Chapter XX: Section 1: No person shall be entitled to a divorce for any cause (2)

The last matter relating to taxation, that of bounties, we have discussed in chapter VII also. State aid bonds, or bonds of counties, cities, and towns, issued to encourage industries, raise a question far more complex than the simple bounty. Such legislation has, however, practically ceased throughout the country, except in the form of exemption from taxation. It has been recognized by a long line of decisions that it is constitutional to grant such aid to railroads, but it may be questioned in almost any other industry. A mere exemption from taxation, especially for a certain number of years, rests on a stronger constitutional basis. Many of the Southern States have recently passed laws exempting manufacturing corporations, etc., from taxation for a definite number of years, and such provisions are found in one or two State constitutions. When they only rest upon a statute, however, they are always at least litigable at the suit of any tax-payer. So, bonds issued by the city of Boston under a statute expressly authorizing them to enable land-owners to rebuild after the great fire, were held to be void. A Federal loan was proposed to raise money to lend to the inhabitants of San Francisco to rebuild after the earthquake, but failed of enactment. It will be remembered that the States have very generally no power to engage in internal improvements (see above). _A fortiori_, therefore, they can hardly loan money or credit to private interests be they never so much for the general benefit. The difficulty of testing all such laws has been adverted to, at least in the case of taxation. For that purpose Massachusetts has a wise law providing machinery by which such matters may be contested upon the action of any ten tax-payers.

There are three great questions before us in the immediate future--the negro, local or self government, and taxation, which last is the chief problem of city and town government.

The world has never before tried the experiment of municipal government, where those who have the local vote do not generally pay the local taxes.

XX

FINAL

One would suppose that a democracy which believes in the absolute panacea of law-making would take particular pains with the forms of its legislation, to have its statutes clear, in good English, not contradictory, properly expressed and properly authenticated. You would certainly suppose that the people who believe that everything should be done under a written law would take the greatest pains to see that law was _official_; also, that it was clear, so as to be "understanded of the people"; also, that it did not contain a thousand contradictions and uncertainties. When our--I will not say wiser, but certainly better educated--forefathers met in national convention to adopt a constitution, one of the first things they did was to appoint a "Committee on Style." It is needless to say that no such committee exists in any American legislature. You would suppose they would take pains to see that all the laws were printed in one or more books where the people could find them. This is not the case in New York or in many of our greater States. You would also suppose that when they passed another law on the same subject they would say how much of the former law they meant to repeal, but in many States that also is not done. It would probably be too much to hope that they should not confuse the subject with a new law on a matter already completely covered; but the form of their legislation should be improved at least in the first three particulars I have mentioned.

What is the fact? The secretary of one new State reports that the laws, as served up to him by the legislature, are "so full of contradictions, omissions, repetitions, bad grammar, and bad spelling" that it has been impossible for him to print them and make any sense; the bad grammar and the bad spelling, at least, he has, therefore, presumed to correct. But what should surprise us still more is, that in very few of our States is there any authentic edition of the laws whatever, and quite a number do not publish their constitutions!

The worst condition of all is found in the national legislation of Congress, until very recently in the great State of New York, and in those States which have adopted the code system generally. I do not say this as an opponent of general codes, but I am constrained to note as a fact that those States are the ones which have their legislation in the worst shape of any. The charm of the statute theory is that the half-educated lawyer or layman supposes he can find all the laws written in one book. Abraham Lincoln even is said to have had the major part of his "shelf of best books" composed of an old copy of the statutes of Indiana, though I can find no traces of such reading in the style of his Gettysburg address. But how far is this democratic claim that the laws of a State are all contained in one book borne out by the facts?

Of our fifty States and Territories only Alabama, Arizona, the District of Columbia, Connecticut, Delaware, Maine, Maryland, Massachusetts, Montana, New Hampshire, New York (partially), North Carolina, Rhode Island, South Carolina, Vermont, and Wisconsin (sixteen States) have any official revision or "General Laws"; that is to say, one or more volumes containing the complete mass of legislation, up to the time of their issue, formally enacted by the legislature. A number of other States have what are called "authorized revisions" or authorized editions of the law. This phrase I use to mean a codification by one or more men (usually a commission of three) who are duly appointed for the purpose, under a valid act of the State legislature, but whose compilation, when made, is never in form adopted by the legislature itself. Leaving out the constitutional question whether such a book is in any sense law at all--for in all probability no legislature can delegate to any three gentlemen the power to make laws, even one law, much more all the laws of the State--leaving out the constitutional question. It is very doubtful how far such compilations are reliable, although printed in a book said to be authorized and official, and held out to the public as such. That is to say, if the real law, as originally enacted, differs in any sense or meaning from the law as set forth in this so-called "authorized publication," the latter will have no validity. Indeed, some States say this expressly. They provide that these compilations, although authorized, are only admissible _in evidence_ of what the statutes of the State really are--that is to say, only valid if uncontradicted. It was impossible to correspond with all the States upon this point--if, indeed, I could have got opinions from their respective supreme courts, for no other opinion would be of any value. The compilation of the State of Arkansas says, somewhere near its title-page, that it is "approved by Sam W. Williams." It does not appear who Sam W. Williams is, what authority he had to approve it, or whether his approval gave to the laws contained in that bulky volume any increased validity. This is a typical example of the "authorized" revision, and this is the state of things that exists in such important States as Arkansas, California, Colorado, Florida, Hawaii, Idaho, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Oregon, South Dakota, Tennessee, Utah, Virginia, and Wyoming (twenty in all).

