which divorce

is most prevalent are amusing, but probably not very significant. It

appears, as might be expected, that actors and actresses stand at the

head, and next musicians or teachers of music; while clergymen stand

very near the bottom of the list, only excelled in this good record

by bar-tenders (in Rhode Island) and, throughout the country, by

agricultural laborers.

But after all, more important, perhaps, than even marriage and

divorce, are the great social changes which arise from the general

engaging of women in industrial occupation. In matters of property

right we have found they are substantially already on an equality

with men, if not in a position of special privilege. Yet, as Herbert

Spencer remarked, "When an abuse which has existed for many centuries

is at last on the point of disappearing, the most violent outcry

is made against it." During the century when women were really

oppressed,[1] under the power of the husband, given no rights as to

their property, their children, or hardly even as to their person,

no complaint was heard. Whereas to-day the cry of unjust legislation

almost rises to a shriek. The movement for the emancipation of women

originated, of course, with Mary Wolstonecraft, about 1812. Her book,

which was the first, is certainly one of the longest that have yet

been written on the subject. It remained at the time unanswered, and

when its author married Godwin she herself seems to have lost interest

in the controversy. Nevertheless, little has been added since to the

ideas there put forward, save, indeed, for the vote. It is a somewhat

curious fact that in all Miss Wolstonecraft's great magazine of

grievances and demands for remedying legislation, there is not a

single word said about votes by women, or there being such a thing as

the right to the ballot.

[Footnote 1: In the trial of Mary Heelers for bigamy (2 State Trials,

498) as late as 1663 the chief justice said, 'If guilty, she must die;

a woman hath no clergy.' Yet Mary wrote to her husband, in court,

"Nay, my lord, 'tis not amiss, before we part, to have a kiss!" She

was acquitted.]

The industrial condition of the sex in American cities may be summed

up with the general phrase "absolute equality of opportunity," with

a certain amount of special protection. Women are nearly universally

required to be given seats in factories and stores, and the laws

specially protecting their periods of employment have just been

sustained as constitutional in the States of Illinois and Oregon and

the Supreme Court of the United States. On the other hand, we are far

behind European countries in legislation to protect their health or

sanitary conditions. The most radical effort at legislation ever made

was undoubtedly that Connecticut bill forbidding employment of married

women in factories, which, however, did not become a law. The

recent reports of Laura Scott to the American Association for Labor

Legislation, on Child Labor, 1910, and the Employment of Women, 1909,

have already been referred to. From the former, which appeared as we

are going to press, we learn that there are prohibited occupations

to children in all the States without exception--a statement which

certainly would not have been true some years since. These prohibited

groups of employment are generally, to male and female, dangerous

machinery and mines, and to females also saloons; and there is nearly

universally a limitation of all labor to above the age of twelve

or fourteen for all purposes, and to above fourteen or sixteen

for educational purposes, besides which there is a very general

prohibition of acrobatic or theatrical performances. Girls are

sometimes forbidden to sell newspapers or deliver messages for

telegraph companies or others. Compulsory education is, of course,

universal, and the machinery to bring it about is generally based upon

a system of certificates or cards, with truant officers and factory

inspectors.

According to the encyclopaedias, some five hundred thousand women

were employed in England about twenty years ago, of whom about three

hundred thousand were in the textile mills. In Massachusetts alone

there were two hundred and eight thousand women employed, according to

the last State census. Neither of these figures include the vast class

of domestic service and farm labor. The inclusion of this would swell

the proportion of adult women employed in gainful occupations to at

least one in four, if not one in three. Congress itself has recently

been investigating the question whether "home life has been

threatened, marriage decreased, divorce increased out of all

proportion, and the birth rate now barely exceeds the death rate, so

that the economic and social welfare of the country is menaced by this

army of female wage earners" (see _Boston Herald_, April 2, 1908). It

appeared that in 1900 one million seven hundred and fifty thousand

children were at work between the ages of ten and fifteen, of whom

five hundred thousand were girls. This and other considerations have

led to the movement for national child-labor laws already discussed.

Perhaps the most dangerous tendency, at least to conservative ideas,

is the increasing one to take the children away from the custody

of the parents, or even of the mother, and place them in State

institutions. Indeed, in some Western States it would appear that the

general disapproval of the neighbors of the method employed by parents

in bringing up, nurturing, educating, or controlling their children,

is sufficient cause for the State authorities to step in and disrupt

the family by removing the children, even when themselves unwilling,

from the home to some State or county institution. Any one who has

worked much in public charities and had experience with that woeful

creature, the institutionalized child, will realize the menace

contained in such legislation.

Finally, it should be remembered that throughout the United States

men are universally liable for their wives' debts, short of some

quasi-legal separation; on the other hand, wives are never liable for

the debts of their husbands.

XVIII

CRIMINAL LAW AND POLICE

There is no very general tendency toward new legislation in matters of

felony, and many States are still content to remain with the common

law. Such legislation as there is is mainly concerned with the

protection of women and children, alluded to in the last chapter. In

matters of less serious offences, of legislation creating misdemeanors

or merely declaring certain acts unlawful, there are three main lines:

First, legislation usually expressive of the common law against

conspiracies of all sorts, combinations both of individuals and

of capital, already fully discussed. Next, the general line of

legislation in the interest of the health of the public, such as

pure food and drug laws, and examination for trade or professional

licenses; and finally laws protecting the individual against himself,

such as liquor and anti-cigarette or anti-cocaine laws. It is hardly

necessary to more than illustrate some of these matters. Then there

are the laws regulating punishment for crime, laws for probation or

parole, indeterminate sentences, etc., all based on the modern theory

that reform, not retribution or even prevention, is the basis of

penology. Such laws have been held constitutional, even when their

result is to arbitrarily increase a man's sentence for crime on

account of his past or subsequent conduct. Finally, and most

important, there is the legislation regulating the actual trial of

cases, indictments, juries, appeals,--the law of court procedure,

civil as well as criminal, which for convenience we may consider in

this chapter.

Of the first sort of legislation, we have noted that in many States

adultery, in many States simple drunkenness, in other States mere

single acts of immorality, are made felonies. In 1892 the State laws

against food adulteration begin, which, by 1910, have covered milk,

butter, maple sugar, and many other subjects. By the Federal pure-food

law of 1906, applying to Interstate commerce in such articles, it

became advisable for the States to adopt the Federal Act as a State

law; also for the sake of uniformity a few States have had the

intelligence to do so. The trades of fat-rendering and bone-boiling

are made nuisances by statute.

In 1896 we note the first statutes against lynching. In 1897 local

option prevails in Texas, and the blue laws of Connecticut are

abolished to the extent that recreation on Sundays is no longer

prohibited. Local option and anti-lynching laws continue during the

next two or three years, and by 1900 twenty-four States have pure-food

laws, which, however, are ineffective because they impose no

sufficient penalty. In 1903, in consequence of the assassination of

President McKinley, Washington and Wisconsin make the advocating

anarchy a felony. Twenty-one more States pass pure-food laws, and

nearly all the States have gone over to local option from State-wide

prohibition, to which latter principle only three States now adhere.

In 1904 Mississippi and Virginia adopt more stringent laws against

vagrancy, and 1905 is the year of active legislation on the

indeterminate sentence, juvenile courts, parole and probation, with

two more statutes against mobs and lynching. In 1907 the States are

busied with the attempt to enforce their prohibition regulations

against the interstate commerce jurisdiction of the Federal

government. Solicitation of interstate orders for liquor is forbidden

in Mississippi, and it is provided that shipments sent C.O.D. are

not to be moved one hundred feet or given away; also, that the mere

possession of an internal revenue receipt from the United States

government is _prima facie_ evidence of an offence against the State

law. Statutes of this kind led to renewed conflict between State and

Federal authority. Virginia adopts the statute against giving tips or

any commissions; see p. 244 above. In 1908 we find more parole and

probation laws, two prohibition and three local-option laws, and four

new pure-food statutes.

