The question whether yellow fever may be transmitted by any other species of mosquito thanCulex fasciatushas not been determined. Facts relating to the propagation of the disease indicate that the mosquito which serves as an intermediate host for the yellow fever germ has a somewhat restricted geographical range and is to be found especially upon the seacoast and the margins of rivers in the so-called "yellow fever zone." While occasional epidemics have occurred upon the southwest coast of the Iberian Peninsula, the disease, as an epidemic, is unknown elsewhere in Europe, and there is no evidence that it has ever invaded the great and populous continent of Asia. In Africa it is limited to the west coast. In North America, although it has occasionally prevailed as an epidemic in every one of our seaport cities as far north as Boston, and in the Mississippi Valley as far north as St. Louis, it has never established itself as an epidemic disease within the limits of the United States. Vera Cruz, and probably other points on the Gulf coast of Mexico, are, however, at the present time, endemic foci of the disease. In South America it has prevailed as an epidemic at all of the seaports on the Gulf and Atlantic coasts, as far south as Montevideo and Buenos Aires, and on the Pacific along the coast of Peru.
The region in which the disease has had the greatest and most frequent prevalence is bounded by the shores of the Gulf of Mexico, and includes the West India islands. Within the past few years yellow fever has been carried to the west coast of North America, and has prevailed as an epidemic as far north as the Mexican port of Guaymas, on the Gulf of California.
It must be supposed thatCulex fasciatusis only found where yellow fever prevails. The propagation of the disease depends upon the introduction of an infected individual to a locality where this mosquito is found, at a season of the year when it is active. Owing to the short period of incubation (five days or less), the brief duration of the disease and especially of the period during which the infectious agent (germ) is found in the blood, it is evident that ships sailing from infected ports, upon which cases of yellow fever develop, are not likely to introduce the disease to distant seaports. The continuance of an epidemic on shipboard, as on the land, must depend upon the presence of infected mosquitoes and of nonimmune individuals. Under these conditions we can readily understand why the disease should not be carried from the West Indies or from South America to the Mediterranean, to the east coast of Africa, or to Asiatic seaport cities. On the other hand, if the disease could be transmitted by infected clothing, bedding, etc., there seems no good reason why it should not have been carried to these distant localities long ago.
The restriction as regards altitude, however, probably depends upon the fact that the mosquito which serves as an intermediate host is a coast species, which does not live in elevated regions. It is a well-established fact that yellow fever has never prevailed in the City of Mexico, although the city has constant and unrestricted intercourse with the infected seaport, Vera Cruz. Persons who have been exposed in Vera Cruz during the epidemic season frequently fall sick after their arrival in the City of Mexico, but they do not communicate the disease to those in attendance upon them or to others in the vicinity. Evidently some factor essential for the propagation of the disease is absent, although we have the sick man, his clothing and bedding, and the insanitary local conditions which have been supposed to constitute an essential factor. I am not aware that any observations have been made with reference to the presence or absence ofCulex fasciatusin high altitudes, but the inference that it is not to be found in such localities as the City of Mexico seems justified by the established facts already referred to.
As pointed out by Hirsch, "the disease stops short at many points in the West Indies where the climate is still in the highest degree tropical." In the Antilles it has rarely appeared at a height of more than seven hundred feet. In the United States the most elevated locality in which the disease has prevailed as an epidemic is Chattanooga, Tennessee, which is seven hundred and forty-five feet above sea level.
It will be remembered that the malarial fevers are contracted as a result of inoculation by mosquitoes of the genusAnopheles, and that the malarial parasite has been demonstrated not only in the blood of those suffering from malarial infection, but also in the stomach and salivary glands of the mosquito. If the yellow fever parasite resembled that of the malarial fevers, it would no doubt have been discovered long ago. But, as a matter of fact, this parasite, which we now know is present in the blood of those sick with the disease, has thus far eluded all researches. Possibly it is ultramicroscopic. However this may be, it is not the only infectious disease germ which remains to be discovered. There is no doubt a living germ in vaccine lymph and in the virus from smallpox pustules, but it has not been demonstrated by the microscope. The same is true of foot and mouth disease and of infectious pleuropneumonia of cattle, although we know that a living element of some kind is present in the infectious material by which these diseases are propagated. In Texas fever, of cattle, which is transmitted by infected ticks, the parasite is very minute, but by proper staining methods and a good microscope it may be detected in the interior of the red blood corpuscles. Drs. Reed and Carroll are at present engaged in a search for the yellow fever germ in the blood and in the bodies of infected mosquitoes. What success may attend their efforts remains to be seen, but at all events the fundamental facts have been demonstrated that this germ is present in the blood and that the disease is transmitted by a certain species of mosquito—Culex fasciatus.