Before leaving these States, which do have some form of "revised statutes" or complete code--and be it remembered that I am never here speaking of annual laws, for however bad their form and the form of their publication, they are usually, at least, _official_--it will be interesting, and, I think, throw further light on the subject, to cull some passages from the laws of States having such "authorized revisions," to show how far their real authority extends. The general statutes of 1897 of the State of Kentucky say on their title-page that they are an authorized compilation approved by the Supreme Court, but the form of approval of the Supreme Court of Kentucky runs as follows: "Although we consider this duty not lawfully imposed upon us," they say that, so far as they have observed, they "detect no errors in the compilation and it seems to have been properly done." Of how much value such approval would be in case there turned out to be a discrepancy between the compilation and the original statute, I leave to the lawyers to judge. The compiled laws of New Mexico of the same year, made by the solicitor-general, contain an amusing statement under his own signature, that he believes "a large part of the laws he there prints are either obsolete or have actually been repealed by certain later statutes," but he, as it were, shovels them in, in the hope that some of them may be good!

The commissioners of the State of North Dakota go still farther. Their code of 1895 bears a statement that it is, by authority of law, "brought to date" by the commissioners, who go on to say that they have compared the codes of other States and have added and incorporated many other laws taken from such codes of other States, apparently because the commissioners thought them of value! One must really ask any first-year student of constitutional legislation what he thinks of that statement, not only of its constitutionality, but of its audacity. Finally, the State of South Dakota says, in its statutes of 1899, what I quoted at the beginning--that "all the laws contained in the book are to be considered as admissible in evidence," but not conclusive of their own authenticity or correct statement.

We now come to the third, and, from the point of view of the believer in statutes, probably the worst class of all. That is to say, States which have no official or authorized compilation whatever and which rely entirely upon the enterprise of money-making publishers to make a book which correctly prints the laws, and all the laws, of the State in question. For one State, at least, such a compilation was made by a few industrious newspaper correspondents at Washington! The States and Territories that are in this cheerful condition are, as I have said: New York (in part) the Territory of Alaska, California, Colorado, Illinois, Indiana--that is to say, there has been no official revision since 1881 and everybody, in fact, uses a privately prepared digest--Louisiana, Michigan, Minnesota, Mississippi, Ohio, Pennsylvania, Washington, and West Virginia (fourteen in all). Besides this, there are other States such as Wisconsin and Indiana, already mentioned, where there is no official _recent_ revision, so that everybody depends upon a private compilation, which is the only one procurable.

So much for the authenticity of the books themselves which contain the laws upon which we all have to depend. Now, coming to the form of the laws. As I have already remarked, there is no committee on style. There is no attempt whatever made at scientific drafting. To give an example of what difference this may make in mere convenience, it is only a few weeks since, in Massachusetts, a chapter of law to protect the public against personal injuries caused by insolvent railway and street railway companies was drawn up by a good lawyer, and contained between twenty and thirty sections, or about three pages of print. It was brought to another lawyer, certainly no better lawyer, but a legislative expert, who got all that was desired into one section of five lines. There is no committee on style, there is no expert drafting. The case of the recent Massachusetts statute declaring the common law to be the common law, and therefore jeopardizing the very object of the statute, will not be forgotten (see p. 188 above). There are certain definite recommendations I should like to make.

First, adopt the provision that "no statute shall be regarded as repealed unless mentioned as repealed, and when a law is amended, the whole law shall be printed as amended in full." This would acquaint the legislature with the law already existing, before they proceed to change it. Next provide that all laws shall be printed and published by a _State_ publisher and the authenticity of all revisions be duly guaranteed by their being submitted to the legislature and re-enacted _en bloc_, as is our practice with revisions in Massachusetts and some as other States. Third, the local or private acts should be separated from the public laws, and they might advantageously even be printed in a separate volume, as is done in some States already. But who shall determine whether it is a private, local or special act, or a general law? I can only answer that that must be left to the legislature until we adopt the system strongly to be recommended of a permanent, preliminary, expert draftsman. Finally, no legislation must ever be _absolutely_ delegated. That is to say, even if a revision is drawn up by an authorized commission, their work should be afterward ratified by the legislature. It is said, I think, that the constitution of Virginia, drawn up by a constitutional convention, was never ratified by the people. If so, there is a grave constitutional doubt whether it or any part of it may not be repealed at any time by a simple statute. But can a constituent body of the mass of the people, the fundamental and original political entity of the Anglo-Saxon world, be forbidden from delegating its legislative power, as its representatives themselves are forbidden?

The last matter, that of arrangement, order of printing, and form of title, is so directly connected with that of indexing that I shall treat the two things together. Now, there are three different methods of arrangement, or lack of arrangement, to be found in printing the laws of our forty-six States and four Territories, both in the revisions and in the annual laws. The revisions, however, are more apt to have a _topical_ arrangement, and to be divided into chapters, with titles, each containing a special subject and arranged, either topically, or, in some States, even so intelligent otherwise as are Pennsylvania and New Jersey, arranged with the elementary stupidity of the alphabetical system. I say, stupid; when, for instance, you have a chapter on "Corporations," no one can tell whether the legislature or compilers are going to put it under "C" for corporations, under "I" for incorporations, or under "J" for joint-stock companies. The alphabetical system of arrangement is the most contemptible of all, and should be relegated to a limbo at once. The annual laws, of course, are much less likely to have any arrangement whatever. Passed chronologically, they are more apt to follow in the order of their passage.

Now these systems as we find them are as follows: in nearly all States public and private laws are lumped together, although in a few they are indexed separately. Most of the States to-day, including all the "code" States, adopt the topical system of arrangement, as, indeed, must be the case in anything that might, by any possibility, be called a code, and even a general "revision" of the statutes will naturally fall into chapters covering certain subjects. A few States, as I have said, cling to the crude alphabetical system, and quite a number have no discernible system whatever. In some States the annual laws are arranged by number, in some by date of passage, and in some apparently according to the sweet will of the printer. In those States which do not arrange them or entitle them by date of passage we have to depend on the crude and dangerous system of citation by page. Acts of Congress are sometimes cited by date of passage, sometimes more formally by volume and number of the Statutes at Large, and more often than either, probably, by the popular name of the statute, such as the "Sherman Act," the "Hepburn Act," or the "Interstate Commerce Law."

