Full text of "Annals"
HANDBOLND
AT THE
I MVf RSITY OF
TORONTO PRESS
THE ANNALS
AMERICAN ACADEMY
POLITICAL AND SOCIAL SCIENCE
ISSUED BI-MONTHLY
VOL. XXXVI
JULY-DECEMBER, 1910
EDITOR: EMORY R. JO!
ASSISTANT EDITOR: FLLERY r. STOWELL
EDITOR BOOK DEPARTMENT: PRANK D WATSON
AMOCIATR EDITOR*: THOMAS CONWAY JK G. G. HUEBNER S. 8. HUEBNER.
CARL KBLSEY. J ! \-BEKOER L S. ROWE. WALTER 8 TOWER
PHILADELPHIA
AMERICAS ACADEMY OP POLITICAL AND SOCIAL ScnwcB
A so WOODLAND AVKNUK
Copyright. 1910, by the American Academy of Political
All rights
. w
H
A4-
PR1 I'APCtt
J -
N*D, F. A. The Canadian Industrial Diipotd Investiga-
41'.
AII.KS, MILTON E. National Bankn icral
Bond Issues . 592
ANDREW, A. PIATT. The Problem I'.eiorc the National Mone-
tary Commission . . . 479
BAKEK, HAKVI-.V II. Private Hearings Their Advantages and
Disadvantages . 80
i R, WILLIAM F. The Sweating or Third Degree System. . 9
KTT, GEORGE E. The Growth of State Banks an
Companies 6*3
ORE A. Administration of Criminal Law
Third Degree System. . . 1 1
BRIESEN, ARTHUR, Respect for Law in the I'nited States. 207
I. WALLACE, Proper Bounds of the Use of the In-
junction in Labor I>
l>\vi \i:is'E BEMENT. Reformation of Women Mod-
ern Methods of Dealing With Offench 37
DE LACY, WILLIAM H. Functions of the Juvenile r.mrt 61
Compulsory Arbitration in the United
109
.KIT. H. M. P. Branch Bank: ng the State Banks. . 606
P. General Problems Connected with the Ad-
mii: of Justice. '
EMERY, JAMES A. Use and Abuse of Injur i Trade Dis-
putes . 1*7
R, MARTHA P. Causes of Delinquency Among Girls. . 77
KD. The Juvenile Court Its Legal Aspect.. 49
FOLKS, HOMER. The Treatment of the Offender. . JO
FOR* L. The Wage Scale Agreements of
titime Union .VIO
ME, ANDREW J. State and Federal Control of Banks
m
iv Contents
PAGE
Fi KCSETH, ANDREW. Use and Abuse of Inju; n Trade
Dispute 137
GOUFERS, SAMUEU Free Speech and the Injunction Order. . . 255
HART, HASTINGS H. Distinctive Features of the Juvenile
Court . 57
HUSTON, J. P. The Use of Credit Currency by Country Banks. 654
JACOBS, I N. English Methods of Lending as
Contrasted with American.. 511
JOHNSON, Josi.ru FHKNCII. The Canadian Banking System
and Its Operation under Sir 538
KENNADY, PAUL. Settlement and Prevention of Industrial Dis-
putes in New Zealand . . 438
r, FREDEKH K I. Financing Our Trade 492
KIKI HWI i. \Y. Re>pcct for Law in the I'nited States. 212
KRAUSKOFF, JOSEPH. Necessity of Industrial Arbitration 311
LEAVITT, JOHN BROOKS. To What Extent Should Insane Per-
sons be Amenable to Criminal Law ? 161
:s, T. L. The Settlement of Disputes Among the Mine
Workers 333
LITTLEFIELD, CHARLES E. Use and Abuse of Injunctions in
Trade Disputes 104
. ROBERT. The Next Legislation on Industrial Disputes
in Massachn 407
LUNDRIGAN. JOHN. State Agencies for Dealing with Labor
Disputes The Experience of New York 397
MAYER, Jrurs M. Administration of the Criminal Law in
the Inferior Courts if*)
McRouERTS, SAMUEL. The Extension of American Banking in
Foreign Countries
MERRITT, WALTER GORDON. The Law of the Danbury Hat-
' Case
MINER. MAIDE E. Probation Work for Women 27
\EILL, CHARLES P. The Scope and Limits of the Injunction. . 87
CKER, F. H. Fallacies in the Treatment of Offenders 43
XICHOLLS. T. D. The Anthracite Board of Conciliation tfS>
IOLS, FREDERIC C. The Operation of the Mutual Savings
Bank System in the United States, and the Treatment of
Savings Deposits . 640
Conttntt v
f r. l
PRATT, C. O. The Sympathetic Strike.
RALSTON, JACKSON H. Use and Abuse of Injunctions in Trade
Disputes . 89
ROBERTS, GEORGE E. I n of Bank Reserves in the
United States and Foreign Countries. . . 523
SCHAFPNER, MARGARET A. Effect of the Recent Boycott De-
. 277
SHEK Respect for Law in the United States.
STAA UAM H. Juvenile Courts and Probation in I'hil-
adelphia 71
STEVENS, FREDERICK C. Respect for Law in the United States. 199
STEWART, ETHELBERT. Trade Agreements 521
STOCKWELL, HERBERT G. State and National Examinations of
Bank . 669
ISTER, RICHARD. The Treatment \ccu*ed. 16
M-R C. The Jury System Defects and Proposed
Rcinc<! . 175
and Remedies in the Adminis-
tration of the Criminal Lav. . 145
TRUMAN S. Welfare \\Ork as a Way to Prevent
Labor Disputes .381
I \MI-S W. Tlu- \\.-rk of Employers' Associa-
tions in the Settlement of Labor Dispute
WARNE, FRANK JULIAN. The Trade Agreement in the Coml
Indust: . . 340
WEINSTOCK, HARRIS. The German Courts for the Arbitration
of Industrial Dispute- . 445
WHF.ELER, EVERETT P. Reform in Criminal Procedure 185
WIIIIK, HMRM K. The Stock Exchange and the Money Market 563
WILDMAN, MURRAY Smnr^. The Independent Treasury and
the Banks
WII.KIN, ROBERT J. The Responsibility of Parenthood..
YOUNG, STANLEY. Enlargement of Gearing House Functions. 607
Contents
BOOK DEPARTMENT
CONDUCTED BY FRANK D. WATSON
REVIEWS
PAGE
's N/w Practical Cyclopedia. 6 Vols. . R. Johnson 463
BOYCX, R. Mosquito or Man. W. S. Tower . . 244
CHADVSUK. F. E. The Relations of the United States with Spain. C.
L. Jones
1 Administrative Problems of British India. C. L. Jones.. 708
CtAKK. J M. Standards of Reasonableness in Local Freight Discrimina-
tions. . R. Johnson 709
COLE, W. M. The American Hope./. /'. Lichtcnberger .. 709
CORY, G. E. The Rise of South Africa. Vol. l.C. L. Jones ....
Ci'RTix. J. A Journey to Southern Siberia. IV. S. Tower .
DAWBARN. C. Y. C Liberty and Progress.//. R. Mussey . .710
Documentary History of American Industrial Society. 10 Vols./:. A 1 .
Johnson ... 465
DOWNEY. E. H. History of Labor Legislation in Iowa./. L. Barnard. .711
DYER, H. Japan in World Politics. C. L. Jones 4/o
ELLIOTT, E. G. The Biographical Story of the Constitution./. A.
Fairlie 246
s. H. Sir Randal Cremcr, His Life and Works. E. C. Stou'cll ..711
FITE, E. D. Social and Industrial Conditions in the North During the
Civil War. D. Y. Thomas 247
FOSTER. G. B. The Function of Religion in Man's Struggle for Exist-
ence. C". Kelsey 250
H, J. \\ Intp.d -irtinn to Political Science. C. L. Jones 712
GODOY, J. F. Porfirio Diaz, President of Mexico. L. 5. Ron-e 248
. J. C. The Nature and Sources of the Law. T. R. Powell
HALL, T. C. Social Solutions in the Light of Christian Ethics./. /'.
Lichtenberger 248
HES, C E. Conditions of Progress in Democratic Government. C.
L. Jones 472
r ~ H. The Teaching of Citizenship. Jannctte Stem 47,'
I. The Development of Religion. C. Kelsey 4/3
LAPRADE, W. T. England and the French Revolution, 1789-1797. W. E.
Lingelbach 474
VNELL, R. M. The Duty of Altruism. . I ./" 475
MrLAfCHLis. J My Friend the Indian./. P. Lichtenberf>er 476
O'DONNELL, F. H. A History of the Irish Parliamentary Party. E. D.
Adams 712
Om*M. H. W Social and Mental Traits of the Negro. C. Kelsey 476
SCLJCMAN. E. R. A The Shifting and Incidence of Taxation, yd Ed
-/-' *49
: the Ant VoU. H'. 3'. ToWfr 149
SMIIU Making. t'. AV^y . . 150
VAU DY*. . R. B. Cktddofk . a$j
WlUKWD, } V Mrength f England E. /' C*O"'9 477
Witcox, 1> a! Franchise*. C. L. Jo*<* . 71 J
, I 1 ! Punishment and Reformation./. /'. Lifktfnbtfgfr
NOT1S
ADAMS, E. D. in Tcxaj. i8jB-f&|6 ---- 4$J
BAILCV. L 11 Manual of Gardening . 09
BAN FIELD. M J. Confessions of a Beachcomber
BATZSON, W. The Methods and Scope of Genetics 219
BATH The Oiri>tian Sta- . 453
BE.\RO, C A. Government and Politics.. . 453
KSLU. G. H. (Ed.). China and the Far East . . ago
. H. A. Daniel Boone and the Wilderness Road . .454
CAMI Vol. VIII
CA*S< Mexico .. 230
CASS- rmick. His Life and Work . . 2y>
Poor Law Reform
COLBV .il Yearb<x>k .
COLCMAN, * The C- . and its Kramers .
CBOMEB, EARL op. :ul Modern Imperialism ...
CROSBY, O . . 699
N. A. Atltt-ntures in Soci.>
DAVENPORT, E. Principles of Breeding . . . ajj
DAVI Fhe Philosophy of .699
DEWE, J. A. Psychology of Polit listory .. . 699
DOCK, LAVINIA L. Hygiene and . . TOO
DOLE, C F. The Ethics of Progress . *JJ
DRAPER, A
DRAPER, A. S. The Rescue of C
FARRiscT' :ich Secondary Schools
I. R. H: Keconstrtjction in Louisiana . 700
honorable Cecil John Rhodes
GODPREY, H. The Health of the City
GREENE. M. Lorist Among School Garde r
CRENPELL, W T. AND OTHERS. Labrador, the Country and the People
S. Youth. Its Education. Regimen and Hygiene
A Treatise on International Lau . *JS
J. The Dethronement of the City TV- . 701
<o the Germanic InvMiom .. . 5
p k and Fj- .701
vni Contents
PACK
HILGAXD, E. W. Agriculture for Schools of the Pacific Slope 235
HOLT. H- Commercialism and Journalism 236
How i, F. C Privilege and Democracy in America 236
HOYT, C O. Studies in the History of Modern Education 236
IRYINI. A. From the Bottom Up 701
JAMESON, J. F. (Ed.). Johnson's Wonder-Working Providence, 1628-
1651 45"
JOHNSON, R. The Story of the Constitution of the United States 702
JOHNSTON, A. History of American Politics . . 702
.FMAN, R. W. What is Socialism? . 237
KAUTSKY, K. The Class Struggle 457
KEELING, F. The Labour Exchange in Relation to Boy and Girl Labour.. 237
LAFARGUE, P. Evolution of Property 70;
LA MONTE, R. R. Men vs. the Man 238
LANE, C B. Business of Dairying 238
LINDSEY, B. B. The Beast . 238
LLOYD, H. D. Men, the Workers 703
LOCK, R. H. Recent Progress in the Study of Variation, Heredity and
Evolution 457
MAcCuNTOCK. S. Aliens under the Federal Laws of the United States.. 703
M At LEAN, ANNIE M. Wage- Earning Women 703
HAIL, A. Essays in Fallacy .703
MARRIOTT, C How Americans are Governed in Nation, State and City. 239
MARRIOTT, J. A. R. Second Chambers; An Inductive Study in Political
Science 704
MATHEWS, S. The Social Gospel 457
MENCKEN, H. L. Men rs. the Man 238
MILL, J. S. Principles of Political Economy 239
MOORE, J. H. The New Ethics 239
MfNDY. F. W. The Earning Power of Railroads, 1910 704
M0NSTEXBERG, H. American Problems 704
MYERS, G. History of Great American Fortunes (Vol. II) 458
MYERS, G. History of Great American Fortunes (Vol. Ill) . .705
O'HiGGnfS, H. J The Beast 238
FA, M. V. Social Development and Education -45^
OsTERHofT. W. J. V. Agriculture for Schools of the Pacific Slope ...
OERLOCK, M. G. The Working People .458
PALMER, F. Central America and Its Problems 459
PHIUPP. E. U Political Reform in Wisconsin 459
POST, L. F. Social Service 240
RETD, D. C Effective Industrial Reform
RICHARDSON, BERTHA J. The Woman Who Spends 459
RITCHIE, J. W. Primer of Sanitation 240
Rot, A. S. China As I Saw It 460
SCHOLEFTELD, G. H. New Zealand in Evolution 460
SILBURN, P. A The Colonies and Imperial Defence 241
Content t
SPEARS. J. R. The Story of the American Merchant Marine .141
Thf Staff imam's }' tar-Book . 705
SmjLE, C The Church and Labor . 461
American Business Law . . .241
TALaERT. E L. The Dualism of Fact and Idea in lu Social Implica-
tion* 24J
nfitl Hi'ttst .-ft/Mi.- . 705
Tftrx HOLME, N. M. An Out! *lish H>l..ry 461
at. L. Housing Reform . .242
\\ \KXIN, ' menu of Agricult-r
Shippers and Carrie M .. Interstate Freight . .706
WEEINEM. W. B. Early Rbmle Uland . 706
K. B. The Book of Daniel Drew . 461
WHITE. \V. A. The Old Order Changeth .461
II' ho In America (Vol. VI 462
\\ n KIXSON, M. The Latest Phase of the League in Provence. 155^1598 462
IAMB, N. B. The American Post Oflfice . .706
!AMS, S. C The Fxonomics of Railway Transport . 707
WILLIS, J. C Agriculture in the Tropics . 243
Report of Fourteenth Annual Meeting of the American Academy of
Political and Social Science, April 8 and o, 1910 . .
SUPPLF
COMMERCIAL RELATIONS BETWHN THE UNITED STATES AXD JAPAW. Proceed-
ings of the Session of the American Academy of Political and Social
Science, held October 28, 1909. THE 5 ^ or THE AWAKEN
p <>f tlu- f the American Academy of Politi-
cal and Social Science, held December 14. 1000, July, iota Pp. jflL
THE WORK OP THE N CONSVMEKS* LEAGUE. September, igia Pp 75.
I. The Treatment of the Accused and the
Offender
GENERAL PROBLEMS CONNECTED \\ M 11 111! ADMIN-
RAT*
Justice of the Supreme Court of Pennsylvania.
The administration of justice m the t 'mted States, the general
topic -ussion at this n ii one that may be considered
from so many points of view as to preclude the |**Nsibiliiy of c
.it a single meeting of your society. It is a
e fruitful in suggestion and serious in iinjM.rt to those who
look beneath the ebb and flow of surfac over the
currents and causes \\ trol the movements of greater bodies.
The i of this general topic, and of those particular
subjects growing out of it to be discussed at this meeting, is timely
because in the natural evolution of governmental affairs we have
reached a period in which all thoughtful persons arc concerned not
only as to the proper functions of each branch of government, but
as to the manner in which those functions of whatever kind or
ill be performed. The administration of justice is a
broa -uprehcnsivc Mihject. It is perhaps not too much to say
lie individual citi/en must of necessity depend upon the proper
administration of justice in the courts f..r pr -lotion to life, liberty
and property more than upon any other force or power in gm
ment. The OOttrtl ire the tril.unals which are and always should be
open to i -i/cn. rich or poor, humble or powerful, to redress
1 to protect every right guaranteed to him
tution and laws of his state or country.
When our forebear :>tied with conditions existing in
their fat 1 turned their faces westward it was in the hope
of e ipon new and virgin s,,il a representative gov-
ernment under which all men should enjoy the efjual protection of
Through the t -ns of the Colonial period
:it of independence and steadily advanced the
o of popular government. Those cars of trial and
1 Introductory remarks at the Fourteenth Annual Ueetln* of the Amerl-
ran A. ail. .il and Social Science, held In the Wl
Building. Philadelphia. Friday and Saturday. April I and t. If 10
4 The Annals of : >ny
uinph. The people lived close to nature and drank deep from the
fountains of eternal truth. They looked upon government as a
means to an end the end being that all men .should he treated a^
free and equal, and that each citizen should be entitled t<> the fullest
protection of the law. The minds and hearts of men were united
in an effort to w.>rk out these results. Strong minds and resolute
hearts \v< !<>ped in that period. so that when the Revolution
came we had men strong, sturdy. men to cope with every
situation presented in the formation of a new and at that time
experimental form of government. It was a psychological moment
in the governmental affairs of mankind. It was the beginning of
a new order of things in which greater rfghts and liberties were
vouchsafed to the people, and less arbitrary and dictatorial power
lodged in the ruler. They were momentous questions which con-
fronted the wise and patriotic men of those days. Unrestr
liberty to the people meant license and anarchy, and no nation could
long endure upon such a foundation. Unlimited power lodged in
the executive was not to be thought of, because this was the evil
from which they sought an escape. It was neither feasible nor
practicable to attempt to conduct the multitudinous affairs of the
people by direct legislative action. The best thought of the best
minds of the original thirteen colonies was seriously and earnestly
directed to the proper solution of these great questions. The fed-
eral constitution is the result, and looking at it from this distance
I am impressed with the force of the thought once uttered by a
great statesman, not of our own country, who said in substance,
that as a wise solution of the governmental affairs of a great people,
it was the most wonderful instrument ever formulated at a given
time by the brain and purpose of man.
This is strong language and naturally suggests the inquiry, what
does the constitution contain to deserve such a tribute? We who
from youth up have enjoyed as of course the protection and privi-
leges of a free government are prone to treat indifferently, or
indeed to entirely ignore the foundation causes from which our
blessings flow. In periods of business depression and social in
there is a tendency to disregard what is and has been, and to drift
out upon the uncertain sea of doubtful expedients. At such times
it is well to study again the lessons of wisdom taught by our fore-
fathers, and learned and approved by succeeding generations. It
I of Jus: 5
is p. -nneciio: what kind of government
was cstai .r constit Hie answer is simple-
cause it is written in plain language all over our organic law. It
IS a government f c> ordinate branchc rancli liaving its
be a check upon the
whole is one of checks and balances in the
branches.
I he h, most quickly re-j.-iiMve t-. pv.Mic opinion,
makes the la\\ v 1! -ided to be conservative, con-
lelmes t: 'utinnal limitations which the
people by the adoption of the c< i placed upon them-'
ami up. Minent. The cx
\\ithpo\\ertomakerecot gislative branch
rough tl ki departments the laws as enacted ami
1 1 1 there is doubt as to the validity, or scope, or meaning
of a ity of the judiciary to determine every
A government of coordinate branches, each acting within
.vn proper sj ikes an orderly and well-regulate.:
Our experience for more than one hundred and .ears,
with a rapidly increasing population made up by the intermingling
of all races, and the development of a new country with vast areas
and unlimited resources, has demonstrated the wisdom, power
efficiency of the form of government adopted. Under the c-
tut ion tl. ; i tended to be and is the great conservative
force in gov and no one who studi< Igments and
decrees can doubt t! \3 met fearlessly and vally the
responsibilities cast upon it. Our judges are selected from the peo-
ple, and as a rule live in close touch with them They arc actuated
by good motives and honorable purposes. Th ions may not
^ys be popular, but they are in nearly even right under
the law. They 1 is a government of law, and that
the duty of a court to construe the law as written, rather than
to attempt by construction to write into its provisions something not
intended. It sometimes happens that in the administration of the
.i seeming injustice may be done an individual suitor, but I
am <j iic disposition of every judge to work out
the equities of each parti* e, so far as it can be done, with-
out \ >d and .lies of 1.
ike, however, to disregard wholesome and settled
6 The Annals of the American Academy
rules and principles in order to work out what seems to be an equita-
ble result in a particular case. It is safe to say that as a rule a
precedent established on the equities of a particular case makes bad
law generally. It i< of vital importance that rules of law affecting
the rights and liberties of the people should be fixed, permanent and
settled. No higher duty rests on any court than ! to main-
tain and impartially administer settled rules of law. This applies to
both civil and criminal actions. It is much bcttrr that a rule of law
should be settled, even if at times we question the rule, than that it
should be unsettled and doubtful, so that no one with certainty can
say what the rule is, or indeed that there i> any rule at all. The
doctrine of stiirc lit-cisis grows in favor with the tenure of judicial
life. At the beginning of a judicial career it is not uncommon to
take the view that old laws should be amended, and that old rules
are antiquated and not suited to modern conditions.
It is but natural for any one holding such views to doubt the
value of precedent, and to attach but little importance to the rule
of decided cases. A few years' experience on the bench has a
wholesome tendency to check such a predisposition. The task of
making a new rule to cover the exigencies of each particular case
as it arises is hopeless, and if such a thing could be done there would
be no settled law, and no one could assert with confidence a Mip-
posed legal right. My experience teaches me that it is better to
know what the settled law is than to speculate about what it ought
to be. It is of the highest importance that stability, certainty and
permanency should characterize the administration of justice by
the courts in order that the people may know what the law is, and
be in position to enjoy and demand its equal protection. The court
of which I have the honor to be a member has for two hundred
- stood on the ancient ways, with a wholesome regard for the
wisdom of those who preceded them in judicial office and a tenacious
adherence to settled principles in the administration of the law.
It is true that methods of procedure have been changed from
time to time to meet new conditions, but fundamental rules of prop-
erty and principles of law have been upheld from time immemorial.
It may be argued, indeed it is often asserted, that this view is too
conservative and not in keeping with the march of progress in the
affairs of mankind. My answer is that courts were never intended
to be crusaders, and that their true function is in the exercise of
Problems Connected :i-i//i A dm-. >i of
proper restraints upon radical ami unwholesome tendencies. Of
<Hirts must act upon statutory
authority ami \\ ithin constitutional limitation*. \N hen disease is
dun k has a nostriui h nostrums as often kill
as cure. So, tot), \\hen the body |* disordered there are
in public ami in private life with a stock of cure-
all remedies to pt .illy take the form
:<>posed new legislation. 1 he modern y is to attempt to
.ils ami business aria the people by sL:
should go in a great question.
Uil little in the experience of mankimi -chef
good or just einMy. It u true, of
ami rules of
property prescribed by lav. lierc could be no orderly and well-
regulated government.
great question now is an > has been where to draw
the line. Many thoughtful men think there is just as much danger
t.x, many laws a> in m -t liaving enough. It has seemed to
>at \\hat is needed at the present time is not so much new laws,
nt of old one- lie courts
must :i be dep< \>on to administer impartially the law
as it is written. The enforcement of existing law is more efficacious
in producing just and tmiitahle result > than the more doubtful ex-
pedient of hasty and legislation. Every right-thinking per-
son should be in sympathy with any movement that has fur its pur-
pose the uplifting of his fellow man and the improvement of his
social conditions. I believe with the old Psalmist, that righteous-
ness cxaltcth a nation, but in no proper sense can a nation be deemed
righteous that is n>t ' uig. Law defined and administered by
II the foundation upon which righteous action must
be i 1 in dealing with the secular affairs of men.
Respect for law and order is one great need of our present
n. The duty of respecting and obeying the law
equally upon the rich and the poor, the great and the small. The
law must be no respecter of persons, and the highest duty of a
court is to administer it without fear or favor, so that its restraints
he felt hy the most powerful individual or corporation, as well
as by the huml.l- some complaints about !
in the trial of cases, and if these complaints are well founded, courts
8 7 Vic- Annals of the -ny
should do what they can to extend relief. This is a practical ques-
tion the facts of which are not familiar to me. Speaking for our
own court, it is gratifying to be able t< :hat our lists are
disposed of with reasonable expedition. During the p; years
the average time from the date of the argument to the handing
down of the opinion was ays.
At the October term, in Pittsburg, last year, two hundred and
thirty cases were on our IM. All of these cases, with the exception
of five, were heard or disposed of. ami the opinions handed down
in Philadelphia on the first Monday of January following. It is
safe to say that at the close of the present term, sometime next
June, there will not be a half a dozen cases midi-po-ed of in the
eastern district. It seems to me this is about as expeditious as is
consistent with good work. But I have trespassed upon your time
too long, for you have come to hear those who are to discuss the
particular topics assigned them. I thank you for the privilege of
presiding over your deliberations at this session. In behalf of the
American Academy I extend a cordial welcome to all, strangers and
members, assembled here, either to hear or participate in the pro-
ceedings of this annual meeting.
mi SUKATIM; OR THIRD DEGREE SYSTEM
BY I ION \\II.I.IAM i;i,
Police Commissioner of New York City.
: the accused is arrested, the law compels his arrai
before the nearest ami most accessible magistrate, which we always
comply with. Contrary to the usually accepted notion, there is DO
punishment of any kin-! upon the ac-
! 1 f confined here, his meals arc given to him regularly. "The
Sweating or Third Degree System" is an imaginary something
. ed from the brain of some bright news writer. The only
interrogation of an accused person, and he must be one accused of
a sei to ascertain from that person, by examination
and questioning, how much he may know of the crime he is accused
of committing.
A police officer, conducting an examination of an accused per-
son, if he has any information in his possession which makes him
feel morally sure or have grave suspicion that the person before
him has committed a crime, must contrive to so place the informa-
lefore the prisoner, that, if guilty, it will overwhelm him with
the i<lea that more is known than has actually been told to him.
tlu -reliv in many cases obtaining a confession. Much information is
obtai M an accused person by the cleverness with which a
police officer can ask quc ilao in many instances where from
a mere nothing a police officer makes good guesses. But there is
absolutely no torture nor punishment, physically or mentally, and
ng except clever arguments and the presentation of fact* or
correct impressions, thereby convincing an accused person that it
eless for him to withhold any knowledge which he may possess
of the crime of which he is accused.
Contrary to the usual ideas of many people, an ignorant person
ni harder to obtain a confession from than a person of higher
mental calil>cr. If the i*>liceman conducting the examination or
ion makes strong points during the course of such ques-
tioning, an intelligent man has a more receptive mind, not backed
up perhaps by strong will-power, every point the
(9)
IO The Annals of the American Academy
strikes as forcibly as though struck with a hammer. On the other
hand, if an ignorant person has an !>-! mate deposition, in many
;ic . he may be too stupid to recognize how strong the evidence
is against him, and consequently makes no admissions whatsoever.
Whether mentally strong or stupid, much depends upon which of
the two persons, the accused or the officer conducting the examina-
tion, has tlu- MPMIJJIT will-power.
There is no suggestion whatever of any hypnotic influence, and
if there are any police officials or per-ons having Mich hypnotic
power, we have not heard of them. Nevertheless, no matter what
statement or admission an accused person may make he is protected
by the law, for the simp 1 i that no person can be convicted
on his own uncorroborated statement. I would also state that, pre-
liminary to the examination of a prisoner, he is informed of his
rights under the law and told that he can make a statement or not,
as he may see fit, and that anything he may say can be used against
him at his trial, if such a trial is held.
ADMINISTRATION OF CRIMINAL LAW THIRD DEGREE
GENERAL THEODORE A. BINCIIAM.
Ex-Police Commbiioncr. New York Cily.
The main topic of discussion for this fourteenth annual meeting
I' llu- Aimi i ami Social Scicin
Administration : m the I .ites," has attracted the at-
tcnti..n e\en MI' ti >f the I ates, who lias publicly
said that nnprMM-i iu-iit was necess.v ,, accomplished a law-
yer and al.le a judge, such a statement establishes the fact that such
improvement is : a very widespread movement
among the people, of d ..-ti- -n at present conditions is not with-
e. It i- commonly acknowledged that we have a vast
deal of unnecessary and altogether too much legislation. For this,
however, the people have only themselves to blame. It is by them
that legislators are elected, and if the people will not elect sensible
and able rej they mr for it.
taking the 1.: :. the administration of ;i<
must dcixrnd upon the ju For judges to complain, as some
have spect among the people for the law. and
an occasional ex; of distrust of the courts, is weak and
childish; for if the courts prove themselves worthy of respect by
the people they will .i\\ of it. No honest, able ji:
yet failed to command the respect of his profession and of the
people at large.
It is the existence <T corrupt judges that has given
to criticism of the judiciary in the tir-t pl.ice. But it is with
the judiciarv itself that rests the burden of obtaining and holding
the respect of the people, by deserving it.
Therefore, among defects in present criminal administration I
rank first the low grade of the average police magistrate and of
the judges of the lower civil These arc the courts of first
M !>c more beneficial than any other to our whole
future as a people, if properly manned. It is where otir wisest,
ablest and most common-sense judges should be because the polke
12 The Annals of the American Academy
court and the low IT civil court- are closest to the people to tlu-ir
petty faults and troubles, to the events of their daily lives, to their
joys when on a spree and their sorrows afterward. Moreover, it is
in the police court and in the lower civil court- that the millions of
ignorant foreigner - ijain their first and. for the most part, only
impressions of our government and our boasted liherty. As it is,
they get the worst impressions in Mead of the best.
Honest, able judges in our lowest courts would put a stop to
more than half of the troubles we have with policemen everywhere,
and would > c -t a high tone at once for the relations between polie.
public, which we must grudgingly admit could be greatly improved.
The right kind of judges in the lower courts, as \\ ill as those above
could do away almost entirely with shyster lawyers, the whole
silly mass of trivial technicalities, the whole outrageous system of
pre-arranged postponements of trial, releases on bail, etc., and se-
cure an increase of righteous judgments an increase in justice.
This brings me to a defect of the legal profession which is very
general and probably too common to us all ; namely, the exaggera-
tion by the individual of his own insignificant and selfish interests.
Legal men, like some other professional men, say physicians.
for instance, fall into the habit of making a mystery of their pro-
fession. They wind a mysterious cloak about themselves called
legal or professional etiquette ; which, at times, seriously interferes
with the administration of justice. I have known men worried into
their graves because of delays due to this cause alone. I have
known men die while doctors were fussing over their own whims.
Another large part of legal mystery is made up of the mario-
nette juggling of technicalities and precedents.
Some technicalities are important and some precedents are
worth being followed more than once; although a man who cannot
make up his mind on the facts of a case, and guided by law, without
finding a precedent is, in other walks of life, regarded as weak
or cowardly.
The practice of the English criminal courts in sweeping aside
technicalities, and in getting at the merits of the case, ought to be
followed by us. There has recently been a very encouraging case
of this sort in Oklahoma. To get at the merits of a case is the last
thing the public find in the courts. The legal profession as a whole
makes an imaginary deity of "The Theoretical Law," and seems to
Administration of Criminal Law 13
forgrt that :' a paper image. That it exists for the people,
not the- pe,,pK- i',,r it. an. I that it was cr< ascertain the
ts of a case, not for the polemical gymnastics of legal hiero-
phants who I mials of their self n
An- ii the criminal laws is the almost unintelligible
language in which they arc -which is the very fruitful
ground of a large p. r troubles. Here again we meet the
ghosts and \\ it. h< . tin- du-t au-1 cobwebs of antiquity all sacredly
ic modern priests of the cult who worship
the idol, hut utt- in the jjreat '!<* which the idol merely
figures and figures but imperfectly.
The Ten Commandments cannot IK.- improved on for concise-
' the people who re-enact these and make other laws are
entitled to understand them.
How our poor people let themselves be fooled!
m can they endure the present legal tomfool.
Laws are now so obscurely drawn, and often by intention,
that much time of the cor ent in trying to find out what the
wording does mean, or in devising a meaning which may be taken
to fit the words as nearly a- possible.
Simple, cleat d language in the laws would enormously
reduce not only the labors of the courts, but the present possibilities
i litigation. I'.ut I have been asked to discuss par-
ticularly the so-called third degree from a police standpoint.
There is a notion in some quarters that this is a mysterious.
carefully concealed, dreadful method of torture, like some forgotten
e of the Inquisition. Thi> idea has been nourished and spread
and exaggerated by the newspapers. So far as New York is con-
an entirely ea. The third degree is neither
more nor less than a severe - animation not under oath
and in no respect worse than many of those grilling cross-examina-
n oath, are subjected by lawyers in open
which no objection has yet been ra the
so-called third degree may have been in the past, there is not in
knowledge or belief any physical feature of blows or pain.
and still Ies> of torture connected with it. The object is to find
out the truth about the case, get the truth as to facts, or accom-
. or where stolen goods are. or any other facts necessary to
society in the administration of justice.
14 The Annals of the my
Let me emphas;. my In/lief that the New York police
arc not as a body a brutal or unsympathetic body of men. They
are very human, and certainly the Celts among them a; ^ym-
patlu
No doubt most of them are somewhat rough and compelled to
be so by their work and they are not intended to he philanthropists.
No doubt there are brutal men on the force, but I have seen too
much of their general good treatment of prisoners, of generosity to
them out of the policeman's own pocket, of restraint and self-control
under exasperating circumstances, to give credence to any tales of
torture, and rarely do I believe in tales of unnecessary clubbing. I
know our men too well, and believe conditions are steadily im-
proving. This is really all I can tell about the third degree, for it
is all there is to it.
But what I have said leads directly to the following, about
which I am very earnest, and which I wish words of mine could
make sink into your minds as a permanent influence. In our lib-
erty of thought, of which we are so proud, nothing is too deep or
too shallow for us to discuss. Whether we are at all fitted by ex-
perience or education to form any opinion at all, cuts no figure.
We run after anything new as a people we are becoming very
mercurial perhaps it is the natural evolution of a democracy.
Anything like what the papers call "the human element" moves
the crowd sometimes to anger, sometimes to sentiment and mob
instincts are always primitive.
One of the latest fads is that crime is a physical defect and
can be reduced by surgery. If so, the surgery would have to be
widespread and continuous. By the way, are you aware that a very
large percentage of present-day physical defects among children
are due to the social evil, and in circles, too, where it would be
unpardonable even to mention such an evil? As a people, we are
too hypocritical to face cold facts.
But while perhaps many crimes are of the head, most are of
the heart, and those who have had experience with crime, and, there-
fore, are qualified to speak, know of the vast cloud of mere wicked-
ness that prevails simple cussedncss. There is an old Adam
there is some kind of a devil and only when the human heart is con-
verted will you have a sure reduction in crime. What has the Church
to say about this? Society, or the general community, being merely
Administration of Criminal Low 15
human, cannot wait for the surgeons or the Church, but, on the
I tin greatest good to the greatest number, has taken
steps to protect itself and must continue to do so has been com-
I to do so in all ages or be swamped by anarchy.
Shall society be protected in its IiU-rtir-, n<, live-, its property;
yes, even in its general business and social morality? Or shall it
become tin- \ictim of an hysterical, maudlin flahbiness, mistakenly
called iriercy ; winch is. afier all, a "fad," not a virtue. If society U
to be pr< progress made, force must be used *pmtf
real and act .-dm-- of this selfish world.
Taint-, in his "History of the French Rcvoluti- you
one of the causes of the French Revolution was the high degree
cfinement ami moderation reached by the French people so
gentle had they become that the judges shrank from harsh measures
ami \\ere al\\a\s hopefully good natured. There was a horror of
and bloodshed. A reading of his book will astonish you at
between conditions in France before the Revolution
and i s in ,,iir own country at the present time. About one
hun I i scoundrels carried France d\\n :
among the n
Let us face the facts honestly and fearlessly. Society, in a
trs, has learned that it must protect itself by force.
The police are the guardians of civilization and of progress. They
are and must be an instrument of force, not of philanthropy or
polite pei ami they must he hacked up by societ >cril.
True, the police miM !* wisely used, and that is why no selfish
politics should control them, and \\1. should be rigidly
enforced. But for a spirit of maudlin and false sympathy to join
wN of criminals f..r mercy is fatal; is itself crimi-
nal, -on to the general good.
think these remarks would be of peculiar interest to
n the light of recent :iat rigid
1 honest administration can accomplish, even in a small
body of men. To obtain the results you seek, to obtain justice.
let the laws even as they stand l>e eni let the judges show
then v:ood. and utterh
able by anything hut the merits of each case brought before
lie hair-splitting of the lawyers, not by a pre-
sumptuous spirit of legislatir. their own ideas, but by the
evident intention of the law as it
THE TREATMENT OF THE ACCUSED
BY MAJOR RICHARD SYLVESTER,
Superintendent of Metropolitan Police Department, Washington, D. C
There were periods in the history of tin- world when individuals
had been proven guilty of crimes imdrr process of law were
burned alive, had their hands or ears severed, their nostrils slitted
or their hands or faces branded. It was Milled in the period of
Henry I, that for theft and robbery a person should he hanged.
Solon introduced a law whereby every individual had to state in
writing how he pained a livelihood, and, if false information was
given, or he obtained it in an unlawful manner, he was punished
by death. By the Persian law murderers were pressed to death
i-en two stones. In ancient times, before the manners of man-
kind were softened by the arts of peace and civilization, murder
was not a capital crime, but the more barbarous nations settled -m-h
matters by private revenge or by pecuniary compensation. King
Alfred I made murder a capital offense in England.
In' the progress of civilization the nature of all crimes and
criminals became better understood, and during the nineteenth cen-
tury these subjects received the attention of able writers and legis-
lators, to the end that penalties for violations of the laws were
invoked, more in keeping with the gravities of the cases, and, grad-
ually looking to the more humane treatment of those who made up
the offending classes. Not only did discussions follow, having for
their purposes the application of humanitarian conduct for those
who were convicted, but the questions of police organization, and
the modes of apprehending and handling those accused, came in
for a full share of attention by these earlier students of prevention,
protection, detection and disposition. It was then considrred that
officers of the law, while they conducted themselves with purity of
purpose, were truly the safeguards of the community, destined to
protect the public against the outrages and depredations of mis-
creants who were the declared enemies of the state. That the police,
when they acted properly, should be esteemed a- "the civil defenders
of the lives and properties of the people." If itis a patriotic and
(16)
The Treatment of the Abused 17
honorable profession to break down by force the foreign
of the state, why should it not be equally so to subdue the
invaders of property and destroyers of lives who are continually
engaged in criminal warfare. Everything that can raise the standard
of the police officer should a<M t the safety of the life and set
of the property of every individual.
While there was a cessation of visitations of the criminal rlmci
to our shores luring the War of the Revolution, during the War of
tin- Rebellion, eighty years later, when our population had grov.
us proportions, and our commercialism extended from
ocean to ocean, the disru; led extraordinary military and
police .. due to our domestic disturbances. The ma-
rauder, the bank robber and highwayman, thieves and criminals of
every kind, took advantage of the exciting times to engage in their
nefarious undertakings. At the close of the conflict, during the
period of reconstruction, soldiers and the police were required to
meet unusual conditions in the cities-. Many of those arrested,
criminals ami susj>ects. were subjected to many kinds of inquisi-
tion and torture prior to court trials, in order that confessions,
impl icmselves or others in the commission of violations,
ini^ht he had It was closely following upon these exciting times
cat box" was described.
:cd. it was a cell adjoining which in close proximity was
a hi^h iron stove of drum formation. The subject indisposed to
disclose information which might be securely locked within his
bosom would be confined within this cell, and without ceremony
or formality a scorching fire would be encouraged in the monster
stove adjoining, into which vegetable matter, old bones, pieces of
rubber shoes and kindred trophies would be thrown, all to make a
terrible heat, offensive as it was hot. It became at last so torturous
and terrible as to cause the si< nd perspiring object of pun-
Niment to re\eal the innermost secrets he possessed as the com-
pensation for release from the "sweat box." This is the origin of
the torrid appellation which has been so much discussed within the
past few yea
The existence of any such contrivance in these enlightened
days would be followed by raid ami suppression. On the other
hand, the criminal and those who would u<e the criminal vernacular
apply the effervescent term to the office, or room adjacent at
18 The Annals of the American Academy
live headquarters, where, in secrecy, conciliation may be had <>r
qucstior i-d of prisonv
In this progressive age, when the heads of police departments,
mainly at individual expense, gather in convention annually and
advocate the establishment of houses of detention ; in other words,
sepa: cctablc looking edifices for the placing therein of women
and juvenile offenders rather than in station hmisc-s. when these
men endorse the probation system, when they study the infirmities
and defects of criminals of record in order that the courts may be
enlightened in tlu--e respects before penalties arc imposed, when
these members argue for kind treatment of the child and the estab-
lishment of juvenile court-, when these chiefs submit intelligent
written discussions as to the humane treatment of prisoners, it should
need no argument to condemn any assertion that "little drops of
water" or superheated moisture weep through the pores of a pri--
oner's skin through torture in a "sweat box." It is to be regretted
that there are exceptions to such rules, but the members of the
International Police Association, who number quite two hundred
chiefs, have subscribed to the principles of humanity. There are
officials who do not practice what they preach, some who are im-
posed upon by ignorant subordinates, but the well-disposed superiors
will far outclass the others of their calling.
\Ye have heard of the other vulgarity "third degree." In
police and criminal procedure and practice the officer of the law
administers the "first degree," so-called, when he makes the arrest.
When taken to the place of confinement, there is the "second degree,"
and when the prisoner is taken into private quarters and there inter-
rogated as to his goings and comings, or asked to explain what he
may be doing with Mr. Urown's broken and dismantled jewelry in
his possession, or take off a rubber-heeled shoe he may be wearing in
order to compare it with a footprint in a burglarized premises, or
even to explain the blood stains on his hands and clothing, that,
hypothetically, illustrates what would he called the "third degree."
The prisoner is cautioned by the reputable officer to-day that
he need not incriminate himself, and, in some places, the authorities
have blank forms in use stipulating that what a prisoner states is
of his own volition and without coercion. In the pursuit of their
investigations there is no law to prevent the officers of the law
questioning any person, who, in their opinion, may be able to give
The Treatment of the Accused 19
ination which would enable them to discover the perpetrator of
a crime. It becomes the bounden duty of the |>hcc to locale the
There is no ju \\ for personal violence, inhuman
ifair conduct, in Confessions. The officer who
understands his position \\iil offer admissions obtained from pris-
oners in no other manner than that whu li is sanctioned by the law.
If a confession, preceded by customary caution, obtained through
remorse or a desire to make rcpar. . is advanced by a
t be regarded as unfair.
No well informed and schooled police officer would undertake
to make himself liable before the court : put able practices.
On the other hand, the well directed officer in the-e tinn-s \M!| en-
deavor to see to it tl lone a prisoner. If (k-mcnted, a
drug fiend, a physical wreck, a first offender, if misled by ot
older in crime, he considers it projxrr that lie should be informed,
ler that the court may be fully enlightened before passing judg-
ment. \ ohinteei and admissions made after a prisoner
has been cautioned that \\li.it he Mates may be used against him.
and diligent inquiry of a prisoner for explanation of facts and cir-
cumstances, are all there is to the so-called "third degree," as
Mtcnanccd by -uj officials in these modern times.
Some years ago a rough usage was resorted to in some cities
to secure confessions, but Mich procedure does not obtain
at large i There are those who come in contact with the
authorities who are alwa\ to condemn on slight provocation,
\sho are waiting to even up for some fancied wrong, or for
some contact with the authorities they may have had through their
own wrongdoing, and who are t\ y to condemn the police.
On the other hand, the principles of the police, as announced and
isscd in their own ci: that the closest co-operation and
dly feeling should exist between them and the good citizen.
If the latter would applaud the creditable deeds of the police and
their shortcomings, it would be just, and lead to a better
i for all concern through the
medium of the International Police A oa'.ion. are improving In-
tellectually and morally, and this, in the face of many obstacle
an endeavor : 'ing to a higher standard and in order
to better unfortunate human
THE TREATMENT OF THE OFFENDER
BY HOMER FOLKS,
Secretary. New York State Charities Aid Association; President, New York
State Probation Commission.
The student of social economy fifty years hence, looking back
on our existing social agencies and practices, will find nothing
more difficult to understand, and to harmonize with the possession
of intelligent purposes on our part, than our treatment of the
offender. He will not criticise us because our policy in dealing
with the offender was too lenient, nor because it was too sc\
not because our treatment of the offender was too largely institu-
tional, nor too little institutional ; but because we had no policy.
He will criticise us because we vacillated between accepting, on the
one hand, the findings and teachings of scientific study and research
cial conditions and criminology and adhering on the other
to the medieval idea of punishment.
In thus generally condemning our treatment of offenders, I am
not unmindful of progress made. I remember that we have an
Elmira Reformatory, and that there are similar institutions in other
states; that improvements have taken place in equipment and <li^
cipline in some prisons; that the indeterminate sentence has been
adopted, coupled more and more with some form of parole over-
sight ; and that juvenile courts and the suspension of sentence with
probationary oversight for both children and adults have been
quite generally authorized.
The fact that notwithstanding these improvements, our system
of dealing with offenders must as a whole be pronounced a failure,
is, in my judgment, due, among other reasons, largely to four
things, viz. :
1. The persistence of wrong notions as to the purpose of
punishment.
2. The failure to provide adequate machinery for making
the suspended sentence with probationary oversight, and the inde-
terminate sentence with oversight during parole, really effective.
3. The failure to collect adequate and comprehensive informa-
The Treatment of the Offender 21
tion as to the actual operations of our correctional institutions and
reform systems, by means of which we could elaborate a broader,
more consistent and more effective program, and defend it against
all comers.
4. The traditionalism of most of our magistrates am) judges,
tlu attitude encouraged by many lawyers and some others, of
not Mihjvting .-..MI IN to < as we do other institutions.
< primus but a brief amplification of these four points:
I The lat< umary statement t<> attract general notice
is at the Association of District Attorneys of the
State of Ncv March 17. I.JIM. I,-. < !..,r!es C Nott. Jr., a
>g member of the staff of the District Attorney of New York
City. Mr. Xott probably expresses in considerable degree the ten-
f the staff of that office, and to some extent of the present
and past efficient incnml>ents of the office of I \it.rney. Mr.
Whitman and Mr. Jerome. Mr. Nott begins his paper with the
following assertion:
"It seems safe to assert that for many years it has been held by all
intelligent po ; in penology, that the purpose of imprisonment
for crime is t safeguard the interests of the community by deterring other*
from tlu : -n of en
While agreeing with some of the position- taken by Mr. Nott,
I must distinctl\ :e with this statement. The chief purpose
of punishment in ttie mind of the average man, ami. therefore, of
a whi ile. in my judgment, is t> prevent the com-
ton of further crime, not by other offenders, but by the particu-
'K-stion. I appeal to general experience and in-
reeling in regard to crimes committed in our neighborhoods
or within the range of our personal knowledge is not our 6rst
and most insistent feeling the desire to be protected from further
crimes by this particular offender' It b for this reason that we
;cti\ely wish to put him behind bars, and in an earlier age in-
stinctively wished to take off his head. We may hope that inci-
dentally t.thers wh.. may. l>e wavering may also be deterred from
wrongdoing, but experience seems to show that it incertain
as to whether the punishment of one offender does have much effect
upon <>t!
Fortunately, the deterrent effect of punishment upon an offender
22 The Annals of the American Academy
is one which we can very accurately measure. We can, if we will,
be fully informed as to the extent to which our actual dealings with
r them from further crimes. We
know their names, their places of abode. \Vc can, if we will,
identify them by a system which precludes doubt. We can make
such identification of convicted offenders general, and we can, if we
think it worth while, and, of course, it is supremely worth while,
know beyond peradventure what proportion of convicted offenders
who are treated in penal institutions subsequently repeat their
offenses, ami what proportion of those released on probationary
oversight or suspended sentence again offend.
If. however, the chief object of punishment is to deter others
from committing crime, we can never know to what extent that
object is accomplished. It is doubtful whether our statistics in
regard to crime will be such for a long time to come that we can
f<>rm any accurate notion as to the actual amount of crime at one
time as compared with another. Even if we achieved a reasonably
accurate measurement of the volume of crime, its causes are too
obscure and complicated to enable us to single out the effect at one
period and at another of this particular factor, the deterrent effect
of punishment on others. The impossibility of securing definite
information is, in fact, probably one of the chief reasons for the
persistence of the idea, in my judgment erroneous, which Mr. Nott
makes the corner-stone of his paper.
II. The indeterminate sentence with parole oversight and the
suspended sentence with probationary oversight are already too
firmly established to be overturned by the reactionary attacks which
will doubtless be made upon them from time to time. They are
correct in principle; they have come to stay; and the area of their
application will be extended rather than restricted. I am far, how-
from saying that their present administration is satisfactory.
It is. in my opinion, in most localities and in most courts highly
unsatisfactory, and it is unsatisfactory principally because we have
failed to provide the facilities by which we can secure effective
supervision of persons so released. Specifically, we have utterly
failed in most courts to provide anything like an adequate number
of qualified probation officers, and we have failed still more lament-
ably to devise an adequate system for the direction of the work
of probation officers. It is absolutely essential in probation work
The Treatment of the Offender 33
that tin- oMrndt-r shall be kept under an a. tal. effective over-
sight, and that, if MU h -weight shows that he is continuing in
wrongdoing, the suspended sentence should be revoked and the
proper sentence be imposed.
Mr. Nott criticise -s particularly the number of suspensions of
sentence and questions the effectiveness of probationary over sight
ui the Court of General Sessions in the city of New York. The
number of suspensions of sentences increased from 460 in 1904 to
1160 in 1908, and 982 in 1909. As to whether ti m undue
number of defendants so dealt with; as to whether sentence has
been suspended m wrong instances and by reason of ignorance of
the facts or of improper motives, I have no data on which to base
an opinion. I am perfectly clear, however, that, as Mr. Nott im-
plies, the number of persons released in that court under suspension
of sentence is such as to require for their effective oversight a large,
well-organized staff of competent probation officers, devoting their
entire time to the work, and properly superintended.
The judges of that o.tirt have not seen fit to ask the city
authorities to provide salaries for any probation officers whatever.
They rely upon voluntary assistants provided by private organiza-
tions. It is manifestly impossible for the representatives of these
organization^, with the other duties imposed upon them, and in
some instances with private occup to perform efficiently the
amount of work placed upon them by the court. There is no chief
probation officer to direct the work of these volunteers. The State
Probation Committee informally hut strongly urged the judges of
this court more than a year ago to make an application to the city
authorities for salaries for a staff of probation officers, and has
offered to support a request f,, r such an appropriation. It will
doubtless be forthcoming, as it has been when requested by other
con i
Still more notably deficient in my judgment. l>oth in method and
facili the oversight of persons released from penal and re-
formatory institutions mi parole. To determine when an offender
may properly be paroled is a matter requiring careful inquiry and
great discretion. It should he determined wit: ill knowledge
ic offender's conduct, both in the institution and before com-
mitment. It is a highly individual matter. The machinery provided
for a determination of the proper time to release a
24 The Annals of the . . Academy
parole, is woefully inadequate. The- presumption that all offenders
who have behaved tolerably well in prison are entitled to parole
at the expiration of the minimum period of imprisonment i> abso-
lutely inconsistent with the idea of the indeterminate sentence.
