Popular Law-making Part 14

For example, let us remember the Boston Ma.s.sacre. Ten years before the Revolution, some turbulent men, mostly negroes, started a riot against British soldiers on what is now State Street (then King Street), and under the orders of the commanding officer the soldiers fired, and two or three men were killed. Yet although the colonies were already under military occupation, and their courts and legislatures more than unpopular with the home government, these British soldiers were tried for manslaughter and murder, not in England, but in the ordinary common-law courts of the Colony of Ma.s.sachusetts. James Otis defended them and they were acquitted. The fact that a monument to Crispus Attocks, the negro, now stands on Boston Common, and that ten or twelve years later the British flag was expelled from Boston to seek refuge in New York, does not modify the significance of the incident.

Some years since in a Pennsylvania strike a small company of militia, being attacked by a mob, were ordered to fire. They did so, and killed one of the striking rioters. It was found out which private had fired the fatal shot; he was indicted and tried for murder; and it was ruled that the order of the commanding officer was no defence.

These principles, we should be reminded, are fundamental; in our own country in time of peace, or even in time of war, except in hostile territory, there is no such thing as martial law; and no such thing as military law, except for the army itself, and then only by the sufferance of a biennial vote, which vote also limits the duration of existence of the regular army; besides which, all our State const.i.tutions and the Declaration of Independence have a general provision against standing armies. The proclamations of military officers, of mayors of cities, or even State governors, declaring martial law, or suspending the writ of habeas corpus, are of no legal validity; this is true of a similar proclamation by the President of the United States, though it was frequently done by Abraham Lincoln.

The act of Mayor Ruef of San Francisco, even at the time of the earthquake, declaring martial law, or giving troops or vigilance committees summary powers of punishment, was a mere "bluff." Such an order, though in practice obeyed by all good citizens, would in no way protect those acting under it from prosecution in the criminal or civil courts.

On the other hand, the right to bear arms is inherent under English ideas, and this alone, with the corresponding right of political a.s.sembly, has served largely to maintain English liberty; while the absence of these two important rights has relieved countries like Russia from all fear of revolution. One has only to read Mr. George Trevelyan's vivid account of the difficulties of the Garibaldi movement to free Italy in 1860, to realize the enormous difficulties under which the great patriot labored from the absence of these underlying principles. Indeed, but for the connivance of the Piedmontese government in allowing somebody to sell a thousand condemned rifles, it is probable that there would have been no revolution in Sicily.

Now this Anglo-Saxon right to arms goes back to times before the very dawn of the English Const.i.tution, and the fyrd or local militia was in Saxon times, as it was declared to be by our American State const.i.tutions of the eighteenth century, "the natural and only defence of a free country." This principle was very soon re-established after the Conquest. We find, as early as 1181, the a.s.size of Arms, which revives the ancient fyrd or militia. Twenty-two years before scutage had been subst.i.tuted for military service; but this was merely a matter of feudal tenure. Yet so early was a direct call for troops forbidden to the crown. The contest of English ideals against Norman ideas was one of the princ.i.p.al causes of Magna Charta itself (it is significant that the Great Charter was never published in French); the barons were required to support the king in war, but complained against being led out of the kingdom; and King John's insistence upon this led to the a.s.sembly at Runnymede. Thus the militia and the maintenance of arms other than of feudal retainers--and this exception led to the statutes against maintainors--pa.s.sed out of the executive power and became the province of the legislative branch; a principle carried out in all our const.i.tutions; they make the executive the commander-in-chief of the army, navy, or militia, but the governor may usually not command in the field, nor order troops out of a State; and the president cannot employ Federal troops _in_ a State, except when requested by its legislature; save only where necessary to maintain the functions of the Federal government itself, or when a State government ceases to be republican in form--but of that last who is to be the judge?

With the doing away of direct military service, never yet to be re-established in England, though the threat of conscription is now made, disappeared the power of the king to control his people; and this prevented the establishment of a royal autocracy and the extinction of representative government which took place in every Continental State. It is a picturesque fact that mercenary soldiers were first employed in England in small numbers to suppress Jack Cade in 1449, who was leading a labor insurrection; just as the first instance where Federal troops were employed in intra-State matters in America was when President Cleveland sent them to suppress rioters interfering with the movement of mails in the Pullman strike in Chicago.