It seems to me we should recommend one system. That for the codes or general revisions should certainly be topical. That of the annual laws may either be topical or chronological, but the statutes, in whatever order they are printed, should be _numbered_ and cited by number. No alphabetical arrangement ever should be permitted.

As to indexing we should urge upon State legislatures, secretaries of State, and official draftsmen (when we get any) that the very excellent system contained in the New York Year Book of Legislation should be adopted for all volumes of State laws. It is as bad for the index to be too big as to be too little, and it does not follow that the good draftsman is a good indexer. The index to our Revised Laws of Massachusetts is contained in one large separate volume of 570 double-column pages. To look for a statute in the index is just about as bad as to look for it in the revision itself. The most important point of all is the proper choice of subject titles. Laws should be indexed under the general subject or branch of the science of jurisprudence, or the subject-matter to which they belong, not too technically and not too much according to mere logic. For example, any lawyer or any student of civics who wished to learn about the labor laws of a State, whether, for instance, it had a nine-hour law or not, would look in the index under the head of "Labor." _Labor_ has become, for all our minds, the general head under which that great and important mass of legislation concerning the relation of all employers and employees, and the condition and treatment of mechanical or other labor, naturally falls. But if you search in our elaborate index of Massachusetts for the head of "_Labor_" you will not find it. If you look under "_Employment of Labor_" you will find it, but you cannot be certain that you will find all of it, and you will find it under so many heads that it would take you quite ten or fifteen minutes to read through and find out whether there is an "hours-of-labor" law or not. On the other hand, purely technical matters, such as "_Abatement_" are usually well indexed, because their names are what we call "terms of art," under which any lawyer would look.

But, after all, it does not so much matter what system we adopt as long as it is the same system. At present I know of nothing better than the forty heads contained in the "Principal Headings" of the New York State Library Index, though I should like to change the names of a few. For instance, "Combinations or Monopolies" is not the head to which the lawyer would naturally look for statutes against Trusts. The word "trust" has become a term of art. If not put under "Trusts" it should be under "Restraint of trade" or "Monopolies," but the word "combination" is neither old nor new, legal nor popular. A combination is lawful. If unlawful, it is _not_ a combination, but a conspiracy.

The most important statute of the United States is perhaps the most horrible example of slovenliness, bad form, and contradiction of all. The "Hepburn Act" is the amended Interstate Commerce Act, and is printed by Congress in a pamphlet incorporating with it quite a different act known as the Elkins Act, besides the Safety Appliance Act, the Arbitration Act, and several others. We all remember under what political stress this legislation was passed, with Congress balking, the senators going one way, the attorney-general another, the radical congressmen in front, and the president pushing them all. It is easily intelligible that such a condition of things should not tend to lucid legislation, particularly when an opposing minority do not desire the legislation at all, and hope to leave it in such a shape as to be contradictory, or unconstitutional--or both. (This has been intentionally done more than once.) All of it a mass of contradictions or overlaying amendments, the first important part of it which came under the scrutiny of the Supreme Court only escaped being held unconstitutional by being emasculated. Its other clauses have yet to face that dreaded scrutiny. Its basic principle has yet to be declared constitutional, while the only principle which has proved of any value was law already. This wonderful product of compromise starts off by saying "Be it enacted, etc., Section I as amended June 29, 1906." It begins with an amendment to itself. It does not tell you how much of the prior law was repealed, except upon a careful scrutiny which only paid lawyers were willing to give. Upon the old Interstate Commerce Act of 1887, after quoting it substantially in full, it adds a mass of other provisions, some of which are _in pari materia_, some not; some contradictory and some mere repetitions. It amends acts by later acts and, before they have gone into effect, wipes them out by substitutions. It hitches on extraneous matters and it amends past legislation by mere inference. Like a hornet it stings in the end, where revolutionary changes are introduced by altering or adding a word or two in sections a page long, and it ends with the cheerful but too usual statement that "all laws and parts of laws in conflict with provisions of this act are hereby repealed." As a result no one can honestly say he is sure he understands it, any more than any serious lawyer can be certain that its important provisions are any one of them constitutional. And that huge statute with sections numbered 1, 2, 5, 16, 16_a_, etc., with amendments added and substituted, amended and unamended, is contained in twenty-seven closely printed pages. I venture to assert boldly that any competent lawyer who is also a good parliamentary draftsman could put those twenty-seven pages of obscurity into four pages, at most, of lucidity, with two days' honest work. By how little wisdom the world is governed! And how little the representatives of the people care for the litigation or trouble or expense that their own slovenliness causes the people! For the necessity of political compromise is no excuse for this.

I therefore urged before the National Association of State Libraries, at their annual meeting of 1909, that they should use their influence with the various State governments at least--"1, that all revisions be authenticated, authorized, and published by the State; 2, that the annual laws be separated, public from private, and be printed by numbered chapters arranged either chronologically or topically; 3, that the indexes be arranged under the forty general heads used by the New York State Library in its annual digest, with such additional heads as may, perhaps, prove necessary in some States, such as, for instance, Louisiana, which has subjects and titles of jurisprudence not known to the ordinary common-law States; 4, that the constitutions be printed with the laws; 5, that every State, under a law, employ a permanent, paid parliamentary or legislative draftsman whose duty it shall be to recast, at least in matters of style and arrangement, all acts before they are passed to be engrossed."

