Chapter XIX: Section 1: No person shall be entitled to a divorce for any cause (1)

arising in this State who has not had actual residence in this State for at least one year next before bringing suit for divorce, with a _bona-fide_ intention of making this State his or her permanent home.

Sec. 2. No person shall be entitled to a divorce for any cause arising out of this State unless the complainant or defendant shall have resided within this State for at least two years next before bringing suit for divorce, with a _bona-fide_ intention of making this State his or her permanent home.

Sec. 3. No person shall be entitled to a divorce unless the defendant shall have been personally served with process if within the State, or if without the State, shall have had personal notice, duly proved and appearing of record, or shall have entered an appearance in the case; but if it shall appear to the satisfaction of the court that the complainant does not know the address nor the residence of the defendant and has not been able to ascertain either, after reasonable and due inquiry and search, continued for six months after suit brought, the court or judge in vacation may authorize notice by publication of the pendency of the suit for divorce, to be given in manner provided by law.

Sec. 4. No divorce shall be granted solely upon default nor solely upon admissions by the pleadings, nor except upon hearing before the court in open session.

Sec. 5. After divorce either party may marry again, but in cases where notice has been given by publication only, and the defendant has not appeared, no decree or judgment for divorce shall become final or operative until six months after hearing and decision.

Sec. 6. Wherever the word "divorce" occurs in this act, it shall be deemed to mean divorce from the bond of marriage.

Sec, 7. All acts and parts of acts inconsistent herewith are hereby repealed.]

It is always to be remembered that the law of marriage, and divorce as well, was originally administered by the church. Marriage was a _sacrament_; it brought about a _status_; it was not a mere secular contract, as is growing to be more and more the modern view. Indeed, the whole matter of sexual relations was left to the church, and was consequently matter of sin and virtue, not of crime and innocence. Modern legislation has, perhaps, too far departed from this distinction. Unquestionably, many matters of which the State now takes jurisdiction were better left to the conscience and to the church, so long as they offend no third party nor the public. Very few lawyers doubt that most of the causes of action based on them, such as the familiar one for alienation of the affections, are only of use to the blackmailer and the adventurer. They are very seldom availed of by honest women.

Nevertheless, it is not questionable that modern American legislation, particularly in the code States, in California, New York, and the West generally, is based upon the view that marriage is a simple contract, whence results the obvious corollary that it may be dissolved at any time by mutual consent. No State has thus far followed the decision to this logical end, on the pretended assumption that the rights of children are concerned; but the rights of children might as well be conserved upon a voluntary divorce as after a scandalous court proceeding. One possible view is that the church should set its own standard, and the state its own standard, even to the extreme of not regulating the matter at all except by ordinary laws of contract and laws for the record of marriages and divorces and for the custody, guardianship, support, and education of children, which would include the presumption of paternity pending an undissolved marriage, but all divorces to be by mutual consent. It is evident to any careful student of our legislation that we would be rapidly approaching this view but for the conservative influence of Massachusetts, Connecticut, Pennsylvania, New Jersey, and the South, and but for the efforts of most of the churches and the divorce reform societies. Which influence will prove more powerful in the end it is not possible to predict.

Socialists urge that the institution of marriage is bound up with that of private property. There is little doubt that the women's suffrage movement tends to socialism, and, also, paradoxical as it may at first seem, to lax marriage laws and easy divorces. "The single standard of morality" offered by all advanced women's-rights advocates will necessarily be a levelling down, not a levelling up; and in a society where the life of the ordinary young woman _is_ that which at least _was_ that of the ordinary young man about town, it is hardly likely that there will be any stricter legislation. Where a majority of young women live alone and earn their living, the old order must change.

Divorce, it should be known, is a modern institution; that is, divorce by the secular courts. Such divorce as the Roman Church recognized, or was granted by act of Parliament, was the only divorce existing down to the year 1642, when one Hannah Huish was divorced in Connecticut by the General Court, "with liberty to marry again as God may grant her opportunity," and about that time the Colony of Massachusetts Bay enacted the first law (with the possible exception of one in Geneva) permitting divorces by ordinary courts of law.

The age of consent means two things, or even three, which leads to much confusion. It has a definite meaning in the criminal law, to be discussed later; and then it has a double meaning in the marriage law. First, the age under which the marriage of a girl or boy is absolutely void; second, the age at which it is lawful without the consent of the parents. The tendency of our legislation is to raise the latter age and possibly the former. At least, marriages of very young persons may be absolutely cancelled as if they had never taken place. According to all precedents, human and divine, from the Garden of Eden to Romeo and Juliet, "the age of consent" would by common sense appear to be the age at which the woman did in fact consent; such is the common law, but such is not usually law by our statutes.