With standing armies abolished, and the fear of invasion removed, the practice of keeping arms fell into disuse, so that curiously enough we find under the Stuarts statutes compelling citizens to keep and bear arms, just as we find statutes compelling them to take their seats in Parliament. For quite three centuries we find no legislation concerning arms, and Hallam mentions that by 1485 six liberty rights were established, among them that "officers, administrators or soldiers are liable for their acts at the common law." It is not until 1679 under Charles II, the very year of the Habeas Corpus Act, that standing armies are definitely established in England, and the Mutiny Act concerning the government of the army was first pa.s.sed. The struggle of the people with the army under Charles I may be well shown by these quotations from the Pet.i.tion of Right in 1628:

" ... of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn, against the laws and customs of this realm ..."

" ... certain persons have been appointed commissioners, with power and authority to proceed ... according to ... martial law ... and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might and by no other ought, to have been judged and executed."

And by the Bill of Rights of 1689:

"That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law."

"That the raising or keeping a standing army, within the kingdom in time of peace, unless it be with consent of Parliament, is against law."

Now it often happens that a great const.i.tutional principle established with some difficulty in England is amplified and perfected by the bolder statement in American const.i.tutions. Thus, the Virginia Bill of Rights, 1776, has the perfect definition:

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

Similar declarations are found in the Declaration of Independence the same year, and the Ma.s.sachusetts Bill of Rights four years later; but the Virginia definition, being the work of Thomas Jefferson, is both the most compendious and the most concise, and is substantially copied in the Second and Third Amendments of the Federal Const.i.tution. Modern legislation on the subject has found little to improve, although, with the ignorance of const.i.tutional history too often found in modern statutes, we do find State laws which recognize martial law as a really existent domain of English and American jurisprudence. As our greatest jurists have often enough declared: "martial law" is nothing but the will of the commanding officer, the negation of all law, which exists when the courts do not sit and the writ of habeas corpus does not run. Even in these imperial days, I detect no tendency in the legislation of the States, or even of the Federal government in North America, to infringe upon these great principles of freedom. On the contrary, many State const.i.tutions, as well as an act of Congress, declare that the writ of habeas corpus can never be suspended by the executive, but only by the people's representatives in the legislature. The prejudice against standing armies does not seem to be as strong, in that ours has recently been quadrupled in size; but this is probably no more than proportionate to our national expansion. Many of the States in this time of increasing civic disorder have had to give their attention to the suppression of mobs, and correspondingly we very generally find new complete codes governing the militia. Thus statutes are frequent exempting a private soldier from prosecution for murder when he fires under the orders of his commanding officer; and the honest judgment of the commanding officer is made a defence for all acts of his troops in attacking mobs, even to the point of fatalities resulting. Counties or cities are very generally made liable for damage to property done by mobs, and in some States for damage to life done by lynchers; the widow and children of the person lynched may recover damages. In Kansas, by a statute of 1900, it is made a misdemeanor for a bystander to refuse to a.s.sist a sheriff in quelling a riotous disorder. Most significant, perhaps, of this militia legislation is that concerning its relation to the labor unions, and more significant still, the too apparent desire of labor unions to prevent their members from serving in the militia. Thus, New York and other States have already found it necessary to enact statutes prohibiting any discrimination against persons because they serve in the militia; prohibiting their employers from discharging them by reason of their necessary absence on such service, and forbidding the labor unions from in any way preventing them, or pa.s.sing by-laws against their serving in the militia. Such by-laws are, however, unlawful under the common law.

The law-making most in the popular mind on this whole question is that concerning pensions. As is well known, the Federal pension list has swollen to a sum far in excess of the total expense of the standing army of Germany. An enormous number of Spanish War veterans who never even left the country are being added to the list, and their widows will be after them; the last survivor of such may not die before A.D.