[At the end of the article General Sternberg reproduces the general orders issued to the army in Cuba with directions for the precautions to be taken against the disease.]
THE WORKMAN'S COMPENSATION ACT75
THE WORKMAN'S COMPENSATION ACT75
This is a good example of the high quality of argumentative writing which is being turned out by daily and weekly journals in great quantities throughout the year. This article, being from a weekly journal, is longer and more searching than the editorial in a daily paper, and to some extent partakes of the nature of an essay. It is notable for the thoroughness of the analysis of the question, for the careful review of the history of the case, and for the precise statement of the points at issue. There is little space for the presentation of evidence, though the specific statement of facts and the quotations from authorities, so far as they go, serve as evidence.
We purpose in this article to give to our readers an interpretation of the recent decision of the New York Court of Appeals declaring that the Workman's Compensation Act is unconstitutional. We regard this decision as of very great importance, because, if the Court has correctly interpreted the Constitution of the United States, that document prevents America from adopting an industrial reform which has been adopted as just and necessary by practically the entire civilized world. We do not believe that the interpretation of the Court is correct. It is, in our opinion, in conflict alike with the progress of civilization, the spirit of democracy, the principles of social justice, and the analogies and tendencies of law. And we believe that this unconscious attempt to fasten upon the workingman an unjust and intolerable burden from which all other civilized nations, with one exception, have relieved him, will ultimately prove as futile as was the conscious and deliberate attempt of the United States Supreme Court, under the lead of Chief Justice Taney, to halt the movement for the emancipation of the slaves.
In the earlier stages of industrial development, when industry was unorganized, machinery hardly existed, and labor was an individual handicraft, the courts naturally assumed that accidents occurring to a workman were probably due to his own negligence.
If he were mowing in a field and cut himself with his scythe, if he were digging a ditch and sprained his ankle, if he were cutting down a tree and it fell upon him and broke his leg, he could recover from his employer only on proof that his employer was at fault. Nor could he recover if the accident were due to the carelessness of a fellow workman. There was always a natural presumption that he could better guard against such carelessness than could the probably absent employer. If he were turning a grindstone and his awkward fellow workman so held the scythe as to cut him, if he were in the forest and his fellow workman gave no notice of the falling tree, it was natural to presume that the carelessness was shared between the two, and the law would neither attribute blame to the employer nor levy the damage upon him when he was not blameworthy.
But the organization of labor and the creation of elaborate machinery has destroyed this presumption of the common sense, and therefore in all civilized countries has destroyed this presumption of law. When a railway train runs off the track because of a misplaced switch or a defective rail, there is no presumption that the engineer was careless or could have guarded against the carelessness of the switch tender or of the manufacturer of the rail. When a fire breaks out in a room where scores of shirt-waist makers are confined at their work and a hundred and forty of them are burned to death, there is no presumption that the impossibility of their escape through narrow passageways and a locked door was due to their carelessness, or that they were to blame because the tables at which they were working were wood, not metal, or that they could have prevented the careless fellow workman from throwing his cigarette down in the inflammable material which surrounded them. In fact, only a very limited number of modern accidents are due to the carelessness of the injured party; probably a somewhat larger number are due to the carelessness of some other employee; while a very considerable proportion are incidents of the trade and due to no definite culpability which it is possible to trace home either to the employer or the employed.