But perhaps the legislation of the future is best represented by the extraordinary effort, whose beginning we now see, to prevent freedom of marriage Itself. There is probably no human liberty, no constitutional right to property, or hardly, even, to one's personal freedom, which has been more ardently asserted by all persons not actually slaves (and even, indeed, by them) than the right to love and marry. In the rare instances where even priests have interfered, it has usually led to resentment or resistance. The common law has never dared to.[1] Marriages between near relations, prohibited by the Mosaic law, were invalid by the church law, and became invalid by the secular law at the very late period when it began to have any jurisdiction over the matter, hardly in England half a century ago; in the United States, where we have never had canon law or church courts, the secular law took the Mosaic law from the time of the Massachusetts Body of Liberties (1641). The first interference of statute was the prohibition of the marriage of first cousins. This seems to be increasing. The prohibition of marriage between different races we have mentioned in another chapter. To-day we witness the startling tendency for the States to prescribe whom a person shall _not_ marry, even if it do not prescribe whom they shall. The science of eugenics, new-fangled as the word itself, will place upon the statute-book matters and considerations which our forefathers left to the Lord. Considerable progress has already been made in this country. The marriage of insane persons, persons absolutely _non compos_, was, of course, always void at the common law, and the church law as well. They are incapable of contract. The marriage of impotent persons was void also, but by recent laws the marriage of epileptics is forbidden and made void, the marriage of persons addicted to intoxicating liquors or drugs, the marriage of persons who have been infected by certain diseases; and finally, most startling of all, the proposal looms in the future to make every man contemplating a marriage submit himself to an examination, both moral and physical, by the State or city officials as to his health and habits, and even that of his ancestry, as bearing upon his posterity. Novels have been written about men who avoided marriage by reason of a taint of insanity in the family; this modern science of eugenics would propose to make such conduct compulsory by law.

[Footnote 1: Mr. Flinders Petrie, in his late book, "Janus in Modern Life," tells us that at least ten varieties of marriage and marriage law have prevailed in history, and that all save marriage by capture perdure in the civilized world to-day, most of them, in actuality, even in England.]

We have now said enough on the abstract questions to close with some of the concrete examples. Some States forbid the marriage of a person who has tuberculosis; some require him to submit to an examination. In 1907 a bill was introduced in Michigan, which provided that no person should be permitted to marry who had ever led an unchaste life. This bill did not, however, become a law.

In divorce matters New York, in 1890, adopted the very intelligent statute requiring courts to allow a person charged as corespondent in a divorce case to make defence. Six States raised the age of consent in criminal matters, and four in marriage; one required a marriage ceremony. In 1891 one State added crime, or conviction for crime, as a cause of divorce, one insanity. Two regulated the procedure in the direction recommended by the Uniformity Commissioners. One made it criminal to advertise the securing of divorces in the newspapers. Two States made simple sexual connection a crime (which was not a crime at the common law). One Southern State enacted a special law against slander of women,--another instance of the tendency to their special protection. Several States adopted newer laws giving complete control of their separate property to women, and allowing them to do business as sole traders, without responsibility for the husband's debts. Two more States passed statutes allowing women to practise law. In 1890 one other State forbids drinks to be served by either women or children under eighteen.

In 1893 there was much legislation concerning the powers of the mother over the children, and the liability of the husband to support both wife and children under penalty as for the crime of desertion. This legislation has now become pretty general throughout the country; that is, it is made a criminal offence for a man to desert his wife or children, or, being able, to fail to support them. One State declared the husband and wife joint guardians of the children. In 1894 one State prohibited marriage between first cousins, and one between uncle and niece. One declared that marriage removed nonage. One made it a misdemeanor for a married man to make an offer of marriage. The laws for support of wife and children continue, and there were laws passed giving alimony to the wife, even in case the divorce were for her fault. One State made both husband and wife competent witnesses against each other in either civil or criminal cases. One found it necessary to declare that a woman might practise medicine, and another that she might be a guardian; the statute in both cases would seem to have been unnecessary. Two States provided that she might not serve liquor in saloons or restaurants, the statute already referred to. Louisiana adopted the intelligent statute, already mentioned, permitting the right of suffrage to women in cases of votes on loans or taxes by cities, counties, or towns; and Utah first enacted the much-mooted statute that female school-teachers should be paid like wages as males for the same services. It would be most interesting to hear how this statute, which was passed in 1896, turned out to work.[1] One State provided that women might be masters in chancery, and another carried out the idea of equality by enacting that women should no longer be excepted in the laws against tramps and vagrants. Constitutional amendments proposing women's suffrage were defeated this year (1895) in no less than nine States. Connecticut passed a law that no man or woman should marry who was epileptic or imbecile, if the wife be under forty-five, and another State for the first time awards divorce to the husband for cruelty or indignities suffered at the hands of the wife, while another State still repeals altogether its law permitting divorces for cruelty or intoxication. One other makes insanity a cause of divorce. One other, non-support. Two or three adopt the notion of joint guardianship of children.

[Footnote 1: A State official informs me that the law is evaded, see above, p. 212.]