Coming to matters of court procedure, in 1890 one State provides that

there should never be called more than six witnesses for each side in

any criminal case, which oddly reminds one of early English trials

by compurgation; but is, of course, quite unconstitutional in

this country. In 1893 Connecticut adopts a statute that honorably

discharged soldiers and sailors addicted to drink are to be "treated"

free at the State hospital. The definition of the word "treated"

seems ambiguous, but in any event it is a pleasing reminder of Bishop

Berkeley's remark that he would "rather see England free than England

sober." Some States provide for a jury of eight in criminal cases

and for a verdict of three-quarters in civil cases--a statute of

questionable constitutionality. Very generally throughout the twenty

years studied by us, the States have adopted stricter rules for the

admission of attorneys at law to practise at the bar.

In 1895 Pennsylvania yields to the physicians and passes a statute

forbidding them to disclose communications of patients, but the

statute only applies to civil cases. More States provide for verdicts

by a majority of the jury. Maryland goes Pennsylvania one better in

extending the professional privilege to newspaper reporters; that is

to say, we find a statute that they may not be compelled to disclose

their sources of information, an excellent statute for the yellow

journal. In 1897 California abolishes capital punishment; there has

been a general tendency in this direction, of recent years, although

some States, having tried the experiment, have returned to it again,

as has the Republic of France. In 1899 the privilege from testifying

is extended in one State also to trained nurses, and in others to

physicians, even in criminal cases, although they may testify with the

patient's consent. The same law was adopted in Iowa in 1900, Ohio does

away with the common law of libel, except the plaintiff can prove

actual malice. By this year, seventeen States expressly allow women

to practise law, and twenty-eight do so by implication. The Colorado

statute for a three-fourths verdict is held unconstitutional.

The regulation of the liquor traffic is, perhaps, after the labor

question, the most universal subject of legislation in occidental

nations. Experts on the matter tell us (E.L. Fanshawe, "Liquor

Legislation in the United States and Canada," Report to Parliament,

1892) that there have hitherto been but three, or possibly four,

inventions--universal or State-wide prohibition, local option,

license, high or low, and State administration. The last was recently

tried in South Carolina with more or less success. Prohibition by

a general law does not seem to be effective; local option, on the

contrary, does seem to be so. But the general consensus of opinion,

to which Mr. Fanshawe comes, and which seems still to be held by most

intelligent American publicists, is that on the whole high license

works best, and this the women themselves have just voted in Denver;

not only because it actually prohibits to a certain extent, but it

regulates and polices the traffic, prevents the sale of adulterated

liquor, and to a considerable extent the grosser disorders and

political dangers that attend the bar-room. On the other hand, the

power of licensing should never be granted to any political body,

but should be granted under fixed rules (determined by geographical

position and the local opposition or desire) by the local government.

These rules should not be arbitrary, and the person applying for

license should have the right to appeal to some court.

Matters of bribery and political corruption have been somewhat

anticipated under Chapter 14. Suffice it here to say that the States

very generally have been adopting statutes making bribery criminal and

a cause of permanent disqualification from all political right, either

voting or holding office, and this applies both to the person bribing

and the person receiving the bribe. Bribery by offers or promise

of employment is a far more difficult matter, but this matter also

certain States have sought to regulate.

There are, of course, thousands and thousands of city ordinances

relating to the criminal law, but usually to minor offences or matters

of police regulation. Undoubtedly the duplication of them tends to

make us not a law-abiding community. It was the present Boston police

commissioner who complained that there were more than eleven thousand

ordinances in Boston, which everybody was supposed to know. We must

let the whole matter go by saying that there is a general attempt at

universal police regulation of all the actions of life, at least

such as are conducted outside of a man's own house. Sunday laws,

Sabbatarian legislation, have, of course, very largely been abandoned,

except when restored in the interest, or supposed interest, of labor.

In the State of New York, for instance, barbers could only shave on

Sunday in the city of New York and the town of Saratoga; the reasons

for the exception are obvious.

Coming to general principles of penology, there is no doubt that of

the three possible theories, revenge, prevention, and reform of the

criminal, it is the latter that in the main prevails throughout the

United States. An investigation was conducted some years since by

correspondence with a vast number of judges throughout the world, and

it proved that this was also their principle of imposing sentences,

in the majority of cases. More radical change is found in that

legislation freeing prisoners on parole, providing indeterminate

sentences, and in the creation of special courts for boys and young

women, with special gaols and reformatories. Jury trial, of course,

remains substantially unchanged from the earlier times, only that the

jurors are now in most States permitted to read or to have read the

newspapers, and that the government has a right of appeal when the

verdict has gone for the prisoner on a point of law. This matter,

upon President Roosevelt's recommendation, was embodied in an act of

Congress.

The legislation making it criminal to advocate assassination or

anarchism has been adverted to when we were considering the rights of

aliens. In England, it is treason to imagine the death of the king.

There is no constitutional reason why it should not be treason to

imagine the death of the president, or perhaps even the subversion by

force of organized society. Such laws have been passed in Washington,

Wisconsin, and other States.

It has, in some States, been made a capital offence to kidnap a child,

and, as has been elsewhere said, the rigor of the common law is very

generally preserved for the crime of rape. The most active effort

to-day for legislation in matters quasi-criminal is that to extend

jury trial over cases of contempt of court, particularly when in

violation of a chancery injunction when the act itself is criminal.

The greatest need of criminal legislation is in the writer's opinion

in matters of business or corporate fraud, and in revival of our older

English law against the extortion or regrating of middlemen, the

engrossing of markets, the artificial enhancing of the prices of the

necessaries of life, and the withholding, destruction, or improper

preservation of food. But most of all, as President Taft has urged,

greater speed and certainty and less technicality in court trials for

crime--a reform of our legal procedure.

XIX

OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC

DOMAIN

The matter of most interest in modern American legislation for

municipal government is probably the home-rule principle. That is,

statutes permitting cities or towns, or even villages, to draw and

adopt their own charters and govern themselves in their own way. The

charter thus adopted may, of course, be the old-fashioned government

of mayor, aldermen, common council, etc., or it may be the newly

invented government by commission, based substantially on the theory

of permanent officials chosen at infrequent intervals, and officers,

in so far as possible, appointed, and not elected. The one makes for

efficiency, the other for democracy. At present the American

people seem to have a craze for efficiency, even at the expense

of representative government, and of principles hitherto thought

constitutional. It is impossible to tell how long it will last. It may

carry us into the extreme of personal government, national, State, and

local, or history may repeat itself and we may return to the principle

of frequent elections and direct responsibility to the voters under

the arbitrament of the courts of law. We may go on to special courts

(declared odious in the Great Case of Monopolies) and administrative

law, or be content with improved understanding of the law we already

have.

These matters are too large for us; coming down to more concrete

facts, we find that the general tendencies of legislation upon State,

and particularly municipal, government are to somewhat enlarge its

functions, but considerably to limit its expenditure. Greater distrust

is shown in legislatures, municipal as well as State, and a greater

trust and power reposed in individual heads, and a much greater power

intrusted to more or less permanent boards and commissions, usually

not elective, and often clothed with vast powers not expressly

submitted to the scrutiny of courts of law. The purposes of education

are somewhat extended, generally in the direction of better education,

more technical and practical and less "classical."[1] Charity includes

a largely increased recreation for the people, State provision for

many more classes of the invalid and incompetent, specialized homes

for various sorts of infirm or inebriate, and some little charity in

the guise of bounties of seed, etc., to needy farmers, which latter,

however, have usually been held unconstitutional.

[Footnote 1: Though a lady orator in Boston this year complains to

an audience of labor unionists that trades schools and industrial

education tend to "peasantize" the poor. Peasanthood was the condition

of the agricultural laborer; it was skilled labor that made him

free--neither peasant, peon, nor villein. See p. 20, above.]