The Christian nations of the world have, with singular unanimity, recognized this change, and have changed their laws to meet the new conditions. The change which they have made was indicated to them by their maritime laws, which in this respect have been alike in all civilized nations and from a very early period. An accident occurring to a sailor on shipboard has always been regarded as an accident to the ship; and the ship has always been required to bear the burden of his care and keep and cure. This right to be cared for does not rest on any assumption that the master of the ship has been negligent, nor is the seaman deprived of his right to care and keep and cure by proof that the accident was due in part, or even altogether, to his negligence. He is not debarred from recovery by proof of his carelessness; he is not given larger damages upon proof of the negligence of the master. His right to be cared for rests, says Mr. Justice Story, upon the fact that "seamen are in some sort co-adventurers upon the voyage." Modern jurisprudence throughout Christendom recognizes that under modern industrial conditions the workman in the railway, the mine, and the factory is a co-adventurer in the enterprise, and that the hazards incident to his employment should be borne, not by the individual, but by the industry. This principle is now recognized and incorporated in their legal, systems by every country in Europe (including Russia but not Turkey) with the single exception of Switzerland.76
The justice and importance of this reform have been recognized by such statesmen as the President of the United States and his predecessor in office, by such lawyers as Elihu Root, by workmen who desire some better insurance against accident than is furnished them by a right to sue their employers, by employers who desire to be protected from vexatious lawsuits and the peril of verdicts for great sums, and by about half a dozen states, including Kansas, New Jersey, Massachusetts, and New York, all of which have passed Workmen's Compensation Acts. Such an act, shifting the responsibility for the risks which are incident to the trade in organized industry from the individual to the organization, the New York Court of Appeals declares no state in the Union has authority to enact, because the Constitution of the United States forbids its enactment. The Court recognizes the need for a change in the Law. "We desire," says the Court, "to present no purely technical or hypercritical obstacles to any plan for the beneficent reformation of a branch of our jurisprudence in which, it may be conceded, reform is a consummation devoutly to be wished." It presents forcibly, appreciatively, and apparently with entire approbation, the arguments which have brought about this reform in other lands: "There can be no doubt as to the theory of this law. It is based upon the proposition that the inherent risks of an employment should, in justice, be placed upon the shoulders of the employer, who can protect himself against loss by insurance, and by such an addition to the price of his wares as to cast the burden ultimately upon the consumer; that indemnity to an injured employee should be as much a charge upon the business as the cost of replacing or repairing disabled or defective machinery, appliances, or tools; that under our present system the loss falls immediately upon the employee, who is almost invariably unable to bear it, and ultimately upon the community, which is taxed for the support of the indigent; and that our present system is uncertain, unscientific, and wasteful, and fosters a spirit of antagonism between employer and employee which it is for the interest of the state to remedy."
To these considerations the Court suggests no reply, and upon them it offers no criticism. On the contrary, it in terms concedes "the strength of this appeal to recognized and widely prevalent sentiment." It declares that "no word of praise could overstate the industry and Intelligence of the Commission" which prepared the New York law, and it apparently agrees with the conclusion of the Commission, based on "a most voluminous array of statistical tables, extracts from the works of philosophical writers, and the industrial laws of many countries"—the conclusion that "our own system of dealing with industrial accidents is economically, morally, and legally unsound." But all these considerations of public policy, social justice, and world-wide conviction are set aside "as subordinate to the primary question whether they can be molded into statutes without infringing upon the letter or spirit of our own written Constitution." The countries which have adopted this desirable reform, it is said, "are so-called constitutional monarchies in which, as in England, there is no written constitution, and the Parliament or lawmaking body is supreme. In our country the Federal and State Constitutions are the charters which demark the extent and the limitation of legislative power."
In brief: The change in the law is just: it is demanded by the change which has taken place in our industrial system; it is all but universally desired; the experience and the conscience of the civilized world call for it; but America is powerless to make it under her present Constitution. Other countries can make it because they are monarchies: America cannot make it because she is free.
The clause in the Constitution which, in the opinion of the Court of Appeals, prohibits the legislature from making this wise and just reform in our law is the clause which provides that "no person shall be ... deprived of life, liberty, or property without due process of law"—a prohibition which occurs twice in our Federal Constitution (Amendments V and XIV), and is to be found in many, very probably in most, State Constitutions. We believe that the Court of Appeals, in its contention that this clause in our Constitution prohibits this just and necessary reform in our industrial laws, is sustained neither by the spirit nor by the letter of this clause in the Constitution, neither by the history of its origin and significance nor by the course of judicial interpretation which has been given to it by the United Slates Supreme Court.
Let the reader stop a moment here and reflect upon the principle involved in the law enacted in other civilized countries and proposed in ours. It is not that an employer should be mulcted in damages when he has been guilty of no fault. It is not that he should be compelled to pay for his carelessness without an opportunity to prove to the court that he has not been careless. It is that accidents occurring in the course of organized industry should be held to have occurred, not to the individual, but to the industry.
"In everything within the sphere of human activity," says the Court of Appeals, "the risks which are inherent and unavoidable must fall upon those who are exposed to them." The jurists of all the civilized countries of Europe agree that in modern organized industries it is the industry, not the individual, that is exposed to the accidents. The law applies to the factory hand for the future the principle heretofore applied to the seaman in maritime law. The factory hand is henceforth to be regarded as a "co-adventurer" with the employer in the industry.