In 1897 one State prohibits the remarriage of divorced parties during the life of the innocent plaintiff; the Uniformity of Law Commissioners came to the conclusion that any limitation upon remarriage was unwise and led both to immorality and to wrong against innocent third persons. Divorces should either not be granted at all, or be granted absolutely. This is the better opinion; though, of course, it does not apply to mere orders of separation. Much confusion of thought has arisen upon this subject, the upholders of lax divorces always assuming that the opponents mean to compel persons to live together in misery or incompatibility, which, of course, is far from the case. A legal separation has always been permitted, except, indeed, where that doctrine is interfered with by modern statute; any wife can be freed of a vicious or cruel husband and even compel him to support her while living away from him, but "platform women" are apt to forget this fact. In the same year one Southern State has the chivalry to provide that no women should be worked as convicts on the road; one is not aware but for this that it ever happened. We see more humane legislation about this time for the protection and proper treatment of women in jails or houses of detention, for the services of matrons and the careful separation of the sexes, and by now seats for women in stores or factories are almost universally required. The sale of liquor to women is in one State specially forbidden, Louisiana follows the Texas law giving women tax-payers a vote on appropriations for permanent improvements.

In 1899 comes the law of Michigan, already referred to, forbidding persons with contagious diseases to marry, and compelling physicians to testify. The Massachusetts Medical Association has gone on record as urging that there should be a privilege to physicians in all cases, as there is to lawyers. Many people believe that to be the common law; such is not the case, even as to priests.

One more State this year awards divorce for insanity, and one more for intoxication. Several States permit women to get damages from liquor-sellers selling intoxicating drink to their husbands; I know of no corresponding statute permitting the husband to get damages for drinks sold the wife. A wife may testify against the husband in certain cases, as actions for alienating of affection, or criminal conversation; not so the husband. Texas and other Southwestern States adopt the statute that an action for seduction shall be suspended on the defendant's marriage with the plaintiff, otherwise it is a felony, and it is again a felony should he after such marriage desert her--the Fourteenth Amendment to the contrary notwithstanding (which reminds one of the colonial Massachusetts statute, that the punishment for that offence may either be imprisonment in the state-prison, or marriage!).

The laws aimed at mere sin increase in number. One State makes improper relations, even by mutual consent, punishable with four years in the state-prison, if the girl be under eighteen. North Dakota introduces a bill to require medical examination in all cases as a prerequisite to marriage; it failed in North Dakota that year, but was promptly introduced in other States. In Oregon all widows and fathers may vote, without regard to property qualification, in school district elections; and this State joins the number of those which forbid the marriage of first cousins.

In 1901 came the great New York statute abolishing the common-law marriage, which we have discussed above. Some States pass laws punishing wife-beating by either imprisonment or a whipping. In 1902 perhaps the most interesting thing is that there is no legislation whatever of any kind on the subject of women's suffrage--showing distinctly the refluent wave. In 1903 New Hampshire rejects a constitutional amendment for women's suffrage. Kansas restricts the marriage of epileptic and weak-minded persons. Several States reform their divorce laws, and Pennsylvania adopts Southern ideas giving divorce for a previous unchastity discovered after marriage. This matter has so far been covered by no Northern State, though it had been law from all time in Virginia.

In 1904 women's suffrage was proposed in Oregon, and in 1905 rejected. Illinois follows New York in abolishing the common-law marriage, and raises the age to eighteen in a woman and twenty-one in a man. As is often the case, it does not appear from the ambiguous wording of the statute whether this invalidates the marriage or merely subjects the offenders, or the minister or the magistrate, to a penalty; probably the latter. Minnesota forbids the marriage of imbecile or epileptic persons; Nebraska that of first cousins, and Pennsylvania adopts the uniform divorce law recommended by the commissioners. Five other States reform their divorce laws, and four their laws concerning married women's property, and seventeen adopt new laws for compulsory support of the woman and children by the husband.

In 1906 one more State adopts the idea of giving a vote to female property-owners in money elections. One puts the age of consent up to sixteen. In a good many States it is already eighteen. Women's suffrage is again rejected in Oregon; and finally even South Dakota reforms her divorce laws.

Perhaps a word should be given to other laws relating to minors as well as to young women. There is very general legislation throughout the country forbidding the sale of intoxicating liquor to persons under twenty-one, and in the great majority of the States the sale of cigarettes, narcotics or other drugs, or even tobacco, to persons under twenty-one, eighteen, or fifteen, respectively. In some States it is forbidden, or made a misdemeanor, to insure the lives of children--very important legislation, if necessary. In 1904 Virginia passed a statute punishing kidnapping with death, which is followed in 1905 by heavy penalties for abduction in three other States; fourteen States establish juvenile courts. Seven States make voluntary cohabitation a crime, and six pass what are known as curfew laws. Indeed, it may be generally said that the tendency is, either by State statute or municipal ordinance, to forbid children, or at least girls under sixteen, from being unattended on the streets of a city after a certain hour in the evening.

In 1907 Mississippi makes the age of consent twelve, and the penalty for rape death, which, indeed, is the common law, but which law has extraordinary consequences when the age is raised, as it is in many States, to eighteen. Two more States adopt the laws against abduction and one a statute against blackmail.