2140, and the States themselves have not lagged far behind, all to the enormous corruption of our citizenship; indeed, one or two more wars (which the very motive of such wholesale pensioning is the more likely to bring on) would bankrupt the nation more rapidly than even our battleships. Not only that, but there is a distinct tendency to make a privileged cla.s.s of veterans, and the sons of veterans--and perhaps we shall find of the sons of sons of veterans--by giving them preference in civic employment and special education, support, or privileges at the State's expense. Sometimes they get pedlar's licenses for nothing; sometimes they are to be preferred in all civic employment; sometimes they have special schools or asylums as well as soldiers' homes; sometimes they are given free text-books in the public schools. The Confederate States have not been behindhand in enacting similar laws for their own soldiers, despite the implied prohibition of the Fourteenth Amendment; but Southern courts have held them void.

The general right to bear arms is frequently restricted by the prohibition of concealed weapons, or of the organization, drilling, and training of armed companies not under State or Federal control, both of which limitations have been held const.i.tutional; and the legislation prohibiting the employment or importation of private armed guards, such as the Pinkerton men, has been already alluded to in our chapter on labor legislation. The precedent for the latter is to be found in the early English legislation against retainers; that is to say, the armed private guard, or "livery," of the great n.o.blemen; whence is derived the custom of putting servants in livery. The legislation against private drill companies is closely allied, and had a somewhat amusing test in Chicago where, during a labor strike, a number of the strike sympathizers organized a so-called drill company and furnished themselves with guns, for the purpose really of intimidating the public and helping the law-breakers. Unfortunately it so happened, for this purpose, that the first time they sallied forth with sword and musket on warfare bent, they were stopped by one or two policemen on the nearest street corner, taken to the station-house, deprived of their arms, and locked up for the night. The next morning a fine was imposed upon their captain, who appealed to the United States Supreme Court without success.[1]

[Footnote 1: Presser _v_. Illinois, 116 U.S. 252.]

The legislation for giving damages for injuries to property done by mobs was tested after the Pittsburg riots of 1873, and that yellow metropolis was mulcted in heavy damages, which it took twenty-three years to pay off. But no damages in this country were ever given for criminal homicide directly, although there is an interesting case in the Federal Circuit Court of a gentleman in Georgia who was awaited by a party of neighboring gentlemen with the intention of shooting him up when he arrived. One of his friends secretly got to the railway station and sent a telegram to his wife, shortly to become his widow, not to come. The Western Union Telegraph Company delayed the message, its operator being in sympathy with the gentlemen of the neighboring town, and the widow failed to recover damages from the telegraph company. But these modern statutes in Ohio and the Southern States, making towns responsible in a definite sum to the kin of a murdered man, are the exact re-enactment of the early Anglo-Saxon law; except that the blood damages--the were gild--were in those days put upon the neighbors or the kin of the enemy.

"Organized labor" is hostile to the use of the militia, still more of the regular army, in any labor dispute or riot resulting therefrom. It is never justifiably hostile where actual offences are committed, but there is something to be said, at least there is some precedent for their hostility, in cases where by the accident of Federal jurisdiction the whole power of the United States army is called in to back up the injunction of a judge, perhaps improperly issued. That is to say, if the parties to the dispute are citizens of the same State the National government may not interfere except, of course, where the mails or inter-State commerce are obstructed; but, by the mere accident that plaintiff and defendant come from different States--and this may nearly always be made the case by the plaintiff corporation, if it be a citizen of another State than where it owns its mine or operates its mill--it may always pick out strike leaders, walking delegates, who are citizens of another State, so that the litigation may be brought in a United States court. If, then, the orders or processes of that Federal court be interfered with, under the law of our Const.i.tution the entire Federal government, first the Federal marshals and then the Federal army, may be called into the fight.

CHAPTER XIV

OF POLITICAL RIGHTS

Most important of these are the right to a.s.semble, and the right of free election. The right of political a.s.sembly and pet.i.tion is another principle which has been much broadened by American const.i.tutions. In England the right of public meeting undoubtedly existed from early times, but it was tied to the right of pet.i.tioning Parliament, which obviously limited its scope; and always strongly contested by the kings. Many riot acts were pa.s.sed, both by the Tudors and by the Stuarts, which sought to limit and restrict it, and even to make any meeting of more than twelve men a riotous and criminal a.s.sembly.