Nor is "due process of law" denied by the Workman's Compensation Act. No damages can be recovered from the employer against his consent without a suit at law. The statute in terms provides that "any question which shall arise under this act shall be determined either by agreement or by arbitration as provided in the Code of Civil Procedure, or by an action at law as herein provided." And what is provided is that, if the employer fail to make compensation as provided by the Act, the injured party or his guardian or executor may sue for the amount. The law does not deny the employer his day in court. But it redefines the question for the court to decide. It has not to decide whether the employer is guilty of fault. His liability does not depend on his fault. The court has simply to decide whether the accident occurred in the due course of the business, and, if the employer chooses to raise the question, whether it was "caused in whole or in part by the serious and willful misconduct of the workman." If not, the workman is entitled to recover, and the amount which he is entitled to recover is fixed by the statute. The question, then, is this:
Does a law which, for accidents in certain carefully defined and especially dangerous employments, transfers the liability from the individual to the organization, and which carefully preserves the right of the employer to submit any questions which arise under the law to the courts for adjudication, deprive the employer of his property without due process of law? The Court of Appeals of New York State affirms that it does.The Outlookaffirms that it does not.
To state this question appears to us to answer it. Certainly there is nothing in the Workman's Compensation Act which violates theletterof the Constitution. It does not in terms take the property of the employer without due process of law. How any one can find in the act a violation of thespiritof the Constitution we find it difficult to conceive. And that difficulty is enhanced, not relieved, by a careful study of the opinions of the Court. For in those opinions it is assumed that on its face the law is unconstitutional, and the Court devotes all its intellectual energies to an attempt to show that the authorities cited in opposition are exceptional. That the law and the Constitution are not inconsistent is, however, established both by a consideration of the object and intent of the Constitutional provision and by judicial decisions interpreting it. To these two considerations we now direct the attention of the reader.
The provision in the federal Constitution that "no person shall be ... deprived of life, liberty, or property, except by due process of law" (Fifth Amendment), and the provision, "nor shall any state deprive any person of life, liberty, or property without due process of law" (Fourteenth Amendment), are derived from the Great Charter wrested from King John by the Barons in 1215. "No freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land." This is perhaps the most important of those general clauses in the Great Charter which, says Hallam in his "History of the Middle Ages," "protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation." Hume gives some intimation of the abuses that led to this provision: merchants had been subjected to arbitrary tolls and impositions; the property of the dying had been seized and their lawful heirs dispossessed; officers of the Crown had levied on horses and carts in time of peace for their own or the public service. Green, in his "History of the English People," gives the picture of John's despotism and of the growing spirit of liberty in the English common people with greater detail The King's exactions drove the Barons into alliance with the people. "Illegal exactions, the seizure of their castles, the preference shown to foreigners, were small provocations compared with his attacks on the honor of their wives and daughters." The demand of the common people to substitute due process of law for wager by battle, and to be secure in their lives, their liberties, and their property from acts of lawless and irresponsible power, the Barons made their own, and by the same act claimed for others what they claimed for themselves. "The under tenants were protected against all exactions of their lords in precisely the same terms as they were protected against the lawless exactions of the Crown."
From such a provision for the protection of the fundamental rights of person and property it is a far cry to the conclusion that the people cannot remedy the injustice which inflicts all the consequences of accidents which occur in extrahazardous trades upon the individual who, in practicing that trade, happens to be subjected to the peril. Common sense, as well as frequent decisions of the courts, sustain Daniel Webster's definition of the scope of the Constitutional provision embodying in our law this provision of the Great Charter: "The meaning is that every citizen shall hold his life, liberty, and property and immunities under the protection of general rules which govern society." That society can never make new rules for the better protection of life, liberty, and property and immunities, is a doctrine as repugnant to reason as it is to social progress. It is equally repugnant to the principle of interpretation laid down by the Supreme Court of the United States: "The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors."77And it seems never even to have occurred to English law makers that the Workman's Compensation Act is inconsistent with this provision of their Great Charter—a charter which is as much a part of the British constitution as the Fifth and Tenth Amendments are of ours. In the English Constitution, as in the American, the principle is carefully defined in writing. The only difference is that in England the Parliament is the final judge of its meaning; in the United States that final judge is the Supreme Court of the United States.
