Sufficient has, perhaps, been said to give the reader a general view of contemporary law-making on this most important matter of personal relations. Most of the matters mentioned in this chapter are cohered by various learned societies in annual reports, or even by the government, in cases of marriage and divorce, and to such special treatises the reader may be referred for more precise information. The Special Report of the United States Census Office, 1909, published early in 1910, makes a careful and elaborate study of the whole question from the years 1867 to 1906. Such statistics are necessarily uncertain for reasons already indicated. Court judgments do not indicate the true cause of divorce, nor is the complainant necessarily the innocent party, nor are the numbers of divorces granted, as for instance in Nevada, any fair indication of the normal divorce rate of the people really living in that State. With this caution we will note that the number of divorces varied from about five hundred in each hundred thousand of married population every year in Washington, Montana, Colorado, Arkansas, Texas, Oregon, Wyoming, Indiana, Idaho, and Oklahoma, down to less than fifty, or about one-tenth as many, in New Jersey, New York, and Delaware. Certain significant observations may certainly be made upon this table. In the first place, the older States, the old thirteen, have, from the point of view of the conservative or divorce reformer, the best record. At the head stand the three States just named, then North Carolina, Georgia, Pennsylvania, Maryland, Virginia, Massachusetts, Louisiana (largely French and Roman Catholic), and Connecticut—ten of the original thirteen States. Only New Hampshire and Rhode Island, the latter for obvious reasons, stand low down in the column; the last State having about three hundred divorces as against Montana's five hundred. South Carolina, having no divorces at all, does not appear.
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" (seeBoston 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.
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 isprima facieevidence 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.
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.
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 wasofficial; 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 admissiblein evidenceof 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 officialrecentrevision, 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 aStatepublisher and the authenticity of all revisions be duly guaranteed by their being submitted to the legislature and re-enacteden 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 beabsolutelydelegated. 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 atopicalarrangement, 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 benumberedand 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."Laborhas 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 isnota 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 arein 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 asfamiliarlaw, 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 thereisa 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 ourliving, and ourdoing, and ourhaving. 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.
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 rateregulation.African labor, etc. (seeNegro).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 felonyAnarchists,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 (seeCombination), is guaranteed inSwitzerland.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 (seeVagabonds).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 (seeNegroes, Peonage, etc.), in the Orange RiverColony.Blacklists (seeBoycotts),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 (seeConspiracy)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 quotedBribery 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 (seeInjunction). Chancery (seeEquity 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 (seeGovernment), 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 (seeMoney) Coinage, debasement of, forbidden. Cold storage, need of legislation against. Collective bargaining, principle of. Color, persons of (seeNegro). Combinations (seeLabor, 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. Commonwealthvs.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, andvice 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.