Any private member introducing a bill can, of course, avail himself of the draftsman's services before the bill is originally drawn. His advice may be required by the legislature or by legislative committees on the question whether the proposed legislation is necessary, that is to say, whether it is not covered by laws previously existing. It shall be his duty then to edit the laws, arrange them for publication, and to authenticate by his signature the volumes of the annual laws. One person is better than two or three for such work, but he should be paid a very large salary so that he can afford to make it his life work. He should be appointed for a very long term and should have ample clerical assistance. It should also be his duty to correspond and exchange information with similar officials in other States. In other words, he with his assistants should be the legislative reference department. These recommendations were duly referred to the Committee on Uniformity in preparation of session laws.

* * * * *

At some risk of wearying the reader I have attempted superficially to cover a very extensive field. I started with quoting Blackstone's remark that there is no other science in which so little education is supposed to be necessary as that of legislation. These words were penned by him more than one hundred and fifty years ago and there is still no book upon this subject; the books on Government, Parliamentary Law, and Hermeneutics concerning respectively the source, the procedure, and the interpretation of legislation, not the content thereof. I can but hope to have called attention to the immense importance of this subject, particularly in our representative democracy, and I will beg my readers who have been patient with me to the end to reflect for more than a moment on the extraordinarily novel state of things that this modern notion of the legislative function brings about. It is a commonplace of historical writers to open their first chapter by calling attention to the difference made by steel and electricity, to the fact that it took longer to get from Boston to Washington in 1776 than it does to-day from Maine to California and back; that it took longer even for the rural legislator in the Connecticut Valley to get to his State Capitol than it does to-day to go from there to Washington. But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association, and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as _familiar_ law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life--and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife's share in a husband's property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation. Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times--a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people"; but may and probably will represent a complete reversal of experience, an absolute alteration of human relations, a paradox of all that has gone before; and even when they endeavor not to do so, as in the case of that Massachusetts statute above referred to, their authors' lack of education in the science of legislation may unintentionally cause a revolution in the law. And even when a statute does not do this, no lawyer can be certain what it means until, years or decades afterward, it has received recognition from an authoritative court. That is why much complaint has been made of lawyers; they are said not to know their business, not to be able to tell what the law is. The head of a great railroad has recently complained that he was only anxious to obey the law, but had great difficulty in finding out what the law was. Any good lawyer with common sense knows the common law and usage of the people; but no one could tell at the time of its passage what, for instance, the Sherman Act, enacted twenty-three years ago, meant; the twenty-three years have elapsed; the anti-trust law has been before the courts a thousand times, and the best lawyers in the country do not to-day know what it means; and the highest tribunal in the land is so uncertain on the subject that it has ordered the Standard Oil case reargued.

This is not to say that one must not recognize the meaning and the need of law-making by statute; of law made by the people themselves to suit present conditions. "There should be a law about it," is the popular phrase--commonly there _is_ a law about it, and the best of all law, because tested by time and experience; only, the people do not realize this, and their power and practice of immediate legislation is not only the great event in our modern science of government, but it is also the greatest change in the rules and conditions of our _living_, and our _doing_, and our _having_. Not only our office-holders, but we ourselves, are born, labor, inherit, possess, marry, devise, and combine, under a perpetual plebiscitum, referendum, and recall. I can only hope that I have made some suggestions to my readers which will awaken their interest to the importance of the subject.

INDEX

Abbot of Lilleshall case,
Abduction, statute against, A.D. 1452, (_see Kidnapping_).
Acton Burnel (_see Statute Merchant_).
Actors forbidden from swearing on the stage.
Administration of estates, unfair laws in American States.
Administrative law (_see Boards and Commissions_),
still exists in Germany;
forbidden by Magna Charta;
did not exist in England.
Adultery now made a crime.
Advertising,
signs forbidden;
of patent medicines, divorce matters, etc., prohibited.
"Affected with a public interest"; use of phrase to justify rate
regulation.
African labor, etc. (see _Negro_).
Agricultural products,
exempted from anti-trust laws;
stations usually exist in State.
Aids (_see Taxation, Taxes_);
the three customary.
Ale (_see also Sumptuary Legislation_), Assize of.
Alfred, laws of (_see Wessex_)
Alien,
legislation against, in labor matters dates from 1530;
rights of, in real estate;
in personal property;
immigration of, regulated;
naturalization of;
alien and sedition laws;
libel against the government, suits for;
general scheme of our legislation concerning;
laborers may not be specially taxed;
may be forbidden to hold lands.
Alienation of affections, discussion of suit for.
Allowable socialism (_see Socialism_).
American legislation in general, chapter concerning, chapter VI.
Anarchism (_see Socialism_),
definition of;
advocating of, made a felony
Anarchists,
legislation against;
naturalization of;
may be denied immigration.
Anglo-Saxon law (_see Law_),
re-establishment of, chapter concerning, chapter III;
was customary law;
method of enforcing;
its nature, loss, and restoration.
Anglo-Saxon legislation (_see also Legislation_).
Anti-truck laws.
Anti-trust laws (_see Trusts_).
Apparel (_see Sumptuary Laws_), statute of 1482.
Appeal, right to, in criminal cases given government.
Apprentices, early laws of.
Arbitration,
of labor disputes, laws for;
laws aimed against strikes;
laws in the British colonies.
Archery favored by legislation.
Arms (_see Assize of Arms_), chapter relating to, chapter XIII.
right to bear;
does not extend to Parliament;
history of;
made compulsory;
right to bear established in bill of rights;
does not include concealed weapons.
Army (_see Standing_),
use of;
its bearing upon liberty;
complained of in petition of rights;
used to control internal disputes;
use of by President in civil matters objectionable.
Arrest, freedom from, under Magna Charta.
Artificers and craftsmen (_see Labor_).
Asiatics (_see Mongolians_),
may not be citizens;
legislation against in the Far West;
may be unconstitutional;
may not be employed in public work.
Assembly,
right of, as bearing upon freedom of speech;
the right to, and free elections.
Assignable (_see Negotiable_).
Assistance, writs of, in Massachusetts.
Assize of Arms.
Assize of Bread and Beer.
Association, freedom of (see _Combination_), is guaranteed in
Switzerland.
Atheism does not disqualify a witness.
Austin's views of law.
"Avocation, affected with a public interest."