At least it ought to be. But the New York Court of Appeals does not allow that it is the final authority. In this particular case it is not, for no appeal lies by the plaintiff in this case from the state to the national court. But an appeal does lie by the public.The Outlooktakes such an appeal. And it declares without hesitation that the decision of the New York Court of Appeals is in conflict, not only with the trend of judicial decisions in that Court, but also with its very explicit statement of the fundamental principles to be applied in interpreting the Constitution.
We have already noted the fact that maritime law regards a seaman as a co-adventurer with the shipowner, and therefore makes the ship liable for his care, keep, and cure in case any accident occurs to him, even though it be produced by his own fault. We now add that the Supreme Court of the United States has decided that such a law does not take the shipowner's property without due process of law. That, says the Court of Appeals, is different, for "the contract and services of seamen are exceptional in character ... When he is sick or injured he is entitled to be cared for at the expense of the ship, and for the failure of the master to perform his duty in this regard the ship or the owner is liable." No doubt there is a difference between a seaman on a ship and a factory hand in a factory. Very probably that difference ought to weigh with the representatives of the people in determining what difference there should be in their respective treatment. But if making a ship liable for accidents happening to a seaman does not take the shipowner's property without due process of law, then rendering a factory liable for accidents happening to a factory hand does not lake the factory owner's property without due process of law. The Constitution of the United States is precisely the same on sea as on land; but to the Constitution of the United Slates the Court of Appeals gives one meaning on shipboard and another meaning in the town.
The right of the legislature to impose new responsibilities upon property is not confined by the United States Supreme Court to the sea. It is equally sustained upon the land. The State of Oklahoma provided for an assessment on all banks in the State in order to create a fund for the purpose of guaranteeing the depositors in all banks in the State. The Noble State Bank brought suit against the State to prevent it from collecting this assessment, on the ground that it was taking property without due process of law. The Supreme Court, without a dissenting opinion, held that the act was constitutional, on two grounds: first, because "it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose is a private use"; and, second, because "it may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." A similar case coming before the Court from the State of Kansas was decided with the same unanimity by the Court at the same time.78
This definition of Constitutional law by the unanimous opinion of the Supreme Court of the United Slates, if accepted, clearly determines the constitutionality of the Workman's Compensation Act. That this Act "is sanctioned by usage and held by the prevailing morality and strong and preponderant opinion to be greatly and immediately necessary to the public welfare" is proved by the fact that it is demanded alike by employer and employee, that it has been approved by the general public, that it is apparently regarded by the Court of Appeals itself as a reform much to be desired, and that it has been adopted by every civilized country in Europe except Switzerland. The New York Court of Appeals can find only one escape from this declaration of principle by the highest tribunal in the land, in these two cases, namely, a repudiation of the authority of that tribunal in these cases: "We cannot recognize them as controlling our construction of our Constitution."
In this review of the decision of the New York Court of Appeals we have passed by without comment some extraordinary statements which should not be passed by in any complete review—the statement that "practically all of these [European] countries are so-called constitutional monarchies in which, as in England, there is no written constitution," whereas, in fact, practically all of the European nations have written constitutions; and the statement that the Workman's Compensation Act "does nothing to conserve the health, safety, or morals of the employee," whereas, in fact, it is aimed and purposed to accomplish all three results, and was urged in the English House of Lords by Lord Salisbury specifically on the ground that "to my mind the great attraction of this bill is that I believe it will turn out a great machinery for the saving of human life."
But we have deliberately neglected all minor details in an endeavor to put before our lay readers a true interpretation, and what we hope they will generally believe to be a just criticism, of this decision of the highest court of the Empire State. In that decision, in our opinion, the Court has disregarded all considerations of social justice and public policy, has set itself against the conscience and judgment of the civilized world, and in its forced interpretation of the Constitution has disregarded alike the history of the Constitution's origin and of its judicial interpretation by the highest court in the land.
What is the purpose of a course in the writing of arguments? The arguments which it turns out cannot convince any one, since there is no one for them to convince; so that the immediate and tangible product of the course must be looked on as a by-product, and a by-product from which there can be no salvage.
What products, then, can teachers aim to produce? First, a vital respect for facts and for sound reasoning therefrom; second, the power so to analyze and marshal the facts in an obscure and complicated case as to bring order and light out of confusion; and third, the appreciation of other men's point of view and training in the tact which will influence them. Incidentally a good course in argumentation should leave with its students an acquaintance with certain effective and economical devices for going to work that should serve them well in later life.
I will take up each of these points in order, and speak of a few methods which I have found useful in practice.