Sufficient has, perhaps, been said to give the reader a general view of contemporary law-making on this most important matter of personal relations. Most of the matters mentioned in this chapter are cohered by various learned societies in annual reports, or even by the government, in cases of marriage and divorce, and to such special treatises the reader may be referred for more precise information. The Special Report of the United States Census Office, 1909, published early in 1910, makes a careful and elaborate study of the whole question from the years 1867 to 1906. Such statistics are necessarily uncertain for reasons already indicated. Court judgments do not indicate the true cause of divorce, nor is the complainant necessarily the innocent party, nor are the numbers of divorces granted, as for instance in Nevada, any fair indication of the normal divorce rate of the people really living in that State. With this caution we will note that the number of divorces varied from about five hundred in each hundred thousand of married population every year in Washington, Montana, Colorado, Arkansas, Texas, Oregon, Wyoming, Indiana, Idaho, and Oklahoma, down to less than fifty, or about one-tenth as many, in New Jersey, New York, and Delaware. Certain significant observations may certainly be made upon this table. In the first place, the older States, the old thirteen, have, from the point of view of the conservative or divorce reformer, the best record. At the head stand the three States just named, then North Carolina, Georgia, Pennsylvania, Maryland, Virginia, Massachusetts, Louisiana (largely French and Roman Catholic), and Connecticut--ten of the original thirteen States. Only New Hampshire and Rhode Island, the latter for obvious reasons, stand low down in the column; the last State having about three hundred divorces as against Montana's five hundred. South Carolina, having no divorces at all, does not appear.

The next observation one is compelled to make is that divorces are most numerous in the women's suffrage States, or in the States neighboring, where "women's rights" notions are most prevalent. Montana, Colorado, Wyoming, and Idaho stand second, third, sixth, and eighth, respectively, among the fifty States and Territories comprised in the table.[1] On succeeding pages are graphic maps showing the conditions which in this particular prevail for a number of years. There is little change of these in the thirty years from 1870 to 1900. The Atlantic seaboard and Southern States in 1870 are left white, with the exception of New England, which is slightly shaded; that is, they have less than twenty-five divorces per hundred thousand of inhabitants. In 1880 the black belt States and Territories--having one hundred and over--extends from Wyoming over Montana, Colorado, Utah, and Nevada. In 1900 it covers the entire far West and Southwest, with the exception of New Mexico (Roman Catholic) and Utah (Mormon). The chart showing the relation of divorces to number of married population does not materially differ. Now these figures, ranging from five hundred divorces per hundred thousand married population per year, or three hundred in the more lax States, down to less than fifty in the stricter States, compare with other countries as follows:

[Footnote 1: Census Reports, 1909, "Marriage and Divorce," part I, p. 15.]

Only Japan shows a number of divorces approaching these figures. She has two hundred and fifteen per one hundred thousand of general population,--about the same as Indiana, which stands eighth in the order of States. But with the exception of Japan no civilized country shows anything like the proportion of divorces that the American States do. Thus, in Great Britain and Ireland there are but two per hundred thousand of population; in Scotland, four; in the German Empire, fifteen; in France, twenty-three, and in the highest country of all, Switzerland, thirty-two, while the average of the entire United States is seventy-three.

The census figures as to the trades or professions in which divorce is most prevalent are amusing, but probably not very significant. It appears, as might be expected, that actors and actresses stand at the head, and next musicians or teachers of music; while clergymen stand very near the bottom of the list, only excelled in this good record by bar-tenders (in Rhode Island) and, throughout the country, by agricultural laborers.

But after all, more important, perhaps, than even marriage and divorce, are the great social changes which arise from the general engaging of women in industrial occupation. In matters of property right we have found they are substantially already on an equality with men, if not in a position of special privilege. Yet, as Herbert Spencer remarked, "When an abuse which has existed for many centuries is at last on the point of disappearing, the most violent outcry is made against it." During the century when women were really oppressed,[1] under the power of the husband, given no rights as to their property, their children, or hardly even as to their person, no complaint was heard. Whereas to-day the cry of unjust legislation almost rises to a shriek. The movement for the emancipation of women originated, of course, with Mary Wolstonecraft, about 1812. Her book, which was the first, is certainly one of the longest that have yet been written on the subject. It remained at the time unanswered, and when its author married Godwin she herself seems to have lost interest in the controversy. Nevertheless, little has been added since to the ideas there put forward, save, indeed, for the vote. It is a somewhat curious fact that in all Miss Wolstonecraft's great magazine of grievances and demands for remedying legislation, there is not a single word said about votes by women, or there being such a thing as the right to the ballot.

[Footnote 1: In the trial of Mary Heelers for bigamy (2 State Trials, 498) as late as 1663 the chief justice said, 'If guilty, she must die; a woman hath no clergy.' Yet Mary wrote to her husband, in court, "Nay, my lord, 'tis not amiss, before we part, to have a kiss!" She was acquitted.]

The industrial condition of the sex in American cities may be summed up with the general phrase "absolute equality of opportunity," with a certain amount of special protection. Women are nearly universally required to be given seats in factories and stores, and the laws specially protecting their periods of employment have just been sustained as constitutional in the States of Illinois and Oregon and the Supreme Court of the United States. On the other hand, we are far behind European countries in legislation to protect their health or sanitary conditions. The most radical effort at legislation ever made was undoubtedly that Connecticut bill forbidding employment of married women in factories, which, however, did not become a law. The recent reports of Laura Scott to the American Association for Labor Legislation, on Child Labor, 1910, and the Employment of Women, 1909, have already been referred to. From the former, which appeared as we are going to press, we learn that there are prohibited occupations to children in all the States without exception--a statement which certainly would not have been true some years since. These prohibited groups of employment are generally, to male and female, dangerous machinery and mines, and to females also saloons; and there is nearly universally a limitation of all labor to above the age of twelve or fourteen for all purposes, and to above fourteen or sixteen for educational purposes, besides which there is a very general prohibition of acrobatic or theatrical performances. Girls are sometimes forbidden to sell newspapers or deliver messages for telegraph companies or others. Compulsory education is, of course, universal, and the machinery to bring it about is generally based upon a system of certificates or cards, with truant officers and factory inspectors.