Bakers, statute of (_see Assize of Bread and Ale_).
Bakeshops, bakeries, legislation concerning (_see Sweatshops_).
Balance of trade thought desirable as early as 1335.
Ballot,
form of, (_see Elections_);
the Australian, New York, etc.
Banishment not a constitutional punishment.
Bankruptcy act,
the first, A.D. 1515;
under Cromwell;
national.
Battle, trial by.
Beds, making of, regulated in Oklahoma and the England of 1495.
Beer (_see Sumptuary Legislation, Assize of Beer_).
Beggars (see _Vagabonds_).
Benefit funds, legislation against.
Benefit of clergy,
origin of;
in modern trials;
reason of;
modification of in murder, etc.;
extended to women;
withheld from all women earlier.
Betterment taxes (_see Eminent Domain_),
limitation of;
reason for.
Bigamy,
a sin, not a crime in the earlier view;
statute of;
forbidden by statute of James I.
Bill of rights (_see Petition of Right, Constitution_).
Bills of exchange, invention of.
Bills of lading.
Bishops,
may be appointed by the crown;
abolished in 1646.
Black death,
gave rise to first statute of laborers;
plague of, 1348;
effect of on prices;
Black labor (see _Negroes, Peonage, etc._), in the Orange River
Colony.
Blacklists (see _Boycotts)_,
American statutes against;
in modern American statutes;
laws against in Germany and Austria.
Blackmail statutes.
Blackstone quoted as to legislation.
"Bloody" statute against heretics, 1539.
Boards and commissions,
growth of;
must be bi-partisan.
Bounties,
constitutional objection to;
usually unconstitutional;
in foreign countries;
Federal bounties;
public appropriations may be justified in times of emergency;
State usual subjects of.
Bows and arrows (_see Archery_) much used in England.
Boycotts (see _Conspiracy_)
first recorded precedent of in 1221;
"against the common weal of the people" made unlawful in 1503;
in modern times;
intent the test;
statutes;
definitions of;
unlawful under anti-trust laws;
in modern American statutes;
Alabama definition of;
no European legislation on;
right to prosecute as bearing upon right to freedom of speech.
Brewer, Justice, Yale address quoted
Bribery of votes by employment, etc. (_see Corruption_);
recent statute against.
Building,
laws regulating;
sanitary regulations under police power.
Bulk, sales in.
Business corporations, act of, Massachusetts.
By-laws,
of guilds must not be in restraint of trade;
against the common weal of the people made unlawful in 1503;
of corporations must be reasonable;
illegal, forbidden, 1503;
forbidding appeal to the law courts unlawful;
the Norwich tailors' case.