In the first place, how can a teacher establish and strengthen the veneration for fact and the suspicion of all unsupported assertion anda priorireasoning? Partly by judicious exercises, partly by quiet guidance in the choice of subjects. Let a class cross-examine each other on their exact knowledge of the ultimate facts on some familiar subject. On the question of the value of Latin, for example, just how many of the class know no Latin? In a piece of their own writing, how many of the words are derived from the Latin? and what kind of words are they? Of the leaders in scholarship in the class how many know Latin? Of the best writers? Of the authors whose works they are studying in English literature, how many were trained in Latin? Of the authors of the textbooks in science how many? A few such questions as these will suggest others; and the members of the class should keep a record of how many such questions they can answer with precision. Very few people have any exact command of facts on subjects about which they talk freely and with authority; and a young man who has had this truth borne in on him by personal examination will come to writing an argument with more modesty and scrupulousness.
Then a class can be guided away from the large subjects where of necessity their knowledge of facts is second-hand, and in which their arguments, being of necessity short, can touch only the surface of the subject. Here, I think, is where much of the ineffectiveness of courses in argument is to be found. "Judges should be elected by direct vote of the people," "The right of suffrage should be limited by an educational test," "Corporations engaged in interstate commerce should be required to take out a federal license," are samples of propositions recommended as subjects for arguments of two thousand words or less. No undergraduate has the practical knowledge of affairs to judge the value of facts adduced in support of such propositions, and except for the members of debating teams, who spend time on their contests comparable to that given by athletes to their sports, no undergraduate can make himself acquainted with the vast fields of economics and governmental theory covered by such subjects. To write an argument of twelve hundred words on such a subject will weaken rather than strengthen the respect for facts.
What sort of subjects, then, can be used? This is, I confess, a question not altogether easy to answer; but I have had a try at an answer in the list of Subjects which is given in Chapter I, which can be adapted to special conditions of time or place. In general a question which a student would discuss of his own accord and with some warmth is the best subject for him. There are many such subjects in athletics: at this date the rules of football seem not yet settled beyond amendment, and the material for hunting facts in the records of past games is large; Dean Briggs of Harvard is making an appeal to players to raise the level of manners and of ethics in baseball; do all your students agree with him? Should the universities be allowed to use men in their graduate schools as members of their teams? And what are the facts about the playing of such men in the universities in which your students would be interested?
Then there are various educational questions, on which the views of students have real value, especially if they are based on some examination of facts in the course of writing an argument. President Lowell of Harvard told a body of students whom he was consulting that it did not make much difference what they wanted, but that their views when set forth for the purpose of helping the authorities of the college were of great value. The views of your class on examinations for entrance would be based on knowledge which a member of the faculty cannot have at first-hand. What is the estimate of the relative difficulty of getting into various colleges, and on what figures from schools is the estimate based? For how many boys are languages easier or harder than history or mathematics or science? Does admission by certificate provide sufficient safeguard for the standards of the college? Does a rigid prescription of subjects for examination distort the course for the high school? How many boys, who can be named, had their education injured by such prescription? Should the standard for entrance or for graduation be raised, or lowered, at your college? Should honor students be excused from final examinations? Should they have special privileges? Should freshmen be required to be within college bounds at a fixed hour every night? Should class rushes be abolished? Here are only a few suggestions of subjects which can be adapted to the needs and the knowledge of special classes. They are of no value, however, unless the students are driven to gather facts, and to reason from these facts, not from general impressions. School catalogues, college catalogues, informal censuses, reports of presidents and of committees, and other printed or oral sources will help in the gathering of facts.
Then there are the innumerable local and state questions that touch the fathers of at least half of any class, and that the sons may be in the way of hearing discussed at home, or may be sent to hear discussed in legislatures and city councils. Every instructor who takes a daily newspaper will be provided with more of these subjects than his class can use. For their facts the students can go to the newspapers, to printed reports, to the persons who are concerned with the questions which they are going to argue. In some cases the students will get valuable interest and advice from the older men who have the active charge of the questions under discussion; and it is not inconceivable, that if some of the latter happen to be graduates of the college or school, they will even read the arguments and make helpful criticisms on them. The grateful interest of graduates is a source which has not been overdrawn for aid in the processes of instruction.
Many of the subjects which I have here offered as suggestions can be discussed in part, at any rate, within the space of an editorial article; and that I conceive to be about the length which most arguments written by students, except those in special courses, will run to. In so short a space, it is hardly necessary to point out, evidence cannot be presented and discussed with the detail, say, of Webster's "Speech in the White Murder Case." It would be a good separate exercise to call for such detailed presentation of evidence on some single point in the argument. With most classes, however, the instructor cannot do much more than rule out wholly unsupported assertion, and insist that the distinction between fact and inference from fact shall be kept in sight.