Yet this appears to be an accepted practice in New York, and on
this basis a member of the State Parole Board justified the release,
at the expiration of the minimum term. .f a most notorious offender
against the election laws. And when the offender is actually paroled,
with an indeterminate sentence still hanging over his head, what
sort of a method have we worked out fr keeping informed as to
his conduct? Who selects the parole officers; who directs them
from day to day; who works out the standards on which the ques-
tion of the return of an offender to a penal institution is to be de-
termined; who sees that these standards are impartially enforced?
Our management of penal and reformatory institutions has im-
proved much faster than our management of the processes of getting
persons into and out of such institutions?
To the question, "Is Christianity a failure?" some one objected
that it had never yet been tried. Should any one remark that pro-
bation and parole are failures, I am inclined to reply that they
have never yet been thoroughly and effectively tried. There is noth-
ing flabby, weak, sentimental or ineffectual in the theory or in the
proper administration of probation or parole. The supervision which
they pre-suppose may be even more objectionable to an offender than
actual imprisonment. The crying need, however, is for methods,
facilities, agencies, officers, which will permit the theory of proba-
tion and parole to be put into actual practice.
III. The lack of comprehensive, trustworthy and instructive
statistics in regard to offenders and their treatment, is notorious.
It must be referred to because it is one of the important elements in
the situation. By reason of it we are still asking, after thirty-two
years of Elmira, whether reformatories reform. We are still in
the dark to an unpardonable extent as to whether persons released
under suspended sentence and under probation repeat their offenses.
We are still in the dark as to the extent to which prisoners released
from penal institutions under indeterminate sentence again offend,
either during the term of parole or subsequently. The curious
thing about it is that not only do we fail to collect such information,
but curiously enough we apparently fail to realize that without it
The Treatment of the Offender 25
we cannot develop an intelligent and consistent policy in dealing
with ortenders Jt ii for this th.it \\ will be criticised most sharply
fifty years hence. Not even to know that we are groping in the
darkness is mipardonahle.
hut in my judgment of exceeding importance, is
the attitude of mind entertained and inculcated by many in regard
to the courts generally. We are told that ticise the
rts; that they are in some way different from other human in-
stitutions; that they must be accepted, supported, obc cred,
hut n.t This tends t. maintain an attitude of supersti-
it t <!:! t<. dry rot in the court ; it encourages political favoritism
and downright corruption; it perpetuates hoary abuses in the
MM and administrative sides of the con: k. \Ve shall
not reach a consistent, defensible policy of dealing with offenders
until we recognize generally that judges arc very human ; that to err
is human, hut that erring calls for criticism and correction. Lots
of sunlight, fresh air, and ventilation will tend to prevent abuses in
the courts, as well as to prevent tuberculosis.
If you have happened to call at the executive chamber in
Albany, you may have noticed that at 12 o'clock and at 5 o'clock
resentatives of the press are admitted, and meet the
governor in person. In its superficial aspect this is a meeting be-
tween a very distinguished man and a few young men representing
newspapers. In reality it is the highest executive official in the
state giving twice daily an account of his stewardship to the people
of the state. Similarly, every act of the legislature is daily under
the searchlight of publicity. In some way our criminal courts.
in my judgment, should be made subject to equally potent, con-
structive influences. We must know the facts; we must know them
1 we must he ready t> express judgment upon them
and to act upon them if need be. We must bear constantly in
mind the human quality of the court. That which we deem judicial
severity we must remember may be due in part to a too elaborate
dinner on the part of the judge the night before. That which
we deem striking confidence in the prisoner's good faith may be
born of a favorable turn the day before in the properties in which
the judge's savings are invested.
The fact that people know so little about the courts and that
they have been taught to have an attitude of almost fetish-worship
26 The Annals of the American Academy
toward them, leaves them in a state of mind to readily go to the
other extreme and unjustly and unreasonably condemn particular
courts or particular judges as corrupt or hopelessly unenlightened.
An attitude of open-minded criticism toward the courts would,
in my judgment, be a most helpful factor in the development of
tin -ir work. The recent report of the Commission to Inquire Into
the Courts of Inferior Criminal Jurisdiction in Cities of the Fir-t
Class in the State of New York is an admirable example of im-
partial, wholesome criticism of court methods, procedure and results.
It is unfortunate that it is the report of a temporary body. We
should have some similar continuing organ of government by which
at stated intervals the important facts in relation to criminal courts,
especially of inferior jurisdiction, would be stated in such a way
as to inform the public, and form the basis for remedial and con-
structive measures. The courts, as well as the penal institutions,
should be studied, inspected and improved. The most important
factor in this process is that of securing reasonably continuous, well-
informed, intelligent publicity, in place of the present long periods
of obscurity, broken by brief intervals of often undeserved public
condemnation.
PROBATION WORK FOR WON!
MM hi I. Mi SKI.
Sc. ation Association. New York (
Probation is no longer an experiment, but lias become as truly
a part of the reformative system as the reform.
! It is for the i ! girl or woman a system of discipline
ii a proccs acter building under the guidance
of a probation officer who is a counsellor and friend. The ffWTfff
of probation depends upon the careful selection of persons who are
reive the benefits of it, the character of supervision that is
exercised over probationers and the spirit, ability and personality of
probation officers charged with the execution of this most important
\s>rk.
the long procession of fifty, one hundred or one hundred
fifty girls and women passes before the bar of ; a single
night at the Night Court in New York City, between nine in the
evening and three in the morning, one observes with the older and
more hardened offenders some younger gi: familiar with the
surroundings of the court. There are many girls and women ar-
rested for soliciting on t! for immoral purposes, or plying
e of prostitution in tenement houses, and others who have
been charged with intoxication, vagrancy, disorderly conduct and
with being incorrigible and wayward girls. The women are no
longer in the toils of the professional bondsmen as they were before
the Night Court was established, when arrests were made not alone
because women were guilty, but because it was known that they
would pay the customary fee for the privilege of being bailed out at
night. Now all have a right to an immediate trial and to be dis-
charged at once if found innocent.
It is within the discretion of the magistrate after finding a
defendant guilty to sentence her immediately, to hold for further
examination or to remand for sentence. t the women are
sentenced at once by the magistrates, and it is largely a matter of
chance dependent on the opinion of the magistrate who is sitting.
her a girl is discharged, fined, placed under a food behavior
(a?)
28 The Annals of the American
bond, committed to workhouse or reformatory or released on sus-
pended sentence and placed on probation. If a woman who i-
guilty is discharged at once, she frequently has only a contempt for
the law and icels that she can violate it again with impunity. It
neither helps nor punishes a woman convicted <t' soliciting on the
Streets to impose a fine ujxw her. nor docs it act as a deterrent in
any way. She pays a fine of two or three dollars, and often leaves
courtroom smiling to think she has escaped so easily, and
returns at once to her life of prostitution and the streets. If she is
fined five or ten dollars, and does not have the money, she sends
at once to the disorderly "Raines law" hotel which she frequents and
which promises to protect her. The good behavior bond is as in-
effective as the fine. She must pay for securing some one to furnish
her bond and thereby finds herself still further enslaved. If she
offends against the law during the period ^he is under the good
behavior bond, no action is taken to secure the forfeiture of it and
the bond becomes meaningless.
The workhouse sentence with imprisonment for five or twenty
days does not help any girl, and if it is six months it may really
harm her. Recently I went to the Workhouse to see a girl, eighteen
years of age, committed for a period of six months. She had been
leading a life of prostitution for two months at the time of her
arrest and had never been in court before. "I wouldn't care so
much if only the judge thought he was reforming me by putting
me here," she said, "but he must know girls can't get better by
coming in cells with such dreadful women."
During the period of the shirtwaist strike we saw girls of six-
teen, seventeen and eighteen years of age placed in the same cells
with prostitutes in our jails and workhouse a severe arraignment
of our method of dealing with offenders.
Our courts and magistrates are very slowly recognizing that it
is better for girls who need to be separated from society for a time
to be in a reformatory where they can receive industrial training
and further preparation for life and for work, than to be confined
in cells in a prison.
A system of careful questioning, investigation and identification
and wise judgment based on these is necessary to determine who
are worthy of being released on probation. It is not merely a ques-
tion of age or experience or number of arrests, but of poisoned
minds, diseased bodies and weakened wills.
Probation Work for Women 39
.1 often by the older women with whom the associates
in tin- Cation house or detention pen at the court, the young girl
of s< arrested i- i the first tune often declares she is tw
one years of age, gives a false name, false address and says that her
parents are dead or living out of ti I f she is sufficiently brave.
as she is cautioned to be, and does not appear frightened or con-
cerned about her arrest, an<l if tier manner of dress sufficiently dis-
guises her age, she may slip through easily with a fine, providing no
Cation is made If placed at once on probation, she leaves
and because of the false address the probation officer may
If. however, she is cl--ely , < stioncd as tO
the place where she is living, the addresses of parents and rel.
ami the place where she was last employed, and is held for examina-
or remanded for seiitenre while these addresses are
by the probation officer, the true facts will be revealed.
for the younger girls paroled in my custody while
probation officer in the Night C'oiirt and so prevent them from re-
nig in cells in the prison, and also to care for them more
effectively after they were released on probation, we opened
Waverles ll-u^-. at i<>5 \VcstTenth Street. February. 1908. Classes
in sewing, cooking, basketweaving. FnglMi and gymnastics were
organized to keep the girls employed even during the short period
while they were held for examination.
Among ho have come to Waverley House have been
girls of fifteen and seventeen years who claimed to be eighteen
years old, arrested for intoxication and larceny, a runaway girl.
en years old. who had been placed in the same cell with a
woman convicted three times of prostitution and a girl of seventeen
who had been occupying the same cell in the prison with two
en charged with her abduction.
It has been possible by winning the confidence of the gr
their true stories and in some cases to obtain evidence against
those who were responsible for taking them aw ay from home.
As the result of the physical examination while at Waverley
House, girls found to be suffering from venereal disease have been
committed t<> institutions from which they could be transferred to
it or sent directly to : or cases,
even of girls seventee <f age. their physical or mental condi-
or both have been found to be due to the use of cocaine or
30 The Annals of the American Academy
n. Observations made at Waverley House have shown that at
times girls were considered criminal when in reality they were
feeble minded, insane or not mentally responsible, and have been
committed to the Psychopathic Ward at I'.elleviic Hospital or sent to
an institution especially adapted for them.
v House has shown the need of a municipal detention
;ir the Night Court where there can Cation of the
different classes of offenders and where the younger girls held under
order of the court can be free from the contaminating influence
of the more hardened women. During the period of detention.
helpful occupation should be provided and all convicted of pros-
titution should be required to have a physical examination.
Some system of identification is essential so that it can be
determined the number of times the defendant has been previously
arrested and the sentence imposed. During six months while the
fingerprint system of identification was employed in the Tenderloin
Station, 1217 women were arrested 3145 times. One woman was
arrested 17 times during this period and never sent to the Work-
house or placed on probation and another was arrested five times
during the same month for the same offense and after being fined
twice and committed to the Workhouse once, was placed on pro-
bation at the time of the fourth arrest.
T. M. was arrested one week after entering a life of pros-
titution and fined five dollars. Six months later, when again
arrested, the magistrate released her on probation. The girl was
pregnant and has since given birth to a child. She declares that at
the time of her first arrest she would have welcomed the opportunity
to get away from her bad life if the magistrate had only offered
it to her.
It remains for the magistrate who is in possession of the
facts with regard to the previous record of the girl, her home
environment, her health condition and her mental attitude, to con-
sider carefully, in view of these, what is the wisest and best dis-
position to make. When one considers how it may affect the whole
future life of a girl and determine whether it is to be useful or
harmful, one is forced to conclude that it should not be merely a
matter of chance whether she is fined three dollars or committed for
three years, sent to the Workhouse or released on probation. There
should be more intelligent handling of these cases and more nni-
Probation ll'ork for Women 31
fortuity of action oil the part of the different ma^M rate* who have
in view helping instead of punching the individual K
\\ hen the defendant i released on probation she is placed under
the care of a probation officer, charged to be of good behavior and
: to report to the probation officer. For a minor offense
the j.i TUN! of prohat es from one to six months and for a
lemcanoi ny may be a much longer time. Card records
are kept by probation officers and statistical reports sent monthly
bation Commission. In supervising those under
her care and in making pr<l>ati<>n a truly helpful influence the
probation officer finds her real work. The following have proved
to be i adequate supervision:
i \ isiiing probationers in their homes and obtaining co-opera-
ives.
2. Securing employment for those out of work.
iding medical care when necessary.
.} I :M ML; in- ii with helpful influences and
'lishinjr friendly relations with them so that they come freely
for advice and help
5. Receiving reports from probationers individually apart from
the court.
6. Securing revocation of probation and commitment to re-
formatory institution in the event of violation of the terms of release.
If a girl has a good home it is the wisest and best thing for her
to return to it and parents are usually willing to receive her when
facts are explained to them. It is not alv e to tell the entire
i enough to show them that the girl is in grave moral danger
should he more carefully guarded. The probation officer must
it the home in order to judge of the conduct of the pro-
l>end entirely upon the girl's statement at the
time she reports. When the home is not in New York and the
probationer returns to another city, some one, preferably the proba-
if probation i organized there, should be notified
i continued. We can also continue to keep in
touch with her by writing to her and her parents. Girls who have
come to \Y. Mouse from the Night Court have been re-
turned to their homes in New York. New Jersey, Pennsylvania,
Tennessee, Missouri. Indiana. Ohio and other states. Several have
been sent back to their homes in other countries.
32 The Annals of the American Academy
Effort should be made to secure the kind of employment for
probationers for which they are best fitted. Some have had experi-
ence at housework, in factory or office, and can be placed without
difficulty; others are entirely without training or experience, and
must be instructed or placed at unskilled work. In placing girls in
families it is best to tell the employers frankly with regard to their
past record and secure their co-operation in befriending and helping
the girls.
The inability to work and consequent difficulty in getting along
at home, have been found to be due in some cases to physical causes
which required correction. Before going to work, girls should know
that they are in good physical condition and have a clean bill of
health.
Helpful influences must be brought to bear upon the girls in
order to hold them. There are clubs and classes in settlements,
churches and various organizations open to those who have been in
danger, but have not been leading an immoral life. The work with
the girls who have erred must be largely individual and personal, and
in this the help of some interested volunteer workers can be utilized
if wisely and carefully directed.
Probationers are required to report regularly weekly or bi-
weekly, and under right conditions this affords an opportunity for
the probation officer to keep closely in touch with her charges and
is beneficial. The real value of reporting is, however, lost if the
probationers are required to report at a court or before the entire
group of probation officers. It is unwise for them to be brought
each week into the environment of the court and to feel that they
are on exhibition before a group of men and women probation
officers, or to be seen by other girls who are guilty of the same or
widely different offenses. The period of probation is far too short
in many cases, and a minimum of six months and maximum of
two years would be far more satisfactory in cases of girls arrested
for waywardness, intoxication or prostitution, as well as for those
charged with larceny.
The law provides that if the probationer violates the terms un-
der which she has been released, a warrant may be issued for her
arrest and she may be sentenced in the same manner as though she
had not been placed on probation. It is useless, as is done at times
in our courts, to impose a fine or place under a good behavior bond
atwn ll'ork far Women 33
or commit for five days to the workhouse for violation of probation.
Because a girl fail- when the first chance has been given to h<
does not mean tl. ot hope of further helping her. She
may need more constant supervision than the probation officer can
give her, and a period of industrial and moral teaching and training
in a re forma' tut ion.
Api ly one-third of the girls and women placed on
probation in the magistrates' courts of New York City are reported
as absconding or otherwise violating the terms of their probation,
and by no means true that the lives of two-thirds of the
women are changed in any vital way by the probation experience.
Some who ostensibly adhere to the terms of probation return to a
bad life soon after the probation perio* A- I have worked
const :th girls during the period of probation, subsequently
ig tlu-in in their homes, finding work for them and helping
them in every way that I could, I am convinced that about one-third
have been permanently helped.
Nation has proved to be most successful with the girls from
sixteen to twenty years of age charged with being ungovernable and
incorrigible and in danger through bad association. Many of the
incorrigible girls have run away from their homes and have been
ig an immoral life for a few days or weeks and have been
with dangerous companions.
Sarah was arrested on complaint of her married sister, who
said that the girl had been associating with bad companions and was
unguvi Tiiuhli- .s forced to admit that her husband had
told Sarah to leave the house when she had no money for her board.
During fifteen months of the two years xhe had been in this country
from Austria >he had worked in four different factories, earning
from three to four dollars a week, and had been "laid off" from
each one because work was slack. F.very cent she received had been
given to her sister. She had no place to stay the night she was
told to leave her sister's home, and a man whom she met in a restau-
rant offered to provide a room for her. For a few weeks before
her arrest she had been leading an immoral life, but had refused
to go on the Greets to earn money by prostitution as several men
had tried to persuade her to do. She has married since her pro-
bation p< and is li-ading a good, honest life. Recently
she celebrated her eighteenth birthday.
34 The Annals of the American Academy
In cases of intoxication of young girls and of women, some of
them mothers of families, it i> pov-ible to do much by probation.
The home visits ami friendly relations of the probation officer
much and serve to encourage the probationer.
T\\o young girls who claimed to be seventeen years of a-c
were arraigned in the Xight Court for intoxication and released on
probation. When investigation was made the following day, the
probation officer learned that it was the first offense of each, and
that one was but fifteen years old. By frequently visiting the homes
and securing the co-operation of their families, both girls were helped
just at the time when they had begun to form dangerous friend
ships and were getting beyond the control of their parents.
The girl who has been leading a life of prostitution for a very
short time, and has entered upon it through the influence of some
man who has secured power over her or because she was temporarily
in distress and did not know which way to turn, may be helped by
probation. Application of probation to the older, hardened prosti-
tutes is useless and tends to bring discredit upon the whole system.
An Austrian girl, sixteen years old, had been soliciting on the
streets for three nights. She had been in the country little more
than a year and had worked steadily until three weeks before her
arrest. A man whom she met at a dance hall on the lower East Side,
where she spent her Sunday evenings, induced her to enter upon an
immoral life, and sent her to the streets to earn money by a life
of prostitution. During her probation period, and for eight months
since it expired, she has worked faithfully, and last week returned
to her home in Europe with money she had saved by her work.
\Yhcn G. R., eighteen years old, was arrested for prostitution in
a tenement house, she told the true story of how she had been in-
duced to leave her home. A young Italian man whom she met at
an amusement park promised her a position where she would earn
more money and have an easier time than in the Brooklyn factory
where she was working. He brought her to New York and placed
her in a house of prostitution. She was paroled in my custody as
probation officer while careful investigation was being made, and
sufficient evidence secured against the man who lived on her earnings.
He was convicted and sentenced to the workhouse. G. R. returned
to her home and has since been working for one year in the same
factory where she was employed until two weeks before her arrest.
Probation Work for Worn** 35
The i ork Probation Association organized to maintain
Wtvrrli y 1 louse, and to aid in the development of probation work,
co-operates with the courts and with probation officers. Probation
officers from the courts are free to bring girls to Wavcrtcy
House as \\itncsscs. while (H-nding investigation, for physical exam-
.it or until tlu- ! I.MIK them is discovered. An
employment bureau is ma by the A Cation, and positions
found for those who arc able to go to work. Railroad ticket* are
' for girls who are willing to return to their homes in other
! \\ouM IH? unable to do so otherwise. During the summer
of 1909, 1 id! :n was maintained by the Association as a home
for proba \ here ^irN with their babies and those who had not
been well could spend a few days or weeks out of doors before they
were able to go to work.
The Associat >t only interested in helping the individual
girls and seeking to improve probation work, but in understanding
the causes of the failure of these girls so as to prevent others from
entering the ranks. We have learned that many girls have entered
upon a life of immorality or prostitution through the influence of
procurers, men who live on the proceeds of prostitution, and older
prostitutes, because they were deserted by men who had promised to
marry them, or because of ignorance or conditions at home, at work
or at play. The crowded homes in the congested quarters of our
\veatshop work goes on, and here there is, lack
of under . rnpathy, the grinding work at low wage
in factory and shop with the accompanying temptati<>n>. the love of
amusement which finds its gratification in wretched dance halls,
where the girls first learn to drink and meet dangerous companions
all these are part: onsible.
raordinary efforts mu-t be made to convict procurers, check
id of prostitution in the tenement districts and prevent the
opening of disorderly resorts side by side with our factories or
stores. Then much must be done to improve conditions under which
our girls live and work and play, so that there will be fewer avenues
of approach to a life of wretchedness. In helping those who are
in danger of becoming morally depraved, and so preventing them
from coming to the courts and in aiding probation work in the
courts, a volunteer probation association finds a large field for use-
fulness.
36 The Annais of the J/m-nVuii
With the probation officer rests the ultimate success or failure
of probation work. The work for girls and women must be done
by women who bring to it intelligence, common sense, tact, skill,
sympathy and enthusiasm, faith in human nature and in the task they
are undertaking. They must be efficient and trained workers and
women with personality. Theirs is the difficult task of influencing
characters and lives, of bringing others to forget the things that are
behind and to reach forth to the things that are before, of stimu-
lating ambition and inspiring to noble purpose in life.
REFORMATION OF WOMEN MODERN METHODS OF
DEALING \\MII
K \i MARINE BEMENT DAMS, 1'n.D..
Superintendent. New York State Reformatory for Women. Bedford, N. Y.
In looking over the programs of recent meetings of various
bodies devoted t<> the t'idy of social conditions in different parts of
the t'nited States, the consult t the duty of the State toward
the delinquent woman appears with increasing frequency. It sig-
nifies a change of attitude on the part of society toward the offender,
the woman offender, which is most en-
couraging. It is not so long ago that the woman who sinned was
considered so far out of the pale as to be unworthy of any con-
ation xxhatever. Any effort to do more than punish her when
she broke the written laws of the community was considered a
< of time and money. With the growing recognition of social
responsibility for the environment which reacts on character has
come the realization of the duty of society toward those who are
made w hat they are largely by society itself.
The problem of delinquent women is complicated as the prob-
lem of delinquent men is not, by social conditions and social con-
ventions, and this xvill continue to be the case so long as society
tolerates two stain lards of conduct for the two sexes. Lombroso
has stated in his work on the "Female Offcn opinion that
the prostitute among women occupies a corresponding position to
the criminal among men. This is in a great measure true. It is
found in studying the histories of women in the state prisons, pent-
iries and similar institutions, that a large majority of them
have been unchaste, have lived loose lives sexually, even if they
have not been actually among the class of prostitutes who support
themselves by their profession. As a result of tl necessary
in considering methods for reformation of women to make allow-
ances for the feelings of the society into which the women molt
eventually be placed.
We recognize to-day that the woman offender is divide*
two general classes. The first class includes those who are delin
07)
38 The Annals of the American Academy
quent on account of some congenital defect physical weakness,
lack of will-power if not of active criminal tendencies. This class
includes various degrees of feeblemindedness of mental unbalance
between which and insanity it is difficult to draw a line. Often
with lack of vitality she is unfit for difficult or continuous labor.
The second class includes those for whom environment is largely
responsible those who have failed through lack of moral, mental
or physical training. For this class society is directly responsible.
Crowded and unsanitary conditions in our cities, the lack of en-
forcement of city ordinances, the failure to enforce compulsory
education laws, inefficient methods in our public school system,
unjust economic conditions and the low moral standard among men
which prevails in our cities, all of these are the things which are
directly controlled by society and which are largely responsible
for the making of the delinquent women who fall into this class.
Society is indirectly responsible for the first class. The burden
has simply moved back a generation, and the children are what they
are because the parents are what they are. Environment and hered-
ity are so closely related that it is difficult to draw a line. Society
is getting to recognize these facts, and is getting ready to shoulder
its responsibility.
While twenty-two states out of the forty-seven states have so
far met their duty as to establish under various names training
schools for delinquent girls, but three states in the Union are ful-
filling their obligation toward the women of the state. It is a
truism to say that if the obligations to the boys and girls were all
properly met there would be no need for the consideration of de-
linquent men and women. But do the best we may, it is likely to
be many years before we can dismiss the latter class from our
minds and hearts.
For centuries society has tried to cure wrongdoing by punish-
ing the offender. That it has not been successful it is only neces-
sary to turn to the records to be convinced. Education for the
hopeful seems to be the only way out. If we are to be logical,
there seems to be an undebatable course open to us. First, to afford
the means of education and training to all delinquents. Those who
have failed through lack of these will thus be enabled to return
to society, self-respecting, self-supporting, law-abiding citizens.
After proper study and effort, those who are too thoroughly dis-
Reformation of Women 39
cased to be cured must be isolated to prevent social contamination,
just as we arc getting to isolate the tubercular, and so prevent the
spread of wrongdoing by contagion and I propagation.
c states have in a measure recognized tluir obligation by
establish; ns where experiments are being made in this
kind ..i of the three states Massachusetts, In-
diana and New York the work accomplished has fallen far short
of wh.it it nii^ht be. States are slow-moving bodies, and it is not
easy to so frame laws, plan exjxrriments and secure the necessary
money to carry them out as to realize ideals at once. But there
is an advance bcinn made, and the hopeful sign is that in a con-
siderable number of other states agitation is active at this time to
secure a change in the treatment of women offenders, and to cstab-
:ti..!i> t'>r their care. Massachusetts was the
pioneer in this work, as it has been the pioneer in so much ti
good. When the reformatory prison at Sherbourne opened, there
was no other institution of this kind in the United States. Sher-
bourne showed the way, but has been handicapped by unfortunate
changes in the law and by its antiquated type of building. Indiana
reformatory prison for women has also accomplished pioneer work,
but is located in a city on the congregate plan. New York, in cs-
hing its reformatory institutions, has profited by the work
of these two other states, and has located its schools in the country
and has built upon the cottage plan.
There is every reason to believe that the states which are about
to start upon this work will take advantage and profit by the mis-
takes of the other three states.
In establishing reformatories for women two points are funda-
mental location in the country and building on the cottage plan.
The tir^t is desirable for reasons of health for the possibility of
varied industries and for opportunities for outdoor life and work.
The second is necessary to enable a proper system of classification
to be put into effect. We are getting more and more to believe
in the healing and restorative effect of life in the country and in
the open air. It is my i>crsonal conviction that growing emphasis
will IK laid on this side of the work, not only in institutions for
men, but in those for women. Our own experience along various
!oor occupations has convinced us of the practicability
and desirability of this. Even if it is not possible to train women
4O The Annals of the American Academy
for outdoor occupations and for country life as a means of liveli-
hood, so much that is valuable in the way of training, to say nothing
of conditions essential for the improvement of general health and
nervous condition is to be gained, that there is little doubt of its
value as a method.
The necessity of a system of classification is almost self-evident.
Women offenders are not a homogeneous body. The accidental
offender may be a woman of refinement, some education, deo-nt
ancestry and with a dislike for what is vile. It is a cruel thing to
compel a woman of this class to daily association with the habitual
offender, and to bring her in close contact with those whose thoughts
are vile and whose language, when allowed free expression, de-
grading.
The younger women who are full of life and spirit can be
best managed by a given method of discipline. Older women, with
resources in themselves, get on best when placed by themselves.
Neither age, character of the offense committed, nor social con-
dition is a safe guide in classification. The ideal thing is the
study of the individual, extending over some weeks, and then the
classification based on character and needs. To carry out an ideal
system of classification necessitates a somewhat expensive equip-
ment. Schoolrooms, workrooms and play spaces should be kept
separate. To secure such facilities it is necessary to persuade the
state authorities that the result, and, hence the money value, of the
returns will be proportionate to the expenditures.
Experience seems to prove that a large percentage of women
offenders are women of little education and who need to be in-
structed in fundamentals. Their industrial efficiency is largely on
a par with their literary attainments. The industrial training to
be taught in a given institution must and ought to depend largely
on local conditions and opportunities for employment after leaving
the institution. It is obviously wasteful to instruct women in occu-
pations for which they cannot be placed or in which it is unsafe to
place them. In different states economic conditions vary, and this
should be studied when planning the industrial work in a given
reformatory.
In every institution for women much stress should be laid on
their physical wellbeing. It is hopeless to try to reform a woman
whose nervous system is demoralized or who has some pronounced
Rf formation of Women 41
physical ailment which unfits her for continuous effort Every
such institution should possess i skillful woman physician, a trained
nurse or nurses and a properly equipped hospital. Urge enough, not
only to care illness, but to afford a place where obscure
cases can be studied \\\\\\ a \u-\v to determining how far delin-
quency comes from physical causes. For all physically unfit a
proper amount of proper work in the open air is advisable, and
open-air exercise and play should in all cases form a part of
In all such institutions religious instruction must be of a charac-
ter to avoid any accusation of proselyting, but in my judgment
reformatory work of any kind will fail unless the spiritual part
iual can be aroused. The awakening of this spiritual
and tlu- direction of the energies along ethical lines, need not
necessarily include any doctrinal teaching. The sensitiveness of
some religious bodies as to what is vital is considerable, and it will
probably be sometime before we are broad enough to make it un-
necessary to h<>Id distinctively denominational services, at least for
Catholics, Protestants and Jews. It is not ea-y to find the right
person to conduct such services, but they should exist in each com-
munity.
Beyond anything that can be accomplished by means of formal
religious instruction of whatever sort is the influence of the lives
of those in charge of these institutions. Too much cannot be said
of this. The old anecdote of Mark Hopkins that he on one end
of the log and a boy on the other would constitute a college, is
pertinent to this point. More important than location or equip-
t is the character of the officers of an institution. No institu-
tion will succeed which fails to include on its staff a majority of
men and \\onun who are devoted to their work from other m<
than that of merely earning a livelihood.
Not less important along modern reformatory lines is the prin-
ciple of parole. The logical accompaniment of a proper parole
system is a truly indeterminate sentence. So far as I know, no
state has as yet been brave enough to attempt this. So soon as an
inmate of an institution is able to go out in the world, and lead
an honest, self-supporting life, he should be encouraged to do so,
under the watchful care of the officers of the institution, and. know-
ing that failure to make good means the return to the institution,
while success means a full discharge.
42 The Annals of the American Academy
From my viewpoint the reform of the offender is only one
phase of the large subject of the administration of justice. The
making of just laws and tlu-ir impartial enforcemc'iit. the >ure and
speedy consequences meted out to those who prove themselves in-
capable of social living, either by probation or by a term in a
training school and the subsequent release on parole, and the in-
evitable corollary of permanent segregation of those who prove them-
selves socially unfit, all are parts of one whole. We cannot say
that any one part is more important than the other. We each have
our work along our special lines, but we each should be able to do
that work better if we can come together and find out what each
is doing, in order that co-operation may be both sympathetic and
intelligent. Only in this way shall we finally secure the ends for
which we are all working.
LLACIES IN THE TREATMENT OF OFFENDERS
! ; . H. N'lHKCKK*.
Superintendent, Glen Mills School. Glen Mills, Pa.
I had in min *e that old fallacy, for so it seenv
the .idim:i! tr.iMon of justice is for the protection of so
that not an effort for the
benefit of any particular individual, but is for the protection of so-
1 tliat our dealing with the accused and the convicted offender
should be such t! :i result primarily in the protection of so-
ciety in general, and not primarily benefit any offender in particular.
Now that may be an extreme fallacy in the view of the wisdom of
fifty years hence, but still that is the idea which had somehow lodged
in my mind after the observation and consideration of twenty-five
years of looking at things that are abnormal and anti-social in the
world. If I had not been driven away from that point, I would have
t the great obligation resting upon the courts in the ad-
ministration of justice, t! dinjj with the offender both before
and after con is to reduce crime. Optimism may say that the
reason crime seems to be increasing, is because we have better sta-
% but somehow or other the people, including some who read
. have a notion that crime is increasing; that there is a
great deal of crime, but that may be another fallacy. Now if our
present methods of dealing witli crime have been a failure and it
continues to grow apace, and society is not protected from the crim-
inal, then the courts of law ami the system of jurisprudence under
i they act, arc not such as are required in order to fulfill their
proper function.
Another equally fallacious notion had l*lged in my brain during
these few years of observation, and that is a fearful looking forward
to a judgment to come had something to do with men's conduct in
the world. Indeed. I helieve I have heard talk of this kind in
churches of all kinds. It has been something like an appeal to the
people to look out, or something would happen if tlu t behave
them notion has been sustained by a little book I have
at home which may be known to some of you. Now, being of that
(43)
44 The Annals of the American Academy
common mind that takes up with the folklore and superstitions of
the ages, I had gotten it into my head that the effect of an act might
deter a man from committing it ; and therefore I should have said
that anything in the administration of justice, either through the lack
of apprehension of or in dealing afterwards with those who have
committed crime, leading to the greater possibility of evasion of the
punishment of crime by making the result of doing the act uncertain,
weakens the deterrent effect of punishment upon the community. I
am perfectly sure that I have known boys in my youth, who would
have taken apples from an orchard across the street, if there had
not been a dog in the orchard. I am very sure of it, because they
lived on the same street that I did. I am sure that young men,
because of the possible effect of certain acts upon their bodies or
reputations, never committed those acts. There were dogs in that
orchard, too. It may be true that those who are influenced by such
motives are only a weak kind of humanity who are not governed by
the pure moral law. We ought to do a thing because it is right,
perhaps, but still there are many who are thus weak, and law-
breakers are hardly the morally strong. I was going to argue that
anything which weakened the deterrent effect upon the community
was to be avoided. I can conceive that you might save a criminal,
and, by the way, it is done, do harm to hundreds by losing and
making uncertain the results which should follow criminal acts. If,
however, punishment of crime has a deterrent effect upon men, and
that idea is not an antiquated notion, then whatever laxness there
is in the adminstration of law, whatever makes for easy evasion of
the penalty of crime, also makes for crime in the community, and
thus does not help society, whether it saves the individual or not.
Those of us who deal with social questions are thinking too
much of the individual. There is the great social being which is just
as full of life and is just as much of an entity as the single individual,
and we lose sight sometimes of the fact that it is the law's business
so to deal with the offender that that great social body shall not
suffer because of eagerness to protect the single individual. I
know it is also an old saying that "Better a hundred guilty persons
escape than a single innocent one suffer." That may possibly be true,
but it is not salutory teaching for society. How many hundred
innocents suffer in every good cause, in every good work, in fighting
fire, in protecting you in bed at night how many innocents suffer
itment of Offender* 45
in order that the community at large may be saved. I tell you those
hundred guilty ones that escape are a terrible incubus on society.
Now if we can impress upon the community the fact that the ad-
ministration of the law sh-.uM U- something like natural law, if we
we could only bring it about
ih.it a man \\..ul,l know that if he took that which did not belong
t hi:-', if !) ! any right of his neighbor or of the state, the
penalty would be just as sure as would be the burn when he put his
into tin tin-. I do not believe he would violate the law often.
an individual disregards the warning of "punish-
ment to come," he is "sent up," and he finds that in everything save
personal liberty, he is better off than ever before; if his desire for
ire gratified, almost to satiety ; if his surround-
in^ are sin h as to lift him above all unsatisfied desires; if in short
he enjoys himself, he will be very likely to come back again.
If. however, law could be self-executing just as natural law U
self -executing, and as moral law is self-executing, where the soul
that MDS <lu-s. it would have a much greater effect upon the indi-
vidual and would reduce crime. Just so long as laws are not self-
executing; just so long as there arc hundreds of crimes committed
ut arrests ; just so long as there are 8,800 homicides and one
and one-tenth per cent, of the slayers are brought to execution, the
will not deter very pronouncedly one who may be subject to
criminal impulse.
e heard some people say that the law is not to punish
crime, but to reform the criminal. \\ e have heard others say that
crime has no moral character, that it is a di>ea>e. Just so long as
we foster these notions in criminals, the : ill be disastrous.
There was a little fellow in Camden who was guilty of a most heinous
offense, and when he was talked to he said. "\\ ell. you know, I never
was very strong, I m t further than the second grade; I do
not know that must be the reason why I did this thing." Where
did a child of thirteen get such a notion? Is it far to seek when the
newspapers are so often filled with advanced thinker's expositions
of the innocence of criminals and the general applause given to such
doctrines by the large part of those publicly identified with social
work? So long as the public neglects and minimizes the moral
quality of a< >wn by an illustration in one of our papers,
one that we all swear by in Philadelphia, crime will not grow lest.
46 The Annals of the American Academy
It was a picture of a street car surrounded by a crowd, with several
well-grown boys and young men in the foreground, and under it
thi> line. "The usual way the riot begins, some thoughtless boy throws
a stone and starts a riot." Is it any wonder that the boy and the
man do not think it a very serious thing to violate the law, when it is
minimized in that fashion? I am not criticising that paper, for I
am sure there are many people in this audience who have talked
more foolishly than that. The fact is, if we are to reduce crime,
we must bring every influence to bear that will prevent crime, and
not make it less serious by sugar-coating its consequences after
belittling its viciousnc^v Hut all of this is not to say every thing
possible should not be done to set right our erring brothers.
II. Juvenile Courts and the Treatment of
Juvenile Offenders
(47)
Mil Jl'VKNILE COURT ITS LEGAL ASPECT
BY BEKNARD FLEX NCB,
Looasvillc, Ky.
The framcrs of the Illinois legislation of 1898 and 1899, which
the establishment in Uiua^o of the first juvenile court in the
United States, hud in mind a distinct legal principle upon which
legislation was based. The child, they said, henceforth shall
be viewed as the ward of the state, to be cared for by it, and not as
the enemy of the state, to be punished by it. The court thus be-
came, in the minds of its founders, a concrete expression of the
s obligation to the child ; a recognition that the child, in court
as the result of conditions not of his own making, had a valid claim
against the state, and was to be saved to the state and not punished
by it. This principle is not new ; on the contrary, it is old, and is
found in many of the early English chancery cases.
The primary legal question involved, the one that we always
meet in the thousands of cases coming before the juvenile courts.
involves the rii^ht of the court to control the custody ot the child;
to take it from its parents or guardian upon the broad ground that
the welfare of the child and the good of the state require that this
be done. The whole structure rests upon this proposition. Courts
of last resort in this country, when called upon to construe laws
creating juvenile courts, have uniformly upheld the right ; they have
rested the decisions upon the broad principle that the court is exer-
cising a power used from the earliest times by the English chan-
cellors. In the old cases the chancellors went so far as to hold that
the right to take the child from the custody of its parents existed
where the father ill-treats or shows cruelty to his infant children,
or is in constant habits of drunkenness or blasphemy, or professes
atheistical or irreligious principles, or where, living in debauchery.
his domestic associations are such as tend to the corruption and
of his children.
It is claimed by many lawyers that the jurisdiction exercised
by the juvenile court is a usurpation of power: that the precedents
do not justify the procedure; that, although we do find the English
(49)
50 The Annals of the American Academy
chancellors removing children from the custody of worthless pa
rents, it was never done under circumstances analogous to the cases
presented in the juvenile court ; that, whereas it i> true that courts
of equity would undertake in certain cases to disturh the parents'
custody, it was done only in cases where the child had some prop-
erty interest involved; that, the question of the preservation of the
child's estate being at issue, the chancellor would assume jurisdic-
tion for the purpose of protecting the property of the child, and, as
a mere incident of the exercise of this jurisdiction, would throw
his protection around the person of the child ; that where there was
no property involved the chancellor could not step in to save the
child. Protection of the child itself could follow only where it
had property that needed protection. The question as to whether
or not the child has any property is not material ; that, given a
particular case involving a dependent or delinquent child, the court
will not hesitate to remove the child if the facts call for it. The
supreme question is: Is the parent a fit person to continue as the
guardian of the child, and if not, what should be done with the
child?
What is the background for this, as found in judicial prece-
dent? In 1790 we find a case (Creu/c rs. Hunter, 2 Bro., C. C,
449) in which the father's affairs became embarrassed ; he became
an outlaw and resided abroad ; the mother had been living apart
from her husband, and had been directing the child's education. It
appeared that gross charges had been urged both against the father
and the mother. Lord Thurlow restrained the father from inter-
fering with the education and care of his child, observing that he
would not allow the color of parental authority to work the ruin
of his child. The jurisdiction of the court to protect the child being
questioned, the Lord Qiancellor stated that he knew that there was
such a notion, but that he was of the opinion that the court had
arms long enough to reach such a case and to prevent a parent from
prejudicing the health or future prospects of the child, and that
whenever a case was brought before him he would so act.
The judgment indicates the existence of the power to protect
the child against a worthless guardian for many years prior. It is
striking that a principle so enlightened should have been announced
by a judge who was notorious in his day for his immoral and
profligate habits. In 1828, however, Lord Eldon (Wellesley vs.
The JuvmiU Court \
v, 2 Russ., i; 2 Bligh N. S., 124), delivered a judgment
which has become the leading authority in England and in this
country on the whole subject. In that case the Lord Chancellor
took from the Duke of Wellesley his children because of his profli-
gate and immoral conduct It was sought to prevent the Lord
Chancellor from interfering as between the father and his children
because no property interest was involved. Lord Eldon, in an
elaborate discussim. deposed of this contention and place*!
judgment up. -ii the broad proposition that the crown is the ultimate
parent of the child, and that where the parent by nature has, by
nduct, forfeited hi- right to have the custody of his child, the
ns patri<r, through the chancellor, will step in and pro-
tect the child by removing it from the environment that must make
for its undoing.
The greatest difficulty that confronted the early chancellors.
c the custody of the child was disturbed, was how to exercise
the jurisdiction so that the child could be maintained. \Vhcrc the
parent or child had property, it \\as simple: An order was made
ig apart some of the estate for the purpose of maintenance.
But where there was no property the court was powerless to reach
out and protect the child, for the reason stated by Lord Eldon in the
case to which I have referred, "because the court could not take
upon itself the maintenance of all the children in the kingdom."
This defect has been met in later days in two ways. Courts of
equity have compelled the father to contribute a certain amount
monthly or yearly for the support of the child, as was done in an
early case in Illinois (Cowls ; '>, 3 Gillman), and is now the
universal rule, and the state itself has provided the means, by estab-
:ILJ institutions to which children may be sent, and by providing
further by statute that children may be boarded out under certain
It will be seen, therefore, that the difficulty of \\ '
the early chancellors complained has been remedied by simply enlarg-
ing a power which has existed for centuries, and by providing
through state aid the means by which the power may be exercised.
This legislation i tly in line with the theory that the crown
in Kngland. and the state in this country, i- the ultimate parent of
the child
In so far. then, as the child, known under our laws as the de-
pendent child, or the child having improper guardianship, is coo-
52 The Annals of the American Academy
cerned. the lawyer will be compelled to admit that the power exer-
cised by the juvenile court is the same as the power exercised by
courts of equity, and that there is abundant authority for it. \\ith
the lawyer convinced of the soundness of our position regarding the
neglected child, there is still the question of the delinquent child
to be disposed of. What authority, he ask-, i- there for handling
the delinquent child under this legislation? He is a lawbreaker;
he is an offender against the public peace; there is but one way
known to the law of reaching him, and that is through a conviction
for a specific offense. This point of view is due to a misconception
of the principle underlying the legislation. The dominant idea in
this argument is the act complained of, the thing with which the
child is charged. No distinction is made in this point of view be-
tween the offending child and the adult criminal. They have both
violated the law, and they must both be punished. But, as a matter
of fact and history, even at common law, a distinction was made
between the two. A child of seven had reached the age of criminal
responsibility, and below that age he could not be held to be respon-
sible for his criminal acts.
From time to time statutes have been passed in this country
and in England fixing the arbitrary age-limit below which the child
is not to be deemed criminally responsible, and above which he may
be punished as an adult for his wrongdoing. The juvenile court
legislation carries this idea forward. It raises the age limit, and
says that a child of sixteen or seventeen, or under, for violations of
law, shall not be deemed a criminal. At common law and in those
states which have raised the age at which criminal responsibility be-
gins, the child who is within the age exemption cannot be brought
into court. This is the specific addition made by the juvenile court
legislation. It thus establishes the principle that children under the
jurisclictional age are neither to be treated nor punished as criminals
for violations of law, yet they shall not "go quit," because they
are exempt under the statutes. The court undertakes to apply the
same procedure to the delinquent as it would to the neglected child.
Proper regard for the principle underlying this legislation demanded
at the outset that the court ; i. e., the judges and every part of the
judicial machinery, be socialized. It is striking that, while the West
has made consistent effort to work out the thought behind the
movement, in many places in the East the attitude toward it is
still hostile.
The Juvenile Court 53
These children's courts continue to be mere criminal
In tin- r courts every detail of the criminal law is worked out
agaii !nl. I. The sole question, so far as the child is con-
. "Did he commit ilie act with which he is charged? Is be
Kuilty of larceny, or burglary, or robbery, as the case may be?"
An. I, following the ri^i.l rules of evidence, u' the crime of larceny,
burglary or robbery is not technically made out, the child U dis-
1. It le out, he is c< fined, committal, s-
paroled to a day certain, or sentence is suspended. Back of the
appearance of the chiM in court tin-re may be conditions that cry
for com-' This is not, however, the material part of the
proceeding. This, th c ma in jxjint of interest in an enlightened and
humane public policy, is a secondary consideration. The inquiry
.reeled to tin- consideration of the evidence bearing upon the
:ii^sion of a crinu-. Notwithstanding it lias been generally con-
ceded that the proceeding is equitable in its nature ; that in it the
as the ultimate parent of all children within its borders, stands
'.is; that it is not a criminal trial wherein the outraged
state demands toll from the child for a wrong against the peace
and dignity of the state, though we still find in the juvenile court
some reminders of the older idea of a criminal trial, and certain
suggestions indicating the hesitancy with which the framers of
tlu-se laws moved in drawing them.
The right of trial by jury, for instance, is given to the child
unless it is waived. This was done, in a large measure, on the
theory that courts of last resort might hold that the proceeding was
criminal or quasi criminal, and that, therefore, the constitutional
guarantee of a jury trial to the accused could not be taken from it.
As a matter of fact, whenever the courts have been called upon to
con.st have declared, in no uncertain terms, that
the constitutional provision of a jury trial is not violated by a fail-
ure to have a jury pass upon the evidence. The number of cases
in which juries arc called is negligible. The provision is, to all
intents and purposes, a dead letter. For this reason, and because
I believe that every part of the law that involves a criminal con-
on of it should be eliminated. I would strike from the law all
that relates to a jury trial. In this new legislation I would not
leave a vestige to be pointed at by the advocates of the older method
as an evidence of adherence still to criminal procedure.
54 The Annals of the . : . /'(J(/r;;v
I would, therefore, write more clearly into these laws than has
yet been done, the beneficent principle that the proceeding involving
the child is not criminal, and that the child, furthermore, itself, is
not to be treated as a criminal. We have stopped short of what it
is possible to do. The laws now define "a delinquent child" or a
"wayward child" or a "juvenile delinquent" as one who does
any of the acts inhibited in the law ; and the judgment at the con-
clusion of the hearing is that the child is a "delinquent child"
or a "wayward child" or a "juvenile delinquent." In other words,
while we have greatly softened the proceeding, it is, nevertheless,
difficult to get away wholly from the idea that it is a proceeding
involving a charge against the child, and while we have, likewise,
softened the character of the judgment, it remains still a judgment
against the child. I would, therefore, rewrite the sections of the
that define a "delinquent child." Instead of saying, as we do
now. that a "delinquent child" or a "wayward child" or a "juvenile
delinquent" is one who violates any law of the state or city, or village
ordinance, etc., I would say any child who violates any law of the
state or city, or village ordinance, who is embraced within any of the
numerous things set out in the law, shall be deemed to be a child in
need of the care and protection of the state; and instead of a judg-
ment against the child, adjudging it to be a "delinquent child" or a
"wayward child" or a "juvenile delinquent," the judgment should
follow the original definition and merely adjudge that the child is in
need of the care and protection of the state.
The language, as it now exists, is a concession to conservatism,
made at a time when it was thought the courts might insist upon
a specific charge being made against the child. The language above
proposed is a logical development of the chancery principle upon
which, the whole structure rests. It merely means writing more
emphatically in the law, than now appears, the principle that the
whole proceeding is for the purpose of protecting the child. It
would take away the last remnant of any stigma that attaches to the
judgment entered in the case.
It may be suggested here that, under the definition proposed,
it would be obviously unjust to include the child variously called the
dependent or destitute child, the child whose case presents to the
judge the single question of relief. Most of the laws, as they exist
now, embrace such children, and there are few courts in which cases
The Jutfntie C< 55
.:s kin* I do not now arise. They are not properly cases for the
t, and should not reach the court. They should be cared for
by organize* 1 relief agencies and should reach the court only when
ton of parental neglect enter** in
may modify and soften the proceeding in court to the
greatest pos-i -it and take away from it all of the Ming. It
will, m \t -rtlicless, be a grave injustice to the court and to tin-
Of ! -ntutr child to bring it into court. The jurisdiction,
as I houid be narrowed so as to exclude wholly cases of
this kind.
For the purpose of emph.iM/ing still further the nature of
the proceeding, one step more should be taken. We need to get
away, more > from the criminal terminology, still em-
ployed. With striking it ncy, we institute a proceeding in
:i the idea dominant that we want to protect the child,
no stigii publish elaborate
reports dealing with every phase of crime, from idling and loitering
ic worst offenses against puhlic morality. I confess that I am
unable to see any possible value that can attach to the fine dis-
tons of the criminal law as illustrated in the published statistics
of the juvenile courts. An examination of the reports discloses
the fact that the cases are sub-divided according to the rigid defini-
tions of the criminal law. We find grand and petit larceny, burg-
lary, robbery and arson and the entire list of crimes. The classifi-
cation is adhered to in some courts on the theory that the time re-
quired for the cure of the child is to be determined in some measure
by the act with which the child stands charged. In practice, how-
ever, it is doubtful if this theory is worth much. The act is merely
the local evidence of pathological social conditions. The conditions
that are responsible for the appearance of a child in court on the
charge of loitering may take quite as much time to correct as those
embraced in a charge of robbery. As a matter of fact, some of the
most difficult cases presented to the courts are those covered by the
inclusive term "incorrigible" or "habitually truant" from school.
The criminal terminology is another survival of the older
method. It is adhered to because there is still doubt as to the nature
of the proceeding and because the feeling still persists that
necessary to charge the child with the doing of a particular act.
The statisticians will, doubt lc that we must cling to the old
56 The Annals of //;.* American Academy
classification. If we are to continue to deal with the child as a
criminal and in terms of crime, I grant we would have to continue
to use some such terminology; but with the attitude of society to
the offending child completely changed, some classification in har-
mony with the spirit of the law should, and can, be worked out.