According to the encyclopaedias, some five hundred thousand women were employed in England about twenty years ago, of whom about three hundred thousand were in the textile mills. In Massachusetts alone there were two hundred and eight thousand women employed, according to the last State census. Neither of these figures include the vast class of domestic service and farm labor. The inclusion of this would swell the proportion of adult women employed in gainful occupations to at least one in four, if not one in three. Congress itself has recently been investigating the question whether "home life has been threatened, marriage decreased, divorce increased out of all proportion, and the birth rate now barely exceeds the death rate, so that the economic and social welfare of the country is menaced by this army of female wage earners" (see _Boston Herald_, April 2, 1908). It appeared that in 1900 one million seven hundred and fifty thousand children were at work between the ages of ten and fifteen, of whom five hundred thousand were girls. This and other considerations have led to the movement for national child-labor laws already discussed.

Perhaps the most dangerous tendency, at least to conservative ideas, is the increasing one to take the children away from the custody of the parents, or even of the mother, and place them in State institutions. Indeed, in some Western States it would appear that the general disapproval of the neighbors of the method employed by parents in bringing up, nurturing, educating, or controlling their children, is sufficient cause for the State authorities to step in and disrupt the family by removing the children, even when themselves unwilling, from the home to some State or county institution. Any one who has worked much in public charities and had experience with that woeful creature, the institutionalized child, will realize the menace contained in such legislation.

Finally, it should be remembered that throughout the United States men are universally liable for their wives' debts, short of some quasi-legal separation; on the other hand, wives are never liable for the debts of their husbands.

XVIII

CRIMINAL LAW AND POLICE

There is no very general tendency toward new legislation in matters of felony, and many States are still content to remain with the common law. Such legislation as there is is mainly concerned with the protection of women and children, alluded to in the last chapter. In matters of less serious offences, of legislation creating misdemeanors or merely declaring certain acts unlawful, there are three main lines: First, legislation usually expressive of the common law against conspiracies of all sorts, combinations both of individuals and of capital, already fully discussed. Next, the general line of legislation in the interest of the health of the public, such as pure food and drug laws, and examination for trade or professional licenses; and finally laws protecting the individual against himself, such as liquor and anti-cigarette or anti-cocaine laws. It is hardly necessary to more than illustrate some of these matters. Then there are the laws regulating punishment for crime, laws for probation or parole, indeterminate sentences, etc., all based on the modern theory that reform, not retribution or even prevention, is the basis of penology. Such laws have been held constitutional, even when their result is to arbitrarily increase a man's sentence for crime on account of his past or subsequent conduct. Finally, and most important, there is the legislation regulating the actual trial of cases, indictments, juries, appeals,--the law of court procedure, civil as well as criminal, which for convenience we may consider in this chapter.

Of the first sort of legislation, we have noted that in many States adultery, in many States simple drunkenness, in other States mere single acts of immorality, are made felonies. In 1892 the State laws against food adulteration begin, which, by 1910, have covered milk, butter, maple sugar, and many other subjects. By the Federal pure-food law of 1906, applying to Interstate commerce in such articles, it became advisable for the States to adopt the Federal Act as a State law; also for the sake of uniformity a few States have had the intelligence to do so. The trades of fat-rendering and bone-boiling are made nuisances by statute.

In 1896 we note the first statutes against lynching. In 1897 local option prevails in Texas, and the blue laws of Connecticut are abolished to the extent that recreation on Sundays is no longer prohibited. Local option and anti-lynching laws continue during the next two or three years, and by 1900 twenty-four States have pure-food laws, which, however, are ineffective because they impose no sufficient penalty. In 1903, in consequence of the assassination of President McKinley, Washington and Wisconsin make the advocating anarchy a felony. Twenty-one more States pass pure-food laws, and nearly all the States have gone over to local option from State-wide prohibition, to which latter principle only three States now adhere. In 1904 Mississippi and Virginia adopt more stringent laws against vagrancy, and 1905 is the year of active legislation on the indeterminate sentence, juvenile courts, parole and probation, with two more statutes against mobs and lynching. In 1907 the States are busied with the attempt to enforce their prohibition regulations against the interstate commerce jurisdiction of the Federal government. Solicitation of interstate orders for liquor is forbidden in Mississippi, and it is provided that shipments sent C.O.D. are not to be moved one hundred feet or given away; also, that the mere possession of an internal revenue receipt from the United States government is _prima facie_ evidence of an offence against the State law. Statutes of this kind led to renewed conflict between State and Federal authority. Virginia adopts the statute against giving tips or any commissions; see p. 244 above. In 1908 we find more parole and probation laws, two prohibition and three local-option laws, and four new pure-food statutes.