Cabinet, functions of in England.
Cade, Jack,
attainder of;
rebellion of, its effect, etc.
Canada, legislation on arbitration.
Canon law (_see Church Law_),
supplanted by common law;
early jealousy of.
Canons of the Church (_see Canon Law_).
Canute, laws of.
Capital, combinations of (_see Trusts_).
Capital punishment, laws abolishing.
Carlyle, his remark on legislation.
Carriers, rates of fixed by law.
Carter, James C., quoted.
Cartoons, laws against.
Cash payment of wages,
danger of laws for.
Caucuses (_see Primaries_), regulation of by law.
Celibacy of priests a modern doctrine.
Cemeteries, eminent domain for.
Centralization,
by Federal incorporation law;
as caused by the fourteenth amendment.
Certificates (_see Stock Certificates, Trust Certificates, etc._).
Chancellor (see _Injunction_).
Chancery (see _Equity Jurisdiction_),
early jealousy of by the people;
court of, origin;
the star chamber;
statute against jurisdiction;
in labor disputes.
Charity (_see Bounties_), modern legislation concerning.
Charter of liberties,
of Henry I;
of Henry II.
Charter (_see Magna Charta_),
early royal charters a concession of Anglo-Saxon liberties;
as previously existing.
Child labor,
laws concerning;
hours;
absolute prohibition of;
age limit;
dangerous and immoral trades;
young girls;
in mines.
Children,
guardianship of;
in America, labor of, regulated;
guardianship of may be given either parent;
rights of in marriage and divorce;
tendency to State control of, its effect.
Chinese (_see Mongolian_), laws against.
Chitty, cited as to conspiracy.
Christian Science,
laws regulating practice of;
not protected by the Constitution.
Church law (_see Canon Law_),
freedom from;
early jurisdiction of;
governs sin;
of Henry VIII and Mary;
of Elizabeth III in U.S.
tests.
Church of Rome supreme over England.
Cigarettes
manufacture and sale of forbidden;
laws against.
Cigar making (_see Sweatshops_).
Cincinnati, order of.
Citizens (_see Aliens Suffrage, etc._).
Citizenship,
of American Indians;
of other races, chapter XVI.
City (see _Government_),
debt limited by statute;
ordinances in effect laws.
Civil law,
early jealousy of;
supplanted as to legitimacy.
Civil rights of negroes, etc. (_see Class Legislation, Liberty,
Equality_).
Civil service reform, tendency to extend.
Clarendon, constitutions of.
Class legislation,
as to war veterans;
as to boycotts;
making hereditary privilege.
Clergy (_see Benefit of Clergy_).
Clerks (_see Benefit of Clergy_),
meaning of word;
may dress like knights.
Closed shop, early case of, (_see Union Labor_).
Cloth of gold worn only by the king.
Clothing,
regulation of by law;
manufacture of, a "sweated" trade.
Cloths,
trade to be free in;
act for spinning, weaving, and dyeing of.
Coal (_see Fuel_), Massachusetts law regulating sale of.
Codes,
in the United States;
in England.
Codification,
early, in England;
partial.
Co-education,
present tendency against;
universal in State colleges.
Cohabitation (_see Fornication_), made a crime in many States.
Coin (see _Money_)
Coinage, debasement of, forbidden.
Cold storage, need of legislation against.
Collective bargaining, principle of.
Color, persons of (see _Negro_).
Combinations (see _Labor, Trusts, Conspiracy_),
chapter concerning, chapter XII;
the law of;
the modern definition of;
against individuals;
intent makes the guilt;
to injure trade;
individual injuries to business;
to fix prices;
Professor Dicey quoted;
law of, in European countries;
with an evil end forbidden by Code Napoleon.
Commerce, legislation concerning, (_see Interstate Commerce,
Trade_).
Commissions and tips forbidden;
government by commission (_see Boards, Administrative Law_).
Common law,
enforcement of;
contrast with Roman law;
growth of by court decision;
effort to restore soon after the conquest;
as distinct from Roman law;
as against civil law;
how far enforced in United States;
early jealousy of chancery power;
does not apply in towns of the staple, but the law merchant;
superiority over statutes;
prevails in criminal matters;
self-regardant actions;
Massachusetts statute declaring.
Common land.
Common pleas, court not to follow king's person.
Common right shall be done to rich and poor.
Commons (_see House of Commons_).
Commonwealth of England, constitution of.
Commonwealth _vs._ Hunt, 4 Met. 111, case of cited.
Communism, definition of (_see Socialism_).
Company stores forbidden;
so, tenements;
company insurance.
Compulsory labor (_see Peonage_).
Compurgation, trial by.
Concealed weapons (_see Arms_).
Confirmation of charters.
Congress, usurpation of powers by.
Conscience, rights of (_see Religion_).
Conscription (_see Military Service_),
does not exist among English peoples.
Consent, age of,
in rape;
in marriage;
the age raised as high as twenty-one;
in criminal matters.
Conservation (_see Forest Reserves_);
of rivers, dates from statute of Henry VIII.
Conspiracy,
first statute against in 1305;
doctrine first applied to maintaining lawsuits;
next to combination between mechanics or guilds;
reason of common law doctrine of;
definition of;
determined by intent or ethical purpose;
early statutes probably declared merely the common law;
definition of in statute of 1304;
definition of as evolved in history;
finally includes intent to injure another person in his liberties as
well as results actually criminal;
reason of doctrine of;
doctrine under common law;
remedies for;
combinations necessarily attended with the use of unlawful means;
unlawful act is the combining, not any action done;
actual result unimportant;
intent the question;
punishment far more severe than for offences done under it;
always unlawful, may not amount to criminality;
principle of extended to trades unions and their by-laws;
of masons, etc., forbidden in 1425;
against the law or customs of the staple town made criminal in 1333;
general discussion of law of, chapter XII;
continuing conspiracies, doctrine of;
extension of, by new statutes;
early English law of, discussed with the modern law of combinations;
to maintain lawsuits;
Conspiracy and the Trade Disputes acts (_English_);
copied in Maryland;
changing of law recommended in labor matters;
English statute of, copied in Oklahoma;
doctrine of, contended for by labor unions.
Constitutional law (_see Unconstitutional_),
growth of in America;
applied by the courts in early England;
Magna Charta to be interpreted by Ordainours;
anticipates in earliest times U.S. Supreme Court.
Constitution, State,
modern form of;
adoption of by referendum.
Constructive total loss, origin of doctrine.
Contempt of court, effort to obtain jury trial, (_see Chancery,
Injunction_).
Contract (_see Freedom of_), status of, desirable for labor.
Convict-made goods, denial of to interstate commerce.
Co-operation (_see Profit Sharing_).
Corn, exportation of, forbidden in 1360.
"Corners" (_see Engrossing, Forestalling_),
unlawful to create at the common law;
corners of wheat in Athens;
by Joseph in Egypt.
Coronation oaths, history of.
Corporation,
general discussion of, Chapter X;
Federal incorporation;
first appearance of secular trading corporations uncertain;
companies corporate required to record their charters as early as
1426;
by-laws of must be reasonable;
first trading companies under Elizabeth;
early charters of difficult to find;
business, origin of;
discussion of;
peculiar powers of incorporated persons;
unknown in Rome and early England;
special municipal corporations and monasteries;
limited liability of, invented in Connecticut;
form of the modern;
Federal supervision;
powers of in other States;
prohibition of;
holding stock by;
earliest business companies;
history of;
limited liability;
monopoly given to Federal corporations;
powers of in other States;
the Massachusetts law;
two theories of legislation concerning;
clash of State and Federal law;
the "Trust problem";
discussion of subject by Massachusetts commissioners;
now created under general laws;
modern legislation concerning;
liability of stockholders;
payment in of stock;
income;
"publicity";
monopoly, consolidation, etc.;
the holding company;
public service;
duration of franchise;
powers of in other States;
have no immunity from giving testimony;
are subject to the criminal law;
primarily through individual officers.
Corrupt practices (_see Bribery_) election laws.
Corruption (_see Bribery_), modern statute against.
Council, the great, was originally executive and judicial as well as
legislative (_see Three Functions of Government_);
primarily judicial;
legislation incidental to judicial judgments;
law declared, not made, by Great Council;
development with legislative power into Parliament;
the great judicial functions of;
in Magna Charta;
so-called until 1275.
Counsel, right to, etc.
Cousins, marriage of forbidden;
County courts, early history of;
counties may loan for seed.
Courts, at first followed the king's person;
special royal courts forbidden;
our judicial system.
Covins (_see Conspiracy_).
Crime, distinction from sin;
tendency of modern legislation.
Criminating (_see Incriminating_).
Criminal law and police, chapter concerning, chapter XVIII,
modern basis of;
procedure in;
laws regulating procedure;
right of appeal;
President Taft's recommendation.
Criminal procedure, reform of, necessary.
Cromwell, legislation under;
laws all repealed, but had some effect upon laws of New England
colonies, and _vice versa_;
assumed supreme power;
he had absolute veto;
no constitutional government under;
unrestricted will of majority becomes will of one.
Cross-bows forbidden except to lords.
Crown land.
Crown property, wrecks, fish, precious metals, etc.
Crusades, expenses of, origin of taxation.
Cummins, Governor, his ideas as to trust controlled articles.
Curfew laws in early England;
in U.S.
Custom, of the trade; (_see also Law, Customary Law, etc_.),
enforcement of
Custom House, regulation of officers of;
may not make unreasonable search;
travellers to be believed upon their oath.
Customs (_see Duties_), the law of England,
recognized by early English charters, as well as laws,
Customary law, or natural, enforced
without sanction: sanction of often the best;
sanction not a penalty;
early legislation declaring.