It is clear that what I have said concerns the court, in the
main, from the legal viewpoint. Important as this -ide is, the
measure of the court's work in a community will depend on the
efficiency with which it is administered on the social side. The
probation office, the detention home, the clinic, each carefully and
systematically organized, with efficient officials, go to make up
the machinery by which the real problems confronting the court
will be worked out.
A court which endeavors to do its work without such a force,
or without realizing its importance, is but a poor makeshift and is
doomed to failure. On the other hand, a court that realizes the
importance of these functions, and that, through them, touches all
the larger social activities in the community, is fulfilling its real pur-
pose, and such a court must become a powerful agent in uncovering
hideous social wrongs.
DISTINCTIVE FEATURES OF THE JUVENILE COURT
BY HAJTDfOl II 1 1 AIT. LL. D.,
Director, Department of (L.I.I Hclpm*. Kuteli Safe Foundation, New York.
The question often arises: How does the Juvenile Court, as
established m Illinois in 1899, differ from the children's courts which
were established earlier in Massachusetts and New York? The
essential difference is that the children's courts of New York and
Massacht .re criminal courts, in which it was necessary to
convict the child of a crime before he could be paroled or could
enjoy the remedial influences of the court
Hon. Harvey B. Hurd. who was the author of the Juvenile
Court Law, made provision for taking children's cases out of the
>n of the justices of the peace, the police courts and the
criminal :ig the jir D in the county courts and
the circuit courts. The law made provision for dealing with these
cases, not as a criminal proceeding, but as a chancery proceeding.
in which the child was treated not as a prisoner at the bar, but
as a ward of the state. The statute was carefully drawn, so as to
free the proceedings from all taint of the criminal court, and pro-
1 that, where children's cases were brought before justices'
courts or police courts, it should he the duty of the justice to trans-
fer the case to the Juvenile Court. Under the Illinois juvenile Court
Law, there is no indictment or complaint, and the child is not accused
of any crime, but a petition is filed alleging a condition namely, the
condition of the delinquency or the condition of dependency.
As a rule, no warrant is issued, but a summons is issued to the
parent, guardian or custodian of the child. The summons runs as
follows :
"We command that you summon A. B. before the Circuit Court
of Cook County, on the iQth day of March. 1910. at 10 o'clock in
the forenoon, to answer under the petition of C. D., alleging that
E. F., now in the custody and control of the said C. D.. is a delin-
quent child, and that the said C.D. then and there have said child in
open court."
The law provides that a warrant may issue only on affidavit
(57)
58 The Annals of the American Academy
that such summons will be ineffectual to secure the presence of the
child; but in ordinary cases the child is not brought in court by a
policeman or deputy .sheriff, but by his parent or guardian, or by a
probation officer. \\ith. -ut a warrant.
The child is not impri-.>iK .1. but the law expressly provr!e> that
no child shall be kept in any jail or police station, but that, if neces-
. he shall be kept in some suitable place provided by the city or
county outside of the enclosure of any jail or police station.
When the child is brought into court there is an absence of
criminal proceedings. There is no prosecutor present, but the law
provides that if practicable a probation officer shall be notified in
advance and shall be present in court "to represent the interests of
the child." The law provides further that the probation officer shall
make such investigation of the case before and after the trial as the
court may direct.
In the trial of children's cases in the juvenile court the ordinary
rules of evidence are not enforced. Witnesses are subpoenaed, but
the probation officer is allowed to testify to hearsay evidence ; what he
ha-; learned from the child, the parents and the neighbors, the police-
man on the beat, the school teacher, the employer. In many cases the
judge halts the proceedings and calls the child to the bench and allows
him to tell his own story in his own way.
The law provides that a jury may be called at the discretion
of the court, or on demand of the friends of the child, but this jury
consists of six men, not of twelve. The jury finds no verdict as to
the innocence or guilt of the child, but simply finds the child delin-
quent or dependent, and there its duties cease. There is no verdict
of "guilty" or "not guilty," but a verdict as to the condition of
the child.
When the child is found delinquent, no sentence is pronounced.
The judge has a wide discretion. He may return the child to his
own home, under the friendly watch-care of a probation officer.
He may instruct the probation officer to find a foster home for the
child. He may commit the child to the friendly care of some child-
helping society, or he may commit the child to a reformatory or
some other institution not for punishment, but for care and train-
ing. The judge may retain jurisdiction over the case for the further
watch-care and guardianship of the child.
It may be said : Why should we disregard the sacred rights of
Di 59
the child and remove the safeguards which are provided in
trial court against the introduction of hearsay evidence? The
reason why it is right to do this is that the j.r.. .. : :n g is not
1 In- Johnny Jones, but The State for Johnny Jones. The
ig is not agan : tin dnld. hut in In-half of the child. The
effort of the judge is not to determine the guilt or innocence of the
child, hut to obtain such information as will enable him best to
exercise those chancery powers of guardianship and friendly care
i arc conferred upon him by the law.
While the child is not on trial in any criminal sense, it often
happens that the parent unexpectedly finds himself on trial. The
<t her comes into court, holding hy the hand a little boy
of nine or ten. He says, "Judge, your honor, I wish that you would
do something with this boy. 1 cannt do anything with him. lie
t mind me, he runs the street nights, he runs away from school;
1 v. Mi you would put him somewhere where they will make a good
boy of him."
Ik- case proceeds, such a father is often treated to a very
great . The judge calls him up. and ftftys: "I find from the
here given that it is you who are responsible for the de-
linquency of your child. You have allowed the boy to run the
night, you have failed to keep him in school, you have lived
in a ible neighborhood, you have spent your money in drink
and neglected your family. I find you guilty of contributing to the
delinquency of thi> child, and I herehy imjxjse a fine of $100. I will
nd this fine on condition that you immediately change your
this point. You arc to see to it that he
goes to school, or you are to keep him out of bad company, or you are
to move into a better neighborhood. r you are to change your occu-
pation." It is often a revelation to a neglectful j discover
!* held responsible for the care and training of his
. child.
Judge Julian W IgO, called at! :i a recent
address before the American Bar Association to the fact that al-
1) the New York law was IQ changed in I ox*), that a child
brought before the childi >hall not be deemed guilty of
v rime, but of juvenile delinquency only." "this would seem to
effectuate me hange in the name of every crime or offense
from that hy which it was heretofore known to the crime of juvenile
60 The Annals of the American Academy
delinquency." In other words, the proceeding continues to be a
criminal proceeding, and the child carries the stigma of a criminal
conviction.
The essence of the juvenile court idea, and of the juvenile court
movement, is tlic recognition of the obligation of the great mother
state to her neglected and erring children, and her obligation to deal
with them as children, and as wards, rather than to class them as
criminals and drive them by harsh measures into the ranks of vice
and crime.
MOTIONS OF Mil Jl'VKMLE COURT
BY HON. \\IIIIAM n. DELA<
Judge of the Juvenile Court of th< tibia. Washington.
The establishment of juvenile courts is the most important de-
velopment in the lu-lil i.i junprudeme during the last decade. The
juvenile o.urt was organi/ed in i Incago, July i f 1899. There.
uilc court is presided over by one of the judges of the
. a court of general, unlimited jurisdiction. The child
is not regarded as a criminal. It i>. rather, looked upon as needing
the fostering care of the state by reason of it> delinquency, which
nces the failure of its natural parents to train it t good
The court proceedings, as far as possible, arc similar
to proceedings in ch.. In Philadelphia. New York and else-
o, the c a criminal court. Hut, whether equitable or
nal, the attitude of the court toward the child is always the
same n- fa judge inflicting punishment, but the attitude
of a lather toward an erring child.
Hart did not tell you that the probation officers are used by
the judge as investigators to obtain for him the sociological data
necessary, that he may correct the wayward children. To do
the judge must know of the environment of the children. There-
fore, prior to the children'- arraignment in court, probation officers
are sent into their homes to learn the conditions there. Oftent
develops that well-grown children, of both sexes, have the same
sleeping apartment, sometimes even the same bed. To provide the
additional room required for decent living, we often find the earning
capacity of the family ample if the money made were not dissipated
in vi ture. The very poor are encouraged to provide at
least cheap screens, that the amenities may be somewhat possible.
:nle an unknown quantitv a force always to
be reckoned with. Heredity is not a determining force, for God
is good and I believe that He gives us all a fair chance.
th its parents, consideration of its personal 1m-
tory and its careful consideration of its environment, and
close observat d condit urt. in a sympathetic
(60
62 The Annals of the my
investigation of the child's shortcomings, seeks to find out and erad-
icate the cause of the child's violation of the law. While main-
taining the respect and even the wholesome awe of tin- child for
the law, the court proceedings are bereft of much of the formality
observed in other tribunals.
It would be a dangerous thing to disregard the rules of evidence,
and these rules are observed, of course, in the juvenile, or children's,
court. It is arranged so that the child may come quite close to
the judge, that the judge may both reassure and have a better op-
portunity to study him.
Juvenile court systems tend to diminish, in a very large degree,
the work of grand juries and criminal courts. This alone saves
hundreds of dollars of expense to the community. In addition, a
large proportion of the children tried in juvenile courts are handled
by the method of probation which obviates, to a very great de-
gree, the necessity for their incarceration at the expense of the
public in institutions. While on probation, these children are under
the supervision and the custodial care of the court, but are suffered
to remain at their homes, where the cost of their nurture and train-
ing naturally belongs. The actual saving in dollars and cents, by
reducing the number committed to institutions, is no inconsiderable
item, and frequently amounts to as much as $70,000 per annum in
cities of 300,000. This saving is not all, for the earnings of these
children while on probation add much to the wealth of their com-
munities.
The work of the juvenile court is not only remedial, but
preventive. The juvenile court is the most promising point at
which to arrest the rising tide of crime. Its whole aim is to save
the child from a life of crime and the conservation and preservation
of the child to himself, to his parents and to the state. This work
has the superlative value of the ounce of prevention.
Probation is character-building. That the probation system
may be successful, the judge must take an active interest in its
workings and be, in fact, though not in name, his own chief pro-
bation officer. No better social service is done to-day throughout
the country than that rendered by probation officers.
Another great saving to the state is also made by the careful
investigation of the cases of alleged dependents seeking admission
into institutions maintained at public expense.
Functions of tlt<- JuvemU Court 63
The exposure and punishment of parenul neglect is a feature
stops much violation <>f the law; for parental neglect and
parei :iiciency are prolific causes of the wrongdoing of the
i hi MI.-M . When homes are found to be morally t. -am chil-
to good citizenship, I thank God that there are c utsts-
ns to ret them, presided over by such
earnest and cultured and zealous souls as Mr. Nibecker, to whom
tencd this a tier noon.
The enforcement of the parental obligation to support the
.!y is another pn- . feature of the work of many juvenile
courts. The family is the real unit in the state. If the children
arc fed in their homes they are less hkely to beg or steal. In Wash-
ington, during the past three years, over $85,000 was thus collected
from delinquent hushain: -1 paid through the clerk
c court to wives for the benefit of these children, without any
deduction for costs or otherwise. This result has been made po
Ml.le by the co-operation of the police force, under whose super-
visory care these men found guilty of non-support are released
r on probation or by parole.
I mally, the juvenile court is the natural center in the com-
munity around which to group all the social efforts made to remedy
defective home conditions, to safeguard the health and morals of
the young, and to insure the children an atmosphere friendly to
the development of the highest citizenship.
THE RESPONSIBILITY OF PARENTHOOD
BY HON. ROBERT J. WILKIN,
Justice of the Children's Court, Brooklyn, N. Y.
It i> interesting to us all who have given any consideration to
the present provisions of law, relative to the care of neglected, des-
titute or delinquent children to notice the really recent recognition by
the public of the necessity for the special study of this subject. Some
one has said that if the present age was to be recognized in some
special way. it perhaps would best be known as the "Children's Age,"
for such an awakening to the necessities for their special care and
protection has not been before seen in this world, so far as we know.
To be sure, the law had considered the disposition of the prop-
erty of infants and made special effort to safeguard and protect this.
It had provided also with a great deal of precision for the care,
education and happiness of those children who were endowed with
property and was jealous to look after their rights. The law had
been particular to regulate the relationship between parents them-
selves and their children; in fact, it seemed that the law considered
every phase of the question of the interest of a child, so long as
he or she might be entitled either by relationship or property rights
to a financial or social standing. If, however, none of these par-
ticularly interesting and desirable qualifications being in existence,
the child should be found destitute either on the highways or el-e-
w here, should it be in the custody of a drunken or otherwise brutal
parent or guardian, should it be under any other disability, the law
seemed to feel that it was none of its business, nor was it called
upon to concern itself in the regulation of such cases as might occur.
This was not so much due I think to the fact that the peoples of the
world were less considerate of the unfortunate child and its suffer-
ings, as it was to the fact that the legal system of government in
most countries was based on the plan of the family, and, therefore,
the laws all pointed to recognize, uphold and regulate this particular
phase. Even in this country, which sought almost from its begin-
ning to be developed along the line of the special protection and
(64)
The Rfsponsilnlity i.f rarttttlwod < \
benefit of those who were apt to suffer from injustice, the subject
was not developed into a satisfactory law until quite recent
The State of Massachusetts, I believe, was the tirot one to
recognize this new condition, and in 17 y a statute was passed pro-
\:dm- th.it " \\hi-n persons w lc or ncj: to provide the
r the sustenance ami support of their children, such
childmi might 1>< -i charge of the overseers of the poor and
bound ot. -!e Riving of the children "a decent
t liii-!;.i:i e.l Later, and up to about 1825, other stales
passed statutes providing f<>r the binding out of such children, and
also their commitment to poorhouses when they were found beg-
ging in ti or whose parents were begg
The first statute in the State of New York provided for the
establishment <>f the Society for the Reformation of Juvenile De-
linquents, in iSj.j. and this society had a building where the old Fifth
tie Hotel stood on Twenty -third Street and Fifth Avcm.
Ne\v :ty. which \\us known as the "House ,,f Kefn-.
lowers were given the justices in the city to commit children
to this institution. From 1824 legislation in relation to children was
not generally iiu .md no particular idea seemed to be coo-
rd even in the legislation that was enacted in any of the states,
except to care for the destitute or whose parents might be de-
linquent.
The origin d ideas and the date where first applied
Uen an interesting subject for study, and some writers
held that what appeared to be the beginning of a thought
simply the evidence of increasing interest in many sections
which had only found its development and announcement in this
ular place. Such, in all probability, was the condition in rela-
tion >ecial study of children and child legislation.
r the termination ,f the War of the Rebellion the United
s took on a new activity along lines that had not been devel-
oped or considered prior to that time. The great excitement re-
garding human slavery which culminated in that great war was
subsiding and the mental activities of the people were allowed to
ler other phases of domestic relationship.
The organization of the great S.vutv f.-r the Prevention of
!ty to Animals by Henry Bergb. in the ! cs. suggested
to the people of this country, and. in fact, to the world at large, the
66 The Annals of the American Academy
thought that the rights of the individual human being was not the
only subject that should be considered by tin citizens of tin-
Commonwealth. I have no doubt at all, as the origin of the to
Society for the Prevention of Cruelly to Children indicates, that t he-
idea of the protection of animals, which was spreading itself through-
out the states of the Union, also attracted to the attention of people
the h- cruelties that were enacted against children. You will
remember the story of the little child in a tenement of Xew York
whose sufferings \\ere di-c >vercd by the volunteer charity
worker, and wh ua- rescuecl and her tormentor punished through
the agency of Mr. Bergh's society. You will remember also that
when thi^ Ifl published in the papers it attracted wide attention.
and also tended to discover many other cases of a similar character.
The Society for the Prevention of Cruelty to Animals became over-
loaded with these complaints for investigation, and finally Mr. Bergh,
together with the Hon. Klbridge T. Gerry, the counsel for the society,
and a life-long friend of Mr. Bergh's, organized at a public meeting
the now well-known New York Society for the Prevention of Cruelty
to Children. This was in 1874. The Legislature was applied to in
1875 to enact the first statute for the protection of children from
cruelty. Since that time legislatures of the country have been study-
ing carefully, and with great steps of advancement, the subject of
the protection and care of children.
It is interesting to note also, as stated by President G. Stanley
Hall, of Clarke University, in a recent article, that the movement
"for the scientific study of children began barely thirty years ago
with a comprehensive census in Berlin of the contents of children's
minds upon entering the public schools of that city." On the one
side of the Atlantic the organization of a great movement to protect
from physical cruelty the children of the land, and on the other side
the beginning of a great movement scientifically to study the welfare
of children.
Since 1875, then, legislation in the several states, and, in fact,
in the world, has been secured to protect and benefit children. The
idea also of recognizing in the state its right to look upon the child
with the parental idea has been the foundation thought and authority
for this legislation. The state has assumed in the first place the
protection of the child from physical abuse on the streets and in
public, as is evidenced by the legislation against assaults; the use
Th Responsibility o\ iood 67
of cluMmi in dangerous performances; as street beggars, or in
licant <x , and the various other statutes \% Mrcn
puhlul) tuiproperly used or abused. It protected them from
ill use in the various occupation . it protected their health as sug-
gested by the health 1 it pr- .ti-ri.-d t!i -:r nioraU by making
M more SCVe the puhh- e\p. chil-
dren, increasing the age of consent from the common law period of
. cars to sixteen CM
tild d<> this was eminently proper, because if
the chilil L;I' -ill- MM! or womanhood with weakened mind or
body or in a diseased condition, the state would first be dcj>-
and protection of : partu ijation as warrior
or mother and would be compelled for its own protection to support
it n" diseased and incap The principle of self-preserva-
compcllcd the state to assume the attitude of pater patrur,
and the ! n naturally follov.
The -n of children even down t. t!ie ; resent
including the beneficent leg- lishing children's or
iile courts, have been based on this fundamental idea, and have
in their workings rendered excellent service. Natural selection, how-
or perhaps we might say the laws of nature, provide a some-
difTerent aspect with which to view the parent on one side and
lie other. The state, for its proti :ould prohibit
the ill use or neglect of the child which is some day to become the
i, but in doing so the fundamental idea of the family should not
be forgotten. \\ ith few exceptions the legislation has been along the
line of caring for the child in one way or another, relieving
the parent from the responsibility of his duty, and placing upon
f the public, in other words, the st ate. the expense and
ire of the child. The public school system, that most excellent
institution of the people of this country, which we are all proud to
point to as peculiarly a development of our system of government, in
v places upon the shoulders of the state the responsibility of the
ation of the child. While it is true that the parent by the laws
must pay a few dollars in taxes an- >osed to oversee and assist
the child in its home studies, at the same time in reality he is brought
up to the idea that the state will educate the child, that the in-titu-
\vas established w ith that idea, and the parental responsibility is
so far reduced.
68 The Annals of the American Academy
The stepping in by the state with the strong arm of the law
to pluck the ill used or neglected child from the home of the drunkard
and place that child under the care of some public department or
some quasi-public institution, is another movement by the state as
the parent of the citizen child to relieve the natural parent of his
parental !>ility. To be sure, the laws provide for the pun-
i>hment of the neglectful parent; to be sure, the law, while it does
not say so, probably contemplates the reform of the drunkard and the
criminal, and the ultimate return of the child to the reunited family.
but what does the law do directly toward this end ?
I am not unmindful of the fact that the laws to-day are con-
sidering the reformation and the rebuilding of the person, rather
than the old idea of retaliatory justice, and I am also not unmindful
of the excellent effort that has been made in some of the states,
notably Ohio, with its truant fathers' legislation, to which so much
was added by the efforts of the late Hon. James M. P.rown, of
Toledo, nor of the United States statutes in force in the District
of Columbia, which are producing so interesting and beneficial a
condition under the wise administration of the Hon. William H.
DeLacy, justice of the Juvenile Court, to whom, to my mind, more
than any one else, is due the credit of bringing about a practical
exhibition of the idea of fixing parental responsibility.
The law in the District of Columbia, as you probably all know,
provides that the parent shall contribute to the support of his child,
and his failure to do so renders him liable to commitment to the
prison where under a fiction of the law he earns a certain sum per
diem, which sum is paid over to the wife or the caretaker of the
child, who in a way is repaid for the care of the child. This law,
I understand, was originated by the late William 11. P.aldwin, of
Washington, and deserves the serious consideration of all those wh->
are interested in the child problem. I am informed that during the
past year some $38,000 was collected from fathers for the care of
their children ; of course, most of this money was collected from
such parents as were free and could find work to do, hut the
ability of the state to apply a measure to enforce this payment prob-
ably in its entirety made the possibility of receiving this money a
realization.
Adult contributory delinquency legislation is being considered
by many of the legislatures of our states. It seems to me that the
The Responsibility of Parenthood 69
has gone nearly as far as it shouM in direct legislation toward
nng i In- condition of and protecting frimi ill treatment the child.
The attitude -I /><//<-r fiitrttc should IK- relinquished somewhat and
miturtr should IK- dc veined.
In the some years ago, under a strong
opposition, we had a bill passed \\!n h provided that the fattier of
a child who was being supported at the i -\IK-IISC of the public au
tli. Titu -x. mi^lit IK- summoned before a magistrate to inquire into Ins
ability t<> contribute in whole or in part toward the support of the
child. \ I before, this measure met with opposition, and
\\itli strong op|H>sition, but the hill became a law. \\
recognized and pi in a few of the larger cities, it is practically
^1 letter so far as the general Mate is conccr:
The responsibility of the mother, who has a regular financial
:ie. with children in institutions at public expense; the re-
ep-parcnt, who has assumed the marital rela-
tionship with tlu f children similarly placed, has not as yet
been considered, hut it is the thought of the speaker that this
phase of the relationship should receive the serious study and con-
sideration of the thinking people of our country.
I am well aware that the tendency of the times is to forget the
individual and study in concrete masses. I am well aware that it
is much to commit to an institution out of hand the ill-
1 for or neglected child, and pay the small per capita per an-
num, than it is by probation or dealing individually with the child's
> retain in that parent the sense of his parental TffMmft-
hihty and perhaps return to the child a reawakened parental love.
\vc prepared to recognize the state as the parent of all children
to the exclusion of the natural guardians, or is it best for us. while
it \\ill in the first instance require much more care and effort, to
u a close relationship to the natural parents and thereby secure
the natural child as the basis for the citizen?
It seems hardly necessary for the writer, who has for so many
years been in touch with the charitable institutions of the great
test that be in no way would even "^f* 1
a criticism of the most excellent work done by these institutions
which have these many years received in such large number the un-
fortunate children of thoughtless, if not criminal, parents, for such
is not his intention. lie bows his head with respect and admiration
7O The Annals of the .-I merit an
to the services that have been rendered in the Christian spirit by
the devoted sisters, the volunteer and paid caretakers, and all who
have done so much to benefit tin- little ones in their care.
The i'Ka -i-t forth in this paper, however, instead of criticising
these loyal and unselfish workers, is rather t> further assist their
work by having the natural parents r<lm*atel t> tlie responsibility of
their relationship. Should we not, in our future studies, endeavor
to find a solution to the problem of how to reawaken in the erring
parent's mind and heart the natural feeling of love and responsi-
bility?
JUVENILE COURTS AND PROBATION IN
PHILADELPHIA
BY HON. WILLIAM H. STA A
JU!KC of the Court of Common Pica*. Philadelphia.
\\ lion I was honored by being invited to participate in a M dis-
:m:-. I came here, as you see by this envelope,
loaded with some material that I thought I might seek to use in the
way of discussion. 1 <ii<l not understand the a as meaning
each gentleman was to speak for himself, but that we were to
:^s \\ nli each other.
1 <li<l learn somcthin veiling from Dr. Hart, and that is
tin-re is such a thing as the Forefathers' Society of the juvenile
ment.and that these honorable, venerable nun . i Messrs.
Hunl, I.indsi-y. Tuttlc and Dr. Hart. I think they might possibly
call themselves the grandfathers of the movement, and then allow
some place for Judge Mack and others, who might come in the
category of fathers. Does not the origin go a little higher up than
any of the fathers within our recollection, and, after all, does not
it really come from the great Father of all, who, in his revelation of
Himself to us. has said. "Suffer the little children to come unto
me and forbid them not
Now, I have some recollection of seeing a subject on various
toast pages of menus and on sundry programs, namely, the word
"Ourselves," and possibly as each of those who have preceded me
has spoken about the conditions in their resjK-ctive localitu
illicit be pardoned if I said something about 1 and
especially of Philadelphia, in connection with "juvenile courts" and
Nation."
To go into the history of children's courts or the juvenile court
movement would possibly carry us back as Judge Mack showed
us at Detroit last August to the courts of chancery in England,
to the children's court in New York, to the early movement in
Mass the well- framed law in Illinois and finally we
t come to the history of the movement in Pennsylvania. I
desire at this time to say. all honor to the good and noble women,
7* The Annals of the American Academy
whose intelligent, energetic work brought about the legislation of
1901 in Pennsylvania. Although this legislation had its birth amid
tribulation, because the legislation of 1901 was afterward do
to be unconstitutional, these faithful women were not discouraged
hat, but persisted most earnestly, most intelligently and very
energetically, until there came the act of 1903, and that with certain
supplements is the law under which the juvenile court Operations
in this city are conducted to-day. I would like to call your attention,
ladies and gentlemen, to a passage in that law that occurs in six
places possibly even those of you who have studied the law may
not have had your attention specially called to it.
The act begins, "An act defining the powers of the several
courts of Quarter Sessions of the Peace within this Commonwealth,
with reference to the care, treatment and control of dependent,
neglected, incorrigible and delinquent children under the age of
sixteen years, and providing for the means in which such power
may be exercised," and then it says at the very beginning, "Whereas,
the welfare of the state demands that children should be guarded
from association and contact with crime and criminals, and the
ordinary process of the criminal law does not provide such treatment
and care and moral encouragement as are essential to all children
in the formative period of life, but endangers the whole future
of the child, and whereas experience has shown that children
lacking proper parental care or guardianship are led into courses
of life which may render them liable to the pains and penalties of
the criminal law of the ftate, although, in fact, the real interest of
such child or children requires that they be not incarcerated in
penitentiaries and jails as members of the criminal class, but be
subjected to a wise care, treatment and control," and so on, and in
a second place I find that, 'The good of the child and the interest
of the state do not require a prosecution . . . under indictment
under the criminal laws of the Commonwealth." In a third place,
"The good of the child and the interest of the state do not require
prosecution," and, fourth, "The good of the child and the inten-t
of the state do not require," and turning over I find still again, "The
child's own good and the best interests of the state," and in another
place, in Section 10, "Unless after the care and oversight given such
child under the probation system under this act, the court finds
that the best interests of the child and the welfare of the community
I'M /'hi I ad sip Iria 73
demand ' 1 i all special attention to these citation* because
all, friend*, a question of the welfare of the child and the
mil-rests of the state which concern us.
It is further, in my lumiMc judgment, a question of deep
human sympathy. It is the rral. true application ! what we ought
to mean l>y the Fatherhood of God and the brotherhood of man.
I see before me in this audience a gentleman who a numb*
years ago first gave me an m .n the subject of the necessity
<>f uniformity of legislation in the Commonwealth and nation, and
as I listened to the pi :is this evening, oh! how I longed for
uniformity in the administration of the laws of the juvenile court,
runty in the treatment of juvenile offenders. I often wonder
how it is that one e. .in e or method of treatment could be pursued
M juris.! U-ing the very InM treatment which could be
pursued, and then I turn over the pages of the statute books, or
very interesting articles in ti v. formerly the Charilu-s
and Commons, and find there is the greatest amount of disagree-
ment among legi id students as to what is really the very
best method of treatment of juvenile offenders, and of the admini*-
n of juvenile courts. To-day, in this good old Commonwealth
of ours, there e \i-ts the very same difference of opinion. I remem-
ber when that good, gifted woman who bore on her shoulders for
so many years the most of the labor in connection with the introduc-
tion and administration of juvenile legislation, said to me there was
danger that the probation movement might get into politics, when
I suggested that I thought it was very wrong that applications should
to be made in this community to the Mothers' Council of
kford. the Second Presbyterian Church, the Archdiocese of
Philadelphia and to other associations and individuals, like dear old
Dr. Duhring, of the Episcopal City M - make up the salaries
of probation offio .iid that in my judgment this was all wrong.
and if the community could afford to pay the tipstaves of its various
it could afford to pay the probation officers, who were also
t officers. The court has in many cases to lean upon these
office -Mist in their good judgment, the accuracy of their
reports, tlu ir integrity, their allegiance, and their fidelity in carrying
out the orders and directions of the court; then why should they
have a divided allegiance: first, to those who actually paid their
salaries; second, to those who secured such payment, and then have
74 The Annals of the American Academy
only the balance of their allegiance for the court? I thought this
was all wrong and I am free to confess that I was one of those
wln> took an earnest part in securing the payment of these hard-
working officers out of the public treasury.
Again, there is a difference of opinion as to how we should
treat juvenile offenders in the exercise of probationary efforts. We
are told that the great State of New York ha- the commission form
of supervision, that courts cannot properly administer the law. that
children should not be committed to reformatories, etc. We arc
told in a decision in the State of New York that probation
judicial function. Since then I have seen it heralded in print that it
is not. Again, I have read that it is a deprivation of a constitutional
right to have a child brought into court and dealt with, as in the
juvenile courts, but that it should have a right of trial by jury.
Thus we see there are these very honest, earnest differences of
opinion as to how best to control and admini . ter the juvenile court,
but there arc a number of things about which we can agree, and
about which there cannot possibly be any difference at all, and that
is to insist that the administration of the court be with a sense of
human sympathy, to feel when you are dealing with these erring
boys and girls that you are dealing with those who, if properly cared
for, will become the future respected men and women, the future
good and useful citizens of the Commonwealth and of the com-
munity. Let us deal with them with a smile of encouragement, be
free with the encouraging hand upon the shoulder, look the child in
the eye with a kindly glance, and say the helpful word, the word
which will give the child an uplift.
I have heard it said that years ago a certain then judge, who
later was also an eminent practitioner at the bar, had saved many
young lawyers from absolute discouragement, because, when he
would meet them on the street he would take off his hat to them
with a hearty greeting of "Good morning, Counsellor!" The young
man would feel that that word of recognition meant something to him
it revived his hope and kindled his ambition. These attentions cost
nothing and they are often helpful. So I say about our delinquent
boys and girls, do not talk about being big sisters and big brother-
to them, but set about being their big brothers and sisters. Yi-it
your neighboring social centers and college settlements, and make
your sympathy and interest actualities. Go as the Israelites do at
Jurfnilf Courts in /'/u/jJ'//>/ifi 75
Voting Women's LY I labor with and among the chil-
lit-ii < . courts and see how proceedings are
an> tiling worthy of jn n, go to
l talk to Inn you do not want to do that,
to linn ami give him the IK-HI tit of your good counsel. 1 think
mm h can be and has been accomplished by probation.
Some months ago, some time prior to the time we had laws
providing ill probation in this Commonwealth. I took upon
myself the responsibility of suspending sentence in certain
and making myself a probation officer, feeling these were
where the mm were ie professional criminal class, but had
a sudden temptation. and had wives and children depend-
ing upon them. \Va- 1 t<> put the : igma on a man by sending
him to prison and thus place the same stigma upon the wife and
children? Too often wl: put that stigma on the man. the
and chil Iren have to bear the brunt of it. I decided I would
i iment in the cases of certain men, and I have piles of 1
showing I made no mistake in my experimentation.
The\ til to write to me on the first day of every month, and
iot one of these men who is not doing well to-day in honest
employment, leading a right life and doing all that I could ask
him to do.
Now. I am running beyond my time, I do not doubt, but I
would like you, good fellow citizens of mine, to carry away one
Jit. that there is a gr -.ruth in the old saying, "Satan
mi-chief for idle hands to do." It is idlcru ry often
to truancy and delinquency. Lately I have done some work
with the playground movement, which, in my judg-
ment, is one of the greatest philanthropic movements of the age.
In one of the reports of the grand jury of Philadelphia. 'The
opening of the new House of Detention cmpha-i/cs the duty of
municipal government- to guard against juvenile crime in thi-
of juvenile delinquency has been demanding attention.
ago has > 1 1 .000.000 for playgrounds." I \vi-h I
! give yon n :euces as a member of the "i
ground Com- in regard to that expenditure. In New York
$16,000,000 have likewise been expended within a similar period.
One playground alone o Mvk of tenement homes
ig been torn down to make way for it. In Chicago, play-
76 The Annals of the American Academy
grounds and recreation centers have been accomplished at a cost
of less than $2 per each $10,000 of assessed valuation. Experience
ics that the most economic scheme for handling crime U that
which prevents, rather than that which, at fearful expense. i-> merely
the engine to convict and punish after crime has been an established
fact.
As the return in dollars is more or less invisible it is difficult
for some people to appreciate the necessity for public playground-.
Where the parents are, as in many cases, the sole source of sup-
port, they should not be blamed for the delinquency of the child,
for the responsibility is the responsibility of the entire community.
The founder of the juvenile system in the United States has de-
clared "it is no longer a question," and as a judge I will say it is no
longer a question "that playgrounds do more to prevent crime than
jails, courts and policemen." The presentment further said: "A
judge of Philadelphia likewise called attention to the fact that an
adequate system of playgrounds will work a change in our children,
will change the petitions to and the demands on the juvenile court.
The playgrounds have been the greatest safeguard against lawless-
ness among children." This I sincerely believe. Within the next
few weeks there will be presented to the Mayor and members of
Councils of this city the report of the Commission on Public Play-
grounds. I believe you will find it of great interest, not only in its
text, but in its illustrations, and of practical interest in its plans and
recommendations. I want to beseech for it that you will give it
your attentive, your intelligent, and I would say with deep reverence,
your prayerful consideration, because I believe, and the lesson has
come home to me especially through the past three or four weeks
of strike troubles, in reading the accounts each day of the offenses
of the juvenile element in Philadelphia, that it is true, as was stated
by one of our journals, that if we had had a system of playgrounds
and recreation centers in Philadelphia, we would have had much
less disorder and much less unrest than we have witnessed.
CAUSES OF DELINQUENCY AMONG GIRLS
MKS. MAXIMA I'
Supermini*! Department. Hotuc of Refuge. Darling, Pi.
Work with drluujurnt ^irU is much more difficult and less hope-
ful than \\.-tk \\ith delinquent boys. The girls are more emotional
aii-1 less reason a Mr tlian tin- I* > I, During the early years of adoles-
cence. \\linj tin- delinquent girl is apt to become troublesome, she
is oft tticult person to help ; often hysterical, not knowing
its M, , r why she wants it. ! dly the girl from
the !>!. ;.rn home, ami this is one of the chief causes of her delin-
i|t:riK->. \\here the mother has been taken and she has been left to
the care of an elder relative, or where there is a stepmother who may
not have much sympathy or patience with the girl, and the home
is n< : If there is a mother she is frequently too tired
and overworked 1 .\ ith the care of a large family, and the
re impossible for social life if the family is living in a
small, crowded rooms.
The girl wants to have a good time, and without thought of
he must go from home to find her pleasures, especially if she
has been working long hours in a mill or factory all : per-
ural that she should desire some recreation in the evening.
Proper places have not been provided for this. The vulgar theater
and the dance hall in connection with the saloon in too many com-
munities are the only places open for her. There has been more
public sentiment about providing recreation for boys in the way
ihs and Kyiniiasiums than for girls, possibly because it is gen-
erally thought that a girl should IK- at home with her mother; an
lent place for her, provided she has a \\i-e. sympathetic mother
and a #**! home, hut the delinquent girls are usually the girls who
have no mother ami who have very little or no home training.
Another cause for delinquency among girls is the lack of care
iic feeble-minded girl. She is usually well developed physically,
hearted, a willing worker. 'porting, but
should never be self-directing. There is no place in the eastern
part of Pennsylvania to-day for the feeble-minded child. The ex-
(77)
78 The Annals of the American Academy
cellcnt school at Klwyn is overcrowded. In many of the rural com-
munities feeble-minded girls are allowed t drift in and out of the
county almshouses, bearing illegitimate children, which are an added
burden to the state. These girls are often the children of inebriate
OF epileptic parent-. They should be kindly treated, hut should have
custodial care past the child-hearing period.
Another cause of delinquency is the inefficiency in our train-
ing. In many parts of the state in communities outside of the large
cities very little attention is paid to the compulsory education law.
Children are allowed to leave school at an early age because- their
parents think they need their financial help, and the j^irl ha
interest in her school work. There is no public sentiment to hold
that girl in school until fourteen years of age, at least. \\Y
more industrial and manual training in our pnhlic schools for the
girls just as well as for the boys. Much more has been done to
the boys manual training and other hand work. We should
give the girls the sewing, basket weaving, sloyd, domestic science,
especially in the lower grades, and not confine this work to the
grammar grades and high school, when so many girls do not stay
in school long enough to reach the high grades. We are apt to
think of the problems in delinquency and the juvenile court a
longing to the large cities ; the rural communities have their prob-
lems, too, where the railroad station and the saloon are the only
places open if the young girl wants a place to go and something
to do. In some places the library has met this need. Where there
is no library there should be the larger use of the schoolhouse, using
it for a social center for the community. It should be open in the
evening for classes and clubs with the right kind of supervision,
which is the secret of all successful work with young people. We
need in all communities, both in the cities and in the smaller places,
recreation centers, whether it is a building for that special purpose
or the schoolhouse; with the enforcement of good child labor laws
and the compulsory education laws to keep the girls out of the
factories and mills and in school until fourteen years of age, at least.
\\ e need to have the art of home-making taught to our girls in the
public schools or some of them will never learn it, because of the
lack of home life.
The juvenile court and probation have done much to help de-
linquent girls. There are very few girls compared with the num-
Causts of Delinquency Among Girls - .
her of boys, and it is much more dinViiIt to help the girl vuth pro-
bation than the boy. The very freedom which the girl seeks is -
hard to give her with ng her abuse that pmilege. The girl
is usually brought into court for what is called incorrtgihih;
iu- \r\ of foreign ; A ho has become restless with
the restraint of home, is unwilling to be guided by her parents. It
is not an easy matter for the probation officer to hold the girl, either
in that home, or by finding another place for her. A boy may be
grossly immoral and his immorality does not always find him out
::. >\\ him ; it is not so easy for the girl who has been immoral
to be helped ! .1 normal place in x.^u-ty. This is a factor in
\\hich we will always have to meet, and which makes
the work w ith girls so much less hopeful. The probation officer for
;irls should always be a woman, and she should be a tactful,
balanced person, who has sympathy with young people. Pro-
bation has done much for the delinquent girl in giving the restless,
unhappy girl the right kind of a friend, who has some-
s been able to keep the girl in her own home, or to find the
kind of place for her elsewhere. It is not wise to give the
chances with probation as the boy. and it is a mistake
to feel that every jjirl should have probation first. If a girl has
lenced to lead an immoral life it is usually better to give her a
1 of training and then try probation, rather than to give her
freedom which >he would abuse and perhaps be the cause of
getting others into trouble.
PRIVATE HEARINGS: THEIR ADVANTAGES AND
DISADVANTAGES
BY HON. HARVEY H. BAKER,
Justice of the Juvenile Court, Boston, Mass.
Heretofore trials of all offenders, young and old, have been
open to the public. Seats have been provided for spectators, and
no one has been excluded for any reason except lack of room. The
newspapers have been free to report the details of cases, including
the names of the parties. At present, in connection with the removal
of the cases of offenders under sixteen or seventeen from the opera-
tion of the criminal law, there is a tendency to limit the publicity
of the court proceedings in such cases. The limitations on publicity
now being introduced in juvenile courts vary in strictness all the
way from an understanding with the newspapers that the offenders'
names shall not be published, to what may be called for convenience
a private hearing.
The main feature of a private hearing is the reduction of the
number of persons present to the minimum. In the most advanced
form of private hearing the presence of a clerk and a court officer
is dispensed with, and the only official in attendance is the probation
officer in charge of the case which is being heard. Only one or two
visitors are admitted at a time. No visitor is admitted without there
being some special reason for his presence. Such a special reason
- for the presence of such persons as the following, viz. : Clergy-
men, teachers, legislators, social workers, officers of societies for so-
cial service, and public officials concerned with the enforcement of
law and the preservation of order. At the hearing of each case the
persons directly interested in that case are admitted. These persons
are the parents, their attorney or any other person whom they \\ i-h
to have talk for them, any person concerned about the child on
account of race or religion, any person interested in the child on
account of the child's or the family's connection with any such
organization as a social settlement or the associated charities. If
there is a trial only one witness is admitted at a time.
Some of the advantages of the private hearing are brought out
(80)
/ 1 tarings $r
ng what i* the r-mtial purpose of a hearing in a
I lie pur|>osc of a hearing in a juven:
.nil whether the child is (leliiif|ueiit or not, and. if he is de-
linquent, t<> tni'l out the cause of the delinquency and a remedy for
The most efficacious way of finding out whether a child has
done wrong in any instance, ami \\hat is the cause of the wrong-
, is shown l>\ the action of seiisihlc parents. The father talk*
witli the boy alone in his study. or the mother with the girl in her
chainher. The teacher similarly takes the offending pupil t
*>m. The nearer conditions of the hearing in the juvenile
n.ach the father^ study and the teacher's private room,
the more fully and promptly the judge will ascertain the facts and
causes of the delinquency of the child. The private hearing readily
adapts itself to affording conditions exactly like those of the father's
study <> r teacher's private room. Where the number to be present
at hearings is strictly limited they can be held in a small room, and
the judge and child can readily be left entirely alone in it. The child
mu-t not he talked with ; n the parents against their objec-
hut in most cases there is no objection and the judge can pro-
ceed from the outset after the fashion of the wise parent, and begin
by talking with the child alone; though girls, of
course, should never be talked with wholly alone, and, if possible,
a woman should be the attendant.
The foregoing considerations hat one advantage of the
ig is that it affords much more favorable conditions
than a public hearing for finding out the facts and causes of the
child's delinquency. It i> well to remember in this connection that
"delinquent" laws usually expressly declare that the treatment of
children under them shall be as nearly as possible like that which
children slum! C from their parent v
Still another advantage of the private hearing is brought out
by considering the other important part of the purpose of juvenile
.rings; namely, finding and prescribing the remedy for the
delinquency. The best way of accomplishing this part of the pur-
pose, and also, indeed, to some extent of finding out the causes, is
indicated by the procedure of the physician. The physician talks
with the parent^ apart from the child as to both causes and remedy.
ami -able to have facilities for excluding the child from the
room where they arc talking. Furthermore, the physician finds it
82 The Annals of the American Academy
desirable to talk with the |i;imit> without tin- piv-enre of third per-
sons, for parents are to some extent like the children in npi-ning
up their hearts more freely the more nearly they are to being alone
with their adviser. The private hearing with the small room enables
the judge to confer with the parents like a physician in his office,
and thus the further advantage of the private hearing is that it
affords more favorable conditions than a public hearing for deter-
mining the remedy for the delinquency.
Still further advantages of the private hearing are the follow-
ing, \
A bold child cannot pose as a hero in a small room with only
half a dozen people and no other children prc-ent.
Children are easily precluded from hearing, or even seeing, their
parents admonished. It is frequently necessary to admonish parent-.
To admonish them in the presence of their child, even if the child
is so far away that he cannot hear, tends to further impair their
already too weak authority.
Children do not hear each other's cases.
Children are not pilloried before the public.
Curiosity seekers are barred.
The judge can wholly overlook or deal informally with certain
natural outbursts on the part of children, parents and others, which
in a public hearing might have to be met with a formal reprimand.
Such a reprimand hinders seriously reaching a satisfactory under-
standing between the judge and the child or its parents or friends,
while a quiet expostulation and explanation with the malcontent
alone in a private hearing-room, which is easily cleared for the pur-
pose, may greatly facilitate the reaching of such an understanding.
The feelings of parents can be more effectively spared. There
are frequently blameless parents who are greatly distressed by their
children's delinquency, or by an order for their children to be sent
to a reform school. Any one who has seen the tears of strong
fathers and the prostration of sensitive mothers in such ca^cs will
appreciate this advantage of the private hearing in protecting them
from the presence of strangers at such times.
To sum up in one sentence the advantages of the private hear-
ing, it may be said that the function of the judge of a juvenile court
is much like that of a physician, and the private hearing affords for
the judge the closest approach to the conditions under which the
physician works.
Prii-atc Hearings 83
The greatest objection to the private hearing lies in its being
a radical departure from tin- hard -won and long-established principle
of full | .ul.1: .)urt proceeding^ is a real and serious
objection. A just estimate of the weight that should be given to
it and a sound decision as to what extent we should forego privacy
on account of it can only be arrival at by experience. It is not
who! ic fact that the constitutional guaranty of a
public trial applies only to criminal cases, while the proceedings
in a juvenile court are not criminal proceedings. The hearing in
nile court may result in the confinement of a child in a
reform school and the suspension or the termination of the parental
ion. That is a much more serious result in some respects than
nlinary sentence of fine or imprisonment in a criminal case.
While it is true that the reform school is not a prison and the child
is not sent there for punishment, but to be benefited and improved
by p: il training and wholesome amusement, he
ihelcss, deprived of his liberty and the parents are dq>r
of their natural authority. The analogies of the teacher and the
i fall short at this very point. Their proceedings can i
have any Mich result as commitment of the child or supersession of
the parents' authority.
Under the system of private hearings there is greater likelihood
than at public hearings of harm resulting from the carelessness,
eccei or prejudices of an unfit judge. To be sure, no one
that by the establishment of private hearings all per-
sons shall be excluded, or that children shall be talked with alone
against the objections of their parents, or ordered to be committed
without their parents being heard, or without hearing the other
ested persons mentioned above in the description of the private
.:ig. Mom , isily be provided by law that visitors
of such classes as tln.sc previously mentioned shall be admitted, with
proper limitations as to the number to be admitted at a time. But
the persons who desire admission cannot come in as a matter of
>c. They nuM >ho\ v their qualifications, and that helps an unfit
judge to maintain a questionable seclusion. The conditions attend-
ing a private hearing make it easy for a judge to ignore the parents,
posed, and interview the child without refjard to them.
All this might result in findings of delinquency on insufficient evi-
dence, in unreasonable commitments, or even improper talk with
liild.
84 The Annals of the American Academy
In closing, it should be said that the full extent of the advan-
tages of private hearings cannot be appreciated without actual
periencc in conducting cases with the benefit of them, and, further,
that the disadvantages of departing from the principle of full pub-
licity are likely to be found, as time goes on, to have been over-
cMimated.
Until the private hearing has been fully tested by experience,
communities where the citizens are doubtful can proceed with cau-
tion, taking preliminary steps by suppressing newspaper reports of
the names of the children and excluding all minors from the hearing
except the offender and juvenile witnesses one at a time.
By such limitations and by keeping the spectators at a distance
from the judge's desk many of the advantages of private hearings
may be obtained in some degree, as, for example, the freedom of
the judge in talking to the children but not their freedom in talking
to him. the prevention of their posing as heroes and the prevention
of their hearing the cases of other children. It is to be hoped
that all jurisdictions will go that far at an early day, and then not
forget that they still lack the following benefits, viz.: the most
natural and efficacious method of getting at the facts of the de-
linquency and the causes of it, and determining the treatment for
it ; the protection of children and blameless parents from being pil-
loried before the public; and, in general, an elasticity, facility and
adaptability of procedure which no judge, even the most conserva-
would be likely to relinquish without serious regrets after he
had once enjoyed it.
III. The Scope and Limits of the Injunction
INTRODUCTORY ADDRESS
BY mi HON. CHARLES P. NUM..
I'M. ted States Continifttioncr of Labor, \Vu>hmgton, D. C
Ladies and (initlciiun : The subject selected for discussion tlm
morning constitutes one m th.- most acute questions to-day in our
industrial and in our political life. So important has it become that
ago tlu- two great political parties of the I'nited >
dtiMiitu <! it li\ making it a plank in cadi of the two platforms, which
would indicate that the question had become one of vital concern to a
great many adult males able to vote. It may not be amiss if, in a
few ! attempt to outline to you the situation regarding the
particular point in dispute.
.1 general way the difficulty in the matter results from the
fact that the law is nccessaril ibly, and, I assume we might
add. properly conservative, and that we live in an age of the most
ly dynamic society the world has ever seen. In one of the
!i human beings come most often into contact the field
embracing the relations of employer and employee changes have
been rapid, and the law has remained stationary. The organization
icrs and its concomitant "the strike" present us a new
social problem, and there seems to be no clear and unmistakable
tory declaration defining where the respective rights of the
employer and employee begin and end.
As a consequence, a new, peculiar and critical relation, spring-
ing up as a result of industrial disturbances, is constantly being
carried to the courts of equity for definition as to the respective rights
of the parties in dispute.
Within the last few years with increasing frequency the cm-
r ti jilting strikes lias appealed to the equity courts to secure
injunctions or restraining orders forbidding his former
from doing certain things that are being done for the purpose of
winning in the industrial conflict.
The employee maintains that in granting injunctions in cases of
tliis sort the court of equity has. in theory, gone beyond its proper
function and its legitimate jurisdiction, and that it has, practically.
(87)
88 The Annals of the American Academy
deprived him of the right of trial by jury and other fundamental
rights and privileges guaranteed him by the constitution of the
country
The employer, on the other hand, holds that the equity court
has not exceeded its jurisdiction; that it is executing an ancient
and proper function; and. moreover, that if he be denied that protec-
he is left without any adequate remedy at law in one of the
most important situations in industrial life.
So, on the one side, we have the employee claiming that the
court of equity is depriving him of fundamental rights rights which
it ha- taken centuries and centuries of struggle to maintain. And, on
the other side, we have the employer insisting that any abridgment
of the power of the court means to leave him naked in the hands
of his enemies, and his property interests without adequate
protection at law.
I have endeavored here merely to present as briefly and clearly
as I could the two extremes of the positions taken regarding the
subject to be discussed. We must at least admit the question is a
vital one on both sides.
We are fortunate in having secured the speakers we have for
this morning's session. I doubt very much whether it would be pos-
sible to secure in the United States another group of men more
competent to discuss this question, better acquainted with it, or
more keenly interested in the different phases of the subject.
The opening speaker is a man of international reputation, a fel-
low-citizen of mine, and a well-balanced reformer. I use this last
adjective advisedly. He was one of the commissioners of the suburb
of Washington which made the first practical application of the single
tax. He was umpire of the Caracas claims before the Mixed Claims
Commission. He was also counsel for Mr. Gompers, Mr. Morrison
and Mr. Mitchell in the cases arising out of injunctions by equity
courts. Mr. Ralston's study of that matter has perhaps made him
the best-equipped man of the American bar to discuss the attitude of
the labor movement in relation to the question of injunctions.
USE AND ABUSE OF INJUNCTIONS IN TRADE DISPUTES
I. ADDRESS BY JACKSON H. RALSTON, ESQ.,
Washington, D. C
For a number of years, the use and the abuse of the inju:
powers of court- ha\< :li the determined protest of labor or-
ganizations and acute criticism on the part of some judges and many
students of jurisprudence. Too oiu-n the growth of this branch of
law brings to mind the traditional origin <>i the old streets of Boston.