Coming to matters of court procedure, in 1890 one State provides that there should never be called more than six witnesses for each side in any criminal case, which oddly reminds one of early English trials by compurgation; but is, of course, quite unconstitutional in this country. In 1893 Connecticut adopts a statute that honorably discharged soldiers and sailors addicted to drink are to be "treated" free at the State hospital. The definition of the word "treated" seems ambiguous, but in any event it is a pleasing reminder of Bishop Berkeley's remark that he would "rather see England free than England sober." Some States provide for a jury of eight in criminal cases and for a verdict of three-quarters in civil cases--a statute of questionable constitutionality. Very generally throughout the twenty years studied by us, the States have adopted stricter rules for the admission of attorneys at law to practise at the bar.

In 1895 Pennsylvania yields to the physicians and passes a statute forbidding them to disclose communications of patients, but the statute only applies to civil cases. More States provide for verdicts by a majority of the jury. Maryland goes Pennsylvania one better in extending the professional privilege to newspaper reporters; that is to say, we find a statute that they may not be compelled to disclose their sources of information, an excellent statute for the yellow journal. In 1897 California abolishes capital punishment; there has been a general tendency in this direction, of recent years, although some States, having tried the experiment, have returned to it again, as has the Republic of France. In 1899 the privilege from testifying is extended in one State also to trained nurses, and in others to physicians, even in criminal cases, although they may testify with the patient's consent. The same law was adopted in Iowa in 1900, Ohio does away with the common law of libel, except the plaintiff can prove actual malice. By this year, seventeen States expressly allow women to practise law, and twenty-eight do so by implication. The Colorado statute for a three-fourths verdict is held unconstitutional.

The regulation of the liquor traffic is, perhaps, after the labor question, the most universal subject of legislation in occidental nations. Experts on the matter tell us (E.L. Fanshawe, "Liquor Legislation in the United States and Canada," Report to Parliament, 1892) that there have hitherto been but three, or possibly four, inventions--universal or State-wide prohibition, local option, license, high or low, and State administration. The last was recently tried in South Carolina with more or less success. Prohibition by a general law does not seem to be effective; local option, on the contrary, does seem to be so. But the general consensus of opinion, to which Mr. Fanshawe comes, and which seems still to be held by most intelligent American publicists, is that on the whole high license works best, and this the women themselves have just voted in Denver; not only because it actually prohibits to a certain extent, but it regulates and polices the traffic, prevents the sale of adulterated liquor, and to a considerable extent the grosser disorders and political dangers that attend the bar-room. On the other hand, the power of licensing should never be granted to any political body, but should be granted under fixed rules (determined by geographical position and the local opposition or desire) by the local government. These rules should not be arbitrary, and the person applying for license should have the right to appeal to some court.

Matters of bribery and political corruption have been somewhat anticipated under Chapter 14. Suffice it here to say that the States very generally have been adopting statutes making bribery criminal and a cause of permanent disqualification from all political right, either voting or holding office, and this applies both to the person bribing and the person receiving the bribe. Bribery by offers or promise of employment is a far more difficult matter, but this matter also certain States have sought to regulate.

There are, of course, thousands and thousands of city ordinances relating to the criminal law, but usually to minor offences or matters of police regulation. Undoubtedly the duplication of them tends to make us not a law-abiding community. It was the present Boston police commissioner who complained that there were more than eleven thousand ordinances in Boston, which everybody was supposed to know. We must let the whole matter go by saying that there is a general attempt at universal police regulation of all the actions of life, at least such as are conducted outside of a man's own house. Sunday laws, Sabbatarian legislation, have, of course, very largely been abandoned, except when restored in the interest, or supposed interest, of labor. In the State of New York, for instance, barbers could only shave on Sunday in the city of New York and the town of Saratoga; the reasons for the exception are obvious.

Coming to general principles of penology, there is no doubt that of the three possible theories, revenge, prevention, and reform of the criminal, it is the latter that in the main prevails throughout the United States. An investigation was conducted some years since by correspondence with a vast number of judges throughout the world, and it proved that this was also their principle of imposing sentences, in the majority of cases. More radical change is found in that legislation freeing prisoners on parole, providing indeterminate sentences, and in the creation of special courts for boys and young women, with special gaols and reformatories. Jury trial, of course, remains substantially unchanged from the earlier times, only that the jurors are now in most States permitted to read or to have read the newspapers, and that the government has a right of appeal when the verdict has gone for the prisoner on a point of law. This matter, upon President Roosevelt's recommendation, was embodied in an act of Congress.

The legislation making it criminal to advocate assassination or anarchism has been adverted to when we were considering the rights of aliens. In England, it is treason to imagine the death of the king. There is no constitutional reason why it should not be treason to imagine the death of the president, or perhaps even the subversion by force of organized society. Such laws have been passed in Washington, Wisconsin, and other States.