Indeed, the history of the attempt of the authorities to prevent riotous a.s.semblies quasi-political runs all the way from Jack Cade's Rebellion in 1452 to the Philadelphia street railway strike in 1910.

By an Act of 1549 unlawful a.s.semblies of twelve "to alter laws or abate prices" were made unlawful--one of the reasons that gave rise to the English notion that a simple strike was criminal. This, however, has nothing to do with the political right of a.s.sembly which, fully recognized by the Ma.s.sachusetts Body of Liberties in 1641, was not definitely established in England until the Bill of Rights of 1689.

Now this principle is cardinal, and so far as I know none of the States have legislated upon the subject, unless the limitation of the injunction writ be such legislation. A statute of Henry VII gave special authority to the Court of Star Chamber over riots; which is precisely the power now objected to by labor leaders when exercised by courts of chancery. But it must be noted that this right of a.s.sembly only extends to matters political, and does not cover a meeting held for an end ordinarily unlawful, such as to bring about a riot or to work oppression to others or an injury to the public.

The right of election, however, is much older in England. We find statutes concerning the right of free election, that is, of allowing electors to vote without interference or control, as early as 1275. It is for this reason that almost from the origin of the House of Commons it has been unlawful, or at least uncustomary, for peers of the realm to even speak pending elections to the House of Commons. That House also vindicated its right to judge of elections against Elizabeth, and the principle that it alone shall be the judge remains in full force in the United States, though in modern times in England given to the courts. There is no const.i.tutional principle in England as to the right of suffrage, which in early times was shared in by all free men, or at least landholders. It was in 1429 limited to the forty shillings freeholders, which law has been relaxed by degrees ever since.

Our early const.i.tutions recognized both property and educational limitations; these were all done away with at one time, except in Ma.s.sachusetts and Rhode Island, the former retaining an educational, the latter a property, qualification. They have now been abolished in those States, but taken up in the South, for the purpose, of course, of disfranchising the negro vote.

The serious modern instance of interference with free election is that of the Federal government with State elections in the South during the thirty years following the war. While such interference was never quite held unconst.i.tutional, it was strongly felt to be so; and has therefore disappeared from practical politics. The principle of free election, therefore, remains again unquestioned, and is, indeed, strengthened by considerable legislation aimed at the influencing of votes by employers, etc. Many States, for instance, require that Election Day shall be a holiday, or, at least, that all employers of labor shall give part of the day, one or two hours at least, for the employees to vote; and a number of States have statutes aimed at the coercion of their vote by any promise of giving or withholding employment, or otherwise, and the giving their pay to them in envelopes upon which any political matter is printed. Bribery is nearly always made criminal and cause of permanent disfranchis.e.m.e.nt and disability to hold office, both to the person giving or receiving the bribe, but there is more interesting legislation still aimed at any form of political corruption. Ma.s.sachusetts led the way with a statute which endeavors to make criminal any promise of employment or advantage, or even for a corporation, at least, to employ any person at the recommendation of any member of the legislature. It is very difficult to draw such laws to make them apply fairly, but they have been copied with even greater elaboration in many Southern States. The statute of Alabama, for instance, covers nearly a page in describing the various acts or promises which are thus forbidden to officers or candidates for office.

Then there is the long range of lobby acts aimed at the very serious abuse of lobbying. Ma.s.sachusetts divides the offence, or rather the business, into two general cla.s.ses: First, the legislative counsel who appears before legislative committees in support or in opposition of measures. This practice, of course, is perfectly legitimate in many cases, but the law provides that his advocacy must be open, he must disclose the client for whom he appears, if there be one, and at the end of his services file a statement of the counsel fees actually received. Such legislation, however, is easily evaded by the payment of an annual salary. Then there is the legislative agent or lobbyist, properly so called, who does not openly appear before legislative committees, but waylays members of the legislature at their dwelling or meeting places, or elsewhere. He must also register as legislative agent by the Ma.s.sachusetts law, and file an actual account of his receipts and expenses. Such legislation properly observed would, of course, have made impossible the celebrated "House of Mirth"

at Albany. Then there are many statutes against intimidation in elections, particularly in the South; and there were many acts of Congress pa.s.sed under the Fourteenth Amendment, but these have practically all been held unconst.i.tutional.