Dairies (_see Farms_).
Danbury hatters' case, desired legislation against.
Dane Geld, London free from.
Dangerous trades, hours of labor in.
Day's work (_see Hours of Labor_).
Debtor and creditor, laws concerning.
Debts (_see Imprisonment_)
laws to enforce collection of not necessary;
suits to recover comparatively modern;
State, city, etc., for internal improvements;
State, municipal or county may be limited by statute;
Modern statutes concerning;
Imprisonment for forbidden;
Municipal limited by statute;
limit generally evaded.
Delegation of legislative power (_see Three Functions of
Government_).
Democracy, legislation of.
_De odio et atia_, writ of, explained in statute of Westminster
II.
Department stores, legislation against anticipated in early England;
forbidden (_see Trading Stamps_).
Descent of property, legislation concerning.
Desertion, a cause for divorce.
Destruction of food stuffs highly criminal by early law.
Diet and apparel (_see Sumptuary Laws_),
laws concerning soon repealed,
Direct legislation (_see Referendum_),
nominations;
primaries;
elections;
taxes (_see Taxation_).
Discharge, reason of, must be stated by employer.
Discrimination, unlawful under early common law;
modern view of;
by the "trusts";
the Elkins law against;
in ordinary trade;
against localities by trusts.
Divine right, asserted by King James.
Divorce, chapter concerning, chapter XVII;
jurisdiction over first in church;
reform movement discussed (_see Marriage and Divorce_);
equal rights of husband and wife;
causes for to both sexes alike;
statistics discussed;
in most cases given to the wife;
whether innocent or not;
in England not to the wife for adultery alone;
for desertion and failure to support;
reforms in legislation;
reforms in procedure, preferable;
causes now existing;
meaning of cruelty, cause for divorce;
uniformity of law in;
statute for reform of divorce procedure;
commissioners created by States;
effect of in other States;
law formerly appertained to the church;
history of in the past;
earliest in 1642;
first general law that of Massachusetts Bay;
corespondents may appear and made defence;
crime made cause for;
neglect cause for;
advertising;
remarriage after divorce usually permitted;
should be absolute;
unchastity the cause if before marriage;
government reports upon;
in European countries.
Doctors' commons lasted until the nineteenth century.
Dog, or cat, why usually kept on ships
Dogberry, speech to the watch, based on the statute of Winchester.
Dogger, statute of;
dogger fish, trade in regulated;
regrating of dogger fish forbidden;
storage and preservation;
must be sold before night.
Domestic labor, no regulation of.
Dorr, rebellion.
Double standard in divorce matters;
in matters of ordinary morality.
Double taxation (_see Taxes_).
Double trading, and department stores.
Dower right, recognized in Magna Charta;
in American legislation.
Drainage (_see Irrigation_), laws for usual in the South and West.
Drains and irrigation.
Drill companies (_see Military Companies_).
Droit d'aubaine.
Drugs (_see Pure Food Laws_).
Drunkenness, first punished by law in 1606;
other laws against;
in U.S.
Due process of law, under Magna Charta;
principle may include immunity from self-incrimination.
Duties (_see Imports_), first upon wool in Westminster I;
General nature of;
early revenue laws prohibitive not protective, hence tariffs for
protection, not for revenue alone, are constitutional;
"new" customs forbidden in 1309;
suspension of all duties in 1309 in order to see what the
effect is upon the people's prosperity;
"new" customs again abolished, saving only the duty on wool or
leather;
only to be paid upon goods actually sold in England, not upon goods
exported;
in the United States.