It has, in some States, been made a capital offence to kidnap a child, and, as has been elsewhere said, the rigor of the common law is very generally preserved for the crime of rape. The most active effort to-day for legislation in matters quasi-criminal is that to extend jury trial over cases of contempt of court, particularly when in violation of a chancery injunction when the act itself is criminal. The greatest need of criminal legislation is in the writer's opinion in matters of business or corporate fraud, and in revival of our older English law against the extortion or regrating of middlemen, the engrossing of markets, the artificial enhancing of the prices of the necessaries of life, and the withholding, destruction, or improper preservation of food. But most of all, as President Taft has urged, greater speed and certainty and less technicality in court trials for crime--a reform of our legal procedure.

XIX

OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC DOMAIN

The matter of most interest in modern American legislation for municipal government is probably the home-rule principle. That is, statutes permitting cities or towns, or even villages, to draw and adopt their own charters and govern themselves in their own way. The charter thus adopted may, of course, be the old-fashioned government of mayor, aldermen, common council, etc., or it may be the newly invented government by commission, based substantially on the theory of permanent officials chosen at infrequent intervals, and officers, in so far as possible, appointed, and not elected. The one makes for efficiency, the other for democracy. At present the American people seem to have a craze for efficiency, even at the expense of representative government, and of principles hitherto thought constitutional. It is impossible to tell how long it will last. It may carry us into the extreme of personal government, national, State, and local, or history may repeat itself and we may return to the principle of frequent elections and direct responsibility to the voters under the arbitrament of the courts of law. We may go on to special courts (declared odious in the Great Case of Monopolies) and administrative law, or be content with improved understanding of the law we already have.

These matters are too large for us; coming down to more concrete facts, we find that the general tendencies of legislation upon State, and particularly municipal, government are to somewhat enlarge its functions, but considerably to limit its expenditure. Greater distrust is shown in legislatures, municipal as well as State, and a greater trust and power reposed in individual heads, and a much greater power intrusted to more or less permanent boards and commissions, usually not elective, and often clothed with vast powers not expressly submitted to the scrutiny of courts of law. The purposes of education are somewhat extended, generally in the direction of better education, more technical and practical and less "classical."[1] Charity includes a largely increased recreation for the people, State provision for many more classes of the invalid and incompetent, specialized homes for various sorts of infirm or inebriate, and some little charity in the guise of bounties of seed, etc., to needy farmers, which latter, however, have usually been held unconstitutional.

[Footnote 1: Though a lady orator in Boston this year complains to an audience of labor unionists that trades schools and industrial education tend to "peasantize" the poor. Peasanthood was the condition of the agricultural laborer; it was skilled labor that made him free--neither peasant, peon, nor villein. See p. 20, above.]

Thus, in 1890 North Dakota limits the debt of cities to five per cent.; but permits county loans to raise seed grain for needy farmers; other States extend the principle of socialism to electric lighting, gas, natural gas, water, sewers, agricultural drainage, irrigation, turnpikes, and cemeteries. That is to say, all may be built, maintained, or run at the municipal expense, or under municipal control. In 1895 Wisconsin, North Carolina, Texas, and other States carefully limit State, county, town, or city taxes to prescribed rates. Texas requires a two-thirds vote on the issue of municipal bonds, and fixes the debt limit at five per cent. In 1896 Missouri rejects a constitutional amendment permitting municipal gas and water socialism on majority vote of the voters. The same year the failure of such enterprises begins to show itself in a statute of Iowa authorizing municipal plants to be sold upon a popular vote. The socialist town of Hamilton, Ohio, actually went into the hands of a receiver; a similar result followed the English experiments in the towns of Poplar and West Ham.

In 1897 many other States adopted a limit for State, city, county, or town taxes. Indeed, it may be stated generally, without going into further details, that such laws are practically universal throughout the South and West, and prevail to some extent as to cities only in New England, and the same may be said of laws fixing a debt limit which States, counties, cities, or towns may not exceed. Such laws are very generally evaded, as by leasing desired improvements of a private company, or (in Indiana at least) the overlapping of municipal districts; thus there may be (as formerly in England) city, town, school district or poor district, each separate and not conterminous.

While it is obvious that municipal socialism has rather decreased in the last ten years, laws restricting the granting of franchises have become far more intelligent and are being generally adopted. The best example of such legislation is probably to be found in Kansas. The general principles are that no franchise can be given but for a limited time, that it must be bought at public auction, that the earnings beyond a certain percentage on investment must revert to the city, and that there must be a referendum to popular vote in the locality interested. In 1899 Michigan declares the municipal ownership of street railways unconstitutional, but Nevada passes a statute for municipal ownership of telephone lines. In 1903 the municipal ownership of gas and oil wells is permitted in Kansas, and of coal or fuel yards in Maine. A law similar to the latter was declared unconstitutional by the Massachusetts Supreme Court. Missouri adopts a sweeping statute for the municipal ownership of "any public utilities" in cities of less than thirty thousand population. In 1904 Louisiana permits small towns to own and operate street railways. Other States copy the Missouri statute as to municipal ownership of all or any public utilities, and generally the principle is extended, but only in a permissive way; that is to say, upon majority vote, and this seems to be the present tendency. The most striking present experiment is in Milwaukee; both Haverhill and Brockton tried socialistic city government in Massachusetts, but abandoned it.