The form of the ballot is another matter that has been the subject of much legislation. Our States vary, as does still public opinion in England, between the extreme of providing by the Const.i.tution itself for the secrecy of the ballot, and the other extreme of requiring that all voting should be _viva voce_, as was formerly the case at least in Kentucky. Public opinion has universally settled in favor of the former; and to protect the voter's freedom, the so-called Australian ballot has very generally been adopted, the principle, of course, being a ballot on which all candidates' names are printed, with or without party designations, and against which the voter makes his mark. In their practical working, however, these laws depend on the simplicity of the form; thus, it works very well in Ma.s.sachusetts, where the form is simple and the ballot short, and very badly in New York, where the contrary is the case. Opinion is pretty well united on the advisability of the Australian ballot, the only remaining difference being as to whether any party designations should be printed. Most practical politicians desire that the name "Republican"

or "Democrat," or even that some party symbol like a star or flag, should be affixed, which can be understood by the most illiterate voter; also, that the voter should be allowed to make one cross opposite the word "Republican" or "Democrat" when he means to vote the whole of the ticket, "in order to give each candidate the benefit of the full party strength." On the other side it is argued that all voting should be intelligent and never blind, and that if the voter does not take the trouble to mark all the names on the ballot it sufficiently indicates that he is indifferent as to some of the candidates even of his own party, and that his votes for them should, therefore, not be counted.

The most significant of modern developments in legislation concerning voting is the new practice of recognizing by law political parties, and of regulating by law the mode of their nominations. The old idea was that the law took no notice of anything that happened until election day, when it did regulate the mode of voting and counting the votes; the law was supposed to be blind to political parties; the persons elected were merely the successful candidates. But first began the tendency to recognize parties in "bi-partisan" boards and commissions; it became very usual to provide that State officials should, when the office was held, or the function performed, by more than one person, be elected or appointed from different parties. This, of course, works very well when there are but two parties, as indeed is usually the case. And now of late years the practice has grown up of regulating political matters _before_ the election day. Direct primaries, caucuses regulated by law, the mode of nomination, nomination papers to be filed in a certain manner, the compulsory service of men as candidates unless they comply with precise formalities of resignation, the joint caucus and the separate caucus, the public nomination paper, the one-per-cent., three-per-cent. or five-per-cent. rule whereby a party gains such official recognition only by throwing such a percentage of votes at some previous election--in short, all the ma.s.s of legislation of this kind is the matter of the last few years. In the writer's opinion, with the possible exception of the public nomination paper, it is all mistaken.

Aimed at destroying the machine, it really intrenches the machine--the professional politician--in power. The general public will not, and should not be compelled to do more work than is necessary. If they actually vote at election it is all that can fairly be asked of them and more than one-third of them do. They will not, and cannot, devote their time to politics all through the year. The result is that all such elaborate schemes simply throw the game into the hands of the "town committee" or other permanent professional body. If you have to hold a meeting in June, and give notice of a caucus in July, with as much formality as used to be required in publishing the bans of marriage, and then on a certain day in August do something else, and in September something still more, and file with the Secretary of State nomination papers in October, and have everything complete ten days before election day,--the ordinary citizens who usually awake to the fact that there is an election about that time find it too late to have any voice in the nomination. They go to the election itself to find an official ballot with two machine candidates for each office, and no hope of electing, even were it possible to nominate, a third.

In the old days, when they discovered that an improper candidate had been nominated, on the very eve of election they could arouse themselves and defeat him; under all these complicated systems it is too late. One necessity for such legislation, however, arises from the Australian ballot itself; when that ballot carries party designations, who is to determine who is the official party candidate? This problem is not, however, insoluble. Indeed, it might be argued that it would be an excellent test to require the various so-called party nominees to run together, leaving to the voter to determine who was the regular one. Certainly the legalizing of conventions, caucuses, and other nominating machinery, has led to great scandals. Under such laws, whoever first gets possession of the hall at the time named would seem to be the regular candidate. We have, therefore, in Ma.s.sachusetts, seen the scandal of two groups of men making different nominations in a loud voice at the same time, one at the front of the hall, and the other at the back, and the courts had to decide who was the regular nominee. In the opinion of most lawyers, they decided in favor of those who ought to have been the nominees rather than of those who in fact were.