Thus, in 1890 North Dakota limits the debt of cities to five per

cent.; but permits county loans to raise seed grain for needy farmers;

other States extend the principle of socialism to electric lighting,

gas, natural gas, water, sewers, agricultural drainage, irrigation,

turnpikes, and cemeteries. That is to say, all may be built,

maintained, or run at the municipal expense, or under municipal

control. In 1895 Wisconsin, North Carolina, Texas, and other States

carefully limit State, county, town, or city taxes to prescribed

rates. Texas requires a two-thirds vote on the issue of municipal

bonds, and fixes the debt limit at five per cent. In 1896 Missouri

rejects a constitutional amendment permitting municipal gas and water

socialism on majority vote of the voters. The same year the failure

of such enterprises begins to show itself in a statute of Iowa

authorizing municipal plants to be sold upon a popular vote. The

socialist town of Hamilton, Ohio, actually went into the hands of a

receiver; a similar result followed the English experiments in the

towns of Poplar and West Ham.

In 1897 many other States adopted a limit for State, city, county, or

town taxes. Indeed, it may be stated generally, without going into

further details, that such laws are practically universal throughout

the South and West, and prevail to some extent as to cities only in

New England, and the same may be said of laws fixing a debt limit

which States, counties, cities, or towns may not exceed. Such laws are

very generally evaded, as by leasing desired improvements of a private

company, or (in Indiana at least) the overlapping of municipal

districts; thus there may be (as formerly in England) city, town,

school district or poor district, each separate and not conterminous.

While it is obvious that municipal socialism has rather decreased in

the last ten years, laws restricting the granting of franchises have

become far more intelligent and are being generally adopted. The best

example of such legislation is probably to be found in Kansas. The

general principles are that no franchise can be given but for a

limited time, that it must be bought at public auction, that the

earnings beyond a certain percentage on investment must revert to

the city, and that there must be a referendum to popular vote in the

locality interested. In 1899 Michigan declares the municipal ownership

of street railways unconstitutional, but Nevada passes a statute

for municipal ownership of telephone lines. In 1903 the municipal

ownership of gas and oil wells is permitted in Kansas, and of coal

or fuel yards in Maine. A law similar to the latter was declared

unconstitutional by the Massachusetts Supreme Court. Missouri adopts a

sweeping statute for the municipal ownership of "any public utilities"

in cities of less than thirty thousand population. In 1904 Louisiana

permits small towns to own and operate street railways. Other States

copy the Missouri statute as to municipal ownership of all or any

public utilities, and generally the principle is extended, but only in

a permissive way; that is to say, upon majority vote, and this seems

to be the present tendency. The most striking present experiment is

in Milwaukee; both Haverhill and Brockton tried socialistic city

government in Massachusetts, but abandoned it.

Civil-service reform has very generally made progress during the past

twenty years in State and city governments, and probably the principle

is now more or less recognized in a great majority of the States.

Comparatively little is to be said as to internal improvements.

The Michigan Constitution provides that the State shall go into no

internal improvement whatever, and this, of course, was the older

principle without any express constitutional provision. North Dakota

and Wyoming provide that the State cannot be interested in works of

internal improvement except upon two-thirds vote of the people.

South Dakota also provides that the State may not engage in them in

any case; Alabama, that it may not loan its credit in support of

such works; and Maryland, Minnesota, and Wisconsin, that it may not

contract debts for the same, or in Kansas be a party to carrying them

on. In Virginia, no county, city, or town may engage in any work

of internal improvement except roads. Many of the States, however,

specify a considerable number of purposes for which State, cities, or

counties may give or loan their credit; and the matter of municipal

socialism has just been discussed.

Very generally, the States have created agricultural experiment

stations and model farms, drainage districts in the South, a levee

system on the Mississippi River, and irrigation districts in the West;

artesian wells in Texas, and in several States, State dairy bureaus.

In specialized products, such as beet sugar, there is often provision

for a State agricultural bureau, and nearly always for general

agricultural as well as industrial instruction. The States are only

beginning to adopt State forests, or forest reserves, Massachusetts

and New York leading the way. Forestry commissions exist in a few

States, but the very slightest beginning has been made at forestry

laws. No control is as yet exercised over reforestation or replanting;

a few of the Western States exempt growing trees, or the land covered

by growing trees, from more than a nominal tax, notably Indiana and

Nebraska. The forestry laws are, however, increasing. In 1903 we find

one, in 1904 five, and in 1905 six, with the tree bounty law in North

Dakota, and two States exempting forest lands from taxes. There are

four statutes this year for fish or game preserves. In 1907 four

States create forestry boards, and two exempt forests from taxation,

and in 1908 growing trees are exempted in Massachusetts and Rhode

Island. But under the unlimited power of Congress over Federal

territory not yet incorporated into States, or not ceded to the State

when incorporated, it is to the Federal government that we have looked

for the creation and preservation of parks, forest reserves, and

natural reserves generally. How far it may constitutionally create

such within the lines of old States, or on land of which it is

otherwise incapable of ownership, is a constitutional question still

undecided.

The educational functions of the State are, of course, a peculiar

principle of American civilization. Nearly all State constitutions

provide that education is a natural right, and the first common school

supported by general taxation appears in the Colony of Massachusetts

Bay before the year 1640. The principle of compulsory education

exists throughout all the States, and in all education of the most

diversified kind is given, from the primary school or kindergarten to

the State university or technical school of applied science, trade, or

business. Nearly all the States have established State universities

which are free or open at a nominal charge. Massachusetts continues

to rely upon a semi-private institution, Harvard University, which,

indeed, is expressly mentioned in its constitution. Provision is

universally made also for evening schools, for industrial schools, for

public libraries, and for popular elections, and besides the ordinary

educational laws and the truant laws, there is in the statutes

concerning labor matters abundant machinery for requiring some

education as a preliminary to any employment. The age of compulsory

education may be said to average between the ages of eight and

fifteen, though the limits are extended either way in the divers

States. Farm schools and industrial reform schools generally

exist, both as a part of the present system and of the educational

department. Coeducation in State schools and colleges is almost

universal. On the other hand, as we have shown, the segregation of

the races is in some States insisted upon. Several States forbid the

employment of teachers under the age of sixteen, or even eighteen.

Free text-books are generally provided. The period of compulsory

schooling varies from the classic twelve weeks in the winter, as in

old New England, to substantially the full academic year. Textile and

other manual training schools exist in some States, but have generally

evoked the opposition of organized labor, and are more usually

created by private endowment. The tendency of civil service reform

legislation, furthermore, has been to require a certain minimum of

education, though it may be feared that the forecast of De Tocqueville

remains justified; our national educational weakness is our failure to

provide for a "serious higher instruction."

The great question of taxation we may only mention here by way of

exclusion. It is naturally a matter for treatment by itself. The

reader will remember (see chapter VII) that nearly all the States have

now inheritance taxes besides direct property taxes, and many of them

have income taxes and, in the South particularly, license taxes, or

taxes upon trades or callings. They all tax corporations, nearly

always by an excise tax on the franchise or stock, distinct from the

property tax or the tax upon earnings. In both corporation taxes and

inheritance taxes they are likely to find themselves in conflict with

the Federal government, or at least to have duplicate systems taxing

the same subjects, as, indeed, already considerable injustice is

caused by inheritance taxes imposed in full in each State upon the

stock of corporations lying in more than one State. In such cases the

tax should, of course, be proportionate.

The principle of graded taxation in the matter of incomes and

succession taxes has been very generally adopted, not as yet in any

direct property tax, except that a small amount of property, one

hundred dollars or five hundred dollars, is usually exempt.

The principle of imposing taxation not for revenue, but for some

ulterior or ethical purpose, such as the destruction of swollen

fortunes, is liable to constitutional objection in this country,

though the courts may not look behind the tax to the motive, unless

the latter is expressed upon the face. For this reason, the present

corporation tax, on its surface, is imposed solely for the purpose of

raising revenue, though in debate in Congress it was advocated

mainly for the object of bringing large corporations under Federal

examination and control.