Civil-service reform has very generally made progress during the past twenty years in State and city governments, and probably the principle is now more or less recognized in a great majority of the States.

Comparatively little is to be said as to internal improvements. The Michigan Constitution provides that the State shall go into no internal improvement whatever, and this, of course, was the older principle without any express constitutional provision. North Dakota and Wyoming provide that the State cannot be interested in works of internal improvement except upon two-thirds vote of the people.

South Dakota also provides that the State may not engage in them in any case; Alabama, that it may not loan its credit in support of such works; and Maryland, Minnesota, and Wisconsin, that it may not contract debts for the same, or in Kansas be a party to carrying them on. In Virginia, no county, city, or town may engage in any work of internal improvement except roads. Many of the States, however, specify a considerable number of purposes for which State, cities, or counties may give or loan their credit; and the matter of municipal socialism has just been discussed.

Very generally, the States have created agricultural experiment stations and model farms, drainage districts in the South, a levee system on the Mississippi River, and irrigation districts in the West; artesian wells in Texas, and in several States, State dairy bureaus. In specialized products, such as beet sugar, there is often provision for a State agricultural bureau, and nearly always for general agricultural as well as industrial instruction. The States are only beginning to adopt State forests, or forest reserves, Massachusetts and New York leading the way. Forestry commissions exist in a few States, but the very slightest beginning has been made at forestry laws. No control is as yet exercised over reforestation or replanting; a few of the Western States exempt growing trees, or the land covered by growing trees, from more than a nominal tax, notably Indiana and Nebraska. The forestry laws are, however, increasing. In 1903 we find one, in 1904 five, and in 1905 six, with the tree bounty law in North Dakota, and two States exempting forest lands from taxes. There are four statutes this year for fish or game preserves. In 1907 four States create forestry boards, and two exempt forests from taxation, and in 1908 growing trees are exempted in Massachusetts and Rhode Island. But under the unlimited power of Congress over Federal territory not yet incorporated into States, or not ceded to the State when incorporated, it is to the Federal government that we have looked for the creation and preservation of parks, forest reserves, and natural reserves generally. How far it may constitutionally create such within the lines of old States, or on land of which it is otherwise incapable of ownership, is a constitutional question still undecided.

The educational functions of the State are, of course, a peculiar principle of American civilization. Nearly all State constitutions provide that education is a natural right, and the first common school supported by general taxation appears in the Colony of Massachusetts Bay before the year 1640. The principle of compulsory education exists throughout all the States, and in all education of the most diversified kind is given, from the primary school or kindergarten to the State university or technical school of applied science, trade, or business. Nearly all the States have established State universities which are free or open at a nominal charge. Massachusetts continues to rely upon a semi-private institution, Harvard University, which, indeed, is expressly mentioned in its constitution. Provision is universally made also for evening schools, for industrial schools, for public libraries, and for popular elections, and besides the ordinary educational laws and the truant laws, there is in the statutes concerning labor matters abundant machinery for requiring some education as a preliminary to any employment. The age of compulsory education may be said to average between the ages of eight and fifteen, though the limits are extended either way in the divers States. Farm schools and industrial reform schools generally exist, both as a part of the present system and of the educational department. Coeducation in State schools and colleges is almost universal. On the other hand, as we have shown, the segregation of the races is in some States insisted upon. Several States forbid the employment of teachers under the age of sixteen, or even eighteen. Free text-books are generally provided. The period of compulsory schooling varies from the classic twelve weeks in the winter, as in old New England, to substantially the full academic year. Textile and other manual training schools exist in some States, but have generally evoked the opposition of organized labor, and are more usually created by private endowment. The tendency of civil service reform legislation, furthermore, has been to require a certain minimum of education, though it may be feared that the forecast of De Tocqueville remains justified; our national educational weakness is our failure to provide for a "serious higher instruction."

The great question of taxation we may only mention here by way of exclusion. It is naturally a matter for treatment by itself. The reader will remember (see chapter VII) that nearly all the States have now inheritance taxes besides direct property taxes, and many of them have income taxes and, in the South particularly, license taxes, or taxes upon trades or callings. They all tax corporations, nearly always by an excise tax on the franchise or stock, distinct from the property tax or the tax upon earnings. In both corporation taxes and inheritance taxes they are likely to find themselves in conflict with the Federal government, or at least to have duplicate systems taxing the same subjects, as, indeed, already considerable injustice is caused by inheritance taxes imposed in full in each State upon the stock of corporations lying in more than one State. In such cases the tax should, of course, be proportionate.

The principle of graded taxation in the matter of incomes and succession taxes has been very generally adopted, not as yet in any direct property tax, except that a small amount of property, one hundred dollars or five hundred dollars, is usually exempt.

The principle of imposing taxation not for revenue, but for some ulterior or ethical purpose, such as the destruction of swollen fortunes, is liable to constitutional objection in this country, though the courts may not look behind the tax to the motive, unless the latter is expressed upon the face. For this reason, the present corporation tax, on its surface, is imposed solely for the purpose of raising revenue, though in debate in Congress it was advocated mainly for the object of bringing large corporations under Federal examination and control.