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.
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 havedoneor 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: Commonwealthv. Pierce, 138 Mass. 165.]
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 theaegisof 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.
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: Minorv. 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 andDivorce," 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 OTHERSTATES RELATIVE TO MIGRATORY DIVORCE
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.
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 abona-fideintention 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 asacrament; it brought about astatus; 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 womanisthat which at leastwasthat 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 shallnotmarry, 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 absolutelynon 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.