The second of the results which an instructor in a course in argumentation should aim for is the power to analyze complicated masses of facts and so arrange them and present them as to bring order out of confusion. President Taft has said that Justice Hughes "won his reputation at the bar by his gift of boring to the innermost core of a subject"; and that is what the drill on the introduction to the brief should to some degree impart to students. The orderly analysis of the question, step by step, according to the admirable scheme devised by Professor Baker, cannot help implanting some understanding of what it means to go to the heart of a question. Every man sooner or later, must face complicated and puzzling questions; and the ordinary man will give himself a long start if he will thus put down on paper the points that can be urged on the two sides of a question, and then study them until the real points at issue emerge. Then the drill in laying out the logical skeleton of an argument, so plainly that no false or broken connection can escape detection, will strengthen the conscience for clearness and coherence of thought; and the necessity for getting back to ultimate facts for every assertion, and putting down the source from which the facts are derived, will help to implant a wholesome respect for facts as something different from assertion.
Since the argument written out is the final test of the thinking, some care must be taken that students do not obscure by careless paragraphing and slovenly sentences such clearness of thought as they have attained in their brief. I have found it useful to prescribe marginal titles to the paragraphs: a student who has struggled to find a single phrase that will cover all of a sprawling paragraph will have learned some respect for firmness of paragraphing. In general, an instructor has a right to insist that his class shall apply in practice all that they have learned about the ordinary devices for getting clearness and emphasis.
In the third place, this practice in writing arguments ought to leave with students a more developed idea of how to make readers look favorably on a proposition which they are urging. I have insisted, at the risk of seeming repetitious, on the need of considering the audience whose minds are to be won over; for what persuasiveness can mean apart from specific persons to persuade I cannot conceive. Much of the perfunctory emptiness of the textbooks when they get to this part of the subject comes from neglecting this very practical and obvious side of making an argument. The difficulty it raises for arguments written in class work is just as obvious; more than most kinds of composition written for practice, arguments run the risk of having no touch with reality. Something may be done, however, if an instructor guides his class toward the kind of questions I have suggested above: an argument on the rules of football would be addressed to the Rules Committee, and most youths would know something of the prepossessions of so famous a man as Mr. Camp; an argument on a college question would be addressed to the faculty or the president, and it may be assumed that students have some idea of their general attitude on such matters. I have followed the practice in my own sections of freshmen of requiring them to put at the head of their brief and of their argument the audience which they had in mind. Then when one comes to criticism and conference one can by a little cross-examination bring home to them the very practical nature of this matter of persuasion.
One must be careful not to insist too strictly on the model and the scheme of work laid down here, and in practically the same form in other books. It is the best that has yet been devised, but any student who is set to making a brief of one of the examples of argument at the end of this book will see for himself that there is no one infallible way of making an argument. Each argument must adapt itself to its occasion and its audience; and an instructor will be wise to keep himself awake to this truth by noting divergencies from the model. The rules which are here set forth and the model which is built on them are serviceable just so long as they are serviceable, and no longer. Their chief service is done when they have set up in the minds of students a standard of effectiveness in singling out and emphasizing the critical issues of a question.
As to the exercises which should accompany the work in argument my experience with classes of five to six hundred freshmen leads me to think that their value to the student can hardly be overestimated. I will speak here of a few of them.
The exercises in the use of reference books is something that every student ought to be put through. I found it simple and not too extravagant of time to take my sections to the library in squads of ten or a dozen, and show them and let them handle the principal books on the list. Then on the spot I gave each of them a sheet of theme paper on which I had written some sort of fact drawn from one of these books, and told them to look up that fact and report on it. My object was to convince them that most ordinary facts can be looked up in less than five minutes. The material for this exercise I got by turning over the reference books and jotting down almost anything that caught my eye. One can in this way get a great variety of facts in a very short time. In some libraries it might be possible to get members of the library staff to share in this instruction; in all libraries one will find active cooperation.
For the preliminary work on the argument we found that it was often practicable and advisable to let the students pair off on the two sides of the question, and work together through all the preliminaries. Two men thus working together often discuss themselves into the liveliest kind of interest in their question; and almost always they come closer to the important issues involved by sharpening their wits against each other. Their arguments, too, are better, especially in the refutation, from their knowing just what points can be made on the other side.