Early methods of trial.
East India Company, monopoly of, attacked.
Edgar, laws of.
Education, may be separate for different races;
tendency of to be technical;
usually includes agricultural instruction;
state functions of declared a natural right;
compulsory in all states;
compulsory age of.
Edward I, charter of, in 1297;
Restores constitutional principle of taxation;
legislation of;
grants confirmation of charters.
Edward the Confessor, codes of;
laws of (_see Wessex_);
laws of sworn to be observed by Norman kings;
laws of restored by Charter of Liberties.
Edward II, reign of.
Edward III, legislation of.
Edward VI, legislation of.
Edward VII, minimum wage legislation.
Egyptians (_see Gypsies_).
Elections (_see Voters_), freedom of, principle dates from statute
of Westminster I;
local regulation of essential;
free right to;
house the judge of;
right of voting;
control of votes of employees;
Federal and State authority;
regulation of machinery of;
of corruption in, 290, 291.
Electric power companies, eminent domain for.
Elevators, subject to rate regulation;
hours of labor on.
Elizabeth, legislation of.
"Elkins" act, 176 (_see Discrimination, Trusts_); form of, 361.
Eminent domain, a modern doctrine;
applies to personal property;
personal property seized by royal purveyors;
damages in;
does not exist in England;
growth of in United States;
public service corporations entitled to;
extended to public service corporations;
to private corporations;
to the taking of easements;
damages given for land damaged as well as taken;
only for a public use;
national uses;
State uses;
parks and playgrounds;
railways, telegraphs, etc.
what is a public use;
under State constitutions;
increased application of;
water subject to, in the arid States;
powers of Federal government;
no more land to be taken than needed.
Employers' liability.
Employment offices (_see Intelligence Offices_), regulated in
Oklahoma, etc.
England, statutes of, enforced in
United States, 55; New, forbidden to plant tobacco.
Englishry, London free from.
English language, replaces French;
to be used in law courts.
English law, restoration after the conquest.
Engrossing (_see Forestalling, Restraint of Trade_), first statute
against;
definition of;
of foreign trade;
punishment of;
forbidden to the merchants called grocers;
forms forbidden;
final definition of;
of corn permitted in certain cases;
of butter and cheese forbidden;
by trusts.
Entail created by statute of 1284.
Equality, recognized in charter of Henry II;
before the law in Magna Charta;
guaranteed by statute of Westminster I.
Equity (_see Chancery, Injunction_),
separate from law in some States.
Equity jurisdiction (_see also Chancery_),
jealousy of;
its interference with the common law forbidden by statute of, 1311;
in abductions;
separate still.
Eugenics, modern statutes recognizing.
Evidence, compulsory intrust cases;
legislation upon (_see Incriminating Evidence_).
Exclusive contracts forbidden (_see Trusts_).
Executive (_see also King_),
usurpation of, under Henry VIII.
Exemption laws for debtors.
Exile (_see Banishment_) forbidden in Magna Charta.
Experiments on.
Exportation of wool forbidden 1337;
corn, 1360;
iron.
Extortion and discrimination;
unlawful under early common laws;
rare in railway rates (_see Elkins Act_).

Factory legislation (_see Hours of Labor, Labor_),
acts exist under police power;
as to married women, etc.;
the factory system, possible abolishment of;
hours of labor limited;
the factory acts;
stores and dwellings.
Fairs (_see Markets_).
Farming on shares.
Farms, labor on, no regulation of;
State, frequently created.
Federal and State jurisdiction, effects of;
as to use of army;
question as to prohibition laws.
Federal government, powers of, in eminent domain.
Federal incorporation (_see Corporation, Trusts_) effect of.
Federal troops employed by President Cleveland.
Federation of Labor (_see Gompers, Samuel_).
Female labor, etc. (_see Women_).
Ferries, charges of, regulated.
Feudal system, imposition of, by Normans in England.
Feudal tenures, abolished under Charles I;
in United States.
Fines must be reasonable principle dates from Westminster I.
Fish and game laws, first precedent in 1285;
law protecting wild fowl under Henry VIII;
snaring of birds forbidden.
Fish, destruction of to enhance price made criminal in 1357;
universally regrated in American markets;
may not be carried out of England.
Flume companies, eminent domain for.
Food and drugs act (_see Pure Food Laws, Trusts, etc._).
Force bills (_see Elections_).
Foreclosure of mortgages regulated by statute in United States.
Forest reserves created in some States.
Forestalling (_see Trusts, Monopoly_), first statute against;
definition of;
offence gradually lost sight of;
laws against, made perpetual under Elizabeth;
only repealed under George III;
first statute merely inflicts punishment;
full statutory definition of;
in the staple;
next statute that of 1352, applying to wine, etc. or imports;
double forfeiture imposed;
imprisonment for two years;
in cloths abandoned, A.D. 1350;
of Gascony wines forbidden in 1532;
in fish, milk, etc., forbidden;
last complete act A.D. 1551;
made perpetual under Elizabeth and repealed in 1772;
final definition of;
an element of the "Trust,";
by Joseph;
in modern statutes.
Forestry laws, the first.
Form of our statutes, the.
Fornication, made a crime;
with a woman under age a crime though with her consent.
Fourteenth Amendment, securing private property.
France, English people not subject to, by statute of 1340.
Franchises (_see Corporations_), challenged by _quo
warranto_;
rates of may be regulated;
to be limited in time;
to pay taxes;
regulation of, meaning of.
Frauds, statute of;
need of legislation against.
Fraudulent conveyances, statute against 1571.
Free speech in Parliament finally established under Henry VIII,
Freedom in England, early method of attaining;
of American Indians secured, (_see Citizenship_);
before the law recognized in charter of Henry II,
Freedom of contract (_see Labor, Trade_),
principle of,
value of,
of elections,
Freedom of speech, legislation relating to,
does not extend to anarchistic statements,
Freedom of the press, limitations of,
meaning of,
Freedom of trade,
Freehold land, common in United States,
Freemen (_see Liberty_),
made up Witenagemot,
rights of under Magna Charta,
rapid increase of after the conquest,
French, language, first law in A.D. 1266,
customs and law of in force in England,
language not to be used in England,
coat of arms not to be used in England,
language declared to be unknown in England in 1360,
Fuel, Assize of,
modern statutes,
municipal distribution of,
Fur, black only to be worn by the king,
Futures (_see Forestalling_),
buying of unlawful at common law,
dealing in forbidden,
buying and selling,
Fyrd, the early Anglo-Saxon militia.