There, near three hundred years ago, the barefoot progenitors of
many of us, driving cows to and from pasture would wander from
:. tight line, jKTchancc to gather wild flowers, if they were suf-
ficiently esthetic, or to escape a stubborn bowlder or marshy spot
or to obt .mage point from wbich to throw a stone at their
equally thoughtless charges. And this Odyssey of wanderings suf-
ficiently repeated created a pathway which, in later years, lias caused
numberless passersby countless pangs of fatigue, or at least hours of
unce; u to whether the streets were really "going south or
coming back." So our judges, beguiled by rhetorical fancies or dis-
1 hy the rudeness of the labor of thinking, or desiring to
throw a stone at something with which they entertained no bond of
human sympathy and which, therefore, deserved such evidence of
disapproval, have beaten a pathway no less and no more logical than
the ways of the older of Boston. But detailed criticism of
the mental operations of judges forms no essential part of the pur-
pose of this paper. We shall rather seek to discover, if we may,
where the straight path of logic would lead \\
Let us assume one principle to be settled in the law and in its
that is. that the jurisdiction of equity in injunction extends
to the protection of property, the improvement or destruction
of which could not adequately (meaning exactly or not at all) be
compensated for in damages. The question which we must clearly
rr. and which, if answered will serve as a : :e is. \\ :
this property which must be so protected? If a man crosses another's
r threatens to do so to-morrow, equity will not intervene unless
the trespass may be of such character or so continued as to impair
(89)
9O The Annals of the American Academy
or to endanger the very existence of the plaintiff's property by c;
ing the foundation of title thereto in another, and in the end de-
priving the plaintiff of the beneficial enjoyment of that to which he
.i legal right. For lesser injury the mere trespass whether actual
or threatened the property owner i> remitted to a suit for dan.
is no remedy. We find, in this instance, that the property must
a physical existence.
Let us assume interference with copyright or patents. Here
again the right is really physical the monopoly claimed over the
production of palpable objects.
So, if we seek to prevent illegal taxation by the aid of a court
of equity, we ask that we may not be disturbed in the possession of
our tangible property by being deprived thereof through the action
of the taxing authorities.
Again, we are entitled to equitable aid to ensure to us the
continual enjoyment of our property against nuisances which affect
its value or interfere with its movement from place to place.
But suppose we seek aid against libel or slander, or even the
injurious circulation of the truth. Then, quite aside from the serious
constitutional question involved, we ask the courts not to protect
property as such, but to exercise control over something of the most
subtle character the minds of men. For even as it has been said,
that parliament may do anything short of making a man a woman,
so it is true equity may do much, but may not, if it would control the
character or transmission of thought, and, we are told, equity
will not do a vain thing. As well might we, as Burke said, under-
take to indict a nation. And yet, when dealing with trade unions,
courts have often forgotten what they may protect and what things
are inherently beyond their jurisdiction, and to a degree have brought
pute upon the processes of the law.
Courts have enjoined physical acts of trade unions, such as
nuisances or trespasses, which have interfered with the enjoyment
or transfer of property. Of this no complaint can successfully be
made. They have gone further and have said to members of unions,
"You shall not say to another, not of your own membership, 'such a
man is an enemy of ours, and we request you do not buy his products
until we are fairly dealt with by him.' " Some judges have even
said, "You shall not bind each other not to deal with that man."
Those injunctions do not protect property, since the plaintiff's prop-
Use anil /' Injunctions in / r jJ iHifults 91
erty and lu, right th.-reto are equally intact, after as well as before,
the supposed mjur> i..mpl.imcd of; an<l his right to gain lucre by
transferring it has '> with- His mark., t may have
been restrict CM I, nt l>> a ph\ sical fact, but by a mental one the am
liasers toward the seller, an attitude in which the
\\..uld IK-O.P. has no more property than has the liquor dealer
ig a wave of ten.- ;>pctitc of his theretofore cus-
tomers, or a packer m the salt- t<> the public of beef or other special
We grant that if thr eiist..mer l>e driven away by a threat
of an illegal character, such as of violence, relief may be sought by
analog)* at least t<> tlu- d*-tnne prevailing in cases of nuisance that
a person in the :it of his property is more inj
in the rest of the community, he has a
appeal to
v we not believe that when the courts have sought to enjoin
:i COfnmmiicmting t> their fellows their opinion of another,
or of the dc^irahility of the purchase of his products, they have
from the theory that equity may only defend the
rights of property as prop* 1 have sought to create an
anon ::t defined in any law book, and not being a right
operty < . arts of equity have been believed to possess
ion?
\\ e do not, of course, for a moment dispute that the man whose
ation has been injured by word of tongue or pen has a right
to be recompensed in a court of law for the injury sustained, and
!i> recall that there once < -lie theory that the greater the
truth the greater the libel. This theory dismissed by courts of
law apj '. oiti-n t<> have been taken up by courts of equity.
.iling with tra<lc uni< if a trade union may
truthfully say of a man that his establishment is unfriendly to the
cause of organized lahor, and no member of organized labor or sym-
pathizer with it should trade with that man. no libel has been in-
dulged in which may be punished by a court of law, and yet. as we
have stated, courts of equity will interfere to prevent the making
of such a statement and under certain circumstances, punish its
making as a contempt. We find, therefore, courts of equity str
to fit upon themselves the cast-off garments of courts of law. and
adjudging that the truth is not always to be spoken. Speaking in
other terms they indulge in a sort of indirect atavism. Our judges
$2 The Annals of the American Academy
do this because of, as we may believe, an unconscious bias against a
social institution foreign to their immediate environment, much as
ihc bare-foot boy of Boston might have wandered from his true di-
rection to pick up a stone to throw at some urchin who lived on the
. then side of the creek. And later, judges, without understanding
or appreciating the mental attitude of the first judicial traveller,
have made their after steps conform to his, not troubling themselves
with too painstaking an analysis of the situation.
Sometimes the courts have told us that the employer was entitled
to have labor flow freely to him, and some of the most obnoxious of
injunctive processes have issued to enforce this supposed right. We
grant the correctness of the judicial position, bearing in mind the ob-
servations we have already made, if a nuisance has been created
interfering with such movement. If there be no nuisance nothing
objectionable in itself to the law, we deny that the employer has the
right to appeal to courts of equity to clear away the channels of labor
or trade.
For what would be the logical consequences of the contrary
doctrine ? The man who advertises Achilles shoes, while a competitor
declares that Achilles shoes should not be bought, for the heels will
quickly give way, would be entitled to an injunction. The depart-
ment house which advertises to sell better and cheaper goods than
another house in the city would be subject to injunction at the hands
of its competitors, and if there are two stores in the town dealing
in a particular object, the aggrieved merchant could successfully
appeal to equity for protection. The manufacturer who publishes
that his rotary engines are superior to ordinary piston engines may
be haled into court. The cigar manufacturer who begs the com-
munity to smoke factory rather than sweat shop cigars, made by
another, would be subject to injunction.
In none of these instances has equity been resorted to, nor, I
venture to say, would such application be successful, although every
such instance falls within the reasoning indulged in by certain courts
of equity when they are confronted by such a trade union problem
as we have instanced.
Let us consider another landmark of the law and the manner
in which it has been treated. Until trade unions assumed importance
in the industrial field it was believed to be the law that courts of
equity had no jurisdiction over threatened or actual offences save,
Usf and Abuse of Injuniiitjns in Tradf IHspHtss
at least, certain ones against minors or married women who, by
reason of their helplessness were taken under the under charge of
the i ler Iia.l, by his interference with thctr
^ed upon the protection granted them by the chancellor.
There was an excelU -nt reason for this general position of the couru.
..f equity ha\- mjuiiiiive power over crime* it most
\v as a consequent- that their ..:n::.; nm could be ini
'-, such courts and if they were found to have been committed
die wrongdoer could be punished tin re for as for contempt of court.
I bus a court of equity would turn itself into a criminal court, and
that \\hu-h primarily was a forum for the determination of the right
of property would become an iu-titution empowered to avenge
wrongs done society, while the accused, entitled to a trial by jury of
his i>eers, would be adjudged by one taught by the traditions of his
occupation to suppress, as far as might be, all human feelings and
-spend only to the cold dictates of logic.
Now, when re brought to consider charges against trade
lily they forget the limits of their jtir : and en-
ji-in crimes upon the theory, that although they have no rig'
when the element of possible damage to
property is intermingled with the other elements of wrongdoing, so
u!d the court of equity be of its litigants that it considers
that the crime is included as enmeshed in some way inextricably
with the true subject of equitable jurisdiction. We find, therefore,
>ll gh equity will not enjoin theft, it will enjoin (at least some
judges do enjoin ) the injury to a man's business, done when two men
ask a third not to trade with him. the two being trade unionists, for
ice except as affecting unionists comes to mind where such
injunction has been granted. This is true although the offence.
be one, in this country since the days when our
patriots refused to deal with men who sold tea upon which stamp
taxes had been p
Judically we are brought to a singular condition. One man
may absolutely destroy another's business, may drive him. in order
to gain his livelihHd. from a community, and the court of equity-
will hold the offender guiltlc- led only the actor commit no
ass, create no nuisance, indulge in no fraud or do not render
elf amenable to some other proper branch of equitable jun
tion. (To this effect sec particularly I faywood vs. Tillson. 75 Maine,
)4 The Annals of the
225, and Payne rs. W. & A. R. R. Co., 13 Lea, 507.) Nor will
a court of equity concern itself xvilh the motive underlying such
action. It may be that tin- injured party is most worthy and the
aggressor vindictive and malicious, or the reverse may be the case.
You will be told that the question of motive or intent is immaterial,
ihat the sole question is whether the moving party was acting within
his legal rights, and where several persons in concert, acting within
the legal rights of each, and for whatever reason, have declined in-
tercourse of a business nature with another the actors not
trade unionists and have refused business relations with those who
supported the person against whom such action was directed, the
courts have, as the writer believes, universally, save as inllnenced
by the Sherman anti-trust act, held such action beyond the injunctivc
power of the chancellor. (See, for instance, Francis vs. Flinn, 113
r. s. 385.)
Let tis turn, however, to the position of trade unionist-, and see
if Mich cold rules of logic are applied to them. Let us discover, if
we may. whether the judiciary has not unconsciously felt the influ-
ence of class bias. And in so doing, let us bear in mind the definition
oft repeated of the word "conspiracy," which is the combination of
two or more persons by some concerted action to accomplish some
criminal or unlawful purpose, or to accomplish some purpose not in
itself criminal or unlawful by criminal or unlawful means. \Yhen
or more men agree that they will not deal with a given man
until he ceases to oppress, as they believe he is doing, by giving in-
sufficient wages; or inflicting excessive and exhausting hours of toil;
by destroying the lives of children, by degrading womanhood, they
may not, according to very many of the courts, publish to the world
the fact, and if they do so, or threaten so to do, they may be enjoined
by a court of equity which will treat such publication as an offence
against the rights of property. According to the almost unanimous
voice of the judges, if they proceed a step further and say that they
will not trade with any man who, by the purchase of such employer's
products, helps to sustain conditions which, to their minds are evil,
they are subject to injunction and if the injunction be violated they
have placed themselves in contempt. When such decreees are op-
posed and violated, the violators are by a single man, who is likely
unconsciously to be prejudiced against them by the mere fact of
having issued the injunction, found guilty of a new equitable crime
Use ami <f Injunctions in Trade I 95
conspiracy to destroy another's property the courts ignoring the
fact that one may not properly have property in a thing of which
ll not possessed, or at least of which he has not in hmioclf the
power of compelling the possession.
The argument f Chief Justice Shaw in the great cue of Com-
monwealth rs. Hunt, 4 Metc.df. in. i- ignored. As he expressed
hiii |y and effectively :
:ppcd, then, of these introductory recitals and alleged in-
jurious consequences, and of the qualify ing epithets attached to the
facts, the averment : -!iat the d -id others formed
themselves into a sex 1 agreed not to work for any person
who should employ any journeyman or other person not a member
of such society, after notice given him to discharge such workman.
"The manifixi intention of the associ.v induce all those
engaged in the same occupation to become members of it. Such a
purpose is not unlawful. It would give them a power which might be
exerted for useful and honorable purposes, or for dangerous and
pernicious ones. If the latter were the real and actual object, and
susceptible of proof, it should have been specially charged
r can we perceive that the objects of this association, what-
\ have been, were to be attained by criminal means.
The means which they proposed to employ, as averred in this count,
and which, as we are now to presume, were established by the proof,
were that they would not work for a person who, after due notice,
should employ a journeyman not a member of their society. Sup-
the object of the association to be laudable and lawful, or
at least not unlawful, are these means criminal? The case supposes
that these persons are not bound by contract, but free to work
n they please, or not to work, if they so prefer. In this state
we cannot perceive that it is criminal for men to agree
together to exercise their wn acknowledged rights in such a man-
ner as best to subserve their own int. < )nc way to test this
is to consider the effect of such an agreement, where the object of
the association is acknowledged on all hands to be a laudable one.
Suppose a class of workmen, impressed with the manifold
temperance, should agree with each other not to work in a
shop in which ardent spirit \\ .1- furnished, or not to work in a shop
any one who used it, or not to work for an employer who
should, after notice, employ a journeyman who habitually use
96 The Annals of the American Academy
The consequences might be the same. A workman who should
still persist in the use of ardent spirit would find it more difficult
to get employment ; a master employing such an one might, at tinu>,
experience inconvenience in his work, in losing the ^rvices of a
skillful, but intempcr knian. Still, it seems to us, that, as
the object would be lawful, and the means not unlawful, such an
agreement could not be pronounced a criminal conspiracy."
Why should nut the man who threatens to shoot me and thus
de-troy my ability to carry on my business be enjoined quite as much
as the man who declines to purchase my wares, or proclaims that they
are inferior or that they are produced under injurious social condi-
tions inflicted upon the worker? Should not uniformity in principle
be accompanied by uniformity in practice and all be subjected to in-
junction or none?
The answer comes that it is not the individual in these cases
against whom equity has the right to address itself, but something
more subtle and dangerous that is, the combination. I Hit if an indi-
vidual man accomplishes the evil, why is not he, and why is not the
combination equally liable or non-liable in the eyes of the court of
equity? If you say the individual was acting within his right and
so not amenable to a court of equity, how does the problem differ
in essence if there be two individuals instead of one? And if you
say the individual will not be enjoined, because the thing enjoined
is a crime, do you escape the difficulty, for is not conspiracy equally
a crime? Are courts justified in taking the position that while direct
evil as a crime may not be enjoined, the lesser thing, a conspiracy
to commit wrong, may be enjoined?
Bearing in mind, as you must, the definition of conspiracy as
heretofore given, we may justly wonder what justification there is
for the attitude of courts in holding so-called boycotts, even when
absolutely peaceable in character, to be conspiracies and the subjects
<>f injunction. Let us see if logically the courts can possibly be right.
If A and B agree to tell their fellows that they will not trade
with C and go further and say that they will not trade with any man
who trades with C, in what respect have A and B formed an unlawful
conspiracy? They have not agreed to use any unlawful means.
They have not combined to an unlawful end unless that which is legal
for one can be turned into wrong when done by two or more. The
vice, it is said, must be found in the purpose of the combination,
Us* and f Injun liddi .,7
u hu li it is argued, is to oppress C (We may ign< t forget
u i that usually trade union combinations as illustrated by strikes
and !,;'". are not formed to oppress anyone, but to cause the
persons against whom they a: tod to aim iterate their policy
towards their employees). But if Z, acting within his legal right
and with tiu avowed purpose of driving C out of his business or out
of the community, may refuse to employ any persons who deal with
lum or who board in his hotel and thereby X works oppression to C.
and the courts may declare Z's motives to be immaterial, in what way
combined act of several logically different and why should it
receive differ m that accorded to the act of Z? In
other wonK why is the combination, the intent of which is assumed
to be to oppress, more justiciable than the actual oppression? Why
do our courts reject, in the case of the single individual, all inquiry
:itcnt, he acting within his rights, while as to trade unions
tiie wrongful intent -. <d despite all protestations and made
part of the gravamen of the complaint, and the foundation of the
judicial conclusion. Are our judges thinking clearly or are they
simply mani testing the not uncommon aversion of men towards those
acts which they deem themselves little likely to commit?
are told that the offence is in the combination and the
ombination i> in its superior power to inflict injury.
iy sufficiently discussed for present purposes the
question whether the combination was one to inflict injury and
whether the doing of acts in themselves legal could constitute legal
injury). To this we have to say that the courts arc indulging in a
legal presumption in order to find jurisdiction against several and re-
jecting the presumption as against one and that jurisdiction should be
based upon fact, not upon inference. The fact may be that under
given circnn | combination would be powerless to inflict an
appreciable inconvenience, not to say legal injury, whereas under
r circumstances one man, acting with no greater and no less right
in himself, may bring about ruin to hundreds. If, therefore, we are
told that the superior power in the combination to inflict injury is
may surely logically say that the essence of the test is
the power to injure and that this may pertain to the single individual
as well as to those who act in combination, and we may justly <
\\hich hold the powerful individual innocent and
demn the imp* tent combination.
98 The Annals of the American Academy
Thus, as we believe, the whole theory of the courts in tlr
gard is founded upon a logical absurdity. Two men may not. in
combination, without incurring the anathemas of the court, do tin-
things which each severally may accomplish. A, living at one cn<l of
the city, and B living at the other end, without connection with each
r may say to their neighbors that they do not intend t<> trade with
/.. in the center of the town, and that their dislike for him
great that it extends to any person who has dealings with him.
Ihe^e separate declarations are, in the eyes of the court of equity,
legally innocent. But if A and B together agree to exactly the same
thing, that which before was innocent becomes a conspiracy to op-
press, and although called a crime will be enjoined by a court of
equity as infringing upon a right of property belonging to /. which
right of property was not discernible by the court when attacked !>
A and B separately. We have therefore by combination called into
being not only a power to restrain a crime, but we have created prop-
erty where before none existed. We are not able to cite a more
remarkable legal performance in the history of jurisprudence.
Let us look at it in another aspect. A has a right to control his
own actions absolutely. He may trade where he will and he may
withhold his trade. He may declare his intention of withholding
his trade and not bestowing it upon any sympathizer with Z. When
he does so he will be legally righteous. The same right and power
exist in B. When A and B meet together to exercise jointly the
rights they possess severally, then, presto! change! the very coming
together destroys their individual rights. Instead of retaining the
powers and privileges logically indubitably their own, they have
entirely lost them.
\Vhy should a conspiracy to injure be enjoined and not the de-
termination, for instance, of a single man to commit arson ? While
the determination to injure on the part of several individuals by the
refusal of trade relations is not, to our minds an injury to property
in any true sense, a threat to commit arson is the declaration of an
intent to destroy that which is undoubtedly property, yet our courts,
preserving in this respect the right to trial by jury, will not enjoin
the commitment of arson.
The situation is a peculiar one. A man has a right to refuse in
any way he sees fit to trade with, another or with that other's sym-
pathizers. He has a right to publish such fact to the world, subject
Utf and Abuse of Injunctions tn Trade Disputes 99
only to action, i: cments be false He has a right to enter
'(i, and do any act he might lawfully have a right
himself, the means to be employed by the combination being
peaceable and legal, hut when he to such a combination he
becomes subject t< tin mjututivc power of equity. This is the
greatest specimen of "hide-and-seek" logic on the pan of the courts
:i within >ur knowledge.
iiaps all applications to courts nf equity for injunction against
boycotts, peaceful or otl have alleged that the defendants
combined an< <>r oppress the complainant by de-
MV: him "nnfair" or n to purchase his goods and urging
others to do likewise, or refusing intercourse with those who trade
with him. If !>!<-< things be legally wrong in the individual, there
must IK- a n-lit of action on behalf of the public or on behalf of the
individual articled against him. If he does these things in con June -
with another his individual liability remains, and he should be
:Me in a court of law, or a criminal court not in ej
fact of i 'ion cannot make the end more or less legal or
ice the combination is only the means to an end and in
i good or bad, according to the methods to be employed by it
or the end to be gained. In other words, a conspiracy to oppress
only logically exist when the oppression, if an individual act,
he Mibject to civil judgment or criminal punishment.
Let us illustrate the whole proposition by a simple case. If A,
the owner of his patrons against trading with C,
because < unfairly he may not be enjoined by a
equity, however injurious such publication may be. If B
becomes a partner with A. and thereafter similar public accusations
are made, then, by the logic of a great many of trade-union decisions,
truthful Mich puMicationx may !,e aj utements of fact,
A and B are subject to injunction. Wherein lies the reason for
\\ ithin the past hundred years many men have served terms in
jail in N . Pennsylvania. New Jersey and other states for
imple act of quitting their labors in order to secure a reduction
of hours per day or to obtain some other industrial end. That the
-entenced them were wrong as to their conception of
vC or law need hardly be argued to-day, either before the
bar of public opinion or before the courts. Hut the reasoning in
!i the lower courts indulged when convicting them was in all
ioo 77ii- Annals of the American Academy
respects, in principle and almost in words, that employed to-day
when the judge enjoins tin- i-xiMencc of a peaceful boycott. In
either case it has been argued that the vice of the offense cxi-u.l
in the combination, that the emplo; unable to struggle against
such combination, that it disarranged his business and reduced
his prof;
The sole essential difference between the two situations is that
in the case of the strike the i>ower of production of the employer
was diminished, in the case of the boycott the power nf disposition
of the products when completed was lessened. The essential tiling.
the ability to carry on business according to the whim or desire
of the employer, was restricted. The decision of Chief Justice
Shaw in Commonwealth rs. Hunt marked a distinct difference in
the treatment of trade unions by the courts, and the exact logic
of his decision has received acceptance, boycotts being in question,
at the hands of such judges as Justice Caldwell, of Arkansas, and
Chief Justice Parker, of New York, while Justice Holmes, in his
dissenting opinion in the case of Vegelahn vs. Guntner (167 Mass.,
92), found occasion to say that "There is an opinion which lately
has been insisted upon a good deal, that the combination of persons to
do what any one of them lawfully might do by themselves will make
the otherwise lawful conduct unlawful. It will be rash to say that
some as yet un formulated truth may not be hidden under this prop-
osition. But in the general form in which it has been presented
and accepted by many of the courts, I think it plainly untrue, both
on authority and on principle."
If there be yet doubt in the minds of my hearers, that the courts
of equity have been illogical in the treatment of trade unions, listen
a moment to the utterance of the Earl of Halsbury in the case of
Quinn vs. Leatham (Appeal Case, 1901 ; Law Reports, p. 506), a
case often cited against trade unions, wherein he says, referring
to the language of the case of Allen vs. Flood (Appeal Cases, I,
1898), considered as favorable to them :
"I entirely deny that it can be quoted for a proposition that
may seem to follow logically from it. Such a mode of reasoning
assumes that the law is necessarily a logical code, whereas every
lawyer must acknowledge that the law is not always logical at all."
In view of the confusion of ideas and logic in which courts
have involved themselves, it is natural that trades organizations and
Use and Abuse of Injunctions in Trade Disputes 101
other thinkers upon the subject arc little disposed to await the long
course of years which would necessarily pass until reason could
triumph in judicial tribunal* witi
with regard to strikes after the decision in Commonwealth
Hunt. J to be expected that leaders of unions will accept
with e<|t: ii junction and sentence after sen-
tence for contempt, in the hope that at some time or other, during
lie of the present or a succeeding generation, courts will recog-
nize their blunders, and the sufferings of the present will be atoned
for by jiidu-ial triumphs in an indefinite future. And as the courts
* help themselves within reasonable time, labor organisations
have appealed, and doubtless will continue to appeal, for justice to
legislative branch of the government. The line their appeal
will take is shown by several existing or proposed acts, notable
among which is the "British Trades Dispr of 1906, the sub-
stance of which is as foil.
"An act done in pursuance of an agreement or combination by
two or more persons shall, if done in contemplation or furtherance
of a trade dispute, not be actionable unless the act, if done without
any such agreement or combination, would be actionable.
' It shall be lawful for one or more persons, acting on their
own behalf or on behalf of a trade union or of an individual em-
ployer or firm in contemplation or furtherance of a trade dispute,
to attend at or near a house or place where a person resides or
works or carries on business or happens to be, if they so attend
merely f. r the purpose of peacefully obtaining or communicating
information, or of peacefully persuading any person to work or
abstain from working.
i act done by a person in contemplation or furtherance of a
trade dispute shall not be actionable on the ground only that it in-
duces some other persons to break a contract of employment or that
an interference with the trade, business or employment of some
other person, or with the right of some other person to dispose of
1 or his labor as he v
i act against a trade union, whether of workmen or masters,
or against any members or officials thereof on behalf of themselves
and all other members of the trade union in respect of any tortxms
act alleged to have been committed by or on behalf of the trade
union shall not be entertained by any court.
IO2 The Annals of the American
"Nothing in this section shall affect the liability of the trustees
of a trade union to be sued in the events provided for by th
Union Act, 1871, section 9, excepting in respect of any tortious act
committed by or on behalf of the union in contemplation or in fur-
therance of a trade dispute."
Even before this act was adopted the law of England had been
liberalized, and, largely based upon the legislative expression of such
liberality, a bill was prepared and introduced into the House of
Representatives of the United States reading as follows:
"That no agreement, combination or contract by or between
two or more persons to do or procure to be done, or not to do or
procure not to be done, any act in contemplation or furtherance of
any trade dispute between employers and employees in the District of
Columbia or in any territory of the United States, or between em-
ployers and employees who may be engaged in trade or commerce be-
:i the several states, or between any territory and another, or
between any territory or territories and any state or states or the
District of Columbia, or with foreign nations, or between the Dis-
trict of Columbia and any state or states or foreign nations, shall
be deemed criminal, nor shall those engaged therein be indictable or
otherwise punishable for the crime of conspiracy, if such act com-
mitted by one person should not be punishable as a crime, nor shall
such agreement, combination or contract be considered as in re-
straint of trade or commerce, nor shall any restraining order or
injunction be issued with relation thereto. Nothing in this act shall
exempt from punishment, otherwise than as herein excepted, any
person guilty of conspiracy for which punishment is now provided
by any act of Congress, but such act of Congress shall, as to the
agreements, combinations and contracts hereinbefore referred to,
be construed as if this act were therein contained."
This bill three or four times passed the House of Representa-
tives, to be pigeonholed in the Senate Judiciary Committee, save-
on one occasion when Senator Hoar reported it favorably. Imme-
diately thereafter, however, upon the urgent representations of cer-
tain senators from New York and Connecticut, the bill was recom-
mitted, and thus ended the nearest approach to its adoption in the
American Congress.
Meanwhile, the idea contained in the bill became expressed in
a law adopted in the year 1903 by the State of California, the act
reading as follows :
Use and Abuse of Injunctions in Trade Uufults 103
"No agreement, com or contract by or between two or
more persons to do or procure to be done, or not to do or procure
) be done, any act in contemplation or furtherance of any trade
dispute between employers and employees in the State of California
shall IK- do mo! criminal, nor shall those engaged therein be i?
able or otherwise punishable for the crime of conspiracy, if such
act commit!* 1 l.y one person would not be punishable as a crime,
hall such agreement, combination <>r o-ntract be considered as
in restraint of trade or commerce, nor shall any restraining order
be issued with relation thereto. Nothing in this act
shall exempt from punishment. Mther\\i-o than as herein excepted.
any persons guilty of con ii punishment is now pro-
1 for by any act of the legislature, but such act of the legis-
re shall, as to the agreements, combinations and contracts here-
inbefore referred to, be considered as if this act were therein con-
tained ; Prwided, That nothing in this act shall be construed to
force or violence, or threats thereof."
It will be noted, therefore, that the relief denied by the Con-
gress of the United States has been : n England and Cali-
fornia, and. it must be confessed, without resulting in any of the
lire consequences which its opponents predicted. It is not recorded
violence and wrongdoing have become, because of the passage
of these acts, more common in either of the two jurisdictions where
the 1 been reduced to logic. Neither have the courts, be-
cause of its passage, become less efficient in any direction in which
they might justly act.
JIM as an appeal to the represc: .if the people to cor-
rect judicial blunders with regard to the responsibilities assumed by
one employee for the act of another was imperatively necessary, so
is such an appeal compelled by the course of events against
the abuse of the injunctive powers of cot:
USE AND ABUSE OF INJUNCTIONS IN TRADE DISPUTES
II. ADDRESS BY CHARLES E. LITTLEFIELD, ESQ.,
New York.
Mr. Chairman, Ladies and Gentlemen:
It i- necessary for me at the outset to premise that until I arrived
on the platform I was not a wart- that the subject of the morning's dis-
ihe u>e and abuse of injunctions in labor controvei
It is quite true that when I received the invitation to speak before this
; v. I had notice that I was to speak for fifteen minutes on injunc-
tions; not that it is embarrassing to me, but, as it takes that turn. I
want to say that it is a physical impossibility for me, in an extempo-
raneous speech, to cover this subject in half an hour or an hour and a
half, because it is a profound question of many ramifications ; it con-
cerns constitutional considerations, and the most I can do is to make
some statement, so you will be able to understand what an injunc-
tion is and what the relation of the injunctive power vested in the
court by the constitution is to the legislature ; how far the legis-
lature can go, not in exercising judicial power, but without in-
vading the judicial power of the court. There is a profound differ-
ence between judicial power and the jurisdiction of the court over a
subject-matter the judicial power which the court exercises where
it has jurisdiction, a distinction not very well understood not only
by laymen, but by those who belong to the legal profession.
In the first place, what is the injunction? what are the remedies
open to the citizen when his rights are invaded ? First, we get them
upon the common-law side of the court, and then upon the equity
side of the court. The equity side of the court gives to the suitor a
preventive remedy; the common-law side gives a remedial remedy;
the equity side seeks to prevent the doing of an injury, the work-
ing of damage. The common-law side of the court gives to the
suitor damages for the wrong when it is committed, for injury when
it is done. The equity side of the court proceeds upon the most
intelligent, civilized idea. It seeks to prevent the commission of
wrong to prevent the invasion of personal rights. The common-
law side gives to the suitor, when his rights have been invaded, a
remedy in damages. The office of equity is to preserve the peace.
(104)
Use and Abuse of Injunctions I'M Trade Disputes 105
The office of the common-law side is to get redress in damages in
case the peace has been violate. 1 ami injustice done.
\\ hat is an injunction - An injum tion is issued by a court of
\n <n '.!< M. M is issued only when an irreparable inju
It is only when such circumstance* exist that the court
has the indicial power to issue a writ -.1 injun. ti-.n. ami that applies
II tlu- O' > which the human body politic is heir.
Whenever ami wherever, under whatever circumstances and be-
M whatever parties, a condition is prescir !ie chancellor
- him that irreparable harm is likely to be done where
the remedy at lav. .te. his duty, umlcr his oath, is to issue
i ami prevent the doing of the harm, the accomplishing
of the injury. That is the fundamental legal proposition. I' n less
such a state of facts is presented in the chancellor, he has no power
an injunction. Whenever it is presented, it is his dir
issue an injunction and prevent the doing of the irreparable harm, no
may be or what may be the suhject -matter of
the controversy. It is just as much his duty to give to the suitor a
of injunction to restrain irreparable harm, as it is the duty
of the common-law court to open its doors in order that the suitor
may get redress for any invasion of his personal rights. They are
equally the right of the suitor, and they arc both equally binding
upon the conscience of the court.
I want to say a word about the constitutional features of this
because, in my opinion as a lawyer and I take great pride
.viiig that the views I entertain upon these legal propositions are
isely what they were before I became, and while I was, a
memher of the National I louse, ami the fact that I became a mem-
: hereof, vested with a little brief authority, with authont
say what I should do in the matter of legislation, did not prevent
their remaining precisely the same.
vc the utmost contempt for the alleged lawyer who allows
> be colored or distorted by the jxlitical -it nation
in w Inch he hapjK-ns to find himself, and I do not care what office he
. whether it be from the highest to the lowest, whether
executive or e. From my point of view, the law is not only
no respecter of persons, but it has not any j*htual affiliations. It is
neither Democratic. Republican, socialistic, anarchistic nor commu-
ie to whomsoever it may be applied.
<rs not even play hide and seek with any of these propositions.
io6 The Annals of the American Academy
\ \\ant to say here, lost I forget it my friend has called atten-
tion in his IK -anti fully and elaborately prepared paper to the
that courts have i-sned injunctions because men have said or done
this or that in connection with labor controversy, I challenge my
.tnd any other learned friend th,. nts that
side of the contr< - put his finger on a single decision where
an injunction has been issued preventing a man from doing an
individual act, or where a man has hccn haled into court for con-
tempt hecausc of violation of an order of the court ; I challenge him
to produce a from the beginning to the end of time where
cases have been reported, where a judge has issued an injunction
or where a court has punished a man for violation of an injunc-
tion, where the act was not held to be done in furtherance of a
conspiracy against some other man. Mark, it is not a question
of slander or libel.
My proposition is that he cannot produce a case that is not
based upon a combination or conspiracy. I am stating it in his
presence. He cannot produce a single case \\here any court has
lined a man in his alleged free right of speech and his alleged
free right of the press, where it will not be found to be an act
claimed to be a part of the carrying out of a criminal conspiracy,
or a conspiracy against the right of another man to do business or
get employment. It is not in the books, and it is trifling with this
discussion to stand in the presence of this audience and criticize
the right of injunction because men have been restrained, and dis-
guise the fact that under the circumstances and in every case it is
because the right of speech was used for the purpose of making
effective a conspiracy a boycott, not the kind he mentions, but the
same kind discussed in the case of Callan TS. Wilson, 127 U. S.,
540. I understood him to say this morning that a boycott was
an innocuous proceeding, that it was the coming together of a few
individuals, against which a man had no right to complain. Let us
return to this case, Callan vs. Wilson. It seems that Callan was
the unfortunate subject of a musicians' organization's ill-will in the
District of Columbia, who gathered themselves together and de-
1, inasmuch as Mr. Callan was not doing what they wanted him
to do, they would boycott Callan and prevent his doing what he
wanted to do, unless he did it as they wanted him to do it. Callan
went to the courts and accused these men of being guilty of con-
spiracy. Mr. Wilson was convicted by a magistrate. He was not
Use and Abuse of Injunctions \n Trade Disputes 107
a jury, but by a single magistrate. My learned friend
brought a writ of habeas corpus to release Wilson on the theory
a boycott was then a grave offense, not a minor but a grave
ie, SO grave that the man was entitled to trial by -ni-ii.
and the Supreme Court of the t'nited States sustained the con-
n made by my learned friend, and held that this boycott he
refers to now was \\ hat ' "a con- such as is charged gifr***
him and his o d< by no means a petty or trivial offense."
If I got the significance of his paper this morning, it was no
offense at all ! m.w. Imt then and there, when he was under -
the benefit of the law of the land, it was by no means
offense, and the court said, further. "It is an offense of a
grave character, affecting the public at large." My friend does not
seem to realize what it is that gives it this grave character. If he
had looked up the case of Callan rs. Wilson, he would have seen
that it was the effect on "the public at large" that made it of "a
grave character." Now. as to the question as to whether a boycott
lous or \\hether it is an offense of a grave character. I
appeal to my learned friend in the case of n, when
he si in getting the Supreme Court to hold with him that it
was an offense of a grave character. I want to say a word about
f injunction and the uses to which it is put. Bear jn mind
'.efmitinii with which I began, that it is preventive in its char-
acter, to prevent the commission of a wrong under circumstances
win re irreparable injury is about to be done with no adequate
at law. Perhaps I *h u!d r -ad what the courts have
parable injury is. "Irreparable injury as used in the
law of injunction does not necessarily mean that the injury is
beyond the possibility of compensation in damages, nor that it
must be very great, and the fact that no actual damages can
be proved, so that in an action at law a jury could award nominal
damages only, often affords the best reason why a court of equity
should interfere \\herc the nuisance is a continuous one:
where an injury is of such a nature that it cannot be adequately
compensated in damages or cannot be measured by a pecuniary
standard it is irreparable. Irreparable injury justifying the
issuance of an injunction may be such either from the nature of
the injur or from want of responsibility in the person com-
mitting A'ords and I'hrav ;p. 3772-3.) That is
\\hat the courts have said irreparable iir
io8 The Annals of the American Academy
Whenever these conditions are presented in any controversy,
no matter what question may be in dispute, in a controversy in-
volving personal property, or personal right-, without which exist-
ence itself would practically be a failure, the le^al principle is pre-
\ the same. 1 challenge the production of any case, from the
old common-law ca<es. hundreds of years before the constitution
was written by the fathers, from then until now, where an injunction
has been issued which was not predicated upon this fundammtal
proposition. The fact that they were not formerly applied largely
to labor controversies simply illustrates the fact that we have a
development of social conditions involving the application of funda-
mental principles of law ; hut do not let us i^rt the idea that the only
use of injunctions is in connection with labor controversies. Let
me give you a very brief list of subjects where the writ of injunc-
tion is used, and necessarily used. Infringement of patents, copy-
rights, trade marks, restraints of trade, unfair competition, inter-
ference with water rights, pollution of water. An injunction may
also be used in restraining nuisances, and in connection with mines
and mining rights, to prevent trespass upon real and personal prop-
erty, fraudulent sale of property, breaches of trust, to enforce rights
of ccstui quc trusts against trustees, to prevent the prosecution of
cases before foreign courts where litigants have gone in an attempt
to secure different results from that reached where the case was
fir^t brought, and in connection with violations of the Sherman
Anti-Trust Law.
This audience does not need to be reminded that in the con-
ditions of unrest that now prevail throughout the country we have
had a vast crop of ill-advised and unconsidered, and in some cases un-
constitutional, state legislation, undertaking to deprive public service
corporations of their property without compensation by depriving
them of the right to secure for the use of their property reason-
able compensation. Legislation tll-coiuidered and unconstitutional,
the enforcement of which the United States courts have frequently
lined. In these cases a writ of injunction is very beneficial.
Also, in restraining public service corporations from making ex-
cessive charges and from imposing excessive and improper burdens
and conditions upon the people who deal therewith. Also, in re-
straining the collection of illegal taxes. That is a very familiar
use of the writ of injunction. Time and time again, in a great
Use and Abuse of Injunctions in Trade Disputes i ,
many of our stat urt of equity has been called upon to re-
strain the collection of illegal taxes; restraining also the violation
of contracts where people have contracted themselves out of a busi-
ness, and finally in boycotts and labor controversies, but in every
instance and in the case of every subject-matter, they are predicated
.al proposition. As a matter of illustration, let me
call attention to the fact that from 1903 to 1910, seven years, the
Federal Rentiers show 386 injunctions upon all these matters, only
i \\liuli \\rrc in connection with labor controversies.
About six per cent, of the injunctions in the Federal courts were
issued in cot. with lal>or controversies during a period of
. 1 \\;mt to say a few words about questions which I be-
to be fundament..! 1 do nut believe that the legislature has
i power to limit the judicial power in connection
\\itli tin- issue of a writ of injunction. I want to call your attention
to a leading case, and to the lay reader I want to say a few words
as to some pending legislation before the American Congress in con-
nection with carrying out some of the alleged promises in what is
known as the Republican platform, and I want to say that when I
a fool pi it makes no difference to me whether it be a
Republican or a Democratic platform.
In a Michigan case (25 Mich . 274 i the court said:
"It is within the power of a legislature to change the for-
malities of legal procedure, but it is not competent to make such
ijes as to impair the enforcement of rights . The func-
tions of judges in equity cases in dealing with them are as well settled
/ of the judicial />t>:ivr and as necessary to its administ ration
as the functions of juries in common-law cases. Our constitutions
are framed to protect all rights. When they vest judicial power
do so in accordance with all of its essentials, and when they
vest it in any court they vest it as efficient for the protection of
rights, and not torud or made inadequate. The
right to have equity controrcrsies dealt TCI'//I by equitable methods
is as sacred as the right of trial by jury. Whatever may be the
machinery for gather mony or enforcing decrees, the facts
and the law must be ' together; and when a chancellor de-
sires to have the aid of a jury to find out how facts appear to such
unprofessional men, it can only be done by submitting single issues
1 10 The Annals of the American Academy
of pure fact, and they cannot foreclose him and his conclusions
miles, they convince his judgment."
And again :
"In all ages and in all countries this distinction by nature.
which was never called 'equitable' except in Knglish jurispru<!<
whci iir-t BO rallrd from an idea that the ri^ht> were im-
perfect because unknown in the rude ages, when property \\a-
scanty, and business almost unheard of in the regions outside of
great citie-. has l K -en i. d and provided for by suitable
methods substantially similar in character. . . . The system of
chancery jurisprudence has heeii developed as carefully ami a- judi-
ciously as any part of the legal system, and the judicial power in-
cludes it. and always must include it. Any change which transfers the
power that belongs to a judge, to a jury, or to any other person or
as plain a violation of the constitution as one which should
give the courts executive or legislative power vested elsewhere. The
cognizance of equitable questions belongs to the judiciary as a part
of the judicial power, and under our constitution must remain
vested where it always has been vested heretofore."
Note the significance of the language:
"The right to have equity controversies dealt with by equitable
methods is as sacred as the right of trial by jury."
It follows, then, that whenever a citizen presents to the chan-
cellor a state of facts which shows that his rights are threatened, the
result of which will work irreparable injury without adequate rem-
edy at law, his right is, according to the immemorial practice of the
chancellors to the present time, to have the chancellor issue for him
the writ without which irreparable injury cannot be prevented. I f
the chancellor refuses to issue the writ, or if the legislature refuses
to allow the chancellor to exercise that right, then you have a situa-
tion where the citizen is deprived of his rights. Wherever the con-
dition of facts exists which show irreparable injury without adequate
remedy at law, there the suitor is entitled, under the constitu-
tion, to the equitable right of injunction, as he is under other
conditions entitled to a trial by jury, when it comes to the remedial
side of the court. It follows that the legislature cannot pro-
hibit the exercise of that power by the chancellor without inter-
fering with the rights of the citizen. The constitution of the United
States provides that the Supreme Court of the United States, and
Use and Abuse of Injunction* I'M Trade Dufutss 1 1 1
such inferior courts as the legislature may "from n >c ordain
and cslahlrir shall be vested with the judicial |H,wer Congress
may create the court, give n jtu over the subject-matter.
l-.it when tlr ! an.! -P. M jun the Constitution vests
in thr court the judicial ]><>\\tr It : just as much the right of
injunction a > it : to demand a
i if he the legislature he is
^ht just as much as he would be de-
1 of the right of trial by jury. Shall a man
ation of hi al ri^ht for twenty-four or
'it hours? If the legislature can say the order shall not
ucd e\ -ty-eight hours' notice, it can equally well
say i rtecn days. My opinion is that the legislature
tin- judicial power. It is vested in the courts through
itution. \Yc inherit the right to the equit-
able judicial power in the same manner and with the same indc-
'!c title that we inherit the right to the common-law judicial
I want to say here, in passing, that there is not the slightest
to-day of the right of the Federal court to issue a tempo-
rary restraining order when proper conditions are presented, without
! hearing, purely r.r f</r/r. In the great Debs case, which
is the n. us case of its kind, the opinion in which was
drawn by one of the ablest men who t ;:i the Supreme Court
l/nite. 1 : passed to his reward. Justice Brewer
in this case there was an r.r /cirf c - or.ler i-sucd. Lyman Trumbull, a
KMiislu-i ! the first point in his brief that the
injunction issued under those circumstances for the violation of
i Mr Debs had been sentenced to five months' imprisonment,
could not be properly enforced against him. The first point made
was that the injunction was jsxuol <-.t piirtc. without notice. The
spec: md the court did not dignify it by even a
>, to-day a restraining order can be issued without
;s understood to be a promise of the Re-
tiring the campaign of 1908, a proposed bill pro-
that when a temporary restraining order has been issued with-
out notice it shall be dissolved after the expiration of seven days,
Ige sees fit during that time, after notice and hearing,
to continue it. It is not within the i>owcr of Congress to decree an
112 The Annals of the American Academy
injunction. It is only within the power of the court. It is a judi-
cial power. It is for the chancellor to say whether irreparable
injury is threatened and whether the complainant shall have an in-
junction to protect his rights. It is not for the legislature to say
by an arbitrary act that at the end of seven days irreparable harm
has ceased to be threatened, and that the conditions established by
proof no long
It is for the same judge to determine when tin- injunction
shall be dissolved, or for some other judge or judges to whom an
appeal may be made. I do not believe the legislature can arbitrarily,
without reference to the merits, say that an injunction shall expire
at any specific time, where there are rights requiring continuance
of the injunction. The legislature cannot issue, or, in my opinion,
dissolve an injunction. This is not a government by the legislature.
It is a government of law, and not of men, especially men that sit
controlled, as men are in the American Congress, by overpowering
political considerations. This is the great fundamental proposition
in the constitution, that guarantees to you and to me the enjoyment
of the personal rights that were given to us by the Creator to enjoy.
For these reasons I believe that the bill now pending is no credit
to the administration, nor do I believe it will be any credit to the
American Congress if it passes. I am fundamentally and utterly
opposed to any infringement by the legislature of the judicial power.
Its free and untrammeled exercise is necessary to our freedom, and
the maintenance of our rights.
I want to say a word about this platform. I want to say, first,
that this plank in this platform placated nobody, appealed to nobody,
was commended by nobody. The representatives of the American
Federation of Labor had a right to present their contention to
the conventions. The American Federation of Labor looks upon this
plank with contempt. They wanted some legislation that carried
out some ideas they had. The Republican party merely threw a
tub to a whale, and I want to say it was a mighty poor tub. The
whale was entitled to better treatment. The demand should have
been refused in a manly and courageous way. Instead of this, a
rhetorical subterfuge was adopted. The plank reads: "The Re-
publican party will at all times uphold the authority and integrity of
the courts, state and Federal, and will ever insist that their powers
to enforce their process, and protect life, liberty and property shall
UfC und .-//>MJr of Injunctions in Trade Disputes ilj
be preserve! in \inl.iu- ." 1 \\..uM like to know whether a piece of
legislation that u N to dissolve an injunction issued by the
protect my rights, where 1 am threatened with irreparable
injury, \\ith ^ion of the rights of the
it does not preserve
them "n as this ^litterin^ ^ declares they intend
to do. Again, "V wcver, that the rules of procedure in
ith respect to the issuance of the writ of in
h-.ul.l he in- -M- accurately defined by statute, and that no
injunction or temporary restraining order should be issued without
notic i where irreparable injury would result from dela
>c a speedy hearing thereafter should be granted/' and that
the la\\ U to-day. The convention said that when
iporary restraining .rder t restrain irreparable harm was issued
<*, a speedy hearing should be granted. That means that
the judtfe who issued it should exercise his >n speedily in de-
niiiK whether or not the injunction shu!d be continued. \Vliat
does the bill do which is alleged to be a performance of the promise
of the Republican parts ? It substitutes for the discretion of the
the arbitrary fiat of the legislature, and dissolves the in-
junc hin seven days, no matter whether the injury
It may be said that the literal fulfillment of the
protr. id be as ] I the promise itself. If you are going
out a puerile promise, make the performance as puerile
to promise. If the law must be passed because of the swro-
stjtu : T of the promise, then carry out the promise and go
no further. The pending bill goes way beyond it and cannot be
ied by the platform.
Now, I have a few more words I want to say about this great
question. 1 cann. .t -top here. I do not propose to start in and dis-
cuss the legislation my friends insist upon.
1 ssas much surprised. I am free to say, to hear my learned
d who 1 addressed you quote a part, and a part
of some English n on this question. I think I am entitled
to say that he deliberately suppressed the balance of the statute from
which I'.- the quotation. [ For Mr. Ralston's reply to this
charge, see page 118. EDITOR.] My learned friend. Mr. Ralston,
appeared before me. svhen I was a member of the Judiciary Com-
mittee of tiie House of Representatives and read this same extract
ii4 The Annals of the American Academy
from this same English statute. \\hen urging the pacing o f legis-
lation before the American Congress which would exempt labor or-
ganizations from injunctions where the ftCt, if committed by a single
man, would not be a crime; but he failed to say then, as lie did
this morning, that there were important qualifications conn-
with the English statute which passed in 1875 and was amended in a
material part in 1906.' I will call your attention right now to some
of the profound qualifications that tend somewhat to discount the
taesa <f the snj^e-tion made by him. I may say this: I do not
think my learned friend had any particular occasion to leave the
impression he gave you. [See Mr. Ralston's statement, p. 118.
EDITOR.] In my minority views that I wrote in 1902 I called
the attention of Congress and the country, and my learned friend,
to the fact that he then made the same suppression that he has
made now. I do not know whether he ever read those minority
views or not, but I assume he has read the statute, and that.
therefore, he knows what I am going to call your attention to.
It is true that the English statute provided that no one should
be indicted for conspiracy for an act which, if done by a single
individual, would not be a crime, yet in the same statute which
was passed by Parliament by the same omnipotent English Parlia-
ment, which can to-day, if it wishes, repeal the Magna Charta and
deprive the citizen of the right of habeas corpus, because they have
an unwritten constitution which does not restrain legislative
action, in that act they took care to make things punishable as
crimes that I submit, without hesitation, are not punishable as
crimes in any other civilized jurisdiction, either English or else-
where. Let me call attention to some of them, and no in-
telligent conception of this legislation can be had, or obtained
cept by a careful knowledge of these exceptions and limitations.
The English statute provides, among other things, that nothing
"shall exempt from punishment a party guilty of conspiracy for
which punishment is awarded by any act of Parliament," so that
act left them subject to indictment for all conspiracies then punish
'An examination of Mr. Ralston's notes shows that while he did not
quote the particular paragraph I had in mind when I replied, he did refer
to and purport to state its effect when lie said: "Even before this act was
-d the law of England had been liberalized, and. largely based upon
the legislative expression of such liability, a bill was prepared and intro-
duced Into the House of Representatives of the United States, reading as
follows," etc.
Use and Abuse of Injumiions in Trade Disputes 115
able. Second, "Nothing in this section shall affect the law relating
t, unlawful assembly, breach of the peace or sedition, or any
offense against the state or sovereign."
Let me go a little further. The thin! exception provided that
'Where a person employed by a municipal authority or by anv
company or contractor, upon whom is imposed by act of 1'arliu
the <luty or who have otherwise assumed the duty of sup-
ig any city, borough, town or place, or any part thereof, with
gas or water. \\ilfully and maliciously breaks a contract of service
\\ith thai authority, or company, or contractor, knowing or having
reasonable cause to believe that the probable consequences of his to
alone or in combination with others, will be t
the in! of that city, borough, town, place or part,
wholly or to a great extent of their supply of gas or water, he shall,
on conviction thereof by a court of summary jurisdiction or on in
dictt hereinafter mentioned, be liable either to pay a penalty
not exceeding twenty pounds or to be imprisoned for a term not
exceeding three months with or without hard labor."