The last matter relating to taxation, that of bounties, we have

discussed in chapter VII also. State aid bonds, or bonds of counties,

cities, and towns, issued to encourage industries, raise a question

far more complex than the simple bounty. Such legislation has,

however, practically ceased throughout the country, except in the form

of exemption from taxation. It has been recognized by a long line of

decisions that it is constitutional to grant such aid to railroads,

but it may be questioned in almost any other industry. A mere

exemption from taxation, especially for a certain number of years,

rests on a stronger constitutional basis. Many of the Southern States

have recently passed laws exempting manufacturing corporations, etc.,

from taxation for a definite number of years, and such provisions are

found in one or two State constitutions. When they only rest upon a

statute, however, they are always at least litigable at the suit of

any tax-payer. So, bonds issued by the city of Boston under a statute

expressly authorizing them to enable land-owners to rebuild after the

great fire, were held to be void. A Federal loan was proposed to raise

money to lend to the inhabitants of San Francisco to rebuild after the

earthquake, but failed of enactment. It will be remembered that the

States have very generally no power to engage in internal improvements

(see above). _A fortiori_, therefore, they can hardly loan money or

credit to private interests be they never so much for the general

benefit. The difficulty of testing all such laws has been adverted to,

at least in the case of taxation. For that purpose Massachusetts has

a wise law providing machinery by which such matters may be contested

upon the action of any ten tax-payers.

There are three great questions before us in the immediate future--the

negro, local or self government, and taxation, which last is the chief

problem of city and town government.

The world has never before tried the experiment of municipal

government, where those who have the local vote do not generally pay

the local taxes.

XX

FINAL

One would suppose that a democracy which believes in the absolute

panacea of law-making would take particular pains with the forms of

its legislation, to have its statutes clear, in good English, not

contradictory, properly expressed and properly authenticated. You

would certainly suppose that the people who believe that everything

should be done under a written law would take the greatest pains to

see that law was _official_; also, that it was clear, so as to be

"understanded of the people"; also, that it did not contain a thousand

contradictions and uncertainties. When our--I will not say wiser, but

certainly better educated--forefathers met in national convention to

adopt a constitution, one of the first things they did was to appoint

a "Committee on Style." It is needless to say that no such committee

exists in any American legislature. You would suppose they would take

pains to see that all the laws were printed in one or more books where

the people could find them. This is not the case in New York or in

many of our greater States. You would also suppose that when they

passed another law on the same subject they would say how much of the

former law they meant to repeal, but in many States that also is not

done. It would probably be too much to hope that they should not

confuse the subject with a new law on a matter already completely

covered; but the form of their legislation should be improved at least

in the first three particulars I have mentioned.

What is the fact? The secretary of one new State reports that the

laws, as served up to him by the legislature, are "so full of

contradictions, omissions, repetitions, bad grammar, and bad spelling"

that it has been impossible for him to print them and make any sense;

the bad grammar and the bad spelling, at least, he has, therefore,

presumed to correct. But what should surprise us still more is, that

in very few of our States is there any authentic edition of the laws

whatever, and quite a number do not publish their constitutions!

The worst condition of all is found in the national legislation of

Congress, until very recently in the great State of New York, and in

those States which have adopted the code system generally. I do not

say this as an opponent of general codes, but I am constrained to note

as a fact that those States are the ones which have their legislation

in the worst shape of any. The charm of the statute theory is that

the half-educated lawyer or layman supposes he can find all the laws

written in one book. Abraham Lincoln even is said to have had the

major part of his "shelf of best books" composed of an old copy of the

statutes of Indiana, though I can find no traces of such reading in

the style of his Gettysburg address. But how far is this democratic

claim that the laws of a State are all contained in one book borne out

by the facts?

Of our fifty States and Territories only Alabama, Arizona, the

District of Columbia, Connecticut, Delaware, Maine, Maryland,

Massachusetts, Montana, New Hampshire, New York (partially), North

Carolina, Rhode Island, South Carolina, Vermont, and Wisconsin

(sixteen States) have any official revision or "General Laws"; that

is to say, one or more volumes containing the complete mass of

legislation, up to the time of their issue, formally enacted by the

legislature. A number of other States have what are called "authorized

revisions" or authorized editions of the law. This phrase I use to

mean a codification by one or more men (usually a commission of three)

who are duly appointed for the purpose, under a valid act of the

State legislature, but whose compilation, when made, is never in form

adopted by the legislature itself. Leaving out the constitutional

question whether such a book is in any sense law at all--for in all

probability no legislature can delegate to any three gentlemen the

power to make laws, even one law, much more all the laws of the

State--leaving out the constitutional question. It is very doubtful

how far such compilations are reliable, although printed in a book

said to be authorized and official, and held out to the public as

such. That is to say, if the real law, as originally enacted, differs

in any sense or meaning from the law as set forth in this so-called

"authorized publication," the latter will have no validity. Indeed,

some States say this expressly. They provide that these compilations,

although authorized, are only admissible _in evidence_ of what the

statutes of the State really are--that is to say, only valid if

uncontradicted. It was impossible to correspond with all the States

upon this point--if, indeed, I could have got opinions from their

respective supreme courts, for no other opinion would be of any value.

The compilation of the State of Arkansas says, somewhere near its

title-page, that it is "approved by Sam W. Williams." It does not

appear who Sam W. Williams is, what authority he had to approve it, or

whether his approval gave to the laws contained in that bulky volume

any increased validity. This is a typical example of the "authorized"

revision, and this is the state of things that exists in such

important States as Arkansas, California, Colorado, Florida, Hawaii,

Idaho, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New

Mexico, North Dakota, Oregon, South Dakota, Tennessee, Utah, Virginia,

and Wyoming (twenty in all).

Before leaving these States, which do have some form of "revised

statutes" or complete code--and be it remembered that I am never here

speaking of annual laws, for however bad their form and the form of

their publication, they are usually, at least, _official_--it will be

interesting, and, I think, throw further light on the subject, to

cull some passages from the laws of States having such "authorized

revisions," to show how far their real authority extends. The general

statutes of 1897 of the State of Kentucky say on their title-page that

they are an authorized compilation approved by the Supreme Court, but

the form of approval of the Supreme Court of Kentucky runs as follows:

"Although we consider this duty not lawfully imposed upon us," they

say that, so far as they have observed, they "detect no errors in the

compilation and it seems to have been properly done." Of how much

value such approval would be in case there turned out to be a

discrepancy between the compilation and the original statute, I leave

to the lawyers to judge. The compiled laws of New Mexico of the same

year, made by the solicitor-general, contain an amusing statement

under his own signature, that he believes "a large part of the laws

he there prints are either obsolete or have actually been repealed by

certain later statutes," but he, as it were, shovels them in, in the

hope that some of them may be good!

The commissioners of the State of North Dakota go still farther.

Their code of 1895 bears a statement that it is, by authority of law,

"brought to date" by the commissioners, who go on to say that

they have compared the codes of other States and have added and

incorporated many other laws taken from such codes of other States,

apparently because the commissioners thought them of value! One must

really ask any first-year student of constitutional legislation what

he thinks of that statement, not only of its constitutionality, but of

its audacity. Finally, the State of South Dakota says, in its statutes

of 1899, what I quoted at the beginning--that "all the laws contained

in the book are to be considered as admissible in evidence," but not

conclusive of their own authenticity or correct statement.

We now come to the third, and, from the point of view of the believer

in statutes, probably the worst class of all. That is to say, States

which have no official or authorized compilation whatever and which

rely entirely upon the enterprise of money-making publishers to make a

book which correctly prints the laws, and all the laws, of the State

in question. For one State, at least, such a compilation was made by a

few industrious newspaper correspondents at Washington! The States and

Territories that are in this cheerful condition are, as I have said:

New York (in part) the Territory of Alaska, California, Colorado,

Illinois, Indiana--that is to say, there has been no official

revision since 1881 and everybody, in fact, uses a privately

prepared digest--Louisiana, Michigan, Minnesota, Mississippi, Ohio,

Pennsylvania, Washington, and West Virginia (fourteen in all). Besides

this, there are other States such as Wisconsin and Indiana, already

mentioned, where there is no official _recent_ revision, so that

everybody depends upon a private compilation, which is the only one

procurable.

So much for the authenticity of the books themselves which contain the

laws upon which we all have to depend. Now, coming to the form of the

laws. As I have already remarked, there is no committee on style.

There is no attempt whatever made at scientific drafting. To give an

example of what difference this may make in mere convenience, it is

only a few weeks since, in Massachusetts, a chapter of law to protect

the public against personal injuries caused by insolvent railway and

street railway companies was drawn up by a good lawyer, and contained

between twenty and thirty sections, or about three pages of print.