It is excellent practice, not only for the brief and the argument, but also for all other college work, to set the students to making briefs of parts or wholes of the arguments printed here as examples, or of other arguments found outside. Not only lawyers, but other men of affairs, constantly have to digest and summarize papers; and skill in picking out essential facts and the thread of thought from a document is a highly valuable asset for practical life. The exercise is sometimes irksome to students, for it is hard work at first and calls for concentration of mind: but it can be sweetened and made livelier by the competition of classroom discussion.
All through the work on the argument students may well be set to watching the daily papers and the magazines for examples of arguments, and of good and bad reasoning. Very often an instructor can get, at the cost of a cent or two apiece, a set of arguments printed in a newspaper for his class to analyze. Senators and representatives in Congress are notably willing to send copies of speeches, and these sometimes furnish good examples of both sound and unsound reasoning.
If time serves, instructors will do well to give a grounding in logic. I have inserted a brief discussion of the subject with the hope that it will furnish a basis for a short study; it can be reenforced by a few weeks on such a manual as Jevons's "Primer of Logic," or Bode's "Outline of Logic" if there is time. Whatever be one's view of the positive value of deductive logic, there can be no doubt that every student should have some knowledge of the canons of inductive logic, and that a study of propositions and syllogisms is a mighty sharpener of the discrimination for the real meaning of words and sentences.
The short chapter on debating I have added for the use of classes where a moderate amount of training in this most useful of exercises is practicable. Debating may be looked at in two ways, either as training in alertness and effectiveness in discussion, or as a form of intercollegiate or interscholastic sport. On the latter aspect a recognized authority has said: "Formal debate is a kind of game. In the time limit, the order of speakers, the alternation of sides, the give and take of rebuttal, the fixed rules of conduct, the ethics of the contest, the qualifications for success, and the final awarding of victory, debate has much in common with tennis";79and he develops the likeness through a page of rather fine print. From this point of view debating has keenly interested a small body of students; in some colleges it has been recognized by hatbands or other emblems of distinction for the successful "teams"; and it has developed an elaborate apparatus of rules and of "coaches." With the game in this full bloom I have not space to deal in this small book; for such elaborate work of analysis and preparation one must go to special manuals which deal with it at length. I have confined myself to an application of the general principles of the subject to the spoken argument, and to a few suggestions for preparing for and carrying on the not very formal discussions which the average man gets into in the ordinary run of life.
Even where there is not time for systematic practice in debating, much may be done by extemporaneous five-minute speeches. There is unquestionably an active movement among the best teachers of English for more stress on oral composition; they recognize that the power to stand quietly and at one's ease on one's feet and explain one's views clearly and cogently will help any man in his life work.
In some cases there may be local or academic subjects under discussion at the time the class is working on argument on which they can prepare themselves to speak. It may be possible to interest graduates of the school and college, so that they will give help in getting material, and perhaps in judging and criticizing. Occasionally, perhaps, a man who has the actual settlement of a local question or a share in the settlement may be willing to hear the discussion. Any aid of this sort that will bring the debate within the bounds of reality will add zest to it.
For the use of this book when a comparatively short time, perhaps six weeks, is at the disposal of the instructor, my advice, based on the practice worked out with my colleagues in the freshman course at Harvard, would be to begin with Chapter I, and at the same time ask the class to hand in subjects for approval. This should be done a fortnight ahead of the main work, in order to allow changes of subject, after consultation if necessary. In connection with Chapter II would come exercises in making briefs of one or more of the arguments in the back of the book or of others provided for the purpose. Then would come the preliminary work on the brief, the introduction to the brief. This it is profitable to treat as a separate piece of work, with a grade of its own. At this stage would be the place for the exercises in the use of reference books, which will lead naturally to looking up the material for the brief. If possible a conference should be given on the introduction to the brief. Then comes the next main step in the work, the brief. The work for this would naturally be accompanied by study of Chapter III, and by such exercises in the correction of bad briefing and in correction of fallacies as the instructor finds time for. There should be another conference on the brief, and it should be rewritten if necessary. Instructors who have been through the subject will know from sad experience that one rewriting and one conference may be only starters. Then comes the argument itself: this should be the climax, and not merely a perfunctory filling out of the brief. If it be at all possible, the argument should be rewritten after a conference, and the conference can hardly be too long. If the argument is fifteen hundred or two thousand words long, a half an hour will be found a short time to go over the whole with any thoroughness. No instructor in English needs to have it pointed out that conferences are his most efficient means of education.