In the opinion of many "practical politicians," as well as others, the whole ma.s.s of legislation that recognizes political parties and applies to anything happening up to the date of election, should be expunged from the statutes. I would hardly make an exception even of the "bi-partisan" board. A board should be composed of the best persons, not necessarily party-colored; if there be any force in the argument for bi-partisan commissions, it should apply ten times as much to the judges, but there is no provision in any State of the Union or in the National government for bi-partisan courts of law.

Ma.s.sachusetts, alone, so far as the writer is informed, of all the States, by a certain tradition respects this principle. Very few Ma.s.sachusetts governors replace a Democratic judge by a Republican, or _vice versa_.

But most significant of all political matters is the growing distrust of legislatures. Curiously enough, although there was a great distrust of the executive of the nation until within a very few years, that seems to have entirely pa.s.sed away. Governors of States have too little power to inspire distrust in anybody. But that legislatures or representatives of the people should fail to inspire their confidence is one of the most curious developments of modern politics. The matter has been fully discussed elsewhere in this book. It is greatly to be lamented, for it tends to lower the character of the legislatures themselves. The days are indeed far off when a man would prefer being governor of a State to president, amba.s.sador, or judge of the Supreme Court; or the State Senate to the national Congress. Part of this indifference is, of course, explicable; for with the perfection of our civilization and the growing intelligence that most statutes have been enacted that are really needful, there is really less for the legislatures to do. Then, also, the growing practice of giving a large share of governmental, or even legislative, powers to boards and commissions has narrowed the scope of legislation. Whatever be the reason the fact is certain. Very few States now allow their legislatures to sit _ad libitum_, and only six or seven States permit annual sessions. In nearly all States sessions are biennial, if not, as in some Southern States, quadrennial. That is to say, the legislature is only allowed to meet once in four years; and in more than half the States the time of the session is limited to ninety, sixty, or even thirty days, or the pay of the legislators cut off at the end of such period.

A few States have laws aimed at corrupt elections, that is to say, limiting the expenditure of candidates and requiring publicity. Most States now forbid contributions by corporations, as does the Federal government.[1] Thus, by the California law of 1893, expenditures are limited to one hundred dollars for each candidate, or one thousand dollars by a committee, and in no case exceeding five per cent. of the salary of the office for which the person is a candidate for one year, and the legitimate expenses are specified; that is to say, public meetings, printing, postage, and head-quarters expenses. Probably no one regrets the prevalence of extravagant expenditures more than persons who are themselves in public life. If the bosses of many State machines were consulted in private, they would agree that the only really legitimate expenditures are the hiring of halls, and the mailing of at most one printed circular to every voter in the district. The Missouri law of the same year fixes a limit of expenditure of one dollar per hundred of votes thrown at the last election for the office for which the person is a candidate, which, in an ordinary congressional district of say fifteen thousand voters, would be one hundred and fifty dollars--certainly little enough.

Voters very generally have to be registered.

[Footnote 1: Bill signed by President Taft, June, 1910.]

As is familiar to the reader, there has been a decided movement for the direct election by the people of United States senators, a large majority of the States, and the Democratic party in all States, having in the last few years expressed themselves in favor of a change in that particular. Until within a few years it was thought only possible by Const.i.tutional amendment, but the example of Oregon and other States has shown that it may be done by means of a law providing for the expression of the preference of the voters, and this may even be made a party ballot. That is to say, voters at party caucuses, or even at elections where the ballots are so marked, may express their preference for this or that candidate for the United States Senate, and the moral obligation will then be on the State legislature, or at least on its members of the corresponding party, to vote for the candidate so nominated. This has been universally done in the case of election of the United States President by the force of public opinion; no instance is on record of an elector having voted differently, or of a bribe or even of an attempt to bribe. But with legislation--statute law not being so strong as the unwritten law, contrary to the popular opinion--it is by no means certain that this result will happen. The law has worked in Oregon, where first adopted, with the striking result that a Republican legislature elected a Democratic United States senator; but if the writer is correctly informed, the contrary has been the case in Illinois. The movement for the direct nomination of members of the lower house of Congress also exists in many States. "Direct nomination" of course means a nomination by the ma.s.s of voters, either in a.s.sembly or by a written list. The value of this reform is probably exaggerated. Direct nominations in the city of Boston recently had the somewhat amusing result that there were two or three times as many names on the nominating pet.i.tions as voted in the election, and that one gentleman, indeed, fell short of his nominating pet.i.tion by nearly ninety per cent.