It was brought to another lawyer, certainly no better lawyer, but a

legislative expert, who got all that was desired into one section

of five lines. There is no committee on style, there is no expert

drafting. The case of the recent Massachusetts statute declaring the

common law to be the common law, and therefore jeopardizing the very

object of the statute, will not be forgotten (see p. 188 above). There

are certain definite recommendations I should like to make.

First, adopt the provision that "no statute shall be regarded as

repealed unless mentioned as repealed, and when a law is amended, the

whole law shall be printed as amended in full." This would acquaint

the legislature with the law already existing, before they proceed to

change it. Next provide that all laws shall be printed and published

by a _State_ publisher and the authenticity of all revisions be duly

guaranteed by their being submitted to the legislature and re-enacted

_en bloc_, as is our practice with revisions in Massachusetts and some

as other States. Third, the local or private acts should be separated

from the public laws, and they might advantageously even be printed in

a separate volume, as is done in some States already. But who shall

determine whether it is a private, local or special act, or a general

law? I can only answer that that must be left to the legislature

until we adopt the system strongly to be recommended of a permanent,

preliminary, expert draftsman. Finally, no legislation must ever be

_absolutely_ delegated. That is to say, even if a revision is drawn up

by an authorized commission, their work should be afterward ratified

by the legislature. It is said, I think, that the constitution of

Virginia, drawn up by a constitutional convention, was never ratified

by the people. If so, there is a grave constitutional doubt whether it

or any part of it may not be repealed at any time by a simple statute.

But can a constituent body of the mass of the people, the fundamental

and original political entity of the Anglo-Saxon world, be forbidden

from delegating its legislative power, as its representatives

themselves are forbidden?

The last matter, that of arrangement, order of printing, and form of

title, is so directly connected with that of indexing that I shall

treat the two things together. Now, there are three different methods

of arrangement, or lack of arrangement, to be found in printing

the laws of our forty-six States and four Territories, both in the

revisions and in the annual laws. The revisions, however, are more apt

to have a _topical_ arrangement, and to be divided into chapters,

with titles, each containing a special subject and arranged, either

topically, or, in some States, even so intelligent otherwise as are

Pennsylvania and New Jersey, arranged with the elementary stupidity of

the alphabetical system. I say, stupid; when, for instance, you have a

chapter on "Corporations," no one can tell whether the legislature or

compilers are going to put it under "C" for corporations, under "I"

for incorporations, or under "J" for joint-stock companies. The

alphabetical system of arrangement is the most contemptible of all,

and should be relegated to a limbo at once. The annual laws, of

course, are much less likely to have any arrangement whatever. Passed

chronologically, they are more apt to follow in the order of their

passage.

Now these systems as we find them are as follows: in nearly all States

public and private laws are lumped together, although in a few they

are indexed separately. Most of the States to-day, including all the

"code" States, adopt the topical system of arrangement, as, indeed,

must be the case in anything that might, by any possibility, be called

a code, and even a general "revision" of the statutes will naturally

fall into chapters covering certain subjects. A few States, as I have

said, cling to the crude alphabetical system, and quite a number have

no discernible system whatever. In some States the annual laws are

arranged by number, in some by date of passage, and in some apparently

according to the sweet will of the printer. In those States which do

not arrange them or entitle them by date of passage we have to depend

on the crude and dangerous system of citation by page. Acts of

Congress are sometimes cited by date of passage, sometimes more

formally by volume and number of the Statutes at Large, and more often

than either, probably, by the popular name of the statute, such as the

"Sherman Act," the "Hepburn Act," or the "Interstate Commerce Law."

It seems to me we should recommend one system. That for the codes or

general revisions should certainly be topical. That of the annual laws

may either be topical or chronological, but the statutes, in whatever

order they are printed, should be _numbered_ and cited by number. No

alphabetical arrangement ever should be permitted.

As to indexing we should urge upon State legislatures, secretaries

of State, and official draftsmen (when we get any) that the very

excellent system contained in the New York Year Book of Legislation

should be adopted for all volumes of State laws. It is as bad for the

index to be too big as to be too little, and it does not follow that

the good draftsman is a good indexer. The index to our Revised Laws

of Massachusetts is contained in one large separate volume of 570

double-column pages. To look for a statute in the index is just about

as bad as to look for it in the revision itself. The most important

point of all is the proper choice of subject titles. Laws should

be indexed under the general subject or branch of the science of

jurisprudence, or the subject-matter to which they belong, not too

technically and not too much according to mere logic. For example, any

lawyer or any student of civics who wished to learn about the labor

laws of a State, whether, for instance, it had a nine-hour law or not,

would look in the index under the head of "Labor." _Labor_ has become,

for all our minds, the general head under which that great and

important mass of legislation concerning the relation of all employers

and employees, and the condition and treatment of mechanical or other

labor, naturally falls. But if you search in our elaborate index of

Massachusetts for the head of "_Labor_" you will not find it. If you

look under "_Employment of Labor_" you will find it, but you cannot be

certain that you will find all of it, and you will find it under so

many heads that it would take you quite ten or fifteen minutes to read

through and find out whether there is an "hours-of-labor" law or not.

On the other hand, purely technical matters, such as "_Abatement_" are

usually well indexed, because their names are what we call "terms of

art," under which any lawyer would look.

But, after all, it does not so much matter what system we adopt as

long as it is the same system. At present I know of nothing better

than the forty heads contained in the "Principal Headings" of the New

York State Library Index, though I should like to change the names of

a few. For instance, "Combinations or Monopolies" is not the head to

which the lawyer would naturally look for statutes against Trusts. The

word "trust" has become a term of art. If not put under "Trusts" it

should be under "Restraint of trade" or "Monopolies," but the word

"combination" is neither old nor new, legal nor popular. A combination

is lawful. If unlawful, it is _not_ a combination, but a conspiracy.

The most important statute of the United States is perhaps the most

horrible example of slovenliness, bad form, and contradiction of all.

The "Hepburn Act" is the amended Interstate Commerce Act, and is

printed by Congress in a pamphlet incorporating with it quite a

different act known as the Elkins Act, besides the Safety Appliance

Act, the Arbitration Act, and several others. We all remember under

what political stress this legislation was passed, with Congress

balking, the senators going one way, the attorney-general another, the

radical congressmen in front, and the president pushing them all. It

is easily intelligible that such a condition of things should not tend

to lucid legislation, particularly when an opposing minority do not

desire the legislation at all, and hope to leave it in such a shape

as to be contradictory, or unconstitutional--or both. (This has been

intentionally done more than once.) All of it a mass of contradictions

or overlaying amendments, the first important part of it which came

under the scrutiny of the Supreme Court only escaped being held

unconstitutional by being emasculated. Its other clauses have yet to

face that dreaded scrutiny. Its basic principle has yet to be declared

constitutional, while the only principle which has proved of any value

was law already. This wonderful product of compromise starts off by

saying "Be it enacted, etc., Section I as amended June 29, 1906." It

begins with an amendment to itself. It does not tell you how much of

the prior law was repealed, except upon a careful scrutiny which only

paid lawyers were willing to give. Upon the old Interstate Commerce

Act of 1887, after quoting it substantially in full, it adds a mass of

other provisions, some of which are _in pari materia_, some not; some

contradictory and some mere repetitions. It amends acts by later

acts and, before they have gone into effect, wipes them out by

substitutions. It hitches on extraneous matters and it amends past

legislation by mere inference. Like a hornet it stings in the end,

where revolutionary changes are introduced by altering or adding a

word or two in sections a page long, and it ends with the cheerful but

too usual statement that "all laws and parts of laws in conflict with

provisions of this act are hereby repealed." As a result no one can

honestly say he is sure he understands it, any more than any serious

lawyer can be certain that its important provisions are any one of

them constitutional. And that huge statute with sections numbered 1,

2, 5, 16, 16_a_, etc., with amendments added and substituted, amended

and unamended, is contained in twenty-seven closely printed pages. I

venture to assert boldly that any competent lawyer who is also a

good parliamentary draftsman could put those twenty-seven pages of

obscurity into four pages, at most, of lucidity, with two days' honest

work. By how little wisdom the world is governed! And how little the

representatives of the people care for the litigation or trouble

or expense that their own slovenliness causes the people! For the

necessity of political compromise is no excuse for this.