Now. how much of a boycott would you think could be carried
on successfully in Midland against the water company, or electric
v, which ponsible for the supply of water or
gas to the inhabitants? The act of a single individual was made
liable as a crime. There is no such legislation in this country
No one found any legislation of that sort which they could use for
lure in the last three or four weeks. A little further:
"\V1 .11 wilfully and maliciously breaks a contract of
:ce or of hiring, knowing or ha\ing reasonable cause to believe
the probable consequences of his so doing, either alone or in
comt with others, will be to endanger human life or cause
. injury or to expose valuable property, whether real
rsonal, to destruction or serious injury, he shall, on conviction
. >r imprisoned. Where would a boycott be on that
proposition^ How long could they carry it on successful:
fifth exception is found under the following proviso:
erson who. with a view to compel any other person to
abstain from doing or to do any act which such other person has a
legal right to do or abstain from doing, wrongfully and without
legal authority
i "Uses violence to or intimidates such other person or his
Il6 The Annals of the .lni t -iu\in
\\iie or children, or injure- In- property" that is to say, whenever
any individual cither u-e- violence or intimidates any other pcrs.m.
or hi* \\ i t'e . r children, or injures his property, he is liable to fine and
imprisonment.
2. A man cannot persistently follow another person about from
place t<> place under this statute, in England, without snch individual
being guilty of a crime, punishable by fine and imprisonment. This
did not occur to my learned friend when he gave you this legislation
and when he gave it to my conimr
It is getting to be important that in these great discussions we
should have all the fact*. The statement of part of the facts is
not particularly useful in reaching an intelligent and safe conclusion.
If you have a good case there is no reason why you should sup-
any of the important facts, especially when you expect to
rely on part of that legislation to establish your contention. At
that is my view.
(3) Provides fine and imprisonment for any one who "hides
any tools, clothes or other property, or deprives him of or hinders
him in the use thereof."
(4) Any one who "watches or besets the house or other place
where such other person resides or works, or carries on business,
or happens to be, or the approach to such house or place," is sub-
ject to fine and imprisonment.
(5) Any person who "follows such other person with two or
more other persons, in a disorderly manner, in or through any street
or road" shall be liable to fine or imprisonment.
Now, if human ingenuity can suggest any other thing that is
done in connection with a boycott which is not specifically punish-
able by this act of Parliament when "committed by one person," I
cannot imagine or conceive of it. Now, that would be a great boon,
would it not, to the labor organizations? I submit to my friend
that he is not using this audience in a candid manner. I submit to
my learned friend that, after having presented this to my com-
mittee in 1902, and having characterized it since, without calling
attention to these exceptions I protest that it is not entirely candid
in an institution of this kind, intended to produce intelligent think-
ing, to suppress the vital portions of a statute.
Now, my friends, I have taken a great deal more time than I
intended to when I began. I close the whole discussion, so far as I
Usf and Abuse of Injunctions m Trade Disputes 117
am concern t-. I. uitli tin nnal suggestion 1 :.: a- 1 "i ' <mgrcss which
is now proposed is predicated upon the idea that there is neglect
upon the part .i tlu- c.urt m giving an oral hear i me say
a temporary r is issued, it is open
ic respondents, who are those rest r a me. 1. to apply immediately
.mi-ill r issuing that order for a dissolution of the injunc-
tion. He does not have to wait one day or seven days. He can
apply on the same day that the and it i-. in the
: the 0'iirt as to when the hearing shall be had.
I challenge the production of a well-authenticated case where a
Federal judge (I do not say the judges arc above criticism; the
bench is fallible, it is finite, as is every other human institution)
l-ut I challenge the ; n of a well-authenticated case where
I been an abuse of discretion by a Federal judge in a re-
' to grant a speedy hearing on a motion to dissolve a tem-
porary restraining order. The Federal judges arc entitled to the
approval expressed by the Supreme Court of the United States
in the Young case, where the court said: "No injunction oug
be granted unless in a case reasonably free from doubt. We think
such and Mil be, followed by all the judges of the Federal
COU'
Let me give you an illustration one case which caused a great
deal of disturbance in the House of Repre- and in the
Senate. Great statesmen sitting there to legislate and deliberate
upon great questions affecting the welfare of ninety millions of
people, took occasion in public speech to assail Judge Dayton, of
rginia, for issuing without notice a temporary restraining
order, ami making it returnable about thirty days after issuance,
ral senators and representatives, and men holding high places,
allowed themselves to become vigorously disturbed. The fa
that Judge Dayton did issue the order without notice. It was ad-
journed three times, and during that whole period, covering more
this case of the Hitchman Coal Company was allowed
to rest and the .v for the defendants never gathered them-
's together sufficiently to even make a motion to dissolve that
injunction, Imt had it continued on their own motion over a year.
For that. Judge Dayton was without limit assailed, when the delay
was wholly at tb e of the dct amj in no sense the
fault of the judge. That is one of the cases which. I understand.
Il8 The Annals of the American Academy
is relied upon to ju-tii'y tliis legislation. My learned friend on
the Other side will have some difficulty in finding any well-authenti-
cated cases of abuse. On the whole, the Federal judiciary has dis-
charged its duty in a way that i- worthy >f the approval and
approbation of law-abiding, God-fearing, liberty-loving American
citizens.
MR. RALSTON'S REPLY, MADE AT THE CLOSE OF MR. LITTLEFIELD'S
ADDRESS
In the heat of his discussion, Mr. Littlefield, accomplished
speaker as he is, has been led into making statements which, I am
sure, on cooler reflection he will be glad to withdraw. He has
practically charged me with suppressing, before you, part of the
trades union act of 1906. I may say that I have that written in
full in the paper before you, and it was not read merely from con-
sideration of time.
Mr. Littlefield has also stated that I was guilty of some sup-
pression in appearing before the committee of which he had the
honor to be a member, in the House of Representatives. I think
he is slightly in error in his statement, as he made it. The act from
which I read was passed in 1906, and my appearance before the
committee of which he was a member was in 1902, and I feel that
my prescience in 1902 was not sufficient to know what was passed
in 1906; but if he means to say that at the time of my appearance
I did not read all the act of 1871, I must say that may or may not
be true. I have no recollection upon the point, but the question
which was then before the house was exactly whether there should
be given the modification of the statute which I have described and
narrated to you fully, and I then contended, as I now contend,
that peaceful boycotts ought to be absolutely out of the power of
courts of equity. From the citation which Mr. Littlefield has
read to you, and from the old act, which related not to peaceful
boycotts, but to boycotts involving an element of wrong, which I did
not then contend should escape the power of courts of equity, and
do not now contend, it would have been impertinent and a waste
of time to read the articles referred to to-day, and which were not
involved in this discussion.
Ust and .'Ibust- of Injunctions in Trade Disputes
STATE MI MM. I.ITTI.KFIKUI. FOLLOWING MIL RALSTON'S
1 take great pleasure- in saying, first, that I assume no respoti-
sitilr hat my fru-nl <lil n- He read exactly what he
i did it..! n-ail \\li.it he said he did n.t rrad l.t-t him |>ul>
\\tth Ins remarks tin ;. and when he does be will
t of 1906 made an amendment in
the gentleman puhlish with his remarks, as an append:
t >!' i/rf and the ^75. ami then if
body takes pains t,, read this M later, let him state whether
API
Comparative Summary Provisions of English Statutes of 1875
cerning < -n of Property,
and 1906, Regulating Trades Unions and
Trades Disputes.
As Mr. Ralston has not quoted the Act of 1875 and the Act of 1906.
much of both acts in parallel . .(minis as relates to
ei ami ci\il liability the Act of 1906, wilh one exc;
liability
ENGLISH STATUTCS, VOL. 10, 1875, I->I.MSH ST MITES, You 44. 19061,
.
for amending the Law \ct to provide for the reguU-
lating to Conspiracy, and to the Pro- Trades Unions and Trades
of Property, and for other Dispr i-iod)
! , 1875.)
Qttecns most Be it enacted by the King's most
lent Majrsty. by and with the Excellent Majesty, by and wilh ihe
: the L"- me! consent of the Lords
I Com- Spiritual and Temporal, and Com-
mons in ' irliamcnt as- 111011%. in tin inicnt as-
I. .M.l by the authority of the sembled. and by the authority of the
same, as follows: same as follows:
Act may be cited as the I. The following paragraph shall
. an. I Protection f Prop- be added as a new paragraph after
erty Act. 1875. tnc fir$l paragraph of section thre*
2. This Act shall come into opera- of the Conspiracy and Protectioa of
lion on the first day of September. Property Act, 1875 :
one thousand eight hundred and
The fnllowlns apprndli WM pr^rd by Mr. I.It 1 1
I JO
The Annals of the American Academy
Conspiracy, and . ; of
i agreement or combination by
two or more persons to do or procure
to be done any act in contemplation
or furtherance of a trade dispu:
n employers and workmen shall
IK- indictable as a ..ey if
such act committed by one person
would not be punishable as a crime.
Nothing in this section shall ex-
empt from punishment any persons
guilty of a conspiracy for which a
punishment is awarded by any Act
of Parliament.
Nothing in this section shall affect
the law relating to riot, unlawful as-
sembly, breach of the peace, or sedi-
tion, or any offense against the state
or the sovereign.
A crime for the purposes of this
section means an offense punishable
on indictment, or an offense which is
uojpiAuoD Xjutuuins uo 9|qui|siund
and for the commission of which the
offender is liable under the statute
making the offense punishable to be
imprisoned either absolutely or at the
discretion of the court as an alterna-
tive for some other punishment.
Where a person is convicted of any
such agreement or combination as
aforesaid to do or procure to be done
an act which is punishable only on
summary conviction, and is sentenced
to imprisonment, the imprisonment
shall not exceed three months or such
longer time, if any, as may have been
prescribed by the statute for the pun-
ishment of the said act when com-
mitted by one person.
4. Where a person employed by a
municipal authority or by any com-
pany or contractor upon whom is im-
posed by Act of Parliament the duty,
A ho have otherwise assumed the
duty of supplying any city, borough,
ii or place, or any part th
with gas or water, wilfully and ma-
usly breaks a contract of service
that authority or company or
contractor, knowing or having reason-
able cause to believe that the prob-
able consequences of his so doinp,
r alone or in combination with
others, will be to deprive the inhab-
i'ants of that city, borough, town.
place or part, wholly or to a great
"An act done in pursuance of an
agreement or combination by two or
more persons shall, if done in con-
dition or furtherance of a trade
dispute, not be actionable unless the
act, if done without any such agree-
ment or combination, would be ac-
tionable."
Use and Abust of Injunctions in Trade UispuUt 121
extent of their supply of
water, be thai) on convi
by a cuurt of summary jurisdiction,
Kiiiufter men-
tioned, be liable either to pay a pen-
alty not exceeding twenty pound
e imprisoned for a term not
months with or v.
out hard labor.
municipal authority,
company, or contractor as it men-
ill cause i
potted up, at the gasworks -
case may be, belonging
iipany. or
me con*|>: u-e. where the
same may be conveniently read by the
persons employed, and as often as
Miv h > i'v IMO.MH s 1. i.i. T.I. oblitet
atr! shall cause it to be
asonable despatch.
If any municipal authority or com-
pany or '. make default in
com; h the provisions of this
. relation to such notice as
!. they or he shall incur on
nary conviction a penalty not ex-
I >ounds for every day
during whuh such default
v person who unlawful!
. defaces or covers up any i
U aforesaid in pursuance
^hall be liable on sum-
>n to a penalty not ex-
ceeding forty shillings.
re any person wilfully and
aks a contract o( ^
hiring, knowing or having
reasonable cause to believe that
probable consequences of his so do-
>r in combination
'.ill IK- K endanger hu-
lifc. or cause serious b<><lily in-
vj%e valuable prcj
T personal to destruc-
1 on
reof by a -im-
irnt
lafter m
:>ay a penalty not exce<
Is, or to I
;n three
month x with or without hard labor.
being legally
apprentice necessary food,
122
The Annals of the .hua. ,/tmv
medical ai<J, or lodging, wilfully
without lawful excuse refuses or
neglects to provide the same, where-
by the health of the *
prer : usly
or permanently injured, he sh.ill >n
:i IK- liable ei'her
to pay a penalty not exceeding;
twenty pounds. Of to be imprisoned
\ months,
with or without hard lal.or.
Every person who. with a
to compel any other person to ab-
from doing or to do any act
which such other person has a legal
ri^ht to do or abstain from doing,
igfully and without legal au-
thority.
to or intimi-
h other person or his wife
or children, or injures his property;
or,
(2) Persistently follows such other
person about from place to place; or,
(3) Hides any tools, clothes, or
other property owned or used by such
other person, or deprives him of or
hinders him in the use thereof; or,
(4) Watches or besets the house
or other place where such other per-
son resides or works, or carries on
business, or happens to be, or the ap-
proach to such house or place; or,
Follows such other person
with two or more other persons in a
disorderly manner in or through any
W road.
Shall, on conviction thereof by a
court of summary jurisdiction, or on
indictment as hereinafter mentioned,
be liable either to pay a penalty not
exceeding twenty pounds, or to be
imprisoned for a term not exceeding
three months, with or without hard
labor.
Attending at or near the house or
place where a person resides, or
works, or carries on business, or hap-
pens to be, or the approach to such
house or place, in order merely to
obtain or communicate information,
shall not be deemed a watching or be-
setting within the meaning of this
section.
& Where on any Act relating to
employers or workmen a pecuniary
penalty is imposed in respect of any
offense under such Act, and no power
is given to reduce such penalty, the
2. (i) It shall be lawful for one
or more persons, acting on their own
behalf or on behalf of a trade union
or of an individual employer or firm
in contemplation or furtherance of
a trade dispute, to attend at or near
a house or place where a person re-
sides or works or carries on busi-
ness or happens to be, if they so at-
tend merely for the purpose of
fully obtaining or communicat-
ing information, or of peacefully per-
suading any person to work or ab-
stain from working.
(2) Section seven of the Conspir-
acy and Protection of Property Act,
i- hereby repealed from "at-
tending at or near" to the end of
the section.
Use and Abuse of Injunctions in T?adt Dispu 123
lattices or court having jurisdiction
may, if
.'u-,1 so to do. impose
by way of penalty in respect of such
offense, any MUM not less than one-
t the penalty imposed by
j. An act done by a person in con-
templation or furtherance of a trade
ite shall not be actionable ot>
ground only that it induces some
r person to break a contract of
employment or that it is an intr-
< , business, or
ncnt of some other person
with the right of some other person
to dispose of his capital or his labor
as he wills.
4- (i) An action against a trade
union, whether of workmen or mas-
ters, or against any members or offi-
cials thereof on behalf of therm-
and all other members of the trade
union in respect of any tortious act
alleged to have been committed by or
on behalf of the trade union, shall
not be entertained by any court.
(2) Nothing in this section shall
affect the liability of the trustees of
a trade union to be sued in the
events provided for by the Trades
Union Act, 1871. section nine, ex-
cept in respect of any tortious act
committed by or on behalf of the
union in contemplation or in further-
ance of a trade dispute.
I also quote an extract from the minority views filed by me as a
of the Judiciary Committee of the House of Representatives in 1002:
THE ENGLISH LAW.
An exaniin.it ion of the origin of
the legislation which i* relied upon
as the precedent for this bill will.
perhaps, he instructive. Jackson H.
Ralston, Esq.. an attorncy-at-law and
cout f Labor,
: and appeared before
the the last Con-
the
:se language of the bill and the
dents therefor he used this lan-
guage at the hear:
an to say that upon exam-
ination of the statute law of other
jurisdictions I found that the Parlia-
ment of England had met the very
condition that seemed to be confront-
ing the labor organiration here, and
in the act known as the 'Trades
.;.' Parliament had
provided that where an act could
be committed by an i
not be criminal, the same act. if com-
mitted by a number of individuals in
combination, could not be
<-ct of the
law or could not be deemed a crim-
inal act.
124
Innals of the American Acac.
"The Chairman What was the
date of that act?
"Mr. Ralston That act was passed
in 1875.
Mr Parker Does it apply to all
acts, no matter what they a:
'Mr Ralston In relation to trades
disputes.
"Mr. Parker It would not, there-
fore, apply to a boycott ?
"Mr. Ralston Yes; it would apply
there absolutely.
"The Chairman Even if they
ed the man to death?
"Mr Ralston- it would
apply to an act <>f that kind, and for
this reason: That any man has a
legal right to purchase from any
r man that he chooses, and there
is a correlative right in every man to
refuse to sell him his goods. That is
rifta."
very clearly giving to the commit-
tee the impression that the language
which he quoted as being the sub-
stance of the English law was a cor-
rect statement of the scope of that
lation. And upon this same
point, more effectively impressing the
committee with the idea that he was
simply asking in substance a re-en-
actment of the English statute, and
leaving upon their minds the impres-
sion that its scope, operation and
effect had been accurately stated by
him, he said further:
"Continuing the argument I had in
mind. I have stated, 1 think correctly,
the law under this Act of 1875. Now
the Trades Union. Act was followed
in Maryland in the Act of 1884. I
have here the Maryland act as it was
incorporated in the code of 1888. The
language is as follows:
" 'An agreement or combination by
two or more persons to do or procure
to be done any act in contemplation
or furtherance of a trade dispute be-
tween employers and workmen shall
not be indictable as a conspiracy if
such act committed by one person
d not be punishable as an offense.
Nothing in this section shall affect
the law relating to riot, unlawful as-
sembly, breach of the peace, or any
offense against any person or against
"That is, as I say, the language of
the Maryland Act of 1884.
"Mr. Parker AIM) that was the
language of the Hugh^i ^75?
"Mr. Ral identically
the language of the English act and
the language which has been follo\\, .1
in the hill now before the comnu
'I bus. very clearly leaving upon the
mind of the committee the imprc
that he had accurately stated the
scope of the English statute. The
Quotation which Mr. Ralston made
from the Mary la r
and the effect >f making the
quotation is only to intensify the im
pression that he had also accurately
Mated the scope of the English
ute. Thi ion of the English
statute, with the idea that Congress
was to accept it as a legislative prec-
edent in legislating upon this subject
was a very serious misconception of
the scope of the English law. The
fact is, as the brief analysis of the
English statute which is given below
will show beyond all possible peradven-
turc, that the English statute when ac-
curately stated is very much narrower
in its scope than the language used
by Mr. Ralstmi in stating the English
law, and is, in fact, by numerous lim-
itations and restrictions upon it^
eration, not only practically innocu-
ous, but extremely oppressive in its
operation upon laboring men, as it
creates offen- t'orc unknown
in the English law and never yet made
nor attempted to be made criminal in
any American jurisdiction.
What Mr. Ralston did was to take
one section of a chapter nearly word
for word, disconnect it from at least
eight distinct and specific provisions
which narrowed and limited the scope
of its operations. The section which
he quoted as a legislative precedent
for our action reads as follows, and
is a part of the Conspiracy and Pro-
tection of Property Act of 1875:
"An agreement or combination by
two or more persons to do, or procure
to be done, any act in contemplation
or furtherance of a trade dispute be-
tween employers and workmen shall
not be indictable as a conspiracy if
such act committed by one person
would not be punishable as a crime."
The first exception reads as fol-
lows:
"Nothing in this section shall ex-
Use and Abuse of Injunctions in Trade Dufutss
cmpt from punishment any persons
y of a conspiracy h ft
Junuhmcm is awarded by any met o I
what the fcope of
tion it coukl not be stated in <
*tat-
v law of KngUnd to ascertain as
. hat particular subjects the law of
The second exception it :
.1* section shall affect
the law relating TO n-t. unlawful as-
reach of the peace, or scdi-
e against the state
or tl ijcn."
The
re any person wilfully and
maliciously breaks a contract of ,
ice or f hiring, knowing or ha
reasonable cause to believe tha*
probable consequences of his so doing,
. comhina'iiin with
:i, will le to rnd.mucr human
us bodily injury,
to expose valuable prop
whrv or personal, to de-
or serious injury, he
shall, on conviction thereof by a
court of summary
. as hereinafter t.
be liable cither to pay a penalty
ling twenty pounds, or to be im-
a term not exceeding
three months, with or without hard
his exception will be
appr
infrequently the "probable
consequence" of a strike to expose
,-roperty a man's business is
liable property" to se-
and wherever there is
reasonable cause to believe that such
consequences are probable, it is
clear th;r ;nde-
.icy, who "wilfully
of service or hiring with that ei
:II IK- punishable under the
imprisonment.
a crime in any i i in thin
country, and '.ight that the
t Labor, which desires
la tion. would protest with
great vigor, and properly so. against
enactment of a statute which
would make such an act on the part
individual punishable
of a
attention to
would affect
principally by the labor
he purpose of ameliorating
The fourth exception limiting the
scope of this provision of the Kng-
law provides that every person
who uses violence to or intimidates
any other person, or his wife or chil
injures his property with a
to compel such other person to
abstain from doing or to do any act
her person has a legal
right to do or abstain from doing,
wrongfully and without legal author-
ity, "shall, on conviction thereof by a
court of summary jurisdiction, or on
merit as hereinafter mentioned,
be liable either to pay a penalty not
exceeding twenty pounds, or to be
prisoned for a term not exceeding
three months, with or without hard
The fifth exception provides that
whoever for the same purpose per-
sistently fallows such other person
about from place to place should be
punished in the same manner.
The sixth exception provides that
whoever for the same purpose "hides
any tools, clothes, or other property
owned or used by such other person,
or deprives him of or hind*
In u M- hall be punished in
the same manner.
The seventh exception provides that
who. hat purpose -watches or
besets the house or other place where
such other person resides or works or
:es on business or happens to be.
or the approach to such house or
place" shall be punished in the same
manner.
The eighth exception provides that
who< the same purpose, "fol-
lows such other person with two or
more other persons in a disorderly
manner in or through any street or
road" shall be punished in the same
manner.
f these provisions, with the
possible exception of some phases of
that included in the fourth sub-
ion creating new and addi-
tional criminal offenses upon the
126
The Annals of the American Academy
part of laboring men, and especially
laboring nun engaged in the familiar
methods universally employed for
the purpose of alle\ lating their
dition by -taiu-c in
any jurisdiction in this country arc
any of those acts, except
included in the fourth subdivision
made punishable a^ crimes. It may
be safely said that legislation of that
sort would not be tolerated for a mo-
ment by ni/ations
which arc interested in the passage
of this hill.
Instead of ameliorating the con-
dition of the laboring man, who de-
to avail himself of the right of
the strike or the boycott provisions
of the law. such as exist in the Eng-
lish statute, they narrow and restrict
the the operation of the
general provision which was, pre-
sumably under a misapprehension,
cited to us as a precedent for this
bill. Th< nt of such drastic
and oppressive provisions would place
every laboring men in a strait jacket
and practically destroy the efficiency
of every labor organization in the
country. Yet when fairly stated the
provision relied upon as a precedent
his bill sl.ould have !>
and should be stated with all of these
(jualiti
not credible that the 1-Vdera-
tion of Labor would advocate the
adoption of the English statute
from which this extract upon which
they rely as a precedent was made,
ing as it docs so many new of-
. imed explicitly and express-
ly against laboring men and latx>r or-
;>. When considered in con-
k>fl with Federal legislation the
application of these suggestions is
ly confined to their effect
upon interstate trade and commerce.
A bill similar to t! ported by
the Judiciary Committee in the last
Congress (II. R. 8917, Report No.
2007), but at the time of making the
report the attention of the committee
had not been called to the provisions
above referred to in the English
statute, but had. in fact, as the re-
sult of the partial statement of the
counsel, been diverted therefrom.
For that reason no allusion was made
to it in that report
\BUSEOJ INjrXCTIoNS IN TRADE DISPUTES
III. ADDRESS i IKRY. ESQ.,
General Counsel. .\at,,,,ul e Iniutrul IMctue, Washington. D. C
Mr. ( 'hair man. Ladies and Gf>
1 thank the chairman for his kind words, and I hope to be
tgh under t: of the hour not to repeat the
fault of that great Englishman of whom it was said, "That he
ning while others thought of dining." The extent
<l the limitation of time permits no more than a
fragi ".-I I can hope to do no more than respond
'ing criticisms of the gentlemen who have pre-
: me in the light of a few of the equitable principles which I
shal! >n.
With all due respect to the distinguished gentleman who has
concluded, h sion seems to me an excellent illustration
1C confusion that is bound to arise through failure clearly to
grasp the peculiar powers of equity and the function of the in-
junctive remedy. The gentleman defended vehemently that which
he but half-apprehended, like the ancient I'.ardolph. whose valor was
more certain than his understanding: "Accommodated, it is a Chris-
1 and by my wvord I will defend it. Accommodated
is, when a man is that which whereby he may be thought
to be accommodated. Which is an excellent thing."
The gentleman declares, but undertakes to prove by reiteration
rather than demonstration that an injunction i ues to protect only
property rights, and that the rights usually involved in what are
commonly termed labor <! ire not even property rights, and
therefore a court of equity, through the injunctive remedy, has
ed a jurisdiction in violation of precedent and right. The
in jut no modern device. It is not the invention of a recent
day an outgrowth of modern ingenuity. The ancient writ has been
for centuries the chief instrument of equity. The principles of its
use arc determined by the decisions and practice of centurie-
application to organizations of labor is but a modern phase o;
uiing use through many decades to prohibit attacks by com-
bination upon rights which it i- its peculiar office to protect. These
128 The Annals of the American Academy
rights, the gentleman to the contrary, arc "ciril" and prnpi-rt y rights,
rights characterized by the courts as "those of a pecuniary nature."
The gentleman rests his appeal and his argument on moral no less
than legal grounds, but I cannot find within his narrow drlinition
that vast body of rights which the settled law of many centuries has
held within the protection of the injunction. Indeed. I should he
interested in knowing upon what theory of morals it could be con-
tended that it ;ht to issue a restraint to protect a man's house
or his business or his horse, and not himself.
The gentleman's theory of a property right is that of mere
ownership in a house or lot, of lands and personalty. "The right
of property in man," he says, "was destroyed by the emancipation
of the slave." Nay, man's property in himself was recogni/cd
by the emancipation of the slave, for the first and most elemental
of all property rights is that of man in his own labor. The founda-
tion of all property right, it is the one treasury possessed by each
individual, and from which he pays in the sweat of his face his way
through the world. But he owns the labor of his head no less than
that of his hands, of his pen no less than that of his pick, of his
learning no less than its product, of his profession no less than his
trade. Every exercise of mind or body possessing value is prop-
erty as much as the coat on his back or the hat on his head, the
house in which he lives, or the land whose fruits sustain his life.
Nay, more, we dispose of that which we have and acquire the pos-
sessions of others only through agreement, and therefore the most
commonplace and necessary, indeed, socially, the most indispensable,
of property rights is the right of contract. These rights are uni-
versally recognized not merely by the technical rulings of genera-
tions of judges, but by the common sense of mankind. Every one
who sits within sound of my voice has sold or bought labor, and
must continue not only to do so, but to maintain the right to do so,
"for so the whole world moves around." "No right of property
or capital," said Lord Bramwell, "was so sacred or carefully
guarded by the law of the land as that of personal liberty." The
constitutional guarantee of "liberty and property," interpreted by the
Supreme Court of the United States, embraces not merely the right
of the citizen to the free use of his powers and faculties in all lawful
ways to live and work at any trade, profession or business, but "for
that purpose to enter into all contracts that may be proper, necessary
and essential in his carrying out the purposes mentioned."
! rut/,' />Mf;.
. \nthrai -iii- Coal Strike Commission epitomized the
and moral law by >a\
The right ami hUrty -,, pursue a lawful calling and to lead a
""i mo! ncrrn* the comfort and Nppfaffff of
all turn, ami the denial ! ihnn mr.ui* ( destruction of one of the grratrtt.
if not the greatest, of the ben h the social organization ODD:
Thus we see as a matter of common sense and common law
plant f the manufacturer, the store of the
':.mt. the farm and equipment of the farmer, the tools 01
k i the lalxirer, the property of each, but
in- pro|>erty right of each to u-r tlu-m in any lawful man-
.'.nd the skill with \\hich they are u^.l is no less the property
of him who possesses it than the instrumentalities ami prop,
through \\hu-h it is exercised. So it must be obvious to you and
1 by our daily experience, apparent in our customs,
! in our law and confirmed by or. that the civiliza-
of which we arc a i upon the fact that not only are
our I. ittels property, hut the rights by which we acquire
<>se of them and u-e them to our own profit and our
henetit. as well as the peculiar ({iialities and (xnvers of
mind and Imdy that may he turned to our pecuniary advantage, are
rights of property and entitled to protection as such, however in-
tangible they may be, as much as those tangible physical ol>
which the eye sees and the hands feel.
When we exercise tlu-e rights in commerce and ind
:ntf a reputation for skill in manufacture, honesty and entcr-
tom accrues to us; that reputation which
in the minds of others hecause of the quality of our
pro<l racter of our workmanship, the promptness
h we pay our debts, and all those circumstances and incidents
tribute to give us esteem in the judgment of the bv
puh! a property right as valuable as store and factory
and skill th< term it the goodwill of business. We
frame our statutes and enforce our laws in recognition of that fact.
rman act was framed ii|x)ii this very theory, giving triple
ages for injury to a business. The Wilson, Dinglcy and Payne
T acts each recognized tin !c in some of their provisions,
and it is a common transaction of the commercial world so widely
130 The Annals of the American Academy
recognized as to come within tin- knowledge of all men that the
goodwill of a business is not only a separate and distinct property
from the physical instrumentalities iiM-,1 in tin- transaction of busi-
ness, but that goodwill is frequently bought and M>1<1 without refer-
ence to the realty or chattels in the use of which it has come into
being.
The rights I define and enumerate arc not rare and recondite.
The daily press familiarizes each of you with the progress of actions
brought to vindicate injuries done to them. You hear of suit
libel, of actions in damages for the misuse of trademarks, bu-im-^
symbols, infringements upon patents, tin- printing of books or the
singing of songs, the use of plays, without permission. It excites
no comment, it produces no confusion of mind, if a suit at law is
brought to compensate some injured individual for a loss sustained
by a trespass upon any of the property rights I mention. How,
then, shall you deny the right of a court of equity to interfere under
proper circumstances to protect these rights from injuries of surh
a nature that no proceeding at law will secure compensation. For
this is a world of conflicting rights, and our own freedom and
privilege of conduct are measured by the equal privilege and freedom
of every other citizen with whom we come in contact. You will
remember the familiar but happy illustration of the limits of liberty
of action suggested by the drunken man who shook his finger in
the face of a stranger, and when the other protested, said : "This
is a free country ; I have a right to shake my finger in your face."
The sober one answered: "Your right to shake your finger ends
where my nose begins." So it is with a variety of rights which
are the subject of daily litigation in our courts and regulation in
our legislatures. But every injury which may be worked upon one
or many, or which many may work upon one, is not of such a nature
that it can be compensated for in damages. The punishment of
crime repairs no loss wrought by the criminal. Injury is, as we
all realize, sometimes of a character for which there could be no
pecuniary relief, either because the wrong done was of a nature that
money could not measure, or a successful proceeding would be bar-
ren of actual recovery because of the financial irresponsibility of the
wrongdoers, or their number being so great as to require an im-
practicable multiplicity of actions or their identity would be unas-
certainable.
and Abuse of injunctions in Trade l> 131
umstanccs, which are not of infrequent occur -
1 be of no avail, and if the person injured or
ith injury must abide the event and await the infliction
of damage under circumstances \shuh <li<l not permit of recovery,
the jK-rson injured or threatened with injury would be without any
uli I face the damage or tion of property
and the impairn .-hi- without legal defense or redress. A
legal system so defective would be a disgrace to civilization. The
con*! ? innately does not - here equity offers the
mm h is e^ential to complete and perfect our jn-
scheme. Where damage threatens what would be of an irrepai.u.K
nature, equity Mipphc> the absence of an adequate remedy at law
by preventing the int: the inji
A f a^'" the State of Missouri entered into the Supreme
Court of the United Stau > and complained that its sister State.
Illinois, was constructing a drainage canal from the city of Chicago
i would discharge along the shares of Missouri a vast amount
of noxious sewage and drainage, which would not only injure the
property of the citiz< iissouri, who could not sue the S
ened their lives and health and that of their
children, and the Missouri sought to restrain the proposed
the State of Illinois, until at least defects in the const rue -
of the drainage canal could he remedied and the conditions
anticipated \\--uM not come into being.
The late Justice Ilrcwcr. in an address delivered in Brooklyn.
X. Y . i:i N'ovemlKT la-t. called attention to this remarkable case,
ami commented upon the pitiable condition that would have e\
-upreme Court of the I'nited States been compelled to leave
nj of Missouri to wait in fear and anxiety the coming of
a flood bearing pestilence and death, with no power in the nation
preach.
.overnment by injunction," said Justice Brewer, "has been an object
-y denunciation. So far from restricting this power, there never wa*
a time when its restricted and vigorous exercise was worth more to the
the best interests of all. . . . The best scientific thought
of the day is along the lines of prevention rather than that of cure. We
aim to stay the spread of epidemics rather than permit them to run their
course, and attend solely to the work of curing th< nd shall n oe
said of the law. which claims to be the perfection of reason and to express
the highest thought of the day. that it no longer aims to prevent the
but limits its action to the matter of punishment?"
The Annals of the A merit MI
The critics ,.f the injunction are douhtlcss quite willing to ;idinit
tlu- proprietary and necessity c.f its application to all but rfaerc
their own ox is gored, but lure is the rub: in labor disputes, the
gentleman argued, .strikers are enjoined from doing acts in com-
bination which if done by individuals would be lawful ; and. second.
they are restrained from doing perfectly innocent acts; and. third,
the rights of others they are enjoined from interfering with are not
rights of a property nature.
It is a fundamental proposition in this government that there
cannot be one set of rights for one class of citizens, and anoth*
for another class under the same circumstances. The right to the
protection of a court of equity cannot rest upon the character of
the persons from whom the protection is sought. The office of
equity is to prevent; that of law to compensate. The right to tin-
preventive remedy is as great as the right to the compensatory
remedy. Equitable protection is constitutionally guaranteed as fully
as legal protection. The right to that protection is predicated upon
the character of the wrong not of the persons who threaten it. To
deny an injunction under circumstances in which it should i
whether in a labor dispute, a trespass, an infringement of a patent,
a restraint of trade, the maintenance of a nuisance, or any other
set of circumstances which presents grounds of equitable interven-
tion is to deny to the citizen due process of law. Therefore a
citizen is entitled to an injunction in a labor dispute as much as in
any other controversy, if in the course of it the combination of
laborers threaten his property with irreparable damage, just as under
the same circumstances he would be entitled to an injunction against
a combination of business men that undertook to injure his patent or
his trade, or to maintain a nuisance damaging to his home or place
of business.
The argument that a combination of men ought not to be
enjoined from doing that which it is not unlawful for one man
to do is not peculiar to labor disputes. It was argued by counsel
for the defendant in the case of Montague vs. Lowry, 193 U. S., 38,
and rejected by the Supreme Court, as the principle has likewise
been rejected in a variety of criminal and civil proceedings in courts
of final appeal, both in England and the United States. For not
only does a combination of many possess a power beyond that of any
individual, but when it is organized and acts to accomplish a par-
Us? and Abuse of In functions I'M Trade L>tsfn 133
licular purp i a new cut n \ in which the judgment and
\\ill of the individual < oni|Mjiiciits is subordinated to the purpose
and motive of the combination. The power of one man to coerce
or threaten is obviously a very different nutter from
Mimlar I numbers acting in concert, whose very presence
becomes in u mace to the peace of mind and the right to the
free flow of custom possessed by a person who, for instance, be-
comes the recipient of the attentions of a labor combination in a
labor dis]
I 'tit u is said injunctions are frequently issued in labor disputes
the doing of acts in themselves innocent and lawful.
So it is said men have been enjoined from using the streets and
roads, from talking to others, from even using "persuasion" or
the homes of mm \\lio did not join in a strike. "No con-
said Justice Holmes, in Aikens rs. Wisconsin. 195 U. S.,
ii an absolute privilege as to justify all possible schemes of
:i it may be a part. The most innocent and constitutionally pro-
tected of acts or omissions may be made a step in a criminal plot,
step in a plot, neither its innocence nor the constitution
Mcient to prevent the punishment of the plot by law."
Suppose a man is arrested at night . walking up and down the
alk before a residence. At least let us suppose this i^ Ins cx-
i to a police judge before whom he is brought by the arrest-
ing officer : "Have I not a right," says the defendant, "to the free use
'ie public streets. Is it a crime to use a sidewalk where my
presence does not obstruct its equal use by every other person?"
But suppose the officer and other witnesses prove that the defendant
used the sidewalk and was in front of the residence in question for
the purpose of giving warning to a fellow-thief engaged in the
looting of the residence, does the innocent act of using the public
sidewalk relieve the accused person of punishment in view of the
purpose for which he was there? Yet the distinguished lawyer who
opened this discussion intimated that motive was worthy of small
consideration in discussing the use of injunctions in labor dis-
putes. Moreover, I need not say to this intelligent audience that
a combination, maliciously to persuade or induce men to make a
breach of contract was and is unlawful in all forms of human action
outside of lal>or disp-
The charge of enjoining alleged innocent acts is frequently
134 The Annals of the American Academy
based upon a superficial or fragmentary reading of particular in-
junctions. Thus we find in some injunctions that have lieen sharply
criticised that men were enjoined from inarching on a public high-
way where their purpose was to prevent other workmen equally en-
titled to the use of the highway from going to or returning from
their work, and men have been likewise enjoined from using the
publ: the purpose of threatening or annoying or malici-
iing nth- 'ly entitled to the use of the streets
from entering or departing from a boycotted place of business.
Then. too. the word "persuasion," which has been and is so
quently made the subject of harsh criticism, has never hern u^ed
in an injunction except in connection with other phrases forbidding
conduct of an unlawful character. No rule of interpretation i-
better settled than that where a number of phrases are used the
concluding word of many terms shall be given construction as of
the same general class as the previous phrases. Thus the w.rd
"persuasion" is merely used as a general inhibition of "persuasion"
of the same general kind as that previously prohibited in the writ.
Finally, I have said that it is frequently objected that the rights
protected in labor disputes are not those of a pecuniary nature. If
property rights were held to be merely those rights to the possession
of realty and chattels to which the gentleman who preceded me
endeavored to confine the term, the objection might be well founded,
but we have seen that there is a universal recognition in custom
and practice, as well as in the adjudicated law of our land, that
the right of property includes the right to make contracts for the
sale or purchase of labor, and the right to the goodwill of bus
as distinct from the physical instrumentalities of the business itself.
In the ordinary course of a labor dispute, the ^trikers or^ani/e
for the purpose of preventing others from taking their places. To
the point where the striker peaceably present- his claims, cither to
those who seek work or those who have remained at work, he is
obviously within his rights, but when individually or in combination
with others, he intimidates or threatens by words or actions or an-
noys and destroys the peace of employer, employee or customer, he
has passed the limit of his own rights and intrudes upon the equal
right of others to conduct their business in a lawful manner, to give
their custom where they will, or to dispose of their labor and work
under the conditions that seem to them best. The protection of that
</ Abust of In) :. in 1 raJ.- Ihsftitt's 135
fundamental right is the j that principle from which the
sinker's own freedom springs, and if he deny or combine to destroy
it in .< cannot long hope to keep it for himself.
uirge most vehemently pressed by critics of
alleged abuse by mj t the writ is issued against acts
i through proceeding*, in contempt the persons
committing those acts are depiived of trial by jury, although
i they are punished is of a criminal na
rge pressed with much plan-:' dcs before the simple
i t)ie various qualities of any act within the pro-
hihitioii of the court of equity. Thi t mind can perceive
at a glance that any human act may have both moral and mental
It might be good mentally and bad morally. So, too,
.ict of one human being which endangers another may, like a
ass, be at once the subject of criminal prosecution and subse-
quent civil action in damages. A man who assaults another may be
hed by the state for his crime and sued 1>\ the individual for
So, too, an act forbidden by an injunction may, through
I of criminal law. also constitute a crime, but a court
of equity in a contempt proceeding punishes only the violation of its
r and not the criminal offense which may be committed at the
same time. The distinction which I suggest, which must appeal
to any intelligent layman, was v !y put in the decision of
Judge \\ oods in the proceedings in the Circuit Court against Eugene
Debs, charged with contempt of an injunctive order:
The M of the courts of equity, and by implication their right
contempt, are established by the constitution, equally with the
tf trial by jury; and so long as there is no attempt to extend juris-
or subjects not properly cognizable in equity, there can be no
ground for the assertion that the right of jury trial has been taken away
The same act may constitute a contempt and a crime. But
npt is one thing, the crime another; and the punishment for one
a duplication of the punishment of the other. The contempt can be
hed only by the court, while the charge of crime can be
only by a jury. T. S. vs. Dtbs, 64 Fed. Rep.. 7461
The gentleman prece lias asserted with great earnestness
that each man is entitled to bestow his patronage where he pleases,
and that he may give or take it. like hi- Ialnr. from any whom he
pleases, for a good reason or none at all. and that is true. Equity
136 The Annals of the American Academy
intercepts his action only when he combines with other- to injure
third parties by preventing other workmen or the public from CXCT-
;g the same liberty which he demands for himself. The purpose
of joining in a boycott may be, by compelling an employer to grant
the demands made upon him, to benefit ultimately the cause of labor,
or immediately that of the striking employees, but the alleged purpose
mote in comparison with the proximate ami immediate effort
to injure or destroy the lawful business of another by frightening
workmen and customers in order to compel the person boy-
cotted, by virtue of the injury inflicted, to accede to the demands of
the boycotters. This is the mere effort of many to work their
will upon one; the coercion of an individual by force of numbers,
the individual possessing the same right to pursue his own way
and to conduct his own business within lawful limits that each
member of the combination has to conduct his.
In these collisions, equity must proceed to employ its time-
honored remedies upon the same principle repeatedly invoked
throughout the history of our jurisprudence. If that principle does
not permit the use of the injunction to restrain damaging assaults
upon individual rights and property by strikers seeking to enforce
their will by destructive coercion and intimidation, and in ruthless
disregard of the equal rights of others, then the striker himself can
find no principle of equity which lends its strong arm to his service,
or that of the government when it seeks to protect him against vast
combinations in restraint of trade, whose powers and activities con-
tinually excite the attention of the popular mind. If the principles
upon which the issuance of an injunction in a labor dispute is
predicated cannot be sustained by the immemorial principles of that
branch of jurisprudence and the continuous practice of chancery
courts in England and America, then no exercise of that remedy
in all the vast field of equity can be excused or defended.
USE AND ABUSE OF INJUNCTIONS IX TRADE DISPUTES
IV. ADDRESS BY ANDREW FURUSKTH, ESQ.,
Washington. D. C
Coming after such a gentleman as Mr. I.ittlelield, 1 must ask
p.iti.-Mt \\nli UK- in \\li.tt I have to say. I have n-
-iu- n..r his training as a special pleader. I shall u
a few w ey to you what we, who suffer under the mis-
use of the equity power, think is the real cause of the wrung, and
a cure.
I am sorry that Mr. I.ittletield has gone, because I wanted to
ask him to define more specifically what he means by some things
that he lias said here.
He speaks of "judicial power" It would be well, if he will,
i correcting the notes, state if he means the power of the
as understood and exercised in Kngland at the time when
.< institution was adopted, and with jM>ssihly slight modifications
1 upon our judiciary, or does he, in speaking of judicial
power, have in mind the po\\ hy the Roman emperors?
u Id be a great help to understand what he means.
He speaks of obedience to law. I want to say for the work-
men of the United States that they do not come before you, nor
before anybody, to ask exemption from any law. What we cora-
of, and what we 1- < have a right to complain of, is
Nut judi* *i. He says that
the equity power is to remedy and to prevent wrong. If that be
so, of what use is law and law courts? I would like him to sa
">tes later on, what law is; if it i-> not an injunction issued by
the whole people through their legislative department ; whether
not usually a simple "Thou shall not." He says that equity
Where that will lead n- I
shall try to explain in a short statement which I shall read later. He
speaks of the KnglUh law forbidding men to quit work; you have
and I am sure you did. that
.se of that law deals with those who work in steam, water
and gas plants, and where a man leaves his job in such a way as to
endanger the life of others. The British Government has dealt with
<7>
138 The Annals of the ny
that ; so has ours. We go to the legislative branch of the government
for any alteration in laws which we feel to be urgent ; we do not c
judges and ask them not to enforce, or to make, law. We
ntleimMi. that there is a fundamental distinc-
tion between law and equity.
The modern use of the writ of injunction, especially in labor
disputes, is revolutionary and destructive of popular government.
Our government was designed to be a government by law. said law
to be enacted by the legislative branch, construed by the judiciary
and administered by the executive. An injunction is "an extraor-
dinary writ issued out of equity, enjoining a threatened injury to
property or property rights, where there is not a plain, adequate
and complete remedy at law."
The definition of equity is: "The application of right and jus-
tice to the legal adjustment of differences where the law, by reason
of its universality, is deficient," or "that system of jurisprudence
which comprehends every matter of law for which the common
law provides no remedy, . . . springing originally from the
royal prerogative, moderating the harshness of the common law ac-
cording to good conscience." In other words, it is the exercise of
power according to the judgment and conscience of one man. It was
for this reason that in Great Britain, whence the United States
derives its system of equity, as well as of law, the equity power
was limited to the protection of property or property rights, and
to such cases only where there was no remedy at law ; the words
"adequate and complete" have been added here.
\Vhcn the courts of equity issue injunctions in labor disputes,
they do so to protect business, which, under late rulings by several
courts, is held to be property. These rulings are disputed and con-
demned by other courts, which hold that relations between em-
ployers and employees between buyer and seller are personal rela-
tions, and as such, if regulated at all, are regulated by statute or
common law only. If the latter contention be right, and of this we
believe there can be no question, the ruling that makes business
property, or the right to carry on or continue in business a property
right, is revolutionary, and must lead to a complete change not only
in our industrial, but in our political life. If the court of equity be
permitted to regulate personal relations, it will gradually draw to
itself all legislative power. If it be permitted to set aside or to
Vsc and Abuse of Injunctions in Trade Disputes
enforce law, it will ultimately arrog. elf jurisdiction now
hrlil b> the law courts, and abolish trial l.y j
constitution confers equity power upon the courts by stating;
shall h A anl in e|iniy. in the same
way that it makes it their duty to issue the writ of habeas corpus
the same way as it J.T..M.U- ir trial \>\ jury.
10 to US as it in Kngland at the time oi the
adop onMitiui.'M. .iii-l it was so limited and defined by
English ami; sat our courts could not obtain jurisdicti
labor the adoption of a ruling that business is
* be property in the case of a strike or a boycott.
therefore be protected In the equity court against diminu-
me, caused by a strike or boycott conducted
i king people, then it necessarily must be property at other
re entitled to be protected against loss of income
v competition from other manufacturers or business men.
.m.l the income from business would become territorial, and
would be in the same position as land and the income from land.
The result would be to make all competition in trade unlawful;
uld prevent any one from engaging in trade or manufacture
1 he comply \\ith the whims ;r d of those who have their
iiiN of production already established. No one could
into business except through inheritance, bequest or sale. In
order to show the fallacy of this new definition of property, we
here state the accepted legal definitions of property, business and
labor. Property means the dominion or indefinite right of user
and . . hich one lawfully exercises over particular things
.Hid generally to the exclusion of all others. Property
is OVN isive right of any person freely to use, enjoy
<>se of any determinate object, whether real or personal.
(En^ i American Encyclopedia of Law.) Property is the
!it of possessing, enjoying and dis{>osing of a thing.
i A right imparting to the owner a power
of indefinite user, capable of being transmitted to universal suc-
cessors by way of cle the owner the power
of <I; i. from himself and his successors. (Austin. J
The sole and despotic dominion which one claims and
exercises over the external things of the world in total exclusion
of the right of any other individual in the world. ( Blackstone. )
140 The Annals of the American Academy
It will 1)0 seen that property moans products of nature or of labor,
ami that the essential element is that it may l>e disposed of by sale,
be given away, or in any other way transferred t another. There
is no distinction in law between property and property rights.
n these definitions it is plain that labor power or patronage
cannot be property, hut aside from this we have tin- thirteenth
amendment to the constitution, prohibiting slavery and involuntary
servitude. Labor power cannot be property, because it cannot be
separated from the laborer. It is personal. It grows with health.
diminishes in sickness, an.l ceases at death. It is an attribute of
life. The ruling of the courts makes of the laborer a serf of patron-
age, an evidence of servitude, by assuming that one may have a
property right in the labor or patronage of anoth
What is the definition of business? That which occupies the
time, attention and labor of men for the purpose of livelihood or
profit; that which occupies the time, attention and labor of men
for the purpose of profit and improvement. (American and Eng-
lish Encyclopedia of Law.) That which busies, or that which oc-
cupies the time, attention or labor of one as his principal concern,
whether for a longer or shorter time. (Webster's Dictionary.)
What is labor? Physical or mental effort, particularly for
some useful or desired end. Exertion of the powers for some end
other than recreation or sport. (Century Dictionary.)
It will be seen from the above definitions, that, while there is
a fundamental difference between property and business, there is
none at all between business and labor, so that, if business be prop-
erty, so is labor, and, if the earning power of business can be pro-
tected by equity power through injunction, so can the earning power
of labor; in other words, the laborer may obtain an injunction
against a reduction of wages, or against a discharge which would
stop the wages entirely. If this new definition of property, by in-
cluding therein business and labor, be accepted, then the judge sit-
ting in equity becomes the irresponsible master of all men who do
business or who labor.
We contend that equity, power and jurisdiction discretionary
government by the judiciary for well-defined purposes and within
specific limitations, granted to the courts by the constitution, has
been so extended that it is invading the field of government by law
and endangering constitutional liberty; that is, the personal liberty
V*e and Abuse of Injunctions m Trade Disputes 141
of the ti. As govern! juity personal gov-
Mican government government by law
recedes.
< escaped from despotic government by the king. \\ c
reali/nl that, after all, he was but a man. Are we going to permit
up of a despotic government by the judges? Arc not
also men- Tlu- can in thi- sense be no better
in of another If we arc to preserve "government
c people, by the people ami for the people," any usurpation by
the must be is sternly resisted as usurpation by the
execi:-
What labor is now seeking is the assistance of all liberty-loving
men in restoring the common law definitions of property, and in
rting the juris-! the equity courts in that connc
to what it was at the time of the adoption of the constitution. A bill
has been and now is before Congress for this purpose. We ask your
careful . M..U .f tin reasons for this bill and of the bill
i , and your assistance in inducing Congress to make it a law.
IV. The Administration of the Criminal
Law-Defects and Proposed
Remedies
LS AND REMEDIES IN TIM [INISTRATION OF
'1111. ( K1MIN \L LAW
BY SAM i 1 1 I MKUMYKK. ESQ.,
New Y
None of the many difficult problems that confront the present
generation is more urgent or perplexing than the reform of the
administ: mal law in our country. Our wealth and
imptM the financial \\.-t 11 have increased by such leaps and
bounds that wo have completely outgrown the laws which were
to meet the earlier conditions in our history.