The mode of legislation is not much changed from the early days.

Usually bills have in theory to be read three times and must be voted for by a majority of a quorum. Many States forbid new legislation to be attempted after the first few days of the session. There has in the last few years been an effort at the proper drafting of bills, but it has hardly made much progress as yet, and will be discussed in our final chapter.

The two most radical changes of all are, of course, the initiative and referendum, and women's suffrage. The latter has, on the whole, made no progress since it was adopted in Colorado and three other States, about the year 1890. The people of the States where it exists appear satisfied and it is probable that they will never make the change back; on the other hand, the better opinion seems to be that the existence of women's suffrage has not materially altered conditions or results in any particular, except, possibly, that there is a little less disorder around the polling booths on election day. The largest city in the world where women vote is Denver; and in hardly any American town has the "social evil" been more openly prevalent or politics more corrupt; while it has just voted _against_ prohibition.

As in the case of school suffrage, it is probable that a smaller proportion of women are now exercising the right of suffrage than when the thing was a novelty. In all the neighboring States to the four women's suffrage States (Colorado, Wyoming, Idaho, and Utah) a women's suffrage amendment has been proposed to the Const.i.tution, all the male voters have been given a chance to vote on the question, and in every instance it has been defeated by very large majorities. As has been intimated, the movement to extend the right of suffrage to women for all matters connected with schools and education has also been arrested. Many States had adopted this principle before the year 1895, but few, if any, during the past fifteen years. The experience of Ma.s.sachusetts, where sentiment was strongly for it, shows that the women take very little interest in the matter; an infinitesimal percentage of the total female population voting upon election day, even when a prominent woman was the leading candidate for the school committee.

Women's suffrage was adopted in Colorado in 1805, and rejected in Kansas the same year; adopted in Idaho in 1890, and rejected in California; rejected in Washington and South Dakota in 1898; rejected in Oregon in 1900, in both Washington and Oregon, once at least since, and has been rejected by popular referendum in several other States.

There is, however, an intelligent tendency, notably in the South, to recognize the right of women to vote as property owners upon matters involving the levying of taxes, or the "bonding" of cities, towns, or counties, for public improvements or other purposes. Such laws exist in Texas, Louisiana, Michigan, and possibly other States, and in Louisiana the statute provides machinery by which women may on such matters vote by mail. It is much to be wished that munic.i.p.al affairs and munic.i.p.al elections could be separated entirely from political ones. That is to say, that a city or town might be run as a business corporation on its business side, and in such elections have the property owners, both men and women, only vote. The trouble, of course, is that there are certain matters, notably the expenditure for schools, which is the largest, at least in Ma.s.sachusetts cities and towns, which are in a sense both munic.i.p.al and political, both economic and affecting individual rights of persons not property owners. In any case, the matter must be considered outside of the sphere of "practical politics." It is hardly likely that, except for some special matter like the race question in the South, a State const.i.tution will ever be amended in a conservative direction. Allied with this would be a proposition to deprive persons in receipt of wages or salary from a city of the vote at munic.i.p.al elections.

Laborers and employees in the employ of a large city like Boston already form a very considerable percentage of the voters, and if you add to them the employees on the public-service corporations, partly under munic.i.p.al control, you have probably got nearly one-third of the total vote. Yet the vote could not be taken from them without an amendment to the State const.i.tution.