I therefore urged before the National Association of State Libraries,

at their annual meeting of 1909, that they should use their influence

with the various State governments at least--"1, that all revisions

be authenticated, authorized, and published by the State; 2, that

the annual laws be separated, public from private, and be printed by

numbered chapters arranged either chronologically or topically; 3,

that the indexes be arranged under the forty general heads used by

the New York State Library in its annual digest, with such additional

heads as may, perhaps, prove necessary in some States, such as, for

instance, Louisiana, which has subjects and titles of jurisprudence

not known to the ordinary common-law States; 4, that the constitutions

be printed with the laws; 5, that every State, under a law, employ a

permanent, paid parliamentary or legislative draftsman whose duty it

shall be to recast, at least in matters of style and arrangement, all

acts before they are passed to be engrossed."

Any private member introducing a bill can, of course, avail himself

of the draftsman's services before the bill is originally drawn. His

advice may be required by the legislature or by legislative committees

on the question whether the proposed legislation is necessary, that

is to say, whether it is not covered by laws previously existing. It

shall be his duty then to edit the laws, arrange them for publication,

and to authenticate by his signature the volumes of the annual laws.

One person is better than two or three for such work, but he should

be paid a very large salary so that he can afford to make it his life

work. He should be appointed for a very long term and should have

ample clerical assistance. It should also be his duty to correspond

and exchange information with similar officials in other States.

In other words, he with his assistants should be the legislative

reference department. These recommendations were duly referred to the

Committee on Uniformity in preparation of session laws.

* * * * *

At some risk of wearying the reader I have attempted superficially

to cover a very extensive field. I started with quoting Blackstone's

remark that there is no other science in which so little education

is supposed to be necessary as that of legislation. These words were

penned by him more than one hundred and fifty years ago and there

is still no book upon this subject; the books on Government,

Parliamentary Law, and Hermeneutics concerning respectively the

source, the procedure, and the interpretation of legislation, not

the content thereof. I can but hope to have called attention to the

immense importance of this subject, particularly in our representative

democracy, and I will beg my readers who have been patient with me to

the end to reflect for more than a moment on the extraordinarily novel

state of things that this modern notion of the legislative function

brings about. It is a commonplace of historical writers to open their

first chapter by calling attention to the difference made by steel and

electricity, to the fact that it took longer to get from Boston to

Washington in 1776 than it does to-day from Maine to California

and back; that it took longer even for the rural legislator in the

Connecticut Valley to get to his State Capitol than it does to-day

to go from there to Washington. But no one, I think, has ever called

attention to the enormous differences in living, in business, in

political temper between the days (which practically lasted until the

last century) when a citizen, a merchant, an employer of labor, or a

laboring man, still more a corporation or association, and lastly, a

man even in his most intimate relations, the husband and the father,

well knew the law as _familiar_ law, a law with which he had grown up,

and to which he had adapted his life, his marriage, the education

of his children, his business career and his entrance into public

life--and these days of to-day, when all those doing business under a

corporate firm primarily, but also those doing business at all;

all owners of property, all employers of labor, all bankers or

manufacturers or consumers; all citizens, in their gravest and their

least actions, also must look into their newspapers every morning to

make sure that the whole law of life has not been changed for them by

a statute passed overnight; when not only no lawyer may maintain an

office without the most recent day-by-day bulletins on legislation,

but may not advise on the simplest proposition of marriage or divorce,

of a wife's share in a husband's property, of her freedom of contract,

without sending not only to his own State legislature, but for the

most recent statute of any other State which may have a bearing on

the situation. Moreover, these statutes, which at any moment may

revolutionize a man's liberty or his property, are not as they were in

old times--a mere codification, or attempt at the best expression of

a law already existing and well "understanded of the people"; but may

and probably will represent a complete reversal of experience, an

absolute alteration of human relations, a paradox of all that has gone

before; and even when they endeavor not to do so, as in the case of

that Massachusetts statute above referred to, their authors' lack of

education in the science of legislation may unintentionally cause a

revolution in the law. And even when a statute does not do this, no

lawyer can be certain what it means until, years or decades afterward,

it has received recognition from an authoritative court. That is why

much complaint has been made of lawyers; they are said not to know

their business, not to be able to tell what the law is. The head of

a great railroad has recently complained that he was only anxious to

obey the law, but had great difficulty in finding out what the law

was. Any good lawyer with common sense knows the common law and usage

of the people; but no one could tell at the time of its passage what,

for instance, the Sherman Act, enacted twenty-three years ago, meant;

the twenty-three years have elapsed; the anti-trust law has been

before the courts a thousand times, and the best lawyers in the

country do not to-day know what it means; and the highest tribunal

in the land is so uncertain on the subject that it has ordered the

Standard Oil case reargued.

This is not to say that one must not recognize the meaning and the

need of law-making by statute; of law made by the people themselves

to suit present conditions. "There should be a law about it," is the

popular phrase--commonly there _is_ a law about it, and the best of

all law, because tested by time and experience; only, the people

do not realize this, and their power and practice of immediate

legislation is not only the great event in our modern science of

government, but it is also the greatest change in the rules and

conditions of our _living_, and our _doing_, and our _having_. Not

only our office-holders, but we ourselves, are born, labor, inherit,

possess, marry, devise, and combine, under a perpetual plebiscitum,

referendum, and recall. I can only hope that I have made some

suggestions to my readers which will awaken their interest to the

importance of the subject.

INDEX

Abbot of Lilleshall case,

Abduction, statute against, A.D. 1452, (_see Kidnapping_).

Acton Burnel (_see Statute Merchant_).

Actors forbidden from swearing on the stage.

Administration of estates, unfair laws in American States.

Administrative law (_see Boards and Commissions_),

still exists in Germany;

forbidden by Magna Charta;

did not exist in England.

Adultery now made a crime.

Advertising,

signs forbidden;

of patent medicines, divorce matters, etc., prohibited.

"Affected with a public interest"; use of phrase to justify rate

regulation.

African labor, etc. (see _Negro_).

Agricultural products,

exempted from anti-trust laws;

stations usually exist in State.

Aids (_see Taxation, Taxes_);

the three customary.

Ale (_see also Sumptuary Legislation_), Assize of.

Alfred, laws of (_see Wessex_)

Alien,

legislation against, in labor matters dates from 1530;

rights of, in real estate;

in personal property;

immigration of, regulated;

naturalization of;

alien and sedition laws;

libel against the government, suits for;

general scheme of our legislation concerning;

laborers may not be specially taxed;

may be forbidden to hold lands.

Alienation of affections, discussion of suit for.

Allowable socialism (_see Socialism_).

American legislation in general, chapter concerning, chapter VI.

Anarchism (_see Socialism_),

definition of;

advocating of, made a felony

Anarchists,

legislation against;

naturalization of;

may be denied immigration.

Anglo-Saxon law (_see Law_),

re-establishment of, chapter concerning, chapter III;

was customary law;

method of enforcing;

its nature, loss, and restoration.

Anglo-Saxon legislation (_see also Legislation_).

Anti-truck laws.

Anti-trust laws (_see Trusts_).

Apparel (_see Sumptuary Laws_), statute of 1482.

Appeal, right to, in criminal cases given government.

Apprentices, early laws of.

Arbitration,

of labor disputes, laws for;

laws aimed against strikes;

laws in the British colonies.

Archery favored by legislation.

Arms (_see Assize of Arms_), chapter relating to, chapter XIII.

right to bear;

does not extend to Parliament;

history of;

made compulsory;

right to bear established in bill of rights;

does not include concealed weapons.

Army (_see Standing_),

use of;

its bearing upon liberty;

complained of in petition of rights;

used to control internal disputes;

use of by President in civil matters objectionable.

Arrest, freedom from, under Magna Charta.

Artificers and craftsmen (_see Labor_).

Asiatics (_see Mongolians_),

may not be citizens;

legislation against in the Far West;

may be unconstitutional;

may not be employed in public work.