It will be no easy task to secure the changes that are neces-
sary to meet and curb the cupidity of the criminal rich, nor to
'lose laws when ena<
Strange to say the chief obstruction to the administration of
e in criminal cases lies in the undue shelter afforded by our
titution.
The prescribed remedies against crimes of violence arc, on the
<, fairly administered, though there are still many abuses capable
of correction. It is in the attempts to punish the crimes born of
greed and cunning in the financial world that the machinery of
:oken down and the law is administered in a spasmodic
and hysterical way.
I think it will be admitted by all fair-minded critics of our
na that our people have not that respect for the law which
ign countries. Is it not because the enforcement of the
not entitled to the same respect ? It is either not made
to reach the powerful or has been found incapable of enforcement
against them. This discrimination is not due to the dishonesty of
our people or public officials, nor to their unwillingness to p
offenders. It is owing largely to the character of the proof
necessary to establish the commission of a crime involving compli-
cated financial u MS and to the difficulty of securing such
proof, because of the impassable barriers thrown around the offender
by what are known as the constitutional rights and immunities of t
person charged with crime.
(us)
146 The Annals of the . Imerican Academy
Even at the risk of being considered guilty of lu-n^\ I <JM
the wisdom of these provisions, which an- embodied in the Fourth
and Fifth Amendments to the Federal constitution and of like- pro
visions in the Constitutions of the various States as they have
construed by the courts. In the few States, like New Jc
which have no provisions in their Constitutions to the effect that in
a criminal case no person shall be bound to incriminate hiin^li
the courts \\n\\- held that the right is one inherited from the com-
mon law and have accordingly read the provision into the organic
ate.
The language of the Fourth Amendment so far as applicable
to this discussion is:
"The right of the people to be secure in their persons, h
papers and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the person or things to be seized."
That of the Fifth Amendment is that
"\o person shall ... be compelled in any criminal case
to be a witness against himself."
It is hardly necessary to remind you of the history of the op-
pression that led to the enactment of these amendments, as described
by Justice Bradley, in Boyd rs. United States, 116 U. S., 624-626:
"In order to ascertain the nature of the proceedings intended by
the Fourth Amendment to the Constitution under the terms 'unrea-
sonable searches and seizures,' it is only necessary to recall the con-
temporary or then recent history of the controversies on the subject.
both in this country and in England. The practice had obtained
in the colonies of issuing writs of assistance to the revenue officers,
empowering them, in their discretion, to search Mispectcd places for
smuggled goods, which James Otis pronounced 'the worst instru-
ment of arbitrary power, the most destructive of English liberty and
the fundamental principles of law, that ever was found in an English
law book ;' since they placed 'the liberty of every man in the hands
of every petty officer.' This was in February, 1761, in Boston, and
the famous debate in which it occurred was perhaps the most promi-
nent event which inaugurated the resistance of the colonies to the
oppressions of the mother country. 'Then and there,' said John
Adams, 'then and there was the first scene of the first act of opposi-
i 1/1 .IJnnnistrjttfn cj Criminal Law 1-47
he arbitrary claims of Great Britain. Then and there the
chiM Indepei: as born.'
ings, ami the events \\hich took place in England im-
mediately following the argument about writs of assistance in Dot-
ton, were fresh in the memories of those who achieved our inde-
our form of government. In the period
the A'orf/i /Jn/.m was started by John Wilkes, to
!. I;M, when the I louse of Commons passed resolutions con-
clenniai.'ry of general warrants, whether for the vei/ure of persons
or papers, occurred the bitter controversy between the English gov-
ernment and \\ilkes, in which the latter appeared as the champion
of popular righl . tlic pioneer in the contest which
it the abolition of some grievous abuses which had grad-
thc administration of public affairs. Prominent
ting general wan
e Secretary of State, for searching private houses for the
< izure of books and papers that might be used to Con-
ner of the charge of libel. Certain numbers of the
ticularly had been very bold in denunciation
of t! nrneiit, and were esteemed heinously libellous,
authority of the v's warrant Wilkes's house was searched.
and his papers were indiscriminately seized. For this outrage he
the perpetrators and obtained t of 1000 against Wood,
of the party who made the search, and 4000 against Lord
Halifax, the Secretary of State, who issued the warrant.
which will always be celebrated as being
<>f Lord Camdcn's memorable discussion of the sub-
that of Entick rs. Carrington and Three Other King's
at length in 19 How-ell's State Trials, 1039.
Tlic action v. . utcriug the plaintiff's dwelling house
UT. 17' j. and breaking open his desks, boxes, etc., and
searching and examining his paper*. The jury rendered a special
ml the case was twice solemnly argued at the bar. Lord
hejudgii m Michaelmas Term,
as expounded by him has been regarded as settled
that time to this, and his great judgment on that occasion is
s one of the landmarks of It was
! and applau of liberty in the colonies as
as in the mother country. It is regarded as one of the per-
148 The Annals of the American Aiadetnv
manent monuments of the British Constitution, and is quoted as
such by the English authorities on that subject down to the present
time."
I'ntil the decision in 1885 in the P.oyd ea^e it was n<>t generally
supposed that the provision against unreasonable search and -n/urr
applied to the enforced production of books and papers under sub-
poena for use in a criminal case, so as to permit a man who was able
to secure possession of evidence of this character to thwart the
ends of justice. It was. to say the least, a surprise to the legal pro-
m to find that to require obedience to a lawful mandate for the
production of such books, was a "search of seizure" and more sur-
pri-ing still to learn that it was an "unreasonable" seizure. But
such is the law unless the recent decisions of the court can be said to
have modified the rule in the Boyd case.
Yet it is not clear to me that the framers of our Constitution
ever meant that the Fourth Amendment should be held to forbid the
courts to use the written evidence of a criminal act against the
person charged with the commission of the crime, where that evi-
dence can be secured from him through the orderly process of
subpoena.
In the last few years the Supreme Court has been face to face
with the difficulty of proving crime where the defendant can be
permitted to withhold his books and papers from the operation of a
subpoena and has found it necessary to "distinguish" the Boyd case
so as to mitigate, in so far as possible, the many difficulties to which
it gave rise. That great court realizes the necessity, above all
things, of certainty in the law and so it rarely overrules its own
decisions. But it is a progressive court. Progress is more necesary
than consistency, and so it has begun the process of "limiting" and
"distinguishing" the Boyd case. The next stage will be to "forget"
Let u- hope so.
I need hardly say that I intend no disrespect to that greatest
of the world's judicial tribunals. We should be forever thankful
for its vast powers and especially for the power of judicial legi Na-
tion which it has taken unto itself. The nation owes much of its
greatness to the brave exercise of that power at critical times.
As evidence of the departure from the Boyd case permit me
to call your attention to Hale vs. Henkel, 201 U. S., where the sec-
retary of the American Tobacco Company was subpoenaed to pro-
RflH rr.l/l.-M Md/ /,4fttf
the books of the compan which \\a> under nr.. -u.
violating the aim tru-i !.i person testifying again -t himself
U entitled to iinnutnity under that ;rcnie Court
tin- secretary omlil not plead the privilege of the corpora-
i. Some of the judges were in favor
Ming that a corporation was not a person, within the pr
nit ion so as to get rid of the prohibit I'.M once and
for all so far a ied corporations, although that court had
iisly repeatedly held that un- Fourteen:
corp- A as a person, entitled t<> the equal protection of the
laws \\ith an individual, and some members of the court had said
.1 corpora' | equally within the meaning of the Fourtl
. Amendnu
In the case of Al Adams, charged with owning ami operating
policy shops, the Supreme Court affirmed the action of the 1-
court in allowing his h ...ks to be used against him. although the
complained of had been forcibly and unlawfully
seized, thus literal!) violating the protection that was clearly intended
to be afforded by the Fourth Amendment. The Court held that
i the defendant'- rights presented no federal question
and that in any event it made no difference how the evidence had
been secured, so long ! been made available. So that v.
a man could not be compelled to produce his books in answer to a
subpoena in a criminal case against him, they could be forcibly taken
m him. and used as evidence.
In the Twining case the court decided that although a defendant
for larceny had been compelled to incriminate himself, no
al right en violated and no federal question was in-
d. and that ate Court to determine whetb
.id been thn 1 in that respect.
\\ ithin the i the U. S. Circuit Court in New York
decided in the case of t*. S. :s. American Sugar Company that the
corporal ol to produce its books without granting
immunity to any one.
se cases are cited as illustrating the lengths to which the
t has U-en driven in order to preserve even a vestige of its
ct and punish crime, with these constitutional pro-
ins in its way.
150 The Annals of the American Academy
limit, but with hesitation not because of doubt as to the
wisdom of the suggestion, but because it will appear like sacrilege to
the uncompromising worshippers of our Constitution that the first
and giva: m g cv il in the administration of the criminal law.
and one that should he corrected. i> the undue protection still aflf
to persons charged with crime by these provisions of the Con-
stitution and like provisions in the State C'nnstituti
\Ve may somewhat mitigate the evil by bold judicial legislation.
That is the process we are now undergoing with respect to corpora-
tions. But the prosecution of corporations, which can result only
in a fine is a farce we cannot strike at the root of the trouble with-
out amending our Constitution.
Hut for the fear of being charged with treason against this
fetich which all lawyers are expected to worship, I should be
tempted to say that the difficulty put in the way of the punishment
of crime is not the only disability under which that great Document
of Compromises has placed us. When we consider how helpless we
are under it to regulate divorce, or to tax wealth (through an in-
come tax), instead of taxing poverty or to secure uniform corpora-
tion laws or to prevent the States from bidding against one another
for "business" in the laxity of administering divorce and corporation
laws, perhaps we may be pardoned for suggesting that great as was
the wisdom of our fathers, they did not foresee all the possibilities
of the future.
The occasion that gave rise to these clauses in the Fourth and
Fifth Amendments can never again arise. These disabilities to
punish crime do not pertain in other countries ; they are no protection
to the innocent, but they are the cause of miscarriage of justice and
the escape of the guilty in nine cases out of ten. They lead to all
sorts of dishonest expedients by the prosecuting officers and bring
the administration of justice into contempt. No device, however
unlawful, by which a man's papers can be seized or stolen from
him will prevent their use against him, and yet, he himself cannot
be forced to produce them. We have sacrificed the substance of
the bill of rights and are clinging to the shadow.
It must not be forgotten that the rule that a defendant in a
criminal case cannot be compelled to incriminate himself was enacted
at a time when the defendant was not allowed to be a witness in his
own behalf.
trjtiott of Criminal Law 151
only remove the existing restrictions, but would
go fr culled by the prosr^
ii open i ue when
> repres* to the lit that the
ling judge -hoiiM not put .jiu-stions , , r turn prosecutor, v.
iopt that sy
\\iih th- further s that there should U- no private or
"Star :idant. Nine o
e of this t: which foun
liirth in tl
the most striking illustration of the vice of this rule
in the pending pn.M-c ,n of the anti-tru>t law. The
most flat: dly immune because they
r "gentlemen's agree- :iid other
I of unlawful combii tlu- result of which every human
soul in the country is daily paying tribute to them. We have the
sad spectacle of the courts of the coui ng solemn judgments
.Minjj anI <li olving these monopol: enemies
of commerce ami decreeing that the le. ncrs of these vast
industries are guilty of criminal violation of the lav.
[overnment powerlcs> t the criminal laws against the
imlividuaU who gave them hirth. who conduct them ami are the
beneficial >ir criminal . Such exhibitions, repeated
are bound to educate the people to a cont- r the
to a feeling that it discriminates between the weak and the
powerful.
I lo\s !,,ng could these gigantic pools last, many of whic!
need by the wi: ons of the parties if the culprits
could be put uj>on the witness stain 1 and fore* :ify and pro-
the written e of their c: arc innocent,
can anylxxly * hw they could be harmed?
re arc a half-dozen offices in the . k of men
^'C<1 in the business
:>ert accountants under whose dire-
- distributed, that could be made to yield up the written
of a hu: more of the -.nvolving
^ands of influential business men who are supposed to be repu-
ho do not scruple to commit tlm
form of crime. The only thing that protects them from the en-
i ;j The Annals of the . /;;;<>/<</;/
forccment of the law is the construction that lias been placed upon
these constitutional limitation-
It truMx and monopolies are good things for the country, and
the laws that have IK en enacted to suppress them are mere dema-
gogic class legislation born of the envy of the poor against the
rich, as some of our plausible friends in and an mini Wall S'
living in a "Fool's 1'aradisc." still M-ein to think, they should be
1 from the statute books. If, on the other hand, these trust ^
.11 economic curse to the country, are destroying opportunity
for the rising generation, paraly/.ing the economic laws of supply
and demand, and levying tribute upon us by sheer brute force, more
cruel and ruthless than the forced tribute exacted by the robber
barons of old, we shall never be able to rid ourselves of this blight
so long as there is such a thing as human greed, without the stern
application of the criminal law to the men who guide and control
them.
For that purpose the entire inquisitorial machinery of justice
should be available. Every barrier that has been thrown in the
way should be removed, unless it is seen to be necessary for the
protection of the innocent against oppression.
The provisions quoted from the Fourth and Fifth Amendments
of the Constitution (not the entire amendments), and like provi-
sions in the State Constitutions, constitute to-day the great and only
barrier between the people and the execution of their will against
these violators of the law.
The second great evil in the administration of the criminal law,
and, for that matter, of all laws in our country, is the prevalence
of perjury due to the non-enforcement of the laws enacted for its
punishment. I think it will be generally admitted that in no civilized
country is wilful false swearing so prevalent as here due largely to
the fact that the penalty imposed under the laws of the various
states is too severe, and that it is, therefore, a crime rarely punished.
In the State of New York, perjury and subornation of perjury
in a criminal case are each punishable by a maximum term of twenty
years' imprisonment, and in a civil case by a maximum term of
ten years.
It has been said, and I think rightly that the crime of perjury
is committed in at least three out of every five cases tried in the
courts in which an issue of fact is involved. It has become so
Remedies in Administration of Criminal Law 153
general that the courts regard it almost as a part of the inevitable
accon
Aga Tasting our conditions in this respect with those
>, no fair-niinlcl observer of th<
those countries will der i neither
Enl there committed a fraction of the
!iat is prevalent in our courts. In none of those COUi
is perjury punishable with the severity provided by our law, \\
: ni^'h iinjM.s
The courts are exceptionally free from this pollution
;n. Most cases in which there is a sharply
>suc of : not be explained as the result of mi>
take or honest difference of recollection, arc followed by prosecu-
The dread of the law is IIJNUI every man who goes upon the
uit:. i there.
me to suggest at least a partial remedy for this ever-
increasing danger.
1 be made obligatory upon the court on the trial of
uc of fact before a jury to require the jury, in addition to
\ver the qiu> to \\hether any jarty
or witness has been guilty of wilful false swearing, and if so. to
or \\itnesses so guilty. Where the trial
takes place before the court without a jury, the court should be re-
quired to answer such a question. If the court or jury (as the
case may be) finds that there has been perjury, it should be in-
cumbent upon the prosecuting officer to act upon such finding.
The knowledge of the parties and their witnesses that the jury
will be required to answer such a question will in itself be a most
powerful deterrent against reckless false-swearing. Unfortunately
iv in the community who have more regard for their
reputations than for the sanctity of their oaths and a far greater re-
gard for their liherty than for citl
If the submission of the question be left to the discretion of the
court IK? made discretionary with the jury, nothing
will be accomplished. It should be mandatory, and a like mandate
should apply to the prosecuting officer to place the evidence of per-
i case before the grand jury.
The third evil to which 1 the unbridled license
of the press in commenting upon and often trying cases in the
Annals of the > my
public prints. This ,.f the mi-carriage of justice
and is mxt prejudicial i ights of defendants charged with
crime. 1 t upon the admin uf justice is bane nil and
king:
It creates a sentiment in the community as to the guilt
or innocence nf the accused, which makes it well-nigh impoxsjM,- to
secure an impartial jury. It may be that jurors can dismiss their
prec :.>ns t'nm their minds and be guided solely by
that is iv t the experience of most men. Kvcn if
that we: A by should we tolerate a practice that has in it
such elements of danger? Strangers to us who do not reali/e the
difficulties under which we labor from the prejudging of
through the license of the PIT, have made this part of our judicial
system the subject of ridicule, and not without reason. Imagine
weeks of time being consumed in securing twelve men whose minds
have not been so poisoned by newspaper stories concerning a case
in the courts that they are unable impartially to weigh the evidence!
It should be impossible to find anything in a newspaper except what
transpires in the courtroom until after the conclusion of the trial.
Consider also the expense to the state and the additional cost to
the accused of these protracted trials brought about by this per
nicious practice. In the face of public clamor, which means the
goading of the press against the accused, frequently for sensational
purposes, justice is rarely done.
If it be said that the courts frequently need that spur to prevent
undue influence by powerful criminals, the answer i- that it is an
illegitimate and dangerous expedient as an aid to justice.
(b) The atmosphere and sentiment thus created around a case
are bound to, and do affect not only the jury, but the court as well.
A man does not lose his ambitions or human nature by climbing
from the bar onto the bench. Most of our public men are known
to us only as they are pictured by the newspapers, which make
and unmake men It is well-nigh impossible to exclude entirely the
subconscious influence of press comments on the judge as reflecting
the views of the community in which he lives, be he ever so upright.
He would rather go with the tide than against it. and he, too, is not
infrequently already impregnated with the atmosphere of the com-
munity gathered from the press.
(c ) The prosecutor, who should be impartial, seeking only the
Ren. .-tdnrinistriitn'n / c mninal Law 155
truth and not IK-MI upon Cc* unless the fact* satisfy him
beyond a reasonable doubt, \* put cw men in public
^'inc such a prosecutor, in a case that has attracted general
lut- to its sensat tun-s anil the efforts of the press
to t 1 magnify them. \\ \\\-.\ \\\ ..|>cii court at the close of
i a case and recommending to the court to acquit the defendant,
itv of a prosecutor to do if he believes that a con-
>u would IK- unjust. It is done every day in the criminal courts
in cases with which the newspapers d> n>t concern themselves, but
lo so in what is known in the parlance
ual courts, ;i cases.
The abuses that have arisen under this head have become wcll-
Mc. Prosecuting oftio TS. who are ambitious for fur-
ther honors, maintain elaborate press bureaus for the distribution of
ling their offices. The reporters who want to
with the prosecuting offiV get all the news that is to be
fall into the habit of taking the prosecutor's version. Of late
hing is sacred A witness is called before the grand jury.
and the testimony given there in important cases manages "to leak
day by day. The secrecy of the grand jury room is a thing
of the past. The law against disclosing occurrences there is a dead
The prosecuting attorney is generally the chief offender and
:ently the only one. The main concern of a modern prosecutor
ic of the great cities of this country seems to have become to
keep himself before the public, which he does by seeing to it that
1 of everything that happens in his office from
mean to assert that this shocking
il. but it is not uncommon and is growing
e frequent.
Three poor, helpless, old women arc about to be tried in one
of or states on a charge of murder. The issue for the jury
ether the deceased was murdered or committed H i'rom
e came into the office of the prosecutor, and for
so long as public interest could he aroused or sus-
I'.iNt these poor women were under lock and key. the prose-
:inj or inspiring statements in the press in
uinity in which they are to IK- fc ''ling to show OT
arguing that : ^ilty. and presenting such proofs and innucn-
156 The Annals of the American Academy
does as he had at hand to support tlu^c <\r partc arguments. All
this was on the eve of the assembling of a grand jury to consider
the case.
The grand jury, of course, promptly indicted those poor women
and now they will have to he tried in a community in which public
^cntimcnt has been crystallized against them through the cm
of the press, ably seconded by the prosecutor. These women are
not being tried. They are being hounded. It is little better than
mob law. and in some respects not quite so fair, for it is maMjiura.1
ing under the forms of law.
The following are suggested as remedies for this condition:
1. The enactment of laws, similar to those prevailing in Eng-
land, prohibiting a newspaper from publishing anything concerning
a case that is in the courts other than a verbatim report of the pro-
ceedings in open court.
2. Prohibiting any newspaper from commenting, either edi-
torially or otherwise, upon the evidence in judicial proceedings until
after final judgment.
3. Prohibiting any prosecuting officer, under penalty of re-
moval and punishment for a misdemeanor, from expressing or sug-
gesting for publication an opinion as to the guilt or innocence of
a person accused, or from disclosing any of the proceedings of a
grand jury, or from publishing or being privy to the publication of
any evidence in his possession bearing on any case under his control.
If an assistant or other person in his office is guilty of any of the acts
charged it should be ground for the removal of the prosecutor and
the punishment of the assistant, or any other person connected with
the office, so offending.
When we consider the far-reaching effect of these press cam-
paigns against persons under criminal charges, such regulations
should be regarded as very mild compared with the evils that are
sought to be remedied. The expense to which the state is put in
securing impartial jurors is alone more than sufficient to justify t
reasonable precautions.
The next evil, but to my mind not the greatest by far, but the
one that has received most attention from the public and tho
authority, relates to the law's delays.
Some of the remedies that have been suggested seem to me
far worse than the disease. Chief among them, and the one that
t ration of Criminal Law
appears most generally to be favored, is that of restricting the right
iiiiinal cases. At a time when other nations are grant-
ing and enlarging tins right we are considering abridging it.
There should be the most generous right of appeal in criminal
cases far more literal than when we are dealing with mere ques-
tions of money. ten o! tin- change would be
shocked at the suggestion that there be no appeals allowed in civil
cues. How much greater the ne<-l when- the liberty and reputa-
tion, not only of the man, hut of all those about him. are involved?
Nor is there force in tin- plausible, hut unsound, suggestion that
no judgment in a criminal case shall be reversed except for errors
can be affirmatively shown to have materially prejudiced the
lam on the merits of the charge, and that all so-called "techni-
rs are to be disregard'
If a mistake of law committed during the trial is not too tcch-
and trilling to be overlooked and is Mich that it is regarded
i\v as error, it must be because the rule that has been vio-
lated in the commission dered in the light of human
Hence a- .d. or at least mall-rial to the protection of the
s of one of the panic- It Mich a rule has been violated the
defer > not been fairly tried and there should be no latitude
about allowing such a judgment to stand.
One of the worst abuses of the present system is not the delay
\ecuting the judgment, but the undue and indecent haste in
requiring a defendant to undergo the sentence whiUt hi* app<
We have constant object lessons in the brutality of the
law in that respect in the cases of those who have undergone all or
most of their terms of punishment, to find that the judgment under
li they were disgraced and imprisoned was without lawful au-
It sometimes happens, as in a comparatively recent case in
New York, involving an official of a life insurance company that the
appellate court decides as matter of law that no offense ulu
was committed after the man has s c r v the entire term for
u hich he was sentenced. The cases of this kind are not infrequent.
Is not that paying too great a penalty for certainty of punishment ?
Both these evils that of delay and unjust punishmentcan and
should be prevented by
158 The Annals of the ./;;.',/< c/;/ . /c-ij</-;;/y
1. Allowing a stay of sentence as a matter of right and not of
discretion, until the defendant has exhausted every remedy by appeal
that the law permits.
2. Providing that unless the appeal is moved by the appellant
fr hearing within a given number of days after judgment has been
pronounced the stay of scute: -!..inatii-ally vacated.
3. The printing of the papers or record on the appeal should he
under the control of the omrt through its clerk. It will then
entirely with the court to regulate the time when the appeal is to
be argued. The parties will no longer control that subject as they
do now in many of our states. This change will do away with a
most prolific cause of the existing delays. There is no reason why
there should be a delay of more than from two to four months be-
tween the sentence and the determination of the appeal.
4. Where the defendant makes proof satisfactory to the court
that he is unable to pay the expenses of the appeal the state should
pay them. The right and opportunity of the fullest defense should
not depend on the ability of a man to pay. It is not in the interest
of the state to convict where there is doubt. It is in its interest to
give to every man the fullest opportunity to establish his innocence.
This brings me to the next suggestion I have to offer which is
that there should be an office established as part of the machinery
of the criminal law, to be known as that of the public defender.
Unjust convictions among the poor and helpless, and especially
among our ignorant foreign population, are far more frequent than
we fortunates care to admit. This is especially true in the great
cities where the courts are crowded with business, the pressure is
great and justice is necessarily hurriedly administered in obscure
cases.
The most prolific abuses occur in what are known as "assigned"
causes, in which the defendants and their families and friends are
too poor to furnish bail or employ counsel. In tho>e cases the court
assigns counsel, who serve without pay, except that in some states
a moderate fee is allowed in capital cases only. The counsel assigned
in these cases are with rare exceptions almost necessarily young
and inexperienced men or lawyers without standing or ability.
Yet these are the cases above all others in which the defendants
are already at the greatest disadvantage, being incarcerated, unable
to go about to look up witnesses and too poor to employ any one
j in .Mininistntti"n <>/ c ntnittal Law
to do so for them. If they arc first offenders of previous food
reputation, as they r t-nce has shown that
cssional criminals arc generally able to secure counsel, their
prison experience has taken the courage out of them by the time
are placed on trial.
They come to the bar of justice crus! and if inno-
m mortal terror of the law ^ned to any fate. I
assigned counsel, whose r< in-nts arc his chief concern, easily
him <-:i th.tt lie has done his duty to his pauper client if
the prosecutor \\ill aivej t a plea of guilty to a lesser form of crime
or be center' mmend a moderate sentence. So before the
poor fellow kn..\\- what has happened to him he has consented on
less notice and in less time than it requires to tell the story, to take
the ;. lly Kiven him as he stands quivering at the bar
:mds himself on the way to prison. There is hardly a
day in the year \\luu this scene is not enacted in the courts of our
ies. That such 01 results in innocent men being
and punished as criminals admits of no doubt. That the
numlKT of such crimes against ju-ticc and humanity is very much
mated is beyond question to any one who has observed the
MI in operation. The judges do what they can to minimize the
hut from the nature of the case they must rely on counsel.
What. then. U the renu
The state has its public prosecutor. Why not its public de-
fender to care for those who are unable to defend themselves? It
vh t< the interest of the state to rescue the innocent as
to punish the guilty. There is no danger of the privilege being
abused. Every man who can afford to defend himself will exhaust
v resource to select a champion of his own choice. The most
helpless and unfortunate of all our citizens should not be forced
to go virtually undefended.
Nowhere in our social fabric is the discri mi nation between the
rich and poor so emplia-i/e 1 to the average citizen as at the bar
of j- here should it be less. In an .te of go\
ment the lines would be made * ear here of all places. Money
secti: .iblest and most adroit counsel, whose characters and
owerful factors in their client's 0.111*1-. I vidcncc
can be gathered from every source, and all the legitimate expedients
of the law availed of. The poor must be content to forego all these
160 The Annals of the American Academy
advantages, but surely the state should not take an unfair advantage
of their helplessness.
\Vit enced counsel, and the entire organized machinery
of the criminal law at its command, it should not seek t<> di-arm him
completely, thus accentuating the power of money in the struggle for
liberty between the state and its citizens.
It i- with sincere regret and reluctance that I a^rrt that save in
rare instances the modern prosecutor does not stand between the
people and the accused. He and his assistants t<><> often measure
the success of their labors by the number of convictions they have
secured. It is a false and brutal conception of duty that is respon-
sible for grave injustice, but it is none the K true that it exi-tv
Under its influence the prosecutor becomes a partisan advocate,
blind to the strength of the defense, unwilling voluntarily to expose
the weakness of the people's case.
The people are as deeply interested in proving the innocence of
the accused where he is unable to defend himself as to prove his
guilt. By all means let us have a public defender in the interest of
fair play and common humanity.
Many more instances of evils that may be reformed could be
cited if time permitted. I have not attempted to deal with the minor
abuses that weigh so heavily upon the poor who come into contact
with our magistrates' courts, nor with the ever-perplexing question
of the relative merits of an elective or appointive judiciary, nor with
a host of other problems that present themselves.
That there are such problems pressing for solution cannot be
denied. In every other branch of human endeavor we are forging
ahead. \Vhy should we stand still, clinging to tradition in the field
of usefulness most important of all in a progressive civilization?
TO Wll.vi Ml< >ULD IN BE
AMKN \i:U: 1< i KIMINAI. LAW?
i:, I .us I '.HOOKS LEA v ITT. ESQ.,
Chairman of Comntiitrc n Commitment and Discharge of the Criminal
Stale Bar Association.
Of all the theological concepts which, after misleading mankind
for centuries. are in l*ing relegated to the lumber-room of
IK-CM more potent in influencing the thinkings
and doings of men than the notion of a physical hell, ruled by a
personified principle of evil.
I call this a theological concept, for that the devil is not once
mentioned by name in the Old Testament, and there are in it no
passages which can l>e tortured into an affirmation of his existence,
except through those -trained interpretations, in the art of which
iieologians are such a- o read h itether s.
or profane, we wonder whether it is not they, the zealous fr
of religion, who are, after all, its worst enemies? There is a pathetic
passage in one of the minor prophets which is usually taken as a
prophecy of C'hri-t. and if so, may fairly be construed as a forecast
of the way in which He would be treated in His Church: "And one
shall say. what are the>f wounds in thine hands? And He shall
rr these are the wounds with which I | tided in the house
of my frien The conceit of a personal devil luring men to his
terrible domain for their eternal r I the foundation of much
of the theology \\hich has been grafted upon iiis gospel. It is but
natural that it should have been the basis of a system of penology,
rmcd and developed under its influence. Starting :
what could be more logical than the proposition that the insane man
unfortunate being who is possessed of a demon acting under
the command of the Prince of Darkness, and who is forced b>
>n to say and do things from which he would shrink in horror
if he were in his right mind' What more reasonable than the de-
duction that an insane man can not have any intent " Hut without
intent t- one be guilty of crime? Hence the
sapient conclusion of the law. that if a person upon trial of an
(161)
162 The Annals of the American Academy
indictment for crime is found to have been insane at the time of the
commission of the act, he must be acquit
The >tate. having thus provided this avenue c: . the law-
yers and the doctors have been astute to <levi-e a plan \>\ which
evildoers could travel over it. The theory of temporary insanity,
its latest development being called brainstorm, was invented. All
the odd things or foolish things which the accused has done in his
lifetime and who can truly say that he has always spoken or .
ly? are gathered together and framed into an hypothetical q
tion by some shrewd mind skilled in the art of perversion. Then
experts are sought, who, in consideration of so much cash, are
willing to testify that, in their opinion, the person who said or did
such things was insane. The amount of cash to the expirt is in in-
verse ratio to the amount of insanity in the offender. It is a re-
markable instance of Providence tempering the wind to the shorn
lamb, that the poor do not seem to be subject to brainstorms. Their
insanity is of a kind which costs little to prove. The brainstorm
brand is only for the rich. It is so devilish in its cleverness that it
goes far to upset the proposition that there is no such person as the
devil. As legal fictions have been invented by lawyers, so the doc-
tors have created a medical fiction to enable wealthy criminals to
cheat the law. There is now living a certain rich man, who in early
life committed a murder, escaped the penalty of his crime by aid of a
medical fiction of insanity and afterward disproved the truth of his
expert's opinion by a successful career in two distinct lines of pro-
fessional endeavor.
There is now living another, who was guilty of a foul and cow-
ardly murder in a public resort, who was acquitted on the ground of
insanity, was sent to an insane asylum, and at this moment is plan-
ning for his release by reason of a regained sanity. It would indeed
be a sad fate for an unfortunate prodigal son, who while possessed
of the devil, had been so unlucky as to kill some hated person, to
lose his life as a forfeit, or be incarcerated in an insane asylum. The
brainstorm theory is equal to the necessities of the case. Evidence
of past insanity frees- the accused from jail, and evidence of present
sanity frees him from the asylum.
It is an instance where in avoiding Scylla one need not fall on
Charybdis. Another advantage for the brainstorm theory is, that
the same experts can be used twice, making it a little cheaper than it
Insane Amenable to Criminal Law 163
woul a new set were required ,.n the habeas corpus proceed*
ings. I take it that it is thoroughly understood in every community
how the plot is worked. Where there is an acquittal on the ground
of insanity, the prisoner must be committed to an insane asylum.
Hut he mit-t have been sane enough to be tried, otherwise
would have had to be postponed. Now, if he were insane at the
of the offense and had become sane enough to be tr:
insanity was temporary in its nature. Storms,
lier of wind r brain, are usually tr;nj>orary. An innocent man,
who is sane, has a right to his freedom. The acquittal by the jury
on whatever ground is conclusive evidence of his innocence. Where
a ma : in any place against his will, he has a right to a
of habeas corpus, under which the person detaining him must
produce him in court and show what authority there is for the de-
tention. There are but three kinds of legal detention known to our
law, one under a commitment for trial, a second by virtue of a
sent* a court of justice, the other through a committal as
ic. A prisoner under sentence has no right to a writ of
habeas corpus, except to inquire into the jurisdiction of the court
npose the sentence. Thus it fll.>ws that when an accused
is acquitted on the plea of insanity and is committed to an asylum,
-in get out of the latter, provided he can produce evidence
ccome sane. The brainstorm theory is the dodge that
Ics him to do it with the same set of experts. The astute
sel of a thrifty murderer would bargain with the experts for
both jobs in a The conversation would run somewhat in this
haps not quite so bald in words: "Dr. Hlank. here
arc all the odd and queer doings and saungs of this misguided man.
which I have been furnished by himself or sympathetic relatives.
I am informed that they can be sustained by proof. Please whip
an hypothetical question and then inform me on the
( i) what would your answer on the witness stand
be to that hypothetical question ; ( j in case the prisoner should be
on the ground of insanity, would your answer preclude
tig as to his regained sanit A hat will be your
total charge for your three answers; namely, your answer to me
now, your n-; of it at his trial, and your answer the other
way on subsequent habeas corpus proceedings ?" How many doctors
164 The Annals of the American Academy
can resist such a temptation as that? A negative opinion means
no cash, or very little, an affirmative, thousands of dollars.
Now suppose that by a Dimple enactment the law is change' 1
so that the jury instead of finding a verdict of "not guilty by reason
of insanity." return "guilty, but in-ane." Then suppnsi- that it is
further enacted that whenever upon the trial of a person ace
of a crime the verdict is returned, "guilty, but insane." Mich person
shall be sentenced to serve the same term in an insane asylum as he
would have to serve in jail, but for the finding of insanity; and in
cases where death is the penalty for an offense by a sane man, im-
prisonment for life to be the term for the insane criminal.
It is obvious that much scandal in the administration of criminal
justice would be plucked up by the roots. The question therefore
whether in the proper development of our system of penology,
the defense of insanity should not be abolished.
It is in such a forum as this that such a question should he thor-
oughly discussed. It is no light thing to overturn the precedents
of centuries. In doing away with the scandals which I have men-
tioned, we should proceed carefully, thoughtfully and with delibera-
tion, should weigh every consideration for and against. In any at-
tempt to bring Criminals within the grasp of the law, we should be
mindful not to do injustice to the innocent. Thus we are brought
face to face with the question, is a man who has done a deed of
violence innocent because he is insane? To answer that question
rightly, we must answer many others. Some of them I shall at-
tempt to do.
First, what is the basis for the right of the state to inflict
the penalty of death for the infraction of a law of the state? In
the times when the Church had an authority, which science has in
our day so greatly shaken, it was sufficient to quote the words of
Holy Writ, "Whoso sheddeth man's blood, by man shall his blood
be shed." We are beginning to see that this was more by way of
prophecy than command.
It is not supposed that argument is necessary in support of the
proposition, that the only ground for the right of society to punish
the individual for an evil deed is its own protection. Those of us,
who still hold to a theology unchanged by modern science, need
but to be reminded that the Divine Teacher laid down the principle,
"Judge not that ye be not judged." It is only the Supreme Searcher
Amtnal . nnnal Law 165
iearts who can impartially judge and ju-ily sentence evil doing
by reason of an , cannot do it. The
problems as to motives lie too far below the surface to be reached
by any human plummet. On the other hand, those of us, who accept
the ir. l( h :::;- ..! modern science and have revised our theological
dogmas in its light, or prrhap- thro\\n them overboard altogether,
endorse the proposition as an axiom.
Now, if the i! -hi of society to punish is based on and measured
by its right to protect itself, the volution of the problem in hand is
not far to seek. The insane man is just as dangerous to the com-
munity a- the sane. In fact, he is more so, for the sane man is to
some extent open to the : - of law, or at least of prudence.
The insane man is believed to be under no such restraint, although
ght be noted that experience at the insane asylums would seem
to show that the insane man i- re-trained by fear of punishment,
as well a- the sane. We bind over to keep the peace and can im-
i. if need be, the sane man who threatens violence, which he
may never do. We acquit as innocent an insane man. who has
actually done a deed of violence. Was ever a more horrible
mockery? The man who has already demonstrated that he is a
menace to society is, on the opinion of an expert that he is not
to misbehave again, allowed to go free. Whereas, a man
whose violent \\<>!N have never actually ripened into deeds can
be laid by the heels.
Second. What is insanity?
i true that the insane man is possessed of a demon, who
>1> him against hi- will? We need not spend time on
We may content onr-i-lves uith quoting the latest definition of in-
sanity as found in the Century Dictionary, "a seriously impaired
condition of the mental functions, involving the intellect, emotions
ill, or one or more of these facultir ive of temporary
- produced by and accompanying acute intoxications or acute
;le disea^
To my mind that is a very tory definition I would
define it a tc of a man's intellectual faculties, when he chooses
the wrong major premise, as the reason for his conduct. Common
sense is the ability to select on t! * the right major premise
o basis for action. Insanity is simply the absence of
166 Annals of the American Academy
sense. The doctors are entirely right, in my humble judgment.
when they say that all men are more or le^ in>ane.
In this discussion, we are concerned only with that form of
which results in acts, against which society must protect
itself.
Third, What are the reasons which are urged against the
abolition of the defense of insanity?
I ran think of only two, (a) the suggestion that it would be
unconstitutional, (b) pity for the unfortunate and his family. Let
us examine each.
There is absolutely nothing in the objection that it would he
unconstitutional to do away with the defense of insanity as an
answer to an accusation for crime. The insane man has no con-
stitutional right to kill. The insane man is not known to the con-
stitution. He gets his defense by an enactment of the legislature,
and the power which gives can take away. Take for example the
law of New York. Its statute passed about ninety years ago a
re-enactment of the common law it must be admitted provides,
"No act done by a person in a state of insanity may be puni-lud
as an offense, and no insane person can be tried. >entcnccd to any
punishment, or punished for any crime or offense, while he con-
tinues in that state." That is still the law, phrased in its penal code,
more verbosely, but in effect the same (Section 20). It could be
constitutionally replaced by a section equally short ami pithy: "In-
sanity or other mental deficiency shall no longer be a defense again -t
a charge of crime; nor shall it prevent a trial of the accused unless
his mental condition is such as to satisfy the court upon its own
inquiry that he is unable, by reason thereof, to make proper prepara-
tion for his defense." Provide, that if at the time the jury render^
the verdict the court has reason to believe that at the time of the
commission of the crime the prisoner was insane or afflicted with
any mental deficiency, it may then defer sentence and cause an in-
quiry to be made, and if, as the result of that inquiry the prisoner
is found to have been sane, the court shall then sentencee him to be
hanged, or electrocuted or imprisoned in a jail, as the case requires ;
and if insane, the court shall then sentence him to be confined in the
proper state asylum during his life or for a term of years, as the
case requires.
The objection of pity for the unfortunate and his family can-
Insane .-\mfnablc to Criminal Law 167
not be so readily answered. Over the door of sentiment too often
is fouiKl the superscription, "lie \\h entrrs here must leave all
reason U-lm. : the family ^ indeed a negligible thing,
for t #na placed on a
Miily between a \ guilty by reason of in>a
and OQe, l.ut insa:
Tin- iYi : r the unfortunate himself. \\ hn. when not
in hi- n-ht inui.l has d.>nc a in which in possession of ln>
he would shrink with horror, ought not as a matter of
reason, to prevent such a change of the law. The protection
of society is much more iinjH, riant than pity for the individual.
;.athy for his mixfortunr :e direction of alleviating
-I id u i. -n while in a place of confinement. If once it is gener-
ally understiNHl that this i- a <|urMi m which should l>c decided by
rtmson. and not by sentiment, the battle in favor of the change will
be all but v.
Ivocating anything new. It has been the
and for year>. that in ca-rs of insane persons juries
!CT the verdict "lluilty. but insane." As we inherited from
.md the defense of insanity, we will do well to follow her ex-
ample by its abolishment.
he Knjjlish Act is short it may be interesting to give it in
full. It i- i >S. of the laws of 1883.
This Act may be cited as the Trial of Lu;
Act. 1883.
i Where in any indictment or information any act
or 01 v person as an offence, and
given in evidence on the trial of such JK.TSOII for that offence, that
!i--t to be responsible according to law for his
: the time when the act was done or omission made, then
if it appears to the jury before whom such JKTM.H is tried that he
did the act or made the omi-i..n charged, but was insane as afore-
at the time when he did or made the same, the jury shall return
diet to the effect that the accused was guilty of the
I --ion charged against him. but was insane, as aforesaid*
at the time when lu- did the act or made the omission.
"(2) Where such special verdict is found, the Court shall order
tn* kept in custody as a criminal lunatic in such place
and in such manner a- the Court shall direct until her Majesty's
168 The Annals of the American Academy
pleasure shall be known; and it shall be lawful for her Ma
thereupon, and from time to time to give such order for the safe
custody of the said person during pleasure in such place and in such
manner as to her Majesty may seem fit." See also the Criminal
Lunatics' Act, 1884 (chap. 64).
In order to follow this precedent in this country we should
need in each state an act couched along the following lin
I"ir>t : Repealing the statute which provides that insanity shall
be a defense to an indictment for crime ; and, secondly, providing
in it> place the following:
If upon the trial of any person accused of any offence it ap-
pears to the jury upon evidence that such person did the act charged,
but was at the time insane, so as not to be responsible for his ac-
tions, the jury shall return a special verdict, "guilty, but insane,"
and thereupon the court shall sentence such person to confinement
in a state asylum for the criminal insane for such term as he would
have had to serve in prison, but for the finding of insanity. And,
if upon the expiration of such term it shall appear to the court that
such person is still insane, his confinement in such asylum shall
continue during his insanity. And further, when such a verdict of
"guilty, but insane" is returned in a case where the penalty for the
verdict of guilty against a sane person is death, such sentence for
the insane person thus found guilty shall be for life.
It is supposed that the pardoning power vested in a Governor
or Pardoning Board would apply to such an insane criminal, but if
not, then in deference to sentimental considerations it might be
v, ell to provide that the Governor or Pardoning Board shall have
special power to pardon an insane criminal thus confined.
ADMINISTRATION OF CRIMINAL LAW IN THK
INH-KloK COURTS
BY HON. M MAYEI,
Former Juttice of the Court of Special Sessions of New York City, and
(or: ral of the Sialc of New York.
My purpose is to endeavor to direct your attention to the well-
hat more people are convicted in their relation with
riminal law. in the so-called inferior courts than in^hc superior
courts, ami therefore, that the a very large intere
tiie !:-;: a '::.::.;- -i .:': M of these courts, not alone from the moral,
irom the economic aspect. '1 his very week a commission,
appointed in the State of New York to inquire into the conditions
of these courts in what we call our cities of the first class.
New York, Buffalo and Rochester, has made its rqx>rt. As I
have been connected in an official capacity with that commission,
much that I -hail -.i\ will he based upon actual observation.
In the d few York alone, the records show that in 1908.
in tl the old city, or the Boroughs of Manhattan
e arraigned in what we call the
.nd in the remaining three boroughs of the
some 65,000 persons, thus making a total in round numbers of
240,000 people, not to speak of those who come into these courts
through an informal method known as the summons, which is in
the nature of an invitation from the judge who desires to inquire
some matter. Those who come in obedience to the summons
are < t*> be somewhere in the neighborhood of loo.ooo
people. So that you have between 250.000 and 350,000 people
brought into tlu-e s,, called minor courts, and, doubtless, statistics
of the country would rise to figures that would be at
once interesting and appalling.
Now, of this large number that I have referred to, by far the
great majority arc charged with only comparatively petty offenses,
and out of the 175,000 to whom I referred, 122.000 were charged
with offenses of one kind or another so comparatively minor
in character that the police justices, or magistrates, as we call them
(169)
170 The Annals of the Aincn^in . K (/</;/; y
in New York. hal complete and final jurisdiction over their c.
the remainder being held for trial in tin- higher courts for more
serious offenses. So that the point I am calling to your attention
at the outset is, that when you are dealing with thousands and
thousands of people, it is perhaps more important that the adminis-
tration of justice of those courts by those judges should be sound,
and more advanced than even in the higher courts
Now. the difficulty al><>ut the so-called inferior court i-. that it
usually receives the least attention at the hands of the state. You
go to any great city abroad and you usually find a genuine temple
of justice erected for the purpose of holding courts, but go into a
police court in the great cities of this country and you are at once
repelled by the bad arrangement of the court room, by the noise and
confusion, and usually by the lack of dignity. The states (mean
ing thereby the government) seem to think, ordinarily, that the
last place that should have serious attention is the court room
where the great majority of the people must go, and the BCCOC
in many police courts is not that of a deliberate and careful in-
; at ion. hut that of a jail delivery to get rid of everybody as
soon as possible, either by discharge or commitment, and he done
with. It is, however, in these courts that great numbers of our
population gain their impressions of American justice. There ought
to be not only the best physical surroundings, but the most careful
deliberation on the part of those charged with the administration
of justice.
That leads me to the first thing that I happen to think of, the
haphazard disposition by many men in these positions and the lack
of systematic study of the problems before them. Take the two
great evils which I shall not attempt now to discuss scientifically,
the evils drunkenness and vagrancy, and within the classification
of vagrancy, include not merely the drunkard or the man who does
not support himself, but also those who live in vile ways. I venture
to say that in the great number of inferior courts of the country.
the ordinary disposition is to ask the police officer whether the man
was drunk, and if so, fine him and have done with it ; or, in case of
a vagrant, ask whether the man has no friends nor family, and if
so, send him to the local jail, workhouse or penitentiary. That is
not going to benefit the people. The problem of the inferior courts
must be aided by the establishment of something in the nature of
.//' i;i
Ionics for paupers and beggars, where each one shall be
compelled t \\--ik i'..i the benefit of the slate, and not to return
as il. in die winter tune, ati.l say to the magis-
1 like to be committed for three months/' and have the
magistrate pleasantly commit the gentleman.
lack of thought upon llia * proposition, with the remit
that tin re is a great Linden ! upon citizens of
. great community, Ur.m these problems are not worked out
M- u- Mt i rurally or in a common sense way.
Similarly, tlic problem of drunkenness must be handled along
more < d lines before we can obtain satisfactory results. Now,
one of the ir.< handling these cases where there is any effort
at all to apply it. is that known as probation, which has no doubt
been discussed at your meetings within the last day or two. The
tes of New York have applied the prol stem to cases
mkcnness and cases of hus! bo have failed to support
their wives. Instead of putting these men in jail, where they neces-
sarily continue to be a burden, the effort has been to make them
k out their salvation" and gain their freedom from the court
and its judge by conducting themselves properly; and the actual re-
sult of successful probation is to make a man support his family, and
hy to relieve the community of the support, both of his family
and himself. Therefore, I would say that the system should be
applied generally throughout the country.
The commission to which I have just referred has made a
recommendation which 1 imagine is new, and it i- along the line of
separating, so far as may be, the innocent or the young from the
more hardened and the adult, and. therefore, a departure has been
recommended, and I believe will shortly be adopted by the legisla-
ture a departure in the cases which, for want of a better name, we
call cases of domestic relations. The laws vary in the different
>, but ordinarily a woman goes into a police court, and there
that an order he made that her husband shall sup-
port her. Often she brings her children with her because there is no
one in whose care leave them. She should not be compelled
to be at the police court at the same time with the criminals and
the derelicts. Therefore, the commission already referred to, has
recommended that for the hearing of such cases, and all cases where
the law places an obligation to support an aged or infirm relative,
172 The Annals of the American Academy
there shall be hel<l a t court or part <>i the court, entirely
disassociated from the ordinary criminal routine.
Another point which is obvious, should be emphaM/ed all over
the country by those interested in tlu Long ago tin prin-
ciple was established that men and women waiting to be heard in
criminal courts should be separated ; that they should be kept in
detention places, whatever they might be, jail, pens, etc.. in different
places, and yet it is remarkable how carelessly that is observed ; and
iherc should l>e in every state a statute sufficiently stringent to im-
pose an affirmative duty upon every public officer whose duty it is to
be in the position of a detainer, to see, fir^t, that men and women
should be absolutely separate; and, secondly, that when a young
man or young woman is brought to the court, so far as practicable,
and so far as the physical situation will permit, they should be kept
completely away from the older and hardened offenders.
Now, there is another thing to which I want to call your at-
tention. It has to do, perhaps, not so much with the court itself as
to that which leads people to the court. In this country we arrest
entirely too many people, and arrest them for too many petty and
foolish things. I do not know how it is with you I assume it is
the same here in Philadelphia as it is in New York but I have no
doubt no one of these distinguished auditors on the platform can
walk abroad unless he violates some ordinance prescribed by some-
body. Now, the result of it is that throughout the country the
police no fault of theirs in performing their duties are charged
with the duty of making a great number of arrests for offenses in
cases in which, on the Continent and in England, no arrests would be
tolerated for a moment. In New York, according to the statistics of
1908, almost 52,000 people out of the total to which I called your
attention, were arrested for the violation of what we call ordinances,
that is to say, local regulations enacted by our board of aldermen, and
proper regulations relating to health and safety of the community. Of
the 52,000, not quite 5,000 people were arrested for the violation of
our automobile law. So that, to be more nearly accurate, there were
47,000 people arrested. But why should that be ? Why should a man
charged with the violation of a regulative ordinance be taken through
the streets if he can be satisfactorily identified. In line with what
I have just stated, a recommendation has been made, which I hope
will be followed and which I would like to see everywhere in this
Administration uf I ri initial Low 173
country, charging the local police authorities with the duty of making
appropriate rules and regulations, for a system -.1 identification.
A ill a\-id the possibility <>t abuse or cor-
ruption, and are t '.- that any person, by conforming t-. those
.whether in the nature of a card f id-ntiticati.n or otherwise
may be suininuned t o-urt 1.) th- |,..Iuv . tiu r . as is done on the
Continent instead of bcin^- ' i-rilm ith ; and the result of such
a system will be that a very much less number of persons will be
ted than are now. There arc many things I would say to you
1 1 I had the time, but there are perhaps just two more to which I
shall call your attent:
One is that there should be an absolute prohibition by law, pre-
ig any pers..n \\ho is acting in the capacity of a magistrate of
one of these from occupying an executive po
in any political organization. Activity in political affairs may not
nece idicate a failure on the part of the judge proper!
perform his duty, but even if it does not. the people who come into
tirt. int<> this min, r c tin. mtM under no circumstances believe
that anything prevails in his court by way of purchase or influence,
and that the only thing that does prevail is the application of the law
the same to him as to the man \vho is next to be arraigned.