Of the initiative and referendum much has been written. It exists in full force, that is to say, as applying both to State elections and to county, city, or town elections, in several States, mostly in the far West; and for partial purposes it exists in several more. "Direct legislation" has been very popular as a political slogan during the past few years, but it has not been adopted as yet in any of the thirteen original States. The objections to it are fundamentally that it destroys the principle of representative government; that it takes responsibility from the legislature with the result, probably, of getting a more and more inferior type of man as State representative; that it is unnecessary, inasmuch as any one may have any bill introduced in the legislature to-day, and public sentiment be effectual to prevent the bill from being defeated; and finally, the objection of inconvenience, that it is c.u.mbrous and unmanageable to work. Already the Secretary of State of Oregon complains that the laws pa.s.sed by initiative are so badly written as to be unintelligible and conflicting, to say nothing of bad spelling and grammar. In one instance, at least, an important statute, that for the initiative and referendum itself, adopted by initiative, failed of effect because it contained no clause beginning "Be it enacted," etc. Possibly with practice these objections might disappear. The more valuable part of the reform is undoubtedly the referendum. The initiative is hardly necessary, except by way of giving a referendum on measures which otherwise would not emerge from the legislature; and there is a growing inclination to give a referendum on all laws or measures involving a grant of a franchise or of a right or privilege at the expense of the general public, or the town or city concerned. This is a very distinct tendency, and throughout the Union the States are rapidly pa.s.sing laws that where a State-wide franchise is given, an exemption from taxes, a rate-making power, or other privilege, it shall be submitted to all the voters, and corresponding measures, street-railway franchises, gas, light, water, or other public-service corporations, acting only in definite localities, cities or towns, shall be referred in the appropriate locality.

The method of the State-wide initiative or referendum varies little in the different States; usually, upon pet.i.tion of from five to eight per cent. of the voters, or in cities and towns usually fifteen per cent., legislation may be initiated. It may then be either pa.s.sed by the State legislature like an ordinary law, or be given to the referendum of the people, or both, and takes effect when adopted by a majority of the voters at a general or special election. Const.i.tutional amendments may in some States be originated and adopted in the same manner. So far as one can judge, the referendum in this country shows the same tendency that it has shown in Switzerland. Although a larger number of measures are doubtless submitted to the people, and especially measures of a cla.s.s not to go through the ordinary legislature, when controlled by important interests, yet the vote itself at the final election is apt to be somewhat conservative. The referendums upon women's suffrage, for instance, while the initiative was adopted by a large majority, were very decisively defeated at the polls, and it is said that last year's election in Oregon and Washington, with very numerous and complex referendum measures, showed a surprising degree of intelligence on the part of the ordinary voter. Nevertheless, while it may be possible to submit to him one or two measures a year, if it were to come to the submission of all legislation (and the States will average from five hundred to one thousand statutes per year, at their present output) it seems incredible that the voter should have time and intelligence, or even take the trouble, to mark his ballot accordingly; while it is obvious that the ballot itself, setting forth the full law, would be considerably larger than the annual volumes of statutes now are. This matter of practical convenience, however, may perhaps be expected to cure itself. I should conclude, therefore, that while the whole matter is an interesting experiment, the initiative is hardly necessary, and the referendum should be limited to const.i.tutional amendments (where it was always allowed) and to matters of definite local or public interest, like the granting of a franchise or an irrepealable contract of privilege.

The modern practice of putting everything into the State const.i.tution which we have called attention to in other places, has led, of course, to a practical referendum on all most important matters, for no const.i.tution, with the exception of that of Virginia, has ever been adopted in any of our States except by the people at an election; and with the tendency to require the submission of a new const.i.tution every twenty years, and to make the const.i.tution itself so compendious as to cover a vast amount of matter, usually subjects of legislation, with the consequent necessity of frequent amendment, we have now in our Southern States and some of the Western States a practical referendum to the people of most important legislative matters every few years.

The initiative and referendum was adopted in Iowa in 1891. As to bonds and debts of cities, etc., in Ohio in 1902. In Oregon, the general initiative and referendum by const.i.tutional amendment in 1903. As to franchises for public utilities only, in Wisconsin, Montana, and Arizona the same year. As to Chicago, Illinois, in 1904, and in several States, what we will term the local or limited referendum, in the last four or five years. It was, however, defeated in Ma.s.sachusetts, although adopted in Maine; and in Delaware the whole question was submitted to a commission to investigate.