Assembly,

right of, as bearing upon freedom of speech;

the right to, and free elections.

Assignable (_see Negotiable_).

Assistance, writs of, in Massachusetts.

Assize of Arms.

Assize of Bread and Beer.

Association, freedom of (see _Combination_), is guaranteed in

Switzerland.

Atheism does not disqualify a witness.

Austin's views of law.

"Avocation, affected with a public interest."

Bakers, statute of (_see Assize of Bread and Ale_).

Bakeshops, bakeries, legislation concerning (_see Sweatshops_).

Balance of trade thought desirable as early as 1335.

Ballot,

form of, (_see Elections_);

the Australian, New York, etc.

Banishment not a constitutional punishment.

Bankruptcy act,

the first, A.D. 1515;

under Cromwell;

national.

Battle, trial by.

Beds, making of, regulated in Oklahoma and the England of 1495.

Beer (_see Sumptuary Legislation, Assize of Beer_).

Beggars (see _Vagabonds_).

Benefit funds, legislation against.

Benefit of clergy,

origin of;

in modern trials;

reason of;

modification of in murder, etc.;

extended to women;

withheld from all women earlier.

Betterment taxes (_see Eminent Domain_),

limitation of;

reason for.

Bigamy,

a sin, not a crime in the earlier view;

statute of;

forbidden by statute of James I.

Bill of rights (_see Petition of Right, Constitution_).

Bills of exchange, invention of.

Bills of lading.

Bishops,

may be appointed by the crown;

abolished in 1646.

Black death,

gave rise to first statute of laborers;

plague of, 1348;

effect of on prices;

Black labor (see _Negroes, Peonage, etc._), in the Orange River

Colony.

Blacklists (see _Boycotts)_,

American statutes against;

in modern American statutes;

laws against in Germany and Austria.

Blackmail statutes.

Blackstone quoted as to legislation.

"Bloody" statute against heretics, 1539.

Boards and commissions,

growth of;

must be bi-partisan.

Bounties,

constitutional objection to;

usually unconstitutional;

in foreign countries;

Federal bounties;

public appropriations may be justified in times of emergency;

State usual subjects of.

Bows and arrows (_see Archery_) much used in England.

Boycotts (see _Conspiracy_)

first recorded precedent of in 1221;

"against the common weal of the people" made unlawful in 1503;

in modern times;

intent the test;

statutes;

definitions of;

unlawful under anti-trust laws;

in modern American statutes;

Alabama definition of;

no European legislation on;

right to prosecute as bearing upon right to freedom of speech.

Brewer, Justice, Yale address quoted

Bribery of votes by employment, etc. (_see Corruption_);

recent statute against.

Building,

laws regulating;

sanitary regulations under police power.

Bulk, sales in.

Business corporations, act of, Massachusetts.

By-laws,

of guilds must not be in restraint of trade;

against the common weal of the people made unlawful in 1503;

of corporations must be reasonable;

illegal, forbidden, 1503;

forbidding appeal to the law courts unlawful;

the Norwich tailors' case.

Cabinet, functions of in England.

Cade, Jack,

attainder of;

rebellion of, its effect, etc.

Canada, legislation on arbitration.

Canon law (_see Church Law_),

supplanted by common law;

early jealousy of.

Canons of the Church (_see Canon Law_).

Canute, laws of.

Capital, combinations of (_see Trusts_).

Capital punishment, laws abolishing.

Carlyle, his remark on legislation.

Carriers, rates of fixed by law.

Carter, James C., quoted.

Cartoons, laws against.

Cash payment of wages,

danger of laws for.

Caucuses (_see Primaries_), regulation of by law.

Celibacy of priests a modern doctrine.

Cemeteries, eminent domain for.

Centralization,

by Federal incorporation law;

as caused by the fourteenth amendment.

Certificates (_see Stock Certificates, Trust Certificates, etc._).

Chancellor (see _Injunction_).

Chancery (see _Equity Jurisdiction_),

early jealousy of by the people;

court of, origin;

the star chamber;

statute against jurisdiction;

in labor disputes.

Charity (_see Bounties_), modern legislation concerning.

Charter of liberties,

of Henry I;

of Henry II.

Charter (_see Magna Charta_),

early royal charters a concession of Anglo-Saxon liberties;

as previously existing.

Child labor,

laws concerning;

hours;

absolute prohibition of;

age limit;

dangerous and immoral trades;

young girls;

in mines.

Children,

guardianship of;

in America, labor of, regulated;

guardianship of may be given either parent;

rights of in marriage and divorce;

tendency to State control of, its effect.

Chinese (_see Mongolian_), laws against.

Chitty, cited as to conspiracy.

Christian Science,

laws regulating practice of;

not protected by the Constitution.

Church law (_see Canon Law_),

freedom from;

early jurisdiction of;

governs sin;

of Henry VIII and Mary;

of Elizabeth III in U.S.

tests.

Church of Rome supreme over England.

Cigarettes

manufacture and sale of forbidden;

laws against.

Cigar making (_see Sweatshops_).

Cincinnati, order of.

Citizens (_see Aliens Suffrage, etc._).

Citizenship,

of American Indians;

of other races, chapter XVI.

City (see _Government_),

debt limited by statute;

ordinances in effect laws.

Civil law,

early jealousy of;

supplanted as to legitimacy.

Civil rights of negroes, etc. (_see Class Legislation, Liberty,

Equality_).

Civil service reform, tendency to extend.

Clarendon, constitutions of.

Class legislation,

as to war veterans;

as to boycotts;

making hereditary privilege.

Clergy (_see Benefit of Clergy_).

Clerks (_see Benefit of Clergy_),

meaning of word;

may dress like knights.

Closed shop, early case of, (_see Union Labor_).

Cloth of gold worn only by the king.

Clothing,

regulation of by law;

manufacture of, a "sweated" trade.

Cloths,

trade to be free in;

act for spinning, weaving, and dyeing of.

Coal (_see Fuel_), Massachusetts law regulating sale of.

Codes,

in the United States;

in England.

Codification,

early, in England;

partial.

Co-education,

present tendency against;

universal in State colleges.

Cohabitation (_see Fornication_), made a crime in many States.

Coin (see _Money_)

Coinage, debasement of, forbidden.

Cold storage, need of legislation against.

Collective bargaining, principle of.

Color, persons of (see _Negro_).

Combinations (see _Labor, Trusts, Conspiracy_),

chapter concerning, chapter XII;

the law of;

the modern definition of;

against individuals;

intent makes the guilt;

to injure trade;

individual injuries to business;

to fix prices;

Professor Dicey quoted;

law of, in European countries;

with an evil end forbidden by Code Napoleon.

Commerce, legislation concerning, (_see Interstate Commerce,

Trade_).

Commissions and tips forbidden;

government by commission (_see Boards, Administrative Law_).

Common law,

enforcement of;

contrast with Roman law;

growth of by court decision;

effort to restore soon after the conquest;

as distinct from Roman law;

as against civil law;

how far enforced in United States;

early jealousy of chancery power;

does not apply in towns of the staple, but the law merchant;

superiority over statutes;

prevails in criminal matters;

self-regardant actions;

Massachusetts statute declaring.

Common land.

Common pleas, court not to follow king's person.

Common right shall be done to rich and poor.

Commons (_see House of Commons_).

Commonwealth of England, constitution of.

Commonwealth _vs._ Hunt, 4 Met. 111, case of cited.

Communism, definition of (_see Socialism_).

Company stores forbidden;

so, tenements;

company insurance.

Compulsory labor (_see Peonage_).

Compurgation, trial by.

Concealed weapons (_see Arms_).

Confirmation of charters.

Congress, usurpation of powers by.

Conscience, rights of (_see Religion_).

Conscription (_see Military Service_),

does not exist among English peoples.

Consent, age of,

in rape;

in marriage;

the age raised as high as twenty-one;

in criminal matters.

Conservation (_see Forest Reserves_);

of rivers, dates from statute of Henry VIII.