Now, the Governor tells me that there are twenty-eight or
me courts of magistral ex here. In the City of New York,
dc of one branch of our court, we have now thirty -two. We
will softly l more. The more or less haphazard adminis-
il due, in a great measure, to the lack of system. No one
tnke from the judge the absolute right to adjudicate the case
before him in accordance with his conscience and best judgment,
and no one would deprive the judge of the exercise of his judgment
in individual cases, but it is a mistake to have these courts less sys-
tematic and orderly than the higher courts are required to be.
oems to me in those communities where there are many
magistrates and many courts, there ought to be a central head or
judge, who should be personally chargeable with the supenrtsloo
of the administrative features of the courts, to investigate the
manner in which the clerks and other employees of the court per*
form their duties, because the clerks and other employees are the
ones who come in direct contact with the people.
174 The Annals of the American Academy
There is very much more I would like to say to you, but I realize
that it is getting late, and I can only say that I sincerely hope that
there will develop in this country a growing interest in these courts,
for, trite as the expression may be, these are the courts ,,f last resort
to most of our citizens, and certainly in great cosmopolitan communi-
'ike New York, at least. those who come here from other shores
ell as those who have lived here for many years, know no other
lard of American justice except what they find there, and for
that reason no subject should command, on the part of all good
people, a keener interest or more profound attention.
THE JURY SYSTEM-DEFECTS AND PROPOSED
REMEDIES
BY ARTIU-K C . TRAIN, ESQ.,
Former Assistant District Attorney of New York
t'nlike Marl we are to accept the official reports of
i-. i h <>vcr tin- dead body of Caesar, I come to praise and not
unions ; munition. It has of recent years
become popular to pronounce tin- jury system a failure a farce*
gamble a joke. The old negro's description of a court as "a place
ey dispenses with justice" is generally accepted as accurate.
We hear much more about lawless, conscienceless and foolish juries
than about lawless, conscienceless and foolish fathers and brothers,
' s and cousins, ba tchers and plumbers as if a collection
of heterogeneous frail humanity should necessarily prove stronger
and more intelligent than its component parts. Of recent years
\body has taken a turn at giving the dog a bad name. My re-
marks are by way of protest.
is asked to speak upon the jury system and the various pro-
posed remedies for its defects. But i defect can only be
cured by its entire abolition the defect of humanity. For of all
.ti<>ns the jury is the most human twelve times as
ingle judge and created for that very reason. If you
consider the matter impartially the wonder is not that the jury sys-
is not better, hut that it is not worse. How can that extraor-
dinary conglomerate of ignorance, sentiment, prejudice, insanity
and anarchy kn>\\n as the jury be productive of justice? How can
the Irishman a-iinnn tt r justice to the negro, the Christian to the
the Republican to the Democrat? How can any good thing
conn hat sort of a Nazareth? Frankly speaking, how many
of you would really care to be judged by any twelve of your own
imin- dd be sure to remember that this one
had too hot a temper, that one ineradicable bias, that another, was
eccentric, that a fourth had an uncle in an insane asylum, and that
the re a little queer anyway. Yet how vastly preferable
eem to any jury of your peers which would be drawn
(175)
176 The Annals of the American
out of the wheel by a clerk of sessions! Still you would probably
tfet justice. I once had a jury composed of four saloon keepers,
three delicatessen men, a junk dealer, an impressionist artist, one
cab driver, one grave digger and a lecturer on the Holy Land and
it was one of the best juries I ever had. It i> Mated on good au-
thority that Recorder Smyth, of New York, once said that he had
never known a jury over which he was presiding in a criminal case
to return a v nlict. That is hi^h ; m popu-
larly described as a broken-down failure. Why should a jumble of
unintelligent Americans of foreign birth, mo.st of them of a rather
low personal standard of business morality, render impartial
honest verdicts from a jury box ? I answer, for the same reason that
the common people of this country have never yet failed to respond to
any appeal based on morality or justice. Because with all our fail-
ings this nation is essentially a moral nation with high ideals of
honor and public duty often, I regret to say, better exemplified
in the humble service of the juryman than in our legislatures and
municipal office holders.
Now, inasmuch as the chief defects of the jury system are in-
herent in its very nature, it is well to have in mind the purposes
for which it was devised. We should remember that the jury was
instituted and designed to protect the English freeman from tyranny
upon the part of the crown. Judges were, and sometimes still are,
the creatures of a ruler or unduly subject to his influence. And
that ruler neither was nor is always the head of the nation ; but
just as in the days of the Normans, he might have been a powerful
earl whose influence could make or unmake a judge, so to-day he may
be none the less a ruler, if he exists in the person of a political boss
who has created the judge before whom his political enemy is to be
tried. I have seen more than one judge openly striving to influence a
jury to convict or acquit a prisoner at the dictation of such a boss,
who, not content to issue his commands from behind the arras, came
to the court room and ascended the bench to see that they were
obeyed. Usually, the jury indignantly resented such interference and
administered a well-merited rebuke by acting directly contrary to the
clearly indicated wishes of the judge. Wealth and influence are no
less powerful to-day than they were in the days of the barons, and
our liberties no less precious. It is frequently said that there is
no longer any danger that an innocent man will be convicted, but
The Jit m 177
that the difficulty now is to prevent the acquittal of the guilty. This
raking. tru< \\hich would permit the
conviction of an innocent man in a civilized country would U
it a jury Mich might easily be the case in any
f the I .ites.
the shuck to our sense of justice, if Joseph Pulitzer,
r of the A'ttf York H'orld. could have been extra-
hin^tun during the last a-!mi::i t:..!i..n and, before a
judge, i] . c, and in the shadow of
\Vhite ll. use. tried f.-r a hU-1 np..n the President's brother in -
it was to protect themselves against such pot-
that the har< 1 King John to acknowledge the right
ta and jury trial as set forth in Magna Charta. "Com-
mon pleas shall not follow tl ' court, but be held in some
certain places."
lied Praecipe shall not in future be issued, so as to
cause a freeman to lose his court."
man -hall be taken, imprisoned or disseised or out-
1, or exiled, or anyways destroyed; nor will we go upon him.
nor will we send upon him, unless by the lawful judgment of his
peers, or by the law of the land."
It was precisely this t<> which the colonists objected in the Dec-
>f Independence, "for transporting us beyond seas to be
offenses." And this right has finally been
dlizcd in our Constitution as follows: "The trial of all crimes
exec; es of impeachment shall be by jury, and such trials
shall be held in the state where the said crimes shall have been
The time has not yet come in the United States when our
liberties would be safe without the jury.
It i t)le that an institution so inti : with our
ideas of popular government should be displaced. Hven if there
tinned for it some more accurate metluxl of administering
the law in criminal cases, it might well be that what we gained in
efficiency we should more than lose in the illustration of the prin-
s of republican government .
The Question of Defects and Proposed Remedies
lust why there should be so much criticism of the jury I have
r been able to understand. Assuming that the system is an
178 The Annals of the American Academy
essential element in our form of government. i< the jury any less
Micce>>ful than any other of its branchc- ? You do not hear any
tirades against the defects of president -. governo: iturcs or
police captains as a class or as a feature <; uncut. They
are accepted as necessary evils. There are no societies for tin im-
provement of mayors of cities or the training and discipline of
United States senators. We take than as they are. simply hccause
\\e kn.'u that they arc human, like the rest of us. Is the justice
administered by our juries less admirable than that of chief ex-
ecutives or of local judges or police magistrate-.? Probably not.
That brings us to the consideration of jn>t what kind of justice
is administered by the jury. My opinion, after trying several thou-
sand criminal cases before between 8,000 and 10,000 jurymen, i^
that the system is in excellent working order. I do not know any
thing about Philadelphia juries; my experience is limited to New
York County and what I have been told about Massachusetts and
New Jersey. I dare say that in the country districts juries are
more complacent than in the big cities. They are apt to be friends
of the man at the bar and more anxious about not hurting his feel-
ings than if he were a stranger. Taken on the average, as all our
institutions should be judged, I believe that, whatever the individual
faults of jurymen may be, once sworn and in the box, they become a
highly conscientious body of men. I do not think that lawlessness
is an attribute of American juries as a class any more than it is
of judges, presidents or district attorneys.
If, four times out of five, a judge rendered decisions that met
with general approval he would probably be accounted a highly sat-
isfactory judge. One cannot be right every time. Now, out of
every 100 indicted prisoners brought to the bar for trial, probably
fifteen ought to be acquitted if prosecuted impartially and in ac-
cordance with the strict rules of evidence. In the year 1908. the
last statistics available, the juries of New York County convicted
in 68 per cent, of the cases before them. If we are to test fairly
the efficiency of the system, we must deduct from the thirty-two
acquittals remaining the fifteen acquittals which were justifiable.
By so doing we shall find that in the year 1908 the New York
County juries did the correct thing in about eighty-three cases out
of every hundred. This is a high percentage of efficiency. !
likely that any judge would have done much better? Is a judge,
TVi. System 179
dev< time r\ law, as well qualified to past
on the probabilities of a M .ts twelve men of affairs ? Or is a
single judge less like! . (>opular clamor than a jury whose
il l..t the moment the trial is ov-
course, as murder \* the most sensational of crimes, it is not
using that the jury system is usually judged l.y it^ effectiveness
in that particular class of cases, and it is true that the percentage
II is from 15 to 20 per cent, less than in < thcr varieties
of crime. The reasons for this, however, arc clearly apparent
iM.li more inherently imp reliable that a man or a
woman is bad enough to kill another than that he or she will accept
! >c or get tH many times.
Second, A jury always demands proof almost mathematically
ig before convicting a prisoner of a crime punishable by
. and practically 1: :lic reasonable doubt propos:
1 here must be no doubt in a murder case, whereas they will con-
ket almost , ion.
c/, The law of self -defense is exceedingly broad, not to say
ambiguous, and it is the inevitable plea of the murderer.
Fourth. Murder cases attract a far higher degree of abil:
d.
Fifth. lint first in importance, the chief witness is always
ig been conveniently removed by tht rime for
li his assassin is on trial. Thus we should not expect to c-
as often in murder cases as in otl
I believe that the ordinary New Y<rk County jury finds a cor-
^cncral verdict four times out of five. But all juries go wrong
occasionally, just as anybody else does. Wilfully, or by mistake, they
sometimes render verdicts deeply she < our sense of ju
es arc widely heralded in the pre-s. for a senti-
mental acquittal makes a great ;t there are many verdicts
popularly regarded as examples of lawlessness, which, if examined
id solely from the point . ce. would be
indicate nothing of the kind. but. on the contrary, to be
asonabK honest and intelligent jt;
One side always gets licked in every lawsuit. There will
vs be some persons \\h> think that every defendant should be
com I feel aggrieved if he i- turned out by the jury. Vet
entirely forget iu their displeasure at the acquittal of a man
i8o The Annals of the American Academy
whom they instinctively "/;;;<>.v" to be guilty, that the jury probably
had exactly the same impression, but were obliged, under their
oaths to acquit him because of an insufficiency of evidence.
It may be unfortunate that the cases attracting the most atten-
tion are not always the strongest, but a sound opinion as to whether
the juries in these or any oth< Kted reasonably or not would
necessitate a complete knowledge of the evidence and of the par-
ticular phases of the law applicable to it. About half the public
are dissatisfied in any event, no matter whether the defendant be
acquitted or convicted. These will always agree that justice has
not been done, although 90 per cent, of the most emphatic have only
a hazy knowledge that somebody has killed somebody else.
Occasionally, to be sure there occurs a fiasco of justice. But
such verdicts are the exception and not the rule, and for every such
lawless jury there are a dozen others who obey their oaths and
do their duty, however unpleasant it may be. As a matter of record,
however, juries usually convict in "star" or celebrated cases. Thus,
in the last ten years in New York County, with but two or three
exceptions, there has been a constant series of convictions in im-
portant trials in which at the time the public was deeply interested.
My own observation leads me to believe that in those parts of
this country where the people want an efficient jury system, they
get it. To demand a human institution that will always work per-
fectly would be tantamount to demanding perfect humanity. You
will have good governors and all-wise presidents just so long as
you want them, and the same is true of the jury. They are all part
of what we regard as successful republican government. There is
no constructive ingenuity capable of devising a form of government
in which only perfect men can be chosen to office. Thus, whatever
defects there are reside in the officeholders and not in the office
itself.
Now, the jury is here to stay, and, it seems to me, works rather
better than could be expected. Of course, it has defects, and some
of them could be easily remedied. Many so-called defects are not
defects at all. For example, you hear a great deal about the difficulty
of compelling intelligent and capable men to serve, and how only
the rabble are left upon our juries. Well, I for one, believe more
in the honesty and ability of the rabble who are willing to do their
The Jury System 181
than in that of the so-called gentlemen who successfully
1 have no use for the prosperou . who is too good for
lut> , too clean and too comfortable to get down into the jury
box grocer ami his plumber and do some work. I can get
along without him entirely. il< : the same soft chap that
another fellow to go to war for him, while he stays at home and
makes money out of a government contract. We do not want as
;>e of men who have so little interest in the community
that tin- ithcr take an immigrant
years off Kl! : , who has some pride in being an American,
and trust my hherty t" him, than to a Fifth Avenue or \\ air
swell who is bored to death with everything in general, and any-
mg to politics and government in particular. We can
get on without the gentlemen as jurors, if we can get the men.
Some of the worst jurors I ever had belonged to my own clubs in
New York. The fellou > I like to get as jurors are master car-
penters, mas. engineers, who have had experience of
real life, arc glad to be alive right here in the I'nited States
and are interested in the place. If we do not get enough of
type of men on our juries it U probably because we have not
^h of them, anyway. There arc no laws that will put public
spirit into a moral dead beat.
Of course, we should encourage every citizen to do his duty.
Service as jurymen -h>uld be regarded as an honor and a distinction,
not as a CUI-M-. We should pay our juror> well for their loss of time.
The t\\) main p: bjection- to the present methods of con-
ducting jury trials seem to me to be the unconscionable delay in-
volved in the selection of talesmen and the fact that unanimity is
required. In New York the prisoner can arbitrarily challenge the
ueii called against him if 1 .r^ed with a
. i -liable by a term of more than ten years. This mini!
ascd to thirty in murder cases. When the prisoner's lawyer de-
mands an individual examination of talesman the selection of the jury
as long or longer than the actual trial. I will guaran-
to delay any riminal trial for two whole days selecting
a jury.- onahlc fee. It is all guesswork any-
way. The number of arbitrary challenges should be summarily
reduced to from three to six. With a little more care in the orig-
The Annals of the . :n Academy
inal selection of our panels there would be slight risk involved to
either side in accepting the first twelve men that filed into the box.
As to the number which should be necessary to a verdict, I do
not, personally, see why we should demand an unanimous verdict.
We do not require it am where else. There is to-day no particular
sanctity in the number "12," whatever may have been the feeling in
ancient times. The reason for having twelve jurymen is conclusively
explained in Duncomb's Trials /vr rats.
"And first a* t<> their number twelve: and this number is no
less esteemed by our law than by Holy Writ. I f the twelve apostles
on their twelve thrones niu-t try us in our eternal state, jjond reason
has the law to appoint the number of twelve to try our temporal.
The tribes of Israel were twelve, the patriarchs were twelve and
Solomon's officers were twelve. Therefore not only matters of fact
tried by twelve, but of ancient times twelve judges were to
try matters in law. in the Exchequer chamber, and there are twelve
counsellors of State for matters of state; and he that wageth his
law must have eleven others with him who believe he says true.
And the law is so precise in this number of twelve, that if the trial
be by more or less, it is a mis-trial."
Much of the seeming misguidedness of juries in criminal cases
is due. just as it is due in civil cases, to the idiosyncrasy, or the
avowed purpose to be "agin' the government," of a single talesman.
In an ideal community, no matter how many persons constituted the
jury, provided the evidence was clear one way or the other, the jury
would always agree, since they would all be honest and reasonable
men. But just as a certain portion of our population is mentally
unbalanced, anarchistic and criminal, so will be a certain portion of
our jurors. In addition to these elements, there will almost invari-
ably be found some men upon every panel who are so obstinate,
conceited and overbearing as to be totally unfit to serve, either from
the point of view of the people or the defense. It is enough for one
of these recalcitrant gentlemen that eleven other human beings de-
sire something else. That settles it. They shall go his way, or not
at all.
Some allowance should, therefore, be made for the single lunatic
or anarchist that gets himself drawn on about every fifth jury, for if
he once be empanelled a disagreement will inevitably follow. This
could be accomplished by reducing the number necessary for a ver-
The Jit m 183
Hundreds of juries have been "hung" by just one
man. It would be an -it thing to have an additional, ur tlur-
sworn t<> take tin- place of any one of the others who
mi^ht tall M .luring tin trial. Such reforms as these easily
suggest then
re tint tin- v. .i\ to elevate the jury system is to
he l>< tuli With trong and capable men to guide them.
s would rarely go \\nmg. The chief obstacle lc the admin-
"i ju- 1 i the sensational
iuh arouses the sympathy and stimulates the imagina-
:. iint nnly l>y exaggt Nely accentuated
accounts of the t . h .\\ever filthy ami revolting, but also by
running column after column of matter not drawn from the
e at all, and calculate. I to inflame the mind of the public and.
through it. tlu- jury. In view of this deliberate pet of truth
.in. I moraN the euphemisms of a hard-put defendant's counsel when
he pictures as scullery maid as an angel, and a coarse bounder as a
icorge, seem innocent indeed. They are, in fact, only rend
possible by the antecedent co-operation of the "sympathy brigade."
the "special" writers, au<l the staff of instructed reporters, who, with
one common purpose and in accordance with the policy of their
prietor, blacken or canonize the dead and extol or
defame the living.
not within the rail of the courtroom, but within the pages
of these sensational journals, that justice is made a farce. The
contempt of court," has ceased practically to have any
ticance whatever. The front pages teem with caricatures of the
e upon the bench, of the individual jurors with exaggerated
s upon impossible bodies, of the I. mting and bellowing,
lies of the defendant praying beside his prison
>r firing the fatal sh,,t iu obedience to a message borne by
an angel from on high.
a defendant in a murder case reporting hi
own trial for a daily paper, and giving his own impressions and
planations of the evidence, with the jury at liberty, if they sec fit.
to read every word ! Small wonder that curious and morbid crowds
struggle for access to such supposed scenes of mingled hilarity and
pathos, or that jurymen are occasionally led to believe that their
verdict should be but the echo of "public opinion" as
184 The Annals of the American Academy
in the columns of the press. How long would tin- "unwritten law"
play any part in the administration of criminal justice if every paper
in the land united in demanding not only in its editorials hut upon
it- front pages, that private vengeance mu-t
In conclusion, let me revert to my original proposition. The
defects of the jury -v^rm are the defects of human nature.
The stream cannot rise above its source. The jury system works
the exact justice which public opinion demands, no more and
no less. As we grow to have a greater rc>pvt f. >r human life
and a higher regard for law and honesty, the verdicts of our
jurors will keep pace with public sentiment. The day will come,
in fact it <eem< to IK- breaking just about this time, when dU-
honesty in business and graft in politics will lead to the cropped
head and the ball and chain as certainly as burglary and rape. As
we grow in age and in grace, juries, like all public officers, will per-
form their duties conscientiously and accurately; they will uphold
the laws, unmoved by prejudice or sympathy, they will be un-
affected by popular sentiment or fear of newspaper disapproval ;
they will be perfect examples of a perfect system of government.
But then there will be no need for juries, for there will, of course,
be no criminals.
REFORM IN CRIMINAL IROCEDURE
.'. WllEELKt,
New York
The fundamental principles of criminal procedure are these:
has in tin- administration of crimioii
e is to t, iiiilij-- 'tzens from unlawful
:ice or injury threatened by criminals. The thought of
^eance should not enter intu it.
r tins purpose, experience shows that promptness and
of administration arc far more effective than sev
To use the language of the old Hebrew prophet, "Because sentence
agaii :1 w<rk is not executed speedily, therefore the heart of
the sons of men is fully si-t in them to do evil."
The vices of our American criminal administration spring from
servile adherence to tradition, with, .'.it regard to existing conditions.
The criminal code of England a century ago was cruel. The hu-
ty of the judges led them to use every possible technicality to
mitigate the severity of the penalties imj>osed by the statute law.
The ;ient of humanity and Christian principle has led to
radical changes in penal legislation. The pen. ;>osed by the
penal code cannot be said in any state to be unduly severe. The
English courts have modified their old traditions in criminal ad-
ion to meet the change in penal legislation. In most of the
> of the American Union the courts have not done this, but
have adhered to the technical rules of administration which pro-
mote the release of the guilty and the consequent suffering of the
The most flagrant instance of this is a recent decision in
Missouri. That was an indictment for rape. The proof was clear
and the man was convicted, hut a writ of error was sued out and the
vered this defect in the indictment : the constitution of
Missouri requires that the indictment should conclude, "against
the peace and dignity of the st -in engrossing the indictment
1 before the word "state." The So-
urt of Missouri held, in State vs. Campbell (210 Mo..
202), that the omission was fatal, although they said (p. 2
"The testimony, as disclosed by the record in this case, was amply
d5)
186 The Annals of the American Academy
sufficient to warrant the court in submitting the question to the
jury." They reversed the judgment of conviction. The indictment
being held void, of necessity the guilty man would go free unless a
new indictment should be found and the case tried again.
It is impossible to conceive a greater perversion of justice than
this. The guilty man is set free, emboldened by impunity to com-
mit similar crimes in the future. Or, if the state again indicts him.
:moccnt victim is called upon to again go through her pitiful
story in public before another judge and jury.
Perhaps there is no state which has made so much progress
in the reform of criminal procedure as the State of New York.
The penal code of that state provides that the judgment shall be
given without regard to technical errors or defects or exceptions
which do not affect the substantial rights of the parties (Code of
Criminal Procedure, sec. 542). In a recent decision of the New
York Court of Appeal (People vs. Strollo, 191 N. Y., 42), the
court, in dealing with this section, said :
"1'nder the statute our powers and duties in capital cases are
strictly correlative. While we have power to reverse in the interests
of justice, even where no exceptions are taken, it is also our duty to
disregard errors which, although excepted to, do not affect the sub-
stantial rights of a defendant. Guided by this rule, we feel con-
strained to hold that none of the general criticisms referred to under
this head present sufficient grounds for reversal."
The American Bar Association has for several years been con-
sidering this subject, and at its last meeting adopted with substan-
tial unanimity the report of its committee, which recommended that
an act of Congress should be passed providing as follows :
"No judgment shall be set aside, or reversed, or new trial
granted, by any court of the United States in any case, civil or
criminal, on the ground of misdirection of the jury or the improper
admission or rejection of evidence, or for error as to any matter of
pleading or procedure, unless, in the opinion of the court to which
application is made, after an examination of the entire cause, it shall
appear that the error complained of has resulted in a miscarriage of
justice."
A bill embodying this recommendation is now pending before
Congress. Hearings have been had upon it both in the Senate l and
'Senate bill No. 4568.
Reform in Criminal I'roctdurc 187
in the House of Representative* . much in the public
interest that it slum!. I IK adopted. If Congress should set the semi
of its approval upon this recommcii we not only effect a
much nc. .deral administration, hut t would serve as
an example to those states which arc still Buffering from the thral-
dom of technical and obsolete rules on this subj
Another gross perversion at has, unfortunately, be-
come too common HI tin- country is the abuse of the writ of habeas
corpus. This writ is one of great value. It is, perhaps, the most
important safeguard of personal liberty. All the more should it be
-led from abuse, le*t the time come when the abuses become
so great that they lead to drastic legislation restricting the essential
In etTict. tlu- \\rit of habeas corpus requires
v. Inch holds a person in custody in some one of its many
departments to -rate to a judge the reason for his detention. The
bearing upon tins writ should nt be subject to technical restrictions,
:y opportunity should be afforded to the imprisoned person to
prod: :,. in support of the contention that he is entitled to
I'he I'nited State > i I abeas Corpus Act it*. S. Revised
l 75 * -7^5) is * model in this reject. P.ut the courts, in
administering the law on this subject have failed to follow the prac-
h prevails in most cases, and to hold that when a question
has once been fairly trie<l. and the opportunity has been given to the
parties to present their evidence fully, the decision should be final
On the c has frequently been the case that successive ap-
.tions of the writ of habeas corpus to review the reasons for
the <! of the same culprit have been made to different judges,
and that these applications have resulted in successive trials of the
same question, \\ith.-ut much regard to the decision had upon any
is hearings. The law on this subject should be amended
so as to make the decision of the court upon the first hearing final.
ct. of course, to proper i n appeal, and subject to such
application on the ground of newly discovered evidence as the law
allows in all cases.
There is another gross abuse of this writ, and of the right
of appeal connected with it. to which attention should also be called.
Cases have frequently arisen during the last twenty years in which,
after a decision of the court of a state adjudging that an accused
. bill No. 1 4.11 1.
l88 The Annals of the American Academy
person is guilty and awarding the penalty for his offense, a \\rit uf
habeas corpus is obtained from a judge of a Federal court. Tin-
is done on the pretext that some Federal question that is to say,
a question arising under the constitution or the laws of the United
States, is involved in the judgment of the state court. When the
Federal judge decides that no such question is involved, an appeal is
taken to the Supreme Court of the United States. Undei
legislation, until very recently, the appeal in such cases was a matter
of right. In 1908 the law on this subject was so amended as to pro-
vide that in the case stated "no appeal to the Supreme Court should
be allowed unless the United States court by which the final decision
rendered, or a justice of the Supreme Court, shall be of opinion
that there exists probable cause for an appeal."
This enactment was much needed. But it did not reach another
method of the ingenious men who, to use the languageof Trollope,
are successful "in the manumission of murderers and the protection
of the criminal classes." This is, to apply to the Supreme Court
of the United States for a writ of error to review a decision of the
state court which has convicted a criminal and awarded his punish-
ment. Under the present law this writ is a writ of right. Once
granted, it suspends the execution of the sentence of the court below.
Then hysterical appeals are made for commutation of punishment.
The maxim that society has an interest in the punishment of the
guilty is entirely overlooked. The whole system tends to make the
punishment of crime as uncertain as human laws can make it. The
old maxim is forgotten: "Jttdc.v damnatur cum noccns absolritnr."
The same committee of the American Bar Association which
recommended the reform before referred to has in this particular
instance also sought to bring about improvement in judicial procedure
by recommending an enactment that in the cases referred to no writ
of error shall be allowed unless "a justice of the Supreme Court
shall certify that there is probable cause to believe that the defend-
ant was unjustly convicted." This recommendation is embodied in
the bills before mentioned. It gives to the person, if such there be,
who is unjustly convicted a full opportunity to maintain this propo-
sition before the Supreme Court. But it takes away the shield
afforded by the present technical defenses, which appear solely for
the protection of the guilty and the injury of the innocent.
Let me suggest one more inconsistency in the criminal pro-
'i>rwi in Criminal Procedure i^,
re of this country, winch would seem to merit the careful con-
ation of this association. The criminal codes of probably all
the states of the I'm. MI pr-.vide in substance, as does the penal
code of t ; k (sec. ao), "An act done by a person
who is a: of insane is not a crime."
When infinity is to be set up as a defense, the judge leaves
the jury I.* say whether the accused was insane when the
< was commu:< ! '1 In OJH-HS the door to the sham defenses
nal insanity, of temporal -id the like. Where
the accused is wealthy he can ; and introduce a cloud
of witnesses who really obscure the truth. The public scandal is
unspeakable. \V1 this defense be permitted at all?
If it U .t a person who is really insane is not morally
guilty, we reply: The |ue-tion of moral guilt is irrelevant. The
state has no right to punish moral guilt. Its duty, as before stated,
is to protect the innocent. industrious citizen from unlawful inter-
It it l>e -aid that an insane person has no control over himself,
that, generally, this is not true. As a rule, insane persons
are amenable t the discipline of rewards and punishments. And in
al cases where they are not so amenable, the need of
protection to the innocent is even more im|KTa:
netimes the provocation to a violent blow
is great, an<: - diminish the guilt of the offender, we reply
irrespective of i: nee of provocation is now adinis-
and would continue to U-. though the defense of insanity were
If it be said that it would shock public sentiment to put an
insane person to death, we reply : What better can you do with a
person who has a homicidal mania? Will you protect and nor
him so as to enahle him to slay his keepers? That is what the homi-
It sit-ins to me wicked to prolong their
e of the innocent victims of Mich madmen. The inno-
cent and useful ire entitled to first consideration.
Moreover, the cause of humanity demands that a person who
is hopelessly and violently insane should be painlessly put to death.
Continued existence t dness.
"He hair.
That would upon the rack of this tough world
Stretch him out longc
V. Respect for Law in the United States
0t>
RESPECT FOR LAW IN i NITED STATES
1 ADDRESS iiv II- S. SIU.KMAN.
Vioe-Prctklent of the United Slate*.
I feel as though I should first *... .v do you all do?" be-
cause you have all been presented to me, not the ordinary pro-
re, I am usually | >ir>entctl to the audience. I congratulate Dr.
Rowe upon the fact that he does not open this particular meeting
of th :th larceny, because the topic for com
this evening is "Rc-pcci for the Law." It would seem to
be out of place, under the circumstances, to commit either petty
larceny or some crime more serious.
He has attempt know whether you would call it
a crime or a misdemeanor this evening, by intimating to me that he,
if not the audience. r\pvt- of me something in the nature of a
speech 1 came here solely with the intention of presiding over this
meeting, and I always find a special pleasure in coming to this
polis of the Keystone State, because I always expect to find,
and always do find, audiences made up of cultivated and patriotic
people, and I am delighted to find here to-night an exceptionally
attr.v liencc, because so many of them are of the gentler sex.
program which the president of the Academy sent me
contained a very large li-t ,f notable speaker-, who. it was
woul in this evening's program. The list was made up
of M Krtors of philosophy, doctors of div
doctors of letter-, doctors of medicine. doctors of almost everything,
except horse doctors, there arc none of those. The program was
so expansive that I felt that, even as a presiding officer, I would this
mg resemble an Egyptian mummy, in that I would be pressed
now that I come here. I find that the list has grown beau-
tifully less, and that rather than being pressed for time, I am called
upon to occupy more or less time. And I shift from the scene
I have just de^ .mother.
They tell of a I. ho stood before the court making an
argument, in which he went from his firstly to hi- thirteenthly untfl
<'93)
194 The Annals of the American Academy
the court dozed, and awakened, and dozed again; and finally the
.tken him-elf to a realizing SCUM- that In-
occupying quite a bit of time, and lu- said to tin "I trust, your
honor. I am not infringing upon tlu- time <>f tin- court." "Oh, no,"
said the court, "you have passed that long ago. You are now en-
croaching upon ctcn.
But there is one advantage of the change in program: it gives
me the opportunity to have a little bit of a feast with you, and I
am going to take advantage of the experience those people had who
were present at the time of the Lisbon earthquake, which took place
at noontime, and tho-e who refused soup never got the roast. Now,
I am not going to refuse the soup ; I am going to take the good tiling
that is offered. Perhaps I ought to say that I am no orator. I do
not think I look like one. You know, they once said of old Lord
Brougham that no man lived who was as wise as he looked. I do
not fill the bill.
Our topic for thi- evening's discussion is "Respect for Law
in the United States." Respect for law implies compliance with
the law. It implies orderly procedure. It implies virtue, morality,
and isn't it just a trifle strange that they should have chosen the
-President to preside? I do not attempt to live up to that title.
I do not appear as if I did. I have been told that I would appear
to better advantage as an advertising agent for a patent medicine.
I went up, a week or two ago, upon the invitation of some
New York statesmen, and a few citizens, to deliver some observa-
tions at the beautiful little city of Glens Falls, not having been told
in advance what my topic was to be. Being just a little bit hurried,
overworked, at that time I am not often overworked I had thought
I would make a few observations on the general subject of the Vice-
Presidency, a subject I knew a little something about, its limitations
of powers and the impossibility of initiating anything. When I got
up to Glens Falls, I found I was down on the program to respond
to the toast, "The United States," not a contracted subject. So, I
find this topic this evening, "Respect for Law in the United States,"
to be a very broad subject indeed. It is a subject that ought to
attract any man, and it is a subject upon which any man, especially
one in public life, ought to be able to deliver himself of a thought
or two.
We do respect the law in the United States, in my judgment.
Respect for Law it\ . States 195
have more wholesome respect for it than the citizens
of any other government under the MIII. 1 Ulicxe that we, In
Aim < the IK IK i that ..ur government is best for all, ^TlUff
nent prevails that all should be for the best Respect
t\v in this country has grown up through over a century of appli-
law. Our government is a constitutional government,
< ly from any of governments on the face of
the glol . there are distinct departments of the national
government, each - nt u|x>n the others. No one depart-
ment can, as m some of the European countries, proceed with dts-
regai TV other department of the government.* The legis-
nent says what the law shall be; the court then de-
\\hether the le^ r i.<xly has overstepped its constitu-
tional right, ami then comes in the executive. Now and then we
hear rumors that one department of the government encroaches in
some degree upon the rights of another, but these rumors are not
!. and they do not often last long.
As a rule, in tin- government of our-, each department concedes
and grants to the others the fullest possible degree of the powers
h the constitution grants to it a constitution which, surprising
as the fact may be, framed by w ise men for the future guidance of
the government, at the time comprising only three millions of people
and occuping but a limited area, measures up to-day fully to the
of ninety millions of people, occupying seven per cent
of the area of the earth. It is a remarkable document; no greater
:i. and the fact that it lives to-day almost
:fication after 125 years, still revered by the people, is
the best evidence of the wisdom of the framers of that document.
;cct for the law in this country is founded upon the fact
that our laws are based upon this Magna Charta of the people, drawn
by wise men, whose ken was even greater than they dreamed, whose
ideas of the needs of an increasing people were figured out with
almost superhuman acumen.
It is a splendid picture to look back on the great men of the
try and a quarter ago, to think of the lives of those men who
gave republic, who laid the foundation, the charier.
for all our future lei: .?ul then to look at those who
inter hat document. Think of John Jay, the first chief
e of the United States. I am particularly proud of the fact
196 The Annals of ; :n Academy
that he was a product of the Empire State of New York. Think
of John Jay, who served the country so well, and never better than
he did in showing his absolute respect for law and order, as he did
in 17^4. when, by the manipulation of politicians, by political trickery,
he lost the governorship of the Empire State. It will surprise many
of you to have the suggestion made that men here, way back in
the latter part of the eighteenth century, were politicians who re-
sorted to tricks. The popular belief i> that Mich men never lived
until the present day. But they deprived John Jay of the election
ic governorship of the State of New York by throwing out,
upon technicalities, the return of various counties of the state which
would have shown quite a large majority in his favor. Urged to
resort to revolutionary measures to maintain his right, John Jay,
ambitious politically, then wrote to his wife: "In a little time we
will all be returned to the dust from which we came, and then it will
be a matter of much more consequence that I had the ability in a
trying time to govern myself than that I was permitted to govern
the state."
It is that sentiment, predominating through the public men of
greatest ability and finest character in this government, that has
built up in the generations that have succeeded, one after another
in rapid succession, respect for law in this country of ours.
Respect for the law has in large measure built up this country
of ours, and we are a great country; we are proud of our country
aye, and we are not unconscious of the fact that we have a
right, also, to be proud of the splendid representatives our sis-
ter republics send here to represent them at our court. It is a
great country ninety millions of people, three million square miles
of area, and 120 thousand million dollars of wealth. And all these
people of ours, in their various capacities, are adding daily to the
riches of the country, adding to them so greatly that to-day, if we
de-ire to compare our government with any other country in the
world, we find that the comparison fails, because we can not make a
comparison that we comprehend by talking of any other one coun-
try. To make a fitting comparison we must make it with a group
of other countries, or else with all the world besides. And while
we occupy but five per cent, of the area of the world, and are but
seven per cent, of the population, commercially and financially we
about equal one-half of all the rest of mankind. Here in this country
Respect for Law in th< United States 197
of ours each single individual about balances in production and in
consumption, three nun anywhere else in the world. We hive
reached these proportions, m m\ judgment, in no small degree be*
cause we have had a proper respect for government and for law
in this country of ours,
progress here with marvelous rapidity. Only ten years ago,
irs ago, we were second to (mat 1 iritam in the pro-
el, ami yet we progressed with Mich marvelous rapidity
that to-day we produce more steel than all the rest of mankind put
together. We have five times as much life insurance as all the rest
1 three times as much savings bank deposits. The
savings of our people represent <! l>\ deposits in the various bank-
N of tlu country, arc more than three times the money
country.
it possible for us to do business under these circum-
stances? Because our people have respect for the law, which re-
spect brings confidence in each other, and inspire* the confidence of
the other peoples of the < world. This way: If those who
had their dep-:t> in the banking institutions of the country should
at any one time demand the payment of these deposits, we could
only pay about 28 per cent., about 28 cents on the dollar. We never
have any flurries that amount to any serious matter for any great
length <>f time. It is because our people have that confidence in
fellow-man, which has inspired all the respect for constitu-
:neiit. and it obtains sane and safe laws.
I bd: -,< 1 am overstepping even the bounds that Dr. Rowe
I am taking a little bit longer than he meant I should.
I do t to drive the audience out of the room. I recollect
being out in a campaign in a western state some three or four years
ago. A fellow-speaker was a distinguished statesman from Penn-
He happened to be the last upon the program that eve-
and while he was speaking quite a number of the audience left
the room, in order, as he afterwards learned, to catch a late train
to some adjoining city. He did not know it at the time. He said:
ticc some of you are leaving. I hope the rest of you won't stmy
on my account. It doesn't embarrass me at all; I am quite
ices leave when I am sneaking. In fact.
poke last night there was no one left in the hall when I
ed, except one man, and when I inquired why he stayed he said
he was paid to remain and turn out the lights."
198 The Annals of tke American Academy
I am not going to weary this audience to such an extent to-
night. I hope. As I to conic here simply to pn
not to speak; but I was very glad of an opportunity to give ex]
sion to the belief that is within me that the greatness of this
country is largely dependent upon the fact that our citizens, as a
whole, born here, or born under other flags and brought here under
the benign influence of those who have lived here for decades, have
respect for law, for the rulers of the repuhlic, and they have con-
fidence in their fellow-men.
The further elucidation of this subject, the "Respect for Law in
the United State-.' will first be taken up, considered and discussed
by a gentleman with whom I had the honor to serve on a committee
in C'ongre>^ for more than a dozen years, and whose ability, whose
integrity ami whose faithfulness to every duty was an inspiration
to all his fellows in Congress. He comes from a far-off, western.
woolly state, as we are in the habit of calling them down here in
the East. He does not belong in the effete East, but I am sure that
the effete East will welcome him gladly as one of our own, and we
will be truly sorry when we have ceased to hear the voice of Con-
gressman Frederick G Stevens, whom I now introduce.
'K LAW IN 1 MTKD STATES
li ADDRESS BY !!<>N. FREDEBICK C STEVENS,
Member mc of Representatives from
At the outset I \\i-i. tin- iui|>ut.ition tliat is placed
upon .; a wild ami wolly \\ , I was born in
rare.! nt New Kngland. and I go back every year
to put my feet upon the old sod, to swear allegiance to the t
ith of our fathers. \\ e all do that from the
why we have grown into one of the most pro-
gres^ .is one of the most representative, parts of this coun-
A . I think we all ought to congratulate ourselves that the
address we have JIM likened to partakes of a dual nation-
somewhat Irish and sonu-u ' . We have had our
< Irishman, and have > \\cllcd ourselves into a splen-
didly patriotic frame of mind, just as every loyal American ought
And we can all agree with the patriotic sentiments of our
;id we know how truthful .and how necessarily
.itr his statement Yet tlu-rc U another side which conies
to us in official life, which I wMi to present to you for just a few
this evening, and I assume such was the intent of the
committee which arranged the program.
Your committee planned a broad subject, and a short time to dis-
cuss it and evidently desired us to present our own points of view
and our own personal experiences in treating it. That I shall pro-
ceed to do. Now, theoretically, we America! . and ought to
have, the greatest possible respect for law, because that is the con-
crete expression of the will of the people, through their own duly
organized institutions. We all realize that. And tally, we
.c, also, that there probably is not one of the great civilized
ns of the world where there is a greater disregard of public
in in the Tinted $ Ihi^ is not confined to any one
ned to any one section, and we have not a
monopoly of it in the wild and woolly \\\-t Such a condition is
dent all over our country, and there is a good reason for it
It is an expression of exactly the same quality which has made our
200 The Annals of the American Academy
nation so great, so progressive, so prosperous and so powerful ; and
that is the aggressive, persistent individualism of every true A;
ican; his determination to succeed, his desire, at all ha/ards. t<> make
his own will, his own opinions and his own desires effective. \Ye
see him quite often following the old notion, inherited from the old
Italian statesmen, that the end justifies the means. I do not mean
to say that Mich a sentiment is universal. We all know it is not,
for the great host of American citizens all over our country have the
utmost respect for the law. Yet there is a sufficient class, or I
should rather say there are sufficient among our people, who have
not the utmost respect who have, in fact, a disregard for public
law or authority that makes this quality characteristically American.
It has been the fashion of late years in discussing questions of
this kind, to call the attention of the public to the class designated
as "malefactors of great wealth." It has been rather a popular
designation, and there is some truth in it more than there ought
to be. Too many of the managers of large concerns maintain dis-
tinguished and able legal staffs, not so much for the purpose of
advising as to the intent and spirit .of the law, as they do to be in-
formed concerning the technical parts of it, how its penalties may
be avoided ; or, worse than that, to weigh the cost of the penalties on
the one hand, and the profits of the violation of law on the other.
The organizations of labor have followed, too often, similar lines.
In too many cases it has been found that personal and legal and con-
tractual relations weigh too lightly upon them.
In public positions we are painfully aware of many instances
where trusted leaders have prostituted their places of honor for their
own advantage and gain, which is justly execrated by every honest
man and woman in the country. And another class is always before
us the public press. They have taken advantage of their great
power in too many cases. They have hewed too closely to the line.
They have not sought to carry out their great function always in a
fair and just spirit. The desire to sell papers I will not quote the
rest of the expression the desire to extend their circulation, has led
them to do many things in their discussions as to men and measures
of public interest, which amount, indeed, to skimming too closely
to the edge of the law, to flagrantly abusing the great privileges con-
ferred upon the press, by misleading or inflaming instead of really
informing, educating or leading the people.
for Low in the U> :</
.ing illustration of that a year ago in Wash-
ing!, m a manager of one of the most reputable
monthly magazine-, in tl. 1 States, to one of the most dts-
lresentati\es in Congress, stating that in a case
magazines it was not good
r that maga/ -.iblMi the truth about matters
of great public interest as o- in the official records of our
governn < 'U-r is embalmed in the "Congressional
Rect 1 speaks : <>f tiie shame of such management.
That illustrates what i too often the of many of the moat
\vspapers and magazines of our country.
1 dunk \\ . all r< -alizc that these classes I have described are
not increasing : that there has been a considerable decrease of them,
a great improvement in the condition* in this n s|>ect all over our
country in tl ears. There has been a general uplift in
public and private life. There has been a great improvement in
:iethods of men of business, of public work, everywhere, and it
is a great encouragement to every man who believes in and loves his
coui ti- tlu- wonderful improvement that has been made
in the-e partiail.
There are other classes of cases which come to us in public life,
such as you people might not realize as we do, and where there
has not been an improvement. It very often happens that good men
and good women come to us and urge that public measures be pasted
for the benefit of the people, as they esteem it, and they urge these
\\ ith the broadest and best of argument s f<r the puhlic welfare. But
\shen we show to them that the measure^ they seek arc not war-
ranted or authorized by our constitutional powers, or are forbidden
by our constitutional limit they esteem it too often no argu-
ment \\ i oild not be enacted. And too many of
them ask u. and even urge us, to violate our solemn oaths of office
li we took to support the Constitution of the United States, and
seek to have us place > upon te books, and to have
the responsibility of finally determining the validity of those laws
passed up to the courts of the I'nited >: -ing upon
the performance of duty l.\- those who have the responsibility for con-
sidering them at the beginning. I say that lias happened too often,
and is happening to-day not only in Washington, but in every state
legislature in this country ; and the classes of our people who appear
2O2 The Annals of the American Academy
to ignore our fundamental laws an.l duties are of the most re-
spected in our communities.
There is too little respect for our fundamental laws and obliga-
tions among the good men and women of the land. Too often they
have come to some of us. and after we have urged such objections
to th< . they seem to look upon u- ;i- enemies of our kind.
A spectacle occurred only a few weeks ago in the House of
Representatives in \\ "a-hin-t. .n. to which I desire to call your at-
tention in this connection. A majority of the House of l\e|>ivM-nta-
. composed of members of both political parties, deliberately
violated and trampled upon the rules of that House, which were made
under the authority of the Constitution of the United States, for the
government of the members and the proper and orderly conduct of
the business of that House. They so violated the rules for their gov-
ernment for the purpose of passing an amending rule for the conduct
of business, which may have been salutary and may not, that remains
to be seen in the future. But the point is, that they did deliberately
trample under foot and violate the rules of the House of Repre-
sentatives, and that action was applauded all over this country.
Nearly every newspaper and magazine and, I imagine, the great
mass of you here, sympathized with that deliberate violation of the
rules of the House.
But let me show you what the effect of that is. If that prece-
dent be followed in the future, one-fifth of the membership of the
House can prevent any public business being done in the House of
Representatives, can completely choke the operations of our govern-
ment ; and in order to carry on its affairs, there must be again a
deliberate violation of the rules of the House, or a still more flagrant
violation of the Constitution of the United States, which requires
that the yeas and nays be called if one-fifth of the members present
demand it. If that violation be followed in the future, it means that
there must be continued violations in order that the business of this
country shall be properly performed. I submit to you, is it good
public policy that the business of this country be carried on by
violations of their laws by our great legislative bodies?
Friends, just think of it for a moment. Now, I spoke as a
"regular" this time. I have not always been as particular, and that
is why I can testify with the utmost freedom? I have voted on both
sides of the fence. It was not so many years ago that I was one of
for Law in thf I'lntsJ Si,.
^ents, an . violated the rulings made by the hon-
ored chairman of this meeting \\hen he was right and I was wrong,
confession is good i oul, ladies and gentlemen. But
after all. such examples and such . ,t the proper way
tisiness and do not tend to instill tin- just respect \\lnch
tficials ought to have throughout the count:
uggestion which is not official.
thm: re is a growing tendency among
in the coming gener.-ttjon, to have a lack of
respect for law ami public author; see it everywhere, in the
public conveyances, and even in the
honit ic is a lack of wholesome respect for authority, and
for persons, for the rights of property. What
ults in t that are to follow, when the responsi-
ble shall be upon these young men and women,
us come that al -visibility? Will
ontrol themselves as our forefathers did.
. control led to the foundation of our wonderful institutions
:r prosp, progress and happiness under them. Too
nies the old maxim which I stated in the beginning,
the end i he means. Now, it is ca-y for us to critici>e the
male th. It is easy to criticise those who lead
nob, to anathematize those who violate their great trust in offi-
;id those who violate their duty in the dissemination of
news. It has not been easy on the other hand to criticise those who
demand that the Constitution of the Tinted States be violated, or
who :hat the rules and order of business in a great legislative
body should be trampled under foot. There does not seem to me
to be the proper balance in the different kinds of criticism. As a
reason for this difference it is contended, on the one hand, some
classes are it for profit, and violate the laws for such pur-
poses , the other hand the other classes are interested for the
>u reali/e that the man who urges a viola-
he constitution or the ' the purpose of something that
ifl for his own selfish intere-t. is not more culpable
than who urges a -of the constitution or the rules of
i louse or Senate, or any other great body ostensibly for the public
and yet it may be for puq>oses just as mean, just as
base, just as low, just as much for personal advantage as those who
2O4 The Annals of the American Academy
violate the other classes of laws? It is not for us to weigh motives.
It is not for us to scrutinize purposes. One may be just as n
ami low an<l base as the other ; ami if that be true, what ri^ht has any
of us. who have violated any of the authority or laws of our land to
criticise the actions of any other class of violators? We in glass
hou-< no right to throw stot
l ; riend>. one tiling we have no business to do in this country, and
that is to fool ourselves. We have no business as patriotic Americans
to act as Pharisees or hypocrites. There is only one thing which
honest men and women can do, and that is to have a sincere, con-
sistent respect and obedience for law and public authority every-
where we find it.
There is another suggestion and it is rather an odd one. One
great manifestation of lack of respect for our law by Americans is
by reason of and shown by the great mass of law which we have to
respect. In our various states, every two years, and in our national
legislature, there probably are turned out or placed upon the statute
books more than ten thousand separate acts, and there are a host
more in the great cities and towns and villages of our country, untold
thousands of them. It is one of the distinctive evils of our legisla-
tive bodies, that too often the public ills are not properly considered
and diagnosed, so that the proper remedies can be applied. Too
often statutes are passed in state legislatures and in the national
legislature without proper consideration, and too often they are
passed through some personal ambition or some promise made in the
exigency of a political campaign, or to gratify some personal friend-
ship or vanity or a personal fad, or grudge, or grouch even. Too
many statutes are passed of that kind, with the result that a great
mass of law is placed upon our statute books, too much to be known
and appreciated by the great mass of our people ; and as some of it
is injudicious, so that we do not care much about it, there has grown
up a national and natural disrespect for that sort and all sorts of
legislation. We cannot help it. It exists, and there ought to be
a remedy somewhere.
For two or three centuries, in the early history of this continent,
we did have a class of leaders of responsibility, men who stood for
something, and whose position and influence and learning and pa-
triotism were regarded. Perhaps no city in the land has produced
more of that class of leaders than this great and patriotic city of
Respect for Late in the United States 205
Phii.i They were member* of the clergy, the bench and the
ir. heal mm, the great scholars and teachers, the great ft
the men who coi :!ie great newspapers. But during
the last . lias largely dmnm-hed, and as it
diminished. complexities of our public and private
have grr. ased. There has been a tremendous increase
in t! ns of government, state, national and municipal, and
\\ith this there necessarily must come a great increase of duty and
responsibility upon the individual citizen, demanding the very highest
qua! rsonal hmr and judgment and leadership, which seem,
in tl liave been unfortunately diminished. The
result i- that in many instances, the great masses of our people are
being led by m magazines and newspapers, put
i "i thr purpose of selling, through sensations and headlines and
cartoons, and not for the purpose of responsibly telling the people the
truth. Thus tlu- people do not have accurate information, they do
not have the responsible leadership which has been at once the basts
of our great power and progress and the glory of our institutions.