Conspiracy,

first statute against in 1305;

doctrine first applied to maintaining lawsuits;

next to combination between mechanics or guilds;

reason of common law doctrine of;

definition of;

determined by intent or ethical purpose;

early statutes probably declared merely the common law;

definition of in statute of 1304;

definition of as evolved in history;

finally includes intent to injure another person in his liberties as

well as results actually criminal;

reason of doctrine of;

doctrine under common law;

remedies for;

combinations necessarily attended with the use of unlawful means;

unlawful act is the combining, not any action done;

actual result unimportant;

intent the question;

punishment far more severe than for offences done under it;

always unlawful, may not amount to criminality;

principle of extended to trades unions and their by-laws;

of masons, etc., forbidden in 1425;

against the law or customs of the staple town made criminal in 1333;

general discussion of law of, chapter XII;

continuing conspiracies, doctrine of;

extension of, by new statutes;

early English law of, discussed with the modern law of combinations;

to maintain lawsuits;

Conspiracy and the Trade Disputes acts (_English_);

copied in Maryland;

changing of law recommended in labor matters;

English statute of, copied in Oklahoma;

doctrine of, contended for by labor unions.

Constitutional law (_see Unconstitutional_),

growth of in America;

applied by the courts in early England;

Magna Charta to be interpreted by Ordainours;

anticipates in earliest times U.S. Supreme Court.

Constitution, State,

modern form of;

adoption of by referendum.

Constructive total loss, origin of doctrine.

Contempt of court, effort to obtain jury trial, (_see Chancery,

Injunction_).

Contract (_see Freedom of_), status of, desirable for labor.

Convict-made goods, denial of to interstate commerce.

Co-operation (_see Profit Sharing_).

Corn, exportation of, forbidden in 1360.

"Corners" (_see Engrossing, Forestalling_),

unlawful to create at the common law;

corners of wheat in Athens;

by Joseph in Egypt.

Coronation oaths, history of.

Corporation,

general discussion of, Chapter X;

Federal incorporation;

first appearance of secular trading corporations uncertain;

companies corporate required to record their charters as early as

1426;

by-laws of must be reasonable;

first trading companies under Elizabeth;

early charters of difficult to find;

business, origin of;

discussion of;

peculiar powers of incorporated persons;

unknown in Rome and early England;

special municipal corporations and monasteries;

limited liability of, invented in Connecticut;

form of the modern;

Federal supervision;

powers of in other States;

prohibition of;

holding stock by;

earliest business companies;

history of;

limited liability;

monopoly given to Federal corporations;

powers of in other States;

the Massachusetts law;

two theories of legislation concerning;

clash of State and Federal law;

the "Trust problem";

discussion of subject by Massachusetts commissioners;

now created under general laws;

modern legislation concerning;

liability of stockholders;

payment in of stock;

income;

"publicity";

monopoly, consolidation, etc.;

the holding company;

public service;

duration of franchise;

powers of in other States;

have no immunity from giving testimony;

are subject to the criminal law;

primarily through individual officers.

Corrupt practices (_see Bribery_) election laws.

Corruption (_see Bribery_), modern statute against.

Council, the great, was originally executive and judicial as well as

legislative (_see Three Functions of Government_);

primarily judicial;

legislation incidental to judicial judgments;

law declared, not made, by Great Council;

development with legislative power into Parliament;

the great judicial functions of;

in Magna Charta;

so-called until 1275.

Counsel, right to, etc.

Cousins, marriage of forbidden;

County courts, early history of;

counties may loan for seed.

Courts, at first followed the king's person;

special royal courts forbidden;

our judicial system.

Covins (_see Conspiracy_).

Crime, distinction from sin;

tendency of modern legislation.

Criminating (_see Incriminating_).

Criminal law and police, chapter concerning, chapter XVIII,

modern basis of;

procedure in;

laws regulating procedure;

right of appeal;

President Taft's recommendation.

Criminal procedure, reform of, necessary.

Cromwell, legislation under;

laws all repealed, but had some effect upon laws of New England

colonies, and _vice versa_;

assumed supreme power;

he had absolute veto;

no constitutional government under;

unrestricted will of majority becomes will of one.

Cross-bows forbidden except to lords.

Crown land.

Crown property, wrecks, fish, precious metals, etc.

Crusades, expenses of, origin of taxation.

Cummins, Governor, his ideas as to trust controlled articles.

Curfew laws in early England;

in U.S.

Custom, of the trade; (_see also Law, Customary Law, etc_.),

enforcement of

Custom House, regulation of officers of;

may not make unreasonable search;

travellers to be believed upon their oath.

Customs (_see Duties_), the law of England,

recognized by early English charters, as well as laws,

Customary law, or natural, enforced

without sanction: sanction of often the best;

sanction not a penalty;

early legislation declaring.

Dairies (_see Farms_).

Danbury hatters' case, desired legislation against.

Dane Geld, London free from.

Dangerous trades, hours of labor in.

Day's work (_see Hours of Labor_).

Debtor and creditor, laws concerning.

Debts (_see Imprisonment_)

laws to enforce collection of not necessary;

suits to recover comparatively modern;

State, city, etc., for internal improvements;

State, municipal or county may be limited by statute;

Modern statutes concerning;

Imprisonment for forbidden;

Municipal limited by statute;

limit generally evaded.

Delegation of legislative power (_see Three Functions of

Government_).

Democracy, legislation of.

_De odio et atia_, writ of, explained in statute of Westminster

II.

Department stores, legislation against anticipated in early England;

forbidden (_see Trading Stamps_).

Descent of property, legislation concerning.

Desertion, a cause for divorce.

Destruction of food stuffs highly criminal by early law.

Diet and apparel (_see Sumptuary Laws_),

laws concerning soon repealed,

Direct legislation (_see Referendum_),

nominations;

primaries;

elections;

taxes (_see Taxation_).

Discharge, reason of, must be stated by employer.

Discrimination, unlawful under early common law;

modern view of;

by the "trusts";

the Elkins law against;

in ordinary trade;

against localities by trusts.

Divine right, asserted by King James.

Divorce, chapter concerning, chapter XVII;

jurisdiction over first in church;

reform movement discussed (_see Marriage and Divorce_);

equal rights of husband and wife;

causes for to both sexes alike;

statistics discussed;

in most cases given to the wife;

whether innocent or not;

in England not to the wife for adultery alone;

for desertion and failure to support;

reforms in legislation;

reforms in procedure, preferable;

causes now existing;

meaning of cruelty, cause for divorce;

uniformity of law in;

statute for reform of divorce procedure;

commissioners created by States;

effect of in other States;

law formerly appertained to the church;

history of in the past;

earliest in 1642;

first general law that of Massachusetts Bay;

corespondents may appear and made defence;

crime made cause for;

neglect cause for;

advertising;

remarriage after divorce usually permitted;

should be absolute;

unchastity the cause if before marriage;

government reports upon;

in European countries.

Doctors' commons lasted until the nineteenth century.

Dog, or cat, why usually kept on ships

Dogberry, speech to the watch, based on the statute of Winchester.

Dogger, statute of;

dogger fish, trade in regulated;

regrating of dogger fish forbidden;

storage and preservation;

must be sold before night.

Domestic labor, no regulation of.

Dorr, rebellion.

Double standard in divorce matters;

in matters of ordinary morality.

Double taxation (_see Taxes_).

Double trading, and department stores.

Dower right, recognized in Magna Charta;

in American legislation.

Drainage (_see Irrigation_), laws for usual in the South and West.

Drains and irrigation.

Drill companies (_see Military Companies_).

Droit d'aubaine.

Drugs (_see Pure Food Laws_).

Drunkenness, first punished by law in 1606;

other laws against;

in U.S.

Due process of law, under Magna Charta;

principle may include immunity from self-incrimination.

Duties (_see Imports_), first upon wool in Westminster I;

General nature of;

early revenue laws prohibitive not protective, hence tariffs for

protection, not for revenue alone, are constitutional;

"new" customs forbidden in 1309;

suspension of all duties in 1309 in order to see what the

effect is upon the people's prosperity;

"new" customs again abolished, saving only the duty on wool or

leather;

only to be paid upon goods actually sold in England, not upon goods

exported;

in the United States.