All this may sound like a wail of pessimism what does not
seem naturally to come from the prairies of the hopeful and breezy
West, but I want to assure you, confidentially, that I do not mean all
:i agree, as the Vice- 1 'resident -tated. that at the basis of
all our \\ and progress is the great true heart of the
American people. We arc all optimists, and we have every reason to
be optimists, and we are going to be optimists. The heart of the
American people is all right. They demand safe and sane and
honest laws, they demand that they shall be enforced fully and
fairly, except alwa\s that they shall not be enforced too strenuously
as to themselves and their <>wn interests. It is that exception which
we are trying to eliminate, and whenever the attention of the people
has been called t. \here in our land, whether in
the great State of New York, under the leadership of that spit
governor there, or \\hethcr in the great nation of ours, under the
leadership of that great President, now perhaps the hero of the world ;
or whetl te in the West, under the leadership of my
1 and political opponent, Governor Johnson, wherever it may
have been, the people have never failed to respond; so that, after all.
ailment of ours is only skin deep, a son of national eczema, as
>t u :\ will be eliminated if we have our attention properly
206 The Annals of the American Academy
called to it. It should be the mission of every true American citizen
to see that the right thing is done, to see that we appreciate our own
personal responsibility in these matters, a personal responsibility
which must be constantly applied in public and in private life. There
is no mystery alwuit this mre. It i- as old as civili/ati>n. It is the
foundation of the glory and of this bles^-d republic. It
was thundered down to the faithful from Mt. Sinai, and has been
comini; d>\vn the ages ev< "The ways of the Lord are true
and righteous altogether," and it is righteousness that exalteth a
nation.
K I .AW I X Tl 1 K I ' N ITED STATES
III. ADDRESS BY ARTIH u VON BKIESEN, ESQ.,
President. Legal Aid Society, New York.
ap|>ed this evening because of the eminence of the
gentlemen who spoke before me. The esident of the United
es, and one of our most distinguished senators have spoken,
ami here comes a poor pn .-en to contradict them. Naturally,
a difficult position.
1 \\.IN . speak on the respect which the people of the
have for law. In my connection with tin- Legal Aid
Society of New York, thousands and tens of thousands of cases of
the poor and helpless are brought to my attention, so that I have had
ual opportunities of judging of the respect for law which the
people around me seem to have shown. But, of course, if we talk
about respect for -mist fir :n, What i* the law which
we a .'.'hat is that thing called "law ? " ]u*tinian had
1 400 years ago upon that subject : I Ic defined justice
as the constant and impelling wMi to render every man his due, and
1 the maxims of law to 1 K - these : to live honestly, to hurt no one
and to give every one his due. If that i- the concq>tion of law. it,
lly that institution which makes us respect
the rights of oth
In :' already been stated, we are making a
great many so-called laws. The legislatures of forty-six states and
congress, influenced 1 rbose 11. and others pass laws
. year which, added to the ordinances enacted in cities and
counties would make in printed form a column longer than the
: this room. Most of these laws have at the tail end the main
.;. "this act shall lake effect imtncd: . the citizens arc
supposed to know what that law is. still they do not know it. They
have had no opportunity of learning of its existence. Apart from
the fact that there are such a multitude of sometimes perfectly
ulous enactments, tl f preparation, the failure
to gi-. :ti/en due warning. This shall be a crime and another
thing shall be a misdemeanor from this day on, from this hour on,
(107)
2O8 7 Vic' Annals of the .
and so every day of the year. Every hour of cacli day nearly, a
new law is made which may make us all criminals without our
.ing it. An illustration of tin- situation created by this sort of
thing, "an act to take effect immediately." came to my notice, when
in the State of New York an act was finally signed by the governor,
a very good act and a very good governor, prohibiting betting at
race courses. The act was signed by the governor at about two
o'clock one afternoon and within three minutes the district attorney
in Brooklyn received order- to i-n force that law immediately and to
arrot th.-e who broke it. So the poor district attorney who had
never read the law anv-ud a lot of people who had never read the
law. and brought them before a judge, who at that time had not
read the law, and who, when he did read it, held they had not broken
it. Therefore, some remedy should be devised by which citizens
should know in time, as is the case in some places, what the laws are,
so that they should have an opportunity of discussing them as to
their full text, before they go into effect.
Laws should be skillfully framed. They are not always skill-
fully framed. They are sometimes ridiculously framed, and the
judges who have to deal with them are frequently of opposite opin-
ions as to what a law intended. Of course, if that be the fact, and
it is a fact known to me, then the lawmakers are guilty of careless-
ness, to say the least, in framing them.
We had an illustration of that last year. They gave us four
constitutional amendments to vote on in New York last November,
and I managed to get hold of them before the election, and studied
them. Each of these constitutional amendments was about as long
as a column in an ordinary newspaper. I painfully read each, three
or four times, and when I got through I decided that I was utterly
unable to understand the meaning of them. But to my great sur-
prise, a few days before election the leading newspapers of New
York came out with the statement that the second amendment was
the one to vote for. Every one should vote for the second amend-
ment they said, because that was calculated to increase the salaries of
the Supreme Court Judges of New York who sat in country districts,
and not to increase those of the justices who sat in the large cities.
I was surprised to read this, because I had not succeeded in spelling
that out of this particular amendment, but that is what the papers
said. After election day it was announced that this particular amend-
Respect for Law in the LV :tft aor>
merit amongst others, had been affirmatively voted upon and was now
a part of the constitution <f the -t.i- w days later one of
Judges of New tated to the Board of
Estimate and Apportionment, < imtlnnen, I am one of the Judges of
the :k, ami this amendment means that only
judges get an increased salary, and the country judges do not g
so please pay me the nut rase.
That is tin- kind of stuff we get from our legislature, and that
kind of stuff people get from most of their legislatures. Then
look at the many paternal and maternal enactments. They have a
law in Oklahoma providing that the bed sheets in hotels and boarding
houses must be seven feet long. Every one goes to jail who has a
short cago has passed an ordinance about the size of hat-
.ie the kind of laws passed, which no one esteems and no
:n. Therefore, if we accept the proper definition of the
term -ec to it that proper laws, properly shaped, arc brought
to our knowledge, and that undue attempts to stimulate a picayune
interference with our happiness and our individual freedom will
not continue to l>< uj>on the statute books.
I was in Portland, Maine, three years ago, and found that
State of Maine was what they called a i'r< hibition State, that
is, a state which prohihited any one from drinking a glass of
or ale. which tni^ht he wholesome, but the law was so arranged
y one might drink whisky and that of the worst and most
harmful kind. A friend of mine, in the city government of Port-
land, told me that each and every year during his administration as
mayor of that city, ve per cent, of the inhabitants of
land were put in jail for drunki Here was, therefore,
a whole city of law breakers, resulting in the moral destruction
almost, of a large number of men who without such stupid laws
would have been able to exercise their self-control and to conduct
then c do. without restraint. Though all sorts of
liquid and solid nourishment and of temptations face us. yet we
know how to resist them. The law should make for decent
control in order to produce a good crop of citizens. By the pro-
ry law \ the opportunity away from people to exercise
: manly qualities, and to improve their moral status.
There is another asjxvt that while the majority says, you shall
not drink, think what would happen if the majority should ever
2IO The Annals of the American Academy
change, and should order: "you must drink." Such things could
happen.
You see li therefore, in all the cases I have
given you. You sec it in these prohibitive m you see it in
lynch law exce>s< ikers' excesses, in smuggling tendencies, all
evidences of the greed of man to rush to his advantage, law or no
law. o<>urt r no court.
All this is largely due to a lack of healthy public opinion. It
is public opinion that really make> the law. and not so much the
lawmaker. On the statute books of Connecticut are still some of
those "blue laws," which if enforced would have some of us enjoy-
ing the burning of witches and the like. They are not enforced.
\\ h y should they remain on the statute books ? Would it not be an
honest thing to take them off, and not encumber our lives with
statutes requiring citizens to adapt themselves to laws that are no
longer enforceable, because public opinion forbids?
In this matter of public opinion, I would like to give you a
few illustrations, if my time permits. Whenever in New York a boy
steals an apple from a pushcart man, the crowd laughs at the antics
of the owner in his effort to protect his own and sides invariably with
the little thief. In the dormitories of colleges I frequently see the
rooms of students covered with so-called "trophies," things stolen
from shop-windows, signs taken from the tailor or laundryman.
spoons from hotels and restaurants. All that is looked upon by our
public opinion as only one of those little excesses of youth, at which
one may laugh ; but the youth becomes a man, and how can be be ex-
pected to respect the rights of others as a man if he has not done
so in his youth?
You invite the best friends of the family to weddings, and then
hire detectives for the purpose of seeing that these be>t friends do
not steal the silver. Do you suspect your best friends? What are
we coming to? Is this a healthy public opinion?
We impoverish the community by allowing this kind of grafting.
I have seen in one little foreign country a large revenue derived
from fruit trees planted on the public highway, each tree being rented
by the year as far as fruit is concerned ; and no one thinks of stealing
that fruit, nor would children steal it. Now, I say that when we
get to the point that we can reduce our taxes, our tariff, our cost
of living, by deriving a substantial revenue from public property
Respect for Law in the 6'/. t fs an
to public protection, then we may see the
beginning of true respect for law, with all resulting benefits.
with tin- education of the childre
do not mean school instruction. Inn the home education of the
1 !..k i'..r improvement. I li.it i* \\i.'
r law, if the
lack f respect for the rights of others, if there is a corresponding
impoverishment . . it is due to the fact that parents, as
a whole, do not allow their children to be brought up considerate,
respectful and upright in all things. I call for that kind of im-
pro\ The Church alone cannot do it, else it would have done
it Mm \\ho seek to a<l '.eir own individual ami supposed
lie expense of their neighbors and who, therefore, are
the men \\lio do not respect the rights of others, may be looked
upon as public enemies. Their kind must be eradicated and sup-
plant of high moral principles to the develop-
ment very child embodies the germs for a noble and
the germs for an ignoble development. It is the duty of
the one and suppress the other. By neglecting this
the l.rutal instincts are permitted to overshadow the longing
is weeds keep down the most precious
flowers I hn| K - that the im|K>rtance of this great truth may sink
the lu-arts of tht . that gradually processes
1 by and through which every individual in the
-sill In-come a respect and therefore a respecter
C rights of his neighbors. 1 f the fact that we are a
great and have accomplished great things, we can still ad-
'I do greater things: and the greatest we can do is to bring
up our N'ys so that every one, with healthy body, can be an Abraham
In in IN ,im of morality and desire to be just in his doings to
RESPECT FOR LAW IN THE UNITED STATES
IV. ADDRESS BY PROFESSOR GEORGE W. KIKCHWEY,
Dean of the School of Law, Columbia University, New York.
Mr. Chairman, Ladies and Gentlemen:
Had I the tongues of men and of angels, I could hardly hope
to rise to the high pinnacle of expectation which the eloquent lan-
guage of the Y ice-President in introducing me must have raised
in your minds and hearts. Like most of those who preceded me,
I, too, am a sophisticated rhetorician apt to be intoxicated by the
exuberance of my own verbosity. But not holding any official sta-
tion, I am cabined, cribbed and confined within the limits of time,
and may not encroach upon the purlieus of eternity in speaking
to-night. It is a purely parenthetical observation, but I could not
help wondering, as I sat here, what limits of time would have been
required if the distinguished Vice-President of the United States
had come here to make a speech, instead of coming merely to intro-
duce the speakers. However, as we are in the habit of saying in
that somewhat flippant city from which I have come to these more
serious precincts, the hour of ten-fifteen is only "the shank of the
evening," and therefore I shall not be discouraged by the apparent
limitation put upon my eloquence by the presence of the Vice-Presi-
dent's watch upon the table. As he has intimated to you, he trusts
the public men who stand upon the platform not to steal his time.
He laid no such restriction upon those who come from private life.
I have found it very easy, indeed, being a person of easy
temper, to agree with everything that has been said here this eve-
ning. I am as patriotic and as optimistic as the Vice-President of
the United States. Perhaps I may be permitted to add that my
optimism was somewhat reinforced by learning that the Constitu-
tion of the United States is held in high regard under the pr
administration at Washington. I am not only as optimistic as the
Vice-President, I am at the same time as pessimistic as my friend.
Mr. von P>riesen. Nay, I am as optimistic as the distingir
Congressman from Minnesota was in the first half of his speech
Resect for Ltrtc in tlu- I 'mtt-d Stales 213
and as pessii ua^ in tl..- latter half. I have oscillated
from one ev the other. My i ; of ihc
who lias just U-en talking with a peft&in
and so 1 when 1 wish to pass from grave to gay, from
luely t<> MNCU. 1 shall only have to engage in conversation with
\\. tare ..,nl a ^rcat deal of talk of late about the lack of
res|x l.iw in our hlr*sed, steel pr^bum^ country. There
is not so iiiiu-li <>f that to-day as there was just prior to the last
.\ hen thru \\ ei e novements abroad to tie the courts
: IM remember rightly, these movements were more
it was known who \s-uld be the nominee of the
Republican the I 'i . than they were at a subse-
quent |K-riod ; hr.i r that may l>e, the net result is that there
has been a i ihle falling oflf of late in the populr
again -t the law and the administration of the law.
ted hack from tinu- to time by our pessimists
to a golden age, when all men except those who felt the halter
draw, had ^iMd opinion of the law. I cannot help wonder in;;
IN not an illusion whether, as a matter of fact, the
free and independent American, with his insistence on having his
his irritation at legal as well as illegal restraint, has not
ry much the same attitude of free and indc-
rriticisin of the law which lie exercises at the present
He believes that the law should IK- rigorous] . od
IMM!V. hnt himself. He demand* for himself only jus-
tice the justice that he thinks he is entitled to. I doubt very much
if there ha* been an\ lerable change in our attitude in
the hundred years and upwards during which the present frame-
work as a means of creating respect for law. has
continued. I doubt very much if the law is not quite as much
emit cspect to-day as it ever was before. Having thus
made my profession of faith I will not follow my distinguished
cessors in lamenting the I.ick of reverence for the law among
our people, nor will 1 *eek t devise methods of education whereby
our children shall have a reverence for the law of the land and
those who administer it. inculcated in their youthful minds and
hearts. Rather would I occupy a few minutes of your time in
214 The Annals of the American Academy
pointing nut how. in my opinion, the law may be made respected
by being made worthy of respe
It M-rins to me that the attitude of our lawyers and judges
- something to he desired, when they animadvert upon those
the law and its administration. As has been pointed
out by one of the speakers of the evening, the law is the expression
of the popular will, and the law courts arc the instruments created
by the people for giving effect to the popular will; and. this being
so, will someone, whether it be judge or lawyer, tell me why the
people .should he precluded from criticising their own officers,
appointed by them for the purpose of pulling their will into effect.
Why should we be estopped from criticising the law which we
have ourselves created? It was said very wisely by the distin-
guished representative from Minnesota and I wi>h to record my
hearty assent to the proposition that respect for law in this country
is due to the fact that the law is the expression of the public will;
the corollary to that proposition, to my mind, is that lack of respect
for law is due to the fact that the law as actually administered by
the courts fails to be an adequate and accurate expression of the
public will? Now, why does it fail to be an adequate expression
of the public will? Mainly. I believe, because of the way in which
our judiciary, which is under our legal system our principal appa-
ratus for producing law, has unnecessarily and unwisely restricu-d
itself in the administration of justice.
We speak of the administration of justice in a vague and
popular way; almost any judge or lawyer will tell you that what
you really mean is the administration of law ; and somehow or
other, in a hazy, confused sort of way, he assumes law and justice
to be identical. Now, as a lawyer and a teacher of law, it would
not become me to say that there is not, somewhere, a connection
<-en these two. There is no doubt whatsoever that in the law
ynu will find some more or less rudimentary notions of justice;
nor is there any doubt that justice is upon the whole better admin-
i-tercd through law than it could be in any other way, and so it will
be. until the perfect judge, for whom the ages have waited, appears
in the seat of justice.
I hope it will not surprise you unduly if I tell you that, in
deciding the cases submitted to them, our judges it is true of
t for Law in thf U>. 315
some judges in New York, and it is certainly true of your
>ia really aim to do justice. They are not
aware of that fact, and the la\\\crs who appear before them, have
the judicial ermine r\er to SUgggest that that
n of the court really to administer justice between
man and man in the case pending. The fun the judge is
estet be, autom.r , declare
:ul if you ask him \\lu-re he gets
:e \\ill i ns, reaching
back, as he I As a matter of fact
ts JN a much more r-
itmed t tuiK liack only to the time
1 oke in tlu- seventeenth
Now, I firmly 1 'iat justice can lie administered only
J) a regular legal md only !>y the application
! on the other hand. 1 U-lieve quite
that tlie real functi-n f the jud^e is to administer ju
i the books of the law uhat the
..ml then technically is an inevitable
due
of the human mind to play the game
known as "Follow the Leader." \\Y peratr intrl! ctually, as WC
the line We are an
ecofi- ..mical so we pi -w some-
one else's lead rather tha ke out for ours< he result
is once tse in \\
no law before that decision i^ rendered and this is
::cally all If I may express my Irnt-
nt- the in'!. becomes
Stored in the judicial mind, ami is copied more or less autoii
e more "i less resemhlin^ the one in which the
And so case after case follows that original
nd the rules of law hardening. cry*talli.-
solidifying, until they have lost the tlexihility al rojuisite
'.strumentalities of justice, in
the multifarious and complex atTair> of 1
M methods of obviating that difficulty.
Away back in the dim and distant period of the Korman rule in
216 The Annals of the American Academy
Kngland. a statute was passed directing the clerks of chancery to
issue new writs in cases similar to tli<-c in which they had pre-
viously been i>Miinv; writs, but not identical therewith. Fnun that
simple fact t mng a whole range of new remedies of which
till see the virtue and the fruit to-day. It wa* a ^elf-conscious
effort to relax the inflexibility of our common law system; and \>ii
will n<te that that tendency dates back to a very early period in our
legal history.
At a later date, when our legal system had again, under the
operation of this principle of stare dccisis. as the lawyers call it,
become fixed and inflexible, the system of equity was evolved
in the courts of chancery; and for several centuries the principles
of equity have operated to mitigate the rigors of the common law.
And yet a few years ago, it was possible for the Court of Appeals
of the State of New York in a case of considerable public noto-
riety. t declare that a young woman whose beauty had been made
an article of merchandise, through the stealing and publication
of her portrait for advertising purposes, had no remedy in the
courts of equity in the State of New York, there being no pre-
cedent for relief in such a case; and the court held that if there
was to be any change in the law established by the precedents in
equity, it was for the legislature to make that change. Equity also
has lost its flexibility ; the common law has lost its flexibility ;
where shall we turn next? To the legislature, says the New York
Court of Appeals, and so say many of you. We have heard to-
night that something like ten thousand statutes are enacted in this
country every two years. Of this number, eight thousand are per-
haps, from our present point of view, negligible, being special or
local in character. About two thousand are general in character
and have thd force of law. Of these, how large a proportion do
you suppose really affect the law under which we live and by which
we are governed in our private relations? About seven and one-
half per cent., we are told, and about one-third of that number
will either be nullified by the courts or will have to be hammered
into shape by the courts before they can be put to any use in the
community. May we not say. then, that legislation is as much a
failure as equity has been, as the statute to which I have referred,
proved to be, as a device for modifying permanently the rigors and
inflexibility of our legal system?
T Law in the United Si 217
Wlia t remains? There is no other artificial device that I
of to bring about the condition of affair* that must be effected in
order that our law shall escape the >.\\ winch we aim t
avert by becoming the real handmaid of society in its onward and
ncdy that I can see is for <r
alizc oner f.r all that the p<\\er to <!> justice, greater than the
power to admin: the power that U really committed to
them; that a .1 is only a signpost pointing <>m the Action
': h tin justice must go, not a rule binding upon the
I and conscience of the jinl^e ; that our courts are set in their
high places as interpreters of the popular sense of morality and
ri^'hi and the j* .pillar sense of justice not as interpreters of obscure
d down from a remote antiquity. They will receive
and they will deserve respect so long as the law which they lay
do* "ii of the public will and no lorn;
They have it in their power to make that law, day by day. week
by week, year by year, a more and more prompt and a more and
more accurate expression of the popular will ; and. in my opinion,
\ pn>|Mrtin as they realize the duty that is laid upon them.
:n pro|x.rtion as they exercise the power really confided to
JIM in proport succeed in a conscious effort to
er than law. will they make the law. what it
will then deserve to be, respected throughout the length and breadth
'/ ////. iv.vr.i/. Mi-:i-:n\<;
FOURTEENTH ANNUAL MEETING
OF THE
American Academy of Political and Social
Science
Philadelphia. Afrit 8 and 9, /p/O.
The essentially national character of the Academy's organization and
activities has never been as clearly emphasized as during the recent annual
oi selected for discusM Ministration of Jtu-
attracted widespread attention, and it is safe
to say that the discussions bad a real influence on the public opinion of
the country.
The meeting was considered of sufficient importance to justify the
appointment ot delegates by the governors of nine states, and the
presidents of twenty two bar associations. The names of those
us are appended to this report.
the sessions were largely ;. including the morning
of Saturday, April oth, which attracted widespread attention.
The thanks of the Academy are due the members of the local Reception
Committee, of which Samuel F. Houston was president, and to the Ladies'
Reception Committee, of which Mrs. Charles Custis Harrison was
also wish to express our obligation to Otto C Mallrry for
f the speakers on Friday evening. April 8th.
is also under deep obligation to those who so
contr the special annual meeting fund.
;ig the period of the annual meeting the courtesies of the Manu-
facturers' Club, the fni..,, League, the City Club, the I dob and
corn Club were extended to the out-of-town members and guests of
these courtesies we desire to make doe acknowledf-
The Academy i< under oblig he Gty Club for special prirflefjr*
enjoyed during the sessions, and to the Manufacturers' Club for the recrp
lent of the United States on the evening; of
April oth.
In a<! the formal papers contained in the proceeding*, we give
herewith the briefer remarks made by the presiding officer* at the rariostt
(tig)
220 .-hi mils of the American Academy
SESSION, FRIDAY AFTERNOON, APRIL Bn,
REMARKS or HON. JOHN P. I-YKIN. JISTICE or THE SUPREME COURT OF
\.
"Ff\loiv-M embers and Others: \ was informed when I accepted the
invitation tt pnsi-i >e*i<m that the presiding officer was not
expected to make any formal ad<!
"A few days ago, your good Dr. Rowe, to whom this society o\\
much, wrote me that if I would reduce my informal introductory remarks to
writing, he would be much obliged, and so I have reduced them." 1
SESSION, FRIDAY EVENING, APRIL STH.
INTRODUCTORY REMARKS OF THE PRESIDENT OF THE ACADEMY, DR. L. S. ROWE,
INTRODUCING HON. JAMES B. DILL AS PRESIDING OFFICER OF THE SESSION.
"It is a notable fact that in the movement for the conservation of
natural resources increasing attention is being paid to the care of children as
the greatest of national resources.
"Much has been done toward the elimination of the preventable diseases;
much has been done toward the reduction of infant mortality, but we are only
beginning to realize how much can be done toward the preservation of
adolescent character.
"In the national awakening that has taken place the judiciary has played
an important part, and in the constructive work which now confronts the
country the importance of the influence of the judiciary will in no way be
diminished. It is, therefore, most fitting that at this session the presiding
officer should have been selected from the highest court of one of our adjacent
states. I have the honor of presenting to you, as presiding officer of the
evening, the Hon. James B. Dill, Justice of the Court of Errors and Appeals
of New Jersey."
REMARKS OF HON. JAMES B. DILL, JUSTICE OF THE COURT OF ERRORS AND
APPEALS OF NEW JERSEY.
"I have, ladies and gentlemen, on several occasions had the pleasure of
speaking in this hall, but never with so much pleasure as to-night, for I
have nothing to do, having only to introduce the speakers of the evening.
"The topic under discussion to-night goes with force to every one. Many
years ago one of the great writers said in a metaphorical way that it was
easier to crush the eggs of all the serpents in the sand than to pursue one
with a club when it comes into its full force and energy, so when the
'The more extended remarks of Justice Elkin appear in the proceedings.
.'/; Annual Slotting 221
American people, through the court* of Utt retort, determine whether this
nun i* m il man should he tent in- i world, we are rrniiiiig
along a v nukr% d> u and me.
nmr that i> |>miiit!r<l. and Ihe career of
.lu.il. -. r. .!..> :.. topic becomes of interest to as
because we are attempting in advan* aside and prevent the tribe
. till* our state prisons and \> utions. The career of the
t<> paraphrase my own expression, is the fault of the community.
itne is that <!' (lie individual himself.
deal of pleasure that I introduce to you s i mil nun
who has since 1870 been a classmate of mine. Dr. Han. who is experienced
tod a to you. because he has not only read and observed, but acted.
- capacity as director <>f the department of child helping, of the Rnatell
Sage i k, he is brought in contact with all these things,
and be is able to talk to you about what he knows, not what he guesses."
SESSION OF SATURDAY MORNING. APRIL om.
The introductory remarks of the presiding officer of this session, Hon.
Charles P. Nn 1 States Commissioner of Labor, are printed in the
SESSION OF SATURDAY AFTERNOON. APRIL OTH.
PRESIDING OFFICE*. HON. EDWIN S. STUART, GOVERNOR or PENNSYLVANIA.
Governor Stuart confined his remarks to introducing the speakers of
the afti
SESSION OF SATURDAY EVENING, APRIL 9111
Kl MASKS Or THE PRESIDENT oK THE ACADEMY, Dm. L S. RoWE. IN IXTRUOUCUSO
N-. JAMES S SHE* WAS. V f ICE- PRESIDENT or THE UNITED
STATES. AS PRESIDING OFFICER or THE SESSION.
"I would be guilty of larceny in its highest degree if I were to take
valuable time from this meeting in unnecessary words of introduction,
so distinguished a presiding officer as the Vice- President of the I
States, any words of introduction arc not only superfluous, bat distinctly
oat of place. I have the honor, therefore, of presenting this audience to the
Hon. James S. Sherman, who has done us the honor to accept the presi-
dency of this session."
The remarks of Vice-Pr - Herman, in introducing Hon. Frederick
vens. are incorporated in the printed proceedings.
77i* .'Inuals of the ./;;;>/'/;;
REMARKS op THE VICE-PRF.SII' NT OK ITED STATES IN INTROI
ARTHUR VON BRIESRN, PRESII HE LEGAL AID SOCIETY, NEW YORK.
"Not being a musical program. I suppose encores cannot be gi\<
Brother Stevens is not to be i-allrl upon to respond to your kind applau
managers of the meeting have requested me to suggest t<> thus, that
follow, though I do not kn<w why they should have neglected it until now,
that the speakers limit their remarks to fifteen minutes, llavim; a full
fidence in the honesty of the public men of the present day. SMUK- <>f whom are
to be seen on the stagr. 1 am going to put my watch IKK up. -n the table.
It may call to the mind of tin- speakers a feeling akin to tl < d by the
eminent Methodic divine, when he placed his watch upon the pulpit at tin-
beginning of his discourse, saying that he did so lest in hi- lation
of eternity he should lose all thought of time.
"Brother Stevens has spoken of the fact that every two years in state
and nation they turn out laws, which brings to my mind a sad recollection
that every two years they sometimes turn out lawmakers. I have a very
distinct recollection of having to respond some years ago to a very earnest
invitation on the part of my constituents to tarry at home with them for a
couple of years. In such cases one is not permitted to send regrets. I:
reminds me of the experience of one of my colleagues, \\lio \\us prominent
in the South, and who spent his boyhood on a large plantation in the slave
days. His father was a slave owner. All the slaves had a small amount
of work parceled out to them on the Sabbath Day, save one old brother. He
never had to work because he had been called to speak to the flock in the
little church. One Sunday morning my colleague found the old man sitting
upon the woodpile, with downcast face and expression. When the boy
asked why he was not in church he said: 4 I never goin' to preach to those
niggers no mo'. 'What is the matter, Uncle Marsh?' asked the boy, but the
nigger would for a long time give no reply. The niggers don't appreciate
good preaching,' he said. 'There is some other reason than that,' said the
lad, 'and I will find it out, so you had better tell me now.' 'Well, master,'
was the reply, 'that there congregation done send me my resignation.'
"I do not quite agree with my good friend Stevens in the intimation that
we are getting gradually worse. Now, I have not lived as long as Methuselah,
and the black hair and cheerful expression of my school companion whom I see
sitting in your midst is proof that I have been here but a short time. Yet
during these decades it seems to me that I can say that the general moral tone
of the world in which I have lived is not retrograding, but is improving. I
suggested a while ago that we must compare ourselves with the rest of the
world. If we do not have quite the same respect for the law in all i:s
little minor details, it possibly is owing to the fact that the lawmakers do
make punishments fit the crime, rather than make it after the perpetuation of
the crime, as they do in some governments under the sun. For instance, we
would not think here that it is the proper thing to sever the thread of a
man's life simply for stealing a spool of thread, as would be done in some
quarters of the world.
.'/i Annual Muting 2*3
-But I must not forget that I am here to introduce the next speaker of
the evening, and I am not gin. u as Mark Twain once
saying to his audience. 'Mark Twain will address you
upon the reason that he knows very little
anytt and does not know much about anything.' 'I
io has shown not simply by his
that he h.i-. .. ut he has contributed of his
lie good of mankind Hr has occupied positions
of trt i" in *hifh all w I edge and all of his
have hern 1 to advantage; and I have plr. inti
wmi has been .e Legal Aid Society of
Arthur von Bric^
KIMABKS or HON. JAMES S. SHEBV > PBESIDENT or THE UNITED
l.vTBoouciNc His EXCELLENCY, THE \\r.\
. \UBASSADOB, SENOK FKAMISCO Li6N DE LA BABBA.
"I call attention to the fact that my confidence in mankind has not been
.iin the watch is still here.
M Of the delights of a public service of well-nigh a quarter of a century
in Washington, none was greater than intimate association with that very
.iry character who for substantially a generation represented a
portion of this goodly city of Philadelphia in the halls of
rlly-and with that other man. close association with whom
not only admiration, init warm friendship, and friendship intensified by the
fact that he was born a political ally of my father ( I myself not being a
political ally of eit! r to former speaker and great Pemv
sylvanian and statesman. Samuel J. Randall ; or that other Pennsylvanian and
representative from this city unique, kind, cordial dear little Charlie
i all the delights of this service, none is greater than that which
has come in later years in close association with the representatives of great
powers of the world, sent here to our court, and I want to testify to the
fact that to-day. \\ it may have been in some former
when we were not quite as great as we are now. the diplomatic corps is
op of men of ability, genius and high-minded character.
our good fortune to have a representative of the diplomatic
here to-night, and i h..\e much pleasure in presenting the ambassador fi
our sister republic. Mexico, Seftor Francisco Leon de la Barra."*
MKS BY THE MEXICAN AMBASSADOB TO THE UNITED STATE*.
FBANCISCO LEON DE LA BABBA.
"Your country not only commands the admiration of the world by its
magnificent industrial development and commercial and agricultural
but by its prodigious, moral force acquired through conquests in the
of spiritual life.
2J4 The Annals of the American Academy
"Man cannot longer display his energy as of old in crusades and in
conquering a new world To-day man gives to the useful his most strenuous
energy; he develops tlu- natural treasures of the earth, transforming them
by industry and diffusing them by commerce. But man's activity mat
itself also in the domain of art and science, and principally in the subject
matter of the Academy's studies.
"In my country this activity appears in a practical and useful way by the
care with which laws are elaborated without forgetting the teachings of mod-
I the ethnological and social conditions of Mexico, an-;
by the pertinent and vigorous application of legal precepts. Although it
would be an easy task to prove it. 1 must, through lack of time, content
myself with the bare affirmation that in my country the respect for law
is complete, and that this fact explains the long period of peace which
Mexico has enjoyed.
"I consider it to be a true saying that the people have the government
that they de-crve. In my esteem, the mere fact that the Mexican Government
has always complied with the obligations of treaties and international law,
shows plainly that in the Mexican people prevails the tendency to respect
the law.
"Here allow me to recall the public and eloquent testimony of Gen.
Powell Clayton, former able American Ambassador to Mexico, expressing
on a solemn occasion his unbounded esteem of the judicial decisions of the
Mexican Supreme Court of Law, which always bears the seal of the most
profound knowledge of the law combined with the most honorable character.
"The spectacle which is presented to-day by this assemblage of men of
science and statesmen bent upon the study of the forms in which respect for
law appears in your country, is soothing to the mind and shows a most inter-
esting aspect of American thought, already exposed by your great Franklin
in his famous interrogatory before the House of Commons. This
spectacle is both stimulating and exemplary. Ladies and gentlemen, under the
impression of this sentiment of hope and consolation, I express my most
heartfelt wishes for the extension of the influence of the Academy and
similar institutions in the promotion of science and the prosperity of this
great republic."
REMARKS OF HON. JAMES S. SHERMAN, Via T OF THE UMTKM
STATES, IN INTRODUCING PROF. GEORGE W. KIRCHWEY,
OF COLUMBIA UNIVERSITY, NEW YORK.
"We have had the pleasure of listening to one of the great legislators of
the country: then to a lawyer who is proud of the fact that he never held
public office, and now we have listened with much delight to the representative
of a foreign government. We are about to listen to one who has not held
public office, but who has performed a public trust, and a great public trust,
because I believe that he or she who molds the thought and character of the
young man and young woman in our schools and in our colleges deserves
at the hands and in the minds of his fellow-men the highest and the richest
possible encomiums.
Report of Fourteenth Annual I 225
**I have pleasure ut >; roducing. a speaker of the evening
festor Kirchwey. of Columbia I >
CLOU XKS or MOM. JAMES S. SHCBMAN. VICE-PBCSIOEXT or nit
UNITED STATES.
t* ami Gtmlltmf*: This completes the program, which hat her:
delightful to you .md ( me uve I have occupied therein,
tit any h at the j had intimated, and with nobody
iumcienily unkind, had there t>cen any Im. invoke the rule to close
me out I want to say just this tingle word in conclusion: That no com-
munity, as a whole. up to the lofty ideas of its best citizens, nor
does any communit-. the degradation of its lowest scum. \Vb
nnsylvani.i 'hroughout this country, or throughout the world
bws are passed after judicious and careful thought, and interpreted and
id considerate mm. Mich laws arc more readily accepted
and obeyed by the people.
. as I said before, who are firiiiiniili I believe the
definition of a pessimist, made long ago, was the correct one that the pessi-
mist was 1 i his choice between tw<> e\iN. took both. I am an
optimist, and I still believe, after listening to all the speeches of the cv<
and I think from those speeches that belief is intensified that we are nearer
the millcnium to-day than we re before in our time. We have never
lynched as good a man as they did 1900 years ago, and they will never lynch
as good a man again, and nobody will dispute that proposition, I am sure.
I am also sure that with the spread of education in this country you
know we are educating annually 20.000.000 students under twenty years
of age. and spending one-third as much i< r education as all the rest of the
1 we are spreading education and civilization not only throughout oar
people, but throughout the world, and with this - ur midst,
to extend it beyond our own borders, I believe, as time
goes on, all laws will not cease to be judicious, and the people will bow to
then -.rig dcfcrci
CLOSING RCMABKS OP THE PBESIDF.NT or THE ACADEMY IN DECLABJNG THE
Fot'tTEENTII ANSI AL MEETING ADJOUBNEA,
"May I have your attention for one moment before we adjourn. In
bringing our annual meeting to a close, I want to extend the thanks of
\cademy to or. nt. not only for coming her. nine,
but also for his great kindness in meeting an emerw t : ton I wrote
in a number of times that we would not expect an address, and when
I me: him at the * I afternoon. I said to him: 'Mr Vice -President.
until this morning I had expected to have with us both Senators Borah
and Smoot, at afternoon I received word that they
would not con t*ons that were good and sumo. we most
call upon yon in this emergency to make an address,' and to thb call he gener-
ously responded.
226 The Annals of the American Academy
"Ladies and gentlemen, I feel, furthermore, that we owe a special debt
of gratitude to all who have spoken at this annual meeting, but especially to
those who were called upon at the last moment.
"It was at one o'clock this afternoon that 1 called His Excellency, the
.\K \ kau Ambassador, on long distance, and told him that I wanted to h.i\<
his consent to call upon him and to this he generously responded.
"It was at five o'clock this afternoon that I finally arranged to ha\
fessor Kirchwcy speak :xl at seven o'clock Dr. Talcott Williams.
whom we have not been able to hear because of the advancing hour, also
generously agreed to make his contribution. Much as we regret the absence
of Senators Borah and Smoot, as large as tluir contribution would have
been to the discii-simi of the evening, I think that wo will go away forlin
that we have had the full measure, not only of discussion, but of fruitful
inspiration and instruction.
The fourteenth annual meeting of the Academy has now come to a
close,"
OFFICIAL DELEGATIONS AT THE FOURTEENTH ANNUAL
MEETING.
DELEGATIONS APPOINTED BY THE GOVERNORS OF THE FOLLOWING STATES;
1. Colorado.
2. Florida.
3. Kentucky.
4. Minnesota.
5. Missouri.
6. Nebraska.
7. New York.
a North Carolina.
9, Ohio.
DELEGATIONS APPOINTED BY BAR ASSOCIATIONS:
1. American Bar Association.
2. Pennsylvania
Pennsylvania Bar Association.
Law Association of Philadelphia.
Lawyers' Club of Philadelphia.
Allegheny County Bar Association.
Bradford County Bar Association.
Elk County Bar Association.
Law Association of Indiana County.
Montgomery County Bar Association.
Northampton County Bar Association.
//i .-itui Md/ M tiling
Union County Bar Association.
Warren County Bar Association.
Washington County Bar Association.
b-
Association of the Bar of the Borough of the
Slate Bar Association.
4. New Jersey
A Jersey State Bar Association.
Camden County Bar Association.
5. Connecticut
Con State Bar Association,
r t ford County Bar Association.
6. Delaware-
Bar Association of Knit County.
!
Patent Law Association of Chicago,
& Indiana
State Bar Association of Indiana.
BOOK DEPARTMENT.
NOTES
Bailey, L. H. Manual of Gardening. Pp. xvi. 539. Price, $14XX New York:
Ifacmillan Company, 1910,
Professor Bui ; Hung style, here lelli of the joy of nuking
grow rmal garden may suffice for a residence, but not for a
The home, though its grounds are small, may yet. with proper treatment, be
a real landscai* Rare and choice plants, however, are no guarantee of
pleasing grounds. The relation of plants and shrubs to each other and to
buildings is of more import than the beauty and perfection of individual
specimens themselves.
The book presents an enormous amount of detailed information regarding
execution of landscape features. This includes elaborate and valuable lists of
plants and shrubs adapted for various ornamental purposes; suggestions for
thrir placing and instructions on particular sorts. The book is copiously
Mil \\ill tie especially satisfying to those who love nature
Banfleld, E. J. Confessions of a Beachcomber. Pp. xii, 336. Price, $4 oo
New >. Appleton & Co., 1909.
Mr IlantieM varies the ; rpretation of the tropics which makes them
i ie assures us that while it "may be perhaps beyond proof, it
might be safely assured that a larger proportion of men of the yeomen
class represented by those who have succeeded in tropical agriculture in
and are independent to-day than of the men in Victoria and
New South Wales who devoted their energies to sheep farming, wheat
growing and dairying." Mr. Banfield advances these statements in proof of
reat productivity and ease of supporting life in tropic Queensland in the
le of Guatemala, where the luscious banana is merely one of the many
good things that man can produce in far greater quantities than be can
consume. Mr. Banfield has not confronted the difficulty of family life in
the tropics and is not called upon to explain why his garden of Eden, with
all its richness has less than one person per square mile, while the arid and
unproductive parts of temperate Australia have become an empire. Never-
theless it is good to read his appreciation and interpretation of the relatively
Iced, its unsettled characteristic gives him splendid opportunity
scnte the aboriginal black with whom he established such friendly rela-
tions, and his scientific training and his powers of observation mak
account of savage life, of plants, animals and fishes very interesting
* good ; his appreciation of nature keen and catholic.
Bateson, W. Tk* Methods and Scofe of Genetics. Pp. 40* Price, SO cent*.
G. P. Putnam's Sons,
Professor Bateson has presented in a short space a icmitfcsUt analysis of
(tf)
230 The Annals of the Amciu\in
the applications which : ;itly been made of the Mendel ian Laws of
Heredity, and of their scientific value to the discussions of eugenics. The
book affords a general insight into the aims and accomplishments of the
scientists who arc invest ignt in^ the laws governing the transmission of
qualities from parent to offspring.
Blakeslee, G. H. , J -,i. tnr > ( /, ; ,;, 7 ,/ //,<- /:,, r Hast. Pp. xxii, 455. i
$2.00 N mas Y. Crowcll & Co., 1910.
Discussions of the more important phases of the urn Question"
hy men N\lio have made a special study of the held are prexriikd her* '1 In-
paper s vary greatly in value. Most of them add little not available in the
current volumes on the subject. About three-fourths of the pae
China from the American, Japanese and missionary viewpoints. There is
no discussion of China's problems as China sees them. Japanese-American
relations, Korea and Hawaii are briefly treated. A pro-Japanese tinge
appears in many of the papers. Two by .1 authors present views of
Chinese- Japanese relations which arc naive to say the least. It is still in
for example, that the result of the Russo-Japanese war was clearly to
Manchuria to China." The titles of some of the papers do not indicate tlieir
content. A thirty-page discussion on "The Chinese student in America" gives
hardly two pages to that subject. The treatment of "The New Learning in
China" is chiefly devoted to missionary schools.
There are several excellent chapters which present material new or not
easily available. This is especially trie of the discussions on the Foreign
Trade of China, Monetary Conditions, America's Trade Relations, The Opium
Problem, Christian Missions and the Japanese in Korea. These topics arc
well presented and will make the book valuable both for the general publ'c
and as collateral reading for college classes.
Carson, W. E. Mexico. Pp. xi, 439. Price, $275. New York: Macmillan
Company, 1909.
This book is an American journalist's account of his trip through Mexico
from Vera Cruz to the capital, to the Isthmus Tehuantepec and to most of
the cities of the Plateau, thence northward by rail to the United States. The
work has a good, easy style, and the nature of its writing makes it easier for
us to understand the wide range of topics treated, which ranges from ports
to paintings, from the pre-historic to the prospective, and from govern-
ments to courtships. The chapters also, despite definite subjects, often
contain a wide range of subject matter. The book contains a lot of inter-
esting but scrappy information and has a number of pictures, although many
photographs of streets are without significance.
Caon, H. N. Cyrus Hall McCormick, His Life and Work. Pp. xi, 264.
Price, $1.60. Chicago: A. C. McClurg & Co., 1909.
This wide-spaced, clearly-printed little book is a eulogistic biography of the
indomitable inventor, who is described as a thoroughly typical American of
the best sort, as shown by his work, his piety, his philanthropy and his
Book ntfartn 231
devotion to public service Indeed, hit biographer can see in htm no fault
The introductory chapter on "the world'i nerd of a reaper." descriptive of the
national and world poverty which machinery has abolished for tone
trikinK at well as thought -provoking manner. The later chap-
: caper and ;*r and the Wo. Id." arc
also interesting and suggestive. The book is well *r
Chance, William. Poor Law Rfform. Pp. 9$. od. London
-: & Son, 1910.
This Intl. :-, a discussion of the administration of the English Poor
Law by one who believes tl, commission found feet*
v no means a decisions of other
r majors- author has had wide observation of the
i and his is correspondingly valuable. It should be
hairman of a National Committee f<>r Poor Law
m appointed in 1906 by the British Constitutional Association.
Colby, F. M. ( | ,| ). Th N*w International Year Book. Pp. 792.
1 & Co., 19 10.
This number of the annual volume to go with the useful 'International
lopedia seems to maintain the excellence of the series and brim;
M the history of the world down to the end of last year. For
itallinger-Pinchot controversy is carried down to the Con-
gressional action of December 26, while Korea, Marquis ho. Agricultural
. Gas Engines, the Los Angeles Aqueduct, the Dover Breakwater.
M and Hudson- i-*ult<>M Centennial and many other topics are
brought d"\\n to date in a very satisfactory form. There are a number of
good illustrations throughout the book and ten maps, most of them colored.
showing such regions as Alaska. Turkey in Asia, the railways of Manchuria.
Altogether it is a very useful book and merits a wide circulation.
Coleman, Nannie McC. / lit Constitution and Its Framfrs. Pp. x. 642. Price,
tlj.oa Chicago: The Progress Company, 1910.
Readers especially in secondary scho. 1 the material in this book
readable and characterized by "human interest." It is not a critical work;
the author in fact states that it is "the product of home evenings."
principal purpose is to collate in a single volume suitable for ready reference
and frequent epoch-making state papers of this country, their
history and development and especially the chief events in the careers of the
men who framed them."
As an the discussion of the constitutional period a review
of colonial and revolutionary experience is Riven. One hundred and fifty
pages summarize the lives of the signers of the Declaration of Independence;
tndrrd and thirty pages do the same for those who framed the con-
>RCS give a commentary on the text of the iunsUtB-
image is often flowery and there are numerous mistakes in
t>ut the m.it< r it! covering the lives of those who made the nation is
nowhere else so easily available.
232 The Annals of the American Academy
Commons, J. R. and Others. /)<>, -utncntat v History of American Industrial
Society. Vols. I-IV. Pp. \\^\ Price, $5.00 each. Cleveland: A. II
Clark Company. 1910.
Cory, Q. E. The Rise of South Africa. Vol. I. Pp. xxi, 420. Price, $5.00.
New York: Longmans, Green & Co., 1910.
Cromer, Earl Of. Ancient and Modem Imperialism. Pp. 143- Price, CO
cents. New York: Longmans, Green & Co., 1910.
In this essay Lord Cromcr, long Viceroy of Egypt, makes a comparison of
Roman imperialism with that of France. Russia and especially England. He
finds that many of the leading characteristics of ancient imperialism appear
also in modern times. Great corruption, failure to assimilate the subject races,
and until recently at least, the desire to exploit the people directly, are found
in modern as well as in ancient times. On the other hand, modern imperial-
ism is confronted by problems far greater than ever confronted Rome. The
pantheistic religion of the Romans served as a means by which the people
could be bound to the empire. But Christianity is exclusive. The Romans
intermarried freely or at least more freely than occurs in modern times with
the people they conquered. Race prejudice reduces intermarriage in modern
times to a minimum. Rome had an advantage also in that her language
easily displaced the tribal tongues. The modern imperialist finds it most
difficult to displace the native literature and speech. Rome was alone in the
field. Competing powers now make the task of the imperialist difficult All
the conditions of the modern industrial life have become so complex that
the modern imperialist stands at a distinct disadvantage.
Of all modern powers England is in one respect the least fitted for an
imperialistic program. The desire to grant self-government constantly con-
flicts with the struggle for good government. Lord Cromer believes that this
problem is one in which England has made but little progress. It becomes
most acute in India, which is really the center of England's imperialistic
policy, but which, because of divergent races, languages and religions, cannot
be made a unit, and so far at least has not, in the opinion of the author,
developed the ability to govern itself.
Cullen, A. Adventures in Socialism. Pp. xv, 330. Price, $2.00. New York:
Macmillan Company, 1910.
Apparently authors will never tire of telling the interesting and instructive
story of Robert Owen and New Lanark. The latest addition to the literature
in this field is a volume by Alexander Cullen entitled "Adventures in
Socialism." The first half of the book contains a very complete discussion
of the New Lanark experiment, in concluding which the author states: "To
that experiment we can trace the inception of Modern Socialism. We can
point to New Lanark as the birthplace of co-operation and as the nursery
of the infant school, and to Owen as the pioneer of free education and free
libraries." The latter half of the volume presents the first thorough historv
which we have of the ill fated and unsuccessful co-operative community at
Orbiston, Scotland. The work of the author has been excellently done, and
Book Dffortm 333
were it not for hit tendency to dogmatize whenever the oopoctnnUjf ft
presented no criticism could be nude.
Davnport, E. /Yinriffri of Breeding. Pp xiii. 727 Price. $2.50, Boston:
n & Co.
In presenting this book the author introduces into common usage the term
matology." which includes the methods of improving, at well as Hit
ig farm animals. This word well expresses the scope of
the volume. Mr. Davenport's method of treatment is somewhat novel in that
variation, rather than heredity, is made the chief basis of the discussion,
The various categories of variation, their causes and relative stability, are
comprehniMxely discussed, with abundant example, illustration and citation
from original experimental work.
The author purposely opens an "interminable question" when he considers
transmission of acquired characters; but this is needful, for "no other pjnei
:-i all evolution is of such immediate and far-reaching consequence in
latology." His personal statements in this matter are well guarded.
They seem to lean slightly toward the views of Lamark.
Dolt. C. F. The Ethics of Progress. Pp. vii. 398. Price. $1.50, New York :
1 & Co., 1909.
While the work is ethical in its expression, it is fundamentally social in its
concept, and the able discussions which till its pages form an excellent basis
for social note of the social doctrine is contained in the
section of the book dealing with good will Happiness is analyzed and the
thought emphasized that the highest form of happiness is derived through
social service. True happiness in life is derived, not from a satisfaction of
selfish, individual wants, but from an attempt to supply social wants. The
author thus presents a splendid ethical creed for those who desire to engage
in social work.
Draper. A. 8. American Education. Pp. viii. 383. Price, $ioa Boston:
Houghtou, Mittiin Company, 1909.
The author has attempted in this work the worthy object of analyzing the
present public school situation, both from an historical and a modern stand-
point. The four sections of the book treat of the organization and adminis-
tration of education; of elementary and secondary schools; the college and
and special aspects and problems of education.
The chapter dealing with Illiteracy and Compulsory Attendance is excel-
lent. as is the chapter on The Crucial Test of the Public School The Utter
chapter analyzes the elementary schools and indicates their chief defects.
Judge Draper is unsparing in his criticism of the whole American educa-
tional system, t'r.f.-rt ;natcly. however, while the subject matter of the book
will not per se appeal to the general public, and will not. therefore, be gen*
trail-. is at the sat: t scientific enough to appeal to the
advanced student of educational problems. The purpose of the book is a
worthy one, its outline is excellent, but the execution is defective. Had tine
234 The Annals of the American Academy
been devoted to the preparation of the work, its value would have been
increased tenfold. 1
Gray, J. C. The \\itur? and Sources of the Law. V $1.50.
New York: Columbia I'lmersity Press, 1909.
Gregory, H. E., Keller, A G. f and Bishop, A. L. Physical and Commercial
Geography. Pp. viii, 469. Price, $3.00. Boston: Ginn & Co., 1910.
Grenfell, W. T., and Other*. Labrador, the Country and the People. Pp.
vii. 497. Price, $1.25. New York: Macmillan Company, 1909.
Labrador, a region larger than the original thirteen states, has peculiar com-
binations which have prevented it from advancing easily in the world's civil-
ization, and it has been strangely neglected by the uplift forces of the western
world \\hioh have sent so many missionaries to other and more sunny and
attractive lands. It has remained for Dr. Wilfred T. Grenfell to become the
Moses to lead this land and people of winter darkness out into the arena of
world observation where they can receive our attention, interest and. let us
hope, our support. Dr. Grenfell is a real viking, and the book portrays his
love of the north and his delight in following the dog-team, but lie is also
evangelist, judge, physician and teacher to his people